BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 10th day of October 2017
Filed on : 10-03-2015
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.173/2015
Between
Anil Kumar C.A., : Complainant
S/o. Alex John, (By Adv. A. Jayasankar,
Cherukunnel house, M/s. Jayasankar Manu &Manu,
Parakkadavu P.O., Aluva. Sree Padmam, Ponoth road,
Kaloor, Cochin-682 017)
And
1. Gulshan Medicare, : Opposite parties
41/3015, Amulya Street, (By Adv. Preetha John K.,
Ernakulam, Kochi-18, Choolackal buildings, Market road
rep. by its Administrator, North, Kochi-18)
Pradeep Kumar P.
2. Dr. T.P. Poulose,
Medical Director,
Gulshan Medicare,
41/3015, Amulya Street,
Ernakulam, Kochi-18.
O R D E R
Beena Kumari V.K., Member.
Case of the complainant is as follows:
The complainant Shri. Anilkumar is a driver by profession and he was employed in Muscat from September 2011 to May 2013. He was issued with Kuwaiti-visa on 18-11-2014 and he approached the 1st opposite party -Gulshan Medicare for examining his medical fitness and the 2nd opposite party Dr. T.P. Poulose conducted medical examination on 01-12-2014 and certified him 'unfit'. In the chest X-ray of the complainant the opposite parties found Fibrosis and the opposite parties refused to return the original visa to the complainant despite repeated demands. The 1st opposite party extracted an unreasonable amount of Rs. 3,600/- for the above medical examination. Thereafter the complainant underwent medical examination at Aster Medicity. His chest X-ray was taken on 03-12-2014 and CT Scan on 06-12-2014 and he was found perfectly fit on the above examination. The complainant made a complaint to the District Collector, Ernakulam and on direction of the District collector, Dr. Karthik Balachandran of Ernakulam General Hospital also conducted a detailed examination of the complainant on 08-01-2015 and certified that that the complainant is not suffering from any ailment at all. Further the additional District Medical officer reported that the license of the 1st opposite party is liable to be canceled since the medical certification was unjustifiable. The complainant vide Lawyer notice issued to the 2nd opposite party demanded the return of his visa which was due to expire on 08-02-2015, to refund the examination fee of Rs. 3,600/- and to pay Rs. 10,000/- towards compensation. In reply notice dated 18-01-2015 the 2nd opposite party put the blame on the Radiologist concerned and intimated the complainant that he can very well collect the visa from the Kuwait Embassy. The 1st opposite party in their reply notice dated 20-01-2015 vindicated their certification and blamed the complainant for conducting medical examination by unauthorized agencies like Aster Medicity, Ernakulam General Hospital. The complainant submitted that on 08-02-2015 complainant's visa lapsed and he lost the opportunity to go abroad and to take up employment abroad because of the faulty medical certification done by the 2nd opposite party and in view of the refusal of the1st opposite party to return the Visa. Had the complainant gone to Kuwait, he would have drawn an amount of Rs. 28,000/- per month towards salary for a period of 3 years. Thus this complaint is filed claiming the following reliefs. The complainant claimed Rs. 5,00,000/- towards
compensation for the mental agony suffered by the complainant and his family when they came to know about the report of the 2nd opposite party that he 'suspected Tuberculosis'. The complainant further contended that he sustained a loss of Rs. 10,08,000/- due to the loss of job abroad. The complainant claimed the above amount towards compensation for the loss of job occurred due to false certification. The complainant claimed refund of examination fee of Rs. 3,600/- charged by the opposite parties, to reimburse the charges paid by the complainant for taking CT Scan and chest X-ray to the Aster Medicity and the charges for chest examination paid to the Ernakulam General Hospital.
2. Notices were issued to the opposite parties from this forum and the opposite parties filed their version as stated below.
3. Version of the opposite parties
The 1st opposite party Gulshan Medicare is an ISO certified medical centre having ISO 9001 – 2008 with GCC Code -01-05/02 which is eligible to issue medical fitness certificates to candidates seeking employments in Gulf Co-operation of Council states with specific norms and criteria as stipulated in the guidelines for issuance of medical fitness certificate for GCC countries. The complainant approached the 1st opposite party for the medical check up on 01-12-2014. He also consented to do the tests in accordance with the Rules and Regulations GCC. His blood results were normal. But the X-ray showed a left upper zone fibrosis which is a bar to enter into Gulf country as per GCC Norms. The 2nd X-ray taken free of cost also showed fibrosis and an 'unfit' certificate was issued to the complainant based on proper analysis as per GCC Norms & Regulations. As and when the complainant was found unfit, the visa of the complainant was forwarded to the Kuwait embassy as per the standing instruction of Kuwait Embassy dated 11-04-2012. It is submitted that there is no deficiency of service or other negligence as alleged by the complainant, that the opposite parties are not the agency for prescribing employment to the complainant and the opposite parties have no option than to forward the Visa to the Kuwait Embassy if the candidate is found unfit which is not a deficiency of service. The 2nd opposite party is a doctor retired from Government service having 45 years experience is the medical director of the 1st opposite party – clinic and the fitness certificates are issued on the basis of the physical examination of the candidate, Lab reports and X-rays, as per the GCC Norms as stipulated in the GCC guidelines and the complainant would be eligible to go after 6 months if he is found fit in any of the medical centres of GCC. It is therefore prayed that the complaint may be dismissed with compensatory costs to the opposite parties.
