BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 20^th day of May 2017

Filed on : 28-11-2014

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.881/2014

Between

C.N. Purushothaman, : Complainant

Pranavom house, (By Adv. Lijoy P. Varghese, Parackal

Ayampillikavu, Eroor P.O., Bhavan, 44/2401, Friends road,

Thripunithura-682 308 Deshabhimani (via), Kaloor,

Cochin-17)

And

1. Dr. Laya, : Opposite parties

Vasan Dantal Care, (By Adv. Santhosh Mathew
No. 28/104D, Main Avenue road, Nainan & Mathew, 2^nd floor,

Panampilly Nagar, Ernakulam, 42/1686, D20, Empire building,

Pin-682 036. High Court East End, Kochi-18

2. P.V. Francis,

Vasan Dantal Care,

No. 28/104D, Main Avenue road,

Panampilly Nagar,

Ernakulam-682 036.

O R D E R

Beena Kumari V.K., Member.

This complaint is filed by Sri. C.N.l Purushothaman, aged 63 years against Dr. Laya & P.V. Francis, who are working in Vasan Dental Care, Ernakulam, alleging violation of agreement and deficient service on the part of the opposite parties. The complainant is a Kerala State Lottery agent. The District Lottery office is functioning at the 7^th floor of the Revenue Tower, Boat Jetty, Ernakulam. On 13-10-2014 a camp of the Vasan Dental care was conducted at the conference Hall of Ernakulam district, Lottery office and the complainant had participated in the camp and in that camp the opposite parties introduced a package scheme for dental care known as “999 Package” according to which the opposite party agreed to fix two teeth of lower jaw and to close the holes in the teeth including clanging of the teeth of the complainant and the complainant paid Rs. 200/- towards advance amount. On 24-10-2014, the complainant reached the Vasan Dental care at 4 P.M. and the holes in the complainant's teeth were closed but two teeth in the lower jaw were not implanted or no cleaning of the teeth was done as agreed and the Doctors and security guards in the hospital of the opposite parties forcefully snatched the balance amount of Rs. 799/- from the complainant. When the complainant raised objection to the violation of the agreement, the 2^nd opposite party Sri. P.V. Franklin undertook that they would do the service as agreed. The complainant filed a complaint before the City Police Commissioner and a crime was registered with crime No. 387/2014. But the opposite parties were not ready to settle the issue and the S.I of Police asked the complainant to approach this forum to redress his grievance. Hence the complainant filed this complaint before this Forum and the complainant prayed for a direction to the opposite parties to pay a compensation of Rs. 50,000/- (Rs. Fifty thousand only) for the injury and pain suffered by the complainant and for such other direction as the Forum may think fit in the interest of justice.

1. 1. 2. Notices were issued to the opposite parties from this Forum and the opposite parties filed their version resisting the averments in the complaint filed by the complainant.

3. Version of the opposite parties

It is submitted that a dental camp was conducted by Vasan DentalCare on 13-10-2014 at the conference hall of the District Library office at Revenue towers,Ernakulam and the package offered by the opposite parties were the following.

1. 1. 1. Full mouth scaling & Polishing

      2. Two numbers tooth colour filling,

      3. Full mouth digital OPG (X-Ray)

      4. Consultation with primary consultant

      5. Consultation ;with specialist consultant

      6. Free consultation for 4 numbers of family members.

The opposite parties admitted that the complainant remitted an advance of Rs. 200/- for availing the service under Rs. 999/- package and the balance amount of Rs. 799/- was payable. The averment of the complainant that the opposite parties agreed to implant two teeth and also to fill the cavity in the teeth as part of package is incorrect . The package included only polishing and filling of the cavity of two teeth. The complainant got his teeth polished and the filling done and paid the balance amount of Rs. 799/- voluntarily and left the premises. The allegation of the complainant that the opposite parties had threatened and forcefully took money from him is denied by the opposite parties. The above factual position was explained by opposite parties before the Police Authorities also, when they were called to the police station in the case filed by the complainant Vide Crime No. 387/2014. It is submitted that this complaint filed by the complainant is false. Therefore the opposite parties sought for the dismissal of this complaint with exemplary costs to the opposite parties.

4. The issues to be decided in this case are as follows:

i. Whether the complainant has proved deficiency in service or Unfair Trade Practice on the part of the opposite parties?

ii. If so whether the opposite parties are liable to pay compensation of Rs. 50,000/- to the complainant together with costs.?

5. The evidence in this case consisted of the oral evidence adduced by the complainant as PW1 and the documentary evidence furnished and marked as Exbts. A1 to A7 on the side of the complainant. The opposite parties adduced no oral evidence. The documentary evidence furnished by the opposite parties were marked as Exbts. B1 to B3.

6. Issue No. i. The complainant, Sri. C.N. Purushothaman is a Kerala State Lottery agent. The district lottery office is situated at the 7^th floor of the Revenue tower, Boat Jetty,Ernakulam. He had attended a Dental Camp held by Vasan Dental Care, Ernakulam at the conference Hall of District Lottery Office in the 7^th floor of the Revenue Tower, Boat Jetty, Ernakulam on 13-10-2014. The complainant participated in the Dental Camp as per the invitation of the Vasan Dental Care. Exbt. A1 brochure of Vasan Dental Care was issued to the complainant at the time of attending the Dental Camp and Exbt. A2 is the original of the visiting card of the Vasan Dental Care issued to the complainant while attending the comp. In that camp the opposite parties introduced a package scheme by name “999 package”. The complainant paid an amount of Rs. 200/- towards advance amount and Exbt. A3 is the bill, receipt dated 13-10-2014 showing advance payment of Rs. 200/- out of Rs. 999/- to avail the benefit of the package. Exbt. A4 is the reverse page of Exbt. A3 receipt. Exbt. A4 states that the following services included in the '999 package';

“1. Scaling and Polishing

2. OP G – (X-ray)

3. Filling -2

4. Consultation 4 + (1)

5. Consultation – Senior Doctor “

The complainant deposed before the Forum the name of the Manager of the 1^st opposite party was by mistake shown as P.V. Francis 2^nd opposite party. The complainant submitted that on 24-10-2014 Sri. P.V. Franklin the manager of the Vasan Dental care had given an undertaking that if Dr. Laya had agreed to fix 2 teeth it will be done and the said undertaking was reduced into writing on the reverse page of Exbt. A3 also. But on the very next day i.e. on 25-10-2014 the opposite parties took a stand that there is no such agreement. Therefore the complainant filed Exbt. A7 complaint before the City Police Commissioner, Ernakulam on 28-10-2014. But the opposite parties were not ready to settle the issue before the police authorities. Hence the complainant filed this complaint for the redressal of his grievance. It is seen that the complainant had paid in cash, the balance amount of Rs. 799/- as evidenced by Exbt. A6 receipt dated 24-10-2014 issued by Vasan Dental Care to avail the service of the opposite party under the '999 Package'. The complainant as PW1 deposed before the Forum that the opposite parties had filled the cavity of the teeth and cleaned the teeth of the complainant. It is also evident from Exbt. B3 treatment records of the complainant but the opposite parties had not fixed 2 teeth as promised. The complainant also deposed that 2 teeth fixed were not fit enough therefore those teeth were returned to the opposite parties but thereafter the 2 teeth were not fixed by the opposite parties and the complainant is therefore unable to eat even Idli or Dosa and suffering from pain for the last 2 years. Thus there is deficiency in service on the part of the opposite parties. The only evidence produced by the complainant is the undertaking given by Sri. P.V. Franklin, the Manager of Vasan Dental care, on the reverse page of Exbt. A3 (i.e.Exbt. A4 ) agreeing to fix two teeth. That promise is not yet complied with by the opposite parties. The opposite parties have not adduced necessary evidence to show that fixing of two teeth was not included in the 999 package. The 1^st issue is decided in favour of the complainant.

7. Issue No. ii. The complainant claimed Rs. 50,000/- towards compensation for the mental agony inconvenience pain suffered due to the deficient service on the part of the opposite parties. The complainant in his proof affidavit prayed for Rs. 1,00,000/- towards compensation. We are legally bound to consider and decide only the claim of compensation of Rs.50,000/- as stated in the complaint. Considering all the facts and circumstances of the case the claim of compensation of Rs. 50,000/- is on a higher side. We find that the complainant is entitled to get fixed two teeth or to get replacement of two missing teeth in view of the undertaking given by Sri. P.V. Franklin to fix two teeth if it was so promised by Dr. Laya. That promise is not yet been complied by the opposite parties. It is sufficient to redress the grievance of the complainant, if the opposite parties replace the missing teeth by fixing two teeth as promised, free of cost or else they are directed to pay Rs. 10,000/- towards compensation for the deficient service and for the mental agony suffered by the complainant.

8. The complainant has spent his hard earned money and time to contest this case. Had the opposite parties fulfilled their promise to replace the missing two teeth, this complaint would not have been filed by the complainant. The complainant is unnecessarily dragged to this Forum to redress his genuine grievance. Hence we find that the complainant is entitled to get costs of the proceedings which we fix at Rs. 2,000/-.

9. In the result, we allow the complaint in part and direct as follows:

i. The opposite parties shall fix two teeth in the place of two missing teeth.

ii. In the alternative, the opposite parties shall pay Rs. 10,000/- towards compensation to the complainant for the deficiency in service and for the mental agony suffered by the complainant.

Iii. The opposite parties shall also pay Rs. 2,000/- towards costs of the proceedings to the complainant.

The above said orders shall be complied with, within a period of 30days of the receipt of a copy of this order, failing which the above amounts except costs will carry interest at the rate of 12% p.a. from the 31^st day of the receipt of this order till the date of realization.

Pronounced in the open Forum on this the 20^th day of May 2017

Sd/-

Beena Kumari V.K., Member.

Sd/-

Cherian K. Kuriakose, President. Sd/-

Sheen Jose, Member.

Forwarded/By Order,

Senior Superintendent

Appendix

Complainant's exhibits:

Exbt. A1 : Brochure

A2 : Terms and conditions

A3 : Bill/receipt dt. 13-10-2014

A4 : Brochure

A5 : Slip regarding dental

screening details

A6 : Copy of advance receipt

A7 ; True copy of complaint to

City Police Commissioner,

Ernakulam.

Opposite party's Exhibits:

Exbt. B1 : Extract of board meeting

dt. 02-11-2012

B2 : C.D

B3 : Patient Health record

Deposition

PW1 : C.N. Purushothaman

Copy of order despatched on:

By Post : By Hand: