By Sri. MOHANDASAN.K, PRESIDENT

1. The complaint in short is as follows:-

           Complainant approached the opposite party on 11/07/2017 at about 3.00 PM due to severe tooth ache, she was suffering pain to her 7^th teeth of left upper jaw. The opposite party advised for removal of teeth and if not done, chance to develop pain further. As per his advice, she agreed for the same and the doctor extracted her teeth.  On arrival at her house, the complainant felt non subsisting of pain and she verified the extraction of teeth and found that the doctor had extracted the last teeth of her upper left jaw instead of 7^th one.  She was suffering pain to her 7^thteeth.  The complainant contacted doctor over telephone and then the doctor advised to report after healing pain.  He suggested Root Canal Treatment for the decade teeth and also prepared to replace by a new tooth after 15 days.  But after 15 days the complainant approached the opposite party but the doctor was not prepared to provide root canal treatment or to replace a new tooth. So, the complainant filed a complaint before Edakkara Police Station and it is numbered as 189/2017.

2.       The complainant alleges the act of the opposite party that treating the actual teeth which has got complaint, treated teeth which has no complaint amounts deficiency in service.    The complainant approached the opposite party for a better treatment, but she was not provided proper treatment. The opposite party opted treatment of extraction but it could have treated through root canal.  Due to the act of opposite party, she undergone   various difficulties and so complainant prays for compensation of Rs. 1,00,000/- and also an amount of Rs. 25,000/- for the mental agony and inconvenience caused to the complainant along with cost of Rs.10,000/. Due to deficiency in service on the part of opposite party, the complainant was constrained to approach District Hospital, Nilambur  for the treatment and she continued treatment at there for several days.  The service of the opposite party was below the average and also there was deficiency in service.  If the opposite party has taken reasonable care and caution the incident would not have occurred. 

3.     On admission of the complaint notice was issued to the opposite party and on receipt of notice opposite party entered appearance and filed version. 

4.    The opposite party denied all the allegations and claims in the complaint. According to them the complaint is not maintainable either under law or on the true and correct facts and circumstances of the complaint. He submitted that there is defect of  non -Joinder of necessary party  since the  doctors and staffs  who are claim to have  treated the complainant from Nilambur, District hospital  and so the complainant  is not entitled for any relief and is liable to be dismissed  in limine.  The opposite party is submitted that complainant is not a consumer and there was no negligence, carelessness or deficiency in service on the part of opposite party or any of the doctors or staff working with him.  The complainant was examined and treated   by the opposite party as per usually accepted standard dental protocol, bestowing all care, caution and attention.   The complainant has not approached this Commission with clean hands. The true facts correct and material facts, but has set out untrue, untenable, unsustainable and misleading allegations and claims which as well disentitles the complainant from claiming or getting any reliefs under the act.   The attempt of complainant   to be to make unjust enrichment at the expenses of the opposite party. 