The Issues emanated for the consideration of this Forum are as follows:
i. Whether this complaint is maintainable?
ii. Whether the complainant has proved deficiency in service on the part of the opposite parties ?
iii. Whether the opposite parties are liable to pay compensation for the mental agony if any suffered by the complainant and for the loss of job in Kuwait?
iv. Whether the opposite parties are liable to refund the examination fee paid to them by the complainant and to reimburse the expenses incurred by the complainant for taking CT scan and chest X-ray and chest examination at Aster Medicity and Ernakulam general Hospital along with costs.?
The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and documentary evidences marked as Exbts. A1 to A9, A10 series (3 numbers) and A11. The opposite parties adduced oral evidence through their witnesses DW1 and DW2 and the documentary evidences furnished by opposite parties were marked as Exbt. B1 to B6. 6.
6. Issue No. i. and ii. The opposite parties contended that the complainant is not a 'consumer' as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986, since the fee collected by the opposite parties for the mandatory check up as per GCC norms can not be considered as a consideration. The complainant deposed before this Forum as PW1 that he approached the 1st opposite party for the medical check up as per the direction of of GAMCA (Gulf Approved Medical Centre Association) and he paid Rs. 3,600/- towards charges for the medical check up. The medical check up done is the service given to the complainant and the medical examination fee paid by the complainant is the consideration for the service given to the complainant. Therefore we find that the complainant is a “consumer” as defined under Section 2 (1) (d) of the Consumer Protection Act. The complainant approached the 1st opposite party – Gulshan Medicare who are the approved medical establishment for conducting the mandatory check ups as per the GCC Rules and Regulations and the chest X-rayof the complainant was taken on 01-12-2014 and the chest X-ray was verified on-line by the Radiologist of the opposite parties stationed at Bombay. He found the complainant is having a left upper zone fibrosis. A 2nd chest X-ray taken free of cost also revealed fibrosis and accordingly the opposite parties had issued the Exbt. A3 medical test report “unfit certificate” to the complainant on 01-12-2014. The above medical report had validity for 6months from the date of issuance the medical certificate. In the exbt. A3 medical report it is stated that the reason for left upper zone fibrosis as Tuberculosis and that the complainant Mr. C. Alex Anilkumar is UNFIT for the mentioned job (driver) accordingly to CCC criteria. The complainant submitted that the very same 1st opposite party had earlier given to him a 'FIT' certificate as evidenced by Exbt. A1 dated 15-09-2011 and he had worked as driver during the period from September 2011 to May2013 in Muscot. Exbt. A2 is the copy of Kuwait Visa received by the complainant in November 2014. On getting the Exbt. A3 medical report, the complainant approached Aster Medicity a Private Hospital, took chest X-ray and CT Scan and the Exbt. A4 medical report dated 06-12-2014 issued by Aster medicity remarked that “No obvious abnormalities detected at present evaluation”. Again the complainant approached the District Collector, Ernakulam seeking his direction to the government General Hospital, Ernakulam to do a medical examination of the complainant and Dr. Karithik Balachandran examined the complainant and issued the Exbt. A5 marked report dated 08-01-2015 stating that “there is no evidence to claim that the patient had or is presently suffering from pulmonary tuberculosis” Thus the complainant has clearly and sufficiently proved that the medical report dated 01-12-2014 issued by the opposite parties vide Exbt. A3 was incorrect and faulty. The opposite parties on the other hand contended that the upper zone fibrosis found in chest X-ray of the complainant is only a scarring of lungs and it is not an active disease requiring any treatment but it is a bar for entry to gulf counties as per GCC norms. Hence the opposite parties issued the Exbt.A3 unit certificate to the complainant. Exbt. B1 Rules and Regulations for Medical Examination of Expatriates Recurited for work in the GCC states at page 60 clause 1.c Lungs stated that the applicant should not be suffering from bronchial asthma or any other lungs diseases that chest X-ray should indicate that the applicant is free from Tuberculosis or any signs indicating the existence of fibrosis/calcifications, bronchiectasis or tumor. Exbt. B2 is the CD of chest X-ray and B3 series are the certificates of qualifications of the radiologist of the opposite parties. B4 series documents show that the periodic inspection of the X-ray machine in the1st opposite party. Gulshan medicare is done by Atomic Energy Regulatory Board, Government of India and B5 is the true copy of the final report issued by Chief Judicial Magistrate, Ernakulam and B6 is the standing instruction of Kuwait Embassy dated 11-04-2012 to forward the Visa if the complainant is found unfit which fact was admitted in page 8 of his deposition. None of the documentary evidences from Exbts.B1 to B6, give a satisfactory explanation for the wrong or faulty Exbt. A3 medical report, issued by the opposite parties. The deposition of witnesses DW1 & DW2 also do not give any valid explanation for the wrong and faulty medical report given on 01-12-2014 vide Exbt. A3 document. In the instant case the opposite parties did not confirm whether the complainant was suffering from Tuberculosis by taking a CT scan. Thus the complainant has proved gross deficiency in service on the part of the opposite parties.
