9/12/08 Sri.K.Gopalan, President This is a complaint filed under section 12 of Consumer Protection Act for an order directing the opposite parties to pay a sum of Rs. 1 lakh as compensation. The complainant’s case is that he had approached 1st opposite party on23.10.2004 at the Malabar Dental Clinic for a check up as she has severe pain on the long left lower tooth (jaw). She was advised to remove the tooth immediately. Complainant hesitated but opposite parties told her not to afraid, as it is a simple process. Believing the words she consented for extraction. Opposite party then administered anesthesia twice and extracted the long left lower tooth. Medicine was prescribed by 1st opposite party. 1st opposite party received then Rs.70/- as fees. Though the complainant consumed the medicine pain was not relieved and on the same night itself swelling developed on the cheek and she was not in a position to talk. Practically the left side of the face got paralyzed. The complainant again approached 1st opposite party on 25.10.2004 and 1st opposite party prescribed medicines and assured pain and swelling will be reduced with 4 - 5 days. The pain aggravated and she could not speak or open the mouth. Complainant again went to 1st opposite party on 30.10/2004 and on examination doctor told that there is nothing wrong to her and prescribed certain drugs for further treatment in consultation with 2nd opposite party. The pain again agravated and also unable to speak complainant consulted opposite party again on 1.11.2004. Then again doctor examined and prescribed medicine. This time out of anxiousness complainant enquired whether she should consult any other doctor both the opposite parties told that is not necessary and she will be normal within days. But again complaint aggravated and complainant again met 1st opposite party doctor on 4.11.2004 along with her husband and relatives. On the day also medicine prescribed. The complainant insisted to take an X-ray and 1st opposite party took the X- ray of that portion of extracted tooth. After discussion between 1st and 2nd opposite parties complainant was told by 1st opposite party that there is nothing wrong. Then again told that she will consult a professor in Dental clinic, Kozhikode and give reference letter for further check up. Then complainant’s husband asked 1st opposite party why this was not suggested earlier, if 1st opposite party was not able to diagnose the case properly. Suddenly 2nd opposite party interfered and told the complainant and husband to go wherever they like to go. On 6.11.2004 the complainant went to Govt. Dental College, Calicut for treatment. Complainant was examined by Asst. Professor X-ray was also examined and opinioned that the causation for the numbness over the lip and chine region was due to the injury caused to inferior alveolar nerve during the extraction of tooth. On 8.11.04 the complainant again approached opposite party and shown the prescription. Then 2nd opposite party on perusing the same gone out side to take a copy of the same. He came after some time and original copy handed over to complainant. Then 2nd opposite party confessed the negligence on their part and gave complaint a sum of Rs.500/-. If 1st opposite party had taken proper care and attention the injury on the never as referred to above would not have occurred. Complainant has spent Rs.5000/- for her treatment by professor, Calicut. This injury occurred at the time of extracting the tooth and it is the negligence on the part of 1st opposite party. The Professor at Medical College advised monthly review for the complainant but due to financial stringency complainant is not in a position to go for the treatment. The complainant is still suffering from pain and numbness over the lip and chin causing great physical inconvenience and mental agony and hardship. The complainant eking out her lively hood by doing coolly work. Her husband is a fisherman and is suffering from illness. The complainant is earning Rs.150/- per day. The complainant looks after the entire family. Due to the injury caused to the never, the complainant is not in a position to do any work. As such the complainant assess Rs.1 lakh, as compensation for the deficiency in service on the part of 1st opposite party. Complainant sent lawyer notice but reply was sent with false contention. The averment in the reply that Sr.Sangeetha attended the complainant on23.10.2004 and the complainant first and third molar were missing at that time is incorrect. Prior to 23.10.04 the complainant did not go to opposite party’s clinic. The further averment made in the reply that the tooth of the complainant was badly damaged up to the pulp and the said tooth extracted had unusually long roots and the complainant was told so and shown the tooth is incorrect. It is incorrect to say that the complainant has another decayed tooth on the upper jaw. The averment made in the reply that the complication followed the extraction occurred only because of the unusual relationship of the root tip to the nerve is false. Opposite party caused irreparable injury. Hence this complaint. After receiving notice 1st and2ndoppoiste parties appeared and filed version jointly denying the allegations leveled against them. The contentions of 1stand2nd opposite party in brief are as follows. The complaint is not maintainable there is no cause of action. The opposite parties had exercised reasonable