SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 12 of  Consumer Protection Act 1986 for an order directing the  opposite parties to pay Rs.16800.8 as medical re-imbursement along with Rs.15,000/-as compensation and cost to the complainant for the deficiency of service  on their part.

 The case of the complainant in brief:

   The complainant is a loading and unloading worker under Kerala Transport company parcel booking office,Thayalangadi,Thalassery.  The company has got insurance coverage and he was insured with  No.5401767137.  On 24/11/2017 when he was unloading the parcels from the lorry bearing registration No.KL-11-G-7211 in the premises of Kerala Transport Company Thayalangadi the  complainant fell down from the lorry and sustained grievous injuries on his right wrist               ( scaphoid distal pole fracture(Rt).  Since there are no orthopeadic facilities in ESI hospital,Kannur district, he was advised to approach hospital other than ESI hospital.  The complainant was admitted at Thalassery Co-operative hospital on 24/11/2017 and discharged on 29/11/2017 with incomplete recovery.  Then the complainant approached Baby Memorial Hospital Kozhikode and there also not complete the recovery.  Then the complainant treated at City Hospital Mangalore and taken MRL Scan.  He referred to Tejaswini Hospital Mangalore for better treatment  and now he continuing his treatment also.  Then the complainant spend Rs.35,000/- for his treatment including travelling expenses also.  Then the  complainant submitted medical bills for an  amount of Rs.7534/- with records at  ESI dispensary Dharmadam and the same was forwarded to 1^st OP as file No.317/17-18 in connection with the treatment.  But those bills were not considered and no amount was reimbursed.  The complainant again submitted another bill for  Rs.9727/- at ESI dispensary Dharmadam in connection with the treatment.  But the 1^st OP  out of the bill of Rs.7534/- only allowed Rs.4532/- and further submitted  a bill of Rs.9727/- was disallowed by the OP’s.  On 13/4/2018 the complainant issued a registered lawyer notice to OP’s for medical  reimbursement.  The OP’s received the notice and refused the request of the complainant. The act of OPs the complainant caused much mental agony and financial loss.  So there is deficiency  of service and unfair trade practice on the part of OPs.  Hence the complaint.

      After  filing the  complaint  notice issued  to all OPs.  All OPs received the notice and   appeared before the commission and filed their written version.  Ops 1&3  contended that tis Hon’ble commission has no jurisdiction to entertain the complaint since there is a special court set up for resolving all disputes arising under the ESI Act 1948.  OPs 1&3 admits that the complainant is an employee covered under the ESI Act. The complainant appeared before 3^rd OP on 30/11/2017 with the allegation of Scaphoid fracture right.  It was only on that day  he revealed the treatment from co-operative hospital Thalassery from 24/11/2017 to 29/11/2017.  Then the complainant produced bills worth Rs.7534/-  The 3^rd OP has done everything possible on her side and passed the bill and forwarded the same to 1^st OP.  Moreover3rd OP had taken MRI scan from KMCT,Mukkam.  The complainant again submitted bill for Rs.9727/- but the 3^rd OP cannot allow the bill because the complainant had availed treatment  as “out patient” from different private hospitals without reference from the 3^rd OP.  These bills cannot be allowed by the OP’s as per the provisions of ESI Act and Rules.  There is no deficiency  of service on the part of OPs1&3. The complainant is filed this complaint with  an ulterior motive and the complaint may be dismissed.

   2^nd OP contended that a special court in the nature of a Tribunal is set up under Sec.74 of the ESI Act.  So this court has no jurisdiction  to entertain the case.  The claim for reimbursement at the dispensary for  an amount of Rs.9266/- which was not accepted  by the authorities. Another claim for Rs.7534/- at ESI dispensary, Dharmadam was not  accepted by the  OP’s.  As per Sec. 57 of the  ESI Act an insured person  shall be entitled to receive medical benefit only of  such kind and on such  scale as provided by the State Government or by the Corporation, and an insured person does not have a right to claim any medical  treatment except such  as is provided by the  dispensary ,hospital, clinic or other institution may be provided by the regulations.  So this OP is not liable for the same and no deficiency of service on his part.  So 2^nd OP may be exonerated.

      On the  basis of the rival contentions  by  the pleadings the following issues   were framed for  consideration

1. Whether the complaint is maintainable?
2.  Whether there is any deficiency  of service on the part of  the opposite parties?
3. Whether the complainant is  entitled for  any relief?
4.  Relief and cost.

       The   evidence consists of the oral testimony of PW 1 and   Exts.A1 to A21 marked .  On OP’s  side  no oral and  documentary  evidence.

Issue No.1:

    Opposite parties contended that the commission has no jurisdiction to entertain the complaint since there exists the ESI Act.  As per Sec.75(3) of the Act no civil court shall have jurisdiction to decide or deal with  any question of dispute or to adjudicate  on any liability which by or under this act is concerned.  But Hon’ble Supreme Court decided on 8/5/2007 in Kishorelal vs. Employees State Insurance corporation  held that “Medical service rendered in the ESI hospital/dispensary by the respondent corporation falls within the ambit of section 2(1)(o) of Consumer Protection Act 1986”,and therefore the  consumer forum has jurisdiction  to adjudicate  case and also held that the jurisdiction of consumer Forum is not ousted by virtue of sub section (1)or (2) or (3) of section 75 of ESI Act 1948.  So we are of the considered view that the complaint is maintainable before this  commission and issue No.1 found in favour of the complainant and answered accordingly.

