Hon’ble Mrs. Rumpa Mandal, Member.

In a nut shell of the case is that on 26.10.18 the Complainant went to the Dr. Mahendra Bir he is the reputed dental Surgeon. After carefully examining the Complainant and told that the upper right side of the Complainant’s 4^th teeth had carried problem and accordingly, the OP applied filing onto the said teeth after receiving the O.Ps fee amounting to Rs.700/- and OP prescribed some medicines to relieve the pain. According to the O.Ps prescription Complainant was taking the medicines on a regular basis at the point of time Complainant was feeling well. On 09.11.21 Complainant felt sever pain on his upper right side 4^th teeth, so he went to the chamber of the OP. Thereafter OP carefully examined the teeth of the Complainant and said that the 4^th upper side right teeth have to be extracted in order to relieve the Complainant from the tooth ache so the Complainant went to extract the said upper side right 4^th teeth as on 16.11.21 fixed by both parties. Accordingly OP administered anaesthesia on the gum of the Complainant and extracted the teeth but after washing the said teeth it became clear that the OP has wrongly extracted 7^th teeth in place of 4^th teeth which is normal one. OP received his fee amounting to Rs.500/- from the Complainant for extracting. OP was extremely negligent at every step during the patient’s treatment and also failed to follow the standards of medical care. So the Complainant filed this complaint petition before this C omission seeking several reliefs in the C omission of an order directing the OP to pay a sum of Rs. 3 Lakhs for medical negligence and deficiency in service and also directed the Op to pay a sum of Rs. 10,000/- form medical expenditures alongwith Rs.2 Lakhs for mental pain and agony and Rs.25,000/- towards cost of litigation.

Notice has been severed upon the OP which it is found that there is postal remark of “left without address. Return to sender”. The take recourse of the legal position through section 114 of evidence Act and section 27 of the general clauses Act through which the reasonable resumption can be drawn that the notice was served the OP and as such the prayer of the Complainant for proceeding the case against the OP ex-parte should be allowed. OP did not contest the case.

Accordingly, the case is heard ex-parte against the OP.

The Complainant in order to establish the claim adduced evidence on affidavit and documents before this Commission.

Perused the pleadings of the Complainant the evidence on case record and the documents in the case record. Heard the argument advanced by Ld. Advocate for the Complainant. The statements made in the evidence on affidavit are absolutely inconsonance with the averments made in the complaint petition.

The Complainant in order to establish the case produced and proved the following documents:-

1. Annexure-A Copy of prescription dated 26.10.18.
2. Annexure-B Copy of prescription dated 09.11.21.

All the aforesaid documents proved by the Complainant stand unchallenged and undiscarded as much as the case is heard ex-parte.

After perusing all the documents adduced in evidence by the Complainant it transpires that the Complainant went to the O.Ps chamber on 16.11.21 for rapid solving of his tooth ache by extracting 4^th teeth from his upper right side Jaw as per the O.P’s advice and accordingly the OP administered anaesthesia on the Complainant’s gum and extracted the teeth but after washing the said teeth it became clear that the OP has wrongly extracted 7^th teeth in place of 4^th teeth which is normal one. But OP received his fee amounting to Rs.500/- from the Complainant for extracting. The Doctor, Op should have the reasonable degree of skill care, knowledge and prudent while treating the patient. But he had not given proper advice and proper treatment. So, the Complainant had suffered an acute unendurable pain during his life time due to wrong steps of OP. The Ld. Advocate rightly argued that there was some medical treatment provided by the concerned Doctor. But in the instant case he actually did not provide proper medical treatment despite having scope for such medical treatment. This type of misdeed on the part of O.P. No.1 amounts to medical negligence which are categorically encrypted in the “ Code of Medical ethics under West Bengal Medical Council” as per clause-16 of code of Medical Ethics under West Bengal Medical Council.

Having perused the entire evidence of the parties, it stands well proved that there was latches on the part of the OP for wrongly extracted 7^th teeth in place of 4^th teeth. Due to such activities Complainant was facing much hardship to conduct his daily meets as because he is one and only earning member of his family. This type of medical negligence which tantamount to deficiency in service on the part of the OP for which Complainant suffered mental pain and agony.

Thus after assessing the entire oral and documentary evidence the case of the Complainant could not be disproved since the case is heard ex-parte.

In the light of the aforesaid discussion and observation made in the foregoing paragraphs a reasonable inference in drawn that the Complainant successfully proved the case as consumer against the medical negligence which caused deficiency in service and mental pain and agony.

Accordingly, the case of the Complainant succeeds ex-parte against the OP.

Hence, it is

Ordered

That the complainant case No.66/2021 be and the same is allowed ex-parte with cost.

The Complainant do get an award to credit of Rs.3 Lakhs in the account of the Complainant. The Op is further directed to pay a sum of Rs.10,000/- for medical expenditure and OP is also directed t pay a sum of Rs.2 Lakhs for mental pain, agony and harassment and cost of proceeding Rs.25,000/- total of Rs.5,35,000/- (Rupees Five Lakhs thirty five thousand) only within 30 (thirty) days from the date of passing the Final Order to the Complainant failing which the OP shall pay an interest @ 6% per annum to the awarded sum i/d the Complainant shall be entitled to execute the award as per provision of law.

Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.

The copy of the Final Order be also available in the official website: www.confonet.nic.in.

Dictated and corrected by me.