care and attention in diagnosis and treatment of the complainant. The complainant came to Malabar Dental clinic on 23.10.2004 as she was suffering from sever pain on her tooth on the left side of the lower joint. However, these opposite parties did not attend the complainant as they were engaged in treating two other patients. As it is evident from the prescription-cum-treatment record that Dr.K.T.Sangeetha attended the complainant. She took the case history, examined the patient and discussed the treatment opinion. The tooth involved was the mandible second mortar of the left side. The complainant’s first and third motars of the same side were missing at that time. The complainant wanted this tooth to be extracted immediately. Since this was no contra indication like systemic diseases or drug allergy, Dr.Sangeetha gave the injection anaesthetizing the tooth for extraction and prepared the treatment record. As the procedure usually followed the complainant was asked to sit in the waiting room for the onset of anesthesia. Subsequently when the complainant was called to the dental chair, then the 1st opposite party examined her and skillfully removed the tooth without causing any damage to the soft tissue or b one around the tooth, in spite of being badly damaged up to the pulp. Moreover, the tooth was removed without causing any breakage of its two roots. Since, the extracted tooth had unusually long roots, the 1st opposite party showed the extracted tooth and told the matter to the complainant. That might have been the reason that the complainant referred the tooth in the complaint as “the long left lower tooth”. In order to stop b bleeding cotton pad was placed on the wound of the complainant and was asked to wait for some more time. Then the complainant was called back and seeing there was no risk of bleeding, oral and printed instructions were given and the required drugs were prescribed in the same treatment record prepared by Dr.Sangeetha. An amount of Rs.70/- as fee was collected by the 1st opposite party. The 2nd opposite party as shown in complaint, was in no way related to the treatment of complainant on that day. It is not correct that the complainant approached the 1st opposite party on 23.10.04 at the Malabar Dental clinic for a check up as she has severe pain on long left lower teeth” It is also not correct that the 1st opposite party examined the complainant and advised to extract the tooth immediately. It is also not incorrect to state, “ When the complainant hesitated, both the opposite parties told her that it is a simple process and the complainant need not be afraid of extraction”. It is also incorrect to state that believing the words of opposite parties the complainant consented for the extraction of tooth. It is also incorrect to state that the 1st opposite party administered injection fore the purpose of local anesthesia so also it is incorrect to state that finding that injection administered was not sufficient 1st opposite party again administered another injection. On 25.10.04 the complainant approached the opposite parties with complaint of pain at the extraction site and persistence of numbness on the left side of lower tip. Since pain, bleeding swelling or persistence of numb ness for a few days are not unusual following tooth extraction, 2nd opposite party prescribed some drugs. No fees collected from her and samples of some expensive drugs were also given to her. The statement made in the complaint that even though she consumed those medicines, pain was not relieved and on the said night itself the swelling appeared on the left side of the check and numbness developed over the lip and the chin region” is incorrect. It is not true that on 25.10.2004 and 30.10.2004 these opposite parties treated the complainant and each day Rs.50/- was received treated the complainant. On 25.10.2004 and 30.10.2004 the complainant was attended by the 2nd opposite party and provided certain drugs to the complainant without receiving any fees. It is also incorrect that the 1st opposite party after check up prescribed medicine and assured the complainant that she would be relieved of all the pain and the swelling of the face would be reduced within 4-5 days”. It was 2nd opposite party who had attended the complainant had another decayed tooth on the upper jaw an initra-oral X-ray of the tooth was taken. As the complainant had pain on the left side of the chin another X-ray of the teeth was also taken. X-ray of the extraction site was not taken. When the complainant came on 4.11.2004 with a group of people including women, only 2nd opposite party talked to them. They were advised to consult specialist and reference letter was given. It is incorrect that complainant again consulted 1st opposite party on 4.11.04 and prescribed medicine. On 8.11.2004 complainant approached the 2nd opposite party and showed the prescription issued by the Dentist at Govt. Dental College, Calicut. 2nd opposite party took photocopy of prescription is false. It is also false that 2nd opposite party confessed the negligence on his part and paid Rs.500/- to the complainant. Actually no such injury has been sustained in the alveolar nerve of the complainant as alleged. There is no deficiency of service on the side of both the opposite parties at any point of time. No careless or negligent instrumentation were done. No instrument or doctor’s finger has touched the nerve. X-ray shows that the extraction socket is in excellent condition helping in the rapid and normal healing of the wound. The complication occurred due to the unusual relationship of the root tips to the nerve. If the 1st opposite party were rash and negligent a very bad wound would have remained at the site of extraction, which would not heal for a very long time. There was no deficiency of service on the side of the opposite parties. Hence opposite parties are not liable to pay any amount to the complainant. On the above pleadings the following issues have been taken for consideration. 1.Whether there is any deficiency on the part of opposite parties? 2. Whether the complainant is entitled for the remedy as prayed in the complaint? 3. Relief and cost, The evidence consists of oral testimony of PW1, DW1, DW2 and documentary evidence Exts.A1 to A6. Issue Nos. 1 to 3 Admittedly complainant’s tooth was extracted by 1st opposite party, Dr. Indira on 23.10.2004 at Malabar Dental Clinic, Thalassery. The opposite parties case is that the tooth was skillfully removed by 1st opposite party without causing any damage to the soft tissue or bone around the tooth, in spite of being badly damaged up to the pulp. The tooth was removed without any breakage of the two roots. The tooth had unusually long roots. The case of the complainant is that she has approached 1st opposite party on23.10.2004 at Malabar Dental Clinic for a check up as she has pain on her long left lower tooth and Dr.Indira advised after examination advised to extract the tooth. Complainant alleges that when she was hesitated opposite parties told that it was only a simple process and thereby consented. Dr.Indira extracted the tooth. Ext.A1 to A3 and A5 to A6 prove that the complainant was treated in Malabar Dental Clinic, which was established by 2nd opposite party in the year 1982. Dr.Indira has extracted the tooth of complainant has been working in this clinic for more than 18 years. Tooth of the complainant was extracted on 23.10.2004. The name of the doctor printed on all the prescriptions. Ext.A1 to A3 is Dr.Sangeetha.K.T. The version stated that Dr.Sangeetha took the case history and examined the complainant on 23.10.2004. As per the contentions of opposite parties it was Dr.Sangeetha who gave the injection for anaesthetizing the tooth for extraction. Thereafter 1st opposite party Dr.Indira examined the patient. Complainant and then extracted the tooth. Opposite party contended that the extracted tooth had unusually long tooth and Dr.Indira showed it the complainant and the drugs were prescribed in the treatment record prepared by Dr.Sangeetha. Complainant alleges that she had approached 1st opposite party on 25.10.04. Ext.A6 proves that the complainant was attended by opposite parties. Para 2 of the A5 states “ when your client came on 25.10.04 she was attended by my clients”….. again ……..”On 25.10.04 and 30.10.04 your client was attended by my clients”. That means opposite parties attended the complainant both days. The version depicts the approaches of opposite parties to the complainant patient, on 25.10.2004. It is see stated that “ since pain, bleeding, swelling or persistence of numbness for a few days are not unusual following truth extraction, the 2nd opposite party prescribed some medicine” It was considered on as a usual phenomenon and some medicine prescribed. That means no serious care and attention given to the complaint of the patient on that day. No serious attempt having been made to find out the cause of complaint of the patient. It is evident that element of prejudice mainly ruled on examining and prescribing the medicine A serious attention had been inevitably warranted since there was complaint of not relieving pain, swelling and numbness of the patient. The complainant was also alleged that she was not in a position. to talk. The question is not that of more denial but of the mode by which the opposite parties attended the complaints of the patient complainant. Opposite parties has the case that on 25.10.2004 and 30.10.2004 the complainant was attended by 2nd opposite party. It could be seen that the medicine was prescribed on Ext.A1 prescription. Extraction was done on 23.10.2004. But even after seven days pain was not relieved. It should have taken more seriously. But both 1st and 2nd opposite parties have taken it only as a usual phenomenon and medicine prescribed on a casual observation. This itself shows there is deficiency in service on the part of opposite parties. No serious attention was being made by the opposite parties to find out the reason why there is no development. The complainant alleges that the pain on the left side of the complainant’s face was aggravated characterized by speech disturbance, sensory disturbances etc. complainant again consulted by `1st opposite party on1.11.2004 and 1st opposite party consulting with 2nd opposite party prescribed some more medicines. Complainant further alleges that she also asked whether there is any need of consulting any other doctor. Opposite parties told her that was not necessary. The opposite parties have different version that when complainant came on 1.11.2004 she was attended by the 2nd opposite party and the wound at the extraction site was found to be healing normally and the complainant has not complained about any pain on that sight. Opposite party further contended that as complainant had another decayed tooth on the