State Consumer Disputes Redressal Commission
Rohan vs Spa Yoga Pvt. Ltd. on 23 November, 2022
CC/130/2017 MR. ROHAN VS. SPA YOGA PVT. LTD. D.O.D: 23.11.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 27.01.2017
Date of hearing: 21.07.2022
Date of Decision: 23.11.2022
COMPLAINT CASE NO.-130/2017
IN THE MATTER OF
MR. ROHAN,
S/o MR. RAJESH KAPOOR
R/O HOUSE NO. 641,
SECTOR - 16, FARIDABAD,
HARYANA
(Through: Mr. Dwapayan Gupta & Associates)
...Complainant
VERSUS
SPA YOGA PVT. LTD.
B-5/15, SAFARDUNJ ENCLAVE
NEW DELHI.
(Through: H & R Associates)
...Opposite Party
DISMISSED PAGE 1 OF 12
CC/130/2017 MR. ROHAN VS. SPA YOGA PVT. LTD. D.O.D: 23.11.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by Mr. Rohan Kapoor (Complainant) alleging deficiency in service and medical negligence on the part of the Opposite Party with respect to the Platelet Rich Plasma (PRP) and laser sessions taken by him for hair treatment.
2. Brief facts necessary for the adjudication of the present complaint are that the complainant in the month of July, 2015 visited the office of the Opposite Party and consulted the representatives of the Opposite Party for the hair problem suffered by him. The consulting doctor, Dr. Superna Modugil suggested the Complainant 16 PRP sessions and 10 laser sessions for a sum of Rs. 80,000/- for his hair treatment.
3. As suggested the complainant made part payment of Rs. 10,000/- on 09.07.2015 to the Opposite Party and took first sitting of his hair treatment which was conducted by Dr. Prerna. Again on 11.07.2015, the complainant made payment of Rs. 30,000/- and took second sitting of PRP which was conducted by Dr. Superna Modugil. However, on 15.07.2015, when the Complainant visited the Opposite Party for next session, he complained regarding pain in his head, to which the executive of the Opposite Party assured the Complainant that it is normal and the same will be relieved after 1-2 sessions.
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4. The Complainant, thereafter, took third and fourth sessions of laser on 15.07.2015 and 22.07.2015, which was conducted by Mr. Bipin. On 28.07.2015, the complainant again complained about the pain in his head to the executives of the Opposite Party but the Opposite Party assured that it will be relieved in next 1-2 sessions. Subsequently, the Complainant made payment of Rs. 40,000/- to the Opposite Party on 28.07.2015 and took sixth and seventh session of laser and PRP on 04.08.2015 & 19.08.2015 respectively.
5. It was submitted by the Complainant that the pain in the head did not subside with time and became unbearable with each further session but the Opposite Party failed to pay any heed towards the said grievance and neglected the problems suffered by the Complainant. There was also bleeding from the skull of the Complainant and therefore, the Complainant refused to continue with further sessions and asked for refund of the amount paid by him.
6. The complainant in his complaint has alleged that Dr. Superna Modugil was not a medical graduate i.e. M.B.B.S and was not qualified to perform any of the hair treatment. More so, no blood tests of the Complainant were conducted by the Opposite Party before starting the hair treatment in question. On the aforesaid submission, alleging utter Medical Negligence on the part of the Opposite Party, the Complainant approached this Commission.
7. Notice was issued to the Opposite Party. The counsel for the Opposite Party, Mr. Aman Rastogi appeared and filed the Written Statement/Reply. On merits, it has been contended by the Opposite Party that the Complainant was duly explained at the time of booking that the amount once paid was not refundable under any circumstances whatsoever and the said condition was also mentioned on the computer-generated receipt handed over to the Complainant.
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He further submitted that on 28.10.2015 the Complainant asked Dr. Suparna if he could be given refund as he had shifted his place of work and hence it was not convenient for him to visit Opposite Party regularly for treatment. After the said request of the Complainant was refused, the Complainant started making false allegations like that of pain, nausea feeling, allergy etc. to get the amount paid by him.
8. The counsel for the Opposite Party submitted that complainant failed to take complete sessions and the therapies of Laser and PRP are preventive/ curative treatments which are effective only if complete sessions as may be suggested from time to time are taken at regular intervals. Therefore, the Complainant cannot allege deficiency in service on Opposite Party on the ground that the hair treatment in question had not provided the desired results.
