Advocate Sanjay Gaikwad for the Complainant
Advocate Abhijit Hartalkar for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 24th December 2013
This complaint is filed by consumer against Dentist for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Bawdhan, Pune 411 021. Opponent is Dentist by profession and running clinic near Kamla Nehru Park, Pune 411 004. In the month of January 2006, complainant visited Opponent for taking treatment as there was small cavity in upper right first pre-molar tooth of the complainant. After examination Opponent has advised complainant root canal treatment. Said treatment was given in the month of January 2006. Thereafter, she had also taken treatment of white and silver filling of other teeth. Complainant paid Rs.4200/- to the Opponent vide cheque dated 7/2/2006. Opponent told the complainant to visit the clinic for filling of caps which would cost Rs.4500/- as the treatment of root canal and filling was completed. Thereafter, complainant has realized that the cavity in the upper right pre-molar was increasing in spite of root canal treatment. Hence, she visited clinic of Opponent. Opponent assured that everything will be alright in the course of time. In the first week of January 2006 there were pains to the complainant in left lower molar tooth. Hence, she visited clinic of Opponent. At that time Opponent advised complainant for root canal treatment on which white filling were done. At that time complainant had shown her upper right first pre-molar tooth as there was sign of decay after taking treatment of root canal. Then Opponent called her for filling cap in the next week. Then complainant had visited another Dentist and it was disclosed that opponent had not done root canal treatment properly and there was secondary infection in the tooth. It was also disclosed after taking x-ray that all other filling which were done by the Opponent were not proper and those needed root canal treatment and caps. The cost of treatment was estimated as Rs.32,000/-. Opponent then refused to touch the tooth for which the root canal treatment was given. Subsequently that tooth was broken and she was advised for the implant treatment which would cost Rs.35,000/-. Then she had done the treatment of root canal for other tooth from another Dentist. She had obtained certificate from Dr. Salke on 26/09/2006. It is the case of complainant that due to improper treatment given by the Opponent she had suffered a lot. She had visited the clinic of opponent and obtained case papers. At that time, opponent visited house of her sister and threatened for the same. Then Opponent had issued legal notice to the complainant as regards the taking of case-papers. Thereafter complainant had issued notice to the Opponent and claimed compensation. The said notice was replied by the Opponent. It is the case of the complainant that Opponent though orally agreed to pay compensation, she did not pay. Hence, she had filed present complaint for deficiency in service and claimed compensation of Rs.80,000/-.
[2] Opponent resisted the complaint by filing written version. It is admitted by the Opponent that complainant visited the clinic of opponent in the month of January 2006. It is not disputed that the root canal treatment for right first pre-molar tooth of complainant was given by the Opponent. It is also admitted that on 7/2/2006 the silver filling treatment on four teeth was given by the Opponent. It is denied by the Opponent that she had insisted for the said treatment to the complainant. According to the Opponent there was not deficiency in service and the treatment given was proper. The contents as regards payment of Rs.4200/- by cheque were admitted by the Opponent. It is the case of Opponent that complainant took treatment from various Dentists and she might have been suffered in that treatment. The allegations as regards the expenses incurred by the complainant for medical treatment are denied by the Opponent. According to the Opponent this complaint is filed with ulterior motive to extract money, after lapse of 23 months period complainant has alleged about the said treatment. Those allegations are false. Opponent has prayed for dismissal of the complaint.
[3] After scrutinizing the documentary evidence, considering the pleadings and hearing the argument of both counsel, following points arise for our determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether complainant has proved that there was deficiency in service caused by the Opponent while giving root canal treatment to the complainant ? | In the affirmative |
2 | Whether complainant is entitled for compensation ? If yes, what would be the quantum ? | As per the final order |
3 | What order ? | Complaint is partly allowed. |
Reasons
As to the Point Nos. 1 to 3-
[4] Admitted facts in the present proceeding are that complainant took treatment of root canal from the Opponent in the month of January 2006. It is the case of the complainant that she had also taken treatment of rest of four teeth from the Opponent and she had paid certain amount by cheque. According to the complainant the root canal treatment which was given by the Opponent was improper and it was failure as the extensive cavity was formed in the said tooth hence complainant had required to take various treatment and she had suffered a lot and for that she had claimed compensation of Rs.80,000/-.
