Surya Kant vs Brahmshakti Sanjivani Hospital

Dr. S. M. Kantikar, J

The petitioner/complainant has filed this revision petition under Section 21(b) of the Consumer Protection Act 1986 against the Order dated 14.03.2017 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, 'the State Commission') whereby the State Commission allowed the appeal of the opposite party/hospital and set aside the order dated 12.05.2016 passed by the District Consumer Disputes Redressal Forum, Jhajjar (for short, 'the District Forum').

The brief facts of the case are that the complainant, Surya Kant, suffered chest pain and got admitted in Brahm Shakti Sanjivani Hospital, Bahadurgarh - OP on 28.02.2015. He underwent angioplasty and one medicated stent was implanted during angioplasty. He was hospitalized till 2.3.2015. It is alleged that the hospital - OP charged Rs.2,30,000/-, for the angioplasty and cost of stent whereas as per the advertisement / offer published by the OP in the local newspaper, the complainant was required to pay only Rs.1,25,000/- for the angioplasty with a medicated stent. The complainant had paid Rs.1,05,000/- in excess to the OP. The complainant is also holder of a Medi-claim insurance policy from the National Insurance Company Ltd. for his family member having cover of Rs.2 lakh for the period of 17.06.2014 to 16.06.2015. For the alleged unfair trade practice, the complainant had filed a consumer complaint before the District Forum, Jhajjar against the hospital - OP and claimed the refund of excess amount alongwith interest and the compensation.

The OP filed the written version and resisted the complaint. According to the OP, the offer of angioplasty with medicated stent was for those patients, who make payment of Rs.1,25,000/- in cash. As the complainant gave his consent for the best quality of stent i.e. for 'Yukon Elite 2.75 x 24 mm @ 14 atm, which has a life time guarantee, extra amount of Rs.1,05,000/- was charged from the complainant. Hence, there was no unfair trade practice on behalf of the hospital - OP.

On the basis of pleadings and evidence, the District Forum vide its Order dated 12.05.2016 allowed the complaint and directed the OP to refund the excess amount i.e. Rs.1,05,000/- paid by the complainant with interest @ 9% per annum from the date of filing of the complaint i.e. 24.03.2015 till realization alongwith the cost of Rs.5500/- for litigation expenses.

Being aggrieved, the OP filed first appeal before the State Commission. The appeal was allowed by the State Commission vide Order dated 14.03.2017 and the Order of District Forum was set aside. Consequently, the complaint was dismissed. Against the impugned order, the complainant/petitioner filed this revision petition.

We have heard the petitioner, who was present in person and Mr. Sandeep Kapoor, learned counsel for the respondent. We have perused the medical record and various bills available on file. The complainant argued that as per the advertisement, the angioplasty with medicated stent was at a price of Rs.1,25,000/-, however, with mala fide intention, OP had obtained the consent of his wife for the stent having higher charges. Thus, it was an unfair trade practice on the part of Hospital.

The rival arguments on behalf of the OP are that the stent implanted was of the high quality and it was informed to the wife of the complainant, who gave consent for it. The 'Yukon Elite" stent, which was implanted, was of best quality medicated stent having lifetime guarantee. Therefore, there was no mala fide intention or unfair trade practice during the treatment of the patient. Moreover, the offer was available for cash payment basis only. This scheme was not applicable for emergency patients but it was for the planned/routine patients.

We have perused the record and given our thoughtful consideration to the arguments advanced by both the parties. On bare perusal of the advertisement, it is clear that the OP had advertised the offer as Rs.12,500/- for angiography procedure and Rs.1,25,000/- for angioplasty with medicated stent. The advertisement was in Hindi language.

"एंजियोग्राफी 12500

एंजियोप्लास्टी 1,25,000 एक मेडिकेटिड स्टेंट के साथ"

The above advertisement does not carry any detail that whether it is applicable for routine patients or the emergency patients; whether benefit is only for the cash payment customers. In the instant case, the complainant / patient was admitted in the hospital as an emergency case with chest pain. The ECG revealed Acute MI, therefore, the treating doctors advised for angioplasty. It is an admitted fact that the complainant's wife gave consent for the proposed charges towards procedure approximately amounting to Rs.2,40,000/-. She has opted for best quality stent having lifetime guarantee for her husband. The OP performed angioplasty using stent- Yukon Elite, which was priced at Rs. 1,12,000/-.

In our view, as per the record, 'Yukon Elite' stent, which the OP had implanted, was also a medicated stent. If we go by the plain words of the advertisement, any common / prudent person will be misled by such advertisement. As per the advertisement, it is clear that medicated stent will be used during the angioplasty. In our view, the OP had intentionally concealed the material information in the advertisement to avail the benefits of scheme. It is quite surprising that the Scheme was applicable for the routine or planned patients undergoing angiography / angioplasty. No one will approach the hospital as a routine investigation for angiography and opt for the procedure of angioplasty. But, commonly most of the cases approach the hospital in emergency cardiac problems and after investigations the decision of angioplasty ought to be taken. As contended by OP, the scheme was not applicable for emergency patients, is baseless and has no ground.

