Punjab

Ludhiana

CC/19/42

Deven Kumar - Complainant(s)

Versus

Employee State Insurance Corpn. - Opp.Party(s)

Narinder Chhibba Adv.

22 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:42 dated 17.01.2019.                                                 Date of decision: 22.08.2023.

Deven Kumar aged 20 years son of Sh. Davinder Pal, resident of H. No.983, Guru Har Rai Nagar, P.O. Netaji Nagar, Tehsil and District Ludhiana.                                                                                                  ..…Complainant

                                                Versus

Employee State Insurance Corporation Model Hospital, Near Bharat Nagar Chowk, Tehsil and District Ludhiana.                                                                                                                                                 …..Opposite party 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gurinder Singh, Advocate.

For OP                           :         Sh. Amandeep Malhotra, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant is a holder of ESI card and his contribution from his salary was being deducted by his employer Dada Motors. The complainant was insured vide insurance policy No.2613155632 with the opposite party. The complainant stated that his father is holder of mediclaim policy of Park Mediclaim Insurance TPA Pvt. Ltd. Under National Insurance Company Limited. On 20.04.2017, due to severe pain in brain of the complainant, his father took him to SPS Hospital, Sherpur Chowk, Ludhiana where due to further requirement of investigation and huge amount for his treatment, the complainant was discharged from SPS Hospital and was taken to opposite party. After investigation, the complainant was referred to Mohan Dai Oswal Hospital where he remained admitted and chemotherapy was given to him. The complainant further stated that he spent total medical expenses of Rs.2,90,215/-  at SPS Hospital, Ludhiana as well as Mohan Dai Oswal Hospital, Ludhiana. Out of the said amount, an amount of Rs.95,625/- was paid by National Insurance Co. through its allied services Park Mediclaim Insurance TPA Pvt. Ltd. under National Insurance Company Limited and Rs.1,94,590/- is still due against the opposite party but the opposite party dislodged the claim of the complainant on flimsy ground by issuing a letter to the complainant. In the end, the complainant prayed for directing the opposite party to pay an amount of Rs.2,14,049/- along with interest as well as litigation expenses.  

2.                Upon notice, the opposite party appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint. According to the opposite party, the complainant was not in continuous employment for last two years as per the rules at the time of diagnosis for SST and due to this reason the application was not referred by the opposite party due to non eligibility for super specialty treatment.

                   On merits, the opposite party averred that in fact as per instruction issued by ESIC Hqrs. Office on 07.11.2016 “The IP should have in continuous employment for the last two years as on the date of diagnosis of SST (other than the cases of employment injury) and at least 156 days contribution was paid by the IP during the immediately preceding four contribution periods with eligibility for sickness benefit in at least two benefit periods.” According to the opposite party, the complainant came to the hospital and his referral form was filled but was not signed by the competent authority because on scrutiny of documents, it was found that the said patient was not eligible for super specialty treatment. The complainant was registered on 08.03.2016 and the date of his diagnosis was 06.05.2017. So he was not in continuous employment for the last two years as on the date of his diagnosis, as such, he was not referred to Mohan Dai Oswal Hospital, Ludhiana. The complainant is not entitled for the claim of any amount. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 to Ex. C123 as medical record except the documents Ex. C108 is the claim denial letter dated 10.10.2017, Ex. C109 is the ESI card of the complainant, Ex. C110 is the copy of referral letter, Ex. C111 and Ex. C112 are the copies of contribution details, Ex. C113 is the copy of OPD ticket, Ex. C115, Ex. C116, Ex. C119 to Ex. C121 are the copies of lab report, Ex. C114 is the copy of scan copy of lab report, Ex. C117 is the copy of case summary dated 27.04.2017 of SPS Hospital, Ludhiana, Ex. C118 is the copy of MRI report, Ex. C122 is the copy of cashless authorization of Park Mediclaim Insurance TPA Pvt. Ltd., Ex. C123 is the copy of Aadhar card of the complainant and closed the evidence.

4.                 On the other hand, counsel for the opposite party tendered affidavit Ex. RA of Dr. Bhairavi Deshmukh, Medical Superintendent of the opposite party along with documents Ex. R1 and Ex. R2 are the copies of instructions of ESIC Headquarter office, New Delhi, Ex. R3 is the copy of citation of Hon’ble National Consumer Disputes Redressal Commission, New Delhi passed Arun Kumar Gupta Vs Employees State Insurance Corporation 1998(3) CPJ 11 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                Admittedly, the complainant is the holder of ESI card Ex. C109 and statutory contribution is being deducted from his salary by the employer M/s. Dada Motors. The factum of ailment suffered by the complainant is not denied by the opposite party but the opposite party had raised the issue with regard to eligibility of the complainant to seek reimbursement. The opposite party has referred to Ex. R1 letter dated 07.11.2016, the operative part of which reads as under:-

“The IP should have in continuous employment for the last two years as on the date of diagnosis of SST (other than the cases of employment injury) and at least 156 days contribution was paid by the IP during the immediately preceding four contribution periods with eligibility for sickness benefit in at least two benefit periods.”

 7.               Perusal of annexed documents shows that the complainant got himself registered on 08.03.2016 and he was diagnosed with the ailment on 06.05.2017 and obviously he was not in continuous employment for the last two years from the date of his diagnosis so to avail sickness benefits. So the opposite party was justified in declining the reimbursement claim of the complainant. More so, the complainant could not refer to any other provisions of the Act or any regulations governing the reimbursement of medical claim of ESI beneficiaries which entitles him to prefer such claim. Even otherwise, the initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.

8.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.  

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

Announced in Open Commission.

Dated:22.08.2023.

Gobind Ram.

 

 

Deven Kumar Vs Employee State Insurance Corp.                             CC/19/42

Present:       Sh. Gurinder Singh, Advocate for the complainant.

                   Sh. Amandeep Malhotra, Advocate for the OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:22.08.2023.

Gobind Ram.