Date of Filing : 07.11.2018
Date of Disposal: 29.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A.,B.L., .....MEMEBR-I
THIRU.P.MURUGAN,B.Com. ....MEMBER-II
CC. No.52/2018
THIS THURSDAY, THE 29th DAY OF SEPTEMBER 2022
Zeenath Gani,
W/o.Mr.Jahir Hussain,
No.4, Sir Dhiwan Bahadur Shanmugam Street,
A.K.Swamy Nagar, Chennai – 600 010. ……Complainant.
//Vs//
1.M/s.Vidhya’s Eversmile Dental Clinic,
Rep.by its Proprieterix & Dentist, Dr.Vidhya Sabari,
Old No.33, New No.48, 5th Block,
Mogappair, Chennai -600 037.
2.Dr.Vidhya Sabari, Dentist,
Old No.33, New No.48, 5th Block,
Mogappair, Chennai -600 037. ..........Opposite parties.
Counsel for the complainant : Mr.D.Jawahar, Advocate.
Counsel for the opposite party : M/s.L.Thanigaivel, Advocate.
This complaint is coming before us on various dates and finally on 19.09.2022 in the presence of Mr.D.Jawahar, Advocate counsel for the complainant and M/s.L.Thanigaivel, Advocate counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging medical negligence resulting in deficiency in service in treating the complainant’s teeth fixing the upper jaw set against the opposite parties along with a prayer to refund the amount of Rs.20,000/- received from the complainant and to pay a sum of Rs.3,00,000/- towards compensation for the mental agony caused to the complainant and to pay the cost of the proceedings.
Summary of facts culminating into complaint:-
It is the case of the complainant that she had approached the opposite parties on seeing the paper advertisement and had agreed to undergo Root Canal Treatment for two teeth though she had problem with five teeth. While Root Canal Treatment was done, the Doctor broke two teeth and when told that as questioned the entire set is going to be replaced nothing harm would be caused. When questioned about the replacement the 2nd opposite party replied that as the replacement would be of permanent nature it would give better appearance and trouble free teeth for life long. Believing the words the complainant agreed for replacement and as demanded by the opposite party had paid Rs.20,000/- in parts and by several settings got the upper jaw set fixed. However the complainant felt uneasiness while the treatment was done and after fixation she could not chew and bite and hence she refused for the replacement of lower jaw set and demanded receipts for the payment which was denied by the opposite party. Thus aggrieved by the treatment given by the opposite party the present complaint was filed for the following reliefs;
a) to refund the amount of Rs.20,000/- received from the complainant;
b) to pay a sum of Rs.3,00,000/- towards compensation for the mental agony caused to the complainant;
c) to pay the cost of the proceedings.
Defence of the opposite parties:
The opposite parties jointly filed version disputing the complaint allegations contending inter alia that when the complainant approached the opposite parties for dental treatment it was noticed that many of the complainant’s teeth in the upper as well as lower jaws were broken and the metal bridges already fixed were almost in a decayed condition and thus advised for fixing of ceramic artificial teeth both in the upper and lower jaws. As per plan the upper jaw set was fixed as the complainant consented to undergo treatment with the opposite parties. The opposite parties denied that two teeth were broken at the time of treatment. The opposite parties with lot of care fixed the upper jaw set. The process of fixing the jaw set requires trimming to be done on the existing teeth and the same was done on several sitting and the complainant was very happy after entire procedure. The complainant paid Rs.20,000/- in instalments. It was submitted that only after fixing the lower jaw set, perfect alignment would come for which the complainant agreed but the complainant was not at all cooperative during the sittings and was not following the instructions given to her. For appointments given to her was not attended in a regular manner. On one day the complainant came with her daughter and questioned the 2nd opposite party and requested huge money for which the 2nd opposite party replied that she had done best treatment at an affordable cost for which the complainant and her daughter shouted in the clinic that the 2nd opposite party is a quake and also scolded in filthy words. The opposite parties denied that the complainant had acute pain while chewing and grinding. Thus submitting that even before fixing permanent teeth in the upper jaw it has been specifically told to the complainant that after fixing permanent teeth for the upper jaw permanent teeth in lower jaw has to be fixed and as such the complainant without getting the permanent teeth fixed for the lower jaw also has no right to make any complaint against the opposite parties and sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A9 were marked. On the side of opposite parties proof affidavit was filed and documents Ex.B1 and Ex.B2 were marked.
Point for consideration:-
Whether the opposite parties had committed deficiency in service in the treatment given to the complainant’s teeth and if so to what relief the complainant is entitled?
Point:
On the side of complainant the following documents were filed in support of the complaint allegations;
Advertisement in the neighbourhood paper dated 12.11.2017 was marked as Ex.A1;
Prescription given by the opposite party dated 26.03.2018 was marked as Ex.A2;
Legal notice of complainant dated 03.07.2018 was marked as Ex.A3;
Reply notice of the opposite party dated 09.07.2018 was marked as Ex.A4;
Report given by Dr.A.Jasmine dated 14.09.2018 was marked as Ex.A5;
Xerox copy of photos were marked as Ex.A6 to Ex.A9;
On the side of opposite parties the following documents were filed in support of their defence;
Reply notice sent to the complainant by the opposite parties dated 09.07.2018 was marked as Ex.B1;
Periodical treatment card given to the complainant from 05.03.2018 to 11.02.2018 was marked as Ex.B2;
We perused the written arguments filed by the both parties and heard the oral arguments adduced by the opposite parties. As it is represented by the complainant that written arguments may be treated as oral argument, this commission considered the written arguments filed by the complainant as oral arguments for deciding the issue on merits.
The crux of the written arguments filed by the complainant is that on seeing the advertisement in news paper dated 12.11.2017 she has approached the opposite party and she underwent Root Canal Treatment and fixing of upper jaw set from the opposite party. It was submitted that while undergoing treatment the complainant’s teeth was broken negligently by the opposite party and she experienced uneasiness and difficulty during the treatment. Even when the upper jaw set was fixed, the complainant was unable to chew and bite and hence decided to approach another doctor for fixation of lower jaw. Thus sought for the complaint to be allowed as prayed for.
The crux of the argument adduced by the opposite parties is that the complainant did not make any complaint during the procedure and no expert opinion was obtained for the procedure done by the 2nd opposite party and only after fixation of both the jaws the alignment would set and only after that it could be decided whether it is properly fixed or not. Thus sought for the dismissal of the complaint.
After appreciation of the evidence and pleadings adduced by both the parties this Commission is of the view that there is no negligence or deficiency in service on the part of the opposite parties as the same was not proved successfully by the complainant. It is evident that the procedure for Root Canal Treatment and the fixation of upper jaw set was done only after obtaining the consent of the complainant though it is submitted in the reply to the questionnaire that the complainant was induced to join the treatment as the plan of treatment for Rs.1500/- ends on the same day, there is no required pleadings for the same. In such scenario this Commission has to hold that proper consent was obtained before the treatment was given to the complainant. Also there is no dispute that as per the agreed schedule of treatment the upper jaw set was fixed to the complainant and it is also to be noted that several settings were undergone for the fixation of upper jaw and the complainant had not made any complains during those settings. If at all the complainant had felt uncomfortable or uneasiness she could avoided further settings. The defence put forth by the opposite parties that only when both the upper and lower jaw sets has been fixed one can come to conclusion about the alignment as to whether it is properly done or not could not be brushed aside. In the present case only the upper jaw set was fixed to the complainant and hence the allegation of the complainant that the alignment was not properly done could not be accepted. The only supporting document submitted by the complainant was that she had approached another doctor (Ex.A5) wherein a report was given by one Dr.A.Jasmine stating that the complainant has pain in upper jaw and not able to chew the food and RCT done in 7 teeth on 14th and 18th of September for an amount of Rs.17,500/-. On bare perusal of the same we could find that the wordings “pain in upper jaw and not able to chew the food” has been incorporated separately. It is also not made clear from the document that whether the RCT done was for the upper jaw teeth or the lower jaw teeth. When the entire upper jaw teeth have been replaced with artificial teeth there is no necessity for RCT to be done for the same. Hence the said document is not acceptable to prove the deficiency in service of the opposite parties in the facts and circumstances of the case. Consequently we are of the view that the complainant had miserably failed to prove that the opposite parties has failed to exercise the duty of care and had not followed the standard practice resulting in negligence and deficiency in service. Thus we answer this point accordingly holding that no negligence and deficiency in service was proved by the complainant and resultantly the complainant is not entitled to any reliefs against the opposite parties.
In the result, the complaint is dismissed. No order as to cost
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29th day of September 2022.
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MEMBER-II MEMBER -I PRESIDENT
List of document filed by the complainant:-
Ex.A1 12.11.2017 Advertisement in the neighborhood paper. Xerox
Ex.A2 26.03.2018 Prescription given by the opposite party. Xerox
Ex.A3 03.07.2018 Legal notice of complainant. Xerox
Ex.A4 09.07.2018 Reply notice of the opposite party. Xerox
Ex.A5 14.09.2018 Report given by Dr.A.Jasmine. Xerox
Ex.A6 ............. Copy of photo (series). Xerox
Ex.A7 .............. Copy of photo. Xerox
Ex.A8 ................ Copy of photo. Xerox
Ex.A9 .............. Copy of photo. Xerox
Document filed by the opposite parties:
Ex.B1 09.07.2018 Reply notice sent to the complainant by the opposite parties. Xerox
Ex.B2 .............. Periodical treatment card given to the complainant. Xerox
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MEMBER-II MEMBER-I PRESIDENT
