State Consumer Disputes Redressal Commission
Dr. Neeraj Sardana vs Smt. Rashmi Kakkar And Another on 31 March, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 263 / 2007
Dr. Neeraj Sardana
......Appellant
Versus
Smt. Rashmi Kakkar and another
.....Respondents
FIRST APPEAL NO. 287 / 2007
Smt. Rashmi Kakkar
......Appellant
Versus
Dr. Neeraj Sardana and another
.....Respondents
Ms. Anupama Gautam, Learned Counsel for Dr. Neeraj Sardana
Sh. K.K. Chaturvedi, Learned Counsel for the Complainant
Sh. M.K. Kohli, Learned Counsel for the Insurance Company
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 31/03/2008
ORDER
(Per: Justice Irshad Hussain, President):
Challenge in both these appeals is to the order dated 01.08.2007 passed by the District Forum, Dehradun in consumer complaint No. 66 of 2003.
2. Complainant Smt. Rashmi Kakkar had bleeding from her teeth / gums and visited the dental surgeon Dr. Neeraj Sardana for treatment on 19.08.2002. On treatment being given, the problem was cured, but the complainant was having some problem in her right wisdom tooth. X-ray revealed that there was vertically impacted wisdom tooth and the complainant pursuant to the advice, got the same extracted by the dental surgeon on 06.11.2002. Complainant continued to had pain 2 after the extraction of the tooth despite taking the medicines prescribed by the dental surgeon. Complainant visited Dr. Mahabir Singh on 22.11.2002 and was prescribed some medicines to relieve her from post extraction tooth problem and pain. The problem and the pain continued to persist, whereupon the dental surgeon thought it proper to advice the complainant to seek second opinion from senior dental surgeon of the town Dr. L.K. Berry. Complainant visited Dr. L.K. Berry on 24.12.2002 and remained under his treatment for sometime and was also adviced x-ray, which was got done. Finally on 09.01.2003, Dr. L.K. Berry adviced the complainant to consult Dr. (Brig.) S.C. Anand, Principal and Professor of Dental College, Rohtak for further examination, investigation and treatment. Similar advice was also given by Dr. Neeraj Sardana, but the complainant went to Lucknow and got herself examined at KGMC, where it had been confirmed that her jaw had been broken, for correction of which and to get rid of the problem, required treatment was provided to the complainant there till the end of February, 2003. There is not much dispute about these facts.
3. Complainant had alleged that her jaw had been broken due to the negligent handling of her case at the time of extraction of the wisdom tooth on 06.11.2002 by the dental surgeon and that the dental surgeon even being aware of this fact, did not disclose it to her and even adviced her to visit Dr. Mahabir Singh for treatment of her post extraction problem and pain. When things did not work, only then the dental surgeon adviced the complainant to seek second opinion from Dr. L.K. Berry. According to the complainant, the dental surgeon had failed in treating her properly and with required expertise in the first place and thereafter not telling her the truth and not treating her for the broken jaw in the second place and, thus, made deficiency in service, as a result of which, she suffered great pain, harassment and 3 mental agony and had to undertake burden of extra expenses in the treatment at Lucknow also. She had claimed compensation of Rs. 1,99,000/- from the dental surgeon and the insurance company, which had issued Doctors Composite Package Insurance Policy to the dental surgeon.
4. Dental surgeon Dr. Neeraj Sardana refuted the above allegation of medical negligence on his part and not letting know the complainant that the jaw was broken at the time of the extraction of the wisdom tooth on 06.11.2002 and gave out that the jaw becomes fragile after the extraction of vertically impacted wisdom tooth, but the complainant paid no attention to the same and failed to observe desire necessary safeguards and, thus, suffered injury in her jaw. He claimed that every possible and due care and caution at the time and after the extraction of the wisdom tooth of the complainant had been taken and that he had dutifully adviced the complainant for post extraction care, which the complainant did not follow and hence suffered injury in her jaw. It was further reiterated that at the time of the extraction of the wisdom tooth, there was neither any negligence, nor the jaw broke out on account of the extraction, but it was on account of the omission and negligence in regard to post extraction care, for which the complainant had been duly adviced. It was claimed that the complainant was not entitled to any compensation and alternatively, it was pleaded that he was fully covered under the Doctors Composite Package Insurance Policy obtained from The New India Assurance Company Limited, Dehradun.
5. Insurance company on its part urged that the amount of compensation claimed by the complainant is highly excessive and arbitrary and further that in case, if the finding is against the dental 4 surgeon, the compensation shall also be payable by the dental surgeon himself.
6. The District Forum on an appreciation of the evidence and material on record came to the conclusion that the breaking of jaw was result of not only the medical negligence of the dental surgeon, but also on account of the contributory negligence of the complainant herself and although at the most, the complainant had incurred total expenses etc. to the tune of Rs. 50,000/-, she was, thus, only entitled to the compensation of Rs. 25,000/-. The complaint was, thus, allowed for recovery of compensation of Rs. 25,000/- from the opposite parties, namely, the dental surgeon and the insurance company. The amount was to be paid within a period of 60 days from the date of the order, failing which, the amount was directed to carry interest @9%p.a. from the date of filing of the complaint till payment.
7. Dental surgeon felt aggrieved by grant of compensation by the impugned order and filed First Appeal No. 263 / 2007 and wanted to have the complaint dismissed and whereas, the complainant got aggrieved due to inadequacy of the amount of compensation awarded and, thus, filed First Appeal No. 287 / 2007, seeking enhancement of the compensation and allowing of the complaint in full with cost of the litigation throughout.
8. We have heard the learned counsel for the parties and have carefully considered their submissions in the light of the admitted facts of the case, circumstances and the legal aspects of the matter in issue. The points, which arise for determination of these appeals, are as under:
5(i) Whether the complainant suffered injury in her jaw at the time of the extraction of the wisdom tooth by the dental surgeon or it was on account of the omission and negligence on the part of the complainant in regard to post extraction care, as suggested by the dental surgeon or the jaw injury was partly due to the medical negligence on the part of the dental surgeon and partly due to lack of post extraction care and caution on the part of the complainant?
(ii) Whether the compensation awarded by the District Forum is sufficient or inadequate and if so, what would have been the just and proper compensation in either of the contingency related to the jaw injury suffered by the complainant?
9. Point No. (i) - Learned counsel for the dental surgeon persuasively urged that there being no cogent evidence and expert view on record, the District Forum fell in error in observing that the complainant's jaw had been broken partly due to the medical negligence of the dental surgeon and that in the totality of the circumstances of the case and the evidence on record, the jaw injury was, in all probability, due to omission and negligence in post extraction care on the part of the complainant. However, a contrary argument has been made by the learned counsel for the complainant and it has been urged that the bare admitted facts of the case were sufficient enough to record a finding that the jaw had been broken due to negligent handling of the extraction of the wisdom tooth of the complainant by the dental surgeon and that there was no fault at all on the part of the complainant, which may have caused such injury to her jaw. At the outset, it need to be stated that the submissions of the learned counsel for the complainant are convincing and we are of the view that the jaw injury was caused during the process of extracting of 6 the wisdom tooth and that the dental surgeon continued to be negligent and had not dutifully adviced the complainant to immediately receive specialized treatment in some dental college or from any well known expert in that field.
10. The reasons for the above inference are that the bare facts of the case, regarding which there is not much dispute between the parties, reveal that the wisdom tooth was extracted by the dental surgeon on 06.11.2002 and the wound caused by the extraction would have healed within a week if there was no other consequential injury to the jaw of the complainant. Admittedly, the wound did not heal and the complainant continued to be under severe problem and pain and per advice, remained on prescribed medicines. It is not in dispute that on account of the continued pain and suffering, the complainant had to seek advice and treatment from Dr. Mahabir Singh, a consultant physician. She visited Dr. Mahabir Singh on 22.11.2002 (Paper No. 45 on the record of First Appeal No. 287 / 2007) after more than 15 days from the date of the extraction of the wisdom tooth, which indicate that the pain due to extraction of the wisdom tooth was still subsisting. According to the dental surgeon, complainant had insisted that she should be referred to her family doctor Dr. Mahabir Singh for advice and treatment and, as such, he had to accede to her request. The version does not appear to be at all convincing because the complainant was not supposed to ask the dental surgeon to refer her to her own family doctor for advice and treatment. Therefore, we do not dispute the claim made by the complainant that the dental surgeon himself adviced her to visit Dr. Mahabir Singh and pursuant to the advice, she took medicines as were prescribed by Dr. Mahabir Singh, but got no relief for her pain and suffering. It is not in dispute that thereafter complainant had to be referred to an experienced dental surgeon of the town Dr. L.K. Berry and that too by the dental surgeon 7 himself, which also indicate that complainant had continued to suffer pain and her condition did not improve despite the medicines prescribed by Dr. Mahabir Singh. Even till that time, the dental surgeon had not told the complainant that at the time of the extraction of the wisdom tooth, she had suffered jaw injury and kept her in dark and the helpless complainant continued to be put to further course of treatment by Dr. L.K. Berry (Paper No. 48 on the record of First Appeal No. 287 / 2007) till such time she was after a second x-ray was told on 09.01.2003 to go for further specialized treatment for her pain and problem. According to the dental surgeon, the x-ray done on the advice of Dr. L.K. Berry, disclosed that the jaw of the complainant had been broken and that it occurred due to omission and negligence in the post extraction care on the part of the complainant herself. The contention cannot at all be accepted and believed keeping in view the continued suffering and pain during which period, the complainant could not have been able to break or crush some hard nut or eatable substance causing any injury to her jaw. When she had been suffering pain post extraction for such a long time, it could hardly be believed that the complainant would have even attempted to crush or bite any hard nut or eatable and, as such, the possibility of breaking of the jaw by any omission and negligence in the post extraction care, stand sufficiently ruled out. There can be no gain saying that no one with such a problem for such a long time due to extraction of wisdom teeth, could think of chewing anything hard and we do not find any substance in the contention raised on behalf of the dental surgeon that the jaw injury was caused to the complainant, when she had failed to subscribe to the advice given after the extraction of the tooth by the dental surgeon.
11. As is also not disputed, the complainant finally went to KGMC, Lucknow, where for the first time in the month of January, 2003, she 8 was told about her broken jaw and in the totality of the circumstances of the case, we see no reason to dispute her claim that the jaw had been broken during her treatment regarding extraction of the wisdom tooth by the dental surgeon at Dehradun. We also do not see any cogent reason to dispute her claim that she herself did not do any such thing or had been negligent in her upkeep, as may have caused her jaw injury after the extraction of the wisdom tooth. The facts of the case, in fact, clearly indicate that the dental surgeon failed to exercise with reasonable competence in the given case, the skill he was possessing. Reference may be made to the pronouncement of the Hon'ble Apex Court in the case of Jacob Mathew Vs. State of Punjab and another; III (2005) CPJ 9 (SC) = 2005 (6) SCC 1 and wherein, the Court has laid down Bolam's Test (Bolam Vs. Friern Hospital Management Committee; (1957) 1 WLR 582) in its applicability to India. The relevant principle culled out, read as under:
"Professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill, which he professed to have possessed; or, he did not exercise, with reasonable competence in the given case, the skill which he did possess ....................."
12. As stated above, the facts of the case speak for themselves to infer that the dental surgeon in the given case, despite possessing the required skill, failed to exercise the same with reasonable competence, as a result of which, in the process of extraction of the wisdom tooth, jaw of the complainant had been broken, which fact was also not dutifully brought to the notice of the complainant, who was made to suffer pain for a long time and continued to receive the required and specialized treatment till as late as 26.02.2003, although the wisdom tooth had been extracted on 06.11.2002.
