Date of Filing:27.08.2019

Date of Disposal:29.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SMT.NANDINI.H.KUMBHAR, MEMBER

1. This complaint is filed by the complainant under section 12 of the C.P.Act, 1986 against the OPs alleging deficiency of service.  

2.   The brief facts of the case is as follows: 

The complainant married in the year 2011, even after marriage of 5-7 years complainant did not conceive to bear a child. After being advised by Dr.Arati Rama Rao, the complainant approached IVF procedure and embryo transfer which was unsuccessful. Thereafter in the month of March 2018 complainant travelled from Switzerland to Bengaluru on 19.03.2018 for second Embryo Transfer and as advised by Dr.Arati Rama Rao, the complainant got admitted to OP hospital on 23.04.2018. Upon completion of the procedure as detailed above, the complainant was discharged by payment bill of Rs.43,839/-. The OP has informed the results pertaining to the sample taken will be provided within a period of 10 days and the complainant flew back to Switzerland after follow up with the OP and Dr.Arati Rama Rao. The complainant informed that there ismedical negligence at laboratory and sample obtained was stored resulted in destruction of sample and unfit for testing, which caused very upset and took sometime to recover from the shock caused to her. The doctor belonging to OP hospital apologized for careless action and also informed that the OP shall convince the management of OP to provide a refund of all the expenditure relating to the procedure and also loss of travel incurred by the complainant. When the complainant called the doctor on 26.05.2018, the management of the OP hospitalrefused to comply with the demand of the complainantand could only refer to conduct the sameprocedure again free of charge on next visit to India. The complainant issued legal notice to OP for refund of a travel expenses of Rs.48,577/- and also further pay a sum of Rs.1,00,000/- for mental agony suffered, the OP through advocate replied and accepted there was a mistake in storage of the sample, but denied any wrong doing.. Aggrieved by the act of the OPs the complainant filed this present complaint seeking relief as prayed in the complaint.

3. Notice to the OP  duly served. OPs represented by their counsel and filed their written version, affidavit  in support of their contention.

4. The complainant has also filed chief examination affidavit by reiterating the complaint allegations and also filed documents in support of their plea.

5. Heard arguments and the matter is posted for orders.

6.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

7. The findings on the above points are as under:

Point No.1           :       Affirmative

Point No.2           :       As per final order

REASONS

8. POINT NO.1:-  The complainant married in the year 2011, even after marriage of 5-7 years complainant did not conceive to bear a child. After being advised by Dr.Arati Rama Rao, the complainant approached IVF procedure and embryo transfer which was unsuccessful. Thereafter in the month of March 2018 complainant travelled from Switzerland to Bengaluru on 19.03.2018 for second Embryo Transfer and as advised by Dr.Arati Rama Rao, the complainant got admitted to OP hospital on 23.04.2018. Upon completion of the procedure as detailed above, the complainant was discharged by making payment bill of Rs.43,839/-. The OP has informed the results pertaining to the sample taken will be provided within a period of 10 days and the complainant flew back to Switzerland after follow up with the OP and Dr.Arati Rama Rao. The complainant informed that there is  medical negligence at laboratory and sample obtained was stored resulted in destruction of sample and unfit for testing, which caused very upset and the complainant  took sometime to recover from the shock caused to her. The doctor belonging to OP hospital apologized for careless action and also informed that the OP shall convince the management of OP to provide a refund of all the expenditure relating to the procedure and also loss of travel expenses incurred by the complainant. When the complainant called the doctor on 26.05.2018, the management of the OP hospital  refused to comply with the demand of the complainant  and could only refer to conduct the same  procedure again free of charge on next visit to India. The complainant issued legal notice to OP for refund of a travel expenses of Rs.48,577/- and also further to pay a sum of Rs.1,00,000/- for mental agony suffered, the OP through advocate replied and accepted there was a mistake in storage of the sample, but denied any wrong doing. Aggrieved by the act of the OP, the complainant filed this complaint seeking relief as prayed in the complaint.