5.       The opposite party submitted that on tender percussion with probe on upper left second molar (2 7), the complainant gave negative response, but on upper left third molar (2 8), there was positive response with sudden jerking from chair, which can be diagnosed as periapical abscesses, periapical lesion in upper left 3^rd molar, a catch of more than 4 mm was found which shows the involvement of mesial pulp horn of upper left 3^rdmolar.  Due to food lodgement, there was a pocket on mesial surface of upper left 3^rd molar which showed bone loss.  The opposite party advised the complainant to take medication for three days and the extraction of upper left 3^rd molar (2 8) was suggested to be done after three days.  Then the complainant replied that she was under self-medication for more than 10 days and she had not slept for five days and requested the opposite party to extract it. The complainant was under medication with no respite, the opposite party accepted the request of complainant to go ahead with the extraction.  After giving buccal infiltration and greater palatine block, the complaint was requested to wait for 5 minutes.  After arranging instruments, she was called back on dental chair and the extraction was done with the consent and cooperation of the complainant.  The extracted tooth was shown to the complainant and she was fully convinced about the decay. After extraction the opposite party had explained to the patient about the necessity of rehabilitation of upper left 1^st molar on the extracted quadrant considering complainant’s age.  The opposite party had even drawn the picture of FPD on back side of the prescription.   There after the opposite party had explained the necessity of doing RCT of upper left 2^ndmolar (2 7) and all the other abutment before capping. But the complainant was not satisfied  by the RCT and she was complaining about  another doctor  who had done  RCT of  molar of  fourth quadrant  which was incomplete  due to her  missed appointments.  Thus, the complainant was not satisfied with any of the conservative treatment of teeth and she was just extracting the carious tooth from long back.  The complainant had left the clinic of the opposite party fully satisfied with the treatment given.   But the opposite party got a  call from her husband alleging wrong extraction,  that instead of  upper left 2^nd molar(2 7), Upper left 3^rdmolar (2 8) was extracted and demanding compensation. The opposite party had explained that there was no wrong extraction and upper left 3^rdmolar, (2 8) was extracted due to bone loss and deep interdental caries.  They were requested to inspect the extracted tooth as well which is still available in the clinic of the opposite party.  But instead of appreciating the true facts, the husband of the complainant had disconnected the phone and around 5.00 pm the complainant along with four persons, one lady and three gents came to the clinic and threatened the opposite party and demanded the compensation.   The opposite party had explained that he had committed no negligence   and tried to make then understand that the source of pain was left upper 3^rd molar (2 8)  which was extracted and the left upper 2^ndmolar (2 7) can be salvaged and need not be extracted.   The extracted tooth which had cavities and decay was also shown to them, but they were not willing to listen or change their pre- conceived notions.  They were not ready to hear anything but was shouting and threatening the opposite party demanding compensation.    The threat and intimidation continued in the following days as well.  The father-in-law of the complainant and a person named Ummer came to the clinic and shouted at the opposite party in front of patients and prevented him from treating the other persons.  The refusal to oblige to their demand for compensation and attempt to explain that he had not committed any mistake and the suggestion that an independent expert opinion on the matter could be had only further antagonised them, and they left the clinic holding out threats and shouting at the opposite party and compel in the waiting patients to leave.  From the next day onwards the opposite party getting calls from different local political leaders asking for money to settle the issue.  The opposite party was being continuously harassed, he was forced to install a CCTV in the clinic and register a complaint in Edakkara Police Station against Ummer and Moideen. Eddakkara Police registered Crime No. 184/2017 under Section 294 (b), 341,506 and 34 IPC on 23/07/2017.    The opposite party also submitted that the complainant thereafter as a counter blast and after thought filed a false and frivolous complaint against the opposite party alleged medical negligence on 25/07/2017, registered as crime No. 189/2017 by the Edakkara Police Station Malappuram. Basing on the said complaint, the matter is seen referred to an expert Dr.Varna. R, Assistant Dental Surgeon District Hospital, Nilambur as part of the investigation, the report dated 02/08/2017 of the said expert does not indicate any negligence, let alone gross negligence on the part of the opposite party.  It was specifically found that the upper left 2^ndmolar (2 7) does not indicate any negligence, let alone gross negligence on the part of the opposite party.  It was specifically found that upper left 2^nd molar (2 7) does not need extraction. The extracted tooth is also available for expert analysis, which if properly   subjected to forensic analysis would reveal the falsity of the allegations raised by the complainant.  An additional charge under Section 232 of the Kerala Panchayth Raj Act was also added without any basis, when the application for renewal of D & O licence submitted by the opposite party was pending and later granted by the Eddakkara Grama Panchayath on 23/11/2017.  JFCM, Nilambur are taken cognizance of the above crime and arises opposite party as the accused in CC.No.544/2017, alleging the offence punishable under Section 338 IPC.  As the Police was found to be acting as a willing tool in the hands of the complainant and her henchmen on account of high political and money influence the opposite party was constrained to file a criminal miscellaneous petition for quashing CC.No.544/2017 pending before the JFCM, Nilambur before the Hon’ble High Court of Kerala as Criminal.M.C.No.8761/2017 and Hon’ble High Court was pleased to grant an interim order of stay all further proceedings in the matter. 

6.      The opposite party submitted that the complainant was throughout treated as per the standard and accepted dental protocol. The upper 3^rd molar (2 8) which was beyond salvage and causative offending tooth which was causing   the excruciating pain was extracted with the knowledge and consent of the complainant, and she was relieved of the symptoms. The fact that the upper left 2^ndmolar (2 7) with the complainant claims to be the reason for the pain and needed extraction is still retained and the expert as well as found that   it need not require extraction, but can be resorted either with a simple filing or with a Root canal treatment, belies and discredits the case and claim of the complainant.  The opposite party was submitted that the upper left 2^ndmolar (2 7) was not the source of pain.  It is submitted that the two most common reason for a painful tooth is Pulpitis and Periodontitis.  In pulpitis (Inflammation of the pulp) pain is not localised.  Patient may relate it to or any tooth on that side which she sees as decayed and is the common cause misunderstanding.  In the case of Periodontal disease, the patient can very clearly identify the tooth because it will be tender.  The extracted tooth, upper left 3^rdmolar (2 8) of the complainant is available with the clinic of the opposite party, and the opposite party is ready to submit it before this Commission and the complainant is liable to be directed to take steps to send the same for expert analysis and report called for. If the complainant fails to take such steps, which she is bound to do to discharge her burden of proof, the opposite party may be permitted to take such steps at the expense of the complainant.  The requisite expenses are liable to be directed to be deposited by the complainant before this Commission.

