V S Malik vs Avik Mukherjee

THIS revision petition has been filed by Dr. V.S. Malik (hereinafter referred to as the ''Petitioner'') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi in Appeal No. 315/2007 wherein Avik Mukherjee and another were Respondents.

IN his complaint before the District Forum, Respondent/Complainant contended that he had hired the services of Petitioner/doctor for hair transplant surgery in August, 2004 for which he paid Rs. 10,000 in advance and a balance of Rs. 30,000 through bankers'' cheque on August 8, 2004. Although he was assured that the entire procedure would be completed in one mega sitting on 29.8.2004, this did not happen due to failure of second part of the procedure. As a result one part of the Respondent''s head could not be covered by the hair transplant and he had to pay a further amount of Rs. 5,000 for a micro weft to cover this portion. Even the micro weft was found to be cheap and ill-fitting and, therefore, Respondent refused to accept the same and sought a refund of Rs. 5,000 which was declined. When the stitches on part of the procedure which had been completed was removed on 8.9.2004, it was found to be unsatisfactory and, therefore, respondent asked the Petitioner to refund the unspent amount of the total payment paid by him which the Petitioner promised to do but till date it he has not done so. Aggrieved by this, Respondent filed a complaint before the District Forum on grounds of deficiency in service and unfair trade practice and requested that Petitioner/doctor be directed to pay him Rs. 45,000 @ 18% interest from the date of payment and Rs. 10 lakh as compensation for the physical trauma and mental torture undergone by him for the failed operation which has left a permanent scar on his head.

THE above contentions were denied by the Petitioner who contended that the procedure was being successfully undertaken but it was the Respondent who did not want to continue and requested to postpone it for the next day. Thereafter, Respondent did not turn up for the remaining procedure of the hair transplant. Regarding the micro weft, Petitioner contended that it was got prepared from an expert and there was no deficiency in the same.

THE District Forum after hearing both parties and considering the evidence on record allowed the complaint by observing as follows: "The procedure of transplanting the hair had not been completed as admitted by both the parties. When this procedure had not been completed and if, as per OP-1, the complainant did not turn up for the completion of the procedure on the next day, where was the need for the micro weft. Still a sum of Rs. 5,000 was taken by OP-1 from the complainant on account of micro weft on 3.9.2004. Even this micro weft was found to be unfit by the complainant and was rejected by him. Despite this rejection OP-1 proceeded to encash the cheque on 10.9.2004. In the facts and circumstances of the case it appears to us that the complainant had sensed the futility of undergoing the procedure. When the procedure of transplanting the hair was not completed successfully, the OP-1 was not entitled to retain the fee paid and also to ask for the price of a micro weft. Taking into consideration the totality of the circumstances, we hold OP-1 guilty of deficiency in service. As to OP-2, she has been served only through OP-1. She was only hired by OP-1 and there is not a direct privity of contract between the complainant and OP-2. Therefore, it is only OP-1 who is responsible for the deficiency in service committed. We direct OP-1 to refund to the complainant a total sum of Rs. 45,000 received by him from the complainant. The complainant had to undergo the scalp reduction procedure and also had to suffer the trauma of pain while undergoing the incomplete procedure of hair transplant. Keeping in view this fact we direct OP-1 to pay to the complainant a compensation of Rs. 15,000. The OP-1 shall also pay Rs. 3,000 as cost of litigation. The OP-1 is directed to comply with the order within one month of its receipt."

AGGRIEVED by this order, Petitioner filed an appeal before the State Commission which dismissed the appeal by upholding the order of the District Forum.

HENCE, the present revision petition.

COUNSEL for Petitioner and Respondent in-person, made oral submissions. Counsel for Petitioner stated that due to circumstances beyond their control and not because of lack of any professional skill, it is a fact that the entire procedure for hair transplant surgery could not be completed in one day and, therefore, Respondent was asked to come on next day so that it could be completed. It was the Respondent who chose not to do so and did not cooperate thereafter. However, in order to settle the dispute, Petitioner is ready to pay due compensation to the Respondent as has been awarded by the Fora below. It was also pointed out that Rs. 45,000 has already been refunded to the Respondent as per the orders of the District Forum and 50% of the awarded amount has been deposited by the Petitioner before the State Commission.

RESPONDENT in-person stated that even though the learned Fora below had on the basis of credible evidence accepted his contentions, he was agreeable to the offer made by Counsel for Petitioner to settle the dispute by paying him the awarded amount. He, however, requested that interest may also be levied on the entire amount.

WE have heard learned Counsel for Petitioner and the Respondent in-person and have gone through the evidence on record. It is not in dispute that the procedure as promised could not be completed in one mega sitting because a part of it had to be temporarily postponed to the next day. However, it is also a fact that it was the Respondent who chose not to continue with the procedure and, therefore, it cannot be concluded that the entire procedure had failed because of any negligence or deficiency in service on the part of the Petitioners. We, therefore, do not agree with the Fora below that the Petitioners were guilty of medical negligence in this case and set aside this part of the impugned order. However, in view of the fact that the Counsel for Petitioner has offered to settle the dispute by paying Respondent the compensation awarded by the Fora below to which Respondent is also agreeable, we accept the same. However, we do not agree with the Respondent''s contention that payment of interest may also be made on the entire amount as the Respondent has not come in revision before us. To sum up, we direct that in addition to the amount of Rs. 45,000 already refunded to the Respondent by the Petitioner in terms of the order of the District Forum, Respondent be permitted to withdraw a sum of Rs. 15,000 i.e. compensation awarded by the Fora below plus Rs. 3,000 as litigation cost from the amount already deposited by the Petitioner with the State Commission with accrued interest thereon. This payment should be made to the Respondent through a bank draft within a period of one month. The revision petition is disposed of on the above terms. No costs. Revision Petition disposed of.