Date of Filling:      03.07.2017

                                                                                                                       Date of Disposal:  10.11.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.30/2017

SATURDAY, THE 10^th   DAY OF NOVEMBER 2018

P.R.G.Menon,

S/o, Raman Menon,

No.1, Poonga Street,

Poompozhil Nagar,

Kovilpathagai, Avadi,

Chennai -600 062.                                               ……Complainant.

                                                 //Vs//

The Managing Director,

32, Dental Care,

No.114, M.T.H.Road,

Ambattur, Chennai -600 053.                            ……….Opposite party

The complaint is coming upon before us finally on 23.10.2018 in the presence of M/s. C.Shankar, counsel for the complainant and M/s. M.Aswinkamal, counsel for the opposite party and upon hearing arguments having perused the documents and evidences this forum delivered the following.

ORDER

PRONOUNCED BY THIRU S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to return a sum of Rs.20,800/- towards the medical treatment incurred by the complainant  and to pay a sum of Rs.1,00,000/- towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the opposite party and with cost.

2.The brief averments of the complaint are as follows:-

The Complainant during the month of July 2016 went to the clinic of the opposite party for consulting regarding a tooth ache.  The opposite party advised him to undergo root canal treatment immediately. As per the advice of the opposite party, the complainant agreed to do root canal treatment and paid the entire amount of Rs.20,800/- vide Bill No.OP1617-648 dated 03.08.2016.  The amount of Rs.20,800/- includes root canal treatment and fixing of zircon crown cap on the tooth for which root canal is done.  Further, at the time of receiving the said sum of Rs.20,800/- the opposite party has given ten years warranty for the treatment and for the zircon crown cap.  While so, during the 3^rd week of August 2016 the zircon crown cap which was fixed by the opposite party came out while brushing.  Scared of this, the complainant immediately went to the opposite party’s clinic, the opposite party corrected the fixation of the zircon crown cap to the tooth of the complainant and assured him that the cap will not come out hereafter. While so, during 4^th week of August 2016, the zircon Crown Cap again came out while taking food.  The complainant again went to the clinic of the opposite party, who instead of setting it right, advised the complainant to start the treatment afresh.

3. That since the opposite party has not done the root canal in a proper manner the root canal treatment went in failure.  Whenever the complainant approached the opposite party to give proper treatment, the complainant was sent back by saying that the treatment should be started afresh.  The opposite party has failed in his service by giving wrong treatment with false assurance that by saying that his treatment is valid for ten years.  It is pertinent to note that a prudent man takes the treatment only on the assurance and warranty given by the opposite party for the treatment which he has provided, believing that in the event of any illness, he will be covered under the warranty provided by the opposite party, but the opposite party, on technical and inhuman grounds, tried to repudiate the claim by taking shelter, which amounts to cheating the innocent public under the garb of insurance cover.

4. The opposite party rejected his claim on the ground that he has not assured of warranty. The complainant states that it will be always difficult on the part of the complainant to get the reimbursement as the opposite party will always try to rejects the claim of the complainant as most of the people are totally unaware of the symptoms of the disease.  The refusal to honor the claim of the complainant the opposite party committed gross error, negligence and deficiency of service and unfair trade practice.  Hence this complaint.

The contention of written version of the opposite party is brief as below:-

5. The opposite party denies the various allegations and averments made in the complaint except those that are specifically admitted herein.  The opposite party denies that at the time of receiving a sum of Rs.20,800/- the opposite party has alleged to have given ten years warranty for the treatment and for the zircon crown cap.

