National Consumer Disputes Redressal
Sushil Mukesh Gaglani vs Life Cell International Pvt. Ltd. on 23 April, 2026
Pronounced on 23rd April, 2026
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION AT NEW DELHI
REVISION PETITION NO. 1038/2020
(Against the Order dated 17th March 2020 in Appeal 438/2019 of the State Consumer Disputes
Redressal Commission Maharashtra
DR. SATISH KISHORANADN AROLKAR
B-39, ROHIT APARTMENT LOKHANDWALA COMPLEX,
ANDHERI (WEST), MUMBAI- 400053. ... PETITIONER
VERSUS
1. SUSHIL MUKESH GAGLANI
RESIDING AT 103, KRUSHNA HEIGHTS
MATHURADAS EXTENSION ROAD, OPP. ATUL TOWER, KANDIVALI
(WEST),
MUMBAI- 400067
2. LIFE CELL INTERNATIONAL PVT LTD
26, VANDALURKELAMBDHAKKAM MAIN ROAD,
KILAKOTTAYUR, CHENNAI 600127
AND BRANCH OFFICE/ SERVICE CENTRE
ADDRESS: 4th FLOOR, BRIJBHOOMI, B WING,
38, NEHRU ROAD, VILE PARLE (EAST),
MUMBAI- 400057
3. SHRI CHETAN PURUSHOTTAM
4th FLOOR, BRIJBHOOMI, B WING,
38, NEHRU ROAD, VILE PARLE (EAST),
MUMBAI-400057
4. DR MADHURI AGARWAL,
230, 2ND FLOOR, HALLMARK COMMERCIAL COMPLEX,
LBS ROAD, MULUND (WEST), MUMBAI-400080 ...RESPONDENTS
REVISION PETITION NO. 1183/2020
(Against the Order dated 17th March 2020 in Appeal 203/2019 of the State Consumer Disputes
Redressal Commission Maharashtra
DR. MADHURI AGARWAL
OFFICE AT 230, 2ND FLOOR,
HALLMARK COMMERCIAL COMPLEX
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 1 of 38
L.B.S MARG, MULUND (WEST)
MUMBAI 400 080 ... PETITIONER
VERSUS
1. MR. SUSHIL MUKESH GAGLANI
R/O 103, KRUSHNA HEIGHTS
MATHURADAS EXTENSION ROAD
OPP. ATUL TOWER, KANDIVALI (W)
MUMBAI 400 067
2. M/S LIFE CELL INTERNATIONAL PVT LTD.
OFFICE AT:
26, VANDALUR KELAMBDHKAM MAIN ROAD
KILAKOTTAUR, CHENNAI 600 127
ALSO AT:
4TH FLOOR, BRIGBHUMI
B WING, 38, NEHRU ROAD, VILE PARLE (E)
MUMBAI 400 057
3. MR. CHETAN PURUSHOTTAM
C/O M/S LIFE CELL INTERNATIONAL PVT. LTD.
4TH FLOOR, BRIGBHUMI
B WING, 38, NEHRU ROAD, VILE PARLE(E)
MUMBAI 400 057
4. DR. SATISH KISHORANAND AROLKAR
R/O B-39, ROHIT APARTMENT
LOKHANDWALA COMPLEX ANDHERI (W)
MUMBAI 400 053 ... RESPONDENTS
REVISION PETITION NO. 182/2021
(Against the Order dated 17th March 2020 in Appeal 205/2019 of the State Consumer Disputes
Redressal Commission Maharashtra)
1. LIFECELL INTERNATIONAL PRIVATE LIMITED
REGISTERED OFFICE AT 26,
VANDALUR KELAMBAKKAM MAIN
ROAD, KEELAKOTTAIYUR,
CHENNAI- 600127
THROUGH ITS AUTHORIZED SIGNATOREE
SHRI D MEHESH
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 2 of 38
2. MR. CHETAN PURUSHOTTAM,
OCCUPATION SERVICE
AT 4th FLOOR, BRIJ BHOOMI,
B-WING, 38, NEHRU ROAD,
VILE, PARLE (E),
MUMBAI- 400057 ...PETITIONER
VERSUS
1. SHRI SUSHIL MUKESH GAGLANI, R/O 103,
KRISHNA HEIGHTS, MATHURADAS EXT. ROAD,
OPPOSITE ATUL TOWER, KANDIVALI (WEST),
MUMBAI -400067
2. DR. SATISH KISHORANAND AROLKAR,
B-39, ROHIT APARTMENT,
LOKHANDWALA COMPLEX,
ANDHERI (W)
MUMBAI- 400 053
3. DR. MADHURI AGARWAL,
230, SECOND FLOOR,
HALLMARK COMMERCIAL COMPLEX,
LBS MARG, MULUND (WEST)
MUMBAI- 400 080 .... RESPONDENTS
REVISION PETITION NO. 681/2022
(Against the Order dated 17th March 2020 in Appeal 203/2019 of the State Consumer Disputes
Redressal Commission Maharashtra)
MR. SUSHUL MUKESH GAGLANI
R/O 103, KRISHNA HEIGHTS,
MATHURDAS EXTENSION ROAD,
OPP. ATUL TOWER, KANDIVALI (W),
MUMBAI 4000067.
VERSUS
1. LIFE CELL INTERNATIONAL PVT. LTD
OFFICE AT: 26, VANDALUR KELAMBAKKAM MAIN ROAD,
KEELAKOTTAIYUR,
CHENNAI-600127.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 3 of 38
ALSO AT: 4th FLOOR, BRIJ BHOOMI, B WING,
38, NEHRU ROAD,
VILE PARLE (E), MUMBAI 400057.
