BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 02^ND DAY OF JUNE 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Total amount claimed of Rs.30,00,000/- with future interest at the rate of 18% per annum till realization.
2. Cost of proceedings of complaint
3. Such other relief which is Hon’ble Commission deems fit and proper in the circumstances of the case.

2. The case set up by the complainant in brief is as under:-
3. It is the case of the complainant that she is having two minor children and she is a house wife and she is looking after her children by staying in house after completion of her education in 2011.
4. The complainant was a patient and she was taking dental treatment from OP2 who is associated with OP1 brand name. The complainant has taken dental treatment and other procedures which was suggested by the OP2 for more than one year.  Due to covid 19 she could not attend the follow up treatment which was pending since long since the OP2 clinic was located under red zone area.  Hence she missed two to three follow up treatment. On 13.06.2020 at evening 6.15 pm she got an appointment and she has visited OP2 clinic.
5. When the OP2 was doing the dental procedure he had used a slicer blade machine to trim the teeth of the complainant and the OP2 in utter negligence slipped the slicer blade and cut the complainant upper lip around 6.15 pm. The cut was so deep and the complainant had severe bleeding and the blood was dropping on her dress. At that time she also requested OP2 for a mirror but the OP2 did not provide it.  When the complainant has repeatedly asked OP2 about the nature of the cut the OP2 has ignored the said injury.  He did not initiate to stitch the complainant upper lip saying that it was not required and in a hurry rushed her back home after collecting his fees of Rs.5,000/- towards treatment.  The complainant after reached the home the bleeding was not stopped and it was very painful.  She and her husband have repeatedly kept asking the OP2 over phone about the bleeding but he has not given any satisfactory opinion.  After that the complainant when she was unable to bare the bleeding and anxiety she was managed to go alone with bleeding lips to nearby hospital for second opinion.  The complainant went to Litter flower hospital which is one to two km., away from her house at Ramamurthy, Bangalore, and the duty doctor checked the injury and he told her that the injury is very deep and it should be stitched immediately by a specialized surgeon and referred her to Koshsys Hospital, T.C.Palya Main Road, Bangalore.  The complainant messaged the OP2 and informed him the situation and after that the OP2 finally agreed to get it stitched appropriately as a remedy.
6. After that the complainant has reached specialist hospital at Kalyan Nagar, Bangalore around 10.20 pm on 13.06.2020. The emergency ward causality doctor after examination has informed her that it is already too late and the injury is a deep lip laceration and needs stitching.  The doctor advised for plastic surgery but the plastic surgeon was not available at that time and as a immediate measure the complainant had to go for stitches as only option for emergency, because there was no option at that hour.  The complainant was suffered all these unwanted incidents and pain and agony due to the negligence on the part of the OP2.  The OP2 was negligent and refused for any first aid or stitches, immediately after the injury sustained by the complainant.
7. Again the complainant has approached the OP2 as he has informed the complainant to his dental clinic so that he can place two stitches. But the doctor who checked the complainant at specialist hospital has informed the complainant that the injury was a deep one and definitely it should have five stitches minimum.  In view of this the complainant denied the Ops proposal to visit his clinic and got the torn lip stitched. At last the specialist hospital Doctor stitched the complainant torn lip at 11 pm as it was an emergency.
8. It is further case of the complainant that on 15.07.2020 after removed the plaster for dressing the complainant was extremely shocked to see the massive damage caused to her face due to OP2 negligence behavior.  Her lip was swollen to double the size and it was torn exactly in between just below the nose and is having five stitches and ugly scare.  The complainant has gone through so much pain for no mistake of her. The OP1 and 2 are severally responsible as they failed to give her correct treatment at right time.  The OP2 negligence has costed the complainant a major scar and pain for life. The face of the complainant damaged only because of OP2 wrong conduct and irresponsibility. The complainant is unable to overcome the emotional torture. She is witnessing and her friends and family especially her children look at her with awkwardness and fear, which has affected her self-confidenceimmensely.
9. The complainant has got issued legal notice to the OP on 26.06.2020. The said notice was served on OP they failed to give reply.  The complainant has to undergo expensive root canal treatment in view of the damage of front teeth due to the negligence on the part of the OP2. Inspite of repeated request the OP have neither paid any compensation nor complied with the request of the complainant.  Hence the complainant has filed this complaint.
    

10. In response to the notice, OP1 & 2 appears and files version. Admitted that the complainant was a patient of OP2 and the OP2 has treated the complainant 13.06.2020 by using standard IPR disk.  The said procedure was required in respect of ten of her teeth.  The OP2 had completed the procedure on her 9^th teeth.  A small laceration was occurred during the procedure on her 10^th teeth.  After the treatment the complainant has paid Rs.5,000/- by way of google pay.  The complainant is still due Rs.85,000/-  to the OP2.
