BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 30^th day of November 2016

Filed on 16.01.2014

Present :-

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K., Member

C.C. No. 20/14

Between

And

O R D E R

Beenakumari V.K., Member.

A brief statement of the facts of this complaint is as follows:

The complainant Sri. Manoj Chacko who was an employee of the Firm by name M/s. Yappi Markasi in Saudi Arabia, came to his home on 21.08.2013. He was eligible for 15 days leave in every 6 months. Due to some visa related problems he could not go back to Saudi Arabia on time. His employer informed that a new visa has been given for the complainant to the 2^nd opposite party- Manager, Multilink Management Consultants, Kochi and directed the complainant to contact the 2^nd opposite party to comply with the mandatory paper works. Accordingly the complainant approached the 2^nd opposite party handed over his passport bearing No.F 9343677. The 2^nd opposite party directed the complainant to approach the 1^st opposite party - Gulshan Medicare for a medical check up and after the medical check up, the 1^st opposite party- Gulshan Medicare informed the complainant that he is medically 'unfit'. But the 1^st opposite party did not give any written report despite a request from the complainant. Subsequently Dr. P. Sukumaran, a famous chest specialist examined the complainant and he ruled out the existence of any respiratory problem. The X-ray and the medical report of Dr.Sukumaran was handed over to the 1^st opposite party by the complainant. But the 1^st opposite party did not verify the said X-ray report and informed the complainant that the doctor who gave the 'unfit certificate' is stationed at Bombay. Thereafter the complainant sent the report to the Bombay Office of the 1^st opposite party. But they refused to consider the request of the complainant to review despite several requests from the complainant and the 1^st and 2^nd opposite parties did not allow another chance to carry out the medical check up of the complainant. It is contended by the complainant that the issuance of 'unfit certificate' with a view of deny the employment opportunity to the complainant amounted to deficiency in service on the part of the 1^st opposite party and it amounted to unfair trade practice also. It is also contended that the complainant had lost his employment opportunity abroad due to the issuance of the false medical certificate without stating his exact healthy conditions and hence filed this complaint seeking direction to the 1^st opposite party - Gulshan Medicare to pay 10 lakh rupees towards compensation for the huge financial loss and for the mental agony suffered by the complainant and to direct the opposite parties to conduct a fresh medical examination and to complete the visa processing formalities forthwith.

2. Notices were issued to the opposite parties from this Forum. In response to the notices the 1^st and 3^rd opposite parties filed their version and the 2^nd opposite party filed separate version before this Forum objecting to the contentions raised in the complainant.

3. Version of the 1^st and 2^nd opposite parties

   The complainant is not maintainable and it is filed to harass the reputation of the opposite parties. The opposite parties are not aware of the facts stated in 1^st and 2^nd paragraph of the complaint. Medical check up prior to the appointment in Gulf sector is mandatory with a view to protect the citizens of Gulf countries from diseases and to make sure that expatriates are free from any contagious disease and the 3^rd opposite party – GAMCA (GCC Approved Medical Centres Association) is a facilitation centre to direct the persons proceedings to the Gulf Countries for employment or on family status and this centre is directly under the supervision of the Gulf co-operation of Counsel States (GCC) situated in Riyadh, Saudi Arabia. The Executive Board of the Health Ministers Council in GCC states has approved certain clinics to conduct medical check ups in India and these clinics have to maintain certain standards as prescribed by GCC and the 1^st opposite party is such an approved clinic conducting medical check ups as per GCC Norms and the complainant approached 1^st opposite party – Gulshan Medicare on 21.11.2013 with GCC allotted GAMCA slip or Registration acknowledgment slip showing details of passport, photograph printed online, Bar code and computer selected medical centre's name, address to which the person has to appear for the medical check-up the authorised clinic for medical check up allotted to the complainant was the 1^st opposite party – Gulshan Medicare and the tests were conducted on the basis of the prevailing Rules and Regulations of GCC after obtaining the consent of the complainant and in no way the 1^st opposite party would be responsible for the tests results. Unfortunately the X-ray results showed a right upper zone fibrosis which is a bar to enter into the Gulf countries as per GCC norms. The unfit certificate was issued by the doctor who is stationed at Bombay and the doctor rejected the request of the complainant for a review of the test result. The 1^st opposite party submitted that the contention of the complainant that the employer contacted the opposite party 1 for giving another chance for the complainant is ill motivated, that tests were conducted according to the GCC norms and Regulations, that there was no unfair trade practice or deficiency in service of any kind on the part of any of the opposite parties, that the interim direction of this Forum in I.A 46/2014 to conduct a fresh medical check up could not be made since the complainant did not turn up for the medical check up.

   Version of the 2^nd opposite party

   1. The Manager of the 2^nd opposite party – Multilink Management Consultants, Kochi submitted that the 2^nd opposite party has no say in selection or rejection of the candidate and hence is not responsible for any out come of the test results, that the findings of Dr. Sukumaran of Bharath Hospital are not binding on any of the opposite parties as he has no local standi in the matter, that the inclusion of the name of the 2^nd opposite party is a misjoinder. It is therefore requested by the 2^nd opposite party to drop the name of the 2^nd opposite party from the party array and the complaint may be dismissed.

      8) The issues to be decided in this case are,

      Issue No. (i)

      Whether the complainant has proved deficiency in service on the part of the opposite parties or any unfair trade practice committed by them?

      Issue No. (ii)

      Whether the 1^st opposite party – Gulshan Medicare is liable to pay Rs. 10 lakhs to the complainant for financial loss, if any, suffered by him?

      9) The evidence in this case consisted of the documentary evidences marked as Ext.A1 to A5 on the part of the complainant and Ext. B1 to B6 on the part of the opposite parties. The complainant has not adduced any oral evidence whereas the 1^st opposite party adduced oral evidence through its Administrator 'DW1'.

      10) Issue No. (i)

      The complainant Sri.Manoj Chacko was an employee of M/s. Yappi Markasi in Saudi Arabia and he came to him on 21.08.2013 on 15 days leave but he could not go back to Saudi Arabia on time and on contact with his employer he was informed the complainant that a new visa has been given to 2^nd opposite party- Multilink Management consultants and directed the complainant to comply with the mandatory paper works. Accordingly in November 2013 the complainant contacted the 2^nd opposite party and it was submitted to the opposite party 3- GAMCA COCHIN by the 2^nd opposite party and thereafter the 2^nd opposite party directed the complainant to approach the opposite party 1- Gulshan Medicare for medical check up. The complainant paid Rs.4,200/- to 1^st opposite party- Gulshan Medicare towards fee for medical check up as evidenced by Ext. A1 Receipt issued by the 1^st opposite party. Ext. A2 is the envelop cover handed over by the 2^nd opposite party. Ext. A3 is Employment Officer issued by M/s.Yappi Markasi in Saudi Arabia as male nurse in the project management office of A I. Nariyah Workship project for a monthly salary of 7,000/- SAR equivalent to Rs. 100,000/- Ext. A4 is photocopy of complainant's bank pass book for the period from 01.03.2013 to 26.07.2013 and Ext. A5 is the photocopy of the certificate dated 05.12.2013 issued by Dr. Sukumaran of Bharath Hospital, Kottayam, Kerala, certifying that the complainant does not have any evidence of any active respiratory disease clinically and radiologically. The complainant's case is that the above medical certificate proves that the Ext. B2 'unfit certificate' produced by the 1^st opposite party – Gulshan Medicare is false and that it was issued with ulterior motive to give the visa to somebody else thereby purposefully denying the employment opportunity to the complainant. The opposite party 1- Gulshan Medicare, on the other hand strongly opposed the above contention of the complainant. The 1^st opposite party through their witness DW1 deposed before this Forum that the X-ray copy of the complainant was verified by Dr.Supariwala who is having the required qualification and the statement that the complainant was not having fibrosis is not true. The 1^st opposite party has produced Ext. B3 certificate of Registration issued by Maharashtra Medical Council, Bombay showing that Dr.Supariwala Mohd Aslam Yakub who alleged by issued the Ext. B2 consent Form with endorsement 'unfit' is possessing the MBBS qualification from 1981 onwards. But, the above Ext. B2 certificate is not seen signed by Dr.Supriwala Mohd Aslam Yakub and the above fact was also admitted by DW1, the witness of 1^st opposite party and Dr.Supariwala Mohd Aslam Yakub was not examined to prove the case of the opposite parties. Further in the Ext. B2 consent Forum with endorsement 'unfit' in the X-ray column 'Rt U3 FO' was seen entered in red ink subsequently. The Ext. A3 the employment officer was for a 'male nurse' but in the Ext. B2 certificate though the pass port No. is correctly written as F 9343677 the position was noted wrongly as 'Plumber'. The above facts go to show that the 1^st opposite party handled the case of the complainant in a careless manner and failed to issue the relevant medical certificate despite a specific request from the complainant and the information given that the complainant was medically unfit is a false information. Thus deficiency in service on the part of the 1^st opposite party is proved by the complainant. In the Ext. B2 consent Forum it is stated that if any dispute arise out of the medical report, the compensation if any ordered will be limited to the medical fee paid by the complainant. The above clause in the Ext. B2 consent Form is clearly an unfair trade practice committed by the 1^st opposite party. Thus the 1^st issue decided in favour of the complainant. The complainant has proved both deficiency in service and unfair trade practice on the part of the 1^st opposite party – Gulshan Medicare.

Issue No. (ii)

By going a false information that the complainant is medically unfit, the complainant has lost an employment opportunity abroad. It inflicted severe mental agony to the complainant, the salary offered in the Ext. A3 employment was 7000 SAR equivalent Rs. 100,000/-. Therefore the complainant claimed 10 lakh rupees towards compensation for the financial loss and for the mental agony suffered by him. We find that the claim is on a higher side. We find that a compensation one lakh rupees is fair and reasonable in the facts and circumstances of the case.

In the result the complaint is partly allowed and we direct as follows:

1. The 1^st opposite party shall pay Rs. 100,000/- towards

   compensation to the complainant within one month of the receipt of

   a copy of this order.

2. If the 1^st opposite party fails to comply with the above direction, the

   above amount shall carry 18% interest from the due date till

   realisation of the amount.

    

   1. Pronounced in the open Forum on this the 30^th day of November 2016.

Sd/-Beena Kumari, V.K., Member

Sd/- Cherian K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Forwarded/By Order

Senior Superintendent.

Date of Despatch of this Order ::

By Post ::

By Hand

APPENDIX

Complainants Exhibits

Opposite party's Exhibit :

Deposition :

DW1 : Pratheep Kumar