We have perused the bill details which clearly reveal that the cost of stent was Rs. 1,12,000/- and the cost of procedure was Rs.1,15,000/- whereas as per the advertisement / offer, the cost of angioplasty was Rs.1,25,000/- meaning thereby the cost of stent will be only Rs.10,000/-. It clearly transpires that the hospital routinely use stent costing to Rs.10,000/- whereas 'Yukon Elite stent' which they have implanted in the instant patient was for Rs.1,12,000/-, meaning thereby Rs.1,02,000/- in excess. There should be logic / some justification for such huge difference of charges between two stents. It is just exploitation of the innocent patient, having cardiac problems. In our considered view, this is a clear case of unfair trade practice adopted by the OP / Hospital.

The State Commission while adjudicating the appeal observed that the insurance company has not been impleaded as a party. However, we do not find any justification because the complainant is at liberty who may or may not approach the insurance company for his mediclaim. It is no way concerned with the OP's advertisement / Scheme.

On the basis of foregoing discussion, we set aside the Order dated 14.03.2017 passed by the State Commission and restore the order dated 12.05.2016 of the District Forum. It is the clear case of unfair trade practices adopted by OP through the misleading advertisement, therefore, in our considered view, a cost of Rs. 1 lakh on the respondent/hospital, is just and reasonable, out of said cost, Rs.50,000/- shall be paid to the complainant and the rest amount of Rs.50,000/- shall be deposited in the Consumer Legal Aid Account of the District Forum. OP is further directed to restrain from such misleading advertisement in future.

PER HON'BLE MR. DINESH SINGH

(i) The advertisement published by the hospital clearly stated that the cost of 'angiography' would be Rs.12,500/- and of 'angioplasty' 'with one medicated stent' Rs. 1,25,000/-. It nowhere stated that this was only for 'cash payment basis', or that medi-claim insurance policy holders were excluded, or that this was applicable only for 'planned / routine patients', or that 'emergency patients' were excluded, or that the cost of Rs.1,25,000/- was with any other than the best quality medicated stent available with the hospital.

(ii) The complainant went to the hospital with chest pain, in emergency conditions. Electrocardiography showed acute myocardial infarction. The treating doctors advised angioplasty. He opted for angioplasty with the best quality medicated stent available with the hospital, as would a normal and reasonable man suffering from cardiac problem in emergency conditions normally and reasonably opt for. The hospital imposed its conditions and additional costs after the complainant, attracted by its advertisement of reasonability of cost, went to the hospital in emergency conditions and was admitted in and was totally in the hands of the hospital and its treating doctors.

(iii) The so-called 'consent', taken from the complainant's wife, was in emergency conditions, in forced duress. It does not support the hospital's case, but, on the contrary, reflects on its highhandedness and arbitrary imposition of its conditions and additional costs after the complainant with a cardiac problem in emergency conditions was totally in the hands of the hospital and its treating doctors.

(iv) That the complainant had a medi-claim insurance policy was not germane to the question at hand. The policy was a separate contract between the complainant and the insurance company, governed by its own terms and conditions.

(v) The germane question was that the hospital attracted the complainant with its advertisement, and, after the complainant was totally in its and its treating doctors' hands with a cardiac problem in emergency conditions, imposed its conditions and additional costs highhandedly and arbitrarily at its end, and obtained so-called 'consent' from the complainant's wife in emergency conditions in forced duress.

(vi) All applicable salient terms and conditions, and including those relating to 'quality' of the medicated stent and 'excluded categories', were required to and should have been stated ab initio upfront in the advertisement, which was not done by the hospital.

(vii) The acts and conduct of the hospital were unfair and deceptive, an unfair trade practice within the meaning of Section 2(1)(r) of the Act 1986.

(viii) We have no hesitation in setting aside the State Commission's Order dated 14.03.2017 and affirming and sustaining the District Forum's Order dated 12.05.2016.

(ix) We also find it just and appropriate to impose in addition a cost of Rs.1 lakh for the unfair trade practice, of which Rs.50,000/- shall be paid by the hospital to the complainant and Rs.50,000/- shall be deposited by the hospital with the Consumer Legal Aid Account of the District Forum within four weeks of this Order.

(x) The hospital is also directed to discontinue its deceptive advertisement / s with immediate effect and submit a report - in - compliance to the District Forum under the signatures of its chief executive within four weeks of this Order.

The revision petition is allowed with directions as above.