11. It is further case of the OP2 that in the course of treatment there was a small laceration on the complainant upper lip caused by the instrument which is neither due to negligence nor intentionally. That unintentional injury to the soft tissue in the course dental treatment procedure is a possibility causing bleeding which arrests itself and does not cause any serious problem. This OP2 arrested the bleeding immediately by application of adrenaline, pressure and ice and also gave pressure dressing which is adequate as the laceration was minimal on the vermillion lip. The minor laceration of this type heals uneventfully without leaving scar.  The bleeding has stopped completely and there was no need for suture.  After the said injury was taken care of and the complainant patient was fully comfortable and she was given two new sets of aligners to take and was given instruction for the same.  The bleeding has stopped completely and was not expected to recur and the complainant was composed. She was given clear instructions on the wound care and a prescription of pain medication. She was advised to avoid movement of the healing lip and was advised not to take any hot food as it may induce bleeding.  She was instructed to come next week for evaluation of wound healing. The complainant after being satisfied paid the amount of Rs.5,000/- and she was return to her house on her two wheeler.  She left the clinic at 7 pm on 13.06.2020. Again the complainant has called OP2 on his cell phone number 9740909934 at about 8.15 pm and the said calls were answered.
12. It is further case of the OP2 that he asked the complainant to send the photograph of the bleeding and upon seeing the minimum bleeding he has advised the complainant to use an icepack to arrest the bleeding and further advised to contact him in case of any further problem.  Again at 9.18 pm she sent another photograph where the bleeding is clearly seen which have stopped.  Inspite of that she insisted that it was bleeding badly.  When the complainant made repeated calls and gave an exaggerated version of her wound and about bleeding swelling and also informed the OP2 that she was in specialist hospital.  Even though it was a long after clinic timing the OP2 out of concern for the patient went to specialist hospital. After examining the complainant the OP2 requested the complainant to go over to his clinicand he would attend the wound.  The complainant and her husband refused the said option. The complainant preferred to be attended by the duty doctor by the specialist hospital. The complainant on her own volition preferred to be treated in specialist hospital.  This OP cannot be blamed for the voluntary action of the complainant in removing the plaster herself on 15.06.2020.
13. The OP2 further admitted about the legal notice issued by the complainant.  He has further stated that he has got issued a reply notice through his advocate on 13.07.2020.
14. It is further case of the OP2 that he has conducted the procedure/treatment on 13.06.2020 with due diligence and professional skill and there is no negligence on its part.  He has denied all the other allegations made by the complainant in para 1 to 14.  It is further case of the OP2 that there is no cause of action and the alleged cause auction is imaginary. Hence the OP2 prayed for rejection of the complaint.

15. The complainant has filed his affidavit evidence and relies on 16 documents.  Affidavit evidence of OP has been filed and OP relies on 09 documents.
16. Heard the arguments of advocate for both the parties.   Perused the written arguments filed by both the parties.
17. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OPs?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

18. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

19. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, evidence, written arguments and documents filed by both the parties.
20. It is undisputed fact that the complainant went to OP2 clinic during October 2019 regarding her orthodontic problem requiring correction/treatment. The OP2 had explained her dental problem and he has advised her to go for orthodontic treatment with clear aligners and the cost of the treatment was fixed for Rs.1,20,000/-. The complainant agreed to pay the amount in installments.  Even though she was asked to pay Rs.60,000/- initially she took two installments to pay the amount, after that she was paying the amount in installments whenever she was taking treatment with the OP2.  The complainant and OP2 known to each other from October 2019.
21. It is further undisputed fact that the complainant went to treatment to OP2 clinic on 13.06.2020. She was unable to go to follow up treatment since the clinic of the OP2 was situated in red zone area. After getting the treatment on 13.06.2020 the complainant has paid a sum of Rs.5,000/- and she was due some more amount to the OP2. During the dental procedure the OP2 used a slicer blade machine to trim the complainant’s teeth.
22. It is the specific grievance of the complainant that the OP2 in utter negligence slip the slicer blade and cut the complainant upper lip around 6.50 pm on 13.06.2020.  The cut was deep and the complainant had severe bleeding as she could see blood dripping on her dress. She repeatedly asked the OP2 for a mirror which was not provided.  Even the cut was deep for which the OP2 ignored the intensity of the pain and scar and after the injury the OP2 did not initiate to stitch the wound saying that it was not required and in hurry rushed her back home.  The OP2 did not complete the procedure as it was bleeding and sent back the complainant to her home with a hand plast and tourn lips and with extra two hand plast stating to do dressing by home for two to three days since it is just a small cut.  Even though the OP2 collected Rs.5,000/- treatment fees after the complainant was injured and the OP2 had no guilt for his negligence and injury and without any shame or sympathy.
23. It is further grievance of the complainant that since the bleeding was not stopped she and her husband kept asking the OP2 over phone for every hour from 7.30 pm if any major concern since the bleeding did not stopped and the complainant is having a small baby and is a feeding mother and the kids were also scared seeing the mothers blood on the face and lips swollen tremendously, but OP2 as a dentist repeatedly said it is just a small cut and stitches not required.
24. It is further grievance of the complainant that when she was unable to bare the bleeding and anxiety she managed to go alone with the bleeding lips to nearby hospital for second opinion in her bike by living her two small kids at home with her husband.  Since the hospitals are not allowing the kids due to covid 19.  The complainant went to little flower hospital, Rammurthynagar, Bangalore and the duty doctor checked the injury and he has informed the complainant that injury is very deep and should be stitch immediately by a specialized surgeon and referred her to Koshsys Hospital, T.C.Palya, Bangalore.  The complainant again informed the OP2 and after that OP2 finally agreed to get the injury stitched appropriately as a remedy.
25. It is further grievance of the complainant that due to OP1 and 2’s irresponsible attitude and negligence and put the complainant in a drastic situation and bleeding for more than two hours and the complainant also was alone on road searching for hospitals and has no idea what to do since it was past 10 pm at night by the time stitches were suggested. She was decided to go to specialist hospital as the scar was on her lips could leave a life time damage if not done at a proper hospital and she and her husband decided to rush to known specialist hospital.  The complainant was emotionally very strained as she had to leave her both kids with neighbors in such extreme covid 19 situation and to take help from her husband to rush to the hospital as it was an emergency and she reached specialist hospital Kalyannagar, Bangalore around 10.12 pm on 13.06.2020. The complainant met the emergency causality doctor namely Dr.Ranjani and she has informed the complainant that it is already too late and the injury is deep lip laceration and needs stitching.  The complainant could not avail the service of plastic surgeon at that time and she had to go for stitches as only option for emergency because there was no other option at that time and it is all due to the OP2’s negligence as he kept refusing for any first aid or stitches over call.  The complainant did not fight or shout at OP2 since she was so disappointed and broken.
26. It is further case of the complainant that at that time the OP2 came to the specialist hospital and he has asked the complainant to come to his dental clinic so that he can place two stitches.  The complainant has cross checked to other doctors at specialist hospital and they have suggested that the injury need minimum five stitches on lips.  The complainant in order to avoid further damage and based on the response of new doctor she denied the OP2’s proposal to visit his clinic and got torn lip stitched at specialist hospital itself around 11 pm., as it was in emergency.
27. It is further grievance of the complainant that on 15.06.2020 she removed the plaster for dressing and she was extremely shocked to see the massive damage caused to her face due to OP2’s negligence behavior. Her upper lip is swollen to double the size and is torn exactly in between just below the nose and is having five stitches and ugly scar and the complainant has gone through so much pain for no mistake of her whatsoever.  The OP1 and 2 are jointly and severally responsible as they failed to give her correct treatment at right time. The Op2 negligence has costed the complainant a major scar and pain for life.  The complainant is unable to see the mirror and face the world due to OP2’s negligence and her beautiful face is damaged.  The complainant is unable to overcome the emotional torture she is witnessing and her friends and family and especially her children look at her with awkwardness and fear which was affected herself confidence immensely.
28. It is further grievance of the complainant that she has also got issued legal notice and inspite of service of that the OP has not come forward with any reply.  The complainant recently came to know during the dental procedure the OP2 had damaged her front 2-3 teeth on 13.06.2020 which will now need expensive root canal treatment and the front teeth damage could further lower her self-confidence and facial feature and the scar on lips will need some plastic surgery and treatment for mark and reconstruction all of which are very expensive procedures and the OP2 is liable to compensate this complainant for the same.
29. In support of her contention the complainant has relied on 15 documents. The Ex.P1 is the dental treatment file, P2 is the identity card, P3 is the copy of the google payment made to the OP2 on 13.06.2020 and other dates in December.  P4 is the photographs of the complainant before and after the treatment from OP2 clinic, P6 is the copies of whatsapp messages between the complainant and OP2, P7 is the call recording of the OP2, P8 is the copy of the prescription of little flower hospital, P9 is the copy of the stitches required conversation around 10 pm between complainant and OP2, P10 is the copy of the medical prescription and details at specialist hospital, P11 is the copy of the photo of injury and scar on 15.06.2020, P12 is the copy of legal notice and 13 is the postal acknowledgment, P14 is the online record of postal tracking and P15 is the copy of the legal notice served to OP through WhatsApp and email. Complainant has also placed a CD before this commission.
30. On the other hand, the contentions taken by the OP2 is that on 13.06.2020 he has treated the complainant by using standard IPR disc, the said procedure was required in respect to 10 of her teeth. He had completed the procedure on her 9^th teeth. A small laceration occurred during the procedure on her 10^th teeth.  After the treatment the complainant has paid Rs.5,000/- to this OP2 complainant is still due Rs.85,000/- to the OP. During the course of treatment there was a small laceration on the complainant’s upper lip caused by the instrument which is neither due to negligence nor intentional. It is an unintentional injury to the soft tissue in the course of dental treatment procedure is a possibility causing bleeding which arrests itself and does not cause any serious problem. This OP2 arrested the bleeding immediately by application of adrenaline, pressure and ice.  Following this the OP2 approximated the wound edges and gave a pressure dressing which is adequate as the laceration was minimal on the vermillion lip.
31. The minor laceration of this type involved in this case heals uneventfully without leaving a scar. The bleeding had stopped completely and there was no need for sutures. After the said injury was taken care of and the complainant patient was fully comfortable, she was given two new sets of aligners to take and was given instructions for the same.  The bleeding has stopped completely and was not expected to recur and the complainant was composed. The complainant was given full instructions on the wound care and the prescription of pain medication.  She was advised to avoid movement of the healing lip and was advised not to take any hot food as it may induce bleeding.  The complainant was instructed to come next week for evaluation of wound healing. The complainant after satisfying with the treatment paid theamount of Rs.5,000/- and she left the clinic at 7 pm on 13.06.2020. After that the complainant has called him to his cell phone at about 8.15 pm and 8.16 pm and the calls were answered, she made repeated calls and gave an exaggerated version of her wound and about bleeding and swelling and further informed the OP2 that she was in specialist hospital. Even it was long after clinic timing, this OP2 out of concern for the patient went to specialist hospital. He has requested the complainant to come to his clinic and he would attend the wound but the complainant and her husband refused to come to his clinic. The complainant on her own volition preferred to be treated at specialist hospital. The OP2 cannot be blamed for the voluntary action of the complainant in herself removing the plaster on 15.06.2020. After that she got issued legal notice making allegations of negligence exaggerated version of bleeding and calling this OP2 to pay compensation.  This OP2 issued reply notice through his counsel on 13.07.2020.
32. The OP2 denied that he is associated with the brand name of OP1. This complainant is the patient of this OP2 and this OP2 has named his dental clinic as M/s Sure Smile dental care and OP1 is not a legal entity and it is not at all a necessary or proper party and it is only the name of the dental clinic of this OP2. The OP2 has denied the allegations made by the complainant that he is negligent in treating the complainant and caused the injury negligently during the dental procedure. He has further denied that if correct treatment was done immediately by this OP2 at his clinic when the alleged incident happen the complainant could have saved her lip from the alleged misery are denied. There is no negligence on the part of this OP2.
33. In support of his contention the OP2 has relied on 8 documents as Ex.R1 to R8. R1 is the reply notice, R2 is the printout of whatsapp conversation, R3 is the intra oral photographs of the complainant prior to the start of treatment, R4 collated patient information pertaining to complainant, R5 is the facial photographs sent by the complainant on whatsapp, R6 is the four payment receipts for having amount paid by the complainant through google pay. R7 is the articles published in the international journals in the field of orthodontics on the common use of diamond disks for inter proximal reduction, R8 is the compact disc.
34. It is pertinent to note here that the OP counsel has cross examined the complainant. During the cross examination it was suggested to the complainant that the incident was happened due to her movement at the time of treatment the incident happened and it was denied by the complainant.  The complainant further denied that due her fall after providing bandage or due to dashing of her children to the injury portion the bleeding started in the wound.  She further denied that she had the injury only on the upper lip and it is only a small cut injury and she was not suffered any financial loss or pain.  She has further stated that she has paid an amount of Rs.1,00,000/- to the OP for the treatment and she has denied that she has paid Rs.65,000/- to the OP. she has further denied that the OP2 has made a payment of Rs.80,000/- for aligner and suffered loss of Rs.15,000/- in getting the aligner. She further denied that there is no negligence on the part of the OP if at all she suffered any injury it was due to her fault.
35. The complainant counsel also seriously examined the OP2. The OP2 has denied in the cross examination that he has not taken precaution to stop the blood flow. He has further denied that the complainant was unconscious for 15 to 20 minutes while providing treatment. He has admitted that the complainant was suffered injury in the upper lip during the treatment.  He used application ice, pressure and medication to stop the bleeding. He has also applied bandage from one end to another end to the upper lip of the complainant. He has further denied that he has applied bandage to the upper lip of the complainant, he has also clearly admitted that the complainant called him from her home and informed him about the bleeding. He has further stated that the stitching was done in another hospital after he reached the hospital. He has further denied that due to his negligence the complainant has suffered the injury and she was unable to look after her 9 months baby. He has further denied that the complainant was forced to spend lacks of rupees in another hospital.
36. It is clear from the documents and evidence of both the parties that the complainant has sustained the injury on her upper lip during the dental procedure.  Even though the injury was caused during the procedure the OP2 has not taken the contention that the injury was caused when the complainant was not co-operated properly during the procedure and she has shaken her mouth the injury was caused.  It is also clear from the very evidence of the OP2 itself that he has not taken any steps to stitch the injury immediately after the incident and he has simply close the injury by putting the tissue adhesive tape on the wound. He has further advised the complainant not to move her lips and not to eat hot food. As per the say of the complainant and the call received by the OP2 from the complainant, the complainant has called OP2 at 8.15 pm complaining of bleeding. She has also sent photo to whatsapp inspite of that the OP2 has not advised her to close the wound by stitching by consulting other doctor in a nearby hospital.  When the complainant has gone to the specialist hospital at Kalyannagar and as per the advise of the surgeon and the casualty doctors she was advised to go for suture in the upper lip. The OP2 without taking any precautionary measure immediately after the incident has gone to the specialist hospital when the complainant has informed him that the bleeding was not controlled. At that time he has called the complainant to come to his clinic for suturing after lapse of more than four hours. If the OP2 is diligent and he would have anticipated the future problems he would have stitched the wound immediately after the incident.  If the OP2 stitched the wound the complainant would not have face all these problems.
37. Admittedly the incident was took place during covid 19. It is very much known to all the public that it was very difficult for common man to go to any hospital for any normal or simple treatment other than covid 19 treatment, since all the hospitals are filled up with covid 19 patients.  Due to lock down it was very difficult to get the vehicles for hire to reach the hospital. Admittedly the incident happened in the evening 6.30 pm on 13.06.2020. The complainant was alone and the OP2 sent back the complainant by simply putting the adhesive tape on the broken lip. The conduct of the OP2 clearly discloses that his approach is very casual.  Due to the casual approach of the OP2 towards the patient the complainant was made to suffer anxiety and pain and agony.  The complainant was exposed to face several problems in view of the negligent and casual attitude of the OP2. The complainant would not have got the bleeding problem if the wound is stitched.  The medical records of the other hospitals produced by the complainant as per Ex.P10 the prescription issued by the specialist hospital clearly discloses that the wound was dressed and stitching was done.  When the other doctors who have seen the complainant has clearly given their opinion that the wound is deep and it needs stitching.  Then the OP2 would have taken the decision to stitch the wound. The casual approach of OP2 made the complainant to suffer all these problems and she was made to run from one hospital to other hospital during covid 19 lock down period by living her small children with her neighbors in the late night. Under these circumstances the complainant has clearly established the casual approach and negligent attitude of the OP2 in treating the wound which was caused during the dental procedure.
38. Even though the complainant has taken the contention that in view of the wound suffered by her during the dental procedure she has also suffered damages to her front teeth and she has to take root canal treatment, has not produced any expert opinion or examine any other doctor to prove her contention. The complainant has only established the casual approach of the OP2 in treating her the upper lip wound caused during the dental procedure by the OP2.
39. The complainant would have spent substantial amount to go to the hospitals for stitching her upper lip and for other treatment and for medicine. She has not produced any medical bills or having taken the medicines after she suffered the injury.  Under these circumstances, taking into consideration the causal approach of the OP2 and the mental agony and pain suffered by the complainant we feel it is necessary to award a compensation of Rs.50,000/-  and Rs.10,000/- towards litigation expenses. Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
40. Point No.3:-In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP2 is directed to pay compensation of Rs.50,000/- with litigation expenses of R.10,000/- to the complainant.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 8% p.a. after expiry of 60 days on Rs.50,000/- till realization.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 02^ndday of JUNE, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;