STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                         U.T., CHANDIGARH 

                                            (Additional Bench)

Employees  State Insurance Corporation, Panchdeep Bhawan, Sector-19-A, Chandigarh through its Regional Director  

                                                                                                       …Appellant

                                         V e r s u s

Bisheshwar Yadav S/o Sh.Priti Yadav, Resident of  House No.12, Sector 4, Chandigarh                                                                                                                                                                                                                 ...Respondent

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 13.02.2024 passed by          District Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.134/2023.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                        MR.PREETINDER SINGH,MEMBER

Present   :       Sh. Vivek Mohan Sharma, Advocate for the appellant(on VC).

                        Sh.Jasbir Singh, Advocate for the respondent. 

 PER PADMA PANDEY,PRESIDING MEMBER

                       This appeal is directed against the order dated 13.02.2024, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/134/2023 by holding as under ;

 “In view of the above discussion, the present complaint deserves to be partly allowed  with a direction to the OP to sanction the advance of Rs.6,18,050/- as recommended by the PGIMER, Chandigarh for implantation of the hearing aid in left ear of his daughter namely Shivani Kumari.

 This order  be complied with by the OP within  45 days from the date of receipt of copy of its certified copy.”

  2.    Before the Ld. Lower Commission, it was case of the complainant/respondent that that he is working with M/s Sahib Tradelinks Pvt. Ltd, Sector 34-A Chandigarh and is member of ESI Scheme, paying ESI contribution with effect from 17.02.2015 regularly with IP No.1213917218. His daughter, Shivani Kumari aged 5 years was   suffering from hearing loss from both ears by birth. Being referred by the   OP, the PGI Chandigarh conducted surgery of Shivani Kumari and implanted hearing aid in her right ear. For the treatment of left ear of his daughter, the ESIC again referred her to PGI Chandigarh, which after examination, recommended for surgery of left ear for implantation of hearing aid and provided estimate certificate dated 12.01.2023 for Rs.6,18,050/-  as cost of implantation of hearing aid for left ear (Annexure C-2).  The complainant  visited the ESI Model Hospital, Ram Darbar, Chandigarh  and submitted application dated 12.1.2023 alongwith  PGI estimate of Rs.6,18,000/- to the Regional Director, ESIC, Chandigarh through his legal notice  since the OP orally refused to accept the application for sanction of advance payment on the ground that there is no provision for second advance for implantation of hearing aid in left ear. Subsequently, he served a legal notice dated 13.01.2023 upon the OP and the OP vide reply dated 17.01.2023 informed that  the case has been forwarded to the Medical Superintendent, ESIC Model Hospital Chandigarh for further process but   he did not receive any response. It is averred that ESI Act, 1948 is a Social Security Legislation and that as per ESI Medical Manual the insured persons and their families are provided artificial limbs, aids and appliances as part of medical care under the ESI Scheme, as such his daughter is eligible for implantation of hearing aids for both ears but the Opposite Party refused to sanction the amount.     Hence, alleging deficiency in service and unfair trade practice on the part of the Opposite Party, a consumer complaint was filed before the Ld. Lower Commission.

3.                Pursuant to issuance of notice, the Opposite Party appeared before the Ld. District Commission and contested the complaint. In its written version,  it is stated that the complainant has not placed on record any medical record pertaining to the treatment received by the dauther of the complainant from ESIC Hospital, Chandigarh for her left ear.  Further  the  complainant has not   produced the relevant record vide which ESIC Hospital Chandigarh had referred his daughter to the  PGI for  treatment of her left ear. The office of Medical Superintendent ESIC Model Hospital Chandigarh vide e-mail dated 31.1.2023 had duly informed the Counsel for the complainant  that as per the Circular No.F.No.6-469/2003-CGHS/R&H dated 12th  June 2009/Adopted by ESIC by Circular No.F.No.U-16/12/1/2020/Agenda/reporting item/Med-III dated 11.7.2022, the advance of Cochlear implant for the second ear is not admissible but the complainant intentionally deliberately withheld the vital facts with regard to receipt of reply and filed the present compliant without impleading ESIC Model Hospital Chandigarh as necessary party. The maintainability of the complaint has also been challenged.  Denying other allegations and  pleading that there is no deficiency in service or unfair trade practice on its, a prayer was made by the OP for dismissal of the complaint. 

