Judgment:
Mrs. Devinderjit Dhatt, Member:
1. This is an appeal filed by the OP against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh dated 6.10.2008 passed in complaint case No. 300 of 2008. The contextual facts in brief are as under.
2. In his case before the Forum, the complainant Sh. Krishan Lal Nandwani set up a case of negligence in treatment of dental problems by Dr. Sandeep Verma. It is stated that OP doctor advised him to get the teeth Nos. 14, 15, 16, 33, 34, 35, 44, 45, 46 implanted. It is the say of the complainant that out of total fee payable Rs. 15,750, Rs. 5000 were paid in advance and balance amount of Rs. 10,750 were paid on 2.1.2008, as per copy of prescription and receipt of payment on record as Annexure C-1. The complainant has averred that he felt uneasiness as the implanted teeth were causing pain in the gums and were not properly fixed. The complainant visited the doctor time and again bringing to his notice the improper fitting of the teeth, however he was assured that the same will get set after some time but there was no improvement and he had severe pain in the gums for which some gum paint was applied as per advice of the doctor. He again visited the doctor who advised that remedy is to cut a cap over the teeth for extracting the implanted teeth, otherwise the teeth can break. It is stated by the complainant that he did not agree to the advice of the doctor and left his clinic. Thereafter he visited another doctor who extracted the teeth implanted in a faulty manner by the OP doctor. It is alleged that the next doctor cut a cap as the teeth implanted by OP doctor were not getting proper support of caping. The complainant has alleged that he spent another amount of Rs. 2000 for treatment by the next doctor. It is alleged by the complainant that the OP doctor is not properly qualified and is misleading the patients by claiming himself to be a dental surgeon. Legal notice was served upon the OP doctor, copy of which is Annexure C-2. It is alleged by the complainant that the cover/envelop of notice shows that it was returned in a mutilated condition which leads to be conclusion that contents of the envelope were read and returned thereafter sometime. It is alleged by the complainant that Dr.Verma is not duly authorized to run the clinic under the law as he is not a qualified doctor. The complainant has claimed a compensation of Rs. 70,750 and a prayer has been made to take a suitable action against the respondent in case the Forum comes to a conclusion that he is not duly authorized to run the dental clinic, as per law.
3. In the reply filed by the OP doctor, the preliminary objections taken is that the complainant has not approached the Forum with clean hands. It is also submitted that doctor never treated the complainant and no services were rendered due to which the complaint is not maintainable. It is stated that complaint has been filed on the basis of a cancelled/scored out estimate/advice on the letterhead of the doctor. The complainant could not show that any services were hired by him on account of which, his complaint deserves to be dismissed. It is stated that Forum has no jurisdiction to entertain the complaint as no services were availed and relationship of consumer and the service provider is not established.
In reply on merits, para No. 1 is denied for want of knowledge. It is submitted that complainant took advice and estimate of the expenses for bridging of teeth Nos. 14, 15, 16, 33, 34, 35, 44, 45, 46 for which amount of Rs. 15,750 approximately was to be charged. It is stated that the complainant showed reluctance and the same was scored out. It is denied that any treatment was given. It is alleged that the complainant is misleading the Court as the estimate and advice written on a letter pad (C-1) scored out later on, is being misused. It is submitted that annexure C-1 is not a prescription slip but a cancelled estimate and advice on the letter pad of the respondent. It is submitted that a perusal of the cancelled bill shows that the OP advised the complainant to get his 9 teeth bridged and there is no mention of implantation. It is denied that any medication or trial on the teeth of the complainant was done. It is submitted that implantation and bridge are two different treatments, the complainant has used these terms to mislead the Court. The averment that the OP is not a qualified doctor is not only defamatory but also amounts to doubting the integrity of respondent. It is submitted that he is holding a degree of Bachelor of Dental Surgery by the Himachal Pradesh University, Shimla and is registered with Punjab Dental Council, as proved by the copies of degree and certificate of registration on record vide Annexure R-3 and R-4. The receipt of the notice as alleged has been denied. It is reiterated that advice was given free of cost. A prayer has been made to dismiss the complaint with heavy costs as the complainant is trying to misuse the process of law.
4. In evidence, the complainant Sh. Krishan Lal has filed his evidence by way of affidavit along with Annexures C-1 and C-2 whereas Dr. Sandeep Verma has filed his affidavit along with copy of dental implant, copy of degree and certificate of registration.
5. The District Forum accepted the complaint and directed the OP doctor to refund the amount of Rs. 15,750 and to pay Rs. 15,000 as compensation to the complainant within 30 days from the date of receipt of copy of the order failing which interest @ 15% p.a. shall accrue on the amount of Rs. 15,750 w.e.f. 2.1.2008 and interest on Rs. 15,000 (compensation) shall start from 19.3.2008 till realization. Rs. 2200 were awarded towards costs of litigation.
6. Aggrieved against the order of the District Forum, the present appeal has been filed pleading inter alia that the impugned order by District Forum is against the facts and law. It is submitted by the appellant that District Forum failed to take note that in his complaint no date has been mentioned when the extraction was given by the appellant, which proves that the complaint is based on wholly flimsy and frivolous reasons. The challenge to the impugned order is on account of the fact that the Forum placed reliance on Annexure C-1 which was an estimate given by the appellant. It is the say of appellant that assuming for the sake of argument the averment of the complainant to be true that appellant placed the bridges on teeth Nos. 14, 15, 16, 33, 34, 35, 44, 45, 46 then it cannot be accepted as a case of medical negligence as no deficiency of service is made out. It is submitted that Annexure C-6 issued by Oral Rehabilitation, SCO No. 20, 1st Floor, Sector 34-C, Chandigarh, etc. mentions some tablet (pain killer) was advised for four days, gum paint was advised and it is mentioned that extraction of 45 is to be removed. The appellant has submitted that there is no record to prove that any extraction was made. The next appointment was given after seven days, but is no record produced by the complainant of his visit after 7 days. The same demonstrates that no follow up was done by the complainant. In the margin of Annexure C-6 an amount of Rs. 100 is mentioned as paid. The history given at the Oral Rehabilitation and Centre shows that bridge was placed 20 days back. There is no mention with regard to any treatment given to the bridge, the complainant has not placed on record any other treatment by this centre. Thereafter on 15.4.2008 the complainant visited Swaran Dental Clinic in Sector 27, Chandigarh with the symptoms of pain in the left side of the face. The diagram shows that there was some problem in teeth No. 5 and history of swelling was mentioned. The appellant has submitted that perusal of nnexure C-6, C-7 shows that nnexure C-7 is part of C-10 and followup checkup relates to Annexure C-8 only which means that no extraction was made on 15.4.2008 by Dr. Kanwaljit Saini and pain killer was given for swelling, bridges already laid were not found to be faulty as no extraction was performed. Hence the history of the treatment claimed to be taken from appellant and thereafter from Sector 34 and Swaran Dental Clinics, Sector 27 shows that only pain killers were given. Neither of the subsequent doctor has mentioned any fault with the bridge, further there is no averment even that any bridge has been removed till date by any of the doctors. Once the complainant is enjoying the placement of the bridge, he cannot be entitled to any compensation or damages and the deficient services have been averred only to blackmail the doctor by alleging pain and swelling. The appellant has assailed the impugned order on the ground that the Forum allowed the complaint by failing to take into account that the instant complaint was misuse of the process of law. The challenge to the impugned order is also on the ground that no expert opinion has been placed on record to prove that there was any defect in the bridge and the same was removed to give relief to the OP. The followup treatment was taken to be the expert opinion by the District Forum as its finding of defect in the implant was an error committed by the Forum and same was contrary to the pleadings and without any evidence on the removal of bridge and thus the Forum drew a presumption beyond the scope of law. It is contended by the appellant that impugned order is based on surmises and conjectures and it is an example of injudiciousness and misuse of powers by penalizing the doctor without any fault having been proved against him. The appellant has contended that the District Forum allowed the claim and ignored the pleading of the complainant regarding he being an unqualified and having conducted surgery without any experience and qualification. It is submitted that the order of the District Forum is totally erroneous as the pleading in the complaint relates to implant, however the estimate relates to bridge. Thus the evidence being totally contrary to the pleading on which the District Forum failed to express any opinion, though this point was specifically argued. A prayer has been made to set aside the impugned order and to accept the appeal with costs.
7. Aggrieved against the order of the District Forum, the cross-appeal has been filed by the complainant pleading inter alia that though the District Forum accepted his complaint by directing the OP doctor to refund Rs. 15,750 paid by him and awarded a sum of Rs. 15,000 as compensation, Rs. 2000 as litigation costs, however the Forum failed to take into account the great pain and mental agony suffered by the complainant due to medical negligence and deficient services rendered by the doctor as it is admitted that treatment for the teeth as stated in the complaint was taken and then there was no occasion for the Forum to award less amount and thus the impugned order is liable to be modified as per prayer clause of the complainant. The impugned order has been challenged on the ground that Forum failed to take cognizance of the fact that getting the treatment on which the hefty amount was spent, the amount of Rs. 15,000 awarded by the Forum on account of pain and suffering undergone by him is on much lower side. It is contended by the cross appellant that he is suffering a recurring loss due to the negligence of the respondent. The original teeth of cross-appellant have been destroyed which is an irreparable loss to him and big amount of money are being spent for the treatment. Thus the order of the District Forum is erroneous and illegal as it failed to take into account subsequent sufferance of the complainant. The cross-appellant has urged that the District Forum awarded interest on the compensation amount only in the event of default in the payment after 30 days. It is submitted that interest on this amount also ought to have been imposed on account of medical negligence. Further the sum of Rs. 2,200 awarded for litigation expenses is much on the lower side as it is difficult to engage a lawyer for a sum of Rs. 2,200. A prayer has been made to award Rs. 70,750 as per prayer clause of the complainant and to accept this cross-appeal.
8. Adverting to the merit of appeal : after perusal of pleadings of the parties, record of the case, impugned order and the grounds of appeal, we are of the considered opinion that contention of appellant has merit that the District Forum has granted the relief which cannot be upheld on the basis of pleadings of the complainant and thus the impugned order cannot be sustained. We have carefully gone through the complaint and noted that the averment of the complainant pertains to improper/deficient treatment given to him by the doctor for implanting his teeth Nos. 14, 15, 16, 33, 34, 35, 44, 45, 46. There is no record to substantiate that any implants were got fixed by the complainant from the OP doctor. The Annexure C-1 mentions the charges of bridging on 9 teeth as stated above. It is contextual to mention that there is a distinct procedure for implanting the teeth and making bridges on the same. The cost of an implant and bridge is substantially different, hence the pleading of the complainant on the basis of Annexure C-1 which mentions the procedure of bridging, does not support his case. Even if we ignore this technical aspect of the matter and accept the submission of the complainant that he has wrongly averred in the complaint that the treatment was for implant while it was for bridging of his teeth, does not adequately support his case. Firstly there is no proof of complainant having paid the consideration for the bridging procedure even. The only document in support of this plea on record Annexure C-1 has been scored out and thus it cannot be accepted as a valid document to prove the payment of consideration, specially when all the contents of the same have been cancelled. Thus the complainant has not been able to prove in the absence of a proper receipt that he had paid consideration for hiring the services as required under the CPA. Even if we believe the version of the complainant that this document was scored off by the doctor with a view to mislead, there is no evidence on record that bridge put on his teeth by the doctor was faulty as alleged. The complainant has admittedly visited two dental clinics subsequent to the treatment given by the appellant, though some treatment has been given by the subsequent doctors but neither of them has even made any observation about the imperfection in the dental treatment given by the appellant Dr. Verma. As per latest law on the point, to proceed with a case of medical negligence, the redressal agencies have to ensure that there is some expert evidence on record and in the absence of which the bald averments of the complainant cannot be accepted. The Honble Supreme Court in a recent judgment I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC)=2009 (1) CCC 22 (NS) titled as Martin F. DSouza v. Mohd. Ishfaq, held as under:
â123. The Courts and Consumer Fora are not experts in medical science, and must not substantiate their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their hipocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
124. It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best efforts of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.â
9. In conclusion, the impugned order accepting the complaint is against the record as the averments of the complainant have been accepted though are not supported by the evidence and in fact his pleadings and the evidence are at variance. The payment of consideration for hiring the services of the appellant doctor has not been adequately proved by Annexure C-1. Neither of the two doctors consulted subsequently have made any mention even about any shortcoming or imperfection in the treatment or in the manner of performance of bridging procedure (even if we assume that same was done by the appellant doctor). The case of the complainant has not been supported on any account as per requirement of law, hence the impugned order accepting the complaint cannot be sustained and the same is set aside. There is no document by any of the two doctors consulted thereafter that the bridges made by the appellant has been extracted subsequently by any of the doctors from whom the treatment was taken later on the appellant. The complainant has not been able to prove that he had got the extracted the bridges made by the appellant doctor, there is no document on record to prove the same. Viewed from any angle, the impugned order cannot be sustained and the same is set aside. The appeal on the grounds stated above is accepted, however there is no order as to costs.
10. With regard to cross appeal No. 18 of 2009 the prayer of the complainant for enhancing the compensation cannot be gone into, in view of our order in the appeal whereby the complaint is dismissed by setting aside the impugned order. In conclusion, we hold that complainant could not establish his case as per requirement of law. The cross appeal is dismissed, however without any order as to costs. The appeal filed by Dr. Sandeep Verma is accepted and the complaint is dismissed.
11. Copies of this order be sent to the parties, free of charge.