2. MR. CHETAN PURUSHOTTAM
C/O LIFE CELL INTERNATIONAL PVT. LTD.
4th FLOOR, BRIJ BHOOMI,
B WING, 38, NEHRU ROAD,
VILE PARLE (E), MUMBAI 400057.
3. DR. MADHURI AGARWAL
OFFICE AT 230, 2nd FLOOR,
HALLMARK COMMERCIAL COMPLEX,
L.B.S MARG, MULUND (WEST),
MUMBAI 400080.
4. DR. SATISH KISHORANAND AROLKAR
R/O B-39, ROHIT APARTMENT LOKHANDWALA
COMPLEX, ANDHERI (W) MUMBAI 400053 ......RESPONDENTS
REVISION PETITION NO. 682/2022
(Against the Order dated 17th March 2020 in Appeal 205/2019 of the State Consumer Disputes
Redressal Commission Maharashtra
MR. SUSHIL MUKESH GAGLANI
R/O 103, KRISHNA HEIGHTS,
MATHURDAS EXTENSION ROAD,
OPP. ATUL TOWER, KANDIVALI (W),
MUMBAI 4000067. ... PETITIONER
VERSUS
1. LIFE CELL INTERNATIONAL PVT. LTD.
OFFICE AT: 26,
VANDALUR KELAMBAKKAM MAIN ROAD,
KEELAKOTTAIYUR,
CHENNAI-600127.
ALSO AT:
4th FLOOR, BRIJ BHOOMI,
B WING, 38, NEHRU ROAD,
VILE PARLE (E), MUMBAI 400057.
2. MR. CHETAN PURUSHOTTAM
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 4 of 38
C/O LIFE CELL INTERNATIONAL PVT. LTD.
4th FLOOR, BRIJ BHOOMI,
B WING, 38, NEHRU ROAD,
VILE PARLE (E), MUMBAI 400057. ... RESPONDENTS
REVISION PETITION NO. 683/2022
(Against the Order dated 17th March 2020 in Appeal 438/2019 of the State Consumer Disputes
Redressal Commission Maharashtra
MR. SUSHUL MUKESH GAGLANI
R/O 103, KRISHNA HEIGHTS,
MATHURDAS EXTENSION ROAD
OPP. ATUL TOWER, KANDIVALI (W).
MUMBAI 4000067 ....PETITIONER
VERSUS
1. LIFE CELL INTERNATIONAL PVT. LTD
OFFICE AT: 26, VANDALUR KELAMBAKKAM MAIN ROAD,
KEELAKOTTAIYUR, CHENNAI-600127.
ALSO AT:
4th FLOOR, BRIJ BHOOMI, B WING, 38
NEHRU ROAD, VILE PARLE (E), MUMBAI 400057.
2. DR. SATISH KISHORANAND AROLKAR
R/O B-39, ROHIT APARTMENT LOKHANDWALA
COMPLEX, ANDHERI (W) MUMBAI 400053 ...RESPONDENTS
BEFORE:
HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.), PRESIDING
MEMBER
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
For Dr.Satish K.Arolkar: Dr.S.K.Khattri & Mr.S.K.Sarathi, Advocates.
For Lifecell International: Mr.Sidharth Mahajan & Mr.Sumit Roy.
Advocates.
For Sushil Mukesh Gaglani: Mr. Arjun D.Singh, Advocate.
For Dr.Madhuri Agarwal: Mr.Pankaj Bhagat & Mr.Ritwik Prasad,
Advocates.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 5 of 38
JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
ORDER
1. Three separate Revision Petitions have been preferred on behalf of the complainant (Sushil Mukesh Gaglani) bearing No.681, 682 and 683 of 2022, before this Commission assailing Order dated 17.03.2020 passed by the learned State Commission, Maharashtra whereby three separate Appeals preferred on behalf of the opposite parties No.1 to 4 {(i.e. Appeal No.A/19/203 preferred by Dr. Madhuri Aggarwal (OP-3 in the complaint; Appeal No. A/19/205 preferred by Life Cell International Pvt. Ltd. and Chetan Purushottam (OP-1 and 2 in the complaint) and Appeal No. A/19/438 preferred by Dr. Satish Kishoranadn Arolkar (OP-4 in the complaint)} were partly allowed.
2. The aforesaid Order dated 17.03.2020 passed by the learned State Commission has also been separately challenged by OPs 1 to 4 by way of three separate Revision Petitions {i.e RP No.182 of 2021 preferred by Lifecell International Pvt. Ltd. and Mr. Chetan Purushottam/OP-1 & 2; Revision Petition No.1183 of 2020 preferred by Dr. Madhuri Agarwal/OP-3 and Revision Petition No.1038 of 2020 preferred by Dr. Satish Kishoranadn Arolkar/OP-4}. RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 6 of 38
The Revisionists and respondents hereinafter are referred to as „complainants and opposite parties‟ as appearing in the complaint filed before the learned District Forum, for sake of convenience.
3. Learned District Forum, Mumbai vide Order dated 04.12.2018 held that OP No.1 to 4 indulged into unfair trade practice in connivance with each other and further awarded compensation as under :-
"Order:-
1) Complainant No.292 of 2015 partly allowed.
2) Opposite Party no. 1 and 4 have been made default to give proper and good service to the complainant, similarly, hence, it is declared that they have used improper and unjust professional unfavourable procedure practice and process.
3) Therefore, Opposite Party no.1 to 4 shall be jointly or individually shall paid a sum of Rs.59,525/- (Rupees Fifty nine thousand five hundred twenty five only) which was paid to Opposite Parties by him, till the 31/10/2019 failing which interest amount shall be made applicable to this amount as per rates of 15% p.a. w.e.f. 01/02/2019.
