IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                    Wednesday the 11^th  day of August, 2021

                               Filed on 12.05.2020

Present

1.  Sri.S.Santhosh kumar.Bsc.LLB(President)

2.  Smt. Sholly.P.R ,LLB (Member)

                                                          In

                                         CC/No.85/2020

                                                     Between

Complainant:-                                                                  Opposite parties:-

    Sri.K.A.Soman                                            1.      Dr. Sanjay

Pulikkal                                                                Star Dental Care 

Arattuvazhy.P.O                                                     Arattuvazhi

Alappuzha-688 007                                               Kalappura

By Counsel                                                           Alappuzha-688007

Sri. M.V.Viswabhadran                                          (Adv. D.Deepak)

Ex-gratia-Eravukadu Ward                          2.       The Registrar

Alleppey-2                                                           Kerala Dental Council

                                                                             Vanchiyoor.P.O.

                                                                             Trivandrum-695 035

                                                                                                 (Party in Person)

                                                     O R D E R

SMT. SHOLLY.P.R (MEMBER)

1.      Material averments in brief of the complaint are as follows:-

          Complainant is a senior citizen aged 72 yrs.  He had visited the Star Dental Care Clinic run by the 1^st opposite party on 12/5/2018 to find a remedy for the dental discomfort he was facing attracted by the advertisement of 1^st opposite party which offering cheaper rates for root canal, cavity filling etc.  After a random examination and assessing the complainants financial capacity, the 1^st opposite party informed that altogether 8 teeth need urgent filling.  He informed the rate is @ Rs. 600/- per teeth.  The complainant had paid Rs.4,800/-.  Thereafter the 1^st opposite party did some grinding on teeth and advised to visit him on next day for review of the treatment.  Accordingly the complainant again visited the clinic and adviced another 4 teeth require the same treatment otherwise it will fall in the near future.  1^st opposite party collected another Rs.2,400/- and repeated the grinding. Hardly after seven days, the complainant started to face the earlier problem and pain.  Dissatisfied the 1^st opposite party’s service, complainant consulted another Dentist on 21/5/2018,  who successfully  cured and issued OP card showing history of treatment, position of teeth having caps, missing, filled up etc.  On seeing the said card the complainant realized the fraud played on him by 1^st opposite party.  Thereafter on 16/6/2018 the complainant went to Saudi Arabia to join his son and remained there for almost 1 year.  On his return the complainant send lawyer notice to opposite parties and the opposite parties replied for the same. But the 1^st opposite party did not refund the excess amount collected fraudulently from the complainant.  Hence this complaint.

2. Version of 1^st opposite party is as follows:-

 Complaint is not maintainable either in law of on facts.  The only intention behind lodging such a complaint against the 1^st opposite party is to defame him.  The 1^st opposite party is a Dental doctor by profession and got an expericnec of 30 years as a dental surgeon and during these  long years of practice no complaints made against him by his patients regarding the treatment rendered by hm. The only advertisement made by the 1^st opposite party was to make aware of the people of the locality regarding opening of a new Dental Clinic at Arattuvazhi, Alappuzha and no other advertisements or bill boards offering free or cheapest rate of treatment were made by the 1^st opposite party.  On a detailed examination it was  found there were cavities on tooth Nos. 17,16,15,14,24,25,26,47,43,34,35 and 37 and advised “ Light cured composite tooth colour filling of tooth,”  and also explained the remedy and its consequences for non performance.  The rate of filling of tooth, the duration of treatments etc were also explained to the complainant and as agreed by it the complainant undergone the treatment. Other allegation of made advice for conducting root canal is false.  After the treatment of the 1^st day, the complainant was served with a detailed analysis and diagnosis report.  Since the complainant was satisfied with the doctor and reasonable expenses incurred, he consulted the 1^st opposite party on the very next day and undergone further treatment. The allegation that the complainant consulted another doctor and he resolved the issue by filling 2 or 3 teeth is false and incorporating only to defame the 1^st opposite party.  The prescription issued by that doctor shows that the complainant approached the new dentist complaining of “ Food lodgment”.  He never ever found any defects as alleged by the complainant regarding the treatment done by 1^st opposite party and only advised oral prophylaxis  and cleaning tooth.  After receiving lawyers notice forwarded by 2^nd opposite party, the 1^st opposite party had given a detailed explanation and after considering it, 2^nd opposite party found that there was no negligence or procedural latches from the 1^st opposite party while giving medical aid to the complainant. There is neither any negligence nor any irregularities in the procedure adopted by the 1^st opposite party. No evidences were adduced by the complainant with regard to the unfair trade practice.  Hence the complaint may be dismissed with compensatory cost to the 1^st opposite party.

