JUDGEMENT

          Complainant by filing this complaint has submitted that he is a Government Employee and at present employee working for gain as a Clerk Cum Typist (RWP), Grade-I, in the Office of the Sub-Divisional Officer, Egra in District- Purba Medinipur.  Complainant and his family members including his wife Smt Debjani Khanra are enrolled under the West Bengal Health Scheme, 2008 (W.B.H.S.-2008) and complainant is holding a Health Card (Id No. MISC/WB/15174/1/4) and Smt Debjani Khanra, the wife of the complainant is also holding a Health Card (Id No. MISC/WB/15174/2/4) under the said W.B.H.S.-2008.  Smt Debjani Khanra wife of the complainant was admitted in Apollo Gleneagles Hospital having its office at 58, Canal Circular Road, P.O.-Kankurgachi, P.S.- Phoolbagan, Dist- Kolkata, Pin-700054 on 08.01.2011 for treatment of pain over upper abdomen and ultimately on 20.01.2011 she had undergone an operation at the said Hospital and said Apollo Gleneagles Hospital registered hospitals for treatment of the employees under of the W.B.H.S.-2008.

          For treatment and other purposes, op no.2 charged an amount of Rs.59,345/- for the treatment of Smt Debjani Khanra, the wife of complainant no.1 on 22.02.2011 the Secret Cell Department of the op no.2 issued a certificate thereby certifying that Smt Debjani Khanra had been admitted in the said hospital for two operations and the bill so far issued in accordance with the tariff list as mentioned in the W.B.H.S.-2008.  That on 25.10.2011 the Secretary, Department of Panchayts and Rural Development, Government of West Bengal by his Memo No.213 (Sanction) RD/O/13E-6/2011 sanctioned an amount of Rs.24,272/- only towards Hospital bill out of the aforesaid bill amount of Rs.59,345/- and the particulars of the amount disbursed also showing the particulars of the amount which were not disbursed by the Government of W.B. wherefrom it would be found from Memo dated 25.10.2011 of the Secretary, Department of Panchayats and Rural Development, Government of West Bengal that Smt Debjani Khanra, wife of the complainant was admitted in the said Hospital/op no.2 for two operations i.e. (1) Cholecystectomy and (2) Hysteroscopy Diagnostic.

          On 11.11.2011 the OSD and Ex-Officio Joint Secretary, Department of Panchayats and Rural Development Government of West Bengal by his Memo No.6660-RD (JRY)/13E-6/11 directed the Sub Divisional Officer, Egra, District- Purba Medinipur to look after the matter and to calculate the amount and to issue necessary direction to the concerned hospital for refund of the excess amount.  Complainant submitted a representation  to the Sub Divisional Officer, Sub Division Egra, District- Purba Medinipur on 05.12.2011 thereby requesting the said authority to take necessary steps so that he may get back the abovementioned excess amount of Rs.32,840/- which was deposited with the op nos. 1 & 2 for his wife’s treatment.

          Subsequently the op no.1 informed that Debjani Khanra’s treatment was performed by 3 different specialist/doctors/surgeons in two different dates and the said bills were done accordingly and op nos. 1 & 2 by the said reference dated 10.01.2012 refused to refund the excess amount in question which was charged by them for the treatment of D. Khanra.  Thereafter OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal by his Memo No.4142-RD (JRY)/13M-4/11 dated 12.01.2012 directed the Sub-Divisional Officer (S.D.O.), Egra to take up the matter with the op nos. 1 & 2 to modify the bill as excess amount.  It was also mentioned in the said memo dated 12.01.2012 that the said bill was not done in accordance with the provisions of paragraph-4 of Finance (4) Department Circular.

          For that S.D.O. Egra, Dist- Purba Medinipur by his Memo No.884/Estt. Dated 23.08.2012 requested the op no.1 to pay the excess amount of Rs.32,840/- to the complainant.  Thereafter complainant submitted to the op no.1 and once again requested to modify the bill in question and to refund back the excess amount of Rs.32,840/-.  Op no.1 against that letter reported they would not refund back the excess amount in question.  Subsequently complainant made a representation on 16.10.2012 to the District Magistrate, Purba Medinipur to grant necessary permission so that he can take appropriate legal steps in the matter.  Subsequently OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal by his Memo No. 8076/1 (3)-RD (JRY)/N/13M-4/11 dated 30.11.2012 once again requested the Medical Superintendent, Apollo Gleneagles Hospital, the op no.1 to refund back the excess amount charged for the case, especially charges for Bed Side Procedure and all kinds of charges before the operation to the complainant, but no reply was given by the op.