upper jaw of the same side, an intra-oral X-ray of that tooth was taken. As the complainant had pain on the left side of the chin, another X-ray of the teeth in that region was also taken in order to find out if any problem of these teeth contributed to her pain. Two X-rays were taken as per the contention of opposite parties on the occasion on 1.11.2004 when “ the wound at the extraction site was found to be healing normally and she has not complained about any pain on that site… But at the same time in the same version he has state “ As the complainant had pain on the left side of the chin another X-ray of the teeth in that region was also taken in order to find out if any problem of these teeth contributed to her pain”. It can be seen that on both day’s 25.10.04 and 30.4.04 no X-ray was taken even if there was complaint of severe pain etc. But on 1.11.04 as per the contentions of opposite parties when there was no complaint of pain –ray was taken. On explanation opposite party stated “ as the complainant had pain on the left side of the chin another X-ray of the teeth in that region was also taken… …………”This is a contradictory statement that gives relevancy to look in the statement of complainant that “ the complainant insisted 1st opposite party to take an X-ray of the said portion where the left tooth was extracted. Due to the insistences of the complainant and the bye-standers 1st opposite party took an X-ray of the said portion”. Opposite party has the case that “X-ray of the extraction site was not taken”. But opposite party admit that as the complainant had pain on the left side of chin another X-ray of the teeth in that region was also taken. Hence it cannot be believed the contention of the opposite parties that on 1.11.2004 the she would at the extraction site was found to be healing normally and the complainant has no complaint about any pain on that site. Complainant alleges that she approached the 1st opposite party again on 4.11.2004. Ext.A2 prescription proves that complainant was examined and prescribed medicine opposite parties contended that complainant came on 4.11.2004 with a group of people and 2nd opposite party talked and explained to them that if numbness and pain on the left side of lower lip and chin developed, it could be due to the pressure exerted on the nerve by the unusually long roots, while the tooth was being extracted. Opposite parties also advised if they wanted to get a second opinion to consult specialist in Dental College, Calicut. Opposite parties also contended that it is incorrect to state on 4.11.04 the complainant consulted 1st opposite party and prescribed certain medicine. Ext.A2 prescription proves that medicine was prescribed on 4.11.04 also. 1st Opposite party contended that reference letter was given by 2nd opposite party. 2nd opposite party in his cross examination deposed that “ Kozhikode Dental college Asst. Professor The deposition of DW1 reveals that injury to alveolar men was suspected by the examination in Medical College. In the re-examination DW1 deposed that “ Thus the above evidence also reveals the fact that the injury to alveolar nerve cannot be ruled out. DW2 Doctor deposed in his chief that “ X-ray inferior alveolar In the cross-examination his answer to the question “ extract Alveolar nerve injury ? was “ “ DW2 deposed further in the cross that “Injuction nerve needle alveolar nerve injury extract It can be seen that on 6.11.2004 in Ext.A4 second medicine prescribed is “Neurobion” And again on 18.11.04 “Neurobion” was prescribed for one month. Again on 29.1.05 Neurobion prescribed for again for one month. Ext.A4 together with the evidence of DW2 proves that complainant caused alveolar nerve injury. Deficiency in service occurred not merely causing the injury but also due subsequent treatment carelessly done in Malabar Dental clinic, which has been running under the overall charge of 2nd opposite party. Hence we are of opinion that 2nd opposite party is liable to compensate for the damage suffered by the complainant. Mental and physical sufferings have to be taken into consideration for determining the compensation. We are of opinion that sum of Rs.30, 000/- together with Rs.1500/-, as cost of these proceedings will meet the ends of justice. The complainant is also entitled to get 7% interest from the date of order till realization. Thus 2nd opposite party is held liable to pay to complainant a sum of Rs.30, 000/- with an interest @7% p.a and also a sum of Rs.1500/- as cost of these proceedings. The issues 1 to 3 are found in favour of the complainant and we pass the order accordingly. In the result, the complaint is allowed partly directing the 2nd opposite party to pay a sum of Rs.30, 000/- (Thirty thousand only) with interest @ 7% from the date of order till date of realisation of the amount together with a sum of Rs.1500/-(Rupees One thousand five hundred only as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the 2nd opposite party under the provisions of consumer protection Act. Sd/- Sd/- President Member K.P.Preethakumari. Member I do not agree with the above view. In my opinion, the crucial question to be decided is whether the pain, swelling, persistence of numbness etc. were caused due to the pressure exerted on the alveolar nerve while extracting the tooth which has unusually long roots and having unusual relationship with the nerve or due to the injury caused to the alveolar