JUDGMENT Per Jagroop Singh Mahal, Member This appeal by opposite party is directed against the order dated 6.7.2010 passed by learned District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.1334/2009 filed by respondent/ complainant was allowed with costs of Rs.5000/- and OP was directed to pay Rs.2200/- spent by the complainant on her treatment because of wrong extraction of the tooth. OP was also directed to pay a sum of Rs.50,000/- to the complainant as compensation for mental agony and harassment. The aforesaid amounts were directed to be paid within 45 days from the date of receipt of certified copy of the order, failing which OP was made liable to pay interest @ 18% p.a. from the date of complaint i.e. 23.9.2009 till payment. 2. In nutshell, the facts as set out in the complaint are that on 14.03.2009 the complainant felt severe pain in her lower left jaw and she visited the Govt. Dispensary, Sector 3, Chandigarh (MLA Hostel). The Dentist present there confirmed the location of infected tooth and diagnosed that her 6th tooth was tender and prescribed medicines for 3 days. On 16.06.2009, complainant again felt severe pain in her lower jaw so she visited the clinic of Dr.Ashima Kohli(OP) who checked her and diagnosed that 7th tooth of her left lower jaw was carious resulting in pain in lower jaw. Dr.Kohli prescribed medicines for 3 days and advised her to visit the clinic on 18.06.2009. As the pain was still persisting, complainant again visited the clinic of OP on 18.06.2009 and intimated that her 6th tooth was found infected by the doctor at Government Dispensary, Sector 3, Chandigarh instead of 7th tooth. OP assured that she would take note of it at the time of extraction of a tooth. On the same day, Dr.Kohli extracted a tooth from her mouth and prescribed medicines for 5 days. Before extraction of tooth, x-ray of the ailing tooth was not taken . Complainant was further advised to visit the clinic in case swelling continued after two days. The complainant did not get any relief from pain and there was swelling in her mouth,so, she visited the clinic of OP again on 20.06.2008 along with her husband. When OP checked her mouth, husband of the complainant found that a wrong tooth had been extracted. The tooth which was causing pain was still intact. On enquiring from OP for extracting wrong tooth, Dr.Kohli became furious and started abusing her husband and the complainant. Dr.Kohli forced them to move out of the clinic. The complainant and her husband then called the police and made a complaint on the basis of which DDR No.34 dated 20.06.2004 (Annexure C-3) was recorded. On 27.07.2009, the complainant was asked to visit the police station on 04.08.2009 as she was to be taken for medical checkup. On 04.08.2009, the complainant was taken to General Hospital, Sector 16, Chandigarh. Dr.Kohli also came there with a tooth in her hand. 3. OP contested the complaint and filed reply inter-alia stating therein that on 16.06.2009 when the complainant visited her clinic, she specifically told her that she was feeling pain in 7th tooth of her left lower jaw. She checked the said tooth and found that it was carious exposed resulting in pain. She prescribed medicine for 3 days and specifically told her that she can either get root canal treatment or get the tooth extracted. As the complainant was interested in extraction of the tooth,so she was asked to revisit the clinic on 18.06.2009. On 18.06.2009, she again enquired from the complainant if she wanted a root canal treatment or extraction of tooth. The complainant opted for extraction of tooth, so her tooth was extracted on that day and medicine was prescribed for 5 days. On 20.06.2009 the complainant along with her husband again came to the clinic and started shouting alleging that OP had extracted a wrong tooth. She tried to pacify them and made them understand that the carious tooth had been extracted but they did not listen to her and created a scene in front of her clinic. They also called the police and got a case registered. It was pleaded that on 04.08.2009, Sh.Hans Raj, Police Inspector visited her clinic and asked her to handover the tooth which was extracted from the mouth of the complainant as the same was required for medical examination of the complainant. However, complainant herself went to the General Hospital, Sector 16, Chandigarh along with her husband and handed over the said tooth to the doctor. After examining the same, the doctor found that the said tooth was carious and had been rightly extracted. Thus, pleading that there was no deficiency or negligence on the part of OP, a prayer was made for dismissal for complaint. 4. Both the parties were given opportunity to lead evidence. 5. After going through the evidence and hearing learned counsel for the parties, learned District Forum allowed the complaint as indicated in the opening part of this judgment, which has been challenged through this appeal. 5. We have heard learned Counsel for the parties and gone through the file carefully. 