          So, considering all the above fact as mentioned about it is found that Hospital authorities op nos. 1 & 2 charged excess amount of Rs.32,840/- and same should be refunded as per Government Rules and order but op did not comply it and for negligent and deficient manner of service, the present complaint  is filed and also for directing to act as per Government Rules and Regulations to refund the same and for harassment.

          On the other hand ops by filing written version submitted that employer sanctioned of Rs.24,272/- by to the complainant against the bill of Rs.59,345/- incurred by the complainant towards treatment of his wife and complainant shall not get back the amount from the op no.2 when admittedly paid the total bill amount without raising any protest thereto.  Further it is submitted that sanctioned of bill towards reimbursement of the eligible amount is prerogative of his employer as per their agreed rules and regulations and such being the circumstances alleged demand for refund of balance amount from the op no.2 in the guise of excess amount charge cannot be termed as deficiency in service or unfair trade practice as alleged by the complainant.

          Moreover there is no allegation that there is any whisper of allegations of medical negligence alleged by the complainant against the present ops in the present complaint.  Further it is submitted that against the letter dated 12.06.2012 received from Panchayat & Rural Department i.e. employer of the complainant, op no.2 replied in clear term vide its letter dated 06.09.2012 that “ the notification dated 31.01.2011 will be effective only on renewal of agreement done on 21.09.2011” and after acknowledging the above reply the employer of the complainant did not controvert the same.  Moreover there is no question of refund of difference of bill amount and amount sanctioned by the employer is not at all tenable under provision of Consumer Protection Act, 1986.

          Complainant instead of agitating before his employer for redressal of his grievance has filed the present case before this Forum which is out and out beyond the purview of the C.P. Act 1986 and further the bill as charged was as per op no.2’s rate of treatment and other cost.  So question of refund of any amount does not arise and so the present matter of bill dispute cannot be agitated under the Provision of present Act and in the above circumstances, the present complaint should be dismissed.

                                               Decision with reasons

          On proper evaluation of the argument as advanced by the Ld. Lawyers of both the parties and also considering the materials on record including the fact of the complaint and the defence of the ops, it is found that it is undisputed fact that W.B.H.S.-2008 has promulgated under the Finance Department Notification No.7287-F dated 19.09.2008 with effect from 01.06.2009 and the rate list of W.B.H.S. 2008 was approved under Notification No.3473-F dated 11.05.2009.

          Further by Finance Department Audit Branch Medical Cell Notification No. 796-F (MED) dated 31.01.2011 revised rate list was published and same shall be effective from the date of signing of the declaration and agreement by the Government and private hospitals and as per said notification the revised rate list shall come into force from the date of signing of the declaration and prior to that all the cases will be governed by the rates notified under Notification No.3473-F dated 11.05.2009 and by the Notification No.3473-F dated 11.05.2009 approved package rate means package rate starts from the previous date and surcharge and during package rate is defined a lum sum cost of in patient treatment/day care this includes all charges pertaining to particular treatment procedure including registration charges, admission charges, accommodation charges including diet for the patient.  But from the Notification No. 796-F (MED) dated 31.01.2011 package starts from the date of previous date of surcharge and during package rate, bed rent procedure, doctors fees, investigation charges, medicines charges etc are not reimbursable and in the said notification, it is specifically mentioned that the revised rate shall be applicable to the recognized hospitals or diagnostic centre in the following manner- a) Class-I Service Provider – full rate, b) Class-II Service Provider – 80% of full rate & c) Class-III Service Provider – 70% of full rate.  But fact remains that revised rate will be effective from the date of commencement of the declaration made by recognized hospital and prior to that all the cases will be governed by the rates of Notification No. 3473-F dated 11.05.2009.  In this regard we have gathered that Apollo Gleneagles Hospital wrote a letter to OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal on 06.09.2012 stating that they renewed the agreement with the Government on 21.09.2011 when that is the fact, then as per Notification No. 796-F (MED) dated 31.01.2011, the present op hospital shall be governed by the rates notified under Notification No. 3473-F dated 11.05.2009 up to 20.09.2011 and thereafter the op hospital is entitled to get revised rate as per Notification No. 796-F (MED) dated 31.01.2011 w.e.f. 21.09.2011 but prior to that they are entitled to package rates as per Notification No. 3473-F dated 11.05.2009.

