Pankaj Mehta v. Pankaj Kapoor

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2. The case of the complainant in brief is that the complainant was the regular client/patient of the OP No.1 since 29.01.2012 as she had problem in the shape of her teeth and she was advised to apply braces by the OP No.1 in January, 2012. It is stated that it was further told and assured by OP No.1 that treatment whatever shall be done by him or under his supervision. It is stated that the complainant was also told and assured that she shall be charged Rs. 25,000/- for the same. It is stated that the treatment of braces was complete till 04.08.2013. It is stated that the complainant on dated 05.11.2014 visited the OP No.1 with pain in her left side molar tooth and for said pain she was prescribed some medicines by the OP No.1 for 3/4 days and was also advised that tooth needed to be extracted after swelling reduces by intake of medicines. It is stated that the complainant believing the words and advice of the OP No.1 being old client/patient took the medicines and came back. It is stated that out of medicines prescribed one was to be taken prior to extraction of tooth and another one was to be taken afterwards and fee settled was Rs. 200/- only for extraction of tooth. It is stated that complainant immediately after 4 days visited the OP No.1 for removal of the tooth since it was aching alongwith her brother who stayed in the car parking only. It is stated that the complainant was surprised that OP without taking any X-Ray started procedure of extraction and that too by applying drilling process even and since it was quite painful the complainant after removal/extraction of tooth (MOLAR) inquired from OP No.1 that why drilling and he told her that same was required. It is stated that after removal / extraction of tooth she was charged Rs.400/- instead of Rs. 200/- by OP No.1. It is stated that the complainant kept on taking the medicine prescribed to be taken after removal/extraction of teeth and at times she had to consume them even 4 times a day as there was no relief in pain and gum and portion near by the teeth removed had immense pain. It is stated that even after a lapse of 8/9 days she was taking banana

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and rasks. It is stated that the complainant visited the clinic of the OP No.1 on 19.11.2014 with her Mausi for dressing etc. twice (Morning & Evening) and complained regarding severe pain, but OP failed to give any satisfactory answer. It is stated that complainant finally on the advice of her Mausi and brother went to the DDU hospital and when X-RAY was done at DDU hospital by the doctors she was stunned to learn that roots of the tooth removed were still inside and she was to be treated again by passing though same pain. It is stated that the complainant had no option except to believe them and had to bear the same pain and suffering. It is stated that complainant felt cheated and befooled by the OP No.1 and she visited the OP No.1 after a few days and confronted him alongwith one of her friend and the OP No.1 admitted his mistake and assured her that he will settle the matter with her but all in vain. It is stated that the complainant also issued legal notice to the OP No.1 but her grievance was not redressed. It is stated that aforesaid acts on the part of OP No.1 amount to deficiency in service and unfair trade practice. It is prayed that the complaint may be allowed.

3. After admission of complaint, notice was issued to the OP. The complaint so filed has been opposed by the OP No.1 by filing reply taking preliminary objections therein regarding maintainability, non-joinder of necessary parties, cause of action, complaint is barred by limitation etc. It is stated that the treatment given is prescribed by Orthodontist and replying opposite party is not a Orthodontist. It is stated that clinic of replying opposite party was being shared by Dr. Rahul, Dr. Vineet and Dr. Pooja as the replying opposite party only used to provide limited facility for use of his clinic to the above referred Orthodontic Doctors against which replying opposite party was paid a fixed amount by the visiting Orthodontist. It is stated that on the prescription of 29.01.2012 it is clearly printed on the top

"Sunday Closed" and at the bottom it is clearly printed as visiting Doctor on 1^stSunday of every month Dr. Rahul Paul M.D.S.