4) Opposite Party No.1 to 4 shall be paid individually or jointly a sum of Rs.10,00,000/- (Rupees Ten lakh only) to the complainant towards mentally torture and physically harassment till the date 31/10/2019.
And to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards cost and charges of this complaint till 31/01/2019. Failing which, interest amount at the rate of 10% p.a. shall be made applicable to these all amounts till the realization of final payment. ........................"
4. Learned Maharashtra State Consumer Disputes Redressal Commission affirmed the findings of the learned District Forum in CC No.292/2015 but reduced the compensation as under :- RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 7 of 38
"ORDER
a) Consumer complaint no.CC/12/292 is partly allowed on the ground that opponent nos.1 to 4 indulged into unfair medical trade practice as also were responsible in connivance with each other for deficiency in service.
b) Opponent nos.1 to 4 jointly and severally are liable to refund sum of Rs.59,525/- together with sum of Rs.6,00,000/- (Rupees six lakhs only). The said amount is payable with interest @ 10% p.a. from the date of filing of complaint i.e.21/10/2015 untill realization together with costs of litigation in the sum of Rs.10,000/- for the complaint proceedings.
c) Sum of Rs.10,000/- is granted in addition for appeal proceedings to be payable by opponents to complainant.
d) If this entire amount is not paid within three months, all outstanding dues shall carry interest @ 12% p.a. from the date of the complaint till realization."
Factual Narration in Brief
5. In brief, complainant Sushil Mukesh Gaglani, who is professionally an Advocate settled in Mumbai undertook PRP treatment for stimulating hair regrowth from Dr. Madhuri Agarwal (OP-3)/Dermatologist and Dr. Satish Kishoranadn Arolkar (OP-4)/Plastic Surgeon on reference through Shri Chetan Purushottam (OP-2) who was working as Marketing Executive with Lifecell International Pvt. Ltd. (OP-1).
6. As per the complainant, during the pregnancy of his wife, he came to know about the preservation of umbilical cord by Lifecell International RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 8 of 38 Private Ltd. (OP-1). During the aforesaid process, complainant came to know about other therapies and surgeries undertaken by OP-1. Further, complainant came in touch with OP-2, an Executive working with OP-1, who explained him about the procedure of injecting PRP (Platelet Rich Plasma) for stimulating hair re-growth. The process was also explained to the complainant telephonically after the complainant took his family doctor (Dr. Vinod Birajdar) in conference.
7. It is further the case of the complainant that in the month of January, 2013, complainant visited the service centre/branch office of OP-1 along with his cousin wherein entire procedure of PRP was again explained in detail by OP-2 and he assured that there would be 100% positive result. Also, brochure issued by OP-1 was handed for information. OP-2 also informed that the entire surgery/procedure would require three sessions wherein 30 ml blood would be extracted from the body of the complainant and processed for injecting the stem cells in the scalp and the process would be carried in a clinic/hospital managed by professional doctors. The cost of the respective sittings was further conveyed at Rs.20,000/- each, whereby total consideration amounted to Rs.60,000/-. Complainant was also asked to visit the website of OP-1 "www.lifecellclinic.com" which explained all the necessary details.
8. Relying upon the aforesaid assurances, complainant undertook the first session of PRP procedure on 08.07.2013 conducted by Dr. Madhuri RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 9 of 38 Agarwal (OP-3) at her clinic in West Mumbai which is stated to have been carried in presence of OP-2. As per the complainant, the process was not carried competently since only 14 ml of blood could be taken out from his body instead of requisite 30 ml, as was initially informed to him by OP-2. An ointment was also applied on his scalp during the process for carrying the procedure. The process for injecting PRP is claimed by the complainant to be painful as the same was accompanied with some bleeding. After the first session, since the complainant did not find any positive result of re-growth of hair, he discussed the issue with OP-2. However, as per the complainant, OP-2 informed him that the same was on account of extraction of only 14 ml of blood instead of 30 ml for purpose of injecting the platelets.
9. Thereafter, on 29.07.2013, complainant undertook the second session through Dr. Satish Kishoranadn Arolkar (OP-4) at Mahavir Hospital, Khar West, Mumbai, after having a telephonic conversation with OP-2 on 28.07.2013. As per the complainant, during the second session, no ointment was applied as was done during the first session. Further, OP-2 actively participated in the procedure which was equally painful. The grievance of the complainant is that even after the second session, he did not notice any positive result on the bald area of the scalp, as assured.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 10 of 38
10. Thereafter, complainant undertook the third and final session for injecting PRP on 27.08.2013 through Dr. Satish Kishoranadn Arolkar (OP-4) at Mahavir Hospital, wherein OP-2 is alleged to have again participated. During the aforesaid session, complainant claims to have been accompanied by his friend Sh. Chirag Shah, Advocate and Ajit Puri. Further, Ajit Puri is also stated to have undertaken the treatment in the second and third session from OP-4.
11. Aggrieved of the fact that there had been no hair re-growth despite undertaking PRP treatment, complainant preferred the complaint against the OPs alleging that he had been misled as to the so-called benefits of PRP which caused tremendous pain without prescription of any follow-up medicine. Complainant further relied upon telephonic conversation with OP-2 in support of the allegations. A complaint was also lodged by the complainant on 16.05.2014 with PS : Kandiwali under Section 406/420/120B read with Section 24 IPC, 1860.
