MAYO HOSPITAL vs SUNIL TIWARI

BOTH these counter-appeals are filed against the order dated 15th July, 1997 passed by District Consumer Disputes Redressal Forum, Bhopal in their Case No. 184/94, wherein the Forum has directed the opposite party to pay to the complainant Rs. 20,000/- as compensation and Rs. 1000/- as proceeding expenses and to refund Rs. 1700/- alongwith interest @ 18% per annum for deficiency in service.

HEARD the arguments of both the parties and perused the records of the case. The undisputed facts of the case are as under: (i) That Smt. Manju Tiwari aged 26 years having pregnancy of six weeks was examined by the appellant (in appeal case No. 507/97) Dr. Smt. Viraj Sharma Jaiswal at Mayo Hospital, Bhopal on 3.2.94. (ii) That on 26.2.94 corean Biapsy sample for sex-determination was taken out of the womb of Smt. Manju Tiwari, complainant''s wife Dr. Smt. Viraj Sharma Jaiswal at Mayo Hospital, Bhopal for which Dr. charged Rs. 1200/- and issued a receipt to the effect that she received Rs. 1200/- from Mrs. Manju Tiwari W/o Shri Sunil Tiwari for Corean Biapsy. (iii) That due to delay in transit the said sample got spoiled and was not worth testing. It reached laboratory two days later i.e. 28.2.94. (iv) That the corean biapsy test was repeated on 3.3.94 by Dr. Viraj Sharma Jaiswal at Mayo Hospital on Smt. Manju Tiwari. (v) But this time also the sample reached the concerned laboratory on 7.3.94 i.e. on four days later and again got spoiled and was not worth testing. (vi) That there was no facility in Bhopal for corean biapsy test. (vii) That both the times the sample was sent to Yash Laboratory, Indore. (viii) That it is for this deficiency of service on the part of Dr. Viraj Sharma Jaiswal that the District Forum has passed the order which has been challenged.

The arguments of the appellant (in Case No. 507/97 i.e. of Mayo Hospital through Dr. Smt. Viraj Sharma Jaiswal are as under: (i) That the impunged order is based on conjectures and surmises and the findings are vague, ambiguous, erroneous and without any basis. (ii) That Shri Sunil Tiwari is not their consumer. Smt. Manju Tiwari alleged to be wife of Shri Sunil Tiwar did not file the complaint nor filed any affidavits. (iii) That Mayo Hospital has filed complaint against Madhur Courier which is registered in District Forum as complaint No. 343/95 and hence Madhur Courier should have been made a party to the proceedings for correct adjudication of the dispute.

THE appellant in Case No. 519/97 Shri Sunil Tiwari has requested only tor enhancement of compensation to Rs. 1 lac. The appellant Mayo Hospital has not stated as to how the order of the District Forumis vague, ambiguous, erroneous and without any basis. So far as this argument is concerned, that Shri Sunil Tiwari was not their consumer, it is clarified here that according to the definition of word "Consumer" includes any beneficiary of such services other than who hires or avails of services for consideration. A husband is essentially as much a beneficiary as his wife, in corean biapsy test for determination of sex of foetus inside the womb of his wife, and it does not matter who filed the complaint. Similarly, if the husband is well aware of sequence of events, it does not matter as to who filed the affidavit, husband or wife. The third argument of Mayo Hospital that Madhur Courier has not been made a party is also of no avail because the complainant had no contract or agreement with Madhur Courier.

THE argument of Dr. Viraj in her reply and also in affidavit that she did not charge any fee for second test is also untenable, because she issued a receipt for Rs. 500/on the very day she took corean biapsy test i.e. on 3.3.94, though she did not mention this time in the receipt as to what for she charged this amount. Since nothing but corean biapsy test was done on 3.3.94, the natural presumption will be that Rs. 500/- were charged only for corean biopsy test. Whenever a sample is taken for any test and charges for test are collected, it is implied that the delivery of test report will be completion of "Service", hired for charges paid. Without delivery of test report, "Service" will not be treated as completed or performed fully. It was bounden duty of Mayo Hospital through Dr. Viraj Sharma Jaiswal to ensure transportation of sample as per directions contained in guidelines for transportation as reproduced by District Forum in Para 9 of their order, which the appellant Mayo Hospital failed to do not only once but twice. Not only transportation, but securing of test report from any laboratory wherever they sent the sample was also their responsibility. But Mayo Hospital through Dr. Viraj Sharma Jaiswal neither bothered to transport the sample as per guidelines nor ever bothered to find out after expiry of six hours whether the sample reached the laboratory or not, what to say, of obtaining test report, whereas she had charged fees. for complete service of delivery of test report. Once the sample taken on 26.2.94 had been spoiled, it was her moral duty not to charge for corean biopsy test again on 3.3.94, but she did charge. And still she did not take due precautions for transportation as per guidelines. On the other hand she sent the sample like any life less material or packet in ordinary course.

THIS is not only deficiency in service but gross negligence of inhuman nature when committed second time.

AS such, we do not find any reason to interfere with the order of the District Forum and dismiss the appeal No. 507/97 of Mayo Hospital through Dr. Viraj Sharma Jaiswal. The appellant Mayo Hospital through Dr. Viraj Sharma Jaiswal shall pay Rs. 2000/- as costs to the respondent Sunil Tiwari. The appeal No. 519/97 of Sunil Tiwari. is also dismissed, as we do not find any justification to enhance the amount of compensation. No order as to costs in case of this appeal No. 519/ 97. Appeals dismissed. _____________