          It is undisputed fact that Debjani Khanra (Registration No. 405052 & I.P. No.125962) was admitted to op’s hospital from 18.01.2011 to 26.01.2011 for treatment under Dr. Jaydip Bhadra Ray and Consltant Mahesh K. Goenka the Director of Institute of Gas-entrology and Dr. S. R. Pal, Consultant of Gynecology for the treatment.  During that period op/hospital charged Rs.3,600/- as room rent, Rs.1,200/- as consultant fees and Rs.29,540/- bed side procedure and other charges that is total Rs.59,345/-.  But as per Notification No. 3473-F dated 11.05.2009 the authority the complainant practically released a sum of Rs.24,272/- out of Rs.59,345/- and the authority of the employer of the complainant approved Rs.1,200/- for room rent, Rs.300/- for consultation fees and for bed side procedure no amount was approved and accordingly the employer of the complainant wrote a letter to the op to refund Rs.32,840/- out of total bill because the op is recognized Apollo Gleneagles Hospital is one of the notified private hospital or speciality hospital as Class-I Service Provider in respect of the said scheme W.B.H.S.-2008 and it was notified by Notification No.3473-F dated 11.05.2009.

          Similarly vide that Notification rate list for health care organization empanelled under the W.B.H.S. 2008 is also published.  So in view of the above notification and also the letter of the op, it is clear that up to 20.09.2011 Apollo Gleneagles Hospital is approved as Class-I Service Provider hospital and as per agreement op was bound to give medical service to the complainant’s wife as per W.B.H.S. 2008 and as because revised rate was effected from 21.09.2011 in respect of the present hospital,  so the op hospital was bound to give medical aid as per approved package rate as notified under Notification No.3473-F dated 11.05.2009 when the present patient Debjani Khanra was admitted to op’s hospital on 18.01.2011 and she was discharged on 26.01.2011.

          So, considering that fact and materials we are convinced to hold that the op cannot claim the revised rate of W.B.H.S. 2008 w.e.f. 31.01.2011.  Moreover it is found that Notification No. 796-F (MED) dated 31.01.2011 was affected on and from that date but prior to that notification Debjani Khanra was treated in the hospital of the op in between the period from 18.01.2011 to 26.01.2011.  So, under any circumstances op cannot claim revised rate of W.B.H.S. 2008 as published by Notification No. 796-F (MED) dated 31.01.2011.  So, the defence of the op is not at all as per legal status and admitting in this regard claim of revised rate of approved package rate is not at all applicable.  Now the question is who shall have to decide such a dispute in between the Government authority and the hospital.  In this regard we have gathered that any dispute regarding W.B.H.S. 2008 shall be settled by the Finance Department and decision of Finance Department thereon shall be final and practically regarding the implementation of the scheme and its notification, op has challenged it.

          But the matter was not referred to the Finance Department for decision, when fact remains that it is a dispute in between State Government authority and the hospital and there is some legal complication for determining the same and truth is that there is no order of the Finance Department in respect of this dispute for reimbursement that amount.  But it is found that request has been made by OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal to the Apollo Gleneagles Hospital for refund of Rs.32,840/-.

          But peculiar fact is that the dispute as raised by the op was not referred to the Finance Department.  But only reported that authority in its 39 meetings held on 08.09.2011 examined the case and opined that the bill this instant case is only for the package and additional charges as received by the hospital should be refunded and this observation was made by Medical Cell Finance Audit Department and from that letter of the OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal dated 31.01.2011 it is clear that WBHS-2008 in his 58 meetings held on 10.05.2012 examined the case and opined that administrative department may write to HCO to modify the bill as the bill was not done as per paragraph-4 of Finance Department Circular No.11253(80)-F (MED) dated 16.12.2011 and accordingly op was requested to refund the bed side procedure and all kinds of charges before the operation to the incumbent immediately.  But op reported very specifically to the said OSD & Ex-Officio Joint Secretary, Department of Panchayats and Rural Development, Government of West Bengal that particular performed ERCP + Sphicterotomy + A tent placement on 18.01.2011 and open Cholecystectomy and Hysteroscopy Diagnostic and endrobiopsy were done under general consultant and practically different procedures was performed by 3 different doctors in two operations and so billing was done accordingly.

          But peculiar factor is that if more than one procedure is adopted by the doctors for complication of several diseases for that reason any charge is made what would be the fate of that, that has not been explained by the Finance Department and after considering the provision of WBHS-2008 and particularly the provision-17, it is found that practically this particular matter was not placed before Finance Department for proper determination and Finance Department did not send any such letter to the present op and practically after considering the entire notifications as referred including the present materials, it is found that it is a very complicated one up to this stage and there is some legal friction in respect of the notification and about treatment etc and it is a simple request of the Panchayat and Rural Development, Government of West Bengal to refund of Rs.32,840/-.  But they have not explained for what reasons the op shall have not to get it when several operations and treatment procedure were adopted to save the life of the patient and no doubt it is a dispute in between the op and the State Government regarding the WBHS-2008 and so considering that fact we have gathered that there was no negligence and deficiency on the part of the op.  But it is a legal friction in between the State Government’s Finance Department in one hand and other hand the op the recognized hospital under WBHS-2008.

          Practically after considering the WBHS-2008 including notification we have gathered that claim was introduced but time to time notification bears different type of ambiguity and fact remains that there is no such special note in any notification what would be the fate if several type of bills were done in respect of one patient at a time and practically for absence of such clarification the present dispute was arisen and in fact the administrative department has failed to give any clarification in this regard and another factor is that the administrative department of the present complainant did not refer the same to the Finance Department for decision and in the above situation we find that apparently we have not found any negligence or deficiency on the part of the op for refund of the said amount as per order of the administrative department that is employer of the complainant.

          But after proper consideration of the entire matter it is found that the WBHS-2008 should be amended accordingly to remove such type of dispute in between the State Government and recognized hospital under the scheme and there must be one such authority in case of any dispute of billing made by the recognized hospital as per the scheme and the administrative department of the employee.  But there is no such provision.  Laches are here and there in the WBHS-2008 scheme and regarding settlement of such dispute who shall have to decide the same that is completely absent and that is the laches of the said scheme.  So considering the above fact we are convinced to hold that there is no deficiency or negligence on the part of the op and as service provider op had discharged their duties and doctors adopted all scientific procedure for giving proper treatment to the patient and practically the patient suffered different type of complications and two operations were done by the expert doctors and the patient recovered.

          So, considering the provision of C.P. Act 1986 we are convinced that complainant has failed to prove the deficiency and negligence on the part of the op in rendering service.  But main dispute in this case is that as because Panchayat and Rural Development (Administration) Department the employer of the complainant requested the op to refund such amount and op has not yet returned it for which this complaint is filed.  But in our view we find that it is a legal friction in between the registered hospital as per WBHS-2008 with the Government authority.  But as because in the said claim there is no such authority to determine such dispute such a dispute cannot be decided by this Forum and Forum has no authority to decide the same because it is completely a Civil dispute and as a consumer complainant has failed to prove by any cogent evidence that he did not get any proper service or negligent manner of service for the treatment of his wife by the op and in view of the above findings we are convinced to hold that the present complaint is not maintainable before this Forum when there is no allegation of negligence and deficient manner of service on the part of the op during treatment received by the wife of the complainant and when it is a dispute in between the State Government and registered hospital as per this scheme then that dispute shall be decided by the Finance Department finally and in this regard either the employer of the complainant may refer the matter to the Finance Department for proper decision and the final decision of the Finance Department must be obeyed by the administration and the hospital authority the present op.

          Most unfortunate fact is that at the time of hearing the maintainability of this case legal matters were brushed aside.  No legal fiction was taken into consideration and at the same time by adopting casual approach this Forum came to a conclusion that it is a case of unfair trade practice.  But we are convinced to hold that it is not an unfair trade practice.  How that observation has made is unknown to this Forum.  Whatever it may be we are convinced to hold that this complaint is not tenable when it is not for negligent manner of service not for any unfair trade practice, not for any deficient manner of service.

          Accordingly, the complaint fails.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is dismissed on contest without any cost against the ops.

          But the complainant’s employer or the op at once shall place the disputed matter before the Finance Department Government of West Bengal for proper decision and no doubt the order of the Finance Department shall be followed by the administrative department of the complainant and the op in all respect.  If op wants any clarification about this dispute in that case op may prefer a writ before Hon’ble High Court for redressal.