BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Monday the 9^th day of July, 2012

C.C.No.110/2011

Between:

A.M.Janardhan, S/o Ayyappa, Proprietor Siva Jyothi Computer Institute,

D.No.8-26/21, Kambalapadu Road, Dhone- 518 222, Kurnool District.   

                                   …Complainant

                                                    -Vs-      

1. Dr.Partha Sarathi,Managing Director,  Partha Dental Hospital,

101,  Skill Spectrum Complex, Liberty Road,  Adjacent to TTD Kalyanamanatapam, Kukatpalli, Hyderabad - 500 029.

1. Dr.Jaswa, C/o Dr.Partha Sarathi, Managing Director,Partha Dental Hospital,

101, Skill Spectrukm Complex, Liberty Road, Adjacent to TTD Kalyanamanatapam,   Kukatpalli, Hyderabad - 500 029.

3. Dr.Thomas, Partha Dental Hospital,

    50/420, Gayathri Estate,  Kurnool  -  518 002.         

...Opposite ParTies

This complaint is coming on this day for orders in the presence of Sri P.Siva Sudarshan, Advocate for complainant and Sri G.Ramaiah Pillai, Advocate for opposite parties 1 to 3 and upon perusing the material papers on record, the Forum made the following.

    ORDER

(As per Sri. M.Krishna Reddy, Male Member)                                                               C.C. No.110/2011

1.     This complaint is filed by the complainant under section 11 and 12 of C.P. Act, 1986 seeking a direction on opposite parties for the payment of:-

1.   Rs.26,000/- being the refund of fee paid with 24% per annum interest;

1.  Rs.1,00,000/- as compensation for causing mental agony;

1.   Rs.85,000/- towards reimbursement for earning loss;

1.   Any other which is deem to be fit and proper in the circumstances of the case.

2.    The complainant is running a computer institute under self employment basis at Dhone.  He was attracted by the opposite parties advertisement for “Smile” teeth and met opposite party No.2 for treatment on 31-01-2011 by paying Rs.6,000/- vide bill No.1501T as advance.  Opposite party No.2 trimmed the complainant teeth, took the impression for fixing artificial teeth and advised to come for every 3 days for treatment.  The complainant paid Rs.10,000/- vide bill No.15033 dated 02-02-2011 as second installment of fee.  Root canal treatment was done to the complainant on 09-02-2011 collecting Rs.10,000/- as third and final installment vide receipt No.15683 dated 09-02-2011.  The complainant was kept under observation for few days.  When the complainant went to opposite party No.2 on             12-02-2011 for fixing the crown, no one was there attend him.  On enquiry he came to know that opposite party No.2 was transferred and in his place opposite party No.3 was posted.  Opposite party No.2 left the place without briefing the complainant’s case to his successor.  Till 01-03-2011 the complainant suffered with pain and did not take food and water properly.  On 01-03-2011 opposite party No.3 without knowing the pervious history of the patient fixed the crown, as a result of which the pain increased further on the same day for which opposite party No.3 gave some medicines on 02-03-2011 but of no use.  Opposite party No.3 realized his mistake of non-filling root canal injury after questioned by the complainant along with his brother Lakshminarayana on 03-03-201 and tried to remove the crown negligently without taking necessary precautions.  In that panic condition opposite party No.3 incised the upper lip of the complainant which resulted heavy bleeding wetting the shirt of the complainant.  Opposite party No.3 sutured the injured lip and advised the complainant to come after ten days promising the refund of fees of Rs.25,000/- and free treatment by expert doctors anticipating the complainant may register case or go to the media.  On 13-04-2011 opposite party No.3 without calling experts tried to remove the permanently fixed crown and damaged it.  Dr.Ravi of opposite party No.1 filled cement to root canal on 16-04-2011 and opposite party No.3 fixed a new crown to the complainant’s teeth which does not fit properly.  Opposite party No.3 realizing his mistake tried to remove the newly fixed crown but failed.  Vexed with opposite parties and with severe pain the complainant come out of opposite party No.1 hospital.  During the period of treatment the complainant could not run his computer centre and incurred a loss of Rs.85,000/-.  The complainant got issued a legal notice to opposite party No.3 asking them to pay appropriate reliefs.  As opposite party No.3 did not respond to the legal notice though he received it, the complainant failed this case before the Forum praying a suitable order.

