Date of Filling     :  01.02.2016.

                                                                                           Date of Disposal :  14.06.2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.04/2016

(Dated this Wednesday the 14^th day of June 2017)

Mrs. B. Poomali,

W/o. Mr. Baskaran,

No.M-4, TNPHC, Natham,

Thiruneermalai Road,

Kundrathur,

Chennai - 600 060.                                                             … Complainant.

                                                          / Versus /

1.  The Dean,

     Savitha Dental College and Hospital,

     No.162, Poonamallee High Road,

     Chennai - 600 077.

2.  Dr. Darshana,

     Savitha Dental College and Hospital,

     No.162, Poonamallee High Road,

     Chennai - 600 077.

3.  Dr. Madhusudhanan,

     Savitha Dental College and Hospital,

     No.162, Poonamallee High Road,

     Chennai - 600 077.                                                       … Opposite parties.

This complaint is coming upon before us finally on 08.06.2017 in the presence of M/s. J. Venkatesan, Counsel for the complainant, and M/s.  T.R. Udayakumar, Counsel for the 1 to 3 opposite parties, initially filed Vakalat but subsequently, failed to appear before this Forum and file written version hence set Exparte and upon hearing arguments, having perused the documents and evidences of the Complainant, this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 to 3^rd opposite parties for seeking compensation for a sum of Rs.1,00,000/- towards the negligent act performed by the opposite parties, Rs.2,00,000/- towards hospitalization, medicines and expenses occurred for further treatment, Rs.5,00,000/- towards future medical expenses, Rs.5,00,000/- towards mental agony and torture caused to the complainant with cost Rs.1,00,000/- totally of Rs.18,00,000/-.

   2.      The brief averments of the complaint as follows:-

          The complainant’s son by name B. Mohan Ganesh fell down on 18.06.2013 in between two desks in his school and sustained a minor injury in his upper jaw.  On returning, he complained of slight pain and she found slight damage in the enamel. So, she decided to take him to the 1^st opposite party hospital for treatment as they are having good reputation and believed she could get better treatment for her son.  Hence, on 19.06.2013 she and her husband took her son to the 1^st opposite party’s hospital and they gave a register No.828590 for treatment. 

3.       After registration, her son was examined by Doctor namely Darshana and she advised to take X-ray and on examining the X-ray she informed that the injury is not serious in nature and only a minor damage in the enamel area and prescribed tablets for reducing pain and asked her to visit on 21.06.2013 for further follow up and for polishing enamel.  As per the advice of the 2^nd opposite party she visited for further follow up on 21.06.2013 for polishing the enamel.  On 21.06.2013, Dr. Madhusudhanan who is the 3^rd opposite party attended her son and examined him and asked her to pay the charges for further treatment and not bothered to hear the complainant and her son.  Further the nature of treatment to be given to her son was also not explained to her and her husband. 

4.       Thereafter, the opposite parties commenced the treatment and the 3^rd opposite party was busy with the phone call during the treatment and suddenly found they plucked the tooth and they were shocked and told minor error had occurred in the treatment and the same would be set right immediately.  As a temporary measure fixed a twisted string over tooth nos.11, 21 and 22 and never bother for the pain suffered by her son. That on 22.06.2013, she took up the matter with the opposite parties higher authorities and they admitted the mistake committed by them but failed to take immediate steps for the permanent remedy for the minor boy who lost the front permanent tooth.  The act of the opposite parties had caused permanent damage to her son’s tooth and caused pain, untold misery and severe mental agony to the complainant and her son.

5.       As her complaint to the opposite parties were kept in cold storage, she has no other go except to give a complaint to the T5 Thiruverkadu Police Station on 25.06.2013 to take action against the opposite parties for having committed negligence in treatment.  But no action was taken by the said Police Authorities as against the opposite parties since they are financially strong and hence she preferred a petition under section 482 of Criminal Procedure Code vide Crl.O.P. No.29060 of 2013 before the Hon’ble High Court of Judicature at Madras and the same was disposed off with direction on 12.09.2014 that the nature of allegation raised is with regard consumer dispute and advised to go before the Consumer Forum for appropriate compensation.

