Haryana

StateCommission

A/730/2018

PAWAN KUMAR SHUKLA - Complainant(s)

Versus

DR. S.PARASHAR - Opp.Party(s)

ANIRUDH KUSH

05 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                               

                                                         First Appeal No.730 of 2018

                                                Date of Institution: 05.06.2018

                                                         Date of Order: 05.07.2023

 

Pawan Kumar Shukla S/o Late Shri BanarsiDass Shukla, R/o H.No. B-2, 2060, Baragi Mohalla, Pinjore, Distt. Panchkula, Haryana.

…..Appellant

Versus

Dr. S.Parashar, Dental Clinic, Shop No.2,Nalagarh Road, Near Ravidas Mandir, Pinjore, Distt. Panchkula, Haryana.

…..Respondent

CORAM:    Mr.S.P.Sood, Judicial  Member

                  

Present:-    Mr. Anirudh Kush, Advocate for theappellant as well as Mr. Pawan Kumar Shukla appellant in person.

                   Dr.S.Parasar respondent in person.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.730 of 2018 has been filed against the order dated 16.05.2018 of the District Consumer Disputes Redressal Forum, Panchkula(In short “District Commission”) in Consumer Complaint No.235 of 2017, which was dismissed.

2.      The brief facts of the case are that complainant  approached the opposite party for dental treatment as he had some problem in his teeth. The opposite party advised him to go for complete artificial teeth supported with bridges as it looks just like natural teeth and also offered guarantee of replacement in case of any breakage or damage to this system. The complainant availed the best plan and paid Rs.90,000/- after withdrawing it from his ATM for the package. However, after one month of the treatment, two teeth broke down. Faced with this situation, he requested to replace the broken teeth but to no avail. However, the OP got prepared three bridges of teeth from Panchkula Lab for which OP charged Rs.1900/- per bridge.  He visited the OP clinic for treatment of his dental problems and to get some relief but it caused and resulted into more harm instead of some benefit due to sheer negligence on the part of the OP. In the month of January 2017 OP again sent the bridge into the Lab for reconstruction but finally the bridge did not fit in his mouth and it was too loose that it used to fall from his mouth. Further during his treatment OP negligently damaged complainants nerves leading to his ear which caused damage to the right his ear drum.This is how he suffered loss to his right ear and was not even able to chew his meals almost seven to eight months at a stretch.Thereafter he requested the OP to replace the teeth and bridge, but, OP did not do the same.  Faced with this situation, he served a legal notice dated 11.09.2017 to the OP, still he failed to refund the amount. Thus there was deficiency in service as well as negligence on the part of the OP, hence the complaint.

3.      Upon notice, OP appeared and filed written statement of defence. OP submitted that the complainant was a long time patient of different diseases/ailments and undergoing treatments for these ailments but was never satisfied with any treatment.  From February 2015 to November 2016, he had undergone treatment at Bhojia Dental college, Baddi (HP) but was not satisfied and had always told the OP that he suffered pain in his ear due to a trauma to his ear since long back in which his eardrum was damaged and since 2010, he was also undergoing treatment at Chandigarh GMCH Sector 32, Chandigarh and various other private clinics for psychiatry also. He was suffering from the ailment of teeth, ear and brain prior to coming to OP on 30.11.2016.  He had taken dental treatment from Dental Hospital, Baddi in the year 2015. On 12.02.2016, 4 different bridges were fixed in all the 4 corners of the mouth of the complainant and three unit bridge on lower left side on 02.03.2016.4 unit bridge on upper left side on 21.03.2016, 3 implant abutments with lower right side on 13.04.2016 , three unit bridge on the upper right side on 25.04.2016.  He again went to the hospital at Baddi  to get the bridge with upper right side removed, which was fixed on that very day, but treating doctors told him  about the ill consequences of the bridge removal, but, complainant did not listen, but the same was got removed and refixed on 27.06.2016.  Another bridges were again got removed and refixed on 22.11.2016. The complainant was not satisfied with the treatment of Baddi Hospital.  The complainant has taken treatment from PGI Chandigarh. The complainant was also suffering from brain atrophy and other ailments of brain.  On 30.11.2016, the cost of treatment was settled at Rs.82000/- including removal of 4 previously fixed bridges by “Bhojla Dental college and Hospital, Baddi, RCT of 6 teeth and crown and bridge with 25 teeth. The complainant made a payment of Rs.25000/- through ATM Transaction, but, no formal treatment was started. The treating doctors asked for  additional cost of Rs.8000/- for RCT and complainant was agreed. Within one week, the OPs conducted RCT and crown preparations on the upper right side, impressions were recorded for 14 unit upper  and lower right side and old four crowns were removed.  It was denied that guarantee of replacement was given on breakage of the teeth. The complainant visited the OP for 2-3 times and stated that he was having little bit of discomfort. Thereafter the complainant never visited the OP with any complaint. Thus there was no deficiency  in service as well as negligence on the part of the OP and prayed for dismissal of the complaint.

