BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    08^th DAY OF MAY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay consolidated sum of Rs.10 lakhs being compensation towards pain, suffering, mental trauma, agony both for complainant and for his family members as well as negligence and deficiency in service, to reimburse payments made towards consultation, medical bill, hospital fees and medicines and to pay litigation expenses.

2. The brief allegations made in the complaint are as under:

That the complainant is a Software Engineer by profession working at Intacct, Software Company based in Bengalure since 16 years.  The OP is running Ayurveda Clinic at the above address.  That due to hectic professional work and to get body relaxation as well as mental stress, the complainant used to visit Ayurveda Clinic at regular interval.  That the OP clinic propagates that, they are the best Ayurveda Clinic and also promise and assure 100% result from their treatment.  The complainant believing such promises and assurances given by OP, complainant visited OP Clinic on 28.06.2017 at 9.30 A.M with prior appointment for massage session.  That after visiting OP Clinic, one Mr.Sanal, employee of OP Clinic performed oil massage to the complainant and later the complainant was put in a steam tub which according to OP will provide best results after massage.  For oil massage and steam tub treatment, OP charged complainant a sum of Rs.1,600/-.  The said amount was paid through debit card.  That the said treatment took some time and after completion of said treatment at OP Clinic, the complainant returned to his home.  However, after reaching home, to his utter shock and surprise, complainant experienced severe itching sensation on his body and further complainant noticed small boils on his body and more particularly on his legs.  Due to this issue, the complainant also experienced fever, severe body pain, itching sensation.  As such the complainant was immobilized and forced to take bed rest since there is no other option for complainant.  That the complainant had to experience itching, body pain, boils, fever etc., only after oil massage due to FOLLICULITIS which had occurred since complainant undergoing unhygienic body massage from OP clinic as well as used oil and later complainant was put into hot tub/sauna bath.  He got itching sensation, fever, pain and suffering due to FOLLICULITIS within few hours after taking body massage from OP clinic.  Since the above issue post completion of oil massage from OP clinic did not subside, complainant was forced to consult a physician to get relief from suffering, pain as well as mental agony.  That subsequently on 01.07.2017 complainant had consulted a general physician by name Dr.Neeraj Miglani, who is attached to Apollo Clinic, HSR Layout, Bengaluru.  After examining complainant, doctor had prescribed few medicines and had diagnosed that aforesaid health issue crept in due to “FOLLICULITIS” owing to oil massage.  That despite getting immediate medical treatment from physician, complainant could not get any relief to his pain and sufferings post oil massage from OP clinic.  As such complainant decided to consult a Dermatologist to get rid of body pain etc.  Accordingly on 03.07.2017, complainant consulted one Dr.Laxman F Mavarkar in Sakra World Hospital, who is specialized in Dermatology.  The complainant took treatment from Dr.Laxman F Mavarkar for more than one week as per doctor advice.  That complainant is Software Engineer by profession.  That part, the complainant used to get himself acclimatized with latest technological development in his profession, which is highly necessary and important for his profession.  This has to be done at regular interval to gain knowledge about latest technological development as well as to improve his skills and to have good rapport with his Manager.  That latest updating of technology will be possible by attending online classes.  Apart from getting training, complainant also planned to spend happy time with family members and to finish all his long pending personnel work within leave period.  With these pre-plans, the complainant applied and got leave sanctioned for 20 days from 26.06.2017 to 14.07.2017.  That due to sudden ill-health complainant was forced to cancel his entire pre-planned programme which were planned and decided to be completed within leave period.   That due to sudden cancellation of prior programme complainant as well as his family members were put into lot of mentally upset.