3.     Sworn affidavit documents marked as Ex.A1 to Ex.A11, Mo.1 third party affidavit of M.Lakshinarayana and deposition of expert doctor marked as PW1 are failed to support the case of complainant.

4.     Opposite party No.3 denying his liability to the complainant’s claim filed his written version.  Opposite party No.3 was working with opposite party No.1 since two years and avered that there is no negligence on this part in treating the complainant.  Opposite party No.3 submitted that the complainant had flap surgery with bone graph three months age at GPR Dental College, Kurnool.  It is admitted that complainant came to opposite parties hospital on 03-01-2011 and paid Rs.26,000/- in three installments for his dental treatment which was done as per schedule on different dates with at most care.  A temporary crown was fixed to the affected teeth of complainant on 01-02-2011.  After wards a metal crown trial on 05-02-2011 and a permanent ceramic crown was fixed on 09-02-2011.  The complainant never came to the hospital complaining with severe pain and swelling of gums and jaws.  He came on 22-02-2011 for fixing partial dentures and did not turned up till the month end.  As the complainant was having irritation and discomfort, he came to the hospital on 03-03-2011.  As part of treatment root canal opening was conducted removing fixed partial denture.  While conducting the procedure the complainant moved his head suddenly, resulting a slight laceration on the upper lip.  Immediate steps were taken for suture by a specialist and the injury was cured free of cost through it cost Rs.25,000/-. Despite the care taken by opposite party No.3, the complainant asked for the refund of Rs.26,000/- after availing treatment.  If medical negligence is alleged, the onus of proof shall lie on the complainant.  Failure to establish the negligence by expert evidence, the case of complainant against opposite parties is liable for dismissal. 

5.     Opposite party No.3 filed sworn affidavit along with Ex.B1, Ex.B2 and deposition of opposite party No.3 as RW1 to substantiate his case.  Opposite party No.1 and opposite party No.2 filed memo adopting the written version of opposite party No.3. 

6.     Both sides filed written arguments.

7.     Hence the points for consideration are:

1. Whether the complainant made out a case against opposite parties to proof deficiency?

1. Whether the complainant is entitled for any reliefs?

1. To what relief?

8.      POINTS i and ii:-  Admittedly the complainant  took dental treatment under the care of opposite parties Ex.B1 is case sheet of complainant.Ex.A1 and Ex.A2 are prescriptions of opposite parties.  He paid fee of Rs.26,100/- in installments.  Ex.A4 to A8 are receipts for the fees paid.  According to the complainant root canal opening was done by opposite party No.3 on 09-02-2011 to the affected teeth, after wards permanent crown was fixed on 01-03-2011 without filling root canal injury.  As a result he suffered from severe pain and swelling of gums.  Opposite parties were negligent and no one attended him.  When he and his bother Lakshminarayana questioned opposite parties negligence on 03-03-2011 opposite party No.3 realized his mistake of non filling root canal injury, and then tried to remove crown. While doing the procedure, laceration occurred to his upper lip due to the negligence of opposite party No.3, which made him to suffer bodily mentally and financially.  Opposite party No.3 contended that as per schedule on different dates he fixed a temporary crown on 01-02-2011, after-wards a metal crown trial on 05-02-2011 and finally a permanent ceramic crown on 09-02-2011.  The complainant never complained about pain and swelling of gums, and came on 22-02-2011 for fixing partial denture.  As he was having irritation and discomfort he came to the hospital on 03-03-2011.  While removing the fixed partial denture the complainant moved his head suddenly resulting a laceration on the upper lip.  Immediate steps were taken to cure the injury on free of cost.  Opposite party No.3 in his deposition as RW1 admitted that root canal treatment is not required before FPD is fixed.  No specialization is required for fixing the crown.  To sub side the pain he wanted to remove the crown.  While removing the crown no anaesthesis was given to the complainant and no lip guard was used.   He was not successful in removing the crown on 03-03-2011 and so the complainant sustained lip injury.