4.      After hearing the counsel for the parties, the learned District Commission, Panchkulahas dismissedthe complaint vide order dated 16.05.2018.

5.      Feeling aggrieved therefrom, complainant-appellant has preferred this appeal.

6.      These arguments have been advanced by Mr. Anirudh Kush, Advocate for theappellant as well as Mr. Pawan Kumar Shukla appellant in person and Dr.S.Parasar respondent in person. With their kind assistance the entire record of the appealas well as the original record of the District Commission including whatever evidence has been led on behalf of the parties had also been properly perused and examined.

7.      It is not disputed that the complainant approached the OP in the month of November for dental treatment and paid Rs.90,000/-.  As per Annexure R-2, the complainant was also treated by Bhojia Dental College & Hospital  before coming to OP.     The treating doctors of Bhojia Dental College and Hospital treated the complainant from 14.11.2015 to 29.11.2016( as per the treatment record Annexure R-2).  It is also not disputed that before fixing the implantation of teeth, the complainant was also suffering from brain diseases as per Annexure R-3 dated 10.03.2010. The plea of the complainant that ear drum was affected due to fixation of teeth is not tenable because as per Annexure R-3A, the complainant was already suffering from hearing problem from the year 2010.   The whole file disclosed that before starting the treatment including removal of 4 fixed bridges by previous doctors , RTC of six teeth and crown and bridge with 25 teeth, the complainant was suffering from different types of diseases like brain and  ear problem.  So there was no medical negligence on the part of the treating doctors. The complainant has already taken treatment from several hospitals.

8.      Having considered the facts and circumstances of the case and documents available on record we are of the considered opinion that there was no negligence on the part of the respondent. The complainant has failed to produce on record even an iota of evidence to prove his case against the respondent. Mere allegations levelled in the complaint and by filing affidavit to our mind would not suffice to reach to the conclusion holding the respondent negligent in performing his duties.

It is well settled that in case of medical negligence, the onus to prove the medical negligence lies on the complainant. The Hon’ble Apex Court of India had discussed this issue in case Jacob Mathew v. State of Punjab &Anr., 122(2005) DLT 83 (SC),  wherein it was held as under:-

“The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for ti. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice, which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.

The case law supra is fully applicable in the present case.

9.      Even otherwise also in the cases of medical negligence, the sufficient and corroborative evidence has to be led chronologically to prove the medical negligence.  In the case in hand even at the cost of repetition, it is fairly apparent that the treating doctor has given best treatment to complainant, in that eventuality, the present appeal would also be not legally maintainable.

10.              Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.Hence,  the appeal stands dismissed.

11.     Applications pending, if any stand disposed of in terms of the aforesaid judgment.

12.      A copy of this judgement be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgement be uploaded forthwith on the website of the commission for the perusal of the parties.

13.    File be consigned to record room.

Date of order: 5^thJuly, 2023                                  (S. P. Sood)                                                                                                                          Judicial Member                            

 

S.K

(Pvt. Secy.)