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Ortho and further 29.01.2012 was Sunday. It is denied that these doctors and the treatment given by these visiting doctors was under supervision of replying opposite party. It is stated that

"Braces" were advised to the complainant by Dr. Rahul Paul, the fee and other charges were also settled between Dr. Rahul Paul and complainant themselves and further in this regard payment if any was made to the said doctor and not to the replying opposite party. It is stated that the treatment schedule followed by complainant was as per advice of Dr. Rahul Paul. It is stated that as far as period of treatment and payment are concerned, the same were not under guidance of replying opposite party, but was under Dr. Rahul Paul. It is stated that said period of treatment as alleged by complainant from 29.01.2012 to 04.08.2013 are all Sundays. It is admitted that complainant visited the clinic of replying opposite party on 05.11.2014 with a complaint of Teeth pain and on examination she was advised medicines. It is denied that replying opposite party advised complainant for removal of Teeth/Teeth extraction and settled any fees for the removal of teeth with the complainant. It is denied that complainant visited the clinic of replying opposite, for removal/extraction of teeth or the replying opposite party removed the teeth of complainant. It is also denied that a sum of Rs. 400/- was charged for the extraction of said tooth. It is stated that there is neither any deficiency in service nor unfair trade practice on the part of the replying OP and prayed that the complaint may be dismissed.

4. After filing reply by OP No.1, the complainant moved an application for impleading OPs No.2 to 4 as party to the present complaint and the said application was allowed the OPs No.2 and 4 were impleaded as party in the present complaint. However, later on the Ld. Counsel for the complainant requested to dismiss the complaint against the OPs No.2 to 4 being not pressed and accordingly the same was done. However, the OP No.4 had filed reply taking preliminary

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objections therein regarding maintainability, cause of action, mis-joinder of parties etc. It is stated that the application of braces on the complainant as per the complaint and also as derived from records, shows to be done by Dr. Rahul Pal and also the factum of extraction of tooth being done by OP No. 1. It is stated that the treatment as per the allegation made in the complaint and derived from records, started from 29.01.2012 which continued till 04.08.2013. It is stated that when her treatment started on 29.01.2012 Dr. Pankaj Kapoor and Dr. Rahul Pal were the attending doctors in the clinic of OP No. 1 and subsequently on completion of treatment Dr. Vineet Gokhna and Dr. Pankaj Kapoor were there. It is stated that the replying opposite party has wrongly been made party in the present complaint without there being any allegations against her in the complaint. It is stated that there is neither any deficiency in service nor unfair trade practice on the part of the replying OP and prayed that the complaint may be dismissed.

5. Rejoinder to the reply of contesting OP No.1 was filed on behalf of the complainant and the allegations as contained in the complaint were reasserted after refuting those of reply filed by OP No.1 contrary to the complaint.

6. The parties adduced evidence in support of their contentions. On behalf of the complainant affidavits of complainant and Vivek Mehta were tendered in evidence. Complainant has also filed documents in support of her contentions. On behalf of OP No.1 affidavit of Pankaj Kapoor was tendered in evidence.

7. We have heard learned counsels for the parties and have also gone through the entire record, carefully.

8. After hearing the submissions made by Ld. Counsel for the parties and perusing the entire record carefully, it is clear that grievance of the complainant is that there was deficiency in service and unfair trade practice on the part of the OP and the same not redressed when contacted by the complainant and legal

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notice was issued. The plea of the complainant in brief is that complainant contacted the OP No.1 on 29.01.2012 as she had problem in the shape of her teeth and she was advised to apply braces by the OP No.1, for which Rs. 25,000/- were charged from her. It is stated that OP No.1 advised the complainant for the treatment of braces from time to time and the same was completed till 04.08.2013. It is stated that the complainant again on 05.11.2014 visited the OP No.1 with pain in her left side molar tooth and OP No.1 prescribed some medicines for 3/4 days and also advised that tooth needed to be extracted after swelling reduces by intake of medicines. It is stated that out of medicines prescribed one was to be taken prior to extraction of tooth and another one was to be taken afterwards and fee settled was Rs.200/- only for extraction of tooth. It is stated that complainant after taking medicines for 4 days visited the OP No.1 for removal of the tooth alongwith her brother who stayed in the car parking. It is stated that OP without taking any X-Ray started procedure of extraction and that too by applying drilling process and charged Rs.400/- instead of Rs. 200/- for extraction of tooth. It is stated that the complainant kept on taking the medicine prescribed, but there was no relief in pain and gum and portion near by the teeth removed had immense pain. It is stated that complainant could not taken proper food and she was taking banana and rasks. It is stated that the complainant again visited the clinic of the OP No.1 on 19.11.2014 with her Mausi for dressing etc. twice (Morning & Evening) and when fact regarding pain was brought to the notice of OP No.1, no satisfactory answer was given. It is stated that when there was no relief in the pain, the complainant on the advice of her Mausi and brother went to the DDU hospital and when X-RAY was done at DDU hospital, she was stunned to learn that roots of the tooth removed were still inside and she was to be treated again at DDU Hospital by passing though same pain. It is stated that the complainant had to bear the same pain and suffering due to