6. Learned counsel for appellant/OP has argued that the prescription slip annexure C-1 is of doubtful nature and was not in existence before the present dispute arose and therefore no reliance can be placed on it. This argument cannot be accepted as correct. Annexure C-1 shows that on 14.3.2009 complainant was examined by the dental doctor and it was found that her sixth root stump was tender. Certain medicines were prescribed to her to be taken for three days and subsequently she on 16.6.2009 approached the OP and on 18.6.2009 her 7th tooth was extracted instead of 6th tooth. The contention that Annexure C-1 was not prepared on 14.3.2009 but was prepared on a subsequent date could be easily proved by OP by producing out patient register maintained by the said dispensary where it is entered at serial No.2863 on that date but no such evidence was produced by OP and therefore her contention in this respect cannot be accepted as correct. Otherwise also, according to the complainant it was said root stump which was giving pain to her and the same was to be removed but instead the OP removed a healthy tooth. Further, even the report dated 29.12.2009 submitted by the PGI shows that the said root stump of left lower, Ist molar was asymptomatic but indicated for extraction but it was still present in complainant’s mouth. If the 7th tooth was being extracted there appears to be no reason why this first molar was also not extracted by OP at the same time when other tooth was extracted. It is not a case that the complainant had subsequently formulated this false story but it is an admitted case that the extraction was made on 18.6.2009 as is clear from annexure C-2 and medicine for five days was prescribed. However, two days later when the pain and swelling in her mouth continued even after extraction of the paining tooth and taking of medicine, she went to the clinic of OP on 20.6.2009 and told that she had removed a healthy tooth instead of one which was giving pain to her. A number of persons collected there and the police was also called. Annexure C-3 is the report made by OP to the police in which also she admitted that the complainant had told her that she had not removed the tooth which she was asked to remove and had removed a healthy tooth. The complainant had also lodged a report with the police, copy of which is annexure P-4. If the correct tooth had been extracted, not only that the pain which the said tooth was giving had subsided but the complainant would not have leveled any such false allegations against her. Annexure C-1 is therefore corroborated from the conduct of the complainant also and neither it can be said to have been prepared subsequently, nor OP can be said to have removed the ailing tooth. 7. Before doing extraction, OP did not take the x-ray from which also the ailing tooth could be ascertained. 8. The learned counsel for appellant/OP has argued that the said tooth was produced before the General Hospital,Sector-16, Chandigarh on 4.8.2009 and was examined and was found to have been correctly removed. In this respect learned counsel referred to the report Annexure C-7. This report runs counter to the evidence produced by OP. As per Annexure C-7 and the report of doctor the tooth was produced before the duty doctor of General Hospital,Sector-16, Chandigarh by the police alongwith an application. It was examined and was found to be carious exposed and required extraction. As earlier stated, the OP in preliminary objection 2.6. and 3.7 has mentioned that the said tooth was never given by her to the police. It is, therefore, clear that the doctor gave the report on Annexure C-7 regarding some other tooth produced by the police and not the one which was extracted by the OP. In any case there is no evidence/report given by the duty doctor if the tooth produced by the complainant had ever been examined by them. 9. The contention of OP is that after extracting the tooth same was put in the teeth box as sometimes B.D.S. students used to come to her clinic for their research work. This tooth was produced before the General Hospital,Sector-16, Chandigarh on 4.8.2009. It is not the case of OP if there was only one tooth put by her in the teeth box or during that period of about 1½ months she did not extract any other tooth. When the tooth was taken out on 4.8.2009 out of so many other teeth, it could not have been established that it was the same tooth which was extracted from the mouth of the complainant. Otherwise also, the OP was free to take any tooth from the said box or collect it from outside and show to the doctor for examination. The learned counsel for complainant argued that the said tooth which was said to be carious and was shown to the doctor in the General Hospital, Sector-16, Chandigarh did not belong to her because her contention is that she had problem only in one tooth i.e. 6th tooth which is first molar where root stump was giving pain to her and no other tooth had caries . The OP did not even take x-ray examination to show if the tooth extracted had caries. Subsequently if any tooth is shown in place of the original the case of the complainant could not be defeated. It is admitted that on 20.6.2009 the complainant raised the grievance before OP that she had not extracted the decaying tooth and rather had extracted a healthy tooth. There is no dispute about it that the police reached the spot. Annexure P-5 is the report lodged by OP with the police. The extracted tooth was not shown by OP even to the police, nor was handed over to them nor was it got sealed. If the contention of complainant had been correct the OP would have shown the tooth to the police but it was not done for the reasons best known to her. What she mentioned to the police in Annexure P-5 is that the complainant was leveling false allegations against her and that she had retained the extracted tooth with her. This fact also suggests that the contention of complainant was correct. 