Varghese Silvester Shantisadan vs Archana Dhawan Nurture Clinic

THE Complainant, Mr. Varghese Silvester filed the present complaint claiming for more than Rs. 1,00,00,000/ - as compensation from the opposite party Dr. Archana Dhawan of Nurture IVF Clinic, New Delhi. The Complainant approached the Dr. Archana Dhawan (OP) for fertility treatment (IVF), as a biological father with the donor egg from a Caucasian donor at a cost of Rs. 1,20,00,000/ -. He approached OP -1 through one Mr. Rajesh. The donor profile was approved by Mr. Ashish and the assurance of services was given by Mr. Bajaj, the Head of Administration. Mr. Bajaj introduced the Complainant to Mr. Sonu, a surrogate agent at Ghaziabad who provides services to the clinic.

THE Complainant was offered surrogate services at the cost of Rs. 3,50,000/ - on installments. The Complainant alleged that the OP did not explain him about the details and the estimate cost of total treatment. The OP was very casual, hence the first two cycles, out of three, failed. Mr. Sonu could not bring the surrogacy, named Pinky in time when the test was conducted as per the advice of the doctor. The two lab reports of Pinki showed different ages like 25 yrs and 29 yrs, which created doubt in complainant''s mind. Therefore, such casual approach was the reason for the negative result of the first IVF cycle. The OP did not produce clinical details, medical records and consent forms despite several visits. The OP made him to wait at her clinic for long hours unnecessarily. Hence, the Complainant, suffered lot of emotional stress and mental agony. The Sonu Surrogacy Agency took the cash but did not issue any receipt. Thereafter, 2nd surrogate named Geethu John was preferred, and for her the OP prescribed medication and ultrasound scanning. Those medications and ultrasound have several side effects. Some of them are life threatening. Hence, the Recipient (surrogate -Geetu John) had to suffer a lot due to wrong advice and instructions given by the OP. The clinic, neither issued any required documents before the Embryo Transfer, nor provided the supporting documents to prove that the services of OP were genuine. The Complainant also alleged that, he was being followed and watched (spied) ever since he became a patron of the clinic. Therefore, he suffered immense mental constraints and prayed for claims, which are reproduced as follows: 1). Relief granted to the Complainant as demanded here in.

2). That such order be passed as the Hon''ble Consumer Forum may deem fit in the circumstances of the case.

3). That my personal information and that of My Recipient be kept private, to avoid any cause of defamation, as we are already under heavy mental agony due to miscarriage.

4). That the OP be restricted in obtaining any further information on us. It is irrelevant as the Service is claimed to be provided already.

5). That in the case of an accident occurring to me, be it considered unnatural as I strongly believe that I am being followed and spied. My self -addressed emails to varghesesilvester@gmail.com should be the place to look for.

As the plea raised by him only depicts that he has spent Rs. 2.5 lacs only, prima facie, it appears that this Commission has no jurisdiction. On 16.12.2013, we have heard the Complainant, in person. We have given him an opportunity to give the detailed break -up of his claim/prayer. Also, ordered the complainant to furnish the details of the recipient by the next date of hearing. Upon which, the Complainant filed revised complaint and submitted the breakup of his prayer on page 42, reproduced below as: Proper Break up of the Complaint:

A compensation of Rs. 5,96,00,000 (Rs. 5.96 crores) is claimed by the Recipient (of the embryos). The amount is calculated based on the verdict by Supreme Court (dated 24 -10 -13) in the case of Dr. Kunal Saha vs. AMRI Hospital, Kolkata (quoted THE HINDU, 25 -10 -13).

I claim a compensation of Rs. 1,00,00,001 (One crore and one) for myself, for the mental agony I had to suffer during the long period of the treatment and for the opportunity cost during this period. I am a diploma holder in Photoshop and Animation. I have invested the money that I planned to improve my career (of advanced Animation).

The clinic has not given me the case sheet; hence, I am not able to know my fertility condition. If I am developing a condition of infertility, the treatment time to cure the condition might have gone past due to the delay in providing me the case sheet.

The combined claim of Me and the Recipient is Rs. 6,96,00,001 (Six Crore Ninety Six Lakh and One).