9. The OP represented by counsel and filed their detailed version and OP has denied allegations made in the complaint. The OP has admitted that the complainant had approached the OP hospital as detailed by Dr.Arati Rama Rao for Embryo transfer and accordingly the complainant arrived from Switzerland to Bengaluru and doctor has conducted the procedure and has noticed small endometrial polyp at certain area during scan. Further, OP doctor advised the complainant to undergo Diagnostic Hysteroscopy procedure and while conducting the procedure by Dr.Reshu Sarogi,  the biopsy sample was taken for evaluation, but viability of specimen was lost due to improper storage, OP admits that even after making all attempts, but it is not avail and OP has informed to the complainant via telephone and offered to redio the biopsy and carried out the test with OPs cost and also the Deputy Medical Superintendent of OP hospital has narrated the issue and apologized for the inconvenience caused to the complainant and agreed to conduct the procedure again with free of charge. The OP has not agreed and did not assured the complainant some of the other facts regarding refund of the expenditure relating to the procedure and also the cost of travel. The OP submits for the reason sated above, pleased to dismiss the complaint against the OP.

10. The complainant also filed chief examination affidavit by reiterating  the complaint averments as against the OP and also produced some documents in support of their contention. From the perusal of the pleading of the complaint and affidavit and also by considering the contention of both the parties, it is undisputed that the complainant approached Dr.Arati Rama Rao for embryo transfer and accordingly the complainant travelled to India from Switzerland. Thereafter, while the doctor has conducting procedure for endometrial  growth and has notice small endometrial polyp at the certain area during scan. As per advise of the OP while conducting the procedure of endoscopic with Dr.Reshu Sarogi, the biopsy  sample was taken, but viability of specimen was lost due to improper storage. But the OP admitted that even after making all attempts to get the specimen it is not avail, which was informed to the complainant husband while telephonic conversation and OP also offered redo biopsy and carryout the test and OP agreed to conduct the procedure again with free of charge during complainant’s next visit to India.

11. In view of the above, we observed that the negligence in action of the OP as administered in the treatment. We consider the pain and suffering of the complainant, but there that by itself cannot be a cause for awarding damages to the complainant, for which there no evidence to prove the damages suffered by complainant. Having regard to the discussion, we are of the considered view that the OP has admitted in para-6 of the version that due to viability of specimen was lost due to improper storage and even after making all attempts to get the specimen, but it is not avail and OP has apologized and agreed to conduct the procedure again free of charge. Which means there is a deficiency in service by the OP which caused to the complainant. The complainant came all the way from Switzerland and approached OP hospital and believed that the OP will give  good result, but due to inconvenience and negligence of the hospital has caused mental agony to the complainant. 

12. In view of the above, by considering the documents produced, it is observed that there is a deficiency of service which is rendered by OP during the course of service to the complainant, for which they are liable to pay claim of the complainant. It is also noted that the OP has failed to take steps to proactively to avoid the destructing of the sample as it  is the part of the duty and care of the OP hospital. In view of the above, the complaint deserves to be allowed. Accordingly, we answer the Point No.1 partly in affirmative.

13. POINT NO.2:- In the result, for the forgoing reasons,  we passed the following:

                                         ORDER

1. The complaint is hereby allowed.

2. OP is directed to refund the airfare charges of Rs.47,991/-  along with interest at the rate of 6% p.a.  from 26.05.2018 and also conduct the same procedure again with free of charge of her next visit to India.

3. The OP is also  directed to pay a sum of Rs.25,000/- as compensation for mental agony, pain and suffering and Rs.10,000/- towards cost of litigation.

4.  Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th April  2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit: Smt.Ranjitha Mahesh Jadhav-who being GPA holder of complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:

Sri Kartikeyan.S.D.,-Who being the executive of OP

Documents produced by the OP:

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*