Per Sri A. Hazarath Rao,  President:-

          The complainant filed this complaint under section 12 of the Consumer Protection Act, 1986 against opposite party seeking compensation of Rs.50,000/- towards mental and physical agony as the opposite party extracted 8^th tooth instead of 7^th tooth and for costs. 

2.   In brief the averments of the complaint are hereunder:

          The complainant on 26-09-11 approached the opposite party for teeth problem.   The opposite party after taking x-ray diagnosed that the complainant was having a problem with 7^th tooth of right side upper jaw.   The opposite party in his clinic on 28-09-11 extracted tooth and charged Rs.1500/-.   The complainant few days later noticed that the opposite party extracted 8^th tooth instead of problematic 7^th tooth.   The complainant brought the same to the notice of the opposite party and requested for remedy.  The opposite party gave reckless answer and demanded extra money for removing 7^th tooth.   The opposite party gave reply with false allegations to the notice issued by the complainant.   The complainant lost good tooth by the negligence and irresponsible service of opposite party.   The opposite party thus committed deficiency of service.   The complaint therefore be allowed.                    

3.  The opposite party remained exparte.

4.   Exs.A-1 to A-5 were marked on behalf of complainant.  

5.    Now the points for consideration are:

1. Whether the opposite party extracted 8^th tooth (good) instead of the damaged 7^th tooth and committed deficiency of service?
2. Whether the complainant is entitled to any compensation?
3. To what relief?

6.   POINT No.1:-    Medical negligence has to be proved either by expert evidence or by literature.   The opposite party remaining exparte in no way lessen burden of the complainant in proving medical negligence.                          The complainant took time again and again for filing affidavit of the doctor who treated him on 2^nd occasion.   The complainant on 26-03-13 filed IA 159 of 2013 to summon the concerned dentist of GGH and produce evidence.   This Forum on 03-04-13 dismissed IA 159 of 2013. 

7.      The complainant on 08-04-13 proceeded to argue the matter and stated that the evidence on record is sufficient to establish negligent attitude of the opposite party in treating him.   Now this Forum has to see whether the evidence adduced by the complainant is sufficient to prove the negligence alleged/complained.

8.  Ex.A-4 prescription revealed that the complainant approached the opposite party for extraction of 7^th tooth.  In Ex.A-4 it was mentioned                   that the teeth 6 and 7 of upper right jaw (2^nd and 3^rd molar teeth) required treatment due to dental caries.   The opposite party advised either extraction or root canal treatment for 7^th tooth as seen from Ex.A-4.  Ex.A-4 also revealed that the opposite party extracted 7^th tooth.

9.      The complainant filed x-ray (Ex.A-1(a)).  The complaint was silent whether Ex.A-1(a) x-ray was taken before treatment or after treatment.  As only one x-ray was filed in our considered opinion it is not of any help to this Forum be it may be before treatment or after treatment.

10.   Exchange of notices between the complainant and the opposite party took place (Exs.A-2 and A-3).   The complainant relied on Ex.A-2 reply given by the opposite party to his Ex.A-3 notice.  In Ex.A-3 notice the complainant mentioned “After reaching the home after some time to the astonishment of my client it was found that the 8^th tooth which had no defect was removed instead of 7^th tooth which is bad.  It shows the irresponsibility, carelessness and inadvertence of you”.     To the said allegation the opposite party mentioned:

“After extraction of any tooth the adjacent tooth will usually migrates into the space of extracted tooth space.   So clinically in your client’s oral cavity at the place of 6 the 7 i.e., second molor migrated and so my client considered 7 is the 6 and the 8 is the 7.   Hence my client had mentioned in his prescription slip as advised for extraction of 7 on first visit of your client to his clinic.   For further clarification it means clinically presenting the last tooth i.e., posterior most tooth suppose to be extracted.   My client explained to your client about his confusion regarding tooth numbering system in the mentioned in the prescription slip is only for the convenience purpose of x-ray technician.   It is further to inform you that your client on the first visit had informed that his 6 tooth was removed about five to six years back due to mobility and dental decay and so his 7 tooth was migrated in the space left after extracting his 6 tooth long back and accordingly his 8^th tooth is migrated into the 7^th place”.

11.    Migration of teeth is a well documented ectopia, the mechanism that causes the migration of a tooth is still not clear.  An impacted tooth migrates to a location some distance away from the site of its development but usually remains within the same side of the arch.   The above said explanation did not find place in Ex.A-4 case sheet.  We already observed that Ex.A-1(a)               x-ray is of not of any help to this Forum.   We therefore opine that the complainant discharged his initial burden in proving that the opposite party treated him negligently.   The opposite party by remaining exparte failed to discharge his burden in proving that he acted diligently.   For the discussion made supra we hold that the opposite party committed deficiency of service and answer this point in favour of the complainant.   

12. POINT No.2:-   The complainant claimed Rs.50,000/- as damages by estimating his suffering.   The complainant did not file any document to show that he took further treatment from another dentist and incurred expenses.   The statement of complainant about the opposite party charging Rs.1500/- remained unrebutted.  

13.    It is well settled in law that the amount of compensation must commensurate with quantum of loss.  No doubt the complainant must have suffered inconvenience and suffering on account of extraction of another good tooth instead of damaged tooth. The complaint as well as complainant’s affidavit was silent regarding estimation of damages at Rs.50,000/-.  Under those circumstances, awarding Rs.10,000/- towards compensation in our considered opinion will meet ends of justice.   We therefore answer this point accordingly.

14.  POINT No.3:-   In view of above findings, in the result the complaint is partly allowed as indicated below:

1.  The opposite party is directed to pay Rs.1500/- (Fifteen hundred only) charged by him from the complainant.

2. The opposite party is directed to pay Rs.10,000/- (Rupees ten thousand only) as compensation to the complainant.

3.  The opposite party is directed to pay Rs.2,000/- (Rupees two thousand only) towards costs to the complainant.

4.  The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order as otherwise the amounts mentioned in columns 1 and 2 shall carry interest @9% p.a., from the date of order till realisation.

          Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 12^th day of April, 2013.

Sd/-XXX                                                                             Sd/-XXX

MEMBER                                                                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite party:     NIL

                                                                                                           Sd/-XXX

     PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.