By Sri. MOHANDASAN.K, PRESIDENT
1. The complainant approached the opposite party on 10/12/2018 for a denture and the assistants of the opposite party took the measurement. The complainant demanded white color denture which is to be good quality and the opposite party said that it will worth Rs. 12,000/-. The opposite party instructed the complainant to pay an advance amount of Rs.2,000/- and the complainant paid Rs.2,000/- to the opposite party on 10/12/2018 and asked for the bill. But the opposite party stated that the bill will be issued at the time of final settlement. Thereafter one week the opposite party called the complainant over phone and informed that the denture is ready. Since the complainant was laid up, he approached the opposite party after 4 days and the opposite party issued denture to the complainant. The opposite party demanded balance amount of 10,000/-. But the complainant was having only 8,000/- rupees and that was paid to the opposite party and also assured that he will give balance 2,000/- rupees on the next day itself. On the next day the complainant approached the opposite party with 2,000/- rupees and on receipt of denture the complainant could note the color of the denture as yellow and on stating the fact to the opposite party, the opposite party said that it will become white after use of few days. The complainant also experienced that the denture was not suitable to the gum and it was found that lower side of the denture with more width and so he could not chew food articles and also could not swallow the saliva. The complainant also talked about the defects to the opposite party and then the opposite party said that it will be alright gradually.
2. The complainant was unable to use denture even once and he found that the denture was not suitable to him. The complainant alleges the measurement was wrongly taken. It is also alleged that denture crafted as rough instead of soft. It is also found lower side of denture was sharp and with more width. In short, the denture crafted by the opposite party was not suitable to the complainant. All these facts were revealed to the opposite party at the first instance itself. But the opposite party did not accept the same. Then the opposite party on the basis of the dispute prepared to ignore the balance amount of 2,000/-. The opposite party has not issued receipt for the same. Though the complainant asked for the bill the opposite party neglected the request of the complainant. The complainant tried to use the denture thereafter so many occasions but he could not use the same. On 25/02/2019 the complainant along with son of his brother approached the opposite party and insisted for the receipt of Rs.10,000/ paid by the complainant, then the opposite party issued an invoice number 145507013 with day of visit on 10/12/2018. The invoice also stated that there is a balance of 2,000/- rupees. The complainant submit that he subsequently came to know that the denture was crafted by the opposite party itself.
3. The complainant approached the opposite party thrice for taking measurement and he had made available for the proper crafting and fixing of the denture. But due to mistaken measurement he could not use the denture and he was not able to have food and the opposite party made believe the complainant that it will be alright after few days. The complainant alleges deficiency in service and unfair trade practice against the opposite party and the complainant is entitled for the
compensation for the same.
4. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed version. The opposite party denied the entire averments and allegations and contended that the complainant is not maintainable, not entitled for any claim or relief as prayed and there is no negligence, carelessness or deficiency in service and also stated the complainant is not a consumer.
5. The opposite party submitted that he examined and treated the complainant as per the universally accepted standard dental protocol bestowing all care, caution and attention. The complainant approached this commission not with clean hands, it appears suppressed true facts with untenable unsustainable and misleading allegations and appears to make unjust enrichment at the expenses of the opposite party. The complainant not produced the treatment records in his possession and willfully suppressed the relevant and material facts and documents, as per the production of the same would belie and discredit the case and claim of the complainant.
6. The opposite party is well experienced, qualifying and reputed dental surgeon. He completed his BDS from the government dental college, Calicut in 1990, from 1991 to 1995 he was working at and was to a partner of modern dental clinic, Manjeri and thereafter he had setup his own dental clinic viz caramel dental clinic in 1996, which is a fully equipped clinic with the state-of-the-art equipment and dental instrument. Apart from the opposite party and his wife who is also a dental surgeon, thereafter three junior doctors, besides visiting consultants of different specialty like orthodontics, prosthodontics, endodontics, periodontics, pedodontics, implantology and oral maxillofacial surgery.
7. The opposite party submitted that the complainant is his old patient, who had in fact done a complete denture work around 18 years back from the opposite party. The opposite party had fabricated and delivered the denture to him and for the last 18 years he was using it without any complaints, and with utmost satisfaction and comfort. The complainant had come to the clinic of the opposite party around a year back expressing his desire to change the existing old denture and enquired about the cost of a new denture. After being apprised of the different options availed and the cost there off the complainant had again come on 10/12/2018 for the new denture work which was costing Rs.12,000/-. On the said date preliminary impression was taken, and the complainant had paid Rs.2,000/- as advance and he was advised to come on 12/12/2018 for taking the final impression and to make the balance payment. The complainant had come on 13/12/2018 for taking the final impression and bite registration. Though the complainant has to be paid the balance amount that day, no payment was made and the complainant had assured payment on next day. Thereafter the complainant made a part payment of Rs.8,000/- towards the balance amount on 20/12/2018 and had collected a receipt for the payment made and indicating the balance amount payable. All payments were duly acknowledged through SMS as well being the practice followed in the clinic of the opposite party.
