Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating thatthe complainant had been ;suffering from pain in her teeth and on 02.08.2016 the complainant went to the chamber of OP herein for a through dental checkup. The op carried out a thorough dental checkup on the said date and advised Root canal Therapy followed by insertion of a crown on the tooth being T6.  Subsequently on 21.09.2016 a small operation was performed on the complainant together with Root Canal therapy and 26.9.2016 was fixed for insertion of the crown.  On 26.9.2016 the crown was fitted on the said tooth being T6 and Rs.15000/- was paid bythe complainant for the insertion of the crown.  It was assured by the op that the problem of the pain which the complainant suffered foralong time would be absolutely resolved.   It was also assured together with a guarantee that the crown would not get dislodged for which such a high price was charged from the complainant.

In the month of May, 2017 i.e., about eight month from the insertion of the crown on said T6, the crown got dislodged and on 17.5.2017 the same had to be reinserted with an assurance and also guarantee that the same would not occur again.  Again on 17.3.2018 the said crown was go dislodged and theop again fitted the same by charging Rs.500/-.  Inspite of all such assurances and guarantee thecrown got dislodged again in themonth of July, 2018 resulting in the fracture of the teeth on which the said crown was fitted.  The complainant immediately rushed and asked why the same problem recurred at a regular course of time in spite of spending huge amount for the same.  On being so confronted the op told the complainant to return the old crown and the warranty card since the same had to be sent to the laboratory from where it was made for the purpose of testing.  The op further advised the complainant to pay the charge which the laboratory would charge for the testing.  Accordingly on 11.7.2018 a new and very cheap crown was fitted after charging Rs.500/- which caused huge pain in the said tooth of the complainant.  The op prescribed some medicine for instant relief.  During the entire period of treatment the complainant suffered tremendous mental and physical pain which cannot be expressed in words.

In the course of treatment conducted by the op the complainant had totake several medicines as per the prescription of the op& result ofthose medicines the complainant developed a burning sensation from throat to belly which got aggravated slowly andon 15.7.2018 the complainant’s health condition deteriorated so much that she had to consult the Doctor, said the doctor changed the medicines of the op considering them to be detrimental to the health of the complainant and gradually on taking the medicines prescribed by the doctor the health of the complainant improved and she could perform her daily activities.

On 18.7.2018 the complainant again went to the OP and demanded the old crown alongwith the warranty card which she had handed over to the op for testing purpose.  That to the utter dismay of the complainant the op refused to hand over the old crown stating that a new crown was fitted in exchange of an old one.  At the time of fitting the new crown the op told the complainant that it was a temporary measure and that the cost of the new crown was fur lower than the old crown.

Till today inspite of establishing correspondence with the complainant through series of letter neither the cost of the new crown has neither been stated nor has any cash memo together with warranty card been handed over to the complainant by the op to the complainant either personally or through registered post and finding no other alternatives the complainant sent one letter dated 30.7.2018 to the op disclosing the state of affairs she was subjected to and also the tremendous physical and mental agony she had suffered during the course of the treatment and alsothe post treatment period.

Subsequently the op gave one reply dated 13.8.2018 merely denying all the allegations.  Again the complainant sent two letter one dated NIL and the other dated 18.9.2018 through a ld. Advocate to which the complainant received two replies one dated 24.9.18 and other dated 9.10.18.  The reply dated 9.10.18 was sent by the op through his ld. Advocate wherein it has been wrongly contended that the complainant was advised not to chew hard food staff since the same might result in fracture of tooth or dislodgement of the crown or that due to negligence on the part of the complainant and for chewing inappropriately hard substances the damaged tooth was getting fractured repeatedly resulting in dislodgment of the crown.

In this regard that on bare perusal on the prescription of the op no reflection to the above effect that the complainant chewed hard food staff inappropriately resulting in dislodgement of the crown will be found so such contentions on the part of the OP is a mere attempt to cover up of the tooth.  So far as the remaining contentions of the said letter are concerned it is humbly submitted that they are malicious, vexatious and improper allegations.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 100000/- for causing irreparable loss, injury and damage, together with mental tension and agony and to pay a sum of Rs.15000/- towards the old crown in possession of the op.

Defense Case:-     The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that  the complainant a middle aged lady suffering from dental problem came to the chamber of op on 2.8.16.  The op thoroughly checked the complainant and found that T6 as stated by the complainant was carious.  She was advised with root canal treatment of tooth followed by a crown placement on it, as she did not want to get that tooth removed.  The RCT was done on 2.8.16 (No RCT was performed on 21.9.2016 as claimed by the complainant).  And as per the complainant’s convenience she was asked to come on 21.8.16 for the crown placement.  Instead the complainant delayed it for one month and finally came on 21.9.16 for crown placement.  Thus the tooth remained unprotected without a crown for a long time and the complainant kept on chewing with the affected half treated tooth for those days, leading to weakening of the supporting tooth structure, which was a cause for core-fracture and dislodgement of the crown multiple times.  It was negligence on complainant’s party todelay the process and not to complete the treatment in its due time.  The complainant was served with a copy of Do’s and Don’ts related to RCT during this treatment (not filed with the complaint).  On 21.9.16 OP prepared the tooth to receive a crown and an impression was made of the prepared tooth.  The complainant was given options of various types of crowns available between Rs.2000/- and Rs.25000/- and she chose to opt for a zirconia made crown of Rs.12000/-.  On 26.9.16 the zirconia made crown was cemented on her tooth.  The complainant has mentioned the word “cost of the crown” to be Rs.15000/-.  But this cost is for the whole procedure of Root canal treatment and crowning the tooth (Rs.3000/- for RCT + Rs.12000/- for the crown). It is necessary to state here that the complainant either had to uproot the offending tooth or had to proceed for RCT + crown.  Crowing is necessary to protect the tooth, as after RCT the tooth becomes dead due to loss of blood and nerve supply and becomes brittle in every case. So special care of its maintenance is needed.  Op did not give any assurance that the problem is absolutely resolved as alleged and no guarantee was given that the crown will never dislodge.  These types of fake assurances and guarantees are never given to a patient in a professional practice by the op.  This is completely a false allegation and denied.

It is to understand the fact that although crown are not prone to decay but the tooth under it may get decayed, if correct oral care routine is not followed.  When the hard tissue decays, it weakens the cement with which the crown was fixed and a forceful bite will cause it to pop out. Depending upon the severity of decay the old crown mayor may not be refitted on the tooth.  In such cases a new filling (core-buildup) on the tooth, followed by a new crown may be required.  Here in this case RCT was done on 2.8.16 and the complainant delayed the crown placement for one month and came on 21.9.16.  It caused damage to the treated tooth andmade it weak, as a result the tooth was getting broken multiple times, leading to dislodgement of the overlying intact crown.

The petitioner was not following the dos and don’ts.  For this reason also, the crown got dislodged on 17.5.17.  The dislodged crown was refitted by my client free of cost.  The complainant was repeatedly asked to follow the post-operative instructions, which she was not following.  She was advised not to chew hard food stuff which may cause fracture of the tooth or dislodgement of the crown.  That through she had been explained every pros and cons, yet due to negligence on her part and for chewing inappropriately hard substances her damaged tooth was getting fractured repeatedly resulting into dislodgement of the intact crown.  Due to eating hard substances with that weak tooth the core of the crown got fractured on 17.3.18.  Op again built the core and recemented the dislodged crown on 17.3.18 and charged Rs.500/- as his fees.  The complainant was asked tocome for a review checkup after one month of this, but she did not turn up instead after 4 months, on 8.7.18 she came back again with a fractured core and a dislodged crown.  She was told that the core was so broken that a new core has to be made and a new crown has to be placed on thenewly built core now.  Thecomplainant was asked to come for complete core rebuilding and tooth preparation for anew crown on the next day.  She asked to handover the zirconia crown along with its warranty card to op for submitting it to the supplier for possible replacement.  In this situation to protect her tooth from further damage op rebuilt the fractured tooth and covered it with a new permanent crown free of cost.  Rupees 500 which was charged from complainant was not for manufacturing the new crown, but for cost of rebuilding the fractured tooth with dental materials.  The first crown was sent to the supplier, it was found to be in goodcondition by the lab and was subsequently returned to op.  However, once a tooth is completely rebuilt and newly prepared then there is no scope of refitting that old zirconia crown on it (as the shape of the tooth has changed by now, it cannot accept the old crown).  If the lab had found the zirconia crown to be faulty, then op could remove the second permanent crown and take a new impression of the rebuilt tooth for fabrication of a brand new zirconia crown free of cost as a replacement.  The complainant did not come with any post-operative problem with the newly cemented crown, neither had she consulted any other dental surgeon regarding this, and this is the last time the complainant visited the op.  The old crown was not taken for testing in a laboratory against a charge as alleged by the complainant.  The new crown which was given to the complainant free of cost, was not a temporary crown oran interim measure.  As per the prescription by op, it was porcelain fused tomental permanent crown by a renowned company called “VITA”.  It is also denied that the post-operative pain was due to the crown being cheap.  As the complainant had not sought any second dental opinion during and after allthese procedures, it can be assumed that the complainant is continuing with her new PFM crown without any problem.  The problem which she had developed after placement of the PFM crown was purely medical in nature caused by taking disclofenac which was not prescribed by op at all.  The complainant is strictly bound to prove the statement ofmental agonyand physical discomfort.

It is clear from the prescription of Doctor dated.15.7.18 the complainant had taken the medicine diclofenac 50mg thrice daily (TDS) for preceding5-6 days causing burning pain in her upper abdomen and chest.  As evident from the photocopies of the prescriptions of OP, Diclofenac 50mg TDS was not prescribed by op at all.  It is denied that she had taken themedicine as per op’s advice.  The complainant hadtaken thismedication on her ownwhim and risk.  As per op’s prescription dated 9.7.18 complainant was advised with intake of signoflam (aceclofenac+paracetamol+serratiopeptidase) along with an antacid .Aceclofenac is far less gastric irritant than diclofenac with greater efficacy of analgesia.  Previously on 2.8.16 after the RCT thecomplainant was prescribed with acclofenacparacetammol combination  twice a day by opand complainant hadcomplained nothing subsequently, sothesame drug was repealed on her later and instead of which complainant took disclofenac 50mg TDS as evident from Doctor’s prescription.  Soop cannot he held liable for this complications.  The petitioner herself is liable for the abdominal pain suffered by her.-

Op never refused to return the old crown on 18.7.18 when her husband came alone and demanded it back, as on that day the said crown was not in his possession because it was submitted to the lab.   The new crown which was given to the complainant free of cost was not a temporary crown oran interim measure. As per theprescription by op, it was porcelain fused tometal permanent crown by arenowned company called VITA Thecomplainant hadnot sought any seconddental opinion during and after all these procedures.  So it can be assumed that complainant is continuing with the new PFM crown withoutany problem.  The 2^nd crown was given free of cost to the petitioner, so there isno question of issuing of any warranty card with it as Rs.500 was not the new crown’s cost. 