That due to sudden health upset was due to deficiency in service committed by OP clinic in not discharging its duty effectively and properly as well as not taking necessary precautionary measures before commencement of oil massage as well as steam treatment to the complainant.  Thus OP clinic have committed culpable negligence on their part in discharging its duty effectively without giving any concern for body pain as well as mental disturbance post unhygienic oil massage to complainant.  That due to carelessness as well as negligence act of OP, the complainant suffered a lot and thus OP is liable to make good towards suffering as well as monetary loss caused to complainant without any mistake on the part of the complainant.  Complainant is hale and healthy.  However due to sudden health upset is exclusively on account of deficiency in service rendered by OP.  That due to deficiency and negligent acts of OP in discharging its duty in unprofessional manner by providing oil massage, the complainant is also forced to spend thousands of rupees for consulting doctors and to purchase medicines prescribed by the doctor to get relief from itching, boils, pus and fever.  In fact the complainant is forced to take painkillers, antibiotics, ointment and other medicines as per doctors prescriptions to get relief without any fault from him.  That in terms of monetary loss, complainant had to spend lot of money towards consultation fee as well as medicines.  That apart the complainant had to continue to incur these expenses for a long period to get complete cure.  The complainant submits towards pain, suffering and hardship experienced by him cannot be precisely described much less quantified and not been able to enjoy Staycation as planned by him.  That apart the complainant and his family members were unable to withstand sudden health upset, pain and suffering.  In fact OP has spoiled the entire complainant pre-planned programme before taking leave from his employer.  In fact, these things cannot be adequately quantified.  With this background, the complainant be compensated in a sum of Rs.10 lakhs towards pain, suffering, mental trauma, agony both for complainant and for his family members as well as complainant has to be compensated for not availing training to upgrade with latest development in technology and financial loss as well as not spending holiday with family members as planned.  That after above incident, the complainant had sent series of emails communication to OP and brought to their notice the bad experience.  However, there is no single response from them to any emails.  No reply to complainant email communication, clearly demonstrates the admission of deficiency in service, negligence act and lacuna from OP in not discharging their duty effectively and diligently on 28.06.2017.  Subsequently on 04.07.2017 notice was issued to OP by registered post and once again trauma, suffering and medical expenses incurred by the complainant were brought to notice of OP.  In spite of service of notice, again there is no response from OP.  Not giving reply to the legal notice one again establishes that there was negligence as well deficiency in service from OP in discharging their duty effectively and properly.  Hence this complaint.       

3. After issuance of notice, OP did appear and filed version admitting para.2, 3 & 5.  The OP has taken specific contention stating that the OP clinic is the best Ayurveda Clinic and has 100% results from their treatment as the Ayurvedic treatment has zero percent side effects.  The court can take the judicial note of the same.  However the averments that the complainant visited the OP clinic on 28.06.2017 go against his own replica of e-mail dated 02.07.2017 in which he categorically stated that he visited the OP clinic not on 28.06.2017 but on 27.06.2017.  He further sum up the details in the mail dated above.  It is important to focus on series of events that took place before and after the complainant visited the OP clinic.  That on 27.06.2017 he paid a visit to Apollo Hospital by paying the consultation charges of Rs.500/- by online payment which is reflected in his own statement of account transmitted to OP through e-mail.  He had visited the said hospital one day prior to the visitation to OP clinic for some disease which he was already suffering otherwise no healthy man can prone to visit the hospital fancifully.  Therefore, the irresistible inference has to be drawn against the complainant for having failed to explain the cause of visiting the Apollo Hospital.  It is evident from the extract of bank account of the complainant.  It is important to notice that the complainant willfully failed to show the transaction details that took place on 27.06.2017.  He has wantonly suppressed the material facts with a view to harass the OP by asking compensation.  The complainant has not come before this Forum with clean mind and heart.  After a visit to Apollo hospital, for the reason best known to him, he visited for best results to OP clinic on the next succeeding day.  Doctor and the men at work in OP clinic has acted with much care and skill in course of treating their patient.  Rest of the paragraphs has been denied stating that complainant had not taken any pain to complaint about the unhygienic condition at any point of time either before or after the massage.  The FOLLICULITIS has many causes such as infection, irritation and various skin diseases.  The patients at higher risk of these infections include those with Malignancies, HIV/AIDs, Burns, Diabetes, Intravenous catheter, indwelling urinary catheter, surgery, trauma etc.  If the infection is caused due to unhygienic condition, as alleged by complainant, the same infection could have been caused to other patients.  It is pertinent to note that no such abnormality occurred to other patients on the same day or prior or afterwards.  A strict protocol is adopted during the process of massage to complainant and other patients and without such protocol no process shall be initiated.  In this behalf the treatment given to the list of patients who visited the OP clinic from 25.06.2017 to 05.07.2017 for varieties of services provided and their feedback recorded in the relevant register is herein submitted for kind consideration of this Forum.  It is germane to note at Sl. No.26 the complainant visited the OP clinic and subjected himself for Abhyanga Therapy and on the same day several other persons also subjected for Abhyanga and therapies and they have given fruitful feedback but the complainant did not given the feedback positively or otherwise.  If he was not satisfied and if he was really suffered unhygienic conditions in OP clinic he would have given his feedback.  This goes to show that he had ill-conceived plan to harass and to extort money from the OP clinic by engineering false story.  Therefore the allegations made by him are false, frivolous and vexatious to his knowledge and is an unsuccessful attempt to tarnish the image of OP. 