3. Version of the 2^nd opposite party is as follows:-

          Alleging excess amount charged for treatment the complainant in this case filed a complaint against 1^st opposite party through Dental Council of India on 22/4/2019. The  Kerala Dental Council obtained explanation from 1^st opposite party.  The 1^st opposite party explained that the complainant in this case came to his clinic for class V filling on almost  all teeth.  On 12/5/2018  eight teeth were filled and on 13/5/2018 four teeth filled and charged rupees @ 600/- per  filling.  According to 1^st opposite party the complainant made complaint against him after one year of the treatment thereby it was not possible to refund the money he had paid for the treatment.  After examining the explanation made by the 1^st opposite party and other documents the council in its meeting held on 19/7/2019 decided to dispose the said complaint as the contention of the complainant could not be considered since the demand of refund of the fee after one year of treatment saying that the treatment was no satisfactory and found no unethical acts on the part of  1^st opposite party and the fee charged was not seen enormous.

          Since the complaint filed against the 1^st opposite party has already been disposed of by the authority concerned by verification and due procedure, ie, that there was no unethical acts on the part of 1^st opposite party.  Hence the relief sought for in this complaint to direct the State Dental Council to cancel the registration of 1^st opposite party does not exist as the said prayer is improper and has no merit.  And thereby the prayer to impose burden on 2^nd opposite party to share 50% compensation amount is also does not exist.  The complainant wrongly included this opposite party in the complaint; therefore 2^nd opposite part may be excluded from the party array and exempted from appearing before this commission.

4. On the above pleadings the following points were raised for consideration:-

1. Whether there was any deficiency in service or unfair trade practice on the part of the opposite parties?

2. Whether the complainant is entitled to get any reliefs sought for in the complaint?

3. Reliefs and costs?

Evidence in the case consists of the oral evidence of PW1 and Ext.A1 to A5 on the side of the complainant and the oral evidence of RW1 and Ext.B1 to B4 on the side of the 1^st opposite party.  Ext.A3 was marked as subject to proof.  Both sides filed notes of arguments and heard them.

5. Point No.1 and 2:-

          PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext.A1 to  Ext.A5. Ext.B1 and B2 also marked through PW1.  Ext.A3 is the treatment record issued by a dentist who treated the complainant subsequently.  Since Ext.A3 issued by a doctor other than 1^st opposite party, marking of the same through PW1 was objected by the opposite party, hence it was marked subject to proof.

          RW1 is the 1^st opposite party, he filed an affidavit in tune with the version and marked Ext.B3 and B4.

          The case advanced by PW1 , the complainant is that he approached the 1^st opposite party who is running a dental clinic named Star Dental Care Clinic for curing the problem affected to his teeth.  After examination 1^st opposite party suggested filling altogether 8 teeth and 1^st opposite party informed the rate is @600/- per teeth and thereby on the 1^st day of visit ie, on 12/5/2018 the PW1 had paid Rs.4,800/- and 1^st opposite party did some grinding on teeth and advised to visit on next day for review of the treatment. 

          As per the direction the complainant again visited the clinic on 13/5/2018  the 1^st opposite party advised filling of another 4 teeth for avoiding its fall in the near future.  Complainant had paid Rs.2,400/- as the charge for  its filling and 1^st opposite party repeated grinding of the teeth. After 7 days, on 21/5/2018 the complainant felt discomfort as earlier and consulted another dentist though the complainant dissatisfied the 1^st opposite party’s service.  There the doctor successfully cured the defect of the teeth and issued OP card showing  history of treatment, position of teeth having caps, missing, filled up etc.  On seeing the said card the complainant realized the fraud played on him by the 1^st opposite party.