THE complainant also filed an additional complaint of recipient Smt. Geethu John, as Complainant no. -2, the 2nd Recipient/Surrogate of the Embryos. According to her, she went to Nurture Clinic on 02.11.2013 on the advice of Mr. Varghese for embryo transfer by Dr. Archana. The date was postponed to 04.11.2013 without any proper information. Four embryos transfer was done on 04.11.2013, she was given treatment and medication. She was made to sign on a set of consent forms which she could hardly read it. The OP tried to put pressure on her by asking her details. The clinic is involved in unethical practices. She further stated that she was a student and had to sacrifice her studies. During treatment, she had to expose her modesty in front of atleast 4 individuals including 2 males, during the operation and during scanning Due to change of dates she missed her train reservation and was forced to travel by air at higher cost. Forgery of consent forms could be possible. Despite repeated requests, OP did not give the copy of forms. She suffered the side effects of medication. She is 22 years of age and having two female children, therefore, her demise and ill health could affect normal life of her children. Hence, prayed for an amount of Rs. 5.96 crores as compensation.

THE allegations of both the complainants are involved about, the Forged Consent forms, unnecessary medication. The claim is also imaginary without any basis. It is vague and evasive in nature. The complainants are trying their luck in a happy go lucky manner. It should be borne in mind that the Consumer Courts are not a Lottery Centre or a game of Russian roulette. Such prayer for huge compensation needs a lot of oral evidence and scrutiny of alleged forged documents. The proceedings before Consumer Fora are of summary in nature, hence we refrain ourselves to admit this complaint. Similar view dovetails from the recent judgment of this commission in CC No. 76 of 2014 on 16.05.2014, in Kumari Sangita Tukaramji Rokde vs. Union of India and Ors., the Complainant prayed for compensation of Rs. 500 crores, wherein Hon''ble Mr. Justice J.M. Malik has made following observations: "For the meagre sum of about Rs. 500/ -, she is claiming Rs. 5.00 crores, as compensation. This Commission, under the Consumer Protection Act, 1986, is a summary court. The examination of witnesses and their cross -examination is not permissible as such. She has lodged report with the CBI. The offence of bribe is yet to be proved. This Commission under the Consumer Protection Act, 1986, does not deal with the cases of bribery and fraud. These entail a lot of evidence and proper investigation. The offence must stand proved in accordance with law. Although, the pleadings are quite impressive, yet, the facts are yet to be discussed down the ground. The consumer fora cannot arrogate to itself the powers of a CBI Court or a Court under the provisions of Prevention of Corruption Act, 1988. It is too early to give our piece at this stage in absence of solid and unflappable evidence. All these allegations cannot be proved through mere affidavits or interrogatories. It is pertinent to know that cross examination of the witnesses is the life/blood of our legal system. It is the only way, a Judge can decide whom to trust and an answer, during cross -examination, may wreck one''s case. It is painfully apparent that it is impossible to gauge the real issue. This Commission is unable to winnow truth from falsehood. This Commission can go into the subject, only skin deep. It cannot be said at this stage, at which way the wind will blow. "

The Hon''ble Supreme Court, has taken similar view in Synco Industries Vs. State Bank of Bikaner & Jaipur and Others, : (2002) 2 SCC 1, the Hon''ble Apex Court has held as under: - "3. Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil court. This is an appropriate claim for a civil court to decide and, obviously, was not filed before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees. This, in that sense, is an abuse of the process of the consumer forum".

IN Civil Appeal No. 9453 of 2013, Pesi Dady Shroff Vs. Boehringer Ingetheim Denmark & Anr., filed against this Commission''s order passed in Consumer Complaint No. 164, dated 10.07.2013, the Hon''ble Supreme Court was pleased to make the following observations: - "Leaving the question of law open, as to whether in such a fact situation, provisions of Consumer Protection Act, 1986, are applicable, it is open to the appellant to approach the Civil Court for the simple reason that for the purchase price of Rs. 4 -5 lakhs in 2003, he has claimed a sum of Rs. 73.35 crores. Such a claim can be adjudicated only after the assessment of evidence, etc., before the Civil Court and, therefore, it is a fit case where, even if the Consumer Protection Act, 1986, is applicable, the appellant must approach the Civil Court for appropriate relief.

With these observations, the civil appeal is disposed of".

ACCORDINGL Y , on the basis of foregoing discussion, we dismiss the complaint, with a liberty to the Complainant to approach Civil Court or proper Forum, where the pecuniary jurisdiction lies. Complainant can seek help for limitation, laid down in Laxmi Engineering Works vs. P.S.G. Industrial Institute : (1995) 3 SCC 583. No order as to costs.