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deficiency in service on the part of the OP. It is stated that complainant visited the OP No.1 after a few days and confronted him alongwith one of her friend and the OP No.1 admitted his mistake and assured her that he will settle the matter with her later on. It is stated that the complainant believed the words of the OP No.1 return to whom, but later on the OP No.1 refused to redress the grievance of the complainant. It is stated that the complainant also issued legal notice to the OP No.1, which was replied by the OP No.1, but her grievance was not redressed and the complainant was compelled to file the present complaint.

9. After admission of complaint notice was issued to the OP No.1 and the OP No.1 took objection regarding non- joinder of necessary parties and thereafter complainant moved an application to implead the OPs No.2,3&4 as necessary parties which application was allowed on 03.05.2017, however, later on the complainant got the complaint dismissed against the OPs No.2,3&4, being not pressed vide orders dated 08.09.2017 and 27.11.2017. The stand of the contesting OP is that although the clinic is owned by the replying OP, but replying opposite party is not an Orthodontist. It is stated that clinic of replying opposite party was being shared by Orthodontic Doctors namely Dr. Rahul, Dr. Vineet and Dr. Pooja for which replying opposite party was paid a fixed amount by the visiting Orthodontist. It is denied that these doctors and the treatment given by these visiting doctors was under supervision of replying opposite party. It is stated that "Braces" were advised to the complainant by Dr. Rahul Paul, the fee and other charges were also settled between Dr. Rahul Paul and complainant. It is stated that the treatment schedule followed by complainant was as per advice of Dr. Rahul Paul. It is stated that no treatment was given by the replying OP to the complainant. It is denied that complainant visited the clinic of replying opposite, for removal/extraction of teeth or the replying opposite party removed the teeth of complainant and a sum of Rs. 400/- was charged for the

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extraction of said tooth. It is stated that on 05.11.2014 the complainant visited the clinic of OP No.1 complaining of pain in tooth and on examination she was advised medicines. It is stated that at no point of time, the replying OP advised the braces or extraction of tooth to the complainant. It is stated that pain and suffering of complainant cannot be attributed to the replying OP.

10. It is very much clear from the forgoing discussion and record of the case file that the complainant's plea is that she had taken treatment from OP No.1 on 29.01.2012 so far applying of braces are concerned, for which Rs.25,000/- were paid by the complainant to the OP No.1. It is further plea of the complainant that thereafter on 05.11.2014 the complainant visited the clinic of OP No.1 having pain in left side molar tooth for which OP prescribed medicines to be taken for 3-4 days and also advised extraction of tooth after reducing of swelling by intake of medicines. The further plea of the complainant is that after taking medicine, she immediately went to the clinic of OP No.1, where extraction of tooth was done by the OP No.1 by doing drilling process and Rs.400/- were charged, though it was settled for Rs.200/-. Hence, two things emerge, one that the complainant took treatment of applying of braces and thereafter extraction of molar tooth and the complainant suffered pain after extraction of tooth and pain was not reduced even after taking of medicines prescribed by the OP No.1. The further fact which emerges from the record is that when the complainant could not recover from the pain then she was advised by her Mausi and brother to visit DDU hospital for the treatment of the same. It is also the plea of the complainant that after taking treatment at DDU Hospital, she alongwith one of her friends visited clinic of the OP No.1 and confronted the OP No.1 with the problem and OP No.1 admitted the mistake and promised to settle the matter but the matter was not settled. The specific plea of the OP No.1 is that he has not given any treatment to the complainant that is applying of braces as well as extraction of tooth. It is also the

