KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 290/2010
JUDGMENT DATED 29.09.2011
PRESENT:-
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
APPELLANT
Sulekha Muraleedharan,
W/o Muraleedharan, Pothangot House, Palazhi P.O.,
Guruvayoorappan college,
( Rep. by Adv. Sri. S.S. Shermin & T.S. Ajith Kumar)
Vs
RESPONDENT
Dr. Prajith Sampath BDS,
Palazhi Dental Clinic,
Palazhi, Pala P.O., Guruvayoorappan College, Calicut – 673 014.
(Rep. by Adv.P. Srinath Girish & Vinayak Pratap K.S. )
JUDGMENT
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
By the order dated 3.12.2009 of CDRF, Kozhikode in C.C. 234/09 the complaint filed by the appellant herein was dismissed. It is against the said dismissal that the present appeal is filed by the complainant calling for the interference of this Commission as to the correctness of the order passed by the Forum below.
The complainant has approached the Forum stating that she went to the opposite party, Dentist, on 8.12.04 complaining about tooth ache and that the opposite party had extracted the complainant’s tooth on 8.12.2004 itself and that the complainant had suffered acute pain and that blood was also oozing from the place of extraction. It is alleged that the opposite party had applied Zinc Oxide Eugenol (cement) on the site of the extraction of tooth and that the pain becoming unbearable, the complainant had to go to the government Dental College, Calicut on 31.12.2004 and that in the X-ray, it was found that in the site of extraction foreign bodies were found which were removed subsequently. Alleging that the opposite party had negligently extracted the tooth of the complainant, the complaint was filed praying for direction to the opposite parties to pay the sum of Rs. 50,000/- as damages and Rs. 1,94,000/- as compensation and also Rs. 6,000/- as costs.
Resisting the complaint, the opposite party filed version wherein it was contended that there was no deficiency in service on the part of the opposite party. It was admitted that the complainant had approached him with the complaint of tooth ache on the right 3rd upper molar tooth and the tooth was extracted on 18.12.2004 and medicines were prescribed. It was also his case that the complainant had not contacted the opposite party thereafter and that the petition was filed to extract money from the opposite party on false pretexts. Contending that there was no deficiency in service the opposite party prayed for the dismissal of the complaint with cost.
The evidence consisted of the depositions of Pw1 to Pw5 , Exts. A1 to A10 and C1 and C2 on the side of the complainant. The opposite party was examined as Rw1. It is based on the said evidence that the Forum below dismissed the complaint.
Heard both sides.
The learned counsel for the appellant/complainant vehemently argued before us that the order of dismissal of the complaint by the Forum below was without appreciation of the facts and circumstances of the casein its correct perspective. He has argued before us that the opposite party had committed great deficiency in service by applying Zinc Oxide Eugenol in the extraction site and that though the complainant had approached with the complaint of severe pain, the opposite party was negligent in giving proper treatment to the complainant. It is also his case that it is not correct to say that the complainant had not contacted the opposite party after the extraction of tooth on 18.12.2004. He has also submitted that it was finding that the pain was not subsiding that the complainant went to the government Dental College where major surgery was conducted by which problems were solved. It is also his case that applying Zinc Oxide Eugenol was found to be inappropriate in the case of the complainant. The learned counsel advanced the contention that the complainant was put to great sufferings, mental agony and other hardships due to the defective treatments extended by the opposite party to the complainant. The learned counsel argued that order of the Forum below is to be set aside and the appeal is to be allowed.
On the other hand the learned counsel for the respondent/opposite party opposed the contentions of the learned counsel for the appellant. It is argued by him that even the expert doctor, who was instrumental for issuing Ext. C1 report has deposed before the Forum that Zinc Oxide Eugenol is commonly used as a palliative dressing into the socket where tooth is extracted. He has also stated that it is used to relieve pain. However it is the case of the respondent that the complainant has not produced anything to show that she has contacted him after the tooth extraction on 18.12.2004 and argued that the operation was done much later in the government Dental College Hospital at Kozhikode. It is further argued by the learned counsel that Pw1 has not specifically stated that it was Zinc Oxide that was present in the site of extraction and that was why, a question mark (?) was put in Ext. A2. He has also advanced the further contention that the complainant had consulted for treatment for the problems to other teeth also in the Government Dental College Hospital and hence the order of the Forum below is liable to be upheld as it has been passed after appreciation of the entire facts and circumstances of the case.
On hearing both sides, and on perusing records, we find that the Forum below dismissed the complaint finding that though in the X-ray3 white masses in the site of extraction of tooth were found nobody has testified that it was Zinc Oxide Eugenol and that the said mass after removal by surgery were not subjected to any examination. The Forum below had also observed that the doctors Pw1 and Pw5 had never stated that there was any negligence or deficiency in service on the part of the opposite party.
On going through the records it is found that the complainant had approached the opposite party on account of tooth ache, and that it is the admitted fact that the tooth was extracted on 18.12.2004 and the some medicines were seen prescribed on the said date itself as is evident from Ext. A. It is also found that it was only on 31.12.2004, that the complainant went to the Government Dental College Hospital, Kozhikode, where X – ray was taken and three pieces of masses were found which were taken out after surgery. Though Pw1 was examined in detail, it is not brought out that the masses that were brought out were Zinc Oxide Eugenol as argued by the complainant. It is further found that even if Zinc Oxide, Eugenol is used, Pw1 has stated that it can be used as a palliative dressing in the socket of extracted tooth for relieving pain. It is to be found that the complainant had approached the Dental College only after 12 days from the date of extraction of tooth. If the complainant was having that much of pain and suffering, she would not have waited till that time. Moreover, nobody has given evidence to the effect that the treatment given by the opposite party was defective and it was due to the treatment given by the opposite party alone that the complications arise. In the said facts and circumstances, we find no reason to interfere with the findings and conclusions of the Forum below. The appeal is also liable to be dismissed and we do so accordingly.
In the result, the appeal is dismissed. The order dated 3.12.2009 of CDRF, Kozhikode in C.C. 234/05 is confirmed. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective cost.
The office is directed to return the L.C.R. along with a copy of this order to the Forum below.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU : PRESIDENT
ST