9. The counsel for the Opposite Party further submitted that Dr. Suparna is duly qualified dentist who has further been trained and certified by the LONDON HAIR RESTORATION ACADEMY to perform the work assigned to her and the certificate substantiating the said fact is provided at Pg. 24 to 25 of the written statement. Pressing upon the aforesaid submissions, the Opposite party has pleaded that the facts are clear that there exists no negligence on the part of the Opposite Party and the present complaint should be dismissed with exemplary cost.
10. The Complainant has filed rejoinder to the Written Statement filed on behalf of Opposite Party and has also filed his Evidence by Way of Affidavit. The Opposite Party has also filed their Evidence by way of Affidavit and the written arguments. However, the complainant failed to file the written arguments despite direction vide order dated 21.07.2022.
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11. We have heard the Counsel for both the parties and perused through the material on record including the Written Arguments filed on behalf of the Opposite Party.
12. Before delving into the merits of the case, we deem it appropriate to refer to the law on the cause. This Commission, has, in detail discussed the scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Ram Manohar Lohia Hospital & Anr. decided on 31.01.2022, wherein one of us (Justice Sangita Dhingra Sehgal, President) was a member. The relevant portion has been reproduced as below:
"9.......The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
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III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
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IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind."
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence DISMISSED PAGE 7 OF 12 CC/130/2017 MR. ROHAN VS. SPA YOGA PVT. LTD. D.O.D: 23.11.2022 and they are entitled to protection so long as they follow the same."
(emphasis supplied)
13. In the present case also, it will have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances.
14. It is the case of the Complainant that the doctor Dr. Suparna Modgil, who operated upon him was not having the requisite skill or competence or was not qualified to conduct the hair treatment in question. However, what has actually transpired from the perusal of the record is Dr. Suparna Modgil was qualified to conduct the hair treatment in question and was duly certified by the London Hair Restoration Academy Ltd. to perform these kinds of hair treatment. The photo of the certificate given by the London Hair Restoration Academy Ltd. to Dr. Suparna Modgil was reproduced hereunder for ready reference:
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15. In view of the aforesaid, we hold that Dr. Suparna Modgil does not lack the skill or competence to conduct the hair treatment in question and hence, the aforesaid submission made by the Complainant is devoid of any merit and is dismissed.
16. So far as the question of omission to do any act which was actually required is concerned, the Complainant has contended that the opposite party committed negligence while operating upon him due to which the Complainant suffered head pain, nausea feeling, allergy etc.
17. We deem it appropriate to refer to the dicta of the Hon'ble Apex Court, in Harish Kumar Khurana vs. Joginder Singh and Ors. reported at AIR 2021 SC 4690, being the latest pronouncement on the cause, wherein, the Hon'ble Supreme Court, while taking into consideration its previous pronouncements in Jacob Mathew v. State of Punjab and Anr. reported at (2005) 6 SCC 1, and Martin F. D'Souza v. Mohd. Ishfaq reported at (2009) 3 SCC 1, has held as under:
"14. Having noted the decisions relied upon by the learned Counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception."
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18. From the aforesaid dicta of the Hon'ble Apex Court, it is clear that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record.
19. In the present case, the Complainant has vaguely alleged that the Opposite Party committed negligence in operating him, due to which he suffered various complications and failed to get the desired results. However, this alone cannot be a ground for holding the Opposite Party liable for Medical Negligence since sometimes despite the best efforts, the patient may not favourably respond to a treatment given by doctor, due to which the treatment of a doctor may fail. It is further noted that the Complainant failed to take complete sessions and left the treatment in between. More so, the Complainant has failed to establish that there was breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing or that the treatment which was given to the Complainant was not acceptable to the Medical Profession at that specific time period.
20. This Commission cannot presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. Our findings to this effect are substantiated by the dicta of the Hon'ble Apex Court in C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam reported at (2009) 7 SCC 130, wherein, it has been held as under:
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"37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1: 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia."
21. Since there exists no evidence to substantiate the submission of the complainant, we are of the view that there exists no Negligence on part of the Opposite Party in the present case. Consequently, the present Complaint stands dismissed, with no order as to costs.
22. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
23. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Rules. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
24. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL)
PRESIDENT
DISMISSED PAGE 11 OF 12
CC/130/2017 MR. ROHAN VS. SPA YOGA PVT. LTD. D.O.D: 23.11.2022
(PINKI)
MEMBER (JUDICIAL)
Pronounced On:
23.11.2022
DISMISSED PAGE 12 OF 12