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Sumati Choraria & Another v/s M/s. Life Cell International (P) Ltd.


Company & Directors' Information:- O LIFE PRIVATE LIMITED [Active] CIN = U52399PN2013PTC146147

Company & Directors' Information:- L T INTERNATIONAL LIMITED [Active] CIN = U74899DL1999PLC097892

Company & Directors' Information:- A. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U51102GJ2008PTC053840

Company & Directors' Information:- T. INTERNATIONAL PRIVATE LIMITED [Active] CIN = U72900DL1997PTC091049

Company & Directors' Information:- A M INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC066228

Company & Directors' Information:- C & A INTERNATIONAL PRIVATE LIMITED [Strike Off] CIN = U51900MH1982PTC026718

    First Appeal No. A/655/2017

    Decided On, 26 April 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Sadhana Raw, Advocate. For the Respondent: Barun Prasad, Advocate.



Judgment Text

Ishan Chandra Das, President

This judgment governs the fate of both the appeals being A/653/2017 and A/655/2017. Both the appeals have been directed against a common judgment and order no. 18 dated 11-05-2017 passed by Ld. DCDRF, Kolkata Unit-II in CC/464/2016 where in A/653/2017 the OP, M/s Life Cell International (P) Ltd. questioned the propriety of the judgment and order passed by Ld. DCDRF dated 11-05-2017 on the strength of the petition of complaint filed by the complainants, Sumati Choraria and Prakash Choraria in CC/464/2016 and prayed for setting aside the order impugned, whereas in A/655/2017 the complainants of CC/464/2016 prayed for enhancement of the amount of compensation awarded by the order impugned. The case of the complainants of CC/464/2016 (appellant of A/655/2017 and the respondent of A/653/2016 and hereinafter referred to as the complainants) filed the complaint case against the OP/M/s Life Cell International (P) Ltd. claiming compensation of a sum of Rs. 35,69,990/- (Rupees thirty five lakh sixty nine thousand nine hundred ninety) along with other consequential reliefs which was duly contested by the OP by filing a written version. The complaint case was disposed of by Ld. DCDRF on 11-05-2017 by allowing the same on contest against the OP who was directed to pay an amount of Rs. 14,990/- (Rupees fourteen thousand nine hundred ninety) to the complainants and a sum of Rs. 10,000/- (Rupees ten thousand) towards litigation cost and another sum of Rs. 10,000/- (Rupees ten thousand) as compensation for causing harassment and mental pain etc. and being aggrieved by such judgment and order both the appeals were preferred by both the parties, as noted earlier.

In the petition of complaint of CC/464/2016, the complainants stated that in April, 2016 the complainant no. 1 was a pregnant lady at the material time she wished to enroll herself with the OP for the preservation and banking of Umbilical Cord Blood, Umbilical Cord Tissue of mother and her unborn baby and with such intention, the complainants being the expecting parents collected sufficient information including its Kolkata address of the OP from the website, approached the office of the OP at its address and asked for procedure for enrollment to such approach of the complainant no. 1. The OP readily accepted her request and gave her appointment on 29-04-2016. On 29th April, 2016 the complainant opted for ‘product baby cord’ duo and opted for ‘dual storage set up annual storage plan’. Pursuant thereto, the complainant made a total payment of Rs. 14,990/- (Rupees fourteen thousand nine hundred ninety) including sample collection charges of Rs. 5,000/- (Rupees five thousand) and upon receipt of the said payment from the complainant, the OP allotted a CRM being no. 160001500175 and her enrollment no. was 124894. Upon such enrollment the complainants were in the belief that that the life of her unborn child would be protected ultimately. On the 7th May 2016, the complainant delivered a baby girl at Bhagirathi Neotia Woman & child Care Center, Park Street, Kolkata under the medical supervision of Dr. Mridula Vohra at about 8:34 A.M. The Umbilical Cord Blood and Tissue were collected in the kit provided by the OP and handed over to the agent of the OP on the same day i.e. on 7th May, 2016 at about 8:35 A.M. from the Bhagirathi Neotia Woman & child Care Center, Park Street, Kolkata and the receipt of the same was acknowledged by the OP. But despite repeated enquiry by the complainant no. 2, the collection agent of the OP did not hand over any receipt but gave assurance of handing over within a short period. On 28-06-2016, the complainant received an e-mail from the OP stating that despite their best efforts the isolation and expansion of mesenchymal stem cells was unsuccessful primarily due to contamination and the OP further sought the complainant’s intention to “cyro-preserve” or “discard” the collected sample. A Cord Blood Preservation Report dated 30-05-2016 was sent to the complainant which revealed that the collected samples were received by the laboratory of the OP on 10-05-2016 at about 1:50 P.M. which is about 78 hours after collection of the said samples from the nursing home where the complainant was admitted though the best time to preserve the said samples within 72 hours. The OP was responsible to collect the samples and delivered the same to the laboratory at the earliest possible time but the collected sample reached the laboratory of the OP after the appropriate time rendering it unfit for preservation. Upon receipt of such report from the OP, the complainant sent several e-mails to the OP seeking assistance and relief from it but the OP failed to provide an assistance and did not give proper reply to such e-mail of the complainants which led the complainants to file the instant complaint case for deliberate and utterly failure of the OP in discharging their lawful and contractual duties to the complainants facing hardship and emotional constraints for which the complainants also claimed that the negligence in the part of the OPs to deliver the tissue samples to its laboratory within a stipulated time resulted in contamination of the samples and the same was harmful in protecting the child of the complainants and to save it from any future health contingencies for which the complainants prayed for compensation to the tune of Rs. 20,00,000/- (Rupees twenty lakh) and a further compensation for Rs. 15,00,000/- (Rupees fifteen lakh) + Rs. 50,000/- (Rupees fifty thousand) towards litigation cost and Rs. 14,990/- (Rupees fourteen thousand nine hundred ninety ) to be paid to the complainants to towards enrollment charges.