nerve because of the unskilled administration of anesthesia and negligent extraction of tooth. The complainant alleged that the lower second molar tooth was extracted by the 1st opposite party, negligently without professional skill and wrongfully administered anesthesia. Because of these the complainant suffered pain, numbness, speech disturbance etc. In order to support her case, she was examined as PW1, and Ext.A1 to A6 were marked. Ext.A1 to A3 are prescription dt.23.10.04, 4.11.04 and 1.11.04. Ext.A4 is the case record from govt. Dental Hospital, Kozhikode dt.6.11.04. A5 is the lawyer notice and A6 is the reply notice. Complainant has not examined any expert in order to support her case. On the other hand opposite party’s case is that the numbness, pain etc. Was caused due to the pressure exerted on the alveolar nerves as the root of the tooth was situated very near to the nerve and not due to any negligence. In order to prove their contention, DW1 and DW2 were examined. DW1 is the 2nd opposite party and DW2 is the doctor who has issued exhibits A4 after examining PW1 at the Dental Medical College, Calicut The PW1 deposed that From these it is seen that at the time of extraction of tooth the 1st opposite party was very vigilant and cared the primary things while extracting the tooth. DW2 deposed that Dental Medical College In Ext.A4 it was narrated as X-ray shows extd socket +7 in the interior alveolar canal. He further deposed that “ X-ray But the complainant had not produced any x-ray or examined any expert. In Minaben Yageshkumar Pathak Vs. Dr.Kalindiben deve, which was reported in 1996(1) CPR 544(Gujarat SCDRC). No expert evidence examined by complainant. Doctor who joined OP’s in performance of first operation was the best witness. Adverse inference is to be drawn against complainant for non-examining the witness. So adverse inference can be drawn in the case also for non-production of X-ray and expert. So as per Ext.A4 the extracted tooth has extended socket, with the alveolar nerve. In a literature written by Dr.G.R.Seward, MDS, MBBS.”FDS, the London hospital, Medical college by name “Radiology in general dental practice” which was published in a “British Dental Journal, July 16,1963, very clearly states about the complication arising while extracting tooth. The possibility of complication depends upon 3 things namely shape of roots. The proximity of inferior dental canal and the structure of bone. The deeper the tooth below the normal occlusal level, the more bone must be removed to reach it, For the purpose of assessing how much bone has to be removed the position of the tooth must be related to the level of the top of the alveolar bone. The alveolar crest is not always clearly visible in per apical or oblique lateral jaw radiography. The inferior dental cannal may lie below the level of the tooth or above the level of the apex. When the nerve lies at the apex it may be damaged by attempts to elevate the tooth. As the crown of the tooth is titled distally, the apex trends to move downwards and messily are crushing the nerve, which may result in temporary loss of function of the nerve. As per Ext.A4 and from the evidence of the expert DW2, the injury to alveolar nerve is only suspected and the same was not confirmed. So there is no concrete evidence to show that injury was caused to the alveolar nerve. But as per the deposition of DW2, Pressure nerve injury From these it can be seen that pain, numbness etc. may be caused due to pressure exerted at the time of tooth extraction due to its unusual length of the root. No contra evidence is produced. Further it was deposed by DW2 that the socket is in a healing position. He further deposed that the stage of complication is not a common but a very rare one. In Praveen Lal Jibbar Vaghela Vs.Dr.Binoy Pulkhiwala, which was reported in 1996(I) CPR 603 Gujarat SCDRC, it was held that there is absolutely no evidence on record. Besides the allegation made in the complaint that the opponent was negligent in giving treatment to the complainant. Bare allegation in the complaint would not establish charge of negligence on the part of opponent. The complainant should have led expert evidence o prove the alleged negligence on the part of opponent. On the other hand the opponent has stated in details the treatment, which he gave to the complainant and the operation, which he had performed. There is no reason to disbelieve the statement made by the opponent. The complainant had failed to prove the allegations. But in this case opposite party had examined the expert DW2 in order to prove his averments. So from the available evidence on record, the complainant failed to establish the case and it is found that the negligence is not proved and hence the complaint is liable to be dismissed. In the result, complaint dismissed. No cost. Sd/- Member Order pronounced accepting majority opinion. Sd/- President Sd/- Member Appendix Exhibits for the complainant A1.Prescription dt.23.10.04 issued by OP A2.Prescription dt.4.11.04 issued by OP A3.Prescription dt.1.11.04 issued by OP A4.Case record of Govt. Dental College and Hospital, Kozhikode dt.6.11.04 A5. Copy of the lawyer notice dt.6.12.04 sent to OP A6. Reply notice dt.27.12.04 Exhibits for the opposite parties: Nil Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties DW1.Dr.P.K.Ratnakaran DW2.Dr.Manoj Joseph Michael /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