7.          The facts are being as stated above the claim of the complaint and allegations are not proper, correct or sustainable, lacking in truth and bonafides, besides being baseless, erroneous and ill motivated.  The opposite party denied that the complainant had excruciating  pain on  her 7^th tooth of the upper row ( 2^ndmolar), that the opposite party suggested the tooth needs to the extracted or else the pain would increase, that  believing the suggestion of the doctor the complainant had given consent , even after a  long time on reaching  home  the pain had not reduced ,  that the complainant realised that the last tooth of the upper  row (3^rd molar) had been extracted,  that in fact  the complainant had disease and pain  on the proceeding tooth (2^ndmolar/7^th tooth),  that the complainant had phoned  and talked  the matter to doctor and the doctor assured and he would treat and replace the abscess in tooth,  Root canal treatment, that he would  replace  and reinstate new tooth for mistakenly extracted toot , that opposite party requested to approach him  after 15 days, that after 15 days  complainant approached the opposite party,  that there upon the doctor informed  that  it is not  possible either to replace  the mistakenly removed tooth or to perform Root Canal Treatment on existing tooth are not proper, correct  or sustainable ,  and so opposite party denied . 

8.         The opposite party also submitted that the extraction of recently  erupted  last tooth of the upper row (3^rd molar) instead of preceding one (2^nd molar) of the complainant amounts to deficiency in service, complainant is currently undergoing treatment for her disease and the disease was caused and occasioned  due to the mistake of the opposite party, that the opposite party  doctor had adopted wrong method of the extraction of tooth  for which  a Root Canal Treatment was enough, that the complainant   had caused  permanent  discomfort / problems that  for which the opposite party is liable to compensate, the complainant had suffered discomfort/ problems only due to the deficiency in service of the opposite party ,  and for which opposite party is liable to pay  Rs. 1,00,000/- and Rs. 25,000/- for mental agony and Rs. 10,000/- for the cost of proceedings, that the OP ticket of the Nilambur District Hospital would show the existence of the tooth  with abscess, that perusal of the same would reveal the deficiency and carelessness on the part of the opposite party are not true, correct, proper or sustainable, and hence denied.  It is also denied that an incident like this was not happened if there was reasonable care and caution which would have to exercise by the opposite party.  It is submitted that no loss, injury, hardship or damage has been caused or occasioned to the complainant/ patient on account of the opposite party and there was no negligence, deficiency in service or carelessness as seen alleged or otherwise, in the complaint.  The opposite party had avoided appropriate treatment was the situation warranted and the allegations to the contrary are not true or correct, besides being thoroughly unfair, uncharitable, baseless and unsustainable.  There is no truth or bonafides on the part of the complainant in filing the complaint and the complainant is not entitled to nor is the opposite party is liable or responsible for any of the reliefs seen claimed in the complaint. 

9.      The complainant and opposite party filed affidavit and documents.  The documents on the side of complainant marked as Ext. A1 and A2. Documents on the side of opposite party marked as Ext. B1 to B5. The complainant was examined as PW1. The first opposite party was examined as DW1. Dr. Varna. R examined as DW2. The extracted tooth of the complainant which is retained in opposite party's clinic is marked as MO.1  Ext. A1 is a Prescription, Ext. A2 is  Prescription dated 11/7/2017. Ext.B1 is copy of FIR dated 23/07/2017 No.184/2017 Edakkara Police Station, Ext. B2 is Expert Report issued by Dr. Varna dated 02/08/2017, Ext.B3 is D & O License granted by the Edakkara Grama Panchayath dated 23/11/2017, Ext.B4 is Stay order copy of Hon’ble High court of Kerala in Criminal MC No. 8761/2017 dated 18/12/2017, Ext. B5 is Order copy of Hon’ble High court of Kerala in Criminal MC No. 8761/2017 dated 08/10/2018.

10.      Heard both sides, perused affidavit and documents.  Opposite party filed notes of argument also. The following points arise for consideration:-

1. Whether there is deficiency in service on the part of the opposite party.
2. Relief and cost.

11.  Point No.1 & 2

         The grievance of the complaint is that the opposite party extracted Upper left 3^rd molar (2 8) instead of upper left 2^nd Molar (2 7).  The complainant contacted immediately after reaching her residence and verifying the same and the opposite party advised her to report after healing the pain for doing Root Canal Treatment for the decaying teeth and also expressed his willingness to replace  the extracted teeth.   The complainant after 15 days again contacted the doctor   but refused to act as promised. 