          It is admitted that the complainant visited the clinic running by the 1^st opposite party for curing his dental discomfort and there he was treated and 1^st opposite party received a total amount of Rs.7,200/- which reveals from Ext. A1 and A2.    It is alleged by the PW1 that after a short period  of 7 days ie, on 21/5/2018 he faced the earlier problem and pain. Then he consulted another dentist, there he was satisfied with the treatment of that doctor.  The above said dentist issued OP card regarding the treatment of the complainant, which shows history of treatment, position of teeth having caps, missing, filled up tec.  The said document was produced by the complainant and annexed to the affidavit for its marking as Ext.A3.  But the marking of the said document is seriously objected by counsel for 1^st opposite party, since the said document was issued by a third person who is the authority to prove it in evidence.  In the circumstance it is pertinent to note that the Ext.A3 is treatment record issued by the doctor who examined and treated the PW1. It is also noted that the alleged treatment was already done by another doctor who is none other than the 1^st opposite party.  Accordingly the main document relied upon by the complainant to prove that the 1^st opposite party committed fraud against the complainant in treatment is Ext.A3.  It was marked subject to proof through PW1.  In the circumstances we are of the opinion that the allegation pertaining to the treatment must be proved with corroborative evidence.  The mere production of a document is not sufficient to its proof.  No attempt was made to prove the said document by examining any other witness.    More over the contents of the document are not proved because the signatory is not examined.  Complainant did not take any steps even after the 1^st opposite party raised serious objection for marking the same.  We are also agreed that there is no need for the application of strict law before us, but the Commission is not expertise to verify the contents of Ext.A3 without  examine the person who executed the said  document.  Hence that objection holds merits.

With due respect to the ruling submitted by the counsel for the complainant regarding the evidentiary value of  Ext.A3, it is pertinent to note that the counsel for the complainant himself  categorically stated that, according to the Regulation 3.4.1 of Dental Council of India (Rule of Ethics) Regulation 2014 “ Every Dental Practitioner shall display the registration number accorded to him by the State Dental Council in his clinic and in all his prescriptions, certificates and money receipts given to his patients”.  As it is a rule of law it is applicable to every dentist.  It is not seen it Ext.A3 the registration number of the doctor who treated the PW1 secondly. Accordingly we cannot consider the other contentions of the counsel for PW1 regarding the acceptance of Ext.A3.  More over the complainant could have informed the  defect regarding the treatment as early as possible, that is 1 week after the treatment. As per the given records, in between his visit to saudi he came back to Native place for some days.  Here in this case, the complainant has filed the complaint regarding the dental treatment and the issue had been noticed the next week after treatment and the case was filed after one year.  In this circumstances we found no unfair trade practice on the part of the  1^st opposite party.

6.      Point No.3:-

In the result complaint stands dismissed. Both parties shall bear their respective costs.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 11^th   day of August, 2021.

         Sd/-Smt. Sholy.P.R(Member)

                                               Sd/-Sri.S.Santhosh Kumar(President)

Appendix:-Evidence of the complainant:-

PW1                             -        K.A.Soman(Complainant)       

Ext.A1                          -        Copy of  Receipt  & OP card             

Ext.A2                          -        Copy of Receipt dtd. 13/5/2018

Ext.A3                          -        Copy of Treatment Record.

Ext.A4 series                 -        Copy of VISA

Ext.A5                          -        Copy of Legal Notice

Evidence of the opposite parties:-

RW1                   -        Dr. Sanjay Kumar (Opposite party)

Ext.B1                          -        Notice dtd.13/5/2019

Ext.B2                          -        Copy of Letter dtd.21/8/2019   

Ext.B3                          -        Copy of Treatment Sheet

Ext.B4                          -        Photographs

// True Copy //

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Senior Superintendent

Typed by:- Br/-

Compared by:-