State Consumer Disputes Redressal Commission
Smt. Rama vs Amritsar Sewa Samiti (Dental Hospital) on 30 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.502 of 2009.
Date of Institution: 13.04.2009.
Date of Decision: 30.08.2013.
Smt. Rama wife of Sh. Surinder Sehgal, R/o 1752/9, Gali Ranje Wali,
Katra Khazana, Amritsar.
.....Appellant.
Versus
1. Amritsar Sewa Samiti (Dental Hospital), Indira Colony, Chabhal
Road, Amritsar through its Principal Officer/Incharge/Manager.
2. Dr. Shaminder Singh Bhullar C/o Amritsar Sewa Samiti (Dental
Hospital), Indira Colony, Chabhal Road, Amritsar.
...Respondents.
First Appeal against the order dated
02.03.2009 of the District Consumer
Disputes Redressal Forum, Amritsar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. S.K. Mahajan, Advocate, counsel for the appellant.
Sh. Anil Chawla, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Smt. Rama, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 02.03.2009 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short "the District Forum").First Appeal No.502 of 2009 2
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents/opposite parties (hereinafter called as "the respondents"), asserting that she was suffering from dental problem and approached respondent no.1 on 20.09.2008. Respondent no.2 checked the tooth and advised x-ray of her 8th tooth from the lower portion of right hand side. The x-ray was accordingly conducted on 26.09.2008 and on seeing the x-ray, respondent no.2 advised the appellant to get extracted the said tooth and she agreed because she was suffering from pain. The appellant paid a sum of Rs.100/- vide receipt dated 26.09.2008 as fee for extraction of the tooth.
3. Respondent no.2 in a careless manner and negligently, instead of 8th tooth of lower portion, extracted the healthy and sound 8th tooth of the upper portion of the right hand side, whereas she was suffering pain in the lower 8th tooth of right hand side and the same was done due to negligence and it amounts to deficiency in service.
4. The appellant was still feeling a lot of pain in the 8th tooth of lower portion and she contacted respondent no.2 and complained about the pain, but respondent no.2 made lame excuses and did not listen. In the prescription slip dated 20.09.2008 issued by the respondents, it was clearly mentioned about advice of x-ray of 8th tooth of lower portion which shows that the appellant has told the doctor regarding the problem in her 8th tooth on the lower portion.
5. The respondents failed to remove the tooth problem and then she contacted the doctor of Govt. Hospital, Dental College, Amritsar and narrated her woes and she was again advised for x-ray of her 8th tooth on the lower side and she deposited the necessary fee and after seeing the x-ray, she was told to take the medicines which she is First Appeal No.502 of 2009 3 taking regularly. As there was puss in the tooth, the same could not be extracted. In the prescription slip, it is mentioned that there is problem in the 8th tooth of lower portion of right side and has been advised surgical extraction. A legal notice dated 30.09.2008 was also served upon the respondents, but without any effect. The appellant suffered mental tension, physical harassment and agony and she is entitled to Rs.1.50 lacs as compensation and accordingly, the prayer was made.
6. In the written version filed on behalf of the respondents, preliminary objections were raised that the respondent no.1 is a charitable hospital and is dedicated to the service of humanity and is rendering free services to the people by running various hospitals, dispensaries in the field of Allopathic medicines, Ayurvedic medicines and dental field as well. The said institution is running primarily on donations and is exempted u/s 80-G of the Income Tax Act, 1961. The appellant is not a consumer under the Act and the complaint is not legally maintainable.
7. On merits, it was admitted that the appellant visited the Dental wing of respondent no.1 and respondent no.2, who is Dental Surgeon, was on duty. She complained of severe pain in the lower right hand side portion, whereupon respondent no.2 cleaned her tooth and advised to take the antibiotics and pain killer as a quick relief to subside her pain and she was also advised x-ray of lower 8th tooth. She again came on 26.09.2008 and produced the x-ray which was suggestive of the fact that the extraction in question was not possible because of puss and swelling and she was again advised to take anti-biotics for a further period of five days. No charges were realized by respondent no.2 for diagnosing and rendering the advice and an amount of Rs.100/- was paid by the appellant vide receipt dated 26.09.2008 as First Appeal No.502 of 2009 4 donation. Again a sum of Rs.20/- was paid by the appellant vide receipt dated 26.09.2008. These amounts were for donation and the complaint is not maintainable. No negligence or carelessness is attributed to the respondents.
8. On further investigation, it was revealed that upper 8th tooth was badly infected and while coming into contact with the lower 8th tooth, was causing pain and it was advised that the upper 8th tooth being badly infected and mobile cannot be repaired and also 8th tooth can be retained if the upper 8th tooth is removed and the appellant agreed and the upper 8th tooth was removed as per the consent given by the appellant in the presence of attendant Ms. Nisha, but inadvertently, it was written as lower 8th tooth instead of upper 8th tooth. After extracting the upper 8th tooth, the appellant was relieved of the pain and accordingly, intake of medicines was prescribed. Same diagnosis was made at Dental College, Amritsar. Similar other pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that there is ample evidence on record to prove that wrong tooth of the appellant has been extracted by the respondents which certainly establishes the negligence. The negligence displayed by the doctor in extracting the wrong tooth is clear in the face of the respondents. The appellant shall be free to avail the remedy before the civil court of competent jurisdiction and the complaint was dismissed solely on the ground that she is not a consumer. First Appeal No.502 of 2009 5
11. Aggrieved by the impugned order dated 02.03.2009, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments submitted on behalf of both the parties.