7. Issue No. iii. In view of the issuance of a wrong or gaulty medical report by the opposite parties, the complainant lost his opportunity to get a job in Kuwait. It is submitted by the complainant that he would have earned Rs. 28,000/- per month for 3 years if he got the job in Kuwait. It is submitted by the complainant that he had sustained a monetary loss of Rs. 10,08,000/- due to the loss of job in Kuwait. The complainant fairly conceded that the medical report had the validity for 6 months only and thereafter he can apply for a fresh job visa after necessary formalities. The salary for 6 months worked out to Rs.1,68,000/- only. Therefore we allow Rs.1,68,000/- towards compensation for the loss of job on account of the wrong or faulty medical report issued by the opposite parties. Further the complainant underwent severe mental agony on getting the Exbt. A3 medical report dated 01.12.2014. He became panic and consulted other hospitals to find out whether he was affected with TB. We find that the opposite parties are liable to compensate the complainant for the inconvenience and mental agony suffered by the complainant. We find that an amount of Rs1,00,000/- (Rupees one lakh) towards compensation will be sufficient to abate the mental agony of the complainant.
8. Issue No. (iv) : The complainant refund of the examination fee paid to the opposite parties and the opposite parties had incurred expenses for the X-ray films and for other test materials and if the examination fee collected by the opposite parties is refunded. The complainant will ceased to be a 'consumer'. It is the report given them was faulty or wrong for which compensation is already granted. Therefore this Forum is not inclined to allow a refund of the examination fee of Rs.3,600/- collected from the complainant by the opposite parties. The complainant claimed reimbursement of the charges paid to the Aster Medicity Hospital for taking CT scan of Rs.3,750/- abd chest X-ray charges of Rs.200/- and towards consultation fee of Rs.400/-. The above expenses were incurred by the complainant only due to the wrong or faulty medical report issued by the opposite parties vide Exbt. A3 dated 01.12.2014. Therefore the complainant is entitled to get the above amounts reimbursed to the complainant. The opposite parties are also liable to reimburse Rs.50/- paid to the Ernakulam General Hospital, Ernakulam for chest examination. The opposite parties shall also pay Rs.5000/- towards costs of this proceedings. 9. In the result, this complaint is allowed in part and we direct as follows:
i. The opposite parties shall pay Rs.1,68,000/- towards compensation to the complainant for the loss of job abroad on account of the wrong or faulty medical report issued to him.
ii. The opposite parties shall pay Rs.1,00,000/- towards compensation to the complainant for the inconvenience and mental agony suffered by him in view of the wrong certificate of 2nd opposite party that he suspected Tuberculosis
iii. The opposite parties also reimburse the following charges paid to the Aster Medicity i.e., Rs. 3,750/- paid towards CT scan charges, Rs.200/- paid towards consultation fee. The opposite parties shall also reimburse Rs.50/- paid to the General Hospital towards chest examination fee.
iv. The opposite parties shall pay Rs.5000/- towards costs of this proceedings.
v. The liability of the opposite parties shall be joint and several.
The above orders shall be complied with, within 30 days from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 10th day of October 2017.
Sd/-
Beena Kumari V.K., Member.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : True copy of medical report
dt. 15-09-2011
A2 : True copy of visa
A3 : True copy of medical test report
dt 01-06-2015
A4 : Plantn CT of Thorax dt. 06-12-2014
A5 : True copy of outpatient registration card
A6 : True copy of official letter dt. 09-01-2015
A7 : True copy of lawyer notice
dt. 16-01-2015
A8 : True copy of registered letter
dt. 18-01-2015
A9 : True copy of reply notice dt. 20-01-2015
A10(a) : Cash bill dt. 06-12-2014
A10(b) : Cash bill dt. 03-12-2-14
A10(c) : Cash bill dt. 03-12-2014
A11 : Bill report dt. 05-01-2015
Opposite party's exhibits:
B1 : Copy of Rules and Regulations
B2 : Copy of G-mail dt. 03-08-2016
B3 : Copy of certificate of registration
dt. 20-05-2981
B4 : Copy of registration for operation of medical
diagnostic X-ray equipment
B5 : Copy of FIR
B6 : Copy of letter dt. 11/04/2012
Depositions
PW1 : C.A. Anil Kumar
DW1 : Pradeep Kumar
DW2 : Dr. T.P. Poulose
Copy of order despatched on:
By Post: By Hand:
