V.K. Gupta, Member(Judicial):
1. This appeal by the appellant/OP of complaint case No.846/2006 is directed against the order dated 21.01.2009 passed by District Forum(New Delhi), directing the appellant to refund Rs.3300/- as fee, Rs.30,000/- as compensation and Rs.5000/- as litigation charges.
2. In nut-shell the brief facts are that on 08.06.2006 a baby was born and the doctors directed the complainant for specific tests to ascertain the genitalai of the baby. The doctor further suggested following case.
(i) Sodium, serum
(ii) Potassium, serum
(iii) Buccal simear/Barr Bodie
(iv) Chromosome (Karyctype)
3. The baby was borne at Ram Chand Memorial Nursing Home, which advised that the tests to be conducted by the appellant/OP. Consequently on 09.06.2006 the baby was taken to the laboratory of the appellant for aforesaid tests which charged Rs.3300/-. Respondent/complainant was asking for the report and every time it was directed that the report will be given on 29.06.2006. On this date the respondent/complainant went to take the report but without disclosing any reason the date for collecting report was extended to 03.07.2006. On this the complainant went for collecting the report, but he was asked to come again. However on 17.07.2006 the complainant further made attempt to obtain the report, but it was not given and it was told that the samples were not having the strength of their original nature and as such result could not be yielded and further it was disclosed that the samples were preserved properly in the laboratory of the appellant. The complainant claimed refund of Rs.3300/-, Rs.4,90,000/- as compensation for mental agony and harassment.
4. The appellant/OP filed written statement and denied the allegations. It contended that the complainant approached the appellant for aforesaid tests, and blood was obtained on 09.06.2006 and cash receipt No.2474305 dated 09.06.2006 was issued after taking Rs.3300/- as the charges. The complainant was given report of Chromosome and the said date was also mentioned in receipt. The appellant/OP is accredited by NABL and CAP with ISO certification and all tests are conducted as per strict quality control protocol laid down by the accrediting bodies. For chromosome analysis cells from blood have to be cultured as first step towards performing detailed analysis, and within a cell the nucleus contains chromosomes, which carry genetic material. In human there are 46 chromosomes, 22 pairs of autosomes and 1 pair of sex chromosomes. In the female there are 2 X chromosomes whereas in male 1X and 1Y chromosomes. To analysis for numerical and structural abnormalities, cells from blood are first grown in culture medium. In case of the complainant there was a culture failure therefore analysis for chromosomes was not possible accordingly a report dated 24.06.2006 stating âUnsuccessful culture. Kindly send repeat sampleâ, was prepared and sent to Punjabi Bagh Centre. The complainant collected the said report from the Centre. The allegation of the complainant that the OP did not preserve blood sample property because of which it got putrefied and test could not be perform to know sex of the child is wrong. Further the complainant is not consumer within the meaning of section 2(1)(d) of the Consumer Protection Act 1986.
5. District Forum vide order dated 21.01.2009 has directed the appellant/OP to refund Rs.3300/-, Rs.30000/- as compensation and Rs.5000/- as litigation charges.
6. Being aggrieved by the aforesaid order, the appellant/OP has preferred this appeal.
7. We have heard Sh. Varun Shankar, counsel for the appellant and Sh. M.S. Bhatti, Counsel for the respondent in this appeal.
8. At the outset it would be relevant to mention that in this case some of the facts are admitted to both the parties. It is admitted to the parties that a baby was born on 08.06.2006 and doctors asked for various tests mentioned in Para No.3 of the complaint, blood was collected on 09.06.2006. It is also admitted that respondent paid Rs.3300/- to the appellant for conducting tests and receipt No.2474305 dated 09.06.2006 was issued. It is also admitted that the report was to be collected by the complainant on 29.06.2006.
9. At the outset it was also argued by the counsel for the appellant that the respondent is not a consumer within the meaning of Section 2(1)(d) of the Act and has also placed reliance on a decision of Honble High Court of Madras in WP No.19140/2002 dated 07.10.2003 in the Secretary, Board of Matriculation Examination Vs SRC Bhandari and Ors. On the other hand it is argued by the counsel for the respondent/complainant that certain tests are to be conducted by the appellant/OP of the new born baby and the blood was given on 08.06.2006 and an amount of Rs.3300/- was paid to the appellant and receipt was issued. Both the parties have admitted that the appellant received Rs.3300/- for various tests as fee and receipt was issued. Obviously the complainant is a consumer within the meaning of section 2(1)(d) of the Act.
10. So far the decision of Honble Madras High Court in Secretary (Supra) is concerned, the controversy before the Honble High Court was that whether a student appearing for matriculation examination is a consumer or not. It was not the case before the Honble High Court that a patient who has paid certain amount for various medical tests is a consumer or not. Apparently the facts before Honble High Court were quite different with those before us, therefore the law laid down in the aforesaid case is not applicable to the facts and circumstances of the case before us.
11. Only controversy that remain before us is whether appellant made all the obligations that were required to be done by him, for result of the tests, sample was taken for the tests on prescribe fees and whether there was any deficiency in service. It is admitted case of the parties that initial date for collection of report was 29.06.2006. The appellant has filed report which is paper 69, which goes to show it dated 24.06.2006 and it is âUnsuccessful culture. Kindly send a repeat sampleâ. According to the arguments advances by the counsel for the appellant the sample has not been given therefore report was not given.
12. It is contended by the appellant/OP that it sent the report on 24.06.2006 to Punjabi Bagh Centre of their laboratory. This argument is devoid of all force as no document has been filed whether in fact this report is sent on 24.06.2006 to Punjabi Bagh Centre, when it was to be delivered on 29.06.2006, when the complainant has to come to collect the said report. It is in the evidence of the complainant that he visited the appellant/OP many times but the report was not given and even it was not pointed out at any stage that the culture remained unsuccessful, therefore second sample is to be given. Till 17.07.2006 no letter was sent nor any information was given to the complainant for second sample was given. It was incumbent on the part of the appellant to preserve the blood sample properly and to conduct tests on time and make available the required tests required by the complainant. It is matter of common observance that at the time of payment of fees for such tests at the laboratory of the appellant, phone number of customer are recorded by the laboratory on their record, so that the customer can be informed accordingly. This was also not done. The chromosomes of the baby could not be made by the appellant/OP on account of sheer negligence in properly keeping the blood in the laboratory and negative result i.e. unsuccessful culture came out.
13. We are in complete agreement with the finding of the District Forum that there is deficiency on the part of the appellant in this regard.
14. The District Forum has also awarded compensation of Rs.30000/- for mental agony and sheer suffering. The assessment of compensation is without any reason, and it is highly excessive in the facts and circumstances of the case, therefore we inclined to reduce this amount to Rs.10,000/-, but there shall be no modification in respect to the amount of litigation charge of Rs.5,000/-.
15. Under these circumstances the appeal is partly allowed and the order dated 21.01.2009 is modified to the extent that appellant/OP will refund Rs.3300/- towards charges for tests, Rs.10,000/- as compensation and Rs.5,000/- as litigation charges.
16. A copy of this order be provided to the parties as per rule, whereas a copy of this order be sent to District Forum(New Delhi) to place it on original record of complaint case No.846/2006 and for compliance. The file be consigned thereafter to Record room.