KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.116/09
JUDGMENT DATED 31.1.2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.S.CHANDRAMOHAN NAIR -- MEMBER
Dr.P.K.Ratnakaran,
Malabar Dental Clinic,
Hospital Road, Tellicherry -- APPELLANT
(by Adv.Shyam Padman)
Vs.
1. Sheela, W/0 Babu,
Deepam House, Kokapuram,
Gopalpetta, Tellicherry.
2. Dr.M.A.Indira, -- RESPONDENTS Malabar Dental Clinic,
Hospital Road, Tellicherry.
(By Adv.Dilish kumar)
JUDGMENT
SHRI.S.CHANDRAMOHAN NAIR,MEMBER
The majority order dated 9.12.09 of CDRF, Kannur in OP.173/05 is being assailed in this appeal by the second opposite party who is under directions to pay to the complainant a sum of Rs.30,000/- as compensation with interest at 7% per annum from the date of order till realization with cost of Rs.1500/-. The order is being dissended by the member Smt.K.P.Preethakumari by a separate order.
2. The complainant has filed the complaint before the Forum stating that she had approached the second opposite party/Malabar Clinic complaining severe pain on the left lower tooth and the same was extracted by the first opposite party. It is her further case that during the extraction injury was caused to inferior alveolar nerve and she had felt numbness over the left side of the face. Alleging deficiency in service on the part of the first opposite party in not taking proper care and attention at the time of extracting the tooth, the complaint was filed praying for directions to the opposite parties for payment of Rs.1,00,000/- as compensation.
3. Resisting the complaint, the opposite parties filed version and contended that the extraction of tooth was done carefully and skillfully without breaking the roots or damaging the surrounding soft tissues or bone. It was also submitted that the numbness and pain on the left side of the lower lip and chin as complained by the complainant could be due to the pressure exerted on the nerve at the time of extraction which is a dentally/medically accepted condition. Submitting that no injury was caused to the alveolar nerve as alleged by the complainant the opposite parties contended that there was no deficiency in service on their part and they prayed for dismissal of the complaint with compensatory costs.
4. The evidence adduced consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A6 on her side. The second opposite party was examined as DW1 and an expert was examined as DW2.
5. Heard the counsel for the appellant and the first respondent.
6. The learned counsel for the appellant vehemently argued before us that the order of the Forum below is without appreciation of the facts and circumstances and also the evidence before it. It is his very case that the complainant had failed in establishing any deficiency in service on the side of the first opposite party who conducted the operation and in such a circumstance, the Forum’s order fastening liability on the second opposite party being the employer cannot be upheld. He has submitted that apart from the oral testimony of the complainant, there was no evidence before the Forum to prove the case of the respondent that injury was caused to the inferior alveolar during the extraction as alleged by the complainant. It is his further case that the X-rays which were admittedly in the possession of the complainant were not produced by the complainant which would show that the complainant had approached the Forum with unclean hands. He has submitted that alleged numbness on the lip and the chin were a dental phenomenon which would vanish after a period and the said complications were medically accepted conditions as is revealed by the evidence of DW1 and DW2. Thus advancing the contention that there was no deficiency in service on the part of the opposite parties, the learned counsel argued before us that the majority of the order of the Forum below is liable to be set aside and the order of the member is to be upheld thereby dismissing the complaint.
7. On the other hand, the learned counsel for the first respondent/complainant argued for the position that there was deficiency in service on the part of the opposite parties and it was due to the deficiency in service on the part of the first opposite party that the complainant got injured on the alveolar nerve during extraction of the tooth. He has supported the findings and conclusions of the Forum below and submitted before us that no expert evidence was necessary in the instant case as no x-ray of the extraction side was taken before the tooth was extracted and the complainant had to approach the Medical College Hospital for getting the injury cured subsequently. It is also his case that even now the complaint is suffering from numbness over the lip and chin causing great physical in-conveniences, mental agony and hardship. It is further argued by him that the Forum below had adverted to all the facts and circumstances of the case and also the evidence before it and has passed the order, though the amount ordered is on the lower side. He has submitted that the poor circumstances of the complainant did not permit her to file an appeal against the order for such low a compensation as Rs.30,000/-.
8. On hearing the learned counsel for the appellant, first respondent and also on perusing the records, we find that it is the admitted case of all the parties that the complainant had approached the first opposite party who was working in the second opposite party/hospital with the complaint of tooth ache and it is also admitted that the first opposite party had extracted the tooth on the left lower jaw of the complainant. It is also found that the complainant has a case that injury was caused to inferior alveolar nerve during the extraction and she had numbness over the lip and chin region. It is the further case of the complainant that if the first opposite party had taken proper care and attention, the said difficulties could have been avoided.
9. On an appreciation of the entire facts, we find that though the complainant had the complaint of injury to the alveolar nerve a part from the oral testimony of the complainant, no expert evidence is adduced to support her case. It was incumbent upon the complainant to prove the case by examining an expert Doctor. It is also found that the opposite parties have examined the second opposite party/Doctor as DW1 and another expert as DW2 who has issued Ext.A4 after examining PW1, the complainant. It is found that the complainant herself had admitted that she had no pain at the time of extraction of tooth and it was after taking proper care and caution that the first opposite party had extracted the tooth and DW2 has deposed that there was no negligence on the part of the Doctor while extracting the tooth. It is also found that DW1 and DW2 have stated that the complications as alleged by the complainant are common complications. There is unusual relation ship/proximity for the teeth with the nerve, and the possibility of pressure being exerted on the nerve will give rise to temporary numbness to the lip and the chin. It is also to be found that in the absence of cogent evidence to support the allegations, the case of the complainant cannot be accepted and allowed. In the instant case, the opposite parties have stated before the Forum as to the procedure adopted by them and the complainant has not contradicted the case of the opposite parties by adducing supporting evidence. In such a circumstance, the majority order of the Forum below directing the second opposite party to pay a sum of Rs.30,000/- with interest at 7% per annum from the date of complaint till the date of payment with cost of Rs.1,500/- cannot be sustained. The same is liable to be set aside and we do so accordingly.
In the result, the appeal is allowed. The majority order dated 9.12.08 of the Forum below of the CDRF, Kannur in OP.173/05 is set aside and the order of the Member is upheld. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.
S.CHANDRAMOHAN NAIR -- MEMBER
VALSALA SARANGADHARAN -- MEMBER