Complainant further averred that no licence had been granted to OP-1 to conduct PRP stem cell surgery/procedure as per information received through RTI and the licence had been granted only for preservation of umbilical cord. He further claimed "PRP" is a "drug" as per schedule „F‟ of Drugs and Cosmetics Act and Rules. Complainant accordingly claimed amount of Rs.19,59,525/- with interest @ 18% p.a. and compensation.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 11 of 38 Defence on behalf of OP-1 & 2 (Lifecell International Pvt. Ltd. and Mr. Chetan Purshottam)
12. OP-1 and OP-2 in written version submitted that complainant was an existing client of OP-1 and had contacted OP-2 who is the Deputy General Manager, Cellular Therapy Division of OP-1 for enquiring about PRP procedure. Complainant was thereupon informed about the details of PRP procedure for hair growth and explained that the process does not guarantee the same effect in all persons, in the same manner and no assurance of hair re-growth was ever made at any point of time. It was clarified that role of OP-1 is only limited to supply of kits to the registered medical practitioners/doctors based on their request and the name of the doctor who practice in this field had been referred. OP-2 further communicated that in case the complainant is satisfied on his own free will and consent, he can be introduced to the concerned practitioner who conducts the PRP procedure. Complainant was also explained that PRP is concentrated form of autologous platelets and not related to stem therapy. It is further the case of OP-1 & 2 that after the complainant expressed his consent, OP-2 conveyed the cost details to him and also referred name of OP-3 for conducting the PRP procedure. Thereafter, since the complainant expressed dissatisfaction regarding the conduct of procedure in the first session by Dr., Madhuri Aggarwal (OP-3), he was suggested name of Dr. Satish Kishoranadn Arolkar (OP-4) who is a reputed Plastic Surgeon, for conduct of second session. Further, on RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 12 of 38 being conveyed by the complainant that he was satisfied with the second session conducted on 29.07.2013, the third session for PRP was conducted by OP-4 on 26.08.2013. However, after the third session of PRP procedure complainant informed OP-2 that the procedure was not showing any results which was explained to him by OP-2 and the matter was also discussed with OP-4 who advised that complainant should undertake another session so that they could advice for future course of action. Complainant decided to refrain from the fourth session and continued with his complaints followed by filing of complaint.
13. It was further pointed out that though the last session had been taken by the complainant on 27.08.2013, the complaint had been filed on 19.08.2015 after a period of more than two years claiming undue and unfair compensation on the ground that the procedure did not yield any positive result. The complaint is further stated to have been filed by suppressing complete conversation between the parties and only selective telephonic transcripts were relied. Misrepresentation attributed on behalf of OP-2 was denied and the factual information regarding PRP procedure is stated to have been bona fidely given.
14. OP-1 & 2 further clarified that OP-1 is not a Pharmaceutical Company, manufacturing or distributing pharmaceutical or cosmetic products and in the afore-said context learned Assistant State Commissioner, Food & Drug Authority had specified that the medicines RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 13 of 38 and the cosmetic products of OP-1, which it does not manufacture at all are not approved under the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder. Further the services for the PRP procedure have never been provided by OP-2 and as such no statutory approval in his regard is required under the Drugs and Cosmetics Act, 1940. The reply to RTI application is stated to have been relied by complainant in context of misleading questions.
Defence on behalf of Dr. Madhuri Aggarwal (OP-3)
15. Dr. Madhuri Agarwal (OP-3) claimed that she is a leading Dermatologist from Sion Hospital, Mumbai and held an advance diploma in Dermatology and Venereology from the College of Physicians & Surgeons, Mumbai. Further she had worked as Medical Head for Kaya Skin Clinic West and had ably led 35 clinics. A consent letter dated 08.07.2013 is stated to have been given by the complainant without any misrepresentation and further no warranty had been given regarding the results of the treatment. She further stated that there had been no error of judgement or any negligence in performing the PRP procedure. Defence on behalf of Dr. Satish Kishoranadn Arolkar (OP-4)
16. Dr. Satish Kishoranadn Arolkar (OP-4) confirmed that he was contacted on behalf of OP-1 and 2 for carrying the second session of „PRP‟ by the complainant after undergoing the first session through Dr. RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 14 of 38 Madhuri Aggarwal (OP-3). The complainant is stated to have been informed that there could be no guarantee of positive results in all cases undertaken even if an identical procedure is followed, but nevertheless the complainant agreed to undertake the procedure for injecting PRP on his own free will. The second and third sessions are stated to have been carried as per protocol. Further, since complainant informed OP-2 that there were no positive results, he was advised to come up for a follow- up session but he did not turn up. The complaint is stated to have been maliciously filed by the complainant. OP-4 further reiterated that the provisions of Drugs and Cosmetics Act, 1940 are inapplicable to carrying of „PRP procedure‟ and no guarantee could be given, since human body does not predictably respond to an identical procedure. He further urged that the voluntariness of the complainant in undertaking the procedure is implicit as he could have discontinued the treatment after the first or the second sessions.
Findings of the learned District Forum
17. Learned District Forum took into consideration the information booklet issued by OP-1 and observed that OP-1 and OP-2 had not complied with the information and suggestions as intimated in the booklet that doctor would determine if PRP therapy is right for the patient but accepted the consideration for the purpose of treatment. Also while affixing the liability of OP-3 and OP-4, it was observed that they did not RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 15 of 38 do any check-ups or body tests of the complainant prior to giving the treatment or collected fresh information from the patient. The procedure is stated to have been carried on advice of OP-1 and OP-2 though consent is stated to have been obtained by OP-3 prior to carrying of the procedure. Further infirmities were observed in the consent form. A finding was also given that OP-1 did not possess any licence in respect of stem cells / PRP and there is no proof on record that OP-3 and 4 could give the treatment. It was further observed that OP-1 to 4 had not submitted any documentary evidence on record that they had licence or permit for undertaking PRP treatment. The complaint was accordingly allowed holding OP-1 to 4, jointly or individually, liable to pay sum of Rs.59,525/- along with compensation of Rs.10,00,000/- for mental torture and harassment.
Findings in Appeal by learned State Commission
18. In separate appeals preferred on behalf of OPs, Order passed the learned District Forum was modified by learned State Commission as already noticed above, holding OP-1 and 4 jointly and severally liable.
19. The brief reasons recorded in para 6, 7 & 8 of the impugned Order passed by the learned State Commission may be reproduced for reference:-
"6. It is submitted on behalf of complainant that Hair transplant surgery to grow hair on bald head is really not a viable option to have RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 16 of 38 hair growth. Hair plant surgery has to be performed by a qualified experienced surgeons and licensed professionals. In any surgical intervention bleeding, infection may occur associated with swelling of scalp, itching, nerve damage, formation of crust in area wherefrom hairs are removed or implanted.
7. The facts revealed that Mr. Sushil Gaglani an Advocate by profession in Mumbai had approached Shri Chetan Purshottam of Life Cell International Pvt. Ltd. at Mumbai for preservation of umbilical cord during pregnancy of his wife. The complainant believed that the Company is premium Company to preserve stem cells. OP no.2 had misrepresented that he is Marketing Executive for cellular therapy of Platelet Reach Plasma (PRP). He had assured the complainant of regrowth of hairs on scalp by PRP stem cells Surgery and also led the complainant to believe that regrowth of hairs is possible by the surgical procedure and also misrepresented that the opposite party nos.3 & 4 are competent and experienced doctors having carried surgery over thirty thousand patients, representing further that the process has approval of DCGI India, FDA & C Mark Euro. What was required before the treatment of the complainant apart from the qualifications of doctors treating the patient was that they must have been armed with declaration from the Government that they were practicing in specialized modern scientific medical treatment of surgical intervention of the scalp so as to grow hairs thereon in bald areas as per prevalent rules framed under the Drugs and Cosmetics Act. M/s Life Cell International Pvt. Ltd. also had no such license from the Government to engage doctors like OP no. 2 and 3 for carrying out modern scientific treatment for implanting hair growth on bald head. The process carried out was clearly an unfair medical trade practice on the part of opposite parties without any specialized experience and license were motivated only by knocking financial gains from the complainant to the tune of Rs.60,000/- approximately. The complainant suffered monetarily, physically and mentally too.RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 17 of 38
8. We have heard submissions in detail advanced on behalf of appellants opponents as well as respondent/original complainant, regarding the quantum of compensation. In our view, it has to be just and reasonable amount, which may be justified in the facts and circumstances though complainant was apparently deceived and misled to undergo the medical treatment of hair implantation on his scalp by surgical methods and in the result, suffered physically as well as mentally as no success was achieved by the treatment which he underwent. With due sympathies for the complainant, we do feel that the amount of compensation awarded to the tune of Rs.10 lakhs may amount to undue enrichment for the complainant when he had spent sum of Rs.59,525/- only for to undergo the entire process. Under these circumstances in our opinion, maximum compensation which could have been granted for mental and physical pains and sufferings which complainant underwent, in our view, not exceeding 10 times of the amount incurred as expenses i.e. sum of Rs.6,00,000/- (Rupees six lakhs only) would be just, reasonable and exemplary compensation, which would also have deterrent effect upon the likeminded professionals acting without requisite licenses who ventured into process of modern scientific treatment, such as, hair implantation on the scalp by use of surgical method without any requisite license or authority to conduct such procedure. We have found that none of the opponents had authority or licence according to law to conduct the assured procedure of hair implantation by surgical method. That being so, compensation which must be exemplary ought to be granted. In our considered opinion, therefore, sum of Rs.6,00,000/- along with refund of the amount spent by the complainant Rs.59,525/- together with interest @ 10% p.a. from the date of complaint until realization would be just and reasonable compensation with adequate deterrence and example set for like minded professionals operating unlawfully without requisite licenses."RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 18 of 38
Contentions raised on behalf of Opposite Parties
20. The Order passed by the learned State Commission has been vehemently assailed by learned counsels for OPs. It is pointed out that the impugned Order passed by the State Commission is bereft of any detailed reasoning and has simply endorsed the Order passed by the learned District Forum without taking into consideration the factual and legal aspects brought on record. It is pointed out that there appears to be lack of understanding regarding the conduct of „PRP‟ procedure for the purpose of hair re-growth which has been treated to be a stem cell therapy. It is emphasized by the learned counsels that injecting „PRP‟ does not require any further approvals and is not a drug under the Drugs and Cosmetics Act, 1940 as assumed by the learned District Forum. Learned counsel further emphasized that merely because the positive results of hair re-growth could not be achieved, an adverse inference could not be drawn against OP-3 and OP-4 since there is no negligence attributed in performance of the procedure or in rendering any treatment. The procedure is stated to have been undertaken by the Complainant after duly filling of consent form obtained by OP-3. It is pointed out that the complainant is a professional advocate and as such there could not be any possibility of misleading him as he had also seen the booklet and gone through the website of OP-1.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 19 of 38
21. Learned counsel for OP-1 and OP-2 further submits that OP-1 had been merely providing the PRP kits for the purpose and is in no manner concerned with the actual carrying of PRP procedure which had been conducted by OP-3 and OP-4 who are competent to carry the same. The names of OP-3 and OP-4 are stated to have been referred for the purpose of hair growth on the request of complainant who had undertaken the procedure after being duly convinced. It is emphasized that at no point of time any assurance was extended on behalf of OP-1 and 2 regarding the guarantee of results of hair re-growth as the same depends upon bodily response from person to person. As such the same treatment rendered to several persons may not give the same result of hair re-growth, as expected. Any active role in the performance of procedure by OP-1 and OP-2 is denied though the presence of OP-2 has been admitted during the relevant time.