8. On 10/01/2018 trial denture inception was done and the complainant was fully satisfied with the fitting and color of the same. Upon getting the confirmation from the complainant the denture was fabricated and delivered on 12/01/2019 and the complainant had taken delivery of the same expressing his complete satisfaction. The complainant had agreed to pay the balance amount of Rs.2,000/- within a week. When the complainant did not turn-up as promised, he was gently reminding the balance due and he had refused to make the balance payment. The complainant had left the clinic infuriated as his demand was not accommodated. The present complaint appears to be an off shoot of the ill will and hatred harbored by the complainant on account of an improperly perceived indignation and insult for not providing and inflated bill as demanded. There were no complaints with the treatment or the denture. There is no wrong with denture fabricated and supplied to the complainant. The opposite party submitted that the same would be evident if the same is got verified by any expert as deemed fit by this Commission. The color is natural shade selected as per the universal standard, wiz A2 shade as per the beta shade guide which is standard and appropriate in the Indian context, approved by the complainant and naturel shade especially for a patient like the complainant who was around 80 years of age. Pure white color is not recommended for the reasons as it will look odd and artificial as well. During the trial stage the complainant had seen and approved the color/ shade of the teeth on the trial denture.
9. The complainant was treated by the opposite party as per the standard accepted dental protocol. The measurement taken and the denture fabricated by the opposite party and the same is not having any defect as alleged and the complainant is using the same without any problem. Opposite party submitted that like any other new denture there would be some initial discomfort which is natural and he cannot expect the same feel as that of the old denture he was using for the last 18 years, and minor corrections, if any required need alone be done, but for which the complainant has to approach the opposite party. This could be evident and clearly demonstrated by an expert examination of the complainant and the denture, and the complainant is liable to be directed to take steps to subject himself and the denture to an expert examination and a report called for. The opposite party submitted that if the complainant fails to take such steps which bound to do to discharge hi burden of proof. The opposite party prayed permission to take such steps at the expense of the complainant and also sought direction to deposit requisite expense by the complainant before the commission. The opposite party prayed for the balance amount of Rs.2,000/- from the complainant.
10. The opposite party specifically denied the entire allegations of the complainant in the complaint that the measurements were taken by the alleged employees in the clinic, that Rs.12,000/- was for the white teeth demanded by him, that bills were not issued that the denture supplied have yellow teeth, that the opposite party stated that the color would became white once put to use, that the denture was ill fitting with rough surface , that the complainant cannot chew or even swallow saliva that opposite party assured that all these would be automatically corrected in due course etc. are all assertions without any truth or bonofidies. The opposite party also denied the allegation that the denture is unfit for use and he cannot use it, that the opposite party had waved the balance amount due and payable by the complainant, that there was refusal to issue bills , that a bill/receipt had to be procured in the manner graphically stated in the complaint, that the denture fabricated and supplied by the opposite party is having wrong measurements, the complainant is not able to eat , that there was false representation from the part of the opposite party that there is deficiency in service and unfair trade practice on the part of the opposite party that the complainant is entitled to get compensation etc. are not proper correct or sustainable, lacking in truth and bonofidies being ironies, ill motivated and baseless. It is also submitted that there is no dispute regarding the amounts payable and paid, nor is there a case of any overcharging. It is also submitted there is no loss, hardship or damage has been caused to the complainant on account of the opposite party. The opposite party had provided appropriate treatment as the situation warranted and fabricated and supplied a proper and correct denture. Hence the prayer is to dismiss the complaint awarding compensatory cost as contemplated under section 26 of Consumer Protection Act.
11. The complainant and opposite party filed affidavit and documents. The document on the side of complainant marked as Ext. A1. No document is on the side of opposite party. The complainant was examined as through a commission and the report is marked as Ext. C1. Ext. A1 is invoice number 145507013 dated 25/02/2019.
12. Heard both sides, perused affidavit and document.
The following points arise for consideration
- Whether the denture was defective
- Whether there is deficiency in service on the part of the opposite party
- Relief and cost
13. Point No. 1 and 2
The opposite party admitted that the complainant had approached for denture and it was crafted and provided to the complainant. But the complainant submitted that he was unable to use denture even once and he found that the denture was not suitable to him. Complainant alleges the measurement was wrongly taken and also alleged the denture crafted as rough instead of soft. The complainant also alleged the lower side of denture was sharp and with more width. The complexion was also not as demanded by the complainant. The complainant alleged non issuances of receipt for advance payment of Rs.2,000/-.
