M. Ravi s/o Ramamurthy (late) v. Dr. C. Satya Seshadri,

Per Sri A. Hazarath Rao, President :- This case once again came before this Forum as per order in F.A. 824 of 2013 dated 16/04/14 for fresh disposal . The complainant filed this complaint under section 12 of the Consumer Protection Act,2. 1986 against opposite party seeking compensation of Rs.50,000/- towards mental and physical agony as the opposite party extracted 8 tooth instead of 7 tooth and for costs. th th

2. In brief the averments of the complaint are hereunder: The complainant on 26-09-11 approached the opposite party for teeth problem. The opposite party after taking x-ray diagnosed that the complainant was having a problem with 7 th tooth of right side upper jaw. The opposite party in his clinic on 28-09-11 extracted tooth and charged Rs.1500/-. The complainant few days later noticed that the opposite party extracted 8 th tooth instead of problematic 7 tooth. The complainant brought the same to the notice of theth opposite party and requested for remedy. The opposite party gave reckless answers and demanded extra money for removing 7 tooth. The opposite party gave reply with false allegations to theth notice issued by the complainant. The complainant lost good tooth by the negligence and irresponsible service of opposite party. The opposite party thus committed deficiency of service. The complaint therefore be allowed. After the remand the opposite party filed version. The contents in brief are these:4. . The complainant on 26-09-11 approached the opposite party with pain and food lodgment between both right upper last tooth namely as molars. X-ray revealed two molars present in the right upper part of the mouth and they were affected by dental caries very badly. The opposite party advised the complainant to get extraction of his last molar tooth i.e; posterior most toot and with regard to front molar or mesial molor tooth advised for filling. The complainant again approached the opposite party on 28-09-11 for extraction of posterior most teeth. The Dr.N.Raj Subhash a maxi facial and surgeon extracted posterior most teeth of the complainant successfully. For the remaining tooth i.e., mesial molar the complainant was advised to go for filling without extraction. Two or three days later the complainant approached the opposite party for clarification and with suspicion about his extracted tooth removed on 28-09-11. The opposite party Dr.N.Raj Subhash explained to the complainant that after extraction of tooth the adjacent tooth will usually migrates into the space of extracted tooth. So clinically the complainants oral cavity at the place of 6 is 7 i.e., the 2 molar migrated and so the opposite party considered the 7 as the 6 andth nd th th

8 as the 7 . That is why the opposite party so mentioned in his prescription slip and advisedth th extraction of 7 on 1 visit of the complainant to his clinic. The opposite party explained to thest complainant about his confusion regarding tooth numbering system mentioned in the prescription slip and it was only for the convenience purpose of X-ray technician. The complainant either on his 1st visit or even at the time of extraction did not inform about he getting 6 tooth extractedth about 5 or 6 years back which he was bound to disclose. Due to mobility and dental decay 7 th tooth has migrated into the space left after extracting 6 tooth while 8th tooth has migrated intoth the spce of 7th tooth. In the absence of such information the opposite party was of the opinion that the 7 tooth is in 6 place and 8 tooth is in 7 place. As there is necessary to extract theth th th th last most tooth it has been extracted accordingly. The opposite party did best service to the complainant and as such did not commit any deficiency in service. The complainant demanded the opposite party to do root canal treatment for the 7 tooth which was migrated in the 6 placeth th free of cost. The opposite party did not agree for it. While leaving the clinic the complainant challenged the opposite party to face defamation. Rest of the allegations contra mentioned in the complaint are all false and are invented by the complainant to suit his case. The complaint therefore be dismissed. Exs.A-1 to A-6 were marked on behalf of complainant. No documents were marked on5. behalf of the opposite party. The opposite party filed affidavit of Dr.N.Raj Subhash. The complainant cross examined the opposite party as well as Dr.N.Raj Subhash.

6. Now the points for consideration are: Whether the opposite party extracted 8 tooth (good) instead of the damaged 7 tooth andth th committed deficiency of service? Whether the complainant is entitled to any compensation? To what relief?

7. Admitted facts in the case are these:

1. The complainant approached the opposite party on 26-09-11 (Ex.A-5).

2. The opposite party took X-ray of the complaint (Ex.A-2).

3. The opposite party extracted 7 tooth of the complainant on 28-09-11th (Ex.A-5).

4. Exchange of notices between the complainant and opposite party (Exs.A-4 &A-5).

5. The complainant got extracted his 6 tooth five years prior to th 28-09-11 (memo filed by the complainant) It is also well settled in law that initial burden is on any complainant to prove8. POINT No.1:- negligence primafacie on part of treated doctor and there after burden shifts to that doctor/clinic/nursing home to establish the absence of negligence unless comes with in the purview of . In order to discharge his burden the complainant relied on the crossRes ipsa loquitor examination of the opposite party and Dr.N.Raj Subhash. The complainant did not choose to obtain expert opinion for the reasons best known to him. The arrangement of teeth in each four quadrants of oral cavity is as follows:9.

