Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The   complainant has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that she was suffering from Molar Teeth ( Jaarh) problem and on 14.02.2018 she visited the Opposite Parties hospital and after dental check up, the Opposite Parties gave medicines, but the problem of the complainant not cured. Lateron, the Opposite Parties advised the complainant for operation of molar teeth and the complainant believing upon the Opposite Parties agreed to under go an operation of her molar teeth. On 10.04.2018, the Opposite Parties conducted an operation of molar teeth of the complainant and gave hr medicines and injections etc and assured the complainant that now after operation she will have no problem, but the complainant will have to regularly visit for proper check up and medicines and for this, the Opposite Parties charged Rs.80,000/- in cash from the complainant from the date of her first check  visit upto operation.  Even after undergoing the operation, the complainant had remained regular severe pain and swelling in her mouth, she approached the Opposite Parties and disclosed about her problem. The Opposite Parties again admitted her in their hospital and give injection and medicines etc and again received Rs.10,000/- from the complainant. Thereafter, the complainant remained under continuous/ regular treatment of the Opposite Parties for about two weeks, but day by day, her condition of teeth and mouth deteriorated and the Opposite Parties failed to cure the complainant and her condition could not  improve even after three months and the Opposite Parties started demanding more amount from the complainant and also prescribed for an other operation. But seeking no other option, the complainant approached Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot, where the concerned doctors medically checked up the complainant and from the x-ray examination of complainant, it was clearly found that a cotton swabs and small articles of waste are left inside while rooting of molar teeth of the complainant which  resulted in swelling and severe pain to her and it is totally negligent act committed by the Opposite Parties while conducting root canal of molar teeth of the complainant.  The complainant remained under medical treatment of Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot and she has again undergone an operation for removal of cotton swabs and other waste material from her teeth, left by the Opposite Parties at the time of operation and the complainant again spent huge amount for second operation of her molar  teeth.  Due to the negligence and deficiency in service on the part of the Opposite Parties, the complainant suffered severe pain and swelling, mental tension and physical harassment at the hands of the Opposite Parties. Due to the aforesaid illegal and unwarranted acts, the complainant suffered a lot. Vide instant  complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to pay Rs.2 lakhs which includes the medical expenses incurred by the complainant and on account of damages and compensation, for leaving cotton swabs and small articles of waste inside while rooting of molar teeth of complainant while conducting operation of molar teeth of the complainant whereby causing severe pain, mental tension and physical harassment to the complainant alongwith interest @ 2% per month from the date of operation till actual realization and any other relief to which this District Consumer Commission,  may deem fit be granted.

Hence, the present complaint is filed by the Complainant  for the redressal of her grievances.

2.       On notice,  none has put in appearance on behalf of Opposite Party No.2 and hence Opposite Party No.2 was proceeded against exparte.  Opposite Party No1. appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is  not maintainable; that  the complainant has got no locus standi to file the present complaint;  that the complaint is absolutely false and frivolous.  The present complaint is baseless and flagrant abuse of process of law which has been made intentionally to harass, blackmail and extort easy sums from the Opposite Parties. It has been held by Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 in para 94 inter alia read as under:

“On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles’ emrge in dealing with the cases of medical negligence. While deciding whether the medical professionals guility of medical negligence following well known  principles must be kept in view:- 

I.          Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.        Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.       The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.       A medical practitioner would be liable only where his conduct fell below that of the standards of   a  reasonably   competent practitioner in his field.

V.     In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.  The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.      Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.    It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the  patients have to be paramount for the medical professionals.

The answering Opposite Party is well qualified and is post graduate in MDS (Prosthodonics and Crown & Bridge) and had passed her Post Graduate Degree from Baba Farid University of Health Sciences, Faridkot and since then she has been practicing as a dental surgeon. She was also awarded certificate of completion by the Genesis regarding her successful completion of advance training program in Surgical Implant Logo & Implant Prosthodontics. The factual condition is the that the complainant for the first time approached the answering Opposite Party on 14.02.2018 and she had complained of having pain and sensitivity in her left lower back tooth region. She was examined by the Opposite Party No.1 and it was found that her left lower first molar teeth was grossly carious. The patient was advised to undergo RCT and Opposite Party No.1  understanding the gravity of the condition of the complainant, started giving a treatment on the same day. First sitting for conducting RCT was done, whereas the same is required to be completed in multiple sittings. Even x-ray was conducted for RCT after soliciting the line of action by the Opposite Party No.1. As per the OPD slip, the complainant was advised some medicines and again she was asked to visit on 16.02.2018. On 16.02.2018 she was again advised to come again on 21.02.2018 and on 21.02.2018 the complainant visited Opposite Party No.1  and after doing the necessary, the complainant was advised to  visit Opposite Party No.1 after one week verbally for post obturation (permanent filing & crown), but she never came to Opposite Party No.1 thereafter till 10.04.2018 and when again after such a long gap the complainant approached Opposite Party No.1 and stressed for completing the post obturation and crowing, but when the Opposite Party No.1 checked them, she found that the complainant has already got treatment from another dental hospital in between February to April 2018 and due to which she was having pain in her mouth in the molar teeth. Instead of giving any anti-biotic, the Opposite Party No.1 gave only one pain killer and advised the complainant for re-check up after two days, but she never came up. So, the Opposite Party No.1 was never negligent in performing her medical duties towards the complainant.  In nutshell, on merits, the Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed.               

3.       In order to prove his case, the complainant has tendered into evidence her  affidavit Ex.C1 alongwith copy of legal notice Ex.C2,  postal receipts Ex.C3 and Ex.C4, copy of payment receipts Ex.C5 to Ex.C9, copy of prescription Ex.C10 to Ex.C13, X-rays and  swabs Ex.C14 to Ex.C16 and  closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered  into evidence affidavit of Dr.Gagandeep Kaur Ex.Ops1/1 alongwith copies of documents Ex.OP1/2 and Ex.Ops1/3 and closed the evidence on behalf of the Opposite Party No.1. 

5.       We have heard the ld.counsel for the parties and also gone through the documents placed on record.

6.       Ld.counsel for the Complainant has  mainly reiterated the facts as narrated in the complaint and contended that the complainant was suffering from Molar Teeth (Jaarh) problem and on 14.02.2018 she visited the Opposite Parties hospital and after dental check up, the Opposite Parties gave medicines, but the problem of the complainant not cured. Lateron, the Opposite Parties advised the complainant for operation of molar teeth and the complainant believing upon the Opposite Parties agreed to under go an operation of her molar teeth. On 10.04.2018, the Opposite Parties conducted an operation of molar teeth of the complainant and gave hr medicines and injections etc and assured the complainant that now after operation she will have no problem, but the complainant will have to regularly visit for proper check up and medicines and for this, the Opposite Parties charged Rs.80,000/- in cash from the complainant from the date of her first check  visit upto operation.  Even after undergoing the operation, the complainant had remained regular severe pain and swelling in her mouth, she approached the Opposite Parties and disclosed about her problem. The Opposite Parties again admitted her in their hospital and give injection and medicines etc and again received Rs.10,000/- from the complainant. Thereafter, the complainant remained under continuous/ regular treatment of the Opposite Parties for about two weeks, but day by day, her condition of teeth and mouth deteriorated and the Opposite Parties failed to cure the complainant and her condition could not  improve even after three months and the Opposite Parties started demanding more amount from the complainant and also prescribed for an other operation. But seeking no other option, the complainant approached Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot, where the concerned doctors medically checked up the complainant and from the x-ray examination of complainant, it was clearly found that a cotton swabs and small articles of waste are left inside while rooting of molar teeth of the complainant which  resulted in swelling and severe pain to her and it is totally negligent act committed by the Opposite Parties while conducting root canal of molar teeth of the complainant.  The complainant remained under medical treatment of Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot and she has again undergone an operation for removal of cotton swabs and other waste material from her teeth, left by the Opposite Parties at the time of operation and the complainant again spent huge amount for second operation of her molar  teeth.  Due to the negligence and deficiency in service on the part of the Opposite Parties, the complainant suffered severe pain and swelling, mental tension and physical harassment at the hands of the Opposite Parties.