        Dr.Y.Muralidhar Reddy, M.D.S. Principal, G.Pulla Reddy Dental College, Kurnool was examined as PW1.  In his deposition he stated that when tooth structure is damaged crown has to be fixed only after root canal treatment, and filling the canal with cement.  Some skill is required to fix the crown and for the removal of crown care has to be taken to protect lip from injury with a guarding instrument.  Local anaesthesia has to be given compulsory.  He also deposed that as per case sheet Ex.B1 proper protocol was not followed.  

        For the reasons mentioned above and the material papers placed on record it is evident that tooth preparation which is a must before fixing the crown to the affected tooth was not done by opposite party No.3.  Therefore the complainant suffered pain and swelling of gums.  While removing the crown also anaesthesis was not given and lip guard was not used.  Hence the patient sustained lip injury.  In view of the above findings the Forum came to the conclusion that the complainant was subjected to improper treatment by opposite parties on account of their negligence.  In view of the above conclusion the complainant is entitled compensation.  

9.      Point No.iii:- The complainant claimed the refund of fee of Rs.26,000/- with 24% per annum interest.  Besides Rs.1,00,000/- compensation for causing suffering and mental agony.  Further the complainant is running a computer institute on self employment basis and had to remain out side for same period there by suffering loss of 85,000/-. This claim is excessive.  It is just and proper to award Rs.26,000/- incurring expenditure Rs.10,000/- as compensation for causing mental agony and Rs.5,000/- for suffering loss to his profession.  Adding all these amounts together the total comes to Rs.41,000/-.  Rs.1,000/- is granted as cost of the case.  

10.    In the result, the complaint is partly allowed directing the                    opposite parties 1 to 3 jointly and severally to pay Rs.41,000/- with interest at 9% from the date of filing the case, and Rs.1,000/- as cost of the case.   

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 9^th day of July, 2012.

Sd/-                                   Sd/-                                   Sd/-        

MALE MEMBER                      PRESIDENT                 LADY MEMBER

                                 APPENDIX OF EVIDENCE

                                    Witnesses Examined

For the complainant : PW1                 For the opposite parties : RW3

List of exhibits marked for the complainant:-

Ex.A1                Prescription of Partha Dental, Hospital dated 02-03-2011.

Ex.A2.       Prescription of Partha Dental, Hospital dated 06-03-2011.

Ex.A3                Photos (Nos.3) along with C.D.

Ex.A4                Cash Receipt No.15014 for Rs.50/- dated 31-01-2011.

Ex.A5                Cash Receipt No.15017 for Rs.6,000/- dated 31-01-2011.

Ex.A6                Cash Receipt No.15032 for Rs.50/- dated 01-02-2011.

Ex.A7                Cash Receipt No.15033 for Rs.10,000/- dated 02-02-2011.

Ex.A8                Cash Receipt No.15683 for Rs.10,000/- dated 09-02-2011.

Ex.A9                Office copy of Legal Notice dated 11-03-2010 along with

                Postal Receipts and Acknowledgement Cards.

Ex.A10       Photo copy of Institute of Registration Certificate

dated 09-09-2010.

Ex.A11       Original treatment of G.Pulla Reddy Dental College &

                Hospital, Kurnool with OP.No.84586 dated 21-08-2010.

PW1         Deposition of Dr.Y.Muralidhar Reddy dated 29-05-2012.

MO.1        Removed artificial tooth Crown.

List of exhibits marked for the opposite parties:-

Ex.B1                Photo copy of Case Sheet dated 03-01-2011 of Janardhan

                treated in the Dental Hospital, Kurnool along with Clinical

                Examination Chart.

Ex.B2                Photo copy of Reply Letter.

RW3           Deposition of Sri Dr.M.S.Thomas dated 20-03-2012.

Sd/-                                   Sd/-                                   Sd/-        

MALE MEMBER                 PRESIDENT                   LADY MEMBER

    // Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties  :

Copy was made ready on             :

Copy was dispatched on               :