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stand of the OP No.1 that the same was done by visiting doctors to whom space was provided by OP No.1 against charges, in his clinic. It is stated that the alleged treatment was given to the complainant on Sunday and it is Doctor Rahul Paul who was available on Sunday and not the OP No.1. On the objection of OP No.1, the complainant impleaded other three persons as necessary parties, but later on the complaint was got dismissed against them by the complainant as not pressed. It is the complainant who has come to this Commission by filing complaint for the redressal of her grievance and the stand of the OP No.1 is that of total denial. Therefore, it was for the complainant to prove her case by leading cogent and reliable evidence against the OP No.1. The complainant's plea is that she was advised by her Mausi and brother to go to DDU hospital for the treatment because OP No.1 has given wrong treatment to her. The complainant in order to prove her allegations against the OP No.1 at the stage of evidence has not filed a detailed affidavit as was required, but has filed a short affidavit and the perusal of the same goes to show that the affidavit does not support the allegations levelled in the complaint. Further, the complainant has also filed affidavit of her brother Vivek Mehta. Again it is a short affidavit and he in his affidavit has nowhere stated that the OP No.1 treated the complainant in his presence, though, he has stated that he used to drop her sister at lift and take her back to home from lift and come to know about treatment for his sister, meaning thereby that he has not visited the clinic of the OP No.1 and has not seen whether it is the OP No.1 who had actually treated the complainant. The complainant has not filed the affidavits of her Mausi and friend to prove the facts mentioned in the complaint. The record further reveals that the stand of the OP No.1 throughout is consistent right from reply to legal notice. In reply to legal notice, it is specifically mentioned that OP No.1 has not given treatment and treatment was given by the doctors mentioned in the reply to the legal notice as well as reply to the

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complaint. No doubt OP No.1 is owner of the clinic and three named doctors used to use the clinic of the OP No.1 for treating the patients against charges, but again it is for the complainant to prove her case against the OP No.1. It has also emerged from the record that the complainant has taken treatment on Sunday and as per the record and plea of the OP No.1, it is Doctor Rahul Paul, Orthodontics, who was available on Sunday and not the OP No.1. The complainant through evidence on record has not been able to show that the molar tooth was extracted by the OP No.1. The complainant has given specific dates of her visits to clinic of OP No.1 but has not given the specific date on which the extraction of tooth was taken place. It was for the complainant to plead and prove her case and allegations when the stand of the OP No.1 right from the reply to legal notice was that he has not given any treatment to the complainant except prescribing some medicines on 05.11.2014. The complainant in addition to evidence produced also tried to prove her stand from the reply of OP No.4, though later on the complaint was got dismissed against the OP No.4, but the version of the OP No.4 was on the basis of knowledge she derived from the record and the said record has not been produced in evidence. Further, the complainant has put reliance upon the documents regarding her treatment at DDU Hospital Shimla. This is pertaining to problem regarding extraction of tooth and not about applying of braces. The complainant is claiming refund of Rs.25,000/- stated to have been paid by the complainant to the OP No.1 and has not claimed any amount on account of wrong process regarding extraction of tooth and pain suffered thereafter. Hence, as per the material available on record we are of the considered opinion that the evidence produced by the complainant is not sufficient to prove the allegations levelled against the OP No.1 in the complaint. Accordingly, it is held that the complainant through evidence on the record, has not been able to prove her case against the OP, and the complaint deserves to be dismissed.

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11. In view of the foregoing discussion and reasons assigned therein the complaint is ordered to be dismissed, leaving the parties to bear their own costs. Pending application(s), if any, shall also stands disposed of. Copy of this order be supplied to the parties free of cost as per rule. The file after its due completion be consigned to the Record Room. Announced on this the 13^thday of March, 2024.

(Dr. Baldev Singh)

President

(Yogita Dutta) (Jagdev Singh Raitka)

*GUPTA* Member Member