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Serampore, Hooghly and op has chamber at Serampore, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in follow up care, at any point of time by treating doctors or anyone else it is always open to be considered by the Commission. This legal principle has been observed by Hon’ble Apex Court in the case of Chandra Rani Akhori and others vs. M.A. Methusethupathi (Doctor and others) and it is reported in II(2022)CPJ 51 (SC).         All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant who is a resident of Serampore, Hooghly was suffering from dental problem.
2. It is also admitted fact that op is a dental surgeon having his chamber at Serampore, Hooghly.
3. There is no controversy over the issue that the complainant for the purpose of medical treatment of her dental problem went to the chamber of op on 2.8.2016.
4. There is no dispute over the issue that the complainant was not interested to uproot/ extract her affected teeth and the said the matter was disclosed to the op.
5. It is admitted fact that the op thereafter advised the complainant to undergo root canal therapy followed by insertion of a crown.
6. It is also admitted fact that on 21.9.2016 a small operation was performed on the complainant together with root canal therapy.
7. There is no controversy over the issue that on 26.9.2016 it was fixed for insertion of crown and thereafter on 26.9.2019 a crown was fitted in the said tooth being T6.
8. There is no dispute over the issue that Rs. 15,000/- was paid by the complainant for the insertion of the crown.
9. It is admitted fact that in the month of May, 2017 that is about 8 month after the insertion of the crown on said T6, the said crown got dislodged and thereafter on 17.5.2017 the same had to be inserted.
10. It is also admitted fact that on 17.3.2018 the said crown was again dislodged and op again fitted the same.
11. There is no controversy over the issue that in the month of July 2018 the crown was got dislodged once again resulting the fracture of the teeth on which the said crown was fitted.
12. There is no dispute over the issue that during the course of treatment under op the complainant had taken the medical assistance of Dr. Arnab Kumar Patra (M.D.) and started to take medicine of Dr. Patra.
13. It is admitted fact that on 18.7.2018 the complainant once again went to op.
14. It is also admitted fact that in this instant case the complainant has not prayed any expert evidence.
15. There is no controversy over the issue that the complainant in order to prove her case has also not examined Dr. Arnab Kumar Patra (M.D.). 

                  Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

                 On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that due to negligence and carelessness on the part of the op the complainant had to suffer physical and mental pain and she also failed to recover from the dental problem and for that reason the op has deficiency of service and negligence and so she is entitled to get compensation and cost of treatment from the op but on the other hand it is the defence alibi adopted by op that the complainant was negligent and she had not followed the advice of op and she had chewed herd substances with the newly inserted crown time and again and for that reason the crown fitted on the affected teeth of complainant has not been fully recovered and due to negligence on the part of the complainant the op cannot suffer and the op has no defiance of service and negligence on his part.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that Dr. Arnab Kumar Patra asked the complainant to stop diclofenac which was not prescribed by the op at all and Dr. Patra had not changed any of the drugs advised by the op and Dr. Patra had advised the complainant to continue all the medicine advised by the op and to avoid pain killers. It is revealed that the complainant was so negligent that she ignored Dr. Patra’s advice and also ignored advice given by op. After going through the evidence on record and documents this District Commission also noticed that the complainant had not attended the chamber of the op by following the direction given by the op in his prescription and also had not attended the op in proper time for treatment after fitting of the crown. All these factors are clearly reflecting that there is negligence on the part of the complainant. In this instant case the complainant side has alleged that the op had not returned back the crown and its warranty inspite of repeated demand. Over this issue it is very important to note that the complainant had never approached before this District Commission with such prayer and so such type of allegation of the complainant cannot be accepted.

After going through the materials of the case record it is found that the complainant has neither prayed before this District Commission for appointment of expert for getting expert opinion nor has examined Dr. Arnab Kumar Patra under whom the complainant had undergone medical treatment in course of her dental problem. In this case the complainant by referring the judgments reported in IV (2006) CPJ 8 (SC), II (2022) CPJ 230 (NC) and III (2022) CPJ 238 (NC) and argued that medical practitioner when acted carelessly and negligently and action in torts maintainable and in the event of medical negligence post-operative complications action in torts is also maintainable. Over this issue and argument of the complainant side the decision of Hon’ble Apex Court 2005 SCC (Cri) 1369 is very important where Hon’ble Apex Court has been pleased to observe that onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in the compliant which is denied by the other side case by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In this instant case the complainant has failed to produce expert evidence and to examine Dr. Arnab Kumar Patra in this case. All these factors are cellar reflecting that complainant has failed to prove his case against the op. In this regard it is the settled principle of law that that the medical negligence liability would only come if either Doctor did not possess requisite skills which he professed to have possessed or he did not exercise with reasonable competence in given case skill which he did possess. It is also important to note that no doctor would assure full recovery in every case. This legal principle has been observed by the Hon’ble Apex Court of India and it is reported in the II (2022) CPJ 51(SC).

A cumulative consideration of the above noted discussion goes to show that the complainant has failed to prove her case against op and so this District Commission has no other way but to dismiss this case.

In the result it is accordingly

ordered

that the complaint case being no. 9 of 2019 be and the same is dismissed on contest.

            Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.