DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.157/2019

Dr. Archi

Proprietor of Archi Advanced Dental Care

Shop No.4, CSC Market, Kalkaji Lane,

Swaminarayan Marg, Ashok Vihar-III

New Delhi-110052

….Complainant

Versus

1. Clear Path Healthcare Services Pvt Ltd.

Through its MD/CEO

First Floor, Amstore House

Techno Park, Trivandrum

Kerala-695581

Also at:

Corporate Office: C-47, South Extension, Part-I,

New Delhi-110049.

No.1

2. Mr. Peer Shabir Ahmad

Manager-Account & Administration,

Clear Path Healthcare Services Pvt. Ltd.

C-47, South Extension, Part-I,

New Delhi-110049

        ….Opposite Parties

 Date of Institution    : 23.05.2019      

 Date of Order            : 23.07.2024      

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

ORDER

Member: Kiran Kaushal

1.       Briefly put, complainant who runs a Dental Clinic, placed an order of Aligners  on 10.12.2015 for her patient with Clear Path Health Care Services and Mr. Peer Shabir Ahmad, hereinafter referred to as OP-1 and OP-2.

2.       Complainant paid total consideration of Rs.50,000/- for the Aligners which were to be delivered  in two parts. It was agreed between the parties that aligners would be delivered within 45 days after making the payment and  the second part of Aligners would be delivered on or before 25.12.2017. It is stated that after receiving the entire payment the second part of the Aligners were not delivered to the complainant despite approaching OPs on numerous occasions. Complainant suffered huge monetary loss due to this unprofessional act of the OPs.

3.       It is next stated that the complainant’s patient shifted to another good  Aligner Company as OPs failed to keep its promise. OPs instead of solving the problem  asked for ‘new impressions’ which was not justified. In any case patient was not ready to wait for another 60 days which were required after the new impressions were given.

4.       The second set of Aligners were not delivered by OP in the promised time frame of 45 days, when the said Aligners reached the complainant and the patient tried to use them, they did not fit the patient as the second set was not correctly made. The complainant requested OP to correct it by following proper protocol but OP ignoring the request asked for ‘new impressions’ to start procedure again for which the patient was not ready. It is stated that new Aligners which the complainant is getting made for patient is costing Rs.1.45 lacs which OP is now liable to pay since OP did not correct the new set of Aligners even after repeated requests.

5.       Aggrieved by the circumstances above, complainant prays for direction to OP to refund Rs.50,000/- which was paid by the complainant towards the cost of Aligners; to pay Rs.1.45 lacs to the complainant towards expense of new Aligners; to pay Rs.1,00,000/- towards physical harassment and mental agony and Rs.50,000/- towards litigation expenses.

6.       Despite service, none appeared on behalf of OP-1 and OP-2, hence, the OPs were proceeded exparte vide order dated 19.12.2019. Exparte evidence and written arguments have been filed on behalf of complainant. Submissions made on behalf of complainant are heard. Material placed on record is perused.  

7.       Complainant in support of her case has filed two invoices dated 10.12.2015 and 24.12.2015 which shows that Rs.50,000/- has been paid as consideration to OP-1 for the Aligners. It is seen that after making the payment, complainant for the first time  agitated  the issue of not receiving the correct/proper Aligners in November, 2017. On going through the trail mail, it is observed that OPs time and again have been asking for new PVS impressions of the patient which was not complied with. OP vide email dated 13.07.2018 stated as under-

Considering two weeks of wear time of each aligner all the aligners should have been completed by January 2017.

However, we had received the request for further aligners in November 2017 after a delay of nine months due to which aligners could not be processed as this shows non-compliance.

However, a new PVS impression of your patient is required for the further fabrication and there may be some charges applicable which shall be informed once we receive an impression.

8.       From the above stated mail, it is clear that OP-1 could not have made new Aligners without the ‘new impressions’ as there was prolonged delay. Complainant has not provided any justifiable reason for the delay. Since, the complainant’s patient had sought refund from the complainant and was intending to file a legal suit, complainant was unable to provide the ‘new impressions’ of the patient .

9.       This commission is of the opinion that complainant has not been able to establish his case.

10.     The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following

“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”

11.     In light of the discussion above and the judgement supra the complaint is dismissed.

Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.