6. At the outset, the opposite party submits that the hospital record reveals that the patient who was treated by the opposite party was one Govidan Kutty and whereas the complaint has been preferred by one P.R.G.Menon and the complaint is liable to be rejected on that ground itself at the threshold. Further when the complainant approached the opposite party for treatment with pain in the tooth, on examination, the opposite party found tooth decay and advised the complainant for root canal treatment, scaling, filling and zircon Crown.  The complainant was also informed about the charges in various heads for which the complainant agreed for the same.  Thereafter, the treatment was started with the consent and done including the root canal procedure and zircon crown was also fixed and pain was relieved as a successful outcome.  After fixing the crown, the complainant was advised to follow the procedures including to avoid hard brushing and also to avoid biting hard and avoiding certain kinds of food.  The complainant had not followed either the advice or the procedures put forth by the opposite party and as result the crown had fallen.  The opposite party has only passed on the warranty given by the manufacturer of the crown alone and there is no practice of giving warranty for the treatment which is unheard of in the medical profession.

7. That the opposite party re-fixed the Crown to the complainant and advised the complainant to follow the instructions strictly and the opposite understands that the crown had again fallen while chewing food hardly.  When the complainant approached for the second time, the opposite party informed that as a gesture the opposite party was willing to repair or replace the crown as per the advice of the manufacturer of the crown.  The complainant agreed for the same and assured to revert back for fixing the crown afresh.  But contrary to that the complainant made false and vexatious allegations with greed intention to gain illegally and to enrich unlawfully through the legal notice dated 01.12.2016 which was suitably replied by the opposite party through its counsel by reply dated.23.12.2016. The amount paid by the complainant for the treatment includes the root canal treatment with laser, scaling, filling, zircon crown fixing and professional fees and so the complainant is not justified in seeking return of the money paid.

8. Furthermore, the opposite party as a good gesture was willing to re-fix the crown to put an end to the issue.  The opposite party has not charged anything for re-fixing done to the complainant.  The opposite party has given utmost care and best treatment to the complainant.  The opposite party is a reputed dental care centre known for its concern and friendliness to the patients with regard to the proper advice and treatment given to them. The falling of crown even after re-fixing was only due to his non observance of the medical advice only with a view to gain publicity and to enrich unlawfully and illegally has come forward with this false claim.

9. The opposite party once again reiterates that the opposite party was always ready and willing to do re-fixing for the complainant and it was the complainant for his best known reasons had not turned up even after the reply by the opposite party’s Advocate.  The complainant has to blame himself for his own wrong and cannot  penalize or harass the opposite party by way of frivolous litigation that too when there is no deficiency in service.  Therefore, the above complaint is not maintainable either in law or on facts and liable to be dismissed in limine with exemplary costs.

10. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1 to Ex.A3 were marked. While so, on the side of the opposite party, the proof Affidavit filed as his evidence and Ex.B1 to Ex.B5 were marked.

11. At this juncture, the point for consider before this Forum is:-

1. Whether there is any negligence committed by the opposite party which leads to the deficiency of service on the part of the opposite party as alleged in the complaint by the complainant?

2. To what other reliefs, the complainant is entitled to?

12. Written argument filed and oral argument also adduced on the side of the opposite party, while the complainant has not filed the written argument but adduced the oral argument.

Point No.1:-

13. Regarding this point, on careful perusal of the averments of the complaint and the written version submitted by the opposite party, it is crystal clear that it is an admitted fact that the complainant approached the opposite party for suffering of tooth ache and the complainant agreed as per the advice of the opposite party to undergo root canal treatment and in turn he has paid Rs.20,800/- to the opposite party for said treatment.  It is further seen from the evidence of the complainant adduced by means of proof Affidavit the said fact also admitted.  Further, after undergoing the said root canal treatment and fixation of zircon crown cap, during 3^rd week of August 2016 while brushing, the said zircon crown cap came out and so that immediately, the complainant went to the opposite party’s clinic and re-fixed the same and assured by the opposite party that the cap will not come out hereafter.

14. On further going through the evidence, it is learnt that during 4^th week of August 2016 the said zircon crown cap again came out while taking food and again the complainant went to the clinic of the opposite party, who instead of setting it correct, the opposite party advised to the complainant to start the treatment afresh and thereby the complainant was afraid out of fear and loss of belief over the opposite party, thereafter the complainant went to the Billroth hospitals for further better treatment and undergo the same and to that effect Ex.A3 is marked.

15. Such being so, on further going through the evidence of the opposite party, it is categorically stated that the receipt of amount Rs.20,800/- towards root canal treatment, etc., which is marked as Ex.B1 and in continuation  he has given proper treatment to the complainant for fixing zircon crown cap as per the procedure prescribed by text book and followed the correct method and also has obtained the proper consent from the complainant and clearly explained about the  said treatment and fixation of the zircon crown cap and also Ex.B5 is clearly reveals that there are no promises or guarantees of anticipated results or the length of time that the crown and/or fixed bridge work will last and also agree to assume the risks associated with crowns and/or fixed bridgework…….The new patient Registration form and consent form are marked as Ex.B2 to Ex.B5 respectively.   It is further deposed that the opposite party has not given false assurance and guarantee and in fact he has done root canal treatment in a proper manner.  While so, at the time of 2^nd visit the opposite party has not claimed any additional charges from the complainant and infact, since the complainant has not followed the advice of the opposite party only the Zircon crown cap came out but not otherwise as alleged and hence there is no deficiency of service on the part of the opposite party.

16. At the outset, from the above facts and circumstances there is no dispute regarding the root canal treatment and fixation of zircon crown cap by the opposite party to the complainant and similarly there is no dispute arose in respect of two visits  of the complainant for the reason that the zircon crown cap came out while brushing in the first instance and taking food in the next instance, and in consequence, in the first instance, the opposite party has given treatment for re-fixation of zircon crown cap and in the next instance, the opposite party has advised to start afresh treatment.  Such kinds of word of the opposite party certainly leads to the complainant got afraid and lost the belief over the opposite party treatment is quite natural to all human beings and thereby the complainant was compelled go for another hospital for further better treatment.  In such a way, the complainant went to the Billroth hospital and taken further treatment and to that effect Ex.A3 is marked.  In respect of Ex.A3 there is no serious dispute on the side of the opposite party.

17. From the fore going among other facts and circumstances, it is quite clear that after giving treatment by the opposite party, two times the zircon crown cap came out and for which the complainant was wandering here and there which clearly shows that there is some negligence committed by the opposite party while giving root canal treatment and fixation of zircon crown cap. Therefore the act of the opposite party itself shows that the opposite party has not followed by procedure in a proper manner and in this circumstances the Doctrine of Res Ipsa loquitor can be applied.  Though it is true that the opposite party has obtained the proper consent from the complainant in Ex.B3 to Ex.B5 but it is not sufficient to say that there is no negligence committed by the opposite party in case of said defects took place in the course of root canal treatment and fixation of zircon crown cap.

18. In the light of the above discussion and circumstances, this Forum holds that the complainant has proved the negligence of the opposite party, which clearly leads to the deficiency of service on the part of the opposite party.  Thus the point No. 1 is answered accordingly.  

Point No.2:-

19. As per decision arrived in point No.1 the complainant is entitled to refund the amount of Rs.20,800/- paid towards medical treatment, since the said defects have not rectified by means of root canal treatment and fixation of zircon crown cap by the opposite party and also for sufferings, the complainant is entitled for reasonable compensation and also litigation expenses.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to return the amount to the tune of Rs.20,800/- (Rupees twenty thousand and eight hundred only) towards expenses for the medical treatment incurred by the complainant and also to pay a sum of Rs. 10,000/- (Rupees ten thousand only) towards compensation for causing mental agony and hardships due to the medical negligence of the opposite party and also to pay a sum of Rs.5,000/-(Rupees Five thousand only) towards litigation expenses to the complainant.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open Forum for this 10^th November 2018.

-Sd-                                                                                                     -Sd-

       MEMBER                                                                                        PRESIDENT

List of document filed by the complainant:-

List of document filed by the complainant:-

    -Sd-                                                                                          -Sd-

MEMBER                                                                              PRESIDENT