Tamil Nadu

StateCommission

A/351/2023

S.J.Shrisivakumaran, B.D.S. - Complainant(s)

Versus

Mrs. Thilagavathi, W/o Late M.Venkatachalam - Opp.Party(s)

M/s S.Shashank

31 Jul 2023

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI – 600 003.

 

Present:   Hon’ble THIRU JUSTICE R. SUBBIAH  : PRESIDENT

                 THIRU R  VENKATESAPERUMAL          :    MEMBER

 

F.A. No.351/2023

(Against the Order made in C.C.No.40/2018 dated:26.08.2022 on the file of the D.C.D.R.C., Tiruppur)

 

DATED THE 31^ST DAY OF JULY 2023

 

Dr. S.J. Shrisivkumaran,

Shre Manikam Dental Clinic,

Palayakottai Road,

Kangayam – 638 701.                     .. Appellant / Opposite party. 

 

-Versus-

Mrs. Thilagavathi,

W/o. Late M. Venkatachalam,

No.2/222 F, Balaji Nagar,

Muthalipalayam,

Tiruppur – 641 606.                         .. Respondent / Complainant.

 

Counsel for the Appellant / Opposite party  : M/s. S. Shashank

Respondent / Complainant                         : Notice served

 

                The respondent as complainant had filed a complaint before the District Commission against the opposite party praying for certain directions.  The District Commission had passed an ex-parte order, allowing the complaint. Against the said ex-parte order, this appeal is preferred by the opposite party praying to set aside the order of the District Consumer Commission, Tiruppur dt. 26.08.2022 in C.C. No.40/2018.

        This petition came before us for hearing finally, today and upon hearing the arguments of the Appellant, perusing the documents, lower court records and the order passed by the District Commission, this Commission made the following order in the open court.

ORDER

Thiru. R VENKATESA PERUMAL , MEMBER                      

        1.  The opposite party before the District Commission is the appellant herein.

        2. The case of the complainant before the District Commission is that on 29.05.2016, she approached the opposite party for treatment for her dental pain and after diagnosing the catastrophe as damage in her left Molor Teeth, the opposite party had advised the complainant to go for tooth extraction of the damaged teeth and also to opt for root canal for another tooth.  The complainant undertook the procedures on the same day.  The opposite party had performed tooth extraction in the Left Molar Teeth and had performed Root Canal in the other tooth.   On the same day, due to some abnormalities  in the procedure done by the opposite party, the complainant developed swelling in the lower part of the face and developed abnormal pain in her nose and forehead.  The opposite party has not completely removed the affected tooth infected pulp and half broken teeth is fixed inside which damaged the nasal pore.  Further, the complainant found that there were broken pieces of teeth in the cotton.   Further, her health condition has deteriorated and she is not able to turn her head freely.  Hence, the complainant went to the Tamil Nadu Medical Services Corporation Government District Head Quarters Hospital, Tiruppur on 08.08.2016 and taken CT-Scan.  The act of negligence in treating the complainant caused great mental agony.  On 15.09.2016, the complainant sent a legal notice to the opposite party for which, the opposite party sent a reply notice dt.28.09.2016 but not comply with the demands of the complainant.  Thereafter, alleging deficiency of service on the part of the opposite party, the complainant has filed the complaint before the District Commission claiming a sum of Rs.10,00,000/- towards loss of his life, Rs.8,00,000/- towards compensation for mental agony and Rs.1,50,000/- towards compensation for medical negligence and Rs.50,000/- towards cost to the complainant.

3.     The opposite party after filing his version has not filed his proof affidavit and hence, the opposite party was set exparte.  Consequently, the District Commission passed an ex-parte order by directing the opposite party to pay a sum of Rs.1,00,000/- towards compensation for mental agony  suffered by the complainant due to negligence and deficiency in service and of Rs.10,000/- towards cost to the complainant.  The above amounts shall be payable within 2 months from the date of receipt of the copy of order failing which, interest at the rate of 6% p.a. has to be paid.

4.     Aggrieved over the said order, this appeal is preferred by the opposite party praying for setting aside the order and for a chance to contest the case on merits. 

5.     Before this Commission, the counsel for the appellant / opposite party submitted that there is no deficiency of service on his part.  Further, the opposite party has a good case to succeed.  Therefore, the appellant / opposite party sought this Commission to set aside the order of the District Commission and prayed for an opportunity to contest the case on merits.

6. When the case had come up before this Commission on 31.07.2023, after hearing the submission of the appellant, this Commission had felt that there is some force in the arguments of the counsel for the appellant / opposite party and therefore, in order to give a chance to the opposite party to agitate their right on merits, was inclined to allow this appeal by remanding the matter to the District Commission, to dispose of the case on merit.   However, considering the lethargic attitude of the opposite party in not appearing before the District Commission, we imposed a cost of Rs.3,000/- to be paid to the Legal Aid Account of the State Commission.  The said amount has also been paid today by the appellant.  Since the condition imposed by this Commission has been complied with, this appeal is allowed today by remanding back the complaint to the District Commission for fresh disposal according to law. 

         In the result, the appeal is allowed by setting aside the order of the District Consumer Commission, Tiruppur in C.C. No.40/2018 dt.26.08.2022 and the matter is remanded back to the District Consumer Commission, Tiruppur for fresh disposal according to law and on merits.

 Both parties are directed to appear before the District Consumer Commission, Tiruppur on 31.08.2023 for further proceedings.  The appellant / opposite party is directed to file Vakalath, Written Version, proof affidavit, written argument and documents if any on the same day itself.

 The District Commission is directed to dispose of the complaint on merits within three months after hearing both parties as expeditiously as possible as per law.  

 Both parties shall abide by the order of the District Commission regarding the mandatory deposit already made by the appellant / opposite party before this Commission.

 

   R  VENKATESAPERUMAL                                                                                                             R. SUBBIAH

                 MEMBER                                                                                                                              PRESIDENT

 

Index :  Yes/ No

 

KIR/SCDRC/Chennai/Orders/July/2023.