Date of Filing 12.04.2023

                                                                                                             Date of Disposal: 30.11.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

CC.No.43/2023

THIS THURSDAY, THE 30^th DAY OF NOVEMBER 2023

Ms.Muthazhagi,

D/o.Selvi IndianInhabitant,

Residing at No.9/10/15, Suresh Nagar, 1^st Street,

Valasaravakkam, Thiruvallur,

Tamil Nadu 600 087.                                                                                ......Complainant.

                                                                              //Vs//

1.AMPA Orthodontics Private Limited,

   Rep. by ARPI MEHTA SHAH,

   Co founder & Chief Executive Officer,

   Having its registered office at 1^st Floor, Empire Plaza BWing

   Lal Bahadur Shastri Marg, Vikhroli West, Mumbai,

   Suburban, Maharashtra -  400 083.

2.Dr. DAPHNE FERNANDO,

    Kaala Dental Care, Sankar’s Villa,

    1^st Cross Street, Trustpuram,

    Kodambakkam, Chennai.                                                             .…..Opposite Parties.

CC.No.44/2023

THIS THURSDAY, THE 30^th DAY OF NOVEMBER 2023

Mr.Jeeva Rajendran,

S/o.Rajendran,

No.99, Balaji Nagar, Extension,

Crystal Garden, 1^st Street,

Moovendhar Nagar,

 Nombal,

Ayappakkam, Tiruvallur,

Tamil Nadu 600 077.                                                                                ......Complainant.

                                                                              //Vs//

AMPA Orthodontics Private Limited,

Rep. by ARPI MEHTA SHAH,

Co founder & Chief Executive Officer,

 Having its registered office at 1^st Floor,

 Empire Plaza BWing

 Lal Bahadur Shastri Marg,

Vikhroli West, Mumbai,

 Suburban, Maharashtra - 400 083.                                                   .…..Opposite Party.

Counsel for the complainant                                 :     M/s.Manoj Kumar, Advocate.

Counsel for the opposite parties                          :     M/s.King & Partridge, Advocate.

Both complaints coming before us on various dates and finally on 24.11.2023 in the presence of M/s.Manoj Kumar, counsel for the complainants and  M/s.King & Partridge, counsel for the opposite parties  and upon perusing the documents and evidences of both sides in both cases this Commission delivered the following:

COMMON ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. Both complaints has been filed by the complainants u/s 35 of the Consumer Protection Act, 2019 aggrieved by the services rendered by the opposite parties with respect to the Toothsi-Aligners along with a prayer in CC.No.43/2023 to refund the bill value of Rs.59,999/- and Rs.2,00,000/- towards compensation and in CC.No.44/2023 to pay a sum of Rs.1,95,500/- towards compensation for the mental agony and to pay a sum of Rs.50,000/- towards cost of the proceedings.

2. As the issue and parties involved in both cases were similar, this Commission decided to hear both complaints together and to deliver a common Order.

Summary of facts culminating into complaint in CC.No.43/2023:-

3. The complainant alleges that she had purchased in online TOOTHSI-ALIGNER bearing HSN/SAC No.90212900 vide Invoice No.TS27/2223/036295 from the opposite party for a sum of Rs.59,999/- on 02.01.2023.  But after using the same it caused discomfort to speak and to eat and gum started to swell with pain and bleeding.  Repeated complaints were made to the opposite party from 20.02.2023 and appointment was confirmed with the 2^nd opposite party.  However no proper service was rendered by the 2^nd opposite party to rectify the defects.  The complainant received set of 26 aligners under two different plans.  Plan 1 and plan 2 and the duration of treatment was 6 months.  Even after using for one week the complainant had heavy gum pain and gums started bleeding.  Whats App complaints was made with the opposite party, after which on 26.02.2023 complainant consulted Muthusaram Dental & Aesthetics, T. Nagar Branch with pain and discomfort in upper and lower tooth region.  On clinical examination midline shift was noticed and ill-fitting of aligners with no attachments etc., were found.  Thus, due to the negligent act of opposite parties the complainant had suffered loss and injury.  Thus the present complaint was filed to direct the opposite party to refund bill value of Rs.59,999/- along with Rs.2,00,000/- compensation.

The crux of the defence put forth by the opposite parties:-

4. In the written version the opposite parties denied the complaint allegations contenting that the Toothsi-Aligners were manufactured following a standardized process.  When a patient books an appointment the Toothsi Professionals reaches their home and take 3D scan of their teeth and after that deliver the aligners on the doorstep of the patient.  The complainant approached the opposite party for treatment plan for Smile Make Over including the alignment of both upper teeth and lower teeth with specific requirements of mobility shift as per the Smile Make Over plan.  Virtual consultation with the orthodontist to further explain about the treatment which was approved by the complainant was also provided. Thought the complainant was advised to go to the desired Experience Centre she did not follow the treatment protocol.  The complainant’s expectation of sudden improvement was unreasonable after first consultation with the opposite parties’ orthodontist. The complainant never went back for follow up treatments. The report alleged to have given by a Doctor submitted by the complainant could not be taken as an expert opinion.  The opposite parties did not commit any breach of terms and conditions of guaranty.  The customer service agent duly communicated with the complainant and answered all the queries.  Complaint was premature as it would take 6 to 8 months for effective usage to wear them every day for about 17 to 22 hours.  Thus alleging no cause of action for the present complaint the opposite parties sought for the complaint to be dismissed.

Summary of facts culminating into complaint in CC.No.44/2023:-

5. The complainant alleges that she purchased had TOOTHSI-ALIGNER bearing HSN/SAC No.9021, vide Invoice No.TS/22-23/04/1936 from the opposite party for a sum of Rs.54,999/- on 19.04.2022.  But after using the same it caused discomfort to speak and eat and the gums started swelling with pain and bleeding.  Repeated complaints were made to the opposite party from September 2022 but no proper service was rendered by the opposite party to rectify the defects.  On 26.02.2023 complainant consulted Muthusaram Dental & Aesthetics, T. Nagar Branch with pain and discomfort in upper and lower tooth region.  On clinical examination midline shift was noticed and ill-fitting of aligners with no attachments etc.  Due to the negligent act of opposite party the complainant had suffered loss and injury.  Thus the present complaint was filed to direct the opposite party to pay a sum of Rs.1,95,000/- towards compensation for loss and injury and to pay a sum of Rs.50,000/- towards litigation expenses to the complainant.

        The crux of the defence put forth by the opposite party in CC.No.44/2023:-

6. The opposite party denied the complaint allegations contending inter alia that the Toothsi-Aligners were manufactured following standardized process.  When a patient books an appointment the Toothsi Professionals reaches their home and take 3D scan of their teeth and after that deliver the aligners on the doorstep of the patient.  The complainant approached the opposite party for treatment plan for Smile Make Over including the alignment of both upper teeth and lower teeth with specific requirements of mobility shift as per the Smile Make Over plan.  Virtual consultation with the orthodontist to further explain the treatment which was approved by the complainant was also provided. Though the complainant was advised to go to the desired Experience Centre she did not follow the treatment protocol. The report alleged to have given by a Doctor submitted by the complainant could not be taken as an expert opinion.  The opposite party did not commit any breach of terms and conditions of guaranty.  The customer service agent duly communicated with the complainant and answered all the queries.  Complaint is premature as it would take 6 to 8 months for effective usage to wear them every day for about 17 to 22 hours.  Thus submitting no cause of action for the present complaint sought for the complaint to be dismissed.

7. In CC.No.43/2023 On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A14 were submitted. On the side of opposite parties proof affidavit was filed and document marked as Ex.B1to Ex.B6 were submitted.

8. In CC.No.44/2023 On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A13 were submitted. On the side of opposite parties proof affidavit was filed and document marked as Ex.B1 to Ex.B5 were submitted.

Points for consideration:-

1)   Whether the complaint allegations as to improper services rendered by the opposite parties with regard to the Toothsi-Aligners amounting to deficiency in service has been successfully proved by the complainant?

2) If so to what reliefs the complainant is entitled?

 Point No.1:-

In.CC.No.43/2023 the following documents were filed on the side of complainant in support of their contentions;

1. Whats App chats for order and payments marked as Ex.A1;
2. Initial check up report dated 25.12.2022 was marked as Ex.A2;
3. Invoice dated 02.01.2023 was marked as Ex.A3;
4. Mail confirmation of virtual session appointment dated 16.01.2023 was marked as Ex.A4;
5. Virtual session appointment confirmation dated 26.01.2023 was marked as Ex.A5;
6. Whats app chats for complaint was marked as Ex.A6;
7. Support mail conversation ticket No.00434060 dated 08.02.2023 was marked as Ex.A7;
8. Mail conversation for complaint dated 21.02.2023 was marked as Ex.A8;
9. Mail conversation dated 02.03.2023 was marked as Ex.A9
10. Complainant photo copy was marked as Ex.A10;
11. Toothsi Aligner photo copy was marked as Ex.A11;
12. Aadhar card of complainant was marked as Ex.A12;
13. Doctor’s Report dated 25.02.2023 was marked as Ex.A13;
14. Doctor’s Report dated 26.02.2023 was marked as Ex.A14;

In CC.No.43/2023 on the side of opposite parties the following documents were filed in proof of their defence;

15. Board Resolution dated 15.11.2021 was marked as Ex.B1;
16. ISO Certificate dated 11.02.2022  was marked as Ex.B2;
17. FDA Certificate dated 09.02.2023 was marked as Ex.B3;
18. Smile Makeover Plan dated 25.12.2022 was marked as Ex.B4;
19. Email communication between the opposite party and complainant was marked as Ex.B5;
20. Details of the calls received and resolved specific the complainant was marked as Ex.B6;

In CC.No.44/2023 the following documents were filed on the side of complainant in support of their contentions;

1. Order and plan confirmation receipt was marked as Ex.A1;
2. Initial check up report –Layer 1 dated 16.04.2022 was marked as Ex.A2;
3. Initial check up report – Layer 2 dated 16.04.2022 was marked as Ex.A3;
4. Photo copy of 3D Scan was marked as Ex.A4;
5. Payment copy dated 01.04.2022 was marked as Ex.A5;
6. Payment copy dated 09.04.2022 was marked as Ex.A6;
7. Payment copy dated 12.04.2022 was marked as Ex.A7;
8. Payment confirmation mail dated 12.04.2022 was marked as Ex.A8;
9. Whats App chats was marked as Ex.A9;
10. Mail conversation dated 05.07.2022 was marked as Ex.A10;
11. Mail conversation Ticket ID 00318610 dated 27.11.2022 was marked as Ex.A11;
12. Photo copy of set of aligner was marked as Ex.A12;
13. Aadhar card of the complainant was marked as Ex.A13;

 In CC.No.44/2023 on the side of opposite party the following documents were filed in proof of their defence;

• Board Resolution dated 15.11.2021 was marked as Ex.B1;
• ISO Certificate dated 11.02.2022  was marked as Ex.B2;
• FDA Certificate dated 09.02.2023 was marked as Ex.B3;
• Smile Makeover Plan dated 28.04.2022 was marked as Ex.B4;
• Smile makeover treatment progress as on 16.04.2022 was marked as Ex.B5;

9. The crux of the argument advanced by the learned counsel appearing for the complainants is that the opposite parties did not align the Toothsi-Aligners properly which resulted in bleeding and pain and that even after treatment no improvement was seen.  Further it was argued that though the opposite parties stated that the complainant was advised to go to the desired Experience Centre, however the opposite parties’ also contrarily argued that the complainant ought to have come to opposite parties clinic in case of any pain or discomfort.  Further in the first consultation with Dr. Daphne Fernando, the orthodontist of the opposite party was met he advised that the Toothsi aligners were not up to the mark and it is a failed project.  It is argued that the complainant when not satisfied with the treatment of the orthodontist of the opposite party has every right to consult another Doctor to get rid of her pain. Though several times the complainant had made complaints the opposite parties did not take any efforts.  Though it is stated that the Toothsi Aligners are custom made and tailored Aligners made after examining the reports, the fixation of the same to the complainant caused unbearable pain and bleeding in the gums which shows the negligent act of the opposite parties.  Thus stating that the opposite parties had done exploration with the complainant he alleges negligence and deficiency in service on the part of the opposite parties.

10. On the other hand the crux of the arguments by the learned counsel appearing for the opposite parties is that the Smile Make Over plan was purchased by the complainant and that they had acted with reasonable care and caution while treating the complainant.  But the complainant did not wear the aligners for more than 2 months and was also unwilling to take treatment as per the protocol.  He referred to Ex.A8 to state that within 2 months of alignment two complaints were made. However the duration advice was for 7 months.  Thus stating that the desired result will be seen only after 6 to 8 months, the opposite parties counsel sought for the dismissal of the complaint stating that the complaint is a premature one.

11. On perusal of the entire pleadings and material evidences produced by both parties it is seen that the product Toothsi Alighers was ordered online by the complainant and that the order and payment was made through Whats App chats.  It is also admitted by the complainant that when complaints about the pain and bleedings in gums the opposite parties fixed video conference appointment and accordingly consulted the 2^nd opposite party in person. The gist of the complaint revolves around improper alignment and not to the quality of the product supplied by the 1^st opposite party.  When the Toothsi Alighers were received and fixed in the month of January, in February itself the complainant started the complaints.  However it is stated by the opposite parties that it will take at least 6 to 8 months for proper fixations and effective usage as per the plan. We could see that the opposite parties had responded to the complaints made by the complainants. Further the Doctor report alleged to have been filed and shown in proof of the negligence on the part of the opposite parties also did not provide any comments with regard to the defects in the product supplied by the 1^st opposite party.  Though it is stated by the complainant that the 2^nd opposite party had stated that the Toothsi Aligners are not up to the mark and a failed product, no proof was submitted by the complainant to substantiate the same.  Even Whats App complaints filed by the complainant relates only to the month of February which shows that after which the complainant did not approach the opposite parties.  In such circumstances the arguments advanced by the opposite parties that they are always ready to willing to help the complainants in case of any complaint made to them assumes significance as the on concept of deficiency in service arises only when the service provider fails to provide proper service when called for.  Thus, when the complainants had failed to prove that the products supplied to them was defective and had not followed-up the advises by the opposite party, on mere bald allegations without sufficient proof we could not hold that the opposite parties had committed deficiency in service and they are liable for the same.  Thus we answer the point accordingly.

Point No.2:-

12. As we have held above that the complainants had failed to prove that the opposite parties had committed any deficiency in service they are not entitled any reliefs from the opposite parties.  Thus we answer the point accordingly.

In the result, the complaints are dismissed.  No order as to costs.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 30^th day of November 2023.

      Sd/-                                                                                                                      Sd/-                                                                                                                     

MEMBER-I                                                                                                           PRESIDENT

List of document filed by the complainant in CC.No.43/2023:-

List of documents filed by the opposite parties in CC.No.43/2023:-

List of document filed by the complainant in CC.No.44/2023:-

List of documents filed by the opposite parties in CC.No.44/2023:-

   Sd/-                                                                                                                        Sd/-

MEMBER-I                                                                                                         PRESIDENT