KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.351/07 JUDGMENT DATED.9.7.09 PRESENT SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER Dr.Charles K.Thomas, St.Jude Dental Clinic, -- APPELLANT Idukki Road, Thodupuzha. (By Adv.Mathew Kuzhalanadan) Vs. Mercy Jose, W/0 Jose, Thuruthikkara House, -- RESPONDENT Arakkulam P.O, Thodupuzha. JUDGMENT SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred against the order dated 26th December 2006 passed by CDRF, Idukki in CC.No.225/05. The complaint in the said CC.225/05 was filed by the respondent herein as complainant against the appellant/opposite party claiming compensation of Rs.1,24,150/- on the ground of deficiency in service on the part of the opposite party Dental Surgeon in treating the complainant for her left upper premolar and canine teeth. The opposite party entered appearance and denied the alleged deficiency in service. He contended that there was no negligence on his part in treating the complainant. It is further contended that he conducted root canal treatment for the left canine tooth of the complainant and that he had nothing to do with the left upper premolar tooth of the complainant. Thus, the opposite party prayed for dismissal of the complaint. 2. Before the Forum below two expert Doctors who treated the complainant were examined as PWs 1 and 2. The complainant has been examined as PW3. Exts.P1 to P11 documents were also marked on her side. From the side of the opposite party he himself has been examined as DW1. R1 to R3 were also marked on his side. Exts.X1 to X3 documents were produced by PWs 1 and 2 and those documents were also marked. On an appreciation of the evidence on record, the forum below found the opposite party negligent in treating the complaint to the left premolar and thereby the impugned order passed directing the opposite party to pay compensation of Rs.35,000/- with cost of Rs.2500/- with future interest at the rate of 12% per annum. Aggrieved by the said order, the present appeal is filed by the opposite party therein. 3.When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the opposite party/ Dental Surgeon had no occasion to do the root canal treatment for the left premolar of the complainant and that the treatment was done in the year 2002; that the infection to the left premolar occurred only in the year 2005 and that there was no negligence on the part of the opposite party/Dental Surgeon in treating the complainant. It is further submitted that the forum below totally relied on the testimony of PW3 and thereby found the opposite party as negligent. He much relied on the entries in R3 medical prescription produced from the side of the opposite party/Dental Surgeon. It is also submitted that the presence of a portion of the reamer in the left premolar of the complainant cannot be considered as negligence as PW2, the expert Dental Surgeon admitted the fact that breaking of reamer while doing root canal treatment is quite common. Thus, the appellant requested for setting aside the impugned order passed by the forum below. 4. The points that arise for consideration are:- 1. Whether there was any sort of negligence or deficiency in service on the part of the appellant/opposite party in treating respondent/complainant for her complaint to the left premolar? 2. Whether the forum below can be justified in finding the opposite party/Dental Surgeon deficient in rendering the service to the complainant while treating the complainant during the year 2002? 3. Is there any sustainable ground to interfere with he impugned order dated 26.12.2006 passed by the CDRF, Idukkiin CC.No.225/05? 5. POINTS 1 TO 3:- There is no dispute that the respondent/complainant approached the appellant/opposite party Dr.Charles K.Thomas on 23.5.02, for the pain on the left canine and left upper premolar teeth. It is the case of the complainant that she had pain and discomfort in April 2005 and she consulted ENT surgeon and ultimately she had consultation with Dr.K.C.Kurian an expert ENT Surgeon who has been examined in this case as PW1. It was diagnosed that the complainant’s problem is with respect to the infection to the left premolar and the complainant was referred to PW2, Dental Surgeon Dr.P.Mathew Varghese. On examination it was detected or diagnosed by PW2 that there is infection to the upper left premolar and that a portion of the reamer /file is kept inside the premolar tooth. PW2 has categorically deposed that RCT had been done to the left upper premolar and the reamer or file happened to break and a portion of the reamer is in the socket or the pulp area of the left premolar. The evidence of PW2 accompanied by Ext.X1 to X3 documents would make it clear that root canal treatment had been done to the left upper premolar tooth of the complainant. It is also established through the evidence of PW2 that a portion of the reamer was broken and it got infected and it in turn caused pain and difficulties to the complainant. It is true that PW2 is not sure and certain that the presence of portion of the reamer is the root cause for the infection. But it is opined that the portion of reamer resulted in causing infection to the upper premolar tooth. It is further admitted by PW2, the Dental Surgeon that while doing RCT it is quite common that the file or reamer used to break and that no harm will be caused to the patient by keeping a portion of the reamer or file. It is also deposed by DW1, the opposite party/Dental Surgeon that the said broken portion of the reamer or file can be safely and conventional sealed without causing any harm or discomfort to the patient. 