Dr.SUDHEER K T v. PRABITHA

APPELLANT:

Dr.Sudheer K.T., Denta Care Denta Speciality Centre, Payyoli-673 522 (by Adv. Shyampadman)

Vs.

RESPONDENT:

Prabitha, D/o.Hariharan Nair, Kuzhiyil Valappil House, Palayad amsom, Maniyoor desom, Vatakara.

(Party-in-person)

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JUDGEMENT

HON'BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

This appeal is filed by the opposite party in C.C.No.332/2014 of the Consumer Disputes Redressal Forum, Kozhikode (hereinafter referred to as District Forum for short), challenging the final order dated 02.05.2016, allowing the complaint. As per the order appealed against, the appellant has been ordered to pay an amount of Rs.50,000/- (Rupees Fifty Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand) as costs to the complainant. The complainant is the respondent herein.

2. The complaint was filed on the following allegations. The respondent/complainant was suffering from severe pain in the fifth tooth on her left side lower jaw. She consulted the appellant for the said ailment on 28.04.2014. After examination, the appellant advised her either to remove the decayed tooth or to undergo Root Canal Treatment. According to the respondent, she gave consent for removing the tooth pointed out by her. After subjecting her to local anaesthesia the appellant removed one tooth and sutured the wound. For controlling the bleeding, he put some cotton over the wound and asked her to clasp her teeth. But, when the cotton was removed, it was found that instead of extracting the fifth tooth pointed out by the respondent, the appellant had removed her sixth tooth which was having no complaint or defect. When the mistake was pointed out by the respondent, he rebuked her and scolded her.

3. Further, according to the respondent she had undergone orthodontic treatment for dental aesthetics and four numbers of teeth, two each from her upper and lower jaws were removed seven years prior to her treatment by the appellant. Consequently, she had only fourteen teeth remaining on her lower jaw. Therefore as per her existing tooth order, it is stated that the pain was on her fifth tooth from the front. Subsequently, due to the pain and headache, she went to the District Hospital, Vatakara and had to undergo treatment there. She contended that, the extraction of her teeth which had no defect, without her permission amounted to gross negligence and deficiency in service on the part of the appellant. As a consequence thereof she is still suffering from pain, headache and other hardships. Her dental aesthetics was also badly affected and her marriage prospectus are also adversely affected. Therefore, she claimed an amount of Rs.1,00,000/- (Rupees One Lakh) as compensation for the deficiency in service as well as costs of the proceedings.

4. The complaint was contested by the appellant by filing his version. He denied all the allegations made in the complaint as false and baseless. According to him, he was a well- qualified, experienced and reputed dentist. He had set up his own clinic and has been practicing from 2002 onwards. There are four other experienced dentists in his clinic. The respondent was examined and treated throughout by the appellant, the other doctors and staff, according to universally accepted dental protocol, bestowing all due care, caution and attention.

5. The appellant contended that, the respondent had visited him on 28.04.2014 with complaints of non-specific pain at the back of her left side lower jaw. On examination, it was found that her first and second molars on the left lower side were having interproximal caries, which was identified on probing since clinically, both the molars appeared healthy occlusally. The respondent was shown the dental caries with the probe in a mirror. The need for either extraction or RCT (Root Canal Treatment) of the molars was explained to her and her mother.

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They opted for extraction of one tooth on the same day. Accordingly, with their consent and after giving local anaesthesia the second molar from the left side was extracted. Only an amount of Rs.200/- (Rupees Two Hundred) was charged for the said procedure. The need for either extraction or RCT (Root Canal Treatment) of the other molar was told to the respondent. They left the clinic fully satisfied with the treatment. She was prescribed antibiotics and was advised to return for removal of the sutureafter one week but she never turned up for further treatment.

6. Later on 02.05.2014 the appellant received a lawyers notice containing false allegations against his treatment. The same was issued with the ulterior motive of making unjust enrichment. Therefore a detailed reply was given to that notice stating the true and correct facts. According to the appellant, the allegations and claims mentioned in the complaint were inconsistent with the allegations in the lawyer's notice. There was no negligence, carelessness or deficiency in service on the side of the appellant. Respondent had not suffered any injury, hardship or difficulty on account of the treatment given to her by the appellant. On the above grounds he prayed for the dismissal of the complaint.

7. On the above pleadings, both parties let in evidence in support of their respective contentions. The respondent examined herself as PW1 and marked exhibits A1 to A4 documents. The appellant did not adduce any evidence.

8. After close of evidence, the matter was heard. The District Forum found that the appellant had extracted a wrong tooth without the consent of the respondent and therefore, his conduct amounted to professional negligence and carelessness amounting to deficiency in service. Hence, he has been directed to pay an amount of Rs.50,000/- (Rupees Fifty Thousand) as compensation to the respondent and Rs.3,000/- (Rupees Three Thousand) as her costs.

9. Though the respondent has been served with notice and a lawyer had initially appeared for her, no vakalath is seen filed. She was also not present thereafter. Therefore we have heard the counsel for the appellant. We have also carefully examined the Lower Court Records of the case.

10. According to Advocate Shyam Padman who appears for the appellant, the District Forum has seriously erred in allowing the complaint and ordering compensation to be paid. The learned counsel points out that, the respondent had approached the appellant with non- specific pain on the left side of her lower jaw and on examination, it was found that her first and 2^ndmolars from the left side was having interproximal caries. It was identified by the appellant on probing, since clinically both the molars appeared healthy occlusally. It is pointed out by the learned counsel that cavities were detected as existing between the first and second molars of the respondent. Therefore, both her molars were affected. In such a situation, the standard treatment practice is to either extract both the teeth or to extract one tooth and to save the other by Root Canal Treatment. The situation was explained to the respondent and her mother and the respondent was shown the dental caries with the probe, in a mirror. It was with the consent of both the respondent and her mother that her second molar on the lower jaw was extracted. Only an amount of Rs.200/- (Rupees Two Hundred) was charged for the procedure. She was prescribed with antibiotics and was advised to come for suture removal after one week. But she never turn up. She was fully satisfied with the treatment and was relieved of her pain too.

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11. It was only subsequently that she has come forward with her present case that a wrong and healthy tooth had been extracted by the appellant. When she was examined as PW1, she has admitted in cross examination that her other tooth was still intact, in her mouth. It is therefore clear that the treatment given by the appellant was correct. She had issued her lawyer's notice without consulting any expert in dental procedures, even before she had gone to the District Hospital, as evident from the date of Exhibit A2. Further, no expert has been examined in this case to prove that there was any deficiency in the treatment given by the appellant. Therefore, it is contended that the District Forum seriously went wrong in allowing the complaint. On the above grounds, he seeks interference with the order appealed against, allowing this appeal.

12. The contention of the respondent in her complaint is that, she had gone to the appellant complaining of severe pain in her fifth tooth on her left side of lower jaw. According to her, she had undergone orthodontic treatment to correct her dental aesthetics and had had four of her teeth removed, two each from her upper and lower jaws. Therefore, she had only fourteen teeth in each of her jaws. Her case is that after examination the appellant had advised her either to remove the decayed tooth or to undergo Root Canal Treatment. She consented to the removal of the tooth pointed out by her. However, instead the appellant had removed and extracted her sixth tooth which had no complaint, retaining the defective one there.

13. Per Contra, the case of the appellant is that the cause of her pain was due to a cavity that was detected between her two molars. Since it had infected both the teeth he had advised either to remove both the teeth or undergo Root Canal Treatment. The respondent wanted extraction of the defective tooth. It was after explaining the situation to her and her mother and obtaining their consent that he had extracted the defective tooth. We notice that she had caused the issue of her lawyer's notice just four days after her treatment, to which the appellant had also replied promptly, refuting her allegations. Her allegation is that, the appellant had by mistake extracted her healthy tooth leaving the defective one untouched. But, when she was examined as PW1 on 24.04.2018, she has admitted that the said tooth was still in her mouth. If the tooth was not giving her any problem even after the lapse of one year, it is clear that the tooth remaining in her mouth was not defective. Therefore, it is only to be assumed that the tooth removed by the appellant was the tooth that was troubling her. Though she has a contention that her prospects of getting married was also prejudiced by the wrong extraction of her tooth by the appellant, she has admitted when she was examined as PW1 that her marriage was fixed on 20.05.2015. Apart from the above, no expert evidence is available in this case to show that the treatment given by the appellant was wrong or deficient in any manner. The District Forum has based its conclusion on the sole premise that the appellant had extracted a different tooth from the one that was pointed out by the respondent. The said assumption ignores the fact that she had gone to the appellant complaining of severe pain from which she wanted to be relieved of. It was the appellant who prescribed extraction of her tooth, after examining her. She also got relief from the treatment. Therefore, the reasoning of the District Commission is wrong. In this case there is nothing on record to show that the treatment given by the appellant was deficient in any manner. There is also no evidence to show that a treatment different from that prescribed by the appellant was done by any other dentist. In the absence of any evidence to show that there was professional negligence or deficiency on the part of the appellant, the District Commission went wrong in allowing the complaint and awarding compensation to the respondent/complainant. For the above reasons, we find that the order of the District

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Commission is unsustainable and is liable to be set aside. In the result, this appeal is allowed and the order dated 02.05.2016 of the Consumer Disputes Redressal Forum, Kozhikode in C.C.No.342/2014 is set aside. No costs. The appellant shall be at liberty to refund of the amount of statutory deposit made at the time of filing this appeal, on proper acknowledgement.

JUSTICE K. SURENDRA

MOHAN : PRESIDENT

RANJIT R. : MEMBER

SL

[HON'BLE MR. JUSTICE SRI.K.SURENDRA MOHAN]

PRESIDENT

[HON'BLE MR. SRI.T.S.P.MOOSATH]

JUDICIAL MEMBER

[ SRI.RANJIT.R]

MEMBER

[ SMT.BEENAKUMARI.A]

MEMBER

[ SRI.RADHAKRISHNAN.K.R]

MEMBER

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