6.       Then the complainant also issued a legal notice dated:20.01.2014 to the 1^st opposite party through her Counsel and the 1^st opposite party issued a reply notice with untenable allegations.  Further, the complainant sent a communication dated:07.04.2014 to the 1^st opposite party to issue medical records pertaining to her son’s treatment and X-ray, photographs and case sheet and so far  they have not provided the same to the complainant.  The above act of the opposite parties are nothing but deficiency in service and caused mental agony to the complainant and her family members. 

7.       The complainant’s son till date not able to eat any hard eatables he could not chew and the same will touch the permanent tooth.  Now her son is taking regular treatment with one Smile Dental clinic near her home.  After taking treatment with the said clinic she has been relieved to some extent from the pain.  The above act of the opposite parties is nothing but lack of service  on their part and also made the complainant to suffer physical and mental strain.  Hence the complaint.

8.       In order to prove the case, the complainant has filed the proof affidavit as his evidence and documents from Ex.A1 to Ex.A18 are marked on his side. 

9.     At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the  opposite party as alleged in the complaint?

     2.  To what other reliefs, the complainant is entitled to?

10.     Written arguments filed and also oral arguments adduced on the side of the complainant.  Though the P1 to 3 opposite parties was remained Exparte, this Forum wants to dispose the case fully on merits.

11.     Point no.1:-

On perusal of the averments of the complaint and the evidences adduced by the complainant, it is learnt that the son of the complainant by name B. Mohan Ganesh was brought to the 1^st opposite party’s hospital on 19.06.2013 for treatment of a minor injury in his upper jaw due to the fall in between two desks in his school.   After registration in the said hospital by paying a fees of Rs.110/-, the complainant’s son was examined by Dr. namely Darshana, advised to take X-ray and on examining the X-ray she informed that the injury is not serious in nature and only a minor damage in the enamel area and prescribed some tablets for reducing pain and asked to visit on 21.06.2013 for further follow up treatment.  The registration ID card is marked as Ex.A1.  The fees and payment slip along with the prescription are marked as Ex.A2 Series.  It is further stated that on 21.06.2013, the 2^nd opposite party attended her son and examined him and  asked to pay charges for further treatment.  But the nature of treatment to be given was not explained either to her or to her husband of the complainant.  Thereafter, the 3^rd opposite party was busy with the phone call during treatment and suddenly found that they plucked the tooth and they were shocked and told minor error had occurred in the treatment and the same would be set right immediately.  As a temporary measure fixed a twisted string over tooth no.11, 21 and 22 and never bother for the pain suffered by her son. 

12.     Further on 22.06.2013, the complainant took up the matter to the opposite party’s higher authorities and admitted the mistake committed by them.  A copy of prescription given by the opposite party and the cash receipt for the payment of Rs.75/- is marked as Ex.A3.  The letter given by the 3^rd opposite party is marked as Ex.A4.   As the complaint of the complainant to the opposite parties were kept in cold storage, the complainant has no other option.  So, the complainant gave a complaint to the T5 Thiruverkadu Police Station on 25.06.2013 and another complaint dated:25.07.2013 to take action against the opposite parties for having committed negligence in treatment.  The said complaints are marked as Ex.A5 and Ex.A6 respectively.

13.     It is further seen for the complaint of the complainant, no action was taken by the said Police Authorities.  The complainant preferred a petition under section 482 if CR.P.C before the Hon’ble High Court of Madras in Crl.O.P. No.29060/2013 seeking direction to register the case and the order dated:12.09.2014 passed by the Hon’ble High Court passed is marked as Ex.A13.  Thereafter, the complainant issued a legal notice dated:20.01.2014 to the opposite parties is marked as Ex.A7 and the reply notice dated:19.02.2014 by the opposite parties is marked as Ex.A8.  Then the complainant wrote a letter to furnish the treatment information, X-ray, case sheet etc. is marked as Ex.A9.  The CSR summon issued by the T5 Police Station is marked as Ex.A10 and the letter addressed to the Assistant Commissioner of Police, Ambattur for request to furnish the cell phone particulars is marked as Ex.A11 and to request to furnish the FIR as marked as Ex.A12.