Further OP has denied para.8, 9, 10 and 11 are all false.  Further it is contended that the allegations to the affect that the complainant got itching sensation, fever, pain and suffering due to FOLLICULITIS within FEW HOURS after taking body massage from OP clinic are outcome of malafides.  The complainant in his mail dated 20.07.2017 and in para No.2 of notice dated 04.07.2017 has firmly admitted that he got the itching sensation on his legs from the next day of massage and boils started to appear only on the day after that.  It is utterly false to allege that one Dr.Neeraj Miglani, who is attached to Apollo Clinic.  HSR Layout, had diagnosed that the health issue crept in due to FOLLICULITIS owes to oil massage.  That the above doctor has no where mentioned in OPD case sheet that the FOLLICULITIS was the result of oil massage.  The reference to oil massage given in OPD case sheet only refers to taking history of the patient and nothing more.  The complainant has doctored the entire story and all through made sudden plans of visiting two or more hospitals before the thing gets hushed up, and had plans of getting the OP harassed by one or the other methods.  It is pertinent to note from the OPD case sheet of Dr.Neeraj Miglani (Apollo Clinic) dated 01.07.2017 in which the doctor had prescribed the medicines for a course of three days.  However the complainant with a view to get more compensation by filing this false case, has visiting Sakra World Hospital soon on 03.07.2017.  As stated by the complainant in para No.11 that he took treatment for more than one week as per the doctor’s advice, which is totally false and misconceived so much so that the doctor at Sakra World Hospital had prescribed medicine only for the five days which was reviewable after five days.  Though for imagination, the medication was reviewed, the complainant has not produced any material on record that he again visited the Sakra World Hospital after five days.  This goes to show that the complainant had preconceived intention to drag the OP before this Forum and extort money.

Further OP contended that complainant has not furnished any documents to show that he had leave within the period state by him.  Further the provisions of Consumer Protection Act cannot be attributable to the suffering of complainant’s family and the reasons which are more remote.  Further submitted that the service provided by OP is Holistic approach for health and its not a treatment.  Further submits that OP has not prescribed any treatment to its just a one day therapy.  Each and every time new kit is used for every person who come for therapy and it is supplied by the head office.  On this ground and other grounds OP pray for dismissal of the complaint.   