a) Two(2) incisors

b) One (1) canine

c) Two (2) pre molars

d).Three (3) Molars. The learned counsel for the complainant contended that the opposite party extracted 8 10. th tooth (which is not defective) instead of problematic 7 tooth and there by committed deficiencyth in service. The learned counsel for the opposite party contended that the complainant got already extracted his 6 tooth much earlier approaching the opposite party and into that space 8 and 7 th th tooth migrated. th . There is discrepancy not only in the version filed by the opposite party but also in the11 evidence affidavit of the opposite party and Dr.N.Raj Subhash regarding the time of disclosure by the complainant getting extracted his sixth tooth as rightly contended by the learned counsel for the complainant. The complainant either his complaint or in his evidence affidavit filed on 18/01/2013 did not mention about he getting his sixth tooth extracted prior to approaching the opposite party as rightly contended by the learned counsel for the opposite party. The complainant in para 4 of his affidavit filed on 15/07/14 (after remand) mentioned as detailed infra. It is further submitted that opp. party in his reply notice and his version in 7 para that th I had informed that my 6 tooth was removed about five to six years back due toth mobility and decay and in 8 para opp.party alleged that I not mentioned about 6 th th tooth which was extracted earlier. Total version of opp. Party is ambiguous The complainant even his affidavit filed on 15/07/14 after remand was not specific whether he got his sixth tooth extracted or not and if so when; but simply contended that total version of the opposite party was ambiguous. The learned counsel for the complainant on 08-09-14 was good enough to file a memo to the following effect. It is humbly submitted that the complainant intimated that about his 6 (sixth tooth)th extraction due to cavity five years before consulting opp.party. It is also admitted by opp.party in his version. Complaint is also admitted that his 6 tooth extracted dueth cavity before five years ago to the opp.party. It can therefore be inferred that the complainant got extracted 6 tooth i.e. 1 molar teeth aboutth st five years prior to consulting the opposite party on 26-09-11. Basing on that memo the learned counsel for the opposite party forcibly contended that the complainant by intentionally suppressing about the extraction of sixth tooth five years earlier to approaching the opposite party obtained exparte order taking advantage of the absence of not mentioning the extraction of sixth tooth in Ex-A5. Now this Forum has to see whether migration of tooth into the vacant space caused is12. possible. The opposite party did not mention in Ex.A-5 about the complainant getting extracted his 6 tooth (first molar) earlier. In order to support his contention the opposite party relied onth medical literature regarding migration of tooth into space caused. In the text book Periodontology by Michael G.Newman, 9 edition by Michael Carranza and another text book Essentialities ofth Periodontology by Sahitya Reddy. . Chapter 15 in the text book Periodontology by Michael G.Newman, 9 edition by Michael13. th Carranza dealt with where the following was mentioned amongpathologic tooth migration others. refers to tooth displacement that results when the balance amongPathologic migration the factors that maintain physiologic tooth position is disturbed by periodontal disease. Pathologic migration is relatively common and may be an early sign of disease, or it may occur in association with gingival inflammation and pocket formation as the disease progress. xxxxxxxxx Unreplaced Missing Teeth : Drifting of teeth into the spaces created by unreplaced missing teeth often occurs. Drifting differs from pathologic migration in that it does not result from destruction of the periodontal tissues. However, it usually creates conditions that lead to periodontal disease, and thus the initial tooth movement is aggravated by loss of periodontal support. Drifting generally occurs in a mesial direction, combined with tilting or extrusion beyond the occlusal plane. The premolars frequently drift distally. Although drifting is a common sequel when missing teeth are not replaced, it does not always occur. Failure to replace first molars : The pattern of changes that may follow failure to replace missing first molar is characteristic. In extreme cases it consists of the following: The second and third molars tilt mesially, resulting in a decrease in vertical dimension. The premolars move distally, and the mandibular incisors tilt or drift lingually. While drifting distally, the mandibular premolars lose their intercuspating relationship with the maxillary teeth and may tilt distally. Anterior overbite is increased. The mandibular incisors strike the maxillary incisors near the gingiva or traumatize the gingiva. The maxillary incisors are pushed labially and laterally. The anterior teeth extrude because the incisal apposition has largely disappeared. Diastemata are created by the separation of the anterior teeth. Another author Sri Sahitya Reddy also referred the author Carranza in his text book. The memo filed by him on 08/09/14 revealed that the complainant got extracted his sixth14 tooth (first molar) in or abut 2009. It is not the case of the complainant that he got replaced the sixth tooth (first molar) after extraction. Under those circumstances the contention of the opposite party about the 7 & 8 tooth (2 &3 molars) migrating/drifting into the space caused by theth th nd rd extraction and non replacement of 6 tooth (of complainant) is having considerable force. Theth complainant did not place any material to rebut the same. The complainant on 01/02/13 approached Government General Hospital, Guntur for dental problem as seen from Ex-A6. The complainant failed to examine that doctor or any other doctor to rebut the said contention of the opposite party. The complainant after the opposite party was set exparte though took time to file affidavit of third party did not choose to do so even after remand also. In view of the above discussion we opine that the complainant failed to establish negligence on the part of the opposite party by adducing cogent evidence and therefore answer this point against the complainant. In view of our findings on Point No.1 we are of the considered opinion that15. POINT No.2:- the complainant is not entitled to any compensation and answer this point also against the complainant. In view of above findings, in the result the complaint is dismissed with out16. POINT No.3:- costs. Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 12 day of September, 2014.th MEMBER MEMBER PRESIDENT APPENDIX OF EVIDENCE DOCUMENTS MARKED For Complainant: Ex.Nos. DATE DESCRIPTION OF DOCUMENTS A1 - Copy of Aadhaar card of the complainant A2 - x-ray A3 11-10-11 Reply notice A4 04-10-11 Office copy of legal notice A5 26-09-11 Prescription issued by opposite party A6 01-02-13 Prescription issued by GGH, Guntur. NIL For opposite party: PRESIDENT NB: The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out. [HON'BLE MR. A Hazarath Rao] PRESIDENT [HON'BLE MS. SMT T. SUNEETHA, M.S.W., B.L.,] MEMBER [HON'BLE MR. A. PRABHAKAR GUPTA, BA., BL.,] MEMBER