14. The opposite party contended that the complainant is his old patient and he had done a complete denture work around 18 years ago from the opposite party. The complainant was in use of the denture for the last 18 years without any complaint and with utmost satisfaction and comfort. But during the period of complaint the complainant approached the opposite party one year ago and expressed his desire to change the existing old denture and enquired the cost of new denture. Thereafter on 10/12/2018 the complainant entrusted denture work with opposite party costing 12,000/- rupees. Accordingly preliminary impression was taken and the complainant had paid Rs.2,000/- as advance and he was advised to come on 12/12/2018 for taking the final impression and also to make the balance payment. The complainant reported before opposite party on 13/12/2018 for taking the final impression and bit registration. But the complainant did not pay the balance amount and assured to pay on next day. The complainant made a part payment of Rs.8,000/- towards the balance amount on 20/12/2018 and had collected a receipt for the payment, indicating the balance amount payable. The opposite party contended that all payments were duly acknowledged through SMS, being the practice followed in the clinic of the opposite party. The opposite party submitted about his qualification as well as the experience in the field of dental management.
15. There is no dispute that the complainant was in use of denture crafted by the opposite party for the last several years. The complainant approached the opposite party for denture during the complaint period from the experience of previous denture work but the complainant submit that he was unable to use denture even once and he submitted that the denture was not suitable to his gum. The complainant alleges the measurement was wrongly taken and also crafted as rough instead of soft. The contention of the opposite party is that the allegation of the complainant is to be proved through an expert examination. The complainant failed to take steps for the same. The opposite party had submitted that if the permission to take such steps is given, the opposite party is prepared to do the same at the expense of complainant. But the opposite party has not taken any steps to prove the same through an expert. The Commission consider that the complainant is suitable person to state that whether the denture is suitable or not to his gum as contended by the complainant. The opposite party also had contended that the insertion of fresh denture will definitely result some inconvenience at the first time use and it will be alright after using certain period. It is also submitted by the opposite party that the complainant was in use of denture for the last 18 years and it is quite natural the fresh denture makes some initial inconvenience to the complainant. But the submission of the complainant is that he could not use denture even once. So, we find that there is merit in the contention of the complainant that the denture crafted by the opposite party itself was not suitable to the complainant. There is no other reason to make a complaint against the opposite party since the complainant was an old client of the opposite party. It is also right to hold that the opposite party had not issued proper receipt for advance payment of Rs.2,000/-. The opposite party do not dispute Ex. A1 document. The document is dated 25/02/2019 and which reveals the opposite party collected Rs.10,000/- and the date of visit as 10/12/2018. As per the document total amount due on 25/02/2019 is Rs.2,000/-. The opposite party contended that the complainant had paid Rs.2,000/- on 10/12/2018, but not denied the allegation of the complainant that the receipt for the same was not issued to the complainant. The contention of the opposite party is correct that regarding the transaction amount there is no dispute. But the fact remains that the opposite party had not issued proper receipt for advance payment and also failed to produce the communication of the same through SMS. The opposite party during the examination of the complainant suggested that the complainant demanded issuance of a bill for Rs.25,000/- and on denial of the same the present complaint filed by the complainant. It is also submitted by the opposite party that the demand for payment of balance amount 2,000/- provoked the complainant to file the complaint. But the opposite party could not establish the above contentions. Moreover, it is not trustworthy to accept the story that the complainant demanded a bill for Rs.25,000/- after remitting 10,000/-. Hence considering the averments of the both parties, we find the contention of the complainant is more trustworthy and we accept the same. The Commission finds that there is defective crafting of denture and non-issuance of receipt for the advance payments, which amounts deficiency of service as well as unfair trade practice and we finds the first and second point accordingly.
16. Point 3
The admitted fact is that the complainant paid Rs.10,000/- to the opposite party towards the denture. Actually, the complainant is bound to pay Rs.12,000/- to the opposite party. Considering the nature of transaction and exact amount received by the opposite party it will be proper to direct refund of the amount paid by the complainant to the opposite party i.e., 10,000/- rupees. The complainant has got a case that he could not use the denture even at once. So, he might have caused much hardships and inconvenience due to the act of the opposite party. We consider Rs.10,000/- as compensation on account of defective and deficient service on the part of the opposite party and there by caused inconvenience and hardship to the complainant. We also allow Rs.5,000/- as cost of the proceedings.
17. In the light of above facts and circumstances we allow this complaint as follows: -
- The opposite party is directed to refund Rs.10,000/- to the complainant, the cost of denture.
- The opposite party is directed to pay Rs.10,000/- to the complainant on account of defective and deficient service on the part of the opposite party and thereby caused hardships and inconveniences to the complainant.
- The opposite party is directed to pay Rs.5,000/- as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy this order, failing which the complainant is entitled for interest at the rate of 9% per annum for the aforesaid entire amount from the date of complaint till realization.
Dated this 28th day of October, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1
Ext.A1: Invoice number 145507013 dated 25/02/2019
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Ext. C1: Commission report
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
VPH