4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OP one Smt.Reshma W/o Faiz, Clinic Head submitted evidence by way of affidavit.  Both parties have produced certain documents and written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OP.  According to the case of the complainant due to hectic professional work and to get body relaxation as well as mental stress, he used to visit the Ayurveda Clinic at regular interval.  In this context on 28.06.2017 at 9.30 AM he has taken the prior appointment to the massage in the OP clinic, for which he has paid an amount of Rs.1,600/-.  To substantiate this fact, OP has produced document No.1 which reflects with regard to the transaction of Rs.1,600/-.  The specific allegation of the complainant as against the OP clinic is that, after taking the oil massage and reaching home, he experienced severe itching sensation on his body and further he noticed small boils on his body and more particularly on his legs.  Due to this he also experienced fever, severe body pain, itching sensation.  According to him after the said oil massage due to FOLLICULITIS which has occurred since he has undergone unhygienic body massage from OP clinic as well as used oil and later he was put into hot tub/sauna bath.  To substantiate this he has produced the photographs found at document No.2.  Thereafter he has consulted a General Physician on 01.07.2017 name called Dr.Neeraj Miglani in the Apollo Clinic, HSR Layout, Bengaluru who after examining, prescribed few medicines and had diagnosed that aforesaid health issue crept in due to FOLLICULITIS owing to oil massage.  This fact is totally denied by OP stating that, the OP clinic are very best Ayurvedic clinic and has 100% result for their treatment as the Ayurvedic treatment has zero percent side effects.  For which it has requested Forum to take the judicial note of the same.  However complainant visited the OP clinic on 28.06.2017 go against his own replica of email dated 02.07.2017 in which he has categorically stated that he visited the OP clinic not on 28.06.2017 but on 27.06.2017.  Further submits that on 27.06.2017 he paid a visit to Apollo Hospital by paying the consultation charges of Rs.500/- by online payment i.e., one day prior to visitation of the OP clinic for some disease which he was already suffering otherwise no healthy man can prone to visit the hospital fancifully.  In this context we placed reliance on the document dated 27.06.2017 produced by the complainant with additional documents list dated 23.12.2017 at serial No.2, wherein it has stated with regard to the prescribed tablets also C/o pain on RT wrist – one week, NP Trauma, wherein these tablets are allergic to the complainant or not.  The OP by way of filing its version specifically taken the contention the complainant had all reasonable time during massage to complain, if any, about the unhygienic conditions in the massage room.  Further he had not taken any pain to complain about the unhygienic condition at any point of time either before or after the massage.  The FOLLICULITIS has many causes such as infection, irritation and various skin diseases.  The patients at higher risk of these infections include those with Malignancies, HIV/AIDs, Burns, Diabetes, Intravenous catheter, indewelling urinary catheter, surgery, trauma etc.  If the infection is caused due to unhygienic condition, as alleged by complainant, the same infection could have been caused to other patients.  In this context further submits no such abnormality occurred to other patients on the same day or prior or afterwards.  A strict protocol was adopted during the process of massage to complainant and other patients without such protocol no process shall be initiated.  In this behalf the treatment given to the list of patients who visited the OP clinic from 25.06.2017 to 05.07.2017 for varieties of service provided and their feedback recorded in the relevant register.  In this context we placed the reliance on the document No.6 with list dated 09.11.2017 wherein the feedback of the patients goes to show the good opinion in respect of the OP clinic and nobody have complained with regard to the deficiency of service on the part of OP hospital.  In this context we found the considerable force in the contention taken by the OP.  Further the OP has taken another contention stating that none of the doctor opined that the said Folliculitis was an account of oil massage to the complainant.

8. The another interesting point which we did noticed that the complainant has taken further treatment by one of the doctor name called Dr.Laxman F Mavarkar, in Sakra World Hospital who issued the OPD chit on 03.07.2017.  We placed reliance on the said OPD chit dated 03.07.2017.  The said doctor noticed “painful red skin lesions over the extremities – 3 days, H/o oil massage 4 days ago H/o Azithramycin for 3 days”.  If 03.07.2017 (document No.4) is taken into consideration the oil massage was taken 4 days ago which was on 30.06.2017.  It is not the case of the complainant that he was taken the oil massage on 30.06.2017 in the OP Clinic.  So documents produced by the complainant dated 03.07.2017 goes against to his own case.  Hence, we come to the conclusion that, the complainant who has taken the treatment on 27.06.2017 at Apollo Hospital wherein the doctor has prescribed tablets for his ailing might have been allergic to him.  Further he might have also taken the same treatment i.e., oil massage on 30.06.2017 in the different oil massage centre other than the OP clinic might have been allergic to him.  In this context applying Res ipsa loquitur theory is not applicable to the contention taken by the complainant in the light of the decision reported in (2010) 5 SCC in the case of V.Kishan Rao v. Nikhil Super Speciality Hospital and another so also the literature produced by him.  Accordingly we answered point No.1 in negative.    

          9. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed devoid of any merits.  We direct both the parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 08^th day of May 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 23.12.2017.

Sri.Naveen Shirole.

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite party dated
  20.01.2018.

Smt.Reshma.

Documents produced by the Opposite party:

MEMBER                                                               PRESIDENT

Vln*