6. The complainant as PW3 categorically deposed that she had no occasion to go to any other dental Surgeon other than the opposite party/Dr.Charles K.Thomas. She further deposed that she had 4 sitting at the clinic of the opposite party/Dental Surgeon. The forum below compared or analyzed the oral testimony of the complainant with that of DW1, the opposite party. The complainant could inspire confidence and thereby the forum below was very much pleased to rely on the testimony of the complainant as PW3. The forum below has given valid and acceptable reasons for relying on the testimony of PW3. It is to be noted that the opposite party totally denied the case of RCT done to the premolar tooth of the complainant. He also relied on R3 OP ticket; but a perusal of R3 would show that it is not safe to rely on completely on R3 OP ticket. No supporting documents is forthcoming from the side of the opposite party. It is also to be noted that the opposite party failed to give any discharge summary or other medical prescription to the complainant in connection with her treatment at the Dental clinic of the opposite party. In the ordinary course, there will be some register maintained at the clinical of the Dental Surgeon. A perusal of such a register would reveal the details of the treatment given to patients. But in this case the opposite party has not produced any such out-patient register to substantiate his case that no such treatment was given for the left upper premolar tooth of the complainant. In such a situation, the forum below has rightly relied on the testimony of PW3, the complainant. 7.It is established in this case that the complainant had root canal treatment for her upper left premolar tooth during the year 2002 and while doing the RCT for the upper side of the premolar, the reamer used for Root canal treatment was broken and a portion of the reamer remained in the left upper premolar. It is further to be noted that the opposite party suppressed the fact regarding the breaking of the reamer while doing RCT for the premolar tooth. This suppression would amount to deficiency in service. It may be correct to say that it is quite common that reamer or file may break while doing RCT. But, in such a situation it is the primary duty of the Dental Surgeon to inform the fact to the patient. But in this case the opposite party/Dental Surgeon suppressed that material fact to the patient. PW2, the expert Dental Surgeon who had occasion to treat the complainant in the year 2005 has deposed about his practice of informing the patient about such breaking of the reamer or file. The opposite party could not show any authority which would say that the Dental Surgeon need not disclose the fact regarding breaking of the reamer or file while doing RCT. In the absence of any such authority, it can only be concluded that the aforesaid suppression or concealment of fact would amount to deficiency in service. The forum below is perfectly justified in holding that the opposite party/Dental Surgeon was negligent and deficient in rendering service as an expert Dental Surgeon. 8. The complainant claimed a sum of Rs.1,24,150/- as compensation for the medical negligence and deficiency in service on the part of the opposite party/Dental Surgeon. The Forum below awarded a sum of Rs.35,000/- as compensation with cost of Rs.2,500/-. It is to be noted that the complainant spent a sum of Rs.12,650/- in connection with her treatment for the infected left upper premolar tooth; that the complainant had to undergo pain and sufferings on account of the infection to her left upper premolar. It is to be noted that PW2 has only deposed about the possibility of getting infection to the upper left premolar due to the presence of broken piece of the reamer. It is further to be noted PW2 was not definite that the presence of the broken piece of the reamer is the only cause for the infection. It is pertinent to note at this juncture that the complainant had the treatment at the hands of the opposite party during the year 2002. He had no complaint till 2005. The infection to the premolar occurred after the lapse of 3 years. The complainant did not approach the opposite party when she had the complaint of infection to the premolar. The complainant had no complaint about the treatment done by the opposite party till April 2005. Considering all these aspects some leniency is to be shown while awarding compensation. 9. The only deficiency or negligence on the part of the opposite party is the failure on the part of the opposite party in disclosing the entire treatment details to the complainant. So, for that failure or omission awarding compensation of Rs.35,000/- is to be considered as bit high. We are of the strong view that a compensation of Rs.15,000/- will be sufficient to meet the ends of Justice. The forum below has awarded cost of Rs.2,500/- to the complainant. Considering the volume of evidence adduced by the complainant the cost of Rs.2,500/- ordered by the forum below can be treated as just and reasonable. So, the same is confirmed. The impugned order passed by the forum below is modified to the extent as indicated above. These points are answered accordingly. In the result, the appeal is allowed partly. The impugned order dated 26th December 2006 passed by CDRF, Idukki in CC.225/05 is modified. Thereby, the appellant/opposite party is directed to pay compensation of Rs.15,000/- to the complainant with cost of Rs.2500/-. The said amount is to be paid within one month from today, failing which the said amount will carry interest at the rate of 12% per annum from the date of this judgment. As far as the present appeal is concerned, there will be no order as to costs. M.V.VISWANATHAN - JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER
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