10. The learned counsel for OP/appellant had laid much stress on the report dated 29.12.2009 given by the expert committee of dental department of PGI, Chandigarh in which it was reported that dental treatment received by the complainant was of requisite standard and no deficiency in service could be made. This opinion was obtained by the learned District Forum as per order dated 30.9.2009 in view of the case Martin F.D.Souza Vs Mohd. Ishfaq before admitting the complaint. On receipt of the expert opinion complainant filed objections U/s 13(1)(g) of the Act and after hearing learned counsel for complainant, admitted the complaint. It is argued by the learned counsel for complainant/respondent that the entire report is based on the treatment slip Annexure C-2 prepared by the OP/appellant but the basic question raised by her has not been attended to in this report as to whether complainant obtained the services of OP for first molar or the second molar. This report is silent on the point as to whether the tooth shown to the doctor of Govt. Multi-specialty Hospital,Sector-16, Chandigarh was the same which was extracted from the mouth of the complainant or not. We have also gone through the report in which it is recorded as to how the complainant was first seen by OP on 16.6.2009 and was found to have left lower second molar carious exposed causing pain when the medicines were prescribed and as to how on 18.6.2009 same tooth was extracted under local anesthesia . It is also recorded that the extracted tooth which was in possession of the police was examined on 4.8.2009 by the doctor of dental department Govt. multi-specialty Hospital, Sector-16, Chandigarh who also confirmed that the tooth which was examined was left lower molar. It is also mentioned that subsequently complainant was again seen on 7.8.2009 at the said hospital, the prescription slip also showed the presence of root stump of lower left first molar. In this manner the entire report mentioned above is reproduction of what is reported to have been done by the OP and the dental department of General Hospital, Sector-16, Chandigarh. There is only one line in the entire report to the effect that the “root stump of left lower first molar” is still present in the patient’s mouth, is asymptomatic but indicated for extraction. It therefore shows that root stump was present in the patient’s mouth and was indicated for extraction but the same had not been extracted. This is the root stump which according to the complainant had been giving her pain and it is with respect to this root stump that she first had gone to the MLA Dispensary,Sector-3, Chandigarh and thereafter came to OP on 16.6.2009 for extraction but the same was not extracted by the OP and rather healthy tooth was extracted. Learned Counsel for complainant argued that if OP extracted a healthy tooth by following a proper procedure the expert committee of PGI would still say that the dental treatment of requisite standard had been given to the complainant and there was no deficiency in service. This report therefore is of no help to OP and rather it helps the complainant that the root stump which was required to be extracted has not been extracted by OP. The basic question whether complainant came for extraction of first lower molar or second molar could not have been dealt with by the expert committee nor it was dealt with by them nor dental department of General Multi-specialty Hospital,Sector-16, Chandigarh and therefore OP cannot claim immunity on the basis of report of dental department of PGI, Chandigarh. 11. Learned counsel for the appellant has also argued that the complainant has not produced her detailed affidavit to support the contention made in the complaint and she filed only short affidavit which should not be considered as evidence and therefore her case must fail for want of evidence. The learned counsel for complainant/respondent has argued that in fact every material fact of the case stands admitted by OP and therefore the short affidavit filed by her supporting the complaint is enough to maintain the impugned order. A perusal of the record shows that OP has admitted that the complainant came to her clinic regarding the pain in the tooth. It is also admitted that she extracted the 7th tooth of the complainant on 18.6.2009. It is also admitted that on 20.6.2009 the complainant came to her clinic alongwith her husband and complained that she had extracted a healthy tooth instead of one which was giving problem to her. It is also admitted that a hue and cry was raised by the complainant before her clinic upon which the police was called by her husband. It is also admitted that the complainant also lodged a report with the police with respect to her grievance. The OP/appellant has not produced any x-ray examination having been conducted by her before the extraction of tooth. She has admitted that the tooth was not handed over to the police on 20.6.2009 when the police came to her premises. It is also admitted by her that the said tooth was placed by her in a tooth box maintained by her for putting the extracted teeth in the same for the use of budding BDS doctors. It is also admitted that when the police came to her on 4.8.2009 and asked for the tooth to be got examined from some doctor, she did not give any tooth to the police and claims to have herself gone to the General Hospital,Sector-16, Chandigarh. She has produced the report of General Hospital,Sector-16, Chandigarh showing that they had examined the tooth which was produced by the police before them. She has not produced any report of the said hospital to show if the tooth which she was carrying was ever examined. In this manner everything material for the just decision of the case has been admitted by OP. In view of these facts, complainant was not required even to lead any evidence to prove her case though she has produced the affidavit supporting the complaint and the same cannot be excluded from evidence. In view of the above discussion, we are of the opinion that the appellant/OP was rightly held to be deficient in rendering proper service to the complainant. The impugned order is perfectly legal and valid. We, therefore maintain the same. There is no merit in the appeal and the same is dismissed with litigation costs of Rs.5000/-.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |
