D.O.F. 26.08.2010
D.O.O.30.09.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 30th day of September 2011.
C.C.No.207/2010
K.Ibrahim,
‘Hamanna (H) Palisseri,Now residing t
Ramsheeas(H)A.K.G.Road,
P.O.Muzhappilangad,
Kulam Bazar,Kannur Dt. Complainant
(Rep. by Adv. K. Viswan)
1.Director (Joint) of Insurance Medical Service
(ESI Scheme) Trivandrum 14.
2.Manager,
ESI Local office,
Thalassery. Opposite Parties
(Rep. by Adv.R.Shyamkumar)
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `19,135.44 as medical reimbursement along with `5,000 as compensation and cost.
The crux of the complainant’s case is that he is a loading and unloading worker under Kerala Transport Company Parcel booking office, Thalassery having ESI coverage with insurance NO.1767137. He is under the treatment of Dr.Ashokan Nambiar, Cardiologist, Baby Memorial Hospital, Kozhikode and have costly medicines to save his life and hence the complainant is entitled to make claim to re-imbursement for an amount of 19135.44 the opposite parties have not ordered to issue the above said amount and the refusal is a unilateral refusal. So on 10.6.10 the complainant issued a registered lawyer notice for medical reimbursement. Even though they received notice they have refused the request of the complainant. But on 28.6.2010, the 2nd opposite party issued a reply. The complainant is entitled to get benefit and hence there is deficiency of service on the part of opposite parties and the opposite parties have got an antecedent to compel the complainant to approach Forum. Hence the complaint.
Upon receiving the notice from the Forum both opposite parties appeared and filed their version admitting that the complainant is an insured person covered under ESI Scheme. According to 1st opposite party the medical re-imbursement claims of the insured person are sanctioning on seniority basis and availability of fund for setting the claims. The medical re-imbursement claims of the complainant available with the insurance medical officer, ESI dispensary, Dharmadam will be settled on seniority basis and subject to availability of fund. If the medical reimbursement claims of the complainant are considered for settlement without observing the seniority of the claim submitted by others, it will be denial of common justice. So an order to issue the claims of the complainant on seniority basis may be issued. The medical reimbursement claims of the complainant for `431, `628, `419, `1248, `2298, `2113 and `3808 are to be settled on seniority basis and hence order to these effect maybe issued.
According to 2nd opposite party as per section 75(3) of ESI Act, any question or adjudication of any liability under ESI Act, it is to be decided by the employees Insurance Act set up udder section 74 of ESI Court and hence the Forum has no jurisdiction to try the above case and hence it is liable to be dismissed. Moreover as per section 57 and 58 f ESI Act 1948, the authority to provide medical benefits including reimbursement of medical expenses is vested with the state government through a machinery under the Director of Insurance medical Services, Trivandrum and 2nd opposite party has no direct control over the services rendered by the other opposite party. The medical re-imbursement claim for super specialty treatment has been released from the Revolving fund by the corporation according to the sanction given by DIMS, Trivandrum. In this case an amount of `7566 sanctioned by the DIMS as per order No.A.7.4900/07/DIMS dt.22.7.10 and paid as per cheque No.061364 dt.7.10.10. No other medical re-imbursement claim other than the above claim has been received at the office of 2nd opposite party and hence no claim is pending for payment and hence there is no deficiency of service on the part of 2nd opposite party and hence the 2nd opposite party may exonerated from proceedings.
Upon the above pleadings the following issues have been
raised for consideration.
1. Whether the complaint is maintainable before this Forum?
2. Whether there is any deficiency of service on the part of
opposite parties?
3. Whether the complainant is entitled to any relief?
4. Relief and cost.
The evidence in the above case consists of oral testimony of
PW1, DW1 and Exts. A1 to A9 and B1 to B7.
Issue No.1
The 2nd opposite party contended that the Forum has no jurisdiction to decide the complaint since there exists an employees Insurance Court set up under section 74 of ESI Act to decide all kinds of issues and disputes. But our Hon’ble Supreme Court in Kishore Lal Vs. Employees State Insurance Corporation held that the medical services rendered in the ESI hospital or dispensary by the ESI corporation falls within the ambit of section 2(1)(o) of CP Act, 1986 and therefore the Consumer Forum has jurisdiction to adjudicate the case and also held that the jurisdiction of consumer Fora is not ousted by virtue of sub-section (1) or (2) or (3) f section 75 of the ESI Act, 1948, which was reported in I (2008)CPJ 13(SC). So we are of the opinion that the complaint is maintainable before the Forum and issue No.1 is found in favour of the complainant.
Issue Nos. 2 to 4
The complainant’s further case is that the claim of medical re-imbursement have not been settled so far and a total amount of `19135.44 is to be released by opposite party to the complainant. The complainant subsequently produced bills for an amount of `4257.11 as further claim. In order to prove his case he was examined as PW1 and produced documents such as 72 bills, copies of 4 claim application, notice by Director of Insurance, Copy of lawyer notice with postal receipt and acknowledgement card, reply notice, photocopy of order in CC.117/02 and copy of letter by Director of Insurance etc. In order to prove the contentions of opposite party they also examined DW1 and produced documents such as receipt for `7566, Aquittance register 3 in number, post card, copy of notice and acknowledgement card.
The opposite parties admits that the complainant has ESI coverage with insurance No.1767137 and allowed some claims earlier. The complainant has produced 42 bills in one set and another 29 bills as another set i.e. Ext.A1 (1) to A1(4) and A1(43) to A1(71). According to opposite party they have released all other claims of the complainant which were filed before them and some delay was caused in disbursing the amount since the claims are to be settled on the basis of seniority of filing the claim and availability of fund. Out of the claim amount of A1(1) to A1(43) bills, the opposite party has already released `7566 on 21.10.10 ad the same was admitted by the complainant. The 1st opposite party has file a statements of facts before the Forum on 1.11.10 and as per these they had sanctioned `16383 and out of which the above said amount of `7566 was paid on 21.10.10. So the opposite parties are liable to disburse an amount of `8817 as per the claim of Ext.A1(1) to A1(42) and the balance is under process to settle. Moreover as per this statement of facts opposite parties had disbursed of claim only on 21.10.10, even though the complainant had filed claim on 12.7.05. More over the claims filed during 2007 and afterwards are yet to be disbursed. The opposite parties took more than five years for processing and disbursing the claim. So there is deficiency of service on the part of opposite parties in disbursing the claim as per Ext.A1 (1) to A1 (42). Regarding the claim as per Ext.A1(43) to A1(71) the complainant admits that he has not claimed for the amount from the opposite parties. Ay way the complainant is entitled to get the amount of `4257.11 as per Ext.A1 (43) to A1 (71). Even though the opposite party contended that the entire bill amount cannot be disbursed, the opposite parties have not produced any documents or details to show that which medicines will come under exclusion. So according to us, the complainant is also entitled to get the amount of `4257.11. As per the chief affidavit fled by opposite party, they affirmed that they had remitted back `1460, entitled by the complainant as balance of reimbursement during 2006. So the opposite parties are also liable to release the above said amount of `1460 to the complainant. Since it is found that there is deficiency of service and the complainant had suffered mental and financial strain, the opposite parties are liable to compensate the complainant by giving `500 as compensation and `500 as cost of these proceedings and passed order accordingly.
In the result, the complaint is allowed directing the opposite parties to disburse `8817(Rupees Eight Thousand Eight hundred and seventeen only) as the balance claim amount as per Ext.A1(1) to A1(42) ad `4257 as per Ext.A1(43) to A1(71) `1460 (Rupees One thousand four hundred and sixty only) as balance amount of claim during 2006 along with `500 (Rupees Five thousand only) as compensation and `500 (Rupees Five thousand only) as cost of this proceedings to the complainant within 30 days from the date of receipt of this order, failing which complainant is entitled to execute the order as per the provisos of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Receipts & Cash Bills
A2. Copies of the claim petition submitted before OP
A3. Letter dt.24.9.08 sent by OP1 dt.24.9.08.
A4. Copy of the Lawyer notice dated 10.06.2010 sent to OPs.
A5. Postal acknowledgement
A6. Reply notice
A7. Copy of the order in OP.117/2002 of CDRF, Kanur.
A8. Copy of the proceedings of Director of Insurance Medical service
No.A.17027/02 dt.24.9.08.
Exhibits for the opposite parties
B1. Copy of the receipt dt.21.10.10 for `7566.
B2 to B4. Copy of the acquittane register
B5. Copy of the post card dt.3.8.06 sent to complainant
B6. Copy of the regd. notice dt.17.4.10 sent to complainant
B6. Postal AD card
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
DW1.Muraleedhran.P.
/forwarded by order/
SENIOR SUPERINTENDENT
