Per Hon'ble Justice A.P.Bhangale, President
1. By these appeals the appellants have questioned judgment and award dated 04/12/2018 passed by the Learned District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint no.292/2015. Nomenclature of parties is as appearing in the complaint proceedings. Brief facts are that complainant who is a practicing advocate and resident of Mumbai received information about preservation of umbilical cord by opponent no.1-M/s.Life Cell International Pvt. Ltd. during the pregnancy period of complainant's wife. Smt.Mayee -Marketing Executive of opponent no.1 told complainant that opponent no.1 is pioneer in Stem cells preservation business and the leading company in India for preservation of Umbilical cord. At that time complainant was also informed about other therapies and surgeries which opposite party no.1 conducts from said Smt.Mayee. She gave contact number of opponent no.2- Mr.Chetan Purshottam to the complainant. In the month of December 2012, complainant met opponent no.2 and at that time opponent no.2 represented to the complainant that his company is also conducting the process of PRP (Platilate Rich Plazma) Stem Cells Surgery and that he is Marketing Executive for such process to be conducted. Since the complainant had turned bald, he agreed to undergo PRP Stem Cells Surgery on the basis of representations made by Mr.Chetan Purshottam on behalf of M/s. Life Cell International Pvt.Ltd. The
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complainant was also represented by opponent no.2 that the company had treated 30000 patients and the process is approved by DCHI India, FDA and C Mark Uro. The complainant out of caution while talking on cell phone with Mr.Chetan Purshottam had tape recorded the conversations and transcription thereof was filed with the complaint. Complainant had believed the opponent no.2 on the basis of his representations made that opponents can do wonders with his bald head by implanting the heirs by surgical procedure as company had allegedly treated 30000 patients and tall claims were made in respect of PRP Stem Cells Surgery and about the progress made by the Company. The complainant was shown photographs of different patients to make him believe that the process would be successful. Opposite Party no.2-Mr.Chetan Purshottam misrepresented that the process involved was to draw blood from the body of complainant, processing the stem cells from blood taken into scalp of the complainant and there would be 100% success to implant hairs. The complainant was informed that this process would be completed in three sessions by drawing 30 ml blood from the body of the complainant and removing stem cells from the blood and then injecting the same on the scalp of the complainant and the complainant would undergo three sessions in certain hospitals associated with M/s. Life Cell International Pvt.Ltd. Complainant was informed that between two sessions 21 days gap would be required and thereafter hairs will appear on the scalp of complainant and in three sessions costing sum of Rs.60,000/- the company would succeed to implant hairs on the scalp of the complainant. When complainant had asked for written guarantee, opponent no.2 represented that opponent no.1- M/s.Life Cell International Pvt. Ltd. is a leading company and complainant must trust for success of the PRP Stem Cells Surgery including process of hair plants on the scalp of the complainant. Complainant then accordingly paid total sum of Rs.60,000/- by way of three cheques, one cheque of Rs.20,000/- was misplaced by M/s. Life Cell International Pvt.Ltd. Therefore, third cheque dated 01/08/2013 for sum of Rs.19,525/- was again given after deducting the expenses incurred by the complainant as agreed by OP No.2. Thus, despite the fact that payment was
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made as demanded by the opponent nos.1 & 2, the complainant actively underwent the surgery sessions done by opponent no.3-Dr.Madhuri Agarwal and opponent no.4-Dr.Satish Kishoranand Arolkar on behalf of M/s.Life Cell International Pvt.Ltd. the hairs did not grow on the scalp of complainant. The doctor concerned i.e. Dr.Madhuri Agarwal-opponent no.3 had conducted first session drawing 14 ml blood only from the body of complainant saying that it happened for want of elastic band according to her and then she had injected about 100 times on the scalp of complainant, which was painful process. After the first session though three weeks had expired, but hairs did not appear on the scalp of complainant, though complainant was informed that after second session hairs would appear on the scalp of complainant. The second session was conducted on 29/07/2013 by another Dr.Satish Arolkar in the operation theatre. Even after second session there was no expected success result. Complainant had suffered due to number of injections in the scalp and there was pain and bleeding for about a week from the scalp of complainant. Then on 27/08/2013, there was third and last session conducted by opponent no.4- Dr.Satish Arolkar. According to complainant, no ointment was administered on the scalp of complainant. Thereafter, at the instance of Mr.Chetan Purshottam, the assured process was suggested to some friends of the complainant and one Mr.Ajit Puri had also agreed to undergo the treatment.