14.     The treatment book issued by the Government Dental Hospital, Chennai is marked as Ex.A14 and the treatment card and history issued by the Smile Dental Clinic, Chennai and report and cash bill for the treatment made in A.R. Dental Plus are marked as Ex.A15 & Ex.A16 respectively.  The X-ray and its report is marked as Ex.A17.   The image showing the plucking of tooth along with the CD is marked as Ex.A18.

15.     At the outset, the main allegation of the complaint is that without getting proper consent and intimation, the 3^rd opposite party was busy with the phone call and suddenly plucked the tooth without necessity and inspite of took up the matter to the higher authorities, though they admitted their mistake but failed to take steps for the permanent remedy for the minor boy who lost the front permanent tooth which caused permanent damage and caused much pain and mental agony.  So in such circumstances, it is the duty of the complainant to prove the above said allegations against the opposite party with relevant and acceptable evidence and thereby, the complainant had appeared and adduced evidence through proof affidavit.   At the outset, though in the reply notice, Ex.A8, the opposite party denied the allegations by stating that the pre operative photographs were taken and the patient was thoroughly examined which clearly illustrate that the treatment was not carried out hurriedly and the doctor abruptly stopped the treatment for attending the phone call for 10 – 15 minutes is utterly false.  If it is so, it is the duty of the opposite party to appear before this Forum and prove the above said facts by means of relevant evidence.  But the opposite party failed to do so.  Inspite of repeated opportunities and ample time was given, the opposite parties has not at all turned upto to disprove the evidence of the complainant which clearly shows that the contention raised in the reply notice Ex.A8 becomes fruitable.  Moreover, this Forum wants to elicit that mere reply notice is not enough to deny the allegations made in the complaint.  But the contention raised in the reply notice to be substantiate by means of proper evidence before this Forum on the side of the opposite party.

16.     At this juncture, on perusal of the evidence of the complainant that, the complainant has come forward to produce some evidence to show about the negligent treatment of the opposite parties.  But the same is not in a full pledged manner which is seen from Ex.A14 to Ex.A16 and  it is brought to knowledge of this Forum that the complainant’s son has got some treatment but the said fact was not clearly discussed about the permanent lost of tooth.  But at the same time, there is some amount of sufferings which is fully due to the negligent act of the opposite parties.  So to that extent, there is some medical negligence has committed by the opposite parties and the same cannot be easily thrown out.  Thus, the point no.1 is answered accordingly.

17.     Point no.2:-

Regarding this point, on perusal of the complaint, it is learnt that though the complainant seeks amount in various heads is high but the complainant has not proved relevant documents to establish the expenses for hospitalization, medicines and expenses for further treatment etc. and thereby, the complainant is not entitled for such huge amount for such heads.  But due to the medical negligence of the opposite parties, the complainant is entitled for reasonable compensation for sufferings, mental agony and pain which is due to the deficiency of service on the part of the opposite party and the actual expenses incurred by the complainant as per the bills produced before this Forum. Thus the point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the 1 to 3 opposite parties are jointly and severally directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for causing mental agony and sufferings due to the deficiency of service in toto and to pay a sum of Rs.4,500/- (Rupees  four thousand five hundred only) towards medical expenses incurred by the complainant with cost Rs.5,000/- (Rupees five thousand only) totally of Rs.19,500/- (Rupees nineteen thousand five hundred only) to the complainant.  Regarding other reliefs, this complaint is dismissed.

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this 14^th  June 2017.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                             PRESIDENT