13. In the written arguments filed on behalf of the appellant, pleadings were repeated and it was reiterated that the appellant paid Rs.120/- vide receipt Ex.C-3 and another receipt dated 26.09.2008. Respondent no.2 extracted wrong tooth and the appellant approached the Govt. Dental College, Amritsar and the correct tooth was not removed. It has been further submitted that the District Forum has held that the respondents were negligent and wrong tooth of the appellant was extracted, but dismissed the complaint on the ground that the complaint is not a consumer. The appellant has paid the charges and has not taken free treatment and, as such, the appellant was consumer, but the District Forum has passed a wrong order.
14. In the written arguments filed on behalf of the respondents, pleadings were repeated. It was further submitted that respondent no.1 is a charitable institution and is running various charitable institutions, including the Dental Clinic. The institutions are being run primarily on donations and are exempted under the Income Tax Act. The extraction of tooth was not possible because the puss and swelling was present and antibiotics were given. The upper 8th tooth was badly infected and the same was causing pain and that was removed with the consent of the appellant. The Dental College & Hospital, Amritsar also advised surgical extraction which corroborates the version of the respondents. As per certificate Ex.R-4, respondent no.1 is exempted for income tax payment and the District Forum has rightly held that the appellant is First Appeal No.502 of 2009 6 not a consumer and the dismissed the complaint and the appellant can avail the civil remedy. It was prayed that the appeal may be dismissed.
15. We have considered the respective written submissions submitted on behalf of the parties and have minutely scrutinized the entire record and other material placed on the file.
16. The District Forum dismissed the complaint on the ground that the appellant is not a consumer, but held that there is ample evidence on record to prove that the wrong tooth of the appellant was extracted by the respondents. The negligence displayed by the doctor in extracting wrong tooth is clear on the face of the respondents.
17. The appellant paid Rs.100/- vide receipt Ex.C-3 and Rs.20/- vide receipt Ex.C-4 and this was the fee charged by respondent no.1 for treating the appellant and mere writing the word 'as donation' does not exempt the respondents from the coverage under the Act. Rs.100/- and Rs.20/- on the same day vide these two receipts will not be taken as donation and the word 'donation' has been added in the receipts, just to avoid any liability. The donations are not given by the donors in the manner, these receipts have been issued. It is unheard that Rs.20/- will be given as donation and respondent no.1 will be accepting the same. Respondent no.1 has charged the extraction fee of Rs.120/- from the appellant and the appellant has hired the services of the respondents for consideration and has not paid any donation. As such, the appellant is a consumer under the Act.
18. Admittedly, the appellant was suffering from pain in her 8th tooth of lower portion on right hand side and she approached respondent no.2 for extraction of the tooth. The x-ray conducted also has shown that the problem was in the 8th tooth from the lower portion of right hand side, whereas respondent no.2 extracted the 8th tooth on First Appeal No.502 of 2009 7 the upper portion of right hand side and the upper 8th tooth was removed. Negligence of respondent no.2 is writ-large on the face of it and the respondents cannot escape their liability. The respondents have not been able to rebut the evidence led by the appellant, except the affidavit of respondent no.2 and of one Miss Nisha. There is no evidence to rebut the negligence on the part of respondent no.2. Documents Ex.R-3 and Ex.R-4 regarding the registration of respondent no.1 and exemption of respondent no.1 under the Income Tax Act, do not in any way exonerate the respondents for their negligence which amounts to deficiency in service. As per the law laid down by the Hon'ble Supreme Court in "Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre & Others", 2010(2)RCR (Civil)- 161(SC), the principle of res-ipsa-loquitur is applicable and it was for the respondents to rebut that no negligence was caused. The Hon'ble Supreme observed in Paras-47 to 49 as follows:-
"47. In a case where negligence is evident, the principle of res- ipsa- loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-
loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a First Appeal No.502 of 2009 8 binding precedent and those directions must be confined to the particular facts of that case.
19. In view of above discussion as well as the law laid down, the order passed by the District Forum is not sustainable and is liable to be set aside.
20. Accordingly, the appeal is accepted and the impugned order under appeal dated 02.03.2009 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/ complainant is allowed and the respondents are directed to pay a lumpsum compensation of Rs.50,000/- (Rupees Fifty Thousand) jointly and severally to the appellant within 45 days of the receipt of copy of the order, failing which they shall be liable to pay interest 9% p.a. from the date of filing of the complaint till payment.
21. The arguments in this appeal were heard on 20.08.2013 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 30, 2013.
(Gurmeet S)