HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT - This appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) arising out of the order No. 17 dated 14.12.2017 passed by the Learned District Consumer Disputes Redressal Forum, Kolkata – I (North) ( in short, ‘the District Forum’) in connection with Consumer Case No. CC/420/2015. By the order impugned, the District Forum has allowed the Consumer Complaint on contest.
- Briefly stated the facts of the case as mentioned in the Consumer Complaint are that the complainant is a married lady and she got married in the year 2011. Even after her marriage life for 2 years and 6 months, she was not able to conceive. Being allured with the advertisement appeared in the newspaper, the complainant contacted the opposite party No. 1 Doctor. The opposite party No. 1 Doctor advised the complainant for “IVF Package Treatment” for successful recovery of her gynecological problem. For such treatment, the complainant visited the clinic for seven times and incurred an expenses of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only and the complainant further had to bear the expenses of Rs.1,50,000/- ( Rupees one lakh and fifty thousand) only for tests, medicines etc. prescribed by the opposite party No. 1 Doctor. The opposite party No. 1 Doctor received an amount of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only without any just cause and harassed the complainant, for which the complainant sustained pain and injury taking advantage of emotion of the complainant to have a child. Since, the complainant did not get any relief for which the complainant was compelled to file the present case praying for direction upon the opposite parties for compensation of Rs.15,00,000/- (Rupees fifteen lakh) only and refund of amount of Rs.1,50,000/- ( Rupees one lakh and fifty thousand) only respectively for payment made to the opposite party No. 1 as well as the medical expenses borne by her as per the advice of the opposite party No. 1 Doctor.
- The opposite party No. 1 Doctor, the opposite party No. 2 Nursing Home and the opposite party No. 3 entered appearance in this case and contested the case by filing written version denying and disputing the case of the complainant.
- The specific case of the opposite parties No. 1 & 2 are that the opposite party No. 1 Doctor is a senior consultant and attached to various reputed clinics and she has the specialization in the OBGYN. In order to substantiate the allegation of the complainant the dispute can be resolved by producing evidence of experts and elaborate examination of the witnesses which is not at all possible in this Forum. The complainant filed this case as a chance litigation knowing fully well that the success rate of such treatment is around 15-20% of all patients who are treated. The opposite parties did not give any guarantee to the complainant for having a child for undergoing such treatment. The complainant visited the opposite party No. 2 Nursing Home for consultation on 29.11.2014 and after receiving due information regarding the whole procedure, she registered herself on 01.04.2015 and gave consent to the IVF treatment which might help her to bear a child. The IVF procedure is completely medical and scientific and did not give any assurance that such procedure will result into pregnancy. The opposite party No. 1 Doctor as per medical treatment adopted the necessary steps and even after undergoing such steps if the complainant would not have conceived for which the opposite party No. 1 Doctor cannot be held responsible. As such, the opposite parties No.1 & 2 have prayed for dismissal of the case.
- The case of the opposite party No. 3 is that the complainant only once visited the said clinic and no further follow-up action was taken by the complainant for which the opposite party No. 3 should not be made a party and the opposite party No. 3 failed to give opinion on the basis of the treatment rendered by the opposite party No. 1. Accordingly, the opposite party No. 3 has prayed for dismissal of the case.
- The District Forum on an appreciation of the materials on record, has allowed the consumer complaint vide order No. 17 dated 14.12.2017 in the above manner.
- Aggrieved by the said order the opposite parties No. 1 & 2 have filed this appeal.
- We have heard the Learned Advocates appearing for the parties and have also gone through the entire records of the District Forum and perused the materials placed on record.
- Learned Counsel for the appellants have submitted before this Commission that the impugned judgment is not in accordance with law. He has further urged that the Learned Forum below erred in law and in fact that in holding the appellants liable to pay compensation when there is no specific proof of negligence on the part of the appellants and no expert Doctor has stated that there was negligence on the part of the appellants at the time of the treatment. He has further urged that the Learned District Forum below ought to have taken the opinion of experts in the field of medicine. Only after taking opinion of experts the Learned Forum ought to have come to the conclusion as to whether there was negligence in the treatment provided by the appellants.
- He has further urged that the Learned District Forum has failed to appreciate that the treatment given by the appellants was a routine. No deviation of protocol has been alleged by the complainant at any point of time. In fact, no allegation of deficiency had been made by the complainant against the appellants. Learned Forum below failed to appreciate that which provided by the opposite party No. 1 Doctor is a standard treatment protocol for a patient with an AMH with a score of 0.01. Learned District Forum failed to appreciate that the appellants had acted on all time as per well accepted medical norms and without negligence. He has further urged that the appeal should be allowed and the impugned order / judgment should be set aside.
- On the other hand, Learned Lawyer appearing for the respondent No. 1 has urged that the Learned District Forum has passed the order legally. He has further urged that Learned District Forum considered the settled principles of law. So, the appeal should be dismissed and the impugned order should be confirmed.
- Having heard the Learned Advocate appearing for both the parties and on perusal of the materials on record it appears to us that it is an admitted position that the complainant being attracted with the advertisement published in the daily newspaper made a contact with the opposite parties. It is also an admitted position that the opposite party No. 1 Doctor after consultation assured that if the complainant would have got treatment of IVF she could conceive a child. It is also an admitted position that the opposite party No. 3 by publication of advertisements in the newspaper claimed that the success rate of such test is 70%. On the basis of misleading advertisement, the complainant being attracted with the success rate made contact with the opposite parties. It is also an admitted position that as per advice of opposite party No. 1, the complainant underwent several tests and assurances given by the opposite party No. 1 which was not fulfilled.
- On consideration of the materials available on record it is found that the complainant paid an amount of Rs.1,50,000/- (Rupees one lakh and fifty thousand) only for various tests and medicines and the complainant paid Rs. 1,50,000/- (Rupees one lakh and fifty thousand) only to the opposite party No. 1 for the treatment of IVF.
- It is also found on careful perusal of the record that in spite of payment of such huge amount no progress was found.
- It is the case of the complainant that the complainant being attracted with the advertisement published in the daily newspaper made contact with the opposite parties and the opposite party No. 1 after consultation assured that if the complainant could have got the treatment of IVF, she could conceive a child. The opposite party No. 3 by publication of the advertisement in the newspaper claimed that success rate of such test is 70 %. Record goes to show that the opposite parties No. 1 & 2 did not deny the same in their written version as well as in their evidence on affidavit filed by them. So, the evidence of the complainant in this regard can be believed.
- Another aspect of this case is that though the complainant has claimed that the opposite parties No. 1 & 2 by publication of the advertisement in the newspaper claimed that the success rate of such test is 70% but the opposite parties No. 1 & 2 in their written version have stated that the success rate is 15-20%. Therefore, it appears to us that the opposite party No.3 published misleading advertisement and on reading such misleading advertisement, the complainant was attracted with the success rate and made contact with the opposite parties. It is settled that the Consumer Protection Act gives the consumer the right to seek redress against false and misleading advertisements including compensation for loss and injury caused because of such advertisements. The advertisement published in this case, the doctors created faith that the complainant could conceive.
- The Learned Advocate appearing for the appellants has urged that the respondent No. 1 was properly explained each and every procedure underwent and due to implantation failure the complainant did not conceive which is also known as Serum beta HCG which was done on 17.04.2015 and such failure was completely explained to the respondent No. 1 and her husband and the implications of such procedure. Record goes to show that the appellants have not produced before the District Commission any paper to show that the appellants explained each and every procedure underwent and the implication of failure of such procedure to the respondent No. 1 and her husband. So, such submission of the Learned Advocate appearing for the appellants cannot be believed.
- Learned Lawyer appearing for the appellants has further urged that the District Commission failed to appreciate that the appellants had treated the patient for 123 days prior to which the patient was treated by Dr. Suchanda Mukhopadhyay for about 60 days which was also yielded no result. As such, finally the complaint against the appellants for not getting any result is malpractice on the part of the complainants. We fail to accept such contention as made by the Learned Advocate appearing for the appellants.
- It appears before us that the appellants have introduced such new facts in the appeal that the respondent No. 1 was referred by one Dr. Suchanda Mukhopadhyay. The appellants have nowhere stated in their written version about such facts. The appellants have only right to appeal against an order / judgment, if the Forum had made any mistake or error to take consideration of any facts which already placed before the Commission or the Commission has made any mistake of law. But we find that in this case the appellants have placed the new facts only to bypass their liability and to misguide this Commission.
- Learned Lawyer appearing for the appellants has further urged that medical negligence shall be established by the complainant by producing medical documents and evidence and expert opinion. So, negligence cannot be presumed in case of medical negligence. Mere complaint without any expert opinion against any medical person relating to medical negligence cannot be accepted. We fail to accept such contention of Learned Advocate appearing for the appellants. We find in this case no expert was appointed and no expert opinion was called for. We think that expert opinion is not necessary in all cases where negligence and deficiency in service of a treating Doctor is established from the facts and circumstances of the case. In the present case before us negligence and deficiency in service on the part of the appellants as discussed earlier has been well established from the facts and circumstances of the case. Therefore, we have no hesitation to hold that the appellants are guilty of medical negligence and deficiency in service.
- In Nizam Institute of Medical Sciences Vs. Prashanth S. Dhanuka reported in 2009 INDLAW SC 1047, the Hon’ble Apex Court observed that :-
“In a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.” - Thus, we are of the view that the complainant / respondent No. 1 has been able to prove that there was medical negligence on the part of the appellants.
- Under these facts and circumstances and on going through the materials on record we are of the view that the Learned District Commission properly considered the evidences, the facts and circumstances of the case and finally arrived at the conclusion and passed the impugned judgment, which, according to us, calls for no interference by this Commission, and as such, it is liable to be affirmed and the appeal is also liable to be dismissed.
- In the result, the impugned order and judgment dated 14.12.2017 passed by the Learned District Commission in connection with complaint case No. CC/420/2015 is hereby confirmed.
- There will be no order as to costs.
- The appeal is, thus, disposed of accordingly.
|
No comments:
Post a Comment