Learned counsels for OPs further contended that PRP procedure does not come under the purview of Drugs and Cosmetics Act, 1940 and is not regulated under the Schedule F. Reference to Rule 122G(i) framed under the Drugs and Cosmetics Act, 1940 by the learned State Commission is stated to be erroneous as no licence is required for the purpose of undertaking „PRP‟ procedure for hair re-growth. It is further emphasized that complainant failed to substantiate the allegations of misrepresentation by OP-2. It is pointed out that the complainant could RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 20 of 38 have discontinued the treatment after the first or second session, if he was dissatisfied with the treatment in any manner. However, the complaint was preferred by the complainant after more than two years of completion of the third session merely because the results expected by the complainant were not forthcoming. Reliance is further placed by the learned counsels for OPs on the Jacob Mathew v. State of Punjab & Anr., 2005 (3) CPR 70 (SC); City Union Bank Ltd. v. V.R. Chandramohan, 2023 SCC Online SC 341; Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr., (2000) 1 SCC 66; S.K. Jhunjhunwala v. Dhanwati Kaur & Ors., 2018/INSC/915; Central Board of Trustees v. Indore Composite Pvt. Ltd., (MANU/SC/0778/2018); B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 13 SCC 530; Colgate Palmolive (India) Ltd. v. M.R.T.P. Commission and Ors., MANU/SC/1024/2002; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors, (1976) 2 SCC 17; Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors., (1996) 2 SCC 634; M/s Spring Meadows Hospital & Anr. v. Harjol Ahluwalia (Through K.S. Ahluwalia & Ors., (1998) 4 SCC 39; Groenwald v. Groenwald, 1988 (2) SA 1106 SCA; MEC Health, Eastern Cape v. Mikhitha, (1221/15) (2016) ZA SCA; Hunter v. Hanley, (1955) SLT 213; Kiran Bala Rout v. Christian Medical College and Hospital & Ors., 2003 (1) CPR 238 (NC); RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 21 of 38 Seturaman Subramanian v. Triveni Nursing Home & Anr., 1998 CTJ (CP) (NCDRC); Kusum Sharma & Ors. v. Batra Hospital & Medical Research & Ors., (2010) 3 SCC 480; Hector v. Cedars Sinai Medical Centre (Court of Appeals of California, 1986); DCM Data Products v. Hanuman Prasad Poddar Canter Hospital, 1986-1995 CONSUMER 290 NS and Herric v. Middlesex Hospital Superior Court (Judicial District of Middlesex, 2005).
Contentions raised on behalf of the Complainant
22. On the other hand, complainant seeks restoration of compensation as awarded by learned District Forum vide Order dated 04.12.2018 in Consumer Complaint No. 292 of 2015 and prays for setting aside the Order dated 17.03.2020 passed by the learned State Commission whereby the compensation stands reduced. Learned counsel submits that Orders passed by both the Fora rightly concluded joint and several liability since complainant was lured to undertake the treatment which failed to elicit any favourable response. Further, the treatment is stated to have been extended by OP-3 and 4 without being competent to conduct the said procedure. Reference is also made to the reply received by the complainant in response to queries raised under RTI. RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 22 of 38 Analysis and Reasoning
23. We have given considered thought to the contentions raised and perused the record carefully.
Bolam v. Friern Hospital Management Committee (Queen's Bench Division), English Law (1957) 1 WLR 582, as approved by the Hon‟ble Apex Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, authoritatively settles the proposition that a doctor is not negligent, if he is acting in accordance with acceptable norms of practice unless there is evidence of medical body of skilled persons in the concerned specialty opining that the accepted principles/procedures were not followed. Accordingly, medical professional can be held liable for negligence only, if he fails to exercise reasonable skill which he possesses in giving the treatment or in case he does not possess the requisite qualification or skill.
24. Following Jacob Mathew v. State of Punjab (supra), Hon‟ble Apex Court in Kusum Sharma v. Batra Hospital, (2010) 3 SCC 480 laid down the principles to be considered while determining the charge of medical negligence, which stand reiterated in M.A. Biviji v. Sunita, (2024) 2 SCC 242 as under:-
"89. ... (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, RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 23 of 38 would do, or doing something which a prudent and reasonable man would not do.
*** (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 another 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.
*** (IX) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension."RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 24 of 38
25. Thus, it is well settled that negligence is a breach of a duty caused by omission to do something, which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do. A simple lack of care, an error of judgment, or an accident is not proof of negligence on the part of medical professional. Conclusions drawn Hon‟ble Apex Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 in para 48 of the judgment may be beneficially reproduced :-
"48. We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused 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.
The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: "duty", "breach" and "resulting damage". (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 25 of 38 on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 26 of 38 (4) The test for determining medical negligence as laid down in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in para 19, p. 19 herein.]] holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) The word "gross" has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be "gross". The expression "rash or negligent act" as occurring in Section 304-A IPC has to be read as qualified by the word "grossly".
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence." RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 27 of 38
26. The issue for consideration is whether there has been unfair medical trade practice or deficiency in service on the part of OPs in treating the complainant.