Issue  No.2 to 4: 

     The  complainant adduced evidence  before the commission by submitting his  chief  affidavit  in lieu  of his chief examination to the  tune of the pleadings in the complaint and denying  the contentions in the version. PW1  was  cross examined  by all OPs. The documents Exts.A1 to A21 marked on his part to substantiate his case. On 24/11/2017 when complainant was unloading the parcels from the lorry in the premises of KTC Company and  the  complainant fell down from the lorry and sustained grievous injuries on his right wrist( scaphoid distal pole fracture(Rt).  The complainant was admitted at Thalassery Co-operative hospital on 24/11/2017 and discharged on 29/11/2017.  As per Ext.A5 clearly shows that the date of discharge only on 29/11/2017.  As per Ext.A4 series shows the cash bill paid by the  complainant.  In Ext.A2 is the application filed by the complainant to 3^rd OP dtd.5/12/2017 for the  medical  re-imbursement  of Rs.7534/- with file No.317/17-18 in connection with the  treatment. Thereafter the  complainant approached Baby Memorial Hospital Kozhikode as shown in Exts.A6&A7. Thereafter he  approached City Hospital Mangalore dtd.2/2/2018 as shown in Ext.A8 series and Ext.A9.  Again the  complainant approached  Tejaswini Hospital Mangalore dtd.19/2/2018 and treated there and the certificate marked as Ext.A10 series and Exts.A11, Exts.A14 to A19.  The OPs admitted that complainant is the employees covered  under the ESI Act with insurance No.5401767137.  The complainant’s allegation is that  he has submitted the bill of Rs.7534/-  to 1^st OP out of that amount  Rs.4532/- was allowed  by OPs and another bill submitted for Rs.9727/- disallowed by 1^st OP.   So the OPs are  liable to reimburse  Rs.14,648.08 to complainant.  Thereafter the complainant produce Ext.A20 the entitlement certificate for super speciality treatment issued by 2^nd OP and Ext.A21 is the permission letter issued by  3^rd OP before the commission .  In the evidence of PW1 who stated before the commission that  “ km[mcWKXnbn ESI bpsS \jvS]cnlmcw In«Wsa¦n concerned  ESI   Unkv]³kdnbn \n¶v refer sNbvXm am{Xta \jvS]cnlmcw e`n¡q F¶ Imcy Adnbmtam? AdnbnÃ.’’  But in the documents Exts.A20&A21 clearly shows that the OPs have already given permission to complainant to treat in other higher centre also.

   The OPs have not produced any documents or evidence to prove their defense.  So the complainant is entitled to get the reimbursement amount  of Rs.14,648.08 from OPs 1&3.  According to the complainant failure to provide the re-imbursement amount  the OPs are directly bound to redressal the grievance caused to the complainant.  So there is  deficiency  of service and unfair trade practice on the part of OPs.  Therefore  we hold that OPs 1&3 are jointly and severally liable to reimburse the amount of Rs.14,648.8/- to the complainant.  Moreover OPs 1 to 3 are jointly and severally liable to pay Rs.6000/- as compensation for mental strain and stress of the complainant along with Rs.3000/- as litigation cost. Thus  the issue No.2 to 4 are also  accordingly answered.

     In the result, the complaint is allowed in part directing the opposite parties 1&3 are jointly and severally liable to reimburse the amount of Rs.14,648.8/- to the complainant along with  opposite parties 1to 3 are jointly and severally liable to pay Rs.6000/- as compensation for mental strain and stress of the complainant along with Rs.3000/- as litigation cost  within  30 days  of  receipt  of this order.    In default  the amount of Rs. 14,648.8/-  carries interest @9% per annum  from the date of order till  realization .  Failing which the  complainant is  at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.

Exts:

A1 – Order copy of CC.270/2010

A2- application filed before OP.3 dtd.5/12/2017

A3- photocopy of  slip dtd.5/12/2017

A4 series-cash bill(3 in No.)

A5-copy of discharge summary  of Thalassery Co-op.hospital

A6series-cash bill Baby Memorial Hospital(5 in Nos.)

A7-Medical certificate  of Baby Memorial

A8series-cash bill(4 in No.)

A9-Medical certificate issued by City Hospital Mangalore

A10 series-Cash bill(11 in Nos)

A11-Prescription from Tejaswini Hospital Mangalore

A12-copy of lawyer notice

A13-postal receipt with AD

A14-receipt issued by Tejaswini Hospital Mangalore

A15-Cash bill invoice dtd.11/3/2019

A16-X-ray charge

A17-consultation fee receipt 11/3/2019

A18-cash bill invoice

A19-out patient  receipt dtd.10/12/2018

A20-Entitlement certificate issued by 2^nd OP

A21- permission letter issued by 3^rd OP

PW1-Ibrahim.K- Complainant

 Sd/                                                               Sd/                                                 Sd/

PRESIDENT                                  MEMBER                                   MEMBER

Ravi Susha                             Molykutty Mathew                             Sajeesh K.P

eva                                                           /Forwarded by Order/

                                                         ASSISTANT REGISTRAR