The OP in its written version contended that the complaint case was not maintainable as it was bad for defect of parties. Denying the cause of action, as averred in the body of the petition of complaint the OP admitted that the OP was involved in the activities of preserving Umbilical Cord Blood and Umbilical Cord Tissue samples of the newly born baby after delivery on save and striving manner in the laboratory of the OP at Chennai on the same date. It is also admitted that such samples are required at the time of critical medical ailment of the concerned baby in future. In the said written version the OP admitted that on 29th April, 2016 the complainant no. 1 was enrolled with the OP but she delivered a female child on 07-05-2016 and the Umbilical Cord Blood and cord tissues were collected immediately after delivery on save and strive manner and was sent to the laboratory of the OP at Chennai. It is also stated in the said written version that on 10-05-2016 at 1:50 P.M. the samples were received at Chennai and on the same day the fact was reported to the complainant through e-mail but upon necessary examination and process, the Umbilical Cord Blood was found to be fit for preservation but unfortunately the cord tissue isolation and expansion of mesenchymal was unfit for such preservation due to its inherent contamination. Denying and disputing its liability the OP ultimately prayed for dismissal of the complaint case against him, as it was not responsible for the loss of stem cell.

Ld. DCDRF while dealing with the complaint case held that the OP/ M/s Life Cell International (P) Ltd. (hereinafter referred to as the OP) was responsible for deficiency in service and directed it to refund the cost of such preservation of the complainants. Fact remains, the OP had an agreement for providing service to the complainant by way of preserving umbilical cord of the mother and child for future treatment of different diseases. It is also not disputed that the OP failed to perform their contractual obligation in doing their job. Undoubtedly, Stem Cell Banking is a growing concept. As it appears from the literature on the subject, the cord functions as a lifeline between mother and child and the cord blood present in the umbilical cord can be preserved which can treat the family for over 80 life threatening diseases. It is surprising to note that the OP allured the complainants for providing service by preserving the umbilical cord tissues but failed to do so. No convincing medical ground was shown before Ld. Trial Forum for the failure of such preservation, nor it was shown that the condition for preservation of umbilical cord tissue was beyond their control, rather it is established from the averments of the written version that it was the human fault which was responsible for the mischief. Upon consideration of the fact, Ld. Trial Forum rightly held that the OP was responsible for deficiency in service.

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r />It is brought to our notice that Ld. DCDRF disposed of the complaint case ignoring the fact that it was beyond the pecuniary jurisdiction of the DCDRF as the complainants claimed more than Rs. 20,00,000/- (Rupees twenty lakh) in the petition of complaint. Now at this stage we are not laying much importance over this issue, since it was not agitated before Ld. DCDRF taking advantage of the earliest possible opportunity. Now the OP is taking this plea to frustrate the claim of the complainant on the strength of a less important issue. As we have held that Ld. DCDRF was correct in its approach, we dismiss the appeal being A/653/2017 but we allow the appeal being A/655/2017 in part and enhance the amount by awarding compensation to the tune of Rs. 75,000/- (Rupees seventy five thousand) for mental agony and harassment and Rs. 10,000/- (Rupees ten thousand) towards litigation cost. With these observations and directions these two appeals are disposed of.
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