27. Admittedly, the complainant had approached OP-1 in connection with preserving the Umbilical Cord of his wife and daughter and during the aforesaid visits had enquired about the PRP procedure to be undertaken for the purpose of hair growth. Further, he came in touch with OP-2 who was working as an Executive with OP-1. OP-2 apprised complainant of the PRP procedure along with information contained in a printed booklet in this regard circulated by OP-1. Also, information placed on website by OP-1 was brought to notice of complainant. The specific stand taken by OP-1 and 2 is that they merely supply PRP kits in the course of their business to qualified Dermatologists, Plastic Surgeons and Hospitals, which does not require any approvals under the Drugs and Cosmetics Act, 1940. Further, OP-1 duly possessed licence for the purpose of supply/sale of PRP kits.
28. Dr. Madhuri Agarwal (OP-3) and Dr. Satish Kishoranadn Arolkar (OP-4) have taken a stand that they are professionally qualified to undertake the PRP procedure for hair re-growth which is an established treatment and is globally recognised. It is further the case of OPs that PRP procedure for hair re-growth does not require any further approvals from the government and neither any licence in specific is required for RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 28 of 38 the said purpose. Any deficiency or negligence in rendering the treatment has been denied. It is emphasized that no expert evidence has been led on behalf of complainant to prove any negligence in administering treatment.
29. In order to appreciate the contentions raised on behalf of the parties, at the outset, it may be noticed that „PRP therapy‟ is employed for the purpose of hair re-growth and is distinct from Stem Cell Therapy in strict sense, which has been interchangeably and purposely used by the complainant. PRP (Platelet Rich Plasma) therapy for purpose of hair re-growth involves injecting of patient‟s own concentrated blood plasma into the scalp to accelerate healing for the purpose of graft survival and stimulates the dormant follicles. The same is usually carried in 3 to 5 sessions spread over 4-6 weeks. In order to create „Platelet Rich Plasma‟, the blood sample from the patient is placed in a centrifuge device that rapidly spins the sample, separating out the other components of blood from the plasma and concentrates them within the plasma. The blood is processed from the patient‟s body and is not stored or sold, as in the case of blood donations in camps or hospitals. The Platelet Rich Plasma from the patient‟s blood sample is thereafter injected into the target area on scalp for stimulating the hair re-growth process. The said procedure is globally accepted for treating the male pattern baldness, both in preventing the hair loss and promoting the new RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 29 of 38 hair growth. The quantity of blood which is drawn for the aforesaid purpose by the clinician, depends upon the system used and is normally protocol specific to the system. It is also well established that all patients do not uniformly benefit from the hair growth factor treatments like PRP and some patients may experience no benefit. However, the same does not reflect on the competency of the medical practitioner in undertaking the PRP procedure or the efficacy of treatment. It is also well established that there is less risk of infection during procedure and local and temporary pain is not ruled out. At times, requisite medication/ointment may be applied prior to injecting the plasma on the scalp for reducing the pain or numbing the area. No adverse inference can be drawn in the conduct of the procedure as alleged by the complainant merely because an ointment was applied by Dr. Madhuri Agarwal (OP-3), while the application of ointment was not followed by Dr. Satish Kishoranadn Arolkar (OP-4).
30. The distinction between „Platelet Rich Plasma (PRP)‟ and „Stem Cell Therapy‟ in the context of hair re-growth is also pertinent to be noticed though both are regenerative processes using the patient‟s own tissues to promote healing. Primarily, PRP uses concentrated blood plasma to accelerate the repair, whereas the Stem Cell Therapy employs stem cell harvested from fat or bone marrow to create new tissues. PRP merely releases the growth factors to speed up healing RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 30 of 38 and activates the body‟s existing repair mechanism. On the other hand, Stem Cell Therapy is generally reserved for severe degenerated conditions for replacing damaged tissue. The difference between the two treatments needs to be kept in perspective since the impugned Order and the complaint uses the term „PRP‟ and „Stem Cell Surgery‟, for the same process interchangeably, without appreciating the substantial difference between the two therapies. The aforesaid difference is also important from the perspective of approvals required to be obtained from FDA, DCGI and compliance under the Drugs and Cosmetics Act, 1940 with Rules framed thereunder.
The replies which have been relied on behalf of the complainant on the basis of RTI application do not bring out the distinction between both the therapies and the queries pertain to Stem Cell Therapy/PRP without specifying the PRP procedure for hair re-growth which has led to a generalised answer which may be relevant in specific to the Stem Cell Therapy.
Also, the reference and reliance to licencing for obtaining blood sample for extraction of PRP from the patient, appears to be misplaced. The process of extraction of about 30 ml of blood from the patient which is to be used immediately for the purpose of injecting PRP without storage, cannot be equated with the storage of blood in the blood banks RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 31 of 38 or the storage for purpose of manufacture or extraction of components of blood for sale.
Requirement of separately obtaining fitness certificate prior to drawing of sample of blood for the purpose of PRP from the body of the complainant has also been wrongly appreciated by the learned State Commission. The medical certificate is relevant in relation to donors wherein the blood is donated to a third person or for purpose of storage in blood banks, in case of voluntary donation. In the context of PRP, normally an assessment regarding the health condition of the patient is made based upon medical history disclosed by the patient, followed by the consent form signed by him. There is nothing on record to suggest if the complainant was suffering from any disability/ailment to undertake PRP therapy or had objected for taking of the blood for the purpose of administering the treatment. Further, neither any negligence in the aforesaid process has been proved on record.