7.       On the other hand, ld.counsel for the Opposite Party  No.1 has repelled the aforesaid contention of the complainant and contended that the present complaint is baseless and flagrant abuse of process of law which has been made intentionally to harass, blackmail and extort easy sums from the Opposite Parties. In this regard, the ld.counsel for the Opposite Party No.1 has also cited the ruling of Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050. Ld.counsel for the Opposite Party No.1 further contended that  Opposite Party No.1 is well qualified and is post graduate in MDS (Prosthodonics and Crown & Bridge) and had passed her Post Graduate Degree from Baba Farid University of Health Sciences, Faridkot and since then she has been practicing as a dental surgeon. She was also awarded certificate of completion by the Genesis regarding her successful completion of advance training program in Surgical Implant Logo & Implant Prosthodontics.   The factual condition is the that the complainant for the first time approached the answering Opposite Party on 14.02.2018 and she had complained of having pain and sensitivity in her left lower back tooth region. She was examined by the Opposite Party No.1 and it was found that her left lower first molar teeth was grossly carious. The patient was advised to undergo RCT and Opposite Party No.1  understanding the gravity of the condition of the complainant, started giving a treatment on the same day. First sitting for conducting RCT was done, whereas the same is required to be completed in multiple sittings. Even x-ray was conducted for RCT after soliciting the line of action by the Opposite Party No.1. As per the OPD slip, the complainant was advised some medicines and again she was asked to visit on 16.02.2018. On 16.02.2018 she was again advised to come again on 21.02.2018 and on 21.02.2018 the complainant visited Opposite Party No.1  and after doing the necessary, the complainant was advised to  visit Opposite Party No.1 after one week verbally for post obturation (permanent filing & crown), but she never came to Opposite Party No.1 thereafter till 10.04.2018 and when again after such a long gap the complainant approached Opposite Party No.1 and stressed for completing the post obturation and crowing, but when the Opposite Party No.1 checked them, she found that the complainant has already got treatment from another dental hospital in between February to April 2018 and due to which she was having pain in her mouth in the molar teeth. Instead of giving any anti-biotic, the Opposite Party No.1 gave only one pain killer and advised the complainant for re-check up after two days, but she never came up. So, the Opposite Party No.1 was never negligent in performing her medical duties towards the complainant. 

8.       The admission of the complainant for treatment of her molar treatment and thereafter operation by the Opposite Parties is not denied. The defence of the Opposite Party No.1 is that  the patient i.e. complainant  had  complained of having pain and sensitivity in her left lower back tooth region and she was examined by the Opposite Party No.1 and it was found that her left lower first molar teeth was grossly carious. The patient was advised to undergo RCT and Opposite Party No.1  understanding the gravity of the condition of the complainant, started giving a treatment on the same day. First sitting for conducting RCT was done, whereas the same is required to be completed in multiple sittings. Even x-ray was conducted for RCT after soliciting the line of action by the Opposite Party No.1. As per the OPD slip, the complainant was advised some medicines and again she was asked to visit on 16.02.2018. On 16.02.2018 she was again advised to come again on 21.02.2018 and on 21.02.2018 the complainant visited Opposite Party No.1  and after doing the necessary, the complainant was advised to  visit Opposite Party No.1 after one week verbally for post obturation (permanent filing & crown), but she never came to Opposite Party No.1 thereafter till 10.04.2018. On the other hand, the complainant has contended that when her condition of teeth and mouth deteriorated and the Opposite Parties failed to cure the complainant and her condition could not  improve even after three months and the Opposite Parties started demanding more amount from the complainant and also prescribed for an other operation. But seeking no other option, the complainant approached Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot, where the concerned doctors medically checked up the complainant and from the x-ray examination of complainant, it was clearly found that a cotton swabs and small articles of waste are left inside while rooting of molar teeth of the complainant which  resulted in swelling and severe pain to her and it is totally negligent act committed by the Opposite Parties while conducting root canal of molar teeth of the complainant. To prove her case, the complainant has produced on record the x-ray and waste swab Ex.C14 to Ex.C16, and in the said x-ray, we can see some waste swab in it and this waste swab has been produced by the complainant in this District Consumer Commission. Not only this,  when the complainant approached Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot, the treating doctor also clearly mentioned in his doctrine language on his prescription on Ex.C13 on 23.04.2018, the English clear language is as under:-

“C/s

Means complete scaling done (teeth cleaning).

Next

Patient reported with a pain in lower left Ist molar. On examination it was found that there is a broken instrument in the tooth roots (Instrument used during root  canal procedure).

Hence, in view of this,  it is clear that while conducting the operation of molar teeth (Jaarh) by Opposite Parties upon the complainant,  some broken instrument in the tooth root remained left from the Opposite Parties (produced on record Ex.C14 to Ex.C16), which is clear cut negligence on the part of the Opposite Parties.     

9.       The medical profession is viewed as a noble responsibility since it aids in the preservation of life. A patient usually seeks out a doctor or facility based on their reputation. A patient’s expectations are twofold, namely, physicians and hospitals. Both are expected to give medical treatment using all of their knowledge and ability, and they are also required not to hurt the patient in any way due to negligence, carelessness, or reckless behaviour on their part. Though a doctor may not always be able to save their patient’s life, they are required to apply their specific knowledge and ability in the reasonable way possible while keeping the patient’s best interests in mind. A doctor’s and a hospital’s failure to fulfil this commitment is essentially a tortious liability. The principle of vicarious liability is based on a latin maxim “qui facit per alium facit per se” which describes that the one who acts through another act in his or her own interest. The patient only requires diligent and proper care, if any of the staff of the hospital is negligent in the performance of their prescribed work, the hospital will be held liable on the negligent conduct of even borrowed doctors for specific performance of certain operations. This principle was established in the case of Aparna Dutt .V. Apollo Hospital Enterprises Ltd. (2002 ACJ   954 (Mad. HC).

10.     From the evidence produced on record it is fully established that Opposite Parties had not taken proper car at the initial stage due to which the complainant suffered severe pain, mental tension and harassment and due to this, the complainant was compelled to  got conduct second operation from Dashmesh Institute of Research and Dental Sciences, Talwandi Road, Farikdot. Having taken into consideration the facts and circumstances of the case and evidence available on record, we feel that Opposite Parties were negligent while treating the complainant’s molar teeth (Jaarh). Though during the course of arguments it has been contended on behalf of the opposite parties that no expert evidence has been produced by the complainant in support of her claim, but in our view this arguments of the opposite parties is without any force in view of settled law in case cited as Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors. 1(1996) CLT 532 (SC), wherein the Hon’ble Supreme Court has observed that in cases where the doctors act carelessly and in a manner, which is not expected of a medical practitioner, in such a case an action on torts would be maintainable. In the instant case the medical negligence committed by Opposite Parties is apparent on record and can be observed with naked eyes and therefore the examination of any expert witness/doctor is not required and thus the observation made by the Hon’ble Apex Court in Achutrao Haribhau Khodwa’s case (Supra) are fully attracted to the instant case. The complainant has produced sufficient evidence to make it a case of medical negligence against the Opposite Parties while conducting operation of the molar teeth of the complainant. It is settled principle of law that where the negligence of doctor is visible by examining the patient, the report of the expert doctor is not necessary, because the report of another doctor can make the case of complainant weak as has been observed by the Hon’ble Supreme Court in case cited as Dr. Niraj Awasthi Vs. Jagdish Bharti (deceased) through Legal representatives 2010 CTJ 656 (CP) (NCDRC), para 7 of the judgment is as under:-

“As was laid by Hon’ble Apex Court in Martin F.D.’Souza v. Mohd. Ishfaq, 2009 CTJ 352 (SC) (CP), a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing, one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. In may cases, it is not very uncommon that testimony of doctor may not necessarily be objective since like in all professions and services, doctors too, sometimes have a tendency to support their own colleagues who are charged with medical negligence. Laser therapy performed on both eyes of Jagdish Bharti by petitioner-treating doctor, in view of finding of State Commission and also treatment papers having been taken into consideration, cannot possible be disputed. If this be considered in this back drop, finding of Doctor S.P. Kumar was impliedly against petitioner-treating doctor who had performed laser therapy on Jagdish Bharti, before he took consultation with Dr. S.P. Kumar”.

11.     In the instant case the facts and circumstances of the present case speak that the opposite parties did not exercise due care and caution in treating the complainant’s molar teeth and as such the breach of duty on the part of Opposite Parties stands proved against them.

12.     Now coming to the quantum of compensation to be awarded to the complainant. The complainant has prayed before this District Consumer Commission to   direct the Opposite Parties to pay Rs.2 lakhs which includes the medical expenses incurred by the complainant and on account of damages and compensation, for leaving cotton swabs and small articles of waste inside while rooting of molar teeth of complainant while conducting operation of molar teeth of the complainant whereby causing severe pain, mental tension and physical harassment to the complainant alongwith interest @ 2% per month from the date of operation till actual realization, but we are of the view that the claim for compensation to the tune of Rs.2 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.30,000/- and we award the same accordingly.

13.     In view of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against both the Opposite Parties and both the Opposite Parties are jointly or severally directed to make good the loss  by making the as lumpsum compensation to the complainant amounting to Rs.30,000/- (Rupees thirty thousands only) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 28.02.2019 till its actual realization.  Compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.   Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.  

14.     Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:15.02.2022.