2. Later on when no hairs appeared on the scalp of complainant at all despite waiting for the success assured by the opponents, complainant smelt a rat when opponent no.2 tried to avoid his phone calls. According to complainant therefore, he was misrepresented and cheated by opponent no.2 to 4 jointly and severally acting in connivance with each other. He therefore had lodged a police complaint on 16/05/2014 at Kandivali Police Station but since police did not act upon the complaint, complainant had collected the information as to whether opponents were having necessary approval from the FDA and DCGI (Director General of Health Service, FDA Bhawan, New Delhi). FDA Department of Maharashtra Government informed the complainant about PRP
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license. No license was issued to opponent no.1 and only license issued to opponent no.1- M/s.Life Cell International Pvt. Ltd. was to preserve umbilical cord. This clearly indicated to the complainant that opponents were acting together in connivance with each other played with emotions of the complainant to knock out money from him, who not only suffered physically but mentally also and remained indoor in his house for about two weeks due to pain and suffering and due to spurious and unfair medical trade practice adopted by the opponents, which was clearly prohibited under the Drugs & Cosmetics Act 1940 and Rules framed there under. Therefore complainant had filed complaint to recover sum of Rs.59,525/- paid to the opponents as also compensation in the sum of Rs.19,59,525/- together with interest.
3. According to complainant, opponent no.1 has its registered Head Office in Tamilnadu, which gives service of keeping umbilical cord and stem cells in preservation and business of sale of medical kits and devices. Opponent no.2 working as a representative of the company is serving at present as Deputy General Manager for Cellular Therapy division. Thus, it is case of the complainant that opponent no.1 in connivance with opponent nos.2, 3 & 4 on behalf of opponent no.1 indulged into unfair medical trade practice without requisite licence and cheated the complainant depriving him of not only amount of Rs.59,525/- but also caused external pains, mental and physical trauma to the complainant upon false representations that hairs would grow on the scalp of the complainant, if he undergo a process of hair implantation on his scalp in three sessions as assured by Opposite Party no.2.
4. It is further case of complainant that opponents had no license to draw the blood from the body of complainant and to process the blood samples by separating stem cells from the blood so as to use it on the scalp of complainant for to implant hairs on his scalp. Opponent no.3-Dr.Madhuri Agarwal is Dermatologist and Cosmetologist with educational degree as M.D. from Sion Hospital and Mumbai University professing that she had headed 35 clinics and associated with 60 Dermatologists and that she was elected as India's Most
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admired beauty expert. However, Dr.Madhuri Agarwal had no authority or licence to draw the blood and to process blood sample by separating stem cells from the blood so as to implant the hairs upon scalp of complainant nor opponent no.4-Dr.Satish Arolkar had any such authority to treat the complainant for drawing blood from his body and processing and separating the stem cells from the blood. It is under these circumstances, according to complainant the misrepresentations were made and fraud was committed upon complainant by or on behalf of opponents by suppressing the true material facts that the opponents had no such authority or license in the modern technique of implanting hairs on the scalp of the complainant by surgical method such as, drawing blood and separating stem cells from the blood and implanting the stem cells upon the scalp of the complainant. Complainant had made an enquiry under Right to Information Act and he came to know that M/s.Life Cell International Pvt.Ltd. had only license to import the devices into India but had no authority to carry out surgical process of PRP stated as above nor Dr.Madhuri Agarwal and Dr.Satish Arolkar had any such license to carry out the surgical process by removing the blood from the body of complainant, processing thereof and separating the stem cells from the blood. It is under these facts and circumstances, that the complaint was partly allowed and the opponents were declared as deficient in service and also for the reasons that they had indulged into unfair trade practice and were directed to refund sum of Rs.59,525/- by 31/01/2019 or to pay interest w.e.f. 01/02/2019 @ 15% p.a. and sum of Rs.10 lakhs was awarded for mental and physical sufferings of the complainant to be paid by 31/01/2019, failing which, the amount to carry interest @ 10% p.a. with costs of complaint was allowed in the sum of Rs.10,000/-.
5. Our attention is invited to Rule 122-G (i) framed under the Drugs and Cosmetics Act for drawing the blood from the blood bank, medical officer needs to be recognized by the Government for to be qualified as holding Diploma or degree in Medical Laboratory Technology (M.L.T.) with minimum six months experience or more for testing the blood or its components or for banking the
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same. Medical Laboratory need to be duly licensed for collecting and processing the human blood for storage, testing etc. of it's components under personal supervision of post graduate degree in Medicine in Pathology or experienced degree holder as M.B.B.S. Here in the present case, we find that same Doctor was acting in different capacities to draw, process the blood, in process to remove platelets. The Doctors treating the complainant never insisted upon fitness Certificate of the patient before surgery to draw his blood from the scalp of the complainant. Contravention of law was by opponent no.2 operating brazenly with active assistance of opponent no.3 and 4 who were Doctors without holding requisite necessary educational qualification and experience within meaning of rules framed under the Drugs and Cosmetics Act for to draw and process the blood so as to implant stem cells upon bald head of complainant.