31. PRP procedure in the present case was carried by qualified medical practitioners with MD degree in the respective fields of Dermatology and Plastic Surgery. Observations made by learned State Commission that the doctors practicing in treatment of surgical intervention through scalp should have been armed with declaration from the government under the Drugs and Cosmetics Act, is without any legal foundation. Dermatologists as well as Plastic Surgeons RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 32 of 38 undertaking the „PRP‟ procedure are fully competent and qualified to administer the treatment, subject to protocols, if any notified by the Ministry of Health and Family Welfare. There is absolutely no evidence on record from the competent bodies to infer that OP-3 & 4 could not undertake the PRP treatment for hair growth which is an established practice and is also a part of curriculum prescribed for the respective specializations. The allegation levelled by complainant that OP-3 and 4 had misrepresented for undertaking the treatment or given any assurance to the complainant regarding re-growth of hair after PRP treatment is not supported by any cogent evidence. In fact, the complainant himself had approached OP-3 for the purpose of first sitting and, thereafter, having felt uncomfortable after the first sitting of treatment, opted to take second and third sittings in a hospital by Dr. Satish Kishoranadn Arolkar (OP-4). There could not have been any occasion for Dr. Satish Kishoranadn Arolkar (OP-4) to give any such assurance as the complainant had already obtained one sitting through Dr. Madhuri Agarwal (OP-3) after duly signing the consent form. In the facts and circumstances, the findings of the learned District Forum as well as of the learned State Commission holding unfair medical trade practice on the part of OP-3 & 4 is perverse, ignoring the factual position and evidence on record.
RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 33 of 38
32. It has been bought on record in evidence by OP-1 and 2, that OP- 1 is into selling of PRP kits and is not associated in conduct of PRP treatment. Further, OP-1 duly possesses registration certificate No.MD665 issued by Central Drug Standard Control Organization, Ministry of Health and Family Welfare, Government of India for their products and services for the relevant period. It is also the specific stand of OP-1 that they are not registered with Food and Drug Administration, Maharashtra or DCGI as they are not supposed to get registered with any statutory body for selling the PRP kits. As such, the RTI Application with FDA asking whether the company is registered with them, would entail a negative response. It has been clarified by OP-1 that Central Drug Standard Control Organization is under the DCGI (Drug Comptroller General of India) and OP-1 company is duly registered with the Central Drug Standard Control Organization. As such, there does not appear to be any violation of law by OP-1 by undertaking sale/supply of PRP kits during the relevant period.
33. The complainant in the present case happens to be a professional Advocate and the complaint has been filed almost after two years of undertaking the treatment. Complaint was not preferred by the complainant immediately after taking the first, second or third session against OP-3 and 4. Also, no expert evidence has been led on record by the complainant to prove any negligence in rendering the PRP RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 34 of 38 treatment by OP-3 and 4. The same is largely based on his perception regarding the treatment not being properly administered since the results for hair re-growth were not forthcoming. It needs to be kept in perspective that complainant is an educated professional Advocate who had the opportunity of visiting the website of OP-1 as well as had the benefit of looking into the brochure issued by OP-1 in this regard. The information in the brochure as well as the material on the website are sufficient to enable any person to take an appropriate decision to undertake the PRP treatment, which is a well-known procedure for stimulating hair re-growth. Further, the complainant had duly signed the consent form for undertaking the procedure and the same must have been signed after understanding the nuances. There is no cogent evidence to assume that complainant had been misled by OP-3 and 4 in any manner. The allegations cannot be deemed to be proved by the complainant merely by making bald averments. An adverse inference cannot be drawn merely on the basis of the alleged chat exchanged between the complainant and OP-2, which is stated by OP-2 to have been selectively relied.
34. The onus to prove medical negligence is largely placed on the complainant, which can be discharged by leading cogent and probable evidence. A mere averment in a complaint which is denied by the other side, by no stretch of imagination, be said to be evidence by which the RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 35 of 38 case of the complainant can be said to be proved. Reference may be made to observations of the Hon‟ble Apex Court in C.P. Sreekumar v. S. Ramanujam (supra) in para 37 as under:-
"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."
35. Learned District Forum as well as learned State Commission apparently missed the caution emphasized by Hon‟ble Apex Court in M.A. Biviji v. Sunita & Ors. (supra) whereby it was observed that to hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible prosecution or harassment that they may be subjected to, in high-risk medical situations. Therefore, to safeguard medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 36 of 38 complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice.
36. Further, in Malay Kumar Ganguly v. Sukumar Mukherjee, (2009) 9 SCC 221 Hon‟ble Apex Court observed that charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
37. In the totality of facts and circumstances, we are of the firm view that negligence and deficiency in administering the treatment on the part of OP-3 and 4 has not been proved on record. The findings of the learned District Forum as well as learned State Commission suffer from material irregularity and would lead to miscarriage of justice, if the impugned Order is not set aside. There is no foundation to hold that OP-3 and OP-4 adopted any unfair medical trade practice or had been negligent in rendering the treatment to the complainant. Also, OP-1 and RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 37 of 38 2 appear to have been roped on account of referring the complainant to OP-3 and 4 for treatment.
For the aforesaid reasons, the Orders passed by the learned State Commission as well as learned District Forum are set aside. Revision Petition No.1038/2020; 1183/2020 and 182/2021 preferred on behalf of OPs are accordingly allowed. Revision Petition Nos.681/2022; 682/2022 and 683/2022 preferred on behalf of the complainant stand dismissed. Pending applications, if any, stand disposed of. No order as to costs.
A copy of this Order be provided to the concerned parties by the Registry.
................................................ (AVM J. RAJENDRA, AVSM VSM (RETD.) PRESIDING MEMBER ...........................................
(ANOOP KUMAR MENDIRATTA, J) MEMBER ar/sd/B-4/reserved matter RP/1038/2020, 1183/2020, 182/2021, 681/2022, 682/2022, 683/2022 Page 38 of 38