  4.                   On appraisal of the pleadings, and the evidence adduced on record, Ld. Lower Commission allowed the Complaint of  the  Respondent/ Complainant, as noticed in the opening para of this order.   

5.               Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Opposite Party.

6.              We have heard Learned Counsel for the parties    and have gone through the evidence and record of the case with utmost care and circumspection.

7.              The   main ground put forth  by the appellant corporation in the  appeal is that cochlear implant for the left ear of daughter of the respondent is not admissible in view of Circular No.F. No.6-469/2003-CGS/R&H dated 12^th June,2009 issued by the Govt. of India, Ministry of Health and Family Welfare, Department of Health & Family Welfare, Nirman Bhawan, New Delhi,  which has been adopted by the appellant corporation vide circular letter dated 11.07.2022.  Under the guidelines issued by the Govt. of India in the above circular, the ceiling rate for cochlear implant shall be Rs.5,35,000/- for reimbursement of cost of cochlear implant with 12 channels/24 electrodes with behind the ear speech processor.   In the guidelines enumerated in the circular dated 12.6.2009 it is  clearly mentioned that only unilateral implantation will be allowed.  It is also recited therein that as cochlear implant surgery is a planned surgery, prior permission has to be obtained before the surgery is undertaken. Pensioner CGHS beneficiaries and serving employees, who are CGHS beneficiaries may submit their requests for permission for cochlear implant to the Director, CGHS, Central Government employees who are beneficiaries under Central Services(Medical Attendance) Rules,1944, may submit their requests for permission to MG II Section, Directorate General of Health Services, New Delhi.  It is further mentioned therein that for children between the age of 5 and 10 years, 80% of the ceiling rate for implant will be reimbursed. In the circular dated 11.7.2022 of the appellant corporation,  it is recited that  in 188^th meeting of ESIC held on 18-19 June,2022, it was decided that ESIC shall bear 100% cost off upgradation and/or replacement of cochlear implant upto the ceiling limit of Rs.5,35,000/- in the cases where due to wear and tear, up- gradation/replacement is required on the opinion of two ENT surgeons of Government Hospital, subject to fulfillment of all other conditions laid down in CGHS guidelines.

8.                   From the circulars, referred to above, it is clear that only unilateral implantation will be allowed. The ceiling rate for cochlear implant shall be Rs.5,35,000/- and for children between the age of daughter of the respondent  i.e. 5 to 10 years, only 80% of the ceiling rate for implant will be reimbursed. Prior permission is required to be obtained from the concerned authority before the surgery is undertaken as cochlear implant surgery is a planned surgery.

9.               In the present case,  it is admitted case of the respondent that surgery of right ear of his daughter  was already conducted and hearing aid was implanted and an amount of Rs.6,11,750/- was sanctioned by the ESIC on the basis of Estimate dated 17.3.2022 provided by the PGI. For the left ear, the PGI has given estimate certificate dated 12.1.2023 for Rs.6,18,050/- as cost of implantation.  There is no document on the record with regard to obtaining of  prior permission by the respondent  for undergoing surgery for the left ear of his daughter. Even no medical record pertaining to the treatment received by the daughter of the respondent/complainant from ESIC hospital, Chandigarh or any document whereby she was referred to PGI for left ear surgery  has been placed on record.  Though it is incorporated in the ESI Medical Manual  published by Director General, ESIC, New Delhi, that insured persons and their family members are provided artificial limbs, hearing aids etc. yet these are provided as per rules/regulations and instructions issued from time to time. Since there is restriction provided in the circular dated 12.6.2009 of Govt. of India, referred to above, that  only an unilateral implantation will be allowed, this Commission cannot issue direction for sanction of a particular amount for providing  implantation for the second/left  ear of  daughter of the respondent.

 10.                 In view of the above discussion,    the appeal is   accepted, and the impugned order of the Ld. Lower Commission is set aside. Consequently,  the complaint is dismissed.

11.             Pending interlocutory  application, if any, also stands disposed of.

12                 Certified copies of this order be sent to the parties free of charge.

13.               The file be consigned to Record Room, after completion.

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