6. It is submitted on behalf of complainant that Hair transplant surgery to grow hair on bald head is really not a viable option to have hair growth. Hair plant surgery has to be performed by a qualified experienced surgeons and licensed professionals. In any surgical intervention bleeding, infection may occur associated with swelling of scalp, itching, nerve damage, formation of crust in area wherefrom hairs are removed or implanted.
7. The facts revealed that Mr.Sushil Gaglani an Advocate by profession in Mumbai had approached Shri Chetan Purshottam of Life Cell International Pvt. Ltd. at Mumbai for preservation of umbilical cord during pregnancy of his wife. The complainant believed that the Company is premium Company to preserve stem cells. OP no.2 had misrepresented that he is Marketing Executive for cellular therapy of Platelet Reach Plasma (PRP). He had assured the complainant of regrowth of hairs on scalp by PRP stem cells Surgery and also led the complainant to believe that regrowth of hairs is possible by the surgical procedure and also misrepresented that the opposite party nos.3 & 4 are competent and experienced doctors having carried surgery over thirty thousand patients, representing further that the process has approval of DCGI India, FDA
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& C Mark Euro. What was required before the treatment of the complainant apart from the qualifications of doctors treating the patient was that they must have been armed with declaration from the Government that they were practicing in specialized modern scientific medical treatment of surgical intervention of the scalp so as to grow hairs thereon in bald areas as per prevalent rules framed under the Drugs and Cosmetics Act. M/s.Life Cell International Pvt.Ltd. also had no such license from the Government to engage doctors like OP no.2 and 3 for carrying out modern scientific treatment for implanting hair growth on bald head. The process carried out was clearly an unfair medical trade practice on the part of opposite parties without any specialized experience and license were motivated only by knocking out financial gains from the complainant to the tune of Rs.60,000/- approximately. The complainant suffered monetarily, physically and mentally too.
8. We have heard submissions in detail advanced on behalf of appellants/ opponents as well as respondent/original complainant, regarding the quantum of compensation. In our view, it has to be just and reasonable amount, which may be justified in the facts and circumstances though complainant was apparently deceived and misled to undergo the medical treatment of hair implantation on his scalp by surgical methods and in the result, suffered physically as well as mentally as no success was achieved by the treatment which he underwent. With due sympathies for the complainant, we do feel that the amount of compensation awarded to the tune of Rs.10 lakhs may amount to undue enrichment for the complainant when he had spent sum of Rs.59,525/- only for to undergo the entire process. Under these circumstances, in our opinion, maximum compensation which could have been granted for mental and physical pains and sufferings which complainant underwent, in our view, not exceeding 10 times of the amount incurred as expenses i.e. sum of Rs.6,00,000/- (Rupees six lakhs only) would be just, reasonable and exemplary compensation, which would also have deterrent effect upon the likeminded professionals acting without requisite licenses who ventured into process of modern scientific treatment, such as, hair
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implantation on the scalp by use of surgical method without any requisite license or authority to conduct such procedure. We have found that none of the opponents had authority or licence according to law to conduct the assured procedure of hair implantation by surgical method. That being so, compensation which must be exemplary ought to be granted. In our considered opinion, therefore, sum of Rs.6,00,000/- along with refund of the amount spent by the complainant Rs.59,525/- together with interest @ 10% p.a. from the date of complaint until realization would be just and reasonable compensation with adequate deterrence and example set for like minded professionals operating unlawfully without requisite licenses.
9. Accordingly, we modify the impugned order by partly allowing the appeals and pass the following order:-
ORDER
a) Consumer complaint no.CC/15/292 is partly allowed on the ground that opponent nos.1 to 4 indulged into unfair medical trade practice as also were responsible in connivance with each other for deficiency in service.
b) Opponent nos.1 to 4 jointly and severally are liable to refund sum of Rs.59,525/- together with sum of Rs.6,00,000/- (Rupees six lakhs only). The said amount is payable with interest @ 10% p.a. from the date of filing of complaint i.e.21/10/2015 untill realization together with costs of litigation in the sum of Rs.10,000/- for the complaint proceedings.
c) Sum of Rs.10,000/- is granted in addition for appeal proceedings to be payable by opponents to complainant.
d) If this entire amount is not paid within three months, all outstanding dues shall carry interest @ 12% p.a. from the date of the complaint till realization. Pronounced on 17th March 2020.
[Justice A.P.Bhangale]
President
[Usha S.Thakare]
Judicial Member