FIRST APPEAL NO. 177 OF 2018

Heard learned counsel for the appellant and learned counsel for respondent No.2. None appears for respondent No.1.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The case of the complainant in nutshell is that  the complainant on 18.6.2017 due to teeth problem gone to the Clinic of OP No.1 who advised him for cosmetic teeth implant with crown which cost comes to Rs.3,500/- each. OP No.1 advised the complainant to deposit Rs.17,000/- in advance to implant and crown  of five numbers of teeth  according to the measurement  and advised to come on 25.6.2017 for fitting. It is alleged inter alia that on 25.6.2017 the teethes were implanted but the complainant got pain and again visited to OP No.1 on 26.6.2017. OP No.1 did not take step to correct the adjustment of teethes. Rather OP No.1 advised to wait for seven days. So on 9.7.2017 complainant visited OP No.1 and OP No.1 started process of repairing of the teethes. Yet the complainant could not get relief again the complainant was asked to come after some time with further amount. Therefore, without getting any relief the complainant went to Dr. P.K.Panda and Dr.Ashis Sahu of Ashirvad Laser Dental Clinic, Jharsuguda on 29.7.2017 for treatment and they prescribed  that one of the teeth has been damaged due to  unnecessary cut and grinding followed by forcible removal of newly implant teeth and crown by OP No.1. Due to negligence of Dr - OP No.1 complainant sustained mental agony, bodily pain and harassment with financial loss. So the complaint was filed.

4.      OP No.1 filed written version admitting about the treatment meted out by the complainant in his clinic. It is averred that on 15.6.2017 the complainant has visited OP No.1 for his tooth check-up. On 18.6.2017 Dr.Low visiting Senior Dentist took up of the preparation of teeth Nos. 34, 35 and 38 to receive full coverage PFM Crowns with hygienic PFM Pontiac to replace the missing teeth No. 36 and 37 for which he received Rs.10,000/- as advance. On 25.6.2017, OP tried the Prosthesis for fitting and Occlusal Evaluation and found some  minor Occlusal Interference on 38 which is normal with any indirectly fabricated Prosthesis as such she informed complainant to needs selective grinding to which he denied as earlier he has faced similar problem while fitting prosthesis on the other side.  As per the consent of the complainant OP No.1 cemented the Prosthesis using Type 1 Glass lonomer cement and complainant paid rest amount of Rs.7,500/- after fitting of the prosthesis. The question of pain as complained never been raised. The OP  averred that they have done the case for treatment  of teeth. The entire allegations of pain etc are false. Further, the OP  has averred that the complainant has never visited on 9.7.2017 but he came to the Clinic on 12.7.2017 and the prosthesis was temporarily cemented on the jaw of the complainant was became loose as informed by the wife of the complainant on 14.7.2017. Again on 16.7.2017 the teeth were re-cemented. Thus, OP No.1 has rendered all best possible treatment with the assistant of Senior Dentist. There is no deviation of treatment. OP No.2 appeared but did not participate in the hearing.

5.      After hearing both the parties, the learned District Forum passed the following order which is as follows:-

                             “xxx   xxx   xxx

            For the reasons aforesaid we hold that, the complaint petition merits consideration and accordingly we direct the OP 1 ensure to provide sincere and better service in her private clinic to maintain register of treatment record of patient for future providing adequate facility and make alert her private doctors practicing in safeguard of the clinic and patient. Lastly for the end of justice, we direct OP No.1 to pay refund of Rs.17,500/- (Rupees seventeen thousand five hundred) only as received fees towards treatment from the complainant due to negligence for not maintaining any patient register in her clinic with payment Rs.5,000/- as litigation expenses within 30 days from the date of receiving this order, failing which OP No.1 is liable to pay interest @ 12% per annum.”

6.      Learned counsel for the appellant submitted that  the learned District Forum has committed error in law by not considering the treatment records produced by OP No.1 and by not considering the written version filed by OP No.1. According to him, the treatment record is only a Diary of Dentist. Not only this but also the treatment has already been given in the prescription produced by the complainant. Learned District Forum ought to have considered all these facts and law. When the treatment record is maintained by the complainant and he has produced the same, the question of further production of treatment record does not arise. According to him the learned District Forum has not found any negligence on the part of the doctor but directed to refund the money due to negligence not maintaining the patient register. He produced the diary maintained by the doctor concerned. So, he submitted to set aside the impugned order by allowing the appeal.

7.      Learned counsel for respondent No.2 supports the stand taken by the learned counsel for the appellant.

8.      Considered the submission of learned counsel for    the  respective parties and perused the DFR including the impugned order.

9.      After going through the entire impugned order, we find no where the complainant has proved the negligence on the part of OP No.1 - Doctor. Also there is no finding of the learned District Forum that there is negligence on the part of the Doctor in rendering treatment. There is a question raised that no treatment  record is maintained. When Annexure - 1 has been filed the endorsement has already been made about repairing of teeth Nos. 34, 35 & 38. Further, on verification of the letter, it is found that the document has also been registered with regd. No.830(A). Doctor who has treated the complainant is also filed. The Diary of the Doctor is also filed before us. All these documents go to show that the complainant was given treatment only for preparation of teeth on 34, 35 & 38. Whether there is any negligence on the part of the Doctor is not the issue now. Since document has already maintained the observation of learned District Forum that no record is maintained is totally vulnerable observation.

10.    In view of aforesaid discussion, we are of the view that the impugned order is liable to be set aside and is set aside.

11.    The appeal stands allowed. No cost.

The statutory amount deposited be refunded to the appellant with interest accrued thereon, if any on proper identification.

          DFR be sent back forthwith.

Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.