IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 288/09 DATED 14.10.2009<br /> ORDER<br /> <br /> Complainant Mrthunjaya Kumar.M.S.<br /> S/o Late Shmanna,<br /> R/at No.4564, Link Road, N.R.Mohalla, Mysore.<br /> <br /> (By Sri.M.Sanjay Jain, Advocate)<br /> <br /> Vs. <br /> Opposite Party Dr.Sathya Swaroop, <br /> Crystal Tooth Care, No.4648, Shivaji Road, N.R.Mohalla, Mysore-570007.<br /> <br /> (By Sri. S.N.Krishna , Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 12.08.2009<br /> Date of appearance of O.P. : 31.08.2009<br /> Date of order : 14.10.2009<br /> Duration of Proceeding : 1 MONTH 15 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Complainant has filed the complaint Under Section 12 of the Consumer Protection Act against the opposite party, seeking a direction to pay a sum of Rs.20,210/-, the hospitalization charges, the amount which the complainant paid to J.S.S. Hospital on account of medical negligence on the part of opposite party and further, a sum of Rs.50,000/- towards mental and physical torture, harassment and also, cost of the proceedings.<br /> <br /> 2. In the complaint, it is alleged that, the complainant is aged about 68 years. On 16.03.2009, complainant approached the opposite party with a pain in his tooth in lower front region. He explained that, he is diabetic patient, since 15 years. Complainant had carried the report dated 24.02.2009. The opposite party after examining the complainant and verifying the report, advised to get the tooth extracted. On the advice of opposite party and on assurance that all parameters are just right for extraction of tooth, the opposite party extracted the tooth in the lower front jaw region on the same day. The opposite party prescribed medicine. The complainant developed extreme pain and swelling and unable to bear the same and visited the opposite party on 18.03.2009. The opposite party prescribed number of medicines and assured that the pain and swelling would come down within two days. As per the prescriptions, the complainant took medicine and rest. But, the complainant was unable to bear the extreme pain and swelling in front of lower jaw and below the tongue with difficulty in swolling. He got admitted to J.S.S. Hospital on 19.03.2009, and was discharged on 30.03.2009. The complainant has undergone the problems only on account of the tooth extraction by opposite party. If the opposite party were to follow necessary investigation before extraction of the tooth, the trouble could have been avoided. The opposite party is responsible for all the pain and sufferings, including hospitalization and expenses incurred by the complainant. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version, has denied the material allegations in the complaint. However, it is admitted that on 16.03.2009 and 18.03.2009 for dental treatment, the complainant had approached the opposite party. The opposite party has specifically denied that, on 16.03.2009 he extracted the tooth from the jaw of the complainant. It is stated that, the opposite party treated the complainant relating to the pain found in the jaw. Also, it is stated that, on 18.03.2009, the complainant complained that the in the jaw pain has not been reduced even after consumption prescribed tablets and hence, the opposite party after again examining the complainant, found there may be bacterial infection in and around the jaw region. Therefore, the opposite party gave medical prescription for infection heals, to reduce the pain and gastric problem. It is also stated that, the opposite party is totally unaware of the fact that, the complainant took treatment in J.S.S. Hospital as in patient. Also, it is contend that, the allegation of the complainant that, he was admitted in J.S.S. Hospital and took treatment is false. The alleged certificate is false and concocted. It has been given fraudulently in collusion with the complainant to make wrongful gain if possible. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The complainant as well as opposite party have filed their affidavits in support of their respective contentions. Certain documents are also produced. For the complainant, written arguments are filed. Also, we have heard the arguments and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved deficiency in service on the part of the opposite party and that he is entitled to any reliefs?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The complainant alleges that, he approached the opposite party with a pain in his tooth in lower front region. The opposite party also admits that, the complainant had approached for dental treatment on both the dates. The complainant further alleges that, on 16.03.2009 itself he showed pathology report as he is a diabetic patient and the opposite party after examination and verifying the report, advised to get the tooth extracted and accordingly, tooth was extracted on the same day. The opposite party has specifically denied extraction of the tooth. The complainant further alleges, on account of extraction of the tooth by the opposite party, he had problems, for which he admitted to J.S.S. Hospital on 19.03.2009 till 30.03.2009. In view of the facts and the contentions of the parties, before considering the allegations of the complainant on the point, first of all we have to ascertain, whether as alleged by the complainant, the opposite party had extracted the tooth or otherwise.<br /> <br /> 8. In support of his contention that, the opposite party extracted the tooth, the complainant has filed his affidavit, whereas denying the same opposite party has filed counter affidavit. Under the circumstances, we have to decide the truth or otherwise of the fact not only on the basis of the affidavits, but also other circumstances including the documents.<br /> <br /> 9. The complainant has produced the copy of the medical certificate issued by J.S.S. Hospital, Mysore, wherein it is stated that, the patient presented with history of pain and swelling in front of lower jaw region, following tooth extraction in lower front jaw by private practioner two days before admission. Hence, considering the fact mentioned in this certificate, prima-facie the complainant has established extraction of tooth by private practioner two days before he was admitted to J.S.S. Hospital.<br /> <br /> 10. In respect of the said certificate, the opposite party has contended that, it is false and concocted. It is fraudulently obtained in collusion for make wrongful gain if possible. To what extent, this contention could be believed needs to be considered.<br /> <br /> 11. J.S.S. Hospital is reputed one. There are no justifiable grounds made out by the opposite party, as to why the said hospital could issue such false document. In 4th paragraph of the version, it is contended by the opposite party that, he is totally unaware of the fact that the complainant took treatment in J.S.S. Hospital. Hence, the opposite party pleads ignorance regarding the complainant taking treatment in the said hospital. However, in the affidavit on 4th page at the beginning, it is stated on oath by opposite party that, the complainant had undergone for treatment of his diabetic, kidney problem, as well as B.P. and cardiac, at J.S.S Hospital, Mysore. Hence, the contention that opposite party has taken in the version, is falsified from his own statement in the affidavit.<br /> <br /> 12. The complainant claims that on 16.03.2009, the opposite party extracted the tooth and had prescribed some medicine, but he developed extreme pain and swelling unable to bear and hence, visited to opposite party on 18.03.2009. As noted above, the opposite party admits that complainant had approached him for dental treatment. In the version, on 3rd page. It is stated that complainant had approached him on 18.03.2009 complaining that pain has not been reduced even after consumption of prescribed tablets and the opposite party after examination, opined that there may be infection around jaw region. Considering this and other material on record, it has been established by the complainant that, because the complainant developed further pain and had swelling, he approached the opposite party on the second day. It is submitted for the complainant that, swelling in the jaw would be only in case of extraction of tooth. This circumstance, fully support the case of the complainant, that tooth was extracted. As noted here before, in the certificate issued by J.S.S. Hospital, also there is specific mention that the complainant presented with history of pain and swelling in front lower jaw region.<br /> <br /> 13. The opposite party contend that complainant had approached for dental treatment and he found pain in jaw of the complainant and accordingly, he gave prescribed certain medicine for pain killer, swelling reducer, infection heals and to prevent further infection. The fact that the opposite party prescribed pain killer and swelling reducer itself further strengthen the case of the complainant that he had swelling. The opposite party admittedly has treated the complainant and for having treated him is bound to maintain case sheet and certain other records. But, for the reasons best known to opposite party, he has not produced the same before the Forum. No reasons are assigned. Under the circumstances, adverse inference shall have to be drawn.<br /> <br /> 14. From the facts, evidence and the circumstances, we are of the considered opinion that the opposite party has in fact extracted the tooth of the complainant. The opposite party has admitted that the complainant had approached for dental treatment mostly because, complainant has got medical prescriptions given by the opposite party. It appears, otherwise, the opposite party could have even denied that the complainant had approached for dental treatment. It appears, opposite party has denied extraction of tooth of the complainant believing that the complainant may not be able to prove the same, since the complainant may not have evidence or document to prove the same. But, considering the entire material on record and the circumstances, we are of the considered opinion that the opposite party has extracted the tooth and falsely denied the same to avoid liability and responsibility.<br /> <br /> 15. Now, the important point that remains for our consideration is, whether the complainant has to proved that he had developed the problems only on account of tooth extraction, for which he was admitted in J.S.S. Hospital and took treatment.<br /> <br /> 16. From the discharge summary, that has been produced by the complainant on page 55 of the documents, the final diagnosis is, “type 2 DM è chronic kidney disease”. Considering the medical records produced by the complainant of J.S.S Hospital, prima-facie, it is made out that the complainant was diabetic, he had heart problem, kidney disease etc., Under the circumstances, in the absence of cogent and sufficient evidence on record, the contention of the complainant that he developed all problems only on account of extraction of the tooth by opposite party, cannot be accepted. However, at the most, it can be said that because of extraction of the tooth, the earlier problems of the complainant might have increased to certain extent. However, the treatment that the complainant has taken in J.S.S. Hospital is not only in respect of the problem developed relating in extraction of the tooth by the opposite party. For this reason, we are of the opinion that the complainant is not entitled for the reimbursement of all the medical charges paid to J.S.S. Hospital.<br /> <br /> 17. From the material on record, the complainant has proved extraction of tooth by the opposite party and the opposite party took false contention, denying the extraction of the tooth. Further, it has been established by the complainant that, he developed pain and swelling on account of extraction of tooth. Hence, for the said pain and suffering, under the circumstances, we feel it just to award a sum of Rs.25,000/- particularly in view of the fact that the opposite party has taken false contention.<br /> <br /> 18. Accordingly we answer the point partly in affirmative.<br /> <br /> 19. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.25,000/- to the complainant towards pain and suffering, as well as mental agony, within a month from the date of this order, failing, the amount shall carry interest at the rate of 12% p.a. till realization.<br /> 3. There is no order as to cost.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 14th October 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />