PER:

Charanjit Singh, President

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainants have filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite party on the allegations that the complainant developed some tooth problem and she got her dental medical treatment from opposite party No. 1 on 22.04.2017. Opposite party No. 1 extracted wisdom tooth and asked the complainant to come after 3 days. The complainant states that she had severe pain in her removed tooth beyond her control and as such she approached opposite party No. 1 on 24.04.2017 where she was not properly treated and was put off  by giving some medicine but she did not recover from pain. But opposite party No. 1 or his staff did not attend the complainant and she remained in severe pain. Opposite party charged nearly Rs.2000/- for surgery and complainant spent approximately Rs.3,000/- on medicines in all Rs. 5,000/- -were spent. But opposite party No. 1 neither issued any prescription nor issued any bill and only wrote names of some medicines on hospital slip. When opposite party No. 1 and his staff did not attend her properly she approached Doctor Medicity hospital where attending doctor demanded x-ray of removed tooth and complainant told them that no x-ray was taken by opposite party No. 1 and then complainant was told by attending doctor that only half tooth was extracted and remaining half was still in mouth and that was causing pain as non-extraction had caused severe infection in the tooth. The attending doctor at Doctor Medicity hospital also showed picture of her tooth on screen by using x-ray machine attached to the screen. The opposite party No. 1 and his staff did not even take x-ray of tooth of the complainant nor even treated her properly which is not only quite unethical, immoral but grave negligence in performance of duties. The complainant before approaching this commission issued legal notice on 05.05.2017 to the opposite party No. 1, which was received by opposite party No. 1 and after receipt of legal notice opposite party No. 1 called the son-in-law of complainant namely Sanjay Kumar, who had accompanied her during the treatment. The complainant along with her son-in-law approached opposite party No. 1 on 08.05.2017 but opposite party No. 1 instead of feeling sorry or refunding the amount of treatment started threatening Sanjay Kumar stating that he does not care for advocates or consumer commission. . The opposite party No. 1 has not only neglected in his duty but has also not provided any service what to talk of providing satisfactory service to complainant and rather has been unethical and there is clear deficiency in services of opposite party No.1. Due to deficient service of opposite party No.1, complainant suffered & is suffering mental agony & loss of money at the hands of opposite party No. 1 due to his negligent attitude. Complainant approached opposite party No. 1 and requested him to refund her money and also served legal notice which was never replied despite receipt nor money was returned.  The cause of action to file present complaint has arisen to complainant against opposite parties on 22.04.2017 when half tooth was extracted and also on service of legal notice and again on 08.05.2017 when complainant and her son-in-law was called by opposite party No. 1 and as and when demand of payment was made and continues as loss is recurring and continuing loss to complainant every month and as such complaint is within limitation and the complainant prayed that the opposite parties may be direct to pay an amount of Rs. 25,000/- towards mental torture and expenses incurred by complainant along with any other amount which this Commission seems fit and proper. Opposite party No. 1 and his officials may please be penalized and recovery be effected from opposite party so that same may not happen with other people. Opposite parties be also burdened with exemplary costs in the interest of justice, equity & fair & amount so awarded be recovered from the opposite parties & paid to the complainant.

3        After formal admission of the complaint, notice was issued to Opposite parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the purported complainant is not covered under the definition of "consumer" under the act ibid qua O.P.1. As the allegations of the purported complainant, the matter in hand is not a 'consumer dispute' to seek relief within parameters or as per provisions of the 'Act' ibid'. The complainant is barred from filing the present complaint, which is liable to be dismissed. The complaint is not maintainable either on facts or under the law against O.P.1. Since no evidence based allegation has been leveled in the complaint against O.P.1, complainant is not entitled for any relief against O.P.1. The present complaint is a gross abuse of the process of this Commission as complainant has not approached this Commission with clean hands. Various material facts have been concealed & distorted version of the facts have been deliberately presented to pressurize and harass Opposite Party No. 1. There is no evidence worth its name to show that there is any negligence or deficiency or delay in service at the hands of O.P.1 during the course of treatment of the patient in question during relevant times, nor any act of deficiency or negligence or delay or omission or commission was committed by O.P.1 as per treatment record of the said patient produced, who was treated by O.P.1 during relevant times, and treatment in question was performed in the clinic of O.P.1 on standard scientific lines as per condition of the patient by fully competent, qualified and well trained/experienced doctors and para medical staff of the clinic. The process of 'Consumer Fora' cannot become a tool at the hands of unscrupulous persons who file complaint merely with a view to extract money in the garb of compensation. The mere oral and bald statement of purported complainant that there was negligence or deficiency on the part of O.P No.1 during the course of treatment of the patient in question will not make O.P.1 negligent in this regard. It is a settled law as well as requirement of the equity that one who alleges must prove. The purported complainant cannot make this Commission to reach conclusion her way on the basis of distorted facts. Since the complainant does not have any proof regarding the negligence of O.P. No. 1 , nor any specific allegation have been leveled against O.P.No. 1, nor O.P.1 have committed any wrong or negligence or deficiency in service towards the patient in question during relevant times; the purported complainant has absolutely no locus standi to file the present complaint under the provisions of the act' ibid' and obviously does not fall within the preview of the 'consumer' as envisaged under Section 2 (d) of the Act ibid'.' The present complaint is a fit case where this Commission shall take stringent action against the complainant as envisaged under section 26 of the 'Consumer Protection Act, 1986, as amended up to date, being frivolous qua O.P.1. After an unexplained delay of number of months, at the behest of certain vested interest with ulterior motive, out of the greed and lust for money and on account of the fact that certain cases have gone adverse to the medical professionals and that this complaint is alleged to be likely to meet the same fate. The complainant has not mentioned in the complaint in what way O.P.1 was negligent while treating the patient in question during relevant times, and how and what O.P.1 was supposed to do in that regard. The complaint is bad for mis-joinder/ non joinder of parties. As per the allegations in the complaint, the doctors/ hospital where the patient alleged to have taken treatment before coming to O.P. No.1 and after taking treatment from O.P. No. 1 are necessary parties in the present matter.  As per allegations of the complainant in the complaint, the matter in dispute require lengthy and detailed evidence/ detailed trial to prove either way, the present matter cannot be disposed off in summary trial under the 'act' ibid' as the allegations are of complex and complicated nature.  Since complainant has not produced complete treatment record with the complaint, O.P. No. 1 reserves the right to rebut allegations or documents, if any, produced in the subsequent period. In the absence of any expert opinion that the treatment was not proper, or that treating doctor was negligent while treating the patient, the allegation of negligence qua treating doctor while treating the patient is not tenable. Since O.P. No. 1 was insured with 'The New India Assurance Co, Ltd., Divisional Office: Court Road, Amritsar during relevant period vide "Professional Indemnity Insurance (Doctor) Policy" No.36050036160400000013 effective from 21.06.2016 to 20.06.2017 though it is a false and frivolous complaint which is likely to be dismissed.   As per OPD register of O.P.1 dated 22.04.2017, the patient Jaswinder Kaur came to the clinic of O.P. at Chheharta, where O.P.1 is doing dental examination and prescribing medicines to the patient in OPD on charitable basis without charging any fee who do not require any surgical or other dental procedure, and in case only if some surgical or other dental procedure is required to be done, for that O.P.1 charges only nominal amount, that too against proper receipt (medicines prescribed to all type of patients are to be purchased by the patients from the chemist in the market). Since as the said patient narrated in this complaint that she was having problem in the wisdom tooth, and as O.P.1 recollect from the OPD slip dated 27.04.2017 annexed with the complaint as well as, as per OPD record of clinic of O.P.1, she was having problem in her wisdom tooth, and accordingly, after her dental examination, she was prescribed medicinal treatment as per her dental problem (OPD slip of the same is with the purported complainant). She came to the clinic of O.P.1 in follow up again on 24.04.2017, when again after dental examination, further medicinal treatment was prescribed as per her problem. Then she came to the clinic of O.P.1 on 27.04.2017, when after her dental examination, as she further required medicinal treatment, the same was prescribed for another 3 days. Since she did not bring previous OPD slips which were having details of her dental examination done on last two occasions, thus for that reason, on fresh OPD slip she was prescribed medicines for 3 days as per copy of OPD slip dated 27.04.2017 produced with the present complaint. The medicines prescribed show that she was having infective painful pathology in the tooth (wisdom tooth as narrated by her). Even now the purported complainant has concealed OPD slips dated 22.04.2017 as well as 24.04.2017 with malafide intention. The patient was lost in follow up after 27.04.2017. Since O.P.1 did not remove wisdom or any other tooth of the complainant on 22.04.2017, thus there was no occasion for the complainant to come to O.P.1 on 24.04.2017 with pain in the removed tooth.  She was having problem in the wisdom tooth, and as O.P.1 recollect from the OPD slip dated 27.04.2017 annexed with the complaint as well as, as per OPD record of clinic of O.P.1, she was having problem in her wisdom tooth, as per her condition, after her dental examination, she was prescribed medicinal treatment as per her dental problem (OPD slip of the same is with the purported complainant). She came to the clinic of O.P.1 in follow up again on 24.04.2017, when again after dental examination, further medicinal treatment was prescribed as per her problem. Then she came to the clinic of O.P.1 on 27.04.2017, when after her dental examination, as she further required medicinal treatment, the same was prescribed for another 3 days. Since she did not bring previous OPD slips which were having details of her dental examination done on the last two occasions, thus for that reason, she was prescribed medicines for 3 days as per OPD slip dated 27.04.2017 produced. The medicines prescribed show that she was having infective painful pathology in the tooth (wisdom tooth as narrated by her). The patient came to the clinic of O.P.1 for the ongoing pathology (and not in post-extraction period as alleged as no extraction of tooth was done 22.04.2017 as alleged), she was not properly treated and was put off by giving some medicines or that O.P.1 or his staff did not attend purported complainant on that day as alleged. In fact, as narrated earlier, after conducting her proper dental examination, O.P.1 prescribed her proper medicinal treatment as required. It is wrong and incorrect that O.P.1 nearly charged Rs.2,000/- as alleged or that she spent approx..Rs.3,000/-  on medicines as alleged. It is further wrong and incorrect, hence denied that 0.P.1 did not issue any prescription to purported complainant on 22.04.2017 or 24.04.2017. The purported complainant was issued proper prescription with regard to her treatment on both dates. However, as narrated earlier, since she did not produce her prescription slips of earlier dates on 27.04.2017, she was prescribed required medicines on fresh OPD slip for 3 days on that day. Since O.P.1 conducted only oral dental examination of the patient on all the three occasions and no surgical procedure or other dental procedure was done, thus, as per norms of O.P.1, nothing was charged from the said patient, thus there was no occasion to issue any bill or receipt. With regard to the allegations of expenditure of medicines prescribed, since O.P.1 is not doing dispensing any medicines from his clinic as narrated in earlier paragraphs, the patients are advised to purchase medicines from the chemists from the market. And as such, the medicines prescribed on 27.04.2017 will not cost more than Rs.200/ only, and so was the cost of medicines prescribed earlier. For that reason, and other reasons, purported complainant has concealed OPD slips dated 22.04.2017 as well as 24.04.2017 with malafide intention. If the said patient was not getting any relief after treatment prescribed on 22.04.2017, or on 24.04.2017, and was in agony as alleged, she would have certainly come to the clinic of O.P.1 on 23.04.2017, or after 24.04.2017 on 25.04.2017 or 26.04.2017, or reported to some other doctor, which she did not do as she was getting relief with the treatment prescribed from the problem with which she approached O.P.1 on 22.04.2017 as well as on 24.04.2017. The treatment record of Doctor Medicity dated 29.04.2017 clearly show that the patient took treatment of the different tooth than for which the said patient took treatment from O.P.1. Since O.P.1 did not remove any tooth of complainant as alleged, there was no occasion for complainant to inform the doctors at Doctor Medicity  The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.

4        Opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that  the present complaint is not legally maintainable against the replying O.P. as there is no privity of contract between the complainant and replying opposite party, hence the complaint is not maintainable against Opposite party  No. 2.  Opposite Party No. 2 i.e. The New India Assurance Co. Ltd has been impleaded at the instance of opposite party No 1 on the ground that he has obtained some medical establishment policy, however no such policy has been placed on file nor supplied to Opposite party No. 2. As per the terms and conditions of Policy this commission cannot fix any direct liability qua replying opposite party No. 2 because the jurisdiction of this commission is only to determine liability against opposite party No 1 and if such liability is fix same is to be considered by the competent authority of opposite party No 2 as per terms and conditions of policy. Moreover as per the said policy, there are certain deductions which are to be made and liability is to be considered as per terms and conditions and sum insured under the particular policy. No legal notice has been issued to O.P No. 2. No cause of action arose against the opposite party No. 12 as the complainant is not the consumer of opposite party No 2.  The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.         

5        To prove his case, the Ld. counsel for the complainant has tendered in evidence affidavit of complainant Ex. CW1/A, affidavit of Sanjay Kumar Ex. CW1/B, copy of prescription slip of Opposite party No. 1 Ex.C-1, copy of  prescription slip of Medicity dated 29.4.2017 Ex. C-2, copy of legal notice dated 5.5.2017 Ex. C-3, copy of postal receipt Ex. C-4 and closed the evidence. Ld. counsel for the opposite party No. 1 tendered in evidence affidavit of Dr. Sachin Arora Ex. OP1/1 alongwith OPD register Ex. OP1/2 to OP1/4 and closed the evidence. Ld. counsel for the opposite party no. 2 tendered in evidence affidavit of Sh. Satish Sharma Ex. OP2/1, copy of policy Ex. OP2/2 and closed the evidence on behalf of opposite party No. 2.

6        We have heard the Ld. counsel for the complainant and opposite parties and have gone through the record on the file.

7        The combined and harmonious reading of documents and pleadings is going to prove on record that the complainant got her dental medical treatment from opposite party No. 1 on 22.04.2017. Opposite party No. 1 extracted a wisdom tooth and asked complainant to come after 3 days. The complainant stated that she had severe pain in her removed tooth beyond her control and as such she approached opposite party No. 1 on 24.04.2017 where she was given some medicines but she did not recover from pain. But opposite party No. 1 as well as his staff did not attend the complainant as such she remained in severe pain. Opposite party charged nearly Rs.2,000/- for surgery and complainant spent approximately Rs.3,000/- on medicines in total she has spent Rs. 5,000/-. The opposite party No. 1 neither issued any prescription nor issued any bill and only wrote names of some medicines on hospital slip. The opposite party No. 1 did not attend the compliant properly as such, she approached Doctor Medicity hospital where attending doctor demanded x-ray of removed tooth and complainant told them that no x-ray was taken by opposite party No. 1 and then complainant was told by attending doctor that only half tooth was extracted and remaining half was still in mouth and that was causing pain as non-extraction which had caused severe infection in the tooth. The attending doctor at Doctor Medicity hospital also showed picture of her tooth on screen by using x-ray machine attached to the screen. The complainant before approaching this commission issued legal notice on 05.05.2017, which was received by opposite party No. 1 and after receipt of legal notice opposite party No. 1 called son-in-law of complainant namely Sanjay Kumar, who had accompanied her during the treatment. Instead of feeling sorry or refunding the amount of treatment the opposite party No. 1 started threatening Sanjay Kumar that he does not care for advocates or consumer commission. As such, the opposite party No. 1 has not only neglected in her duty but also has not provided satisfactory service to complainant. Due to deficient service of opposite party No.1, complainant suffered mental agony & loss of money in the hands of opposite party No.1. As such, the complainant prayed that the opposite party No. 1 may be directed to pay an amount of Rs. 25,000/- towards mental torture and expenses incurred by the complainant

8        The opposite party contended that the purported complainant, matter in hand is not a consumer dispute. Since no evidence based allegation has been leveled against opposite party No. 1, the complainant is not entitled for any relief. There is no evidence worth to show that there is any negligence or deficiency or delay in service.  Since the complainant has not produced complete treatment record with the complaint and there is no expert opinion on the record which shows that treatment was not proper or the treating doctor was negligent while treating the patient.

9        As per OPD register of O.P.1 dated 22.04.2017, the patient Jaswinder Kaur came to the clinic of O.P. at Chheharta, where O.P.1 is doing dental examination and prescribing medicines to the patient in OPD on charitable basis without charging any fee. If some surgical or other dental procedure is required to be done, for that O.P.1 charges only nominal amount, that is too against proper receipt . The opposite party No. 1 recollected from the OPD slip dated 27.04.2017 annexed with the complaint as well as, as per OPD record of clinic of O.P.1, she was having problem in her wisdom tooth, accordingly, after her dental examination, she was prescribed medicinal treatment as per her dental problem. Since O.P.1 did not remove wisdom or any other tooth of the complainant on 22.04.2017, thus there was no occasion for the complainant to come to O.P.1 on 24.04.2017 with pain in the removed tooth.  the complainant has concealed OPD slips dated 22.4.017 as well as 24.4.2017 with malafide intention. As per opposite party No. 1 he has not removed any wisdom tooth of the complainant and he has only prescribed the medicine for the treatment of her infective, painful pathology in the wisdom tooth.

10      The complainant has placed on record a prescription slip of opposite party No. 1 as Ex. C-1 of AD Dental Clinic dated 27.4.2017 in which only some medicines have been prescribed by the opposite party No. 1 for treatment of her tooth. The complainant has stated that she has  visited the clinic on dated 22.4.2017 as well as 24.4.2017 for treatment of her tooth. The complainant has also alleged in her complaint that on 22.4.2017 her wisdom tooth was removed by the opposite party No. 1. But there is no such record has been placed on record to prove that the opposite party No. 1 has ever extracted the wisdom tooth of the complainant. Moreover, the complainant herself annexed the prescription slip of Dr. Medicity Hospital as Ex. C-2 of dated 29.4.2017, as per the version of the complainant the opposite party No. 1 not treated the complainant properly, she visited Dr. Medicity Hospital, where the remaining part of the tooth was extracted. When we carefully observed the slip of Dr. Medicity Hospital, it clearly indicates that the Dr. Medicity Hospital has treated the complainant for right side lower tooth No. 7 second molar and it is written on the slip ‘R.S extraction done’ meaning thereby root was extracted but as per the slip tooth No. 7 is treated by Dr. Medicity Hospital whereas the complainant stated in her complaint that she was treated for her wisdom tooth and wisdom tooth is always placed at No. 8. 

11      We are of the opinion that the complainant has miserably failed to prove her case, firstly, there is no record of OPD slip dated 22.4.2017 as well as 24.4.2017 as alleged by the complainant. Only two slips i.e. Ex. C-1 and C-2 have been placed on record which are contradictory to the stand of the complainant because in Ex. C-1 which belongs to opposite party No. 1 only few medicines have been prescribed and there is no mention about the extraction of wisdom tooth. Secondly,  the treatment which was taken subsequently by the complainant from Medicity Hospital it shows that she has been treated for the right side lower tooth No. 7 second molar whereas the complainant states that she has been treated by the opposite party No. 1 for extraction of wisdom tooth. So, the complainant could not prove that there was any negligence and deficiency in service by the opposite party No. 1.

12      The complainant has not placed on record any expert opinion to prove that she was treated by the opposite party No. 1 negligently,  Moreover onus was upon the complainant to prove the negligence beyond reasonable doubt which has not been done in the instant case. In C.P.Sreekumar (Dr) MS Ortho Vs. Ramanujan, 2009 (7) SC 130, it has been held that bald statement of the complainant cannot be accepted to reach conclusion that the doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending doctors and frequent interference by courts could be a dangerous proposition as it would present doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer. It is well settled law that in the case of medical negligence, initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are no evidence. Just a bald statement cannot be accepted as held by Hon‟ble Supreme Court in Jacob Mathew Vs. State of Punjab &Anr (2005) (3) CLT 358 (SC). On this point we are supported from the judgment 2015(2) CLT 310 (NS) Ram Gopal Yadav Cs Pushkar Anand (Dr) and others. In this case it was held that initial burden to prove medical negligence lies on the complainant. Further a reference has been taken from 2009(4) CLT (SC) C P Sreekumar (DR) MS (Ortho) Vs Ramunjam 2009(3) CLT 430 (SC)“ Nizam Institute of Medical Sciences Vs Prasanth S Dhanaka & Ors and (2005) (3) CLT 358 (SC) Jacob Mathew Vs State of Punjab and others .

13      In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

24.11.2022