12.         The contention of the opposite party is that on tender percussion with probe

on upper left 2^nd molar (2 7) the complainant gave negative response, but on upper left 3^rd molar (2 8) there was positive response with sudden jerking from chair, which can be diagnosed as periapical abscess, periapical lesion in upper left 3^rd molar, a catch of more than 4 mm was found which shows the involvement of mesial pulp horn of upper left 3^rd molar.   Due to food lodgement, there was a pocket on mesial surface of upper left 3^rdmolar which showed bone loss.  The opposite party advised the complainant to take medications for three days and the extraction of upper left 3^rd molar (2 8) was suggested to be done after three days.   But the complainant replied  that  she was  under self-medication for more than  10 days  and she  had not  slept for 5 days and requested  the opposite party  to extract it.  Since the complainant was under medication with no respite, the opposite party accepted request of the complainant to go ahead with the extraction.  After giving buccal infiltration and   greater palatine block, the complainant was requested to wait for 5 minutes after arranging instruments she was called back on dental chair and the extraction was done with the consent and cooperation of the complainant.  The extracted tooth was shown to the complainant and she was fully convinced about the decay.  After extraction   the opposite party had  explained  to the patient  about the  necessity of  rehabilitation of upper  left 1^st molar  on the  extracted quadrant   considering  complainant’s  age.  The opposite party had even drawn the picture of FPD on back side of the prescription.  It is also submitted that the opposite party thereafter had explained the necessity of RCT of upper left 2^nd molar (2 7) and   all the other abutment before capping.

13.           The  complainant  was  not  satisfied  with suggestion  of  RCT   and  she was 

complaining about another doctor who had done  RCT of  molar of  fourth quadrant  which was incomplete  due to her  missed appointments.   The complainant had left the clinic of the opposite party fully satisfied with the treatment.  But later the opposite party got a call from her husband alleging wrong extraction and demanding compensation. Though the opposite party explained to the complainant, the dissatisfied husband of the complainant along with four persons came to the clinic of the opposite party and demanded compensation. Which resulted filing complaint before the Police Station by the opposite party and also thereafter by the complainant.

14.     In this complaint the document Ext.A1 is the prescription which contains the picture of FPD on back side as stated by the opposite party.  The complainant was examined before commission, but no expert evidence was adduced on behalf of complainant.  But opposite party examined Dr.Varna. R, Assistant Dental Surgeon, District Hospital, Nilambur as DW2. Dr. Varna has deposed that the treatment records do not indicate any negligence as alleged by the complainant. She has stated that “I did not find any indication of negligence or carelessness on the part of earlier doctor who did the extraction.  Patient  did not avail any treatment  or complaint  of any pain  or discomfort  when she approach  me for  examination  of the issuance of  certificate.  The very fact that the upper left 2^ndmolar is still retain, also would indicate that the said tooth might not have been the problematic or offending tooth.”  DW 2 also had deposed that “MO1 v കാണിച്ച പല്ല് root canal ചെയ്യാu ബുദ്ധിമുട്ടുള്ള പല്ലാണ്. സാധാരണഗതിയിv ഈപല്ല്എടുത്തുകളയാറാണ്  പതിവ്. എടുത്തു കളയാu കാരണം, ഈ പല്ല് എടുക്കുന്നതു കൊണ്ട്   നമുക്ക്  ചവക്കാനും മുഖ സൗന്ദര്യത്തിനും  വ്യത്യാസം വരുന്ന ഒന്നല്ല. Treating Doctor –ടെ  clinical findings-ഉം Forensic evaluationഉം അടിസ്ഥാനപ്പെടുത്തിയാണ് ആ പല്ല്എടുക്കണോ , വേണ്ടയോ എന്നു  തീരുമാനിക്കുന്നത് എന്നു പറഞ്ഞാv ശരിയാണ്‌.    

15.      In the light of above fact and circumstances we cannot find fault on the side of opposite party in extraction of tooth.  The opposite party has got sufficient reason to extract tooth which he has extracted.  The complainant failed to establish the extraction of tooth was done mistakenly.  There is no allegation of   negligence in treatment, but mistaken extraction of tooth is the allegation.  The deposition of the DW 2 substantiate contention of the opposite party by categorical affirmation. The perusal of documents also does not support the complainants’ averments to find fault with opposite party.  Hence, in the absence of sufficient evidence, it will not be proper to find any deficiency in service on the part of opposite party.

16.     In the light of above facts and circumstances we find the first point against the complainant and the question of consideration of second point does not arise and so this complaint stands dismissed.