[5] In order to establish the allegations levelled against the Opponent, complainant had produced voluminous documentary as well as oral evidence in the form of affidavits of expert witnesses. Complainant had mostly relied upon the evidence of Vaibhav Suresh Patki, Dr. Unmesh Karmarkar, Dr. Bhaskar Salke and sister of complainant Ms. HemangiJoglekar. Out of these four witnesses two witnesses are on the factual aspect. Witness No.1 Vaibhav Patki is examined on behalf of complainant and he is witness on the sting operation. According to the complainant the Opponent had agreed to pay compensation in presence of Vaibhav Patki and he has recorded the conversion on voice recorder, then that version was converted into CD and the transcript of the said CD is produced by the said witness in his affidavit. Vaibhav Patki has given the replies of questionnaire on oath. His evidence is not relating with the medical treatment and deficiency in service. But his evidence is relating with the circumstances as regards the medical treatment and agreement of compensation. In order to rely upon the evidence which is recorded on tape recorder, the rules of evidence should be made applicable. Opponent has not admitted the conversion. In such circumstances, an opportunity should be given to the opponent to testify the conversion which is relied upon by the complainant. For that, the dami conversation of the same persons should be recorded and voice in the said conversation should be compared with the voice in the CD. That procedure is not followed by the complainant. Hence, the evidence which is produced as regards conversion between the complainant and the Opponent, cannot be accepted.
[6] Another witness i.e. sister of complainant has filed affidavit as regards the incident about the visit of Opponent to the house of sister of complainant. That evidence is also not as regards the medical treatment of the complainant but relating with the case papers which were taken by the complainant in absence of opponent. Hence, that is also not much relevant as regards the deficiency in service.
[7] The next witness Dr. Unmesh Karmarkar has filed his affidavit. According to him complainant has visited his clinic on 22/5/2009. She was referred to Dr. Pradeep Naik for Orthopantomogram. In queries, he has given certain admission and admitted that there is no any medical science method to ascertain the age of root canal treatment. It is asked to Dr. Karmarkar as to whether it is possible to detect the broken file in one of the canal without referring radiograph ? He has replied in the negative. But he has stated that those observations were made in the affidavit on the basis of valid radiograph.
[8] Complainant has also relied upon the evidence of Dr. Bhaskar Salke, who had given the treatment to the complainant, in the month of August 2006. He found secondary infection developed near the root canal treatment. The tooth of the complainant was broken. One broken file was found in the tooth for which the root canal treatment was given and the second canal was unfilled.
[9] It appears from the evidence which is adduced on behalf of the complainant that the complainant took treatment for root canal from the Opponent and subsequently she had required further treatment. It was also disclosed that the treatment of root canal was not perfect and she had required to take further treatment. The learned Advocate for the complainant argued before the Forum that complainant had established that the treatment of root canal was not proper as the broken file remained in the tooth and one of the canal remained unfilled. According to the learned Advocate for the Opponent there is discrepancy in the evidence as regards the location of broken file in the x-ray dated 26/09/2006 and 2/1/2007. It is significant to note that even it is assumed that broken file is not left at the hands of Opponent still inference of deficiency in service can be drawn as the root canal treatment which was given by the Opponent was failure and complainant had required to take further treatment from the other dentist. The standard of proof which is required in the summary proceeding under the Consumer Protection Act, 1986 is much less than which is required in the criminal trial. It is not necessary to establish the charges beyond reasonable doubt and the said charges and allegations can be established after considering the preponderance of probabilities.
[10] After considering the evidence on record this Forum is of the opinion that complainant has established that root canal treatment which was given to the complainant was improper and there was deficiency in service. According to the complainant she had paid Rs.5000/- to the opponent for taking medical treatment. It reveals from the evidence of Dr. Salke that he had established certain amount for the treatment of root canal and implant etc. But complainant has not produced any evidence, bills or receipt as regards the expenses incurred for the said treatment. In such circumstances, heavy compensation which is claimed by the complainant i.e. Rs.80,000/- cannot be considered and it appeared that it is an exorbitant. After considering the evidence on record and suffering to the complainant due to the wrong medical treatment this Forum is of the opinion that complainant is entitled for compensation of Rs.5000/- i.e refund of the fees and compensation for pains and sufferings and mental agony to the tune of Rs.15,000/- and Rs.5000/- by way of costs of proceeding.
In the light of above discussion this Forum answer the points accordingly and pass following order –
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that Opponents have caused deficiency in service by showing medical negligence during the course of root canal treatment to the complainant.
3. Opponent is directed to pay lumpsum compensation of Rs.25,000/- [Rupees Twenty Five Thousand only] to the complainant on the ground of deficiency in service, mental and physical sufferings and cost of litigation within six weeks from the date of receipt of copy of order.
4. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 24/12/2013
