ANIRBAN SENGUPTA Vs. ARUP PODDAR

JUDGEMENT

(1.) THIS appeal has been preferred by the Appellant -OP being aggrieved by the judgment passed by the learned District Forum, 24 -Parganas (North) Barasat, in its case No. 54/2009 on 31.5.2010, wherein the learned Forum below has allowed the complainant in part on contest with cost and directed the OP to pay the amount of Rs.75,000 to the Complainant within one month from the date of the passing of the judgment The OP was further directed to pay an amount of Rs. 500 towards litigation cost to the Complainant within one month from the date of passing of the judgment, in case of non -compliance of the order in full or any part, the Complainant would be at liberty to file and execution case as per provision of law.

(2.) THE brief fact of the case of the Complainant is that the Complainant filed the complaint before the learned District Forum alleging deficiency in service on the part of the OP -Dr. Anirban Sengupta. Having been informed from a magazine the Complainant on 6.9.2008 approached the OP who is an orofacial cosmetic and oral surgeon for discussion about his chin and tongue. The OP advised him to go for chin augmentation and the Complainant judgment erroneously. It is stated that the Respondent intentionally and deliberately on the last date before the operation expressed his intention not to undergo the operation procedure. The learned Forum below did not consider that there was a contract between the Appellant and the Respondent which was binding upon both the parties, but Respondent as per his sweet will did not obey the contract and such violation of the contract by the Complainant cannot be termed as deficiency in service on the part of the OP -Appellant. According to the Appellant the judgment passed by the learned Forum below being erroneous is liable to be set aside and he has prayed for allowing the present appeal.

(3.) FOR adjudication of this appeal the LCR has been called for from the learned Forum below. We have carefully perused the LCR and the documents as available in the record and heard the submission of the learned Counsel of the Appellant as well as from the authorized representative for the Respondent. We have noticed that the Complainant made payment of a sum of Rs. 1,03,000 to the OP by issuing a cheque and he further claimed that additional Rs. 6,000 was also paid to the OP by him by cash. The case of the Complainant is that he got information from a magazine regarding the OP and approached him for discussion about his chin and tongue. It is pertinent to mention that the OP is an orofacial cosmetic and oral surgeon. The OP advised him to go for chin augmentation and the Complainant agreed to his suggestion and accordingly made payment of the abovementioned amounts. Thereafter, the Complainant changed his mind and requested the doctor to refund the entire amount as paid by him after deduction of doctor's fees. As the doctor did not pay any heed to his request the Complainant filed a complaint against the said doctor before the learned Forum below praying for direction upon him to refund the entire money amounting to Rs. 1,09,000 along with Rs. 50,000 for harassment and mental agony caused by the OP. The case of the OP is that he had spent a sum of Rs. 1,15,000 in respect of purchasing the material for chin augmentation and also claimed that the said materials would not be used for another patient due to some technical ground. In the written version filedby the OP before the Forum below the OP has relied on the receipt which shows that the, cost of the purchased material was for Rs. 28,000 only, but he claimed that he had to spend a sum of Rs. 1,15,000 for purchasing augmentation materials. But the OP has failed to adduce any cogent document in support of such contention. Therefore, it can easily be said that OP had spent a sum of Rs. 28,000 towards purchase of the materials. On the contrary though the Complainant claimed that he made further payment for Rs. 6,000 to the OP by cash, but in this respect also no document has been filed in support of such contention. In this respect the learned Forum below has correctly observed that mere claim cannot be a sufficient ground to prove their own case unless and until it is supported by any cogent documents.