913. In view of above, we come to the conclusion that the dental surgeon made medical negligence in the treatment of the complainant and did not dutifully disclose the jaw injury sustained by the complainant at the time of the extraction of the wisdom tooth and that the said injury was not at all the result of any contributory negligence or omission in the post extraction care on the part of the complainant. The District Forum failed to consider and appreciate the admitted facts of the case and material on record in proper perspective and recorded an incorrect finding that the jaw injury was the result of not only the medical negligence on the part of the dental surgeon, but on account of the contributory negligence in post extraction care on the part of the complainant. The point is answered accordingly and in favour of the complainant.
14. Point No. (ii) - In view of the above inference and conclusion, there can be no doubt that the complainant was entitled to be compensated for the medical negligence by the dental surgeon and his insurer, which had issued Doctors Composite Package Insurance Policy. In so far as the quantum of compensation is concerned, the amount claimed in the complaint by the complainant is excessive and is not fully supported from the material on record, say, the medical bills etc. As averred in the consumer complaint, complainant had spent about Rs. 5,000/- towards treatment at Dehradun and had to spend about Rs. 7,000/- for travelling to Lucknow for specialized treatment. She was employed as a teacher in a private school and had to remain on leave without pay, thereby suffering loss of Rs. 6,000/-. Besides this, the bills filed on record for payment of the medical / dental college's charges for treatment upto 26.02.2003 and medicines purchased indicate that she had spent Rs. 18,021/- in all. The total that way comes to Rs. 36,021/-. According to the complainant, her husband remained with her at Lucknow leaving his business at 10 Dehradun unattended and suffered loss to the tune of Rs. 30,000/-, besides incurring expenditure of about Rs. 10,000/- for stay at Lucknow. We do not think that it shall be just and proper to award any compensation for the loss of business suffered by her husband. Likewise, incurring of expenditure of Rs. 10,000/- for stay at Lucknow clearly appear to be on the higher side and under that head, expenditure of Rs. 5,000/- can safely be taken to be just and proper. Complainant had also suffered physical and mental agony during the period of her continued ailment and under this head, she may be held entitled to compensation of Rs. 10,000/- and adding all these amounts together, the total comes to Rs. 51,021/- only. The District Forum observed that the total expenses towards treatment and damages etc. comes to Rs. 50,000/-, which sufficiently match to the calculation made by us and considering totality of the circumstances of the case, we feel it just and proper that awarding of compensation of Rs. 50,000/- in all to the complainant would be fully justified.
15. For the reasons aforesaid, we are of the view that the complainant was entitled to compensation of Rs. 50,000/- instead of Rs. 25,000/- awarded by the District Forum. The point is answering accordingly and in favour of the complainant.
16. In view of above, First Appeal No. 263 / 2007 filed by the dental surgeon fail and is liable to be dismissed and whereas, First Appeal No. 287 / 2007 filed by the complainant is fit to be partly allowed and the order of the District Forum is to be modified accordingly, so as to award compensation of Rs. 50,000/- to the complainant instead of Rs. 25,000/-, as was awarded by the District Forum.
1117. First Appeal No. 263 / 2007 filed by the dental surgeon is dismissed and First Appeal No. 287 / 2007 filed by the complainant is partly allowed. Order dated 01.08.2007 of the District Forum is modified to the extent that the opposite parties, i.e, the dental surgeon and the insurance company are hereby directed to pay compensation of Rs. 50,000/- to the complainant within a period of two months' from the date of the order, failing which the above amount of Rs. 50,000/- shall be paid to the complainant together with interest @7%p.a. from the date of filing of the complaint till the date of actual payment. Costs made easy.
18. Let the copy of the judgment be kept on the record of First Appeal No. 287 / 2007.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal