Punjab

Ludhiana

CC/14/42

Mohinder Poddar - Complainant(s)

Versus

ESI Corpn. - Opp.Party(s)

24 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Complaint No: 42 of 15.01.2014

                                                                                     Date of Decision: 24.04.2015

Mohinder Poddar s/o Sh.Bharat Podder, resident of House no.114, St. No.10, Ram Nagar, Mudian Kalan, Ludhiana.

……Complainant

Versus 

1. ESI Corporation, ESIC Headquarters, Near Indra Prastha Post Office, Kotla Road, New Delhi, through its Director General.

2. The Regional Director, ESI Corporation, Sector 19-A, Madhaya Marg, Chandigarh-19.

3. The Director, Health Services, Social Insurance, Punjab, Sector 34-D, Chandigarh.

4. The Manager, Employees State Insurance Corporation, Focal Point, Ludhiana.

5. The Incharge, ESI Dispensary, Dhandari Kalan, Ludhiana.

6. M/s Bajaj Sons Ltd., C-92-93-94, Focal Point, Phase-V, Ludhiana, through its Director.

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                     Sh.Sat Paul Garg, Member

 

Present:       Sh.Sharwan Sehgal, Advocate for complainant.

                   Sh.Pawan Kumar Sharma, Advocate for OP1, OP2 and OP4.

                   Sh.P.S.Chawla, Advocate for OP3 and OP5.

                   Sh.S.M.Gulati, Advocate for OP6.

 

                   

                        ORDER

 

(SAT PAUL GARG, MEMBER)

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Mohinder Poddar s/o Sh.Bharat Podder, resident of House no.114, St. No.10, Ram Nagar, Mudian Kalan, Ludhiana (herein-after in short to be referred as ‘complainant’) against ESI Corporation, ESIC Headquarters, Near Indra Prastha Post Office, Kotla Road, New Delhi, through its Director General and others (herein-after in short to be referred as ‘OPs’)- directing them to pay the amount of bills and the complainant may also be given monthly pension alongwith compensation of Rs.1.00 lac for harassment, mental agony and deficiency in service to the complainant.

2.                Brief facts of the complaint are that the complainant was working as Sweeper with OP6. His ESI deductions were being made from his salary. His Insurance no. is 2609459034. The complainant suffered accident in the course of his employment while coming out from factory to go home on 4.8.11, which is considered to be accident during the course of employment under ESI Rules and in that accident he has suffered injuries in his left leg and left shoulder. As the complainant was out of his senses he was taken to the hospital by the passers-by and was admitted in the Civil Hospital, Ludhiana and afterwards he was admitted into ESI Hospital, Ludhiana on 5.8.11 and on 13.8.11 the complainant was referred to Mediciti and as afterwards Mediciti refused treatment, the complainant was got admitted in Military Hospital, Jalandhar and afterwards he was shifted to Delhi and as there was no treatment available, he was got admitted to Amandeep Hospital, Model Town, G.T.Road, Amritsar and he had to spend a huge amount on his treatment, his left leg was cut and resultantly he is not able to walk properly. Moreover, no treatment was given with regard to injury to the shoulder and as a result of the same his left arm is also not working and hence he has become disabled for life. For the above mentioned disablement, the complainant is entitled to receive pension from ESI Corporation. The complainant is also entitled to reimbursement of the amount, which was spent by him. Complainant also sent a legal notice dated 4.9.13 through his counsel. The reply was sent by some of the OPs and the complainant was told to submit the bills in original and he went alongwith the bills, but he was told that he should come after submission of accident report by OP6. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1, OP2 and OP4 appeared through their counsel and filed written statement, whereby para no.1 of the complaint is admitted as correct. Para no.2 of the complaint is denied being wrong. Further submitted that the complainant worker has not submitted any documentary evidence in support of his treatment i.e. (i) He was admitted in Civil Hospital, Ludhiana, ii) He was admitted in ESI Hospital, Ludhiana, iii) He was referred to Medicity Hospital by ESI Hospital, Ludhiana, iv) He was admitted in Military Hospital, Ludhiana v) Paper related to treatment taken in Delhi, vi) Other evidence in support of his treatment taken. As such, complainant is not entitled to receive pension from ESI Corporation. Further submitted that any claim for reimbursement of medical treatment is to be submitted by the worker in the concerned ESI Dispensary allotted to him. Further submitted that employer had not submitted any accident report under regulation 68. Enquiry reveals that as per employer records, employment injury has not occurred to the complainant worker. Hence no accident report was submitted by him. The complainant worker had not submitted required paper related to his injury/treatment. The complainant worker has not furnished any FIR/treatment paper indicating medico-legal case. The complainant was given due reply, vide this office letter no.PB/BFT/Misc-09/Legal Notice dt. 28.10.13. Beside, the complainant worker had been paid sickness benefit/extended sickness benefit for Rs.7917/- plus Rs.60,588/- = Rs.68505/- as per this entitlement under provision of ESI Act. Hence there is no deficiency in service on the part of the corporation.

4.                OP3 and OP5 also appeared through their counsel and filed their written statement taking preliminary objections that the present complaint is not maintainable as there is no relation of consumer and service provider between the complainant and answering OPs; the complainant has concealed material facts from this Forum. Further submitted that actually the OP5 has only to verify the bills so provided by the insured person (employed under ESI Rules and insured with OP4) and after verifying the bills, the OP5 and with the consent of OP3 sanctioned the actual amount as per CHGS/Government Rates for the treatment taken by the insured person from private hospitals and as per rules of Government of Punjab as the OP3 and OP5 are the departments of Government of Punjab. Until or unless, the said procedure is not adopted by the insured person, there would be no liability and no any procedure warrants the OP3 and OP5 to get assured the benefits/reimbursement claimed by the insured person against the expenditures on his treatment against bills. In the present case also the complainant failed to approach with OP3 with the original bills except through his legal notice dated 4.9.13. On merits, submitted that since the complainant has not fulfilled the requisite formalities, especially handing over of original bills to the OP3, so it cannot be said to be a deficiency in service on the part of OP3 and OP5. Further submitted that the contents of some of the paras are not related to them and further denying the contents of all other paras, prayed for the dismissal of the complaint.

5.                OP6 also appeared through his counsel and filed written statement taking preliminary objections that the present complaint is an abuse of provisions of Consumer Protection Act, 1986, this Forum has got no jurisdiction to entertain the present complaint in its summary jurisdiction; the present complaint is bad on account of mis-joinder of parties. Answering OP is neither a necessary nor a proper party to the present proceedings; the complainant has no cause of action to file the present complaint against the answering OP. Further submitted that the complainant has neither provided any details of the alleged accident nor has provided any documentary evidence to the answering OP, so as to enable the answering OP to believe the veracity of the statement of the complainant with regard to his alleged road side accident. He has not provided any copy of FIR, which was recorded by the police. The answering OP cannot take the bare statement of complainant as gospel’s truth with regard to the receipt of personal injuries by the complainant in an accident allegedly arising out of and in the course of his employment with the answering OP; the present complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, para no.1 of the complaint is admitted to the extent that the complainant was in the employment of the answering OP and was insured with OP4. Further submitted that the answering OP is not aware of the rules for sanction of pension by OP1 to the complainant in the given circumstances. Further submitted that the answering OP has not been provided with the copies of the bills allegedly attached by the complainant with the complaint, as such the answering OP is unable to comment upon the authenticity/veracity of the said bills of expenses incurred by the complainant on his alleged treatment. Further denying the contents of all other paras of the complaint, prayed for the dismissal of the complaint.

6.                Ld. Counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Sh.Mohinder Poddar Ex.CA, wherein the same facts have been reiterated as narrated in the complaint and also attached documents Ex.C1 to Ex.C139. On the other hand, Ld. Counsel for OP1, OP2 and OP4 has adduced the evidence by way of duly sworn affidavit of Sh.Sanjay Bhatia, SSO of ESI Corporation, Focal Point, Ludhiana Ex.RA, wherein the same facts have been reiterated as narrated in the written statement and also attached documents Ex.D1 to Ex.D13. Whereas, Ld. Counsel for OP3 and OP5 has adduced the evidence by way of duly sworn affidavit of Dr.Amita Jain, Medical Officer, ESI Dispensary-III, Ludhiana Ex.RA3, wherein, the same facts have been reiterated as narrated in the written statement of OP3 and OP5 and also attached documents Ex.R3/1 and Ex.R3/2. Ld. Counsel for OP6 has adduced the evidence by way of duly sworn affidavit of Sh.Kanwaljit Singh Rahena, s/o Sh.Jaspal Singh presently working as Manager, Personnel with M/s Bajaj Sons Limited situated at Plot no.103-C, Phase-V, Focal Point, Ludhiana Ex.OP6/X and also attached documents Ex.OP6/A to Ex.OP6/F.

7.                Case was fixed for arguments. Ld. Counsel for complainant argued that As the complainant was out of his senses at the time of accident and he was taken to the hospital by the passers-by and was admitted in the Civil Hospital, Ludhiana and afterwards he was admitted into ESI Hospital, Ludhiana on 5.8.11 and on 13.8.11 the complainant was referred to Mediciti and as afterwards Mediciti refused treatment, the complainant was got admitted in Military Hospital, Jalandhar and afterwards he was shifted to Delhi and as there was no treatment available, he was got admitted to Amandeep Hospital, Model Town, G.T.Road, Amritsar and he had to spend a huge amount on his treatment, his left leg was cut and resultantly he is not able to walk properly. Moreover, no treatment was given with regard to injury to the shoulder and as a result of the same his left arm is also not working and hence he has become disabled for life.

8.                On the other hand, Ld. counsel for OP1, OP2 and OP4 argued orally that Further submitted that the complainant worker has not submitted any documentary evidence in support of his treatment i.e. (i) He was admitted in Civil Hospital, Ludhiana, ii) He was admitted in ESI Hospital, Ludhiana, iii) He was referred to Medicity Hospital by ESI Hospital, Ludhiana, iv) He was admitted in Military Hospital, Ludhiana v) Paper related to treatment taken in Delhi, vi) Other evidence in support of his treatment taken. As such, complainant is not entitled to receive pension from ESI Corporation. Further submitted that employer had not submitted any accident report under regulation 68. Enquiry reveals that as per employer records, employment injury has not occurred to the complainant worker. Hence no accident report was submitted by him. The complainant worker had not submitted required paper related to his injury/treatment. The complainant worker has not furnished any FIR/treatment paper indicating medico-legal case. The complainant was given due reply, vide this office letter no.PB/BFT/Misc-09/Legal Notice dt. 28.10.13. Beside, the complainant worker had been paid sickness benefit/extended sickness benefit for Rs.7917/- + Rs.60,588/- = Rs.68505/- as per this entitlement under provision of ESI Act. Hence there is no deficiency in service on the part of the corporation.

9.                Ld. counsel for OP3 and OP5 argued orally that the OP5 has only to verify the bills so provided by the insured person (employed under ESI Rules and insured with OP4) and after verifying the bills, the OP5 and with the consent of OP3 sanctioned the actual amount as per CHGS/Government Rates for the treatment taken by the insured person from private hospitals and as per rules of Government of Punjab as the OP3 and OP5 are the departments of Government of Punjab. Until or unless, the said procedure is not adopted by the insured person, there would be no liability and no any procedure warrants the OP3 and OP5 to get assured the benefits/reimbursement claimed by the insured person against the expenditures on his treatment against bills. In the present case also the complainant failed to approach with OP3 with the original bills except through his legal notice dated 4.9.13 and complainant has not fulfilled the requisite formalities, especially handing over of original bills to the OP3, so it cannot be said to be a deficiency in service on the part of OP3 and OP5.

10.              OP6 also filed written arguments, whereby averred that since the complainant never provided any information about his alleged accident to OP6/employer, as such, the OP6 could not inform about the accident to the ESI Corporation for sanction of disablement benefits to the complainant. In terms of the provisions of Regulation 65(i) of ESI (General) Regulations, 1950, the complainant/every insured person who sustains personal injury caused by accident arising out of and in the course of his employment in a factory or establishment shall given notice of such injury either in writing or orally, as soon as practicable after the happening of accident. In the present case complainant did not give any notice either to the ESI Corporation or to the employer. Further as per Regulation 65(ii) the insured person in required to given such notice to the employer or to the foreman or to other official under whose supervision, the insured person is employed at the time of the accident or any other person designated for the purpose by the employer and shall contain appropriate particulars. The entire procedure for notice of accident has been provided in Regulation 65 of the ESI (General) Regulations, 1950. In the present case, the complainant has not complied with the regulation, as such, he cannot shift the blame for non sanction of disability benefit upon the OPs. Further submitted that the complainant had been taking inconsistent stand with regard to the accident. Firstly he submitted an affidavit dated 12.7.13 duly sworn in before the Notary Public, Ludhiana with OP4 alleging that he received injuries by accident arising out of his employment on 3.8.11 on the basis of which OP4 called for explanation of the OP6, which was duly submitted and it was explained that the complainant had worked with the OP6 on 4.8.11 and thereafter had abstained from his duties w.e.f 5.8.11 till 11.10.11. The complainant had submitted first medical certificate on 12.10.11. It was specifically informed by the OP6 to OP4 that the complainant did not receive any injury by accident arising out of his employment with OP6. Thereafter the complainant changed his stand and submitted a fresh affidavit dated 20.8.13 duly sworn in before the Notary Public, Ludhiana alleging that he received injuries by accident arising out of his employment which occurred on 4.8.11. The OP6 is not aware of the treatment received by the complainant, because the complainant never submitted any record with OP6 about his medical treatment. The complainant even did not submit any medical prescription issued by the ESI Dispensary or Hospital, so as to claim Medical Leave from OP6. The allegations of the complainant are bald and do not hold good. No documentary proof of the allegations has been placed on record and no copy of such information has been provided by the complainant to OP6 prior to submission of affidavit with the OP4, as such, it cannot be alleged by the complainant that there is any kind of deficiency in services of the OP6, in as much as non submission of accident report to OP4. Even otherwise, the answering OP4 is/was unable to send any information about the alleged accident and receipt of personal injuries by the complainant because no accident took place arising out of and the course of employment of the complainant with OP6. The OP6 had replied to the legal notice dated 4.9.13, vide their letter sent per registered post dated 9.10.13 to the counsel for the complainant, wherein factual position was explained by OP6. There is no deficient of any service on the part of OP6.

11.              We have gone through the pleadings of the complainant as well as defence taken by the Ops and gone through the written arguments submitted on behalf of complainant as well as OP6 and the entire record placed on file.

12.              It is evident from the complaint that accident took place in the course of his employment while coming out from factory to go home on 4.8.11 and complainant was inflicted with the injury and also evident from the cash memos placed on file. It is also deposed in para 7 of the written statement and evidence of OP1, OP2 and OP4 that an amount of Rs.68505/- was paid to the complainant as sickness benefit/extended sickness benefit under the provisions of ESI Act. The bills, which are attached with the affidavit of Sh.Sanjay Bhatia, SSO of ESI Corporation D-1 to D-13 reveals that payment was duly made to him, but has not been clarified by the Ops, whether the payment of Rs.68,505/- is in accumulative with the cash memos and bills duly placed on record by the complainant. This payment also shows that case of the complainant is covered under the ESI Act. Moreover, the averments made by the Ops that no intimation was sent by the complainant under regulations 68 of the ESI Act. However, there is proviso 64 in the said regulation, which is as follows:-

64. Failure of submit medical certificate:- If a person who intends to claim sickness benefit of disablement benefit for temporary disablement fails to submit to the appropriate(Branch Office) by post of otherwise the first medical certificate or any subsequent medical certificate within a period of three days from the date of issue of such certificate he shall not be eligible for that benefit in respect of any period:-

(i)         In the case of first certificate, more than three days before the date on which the certificate is submitted to appropriate (Branch Office);

(ii)        In the case of subsequent certificate, more than fourteen days before the date on which sub subsequent certificate is submitted to the appropriate (Branch Office)

Provide that the appropriate Regional Office or other office as authorized by Director-General may relax all or any of the provisions of this regulation in any particular case, if it is satisfied that the delay in submitting a certificate was due to bona fide reasons.

                   Moreover it was also mandatory for insurance company under the regulation 68 to send the report to the concerned authority, which it failed to do.

13.              Sequel to the above discussion, the present complaint is allowed and OP1, OP2, OP4 and OP6 are directed to calculate the actual claim filed by the complainant and to pay difference, which is in excess of Rs.68,505/- to the complainant and also to consider his case for pension in view of his disability as per policy. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties free of costs. File be consigned to record room.  

                             (S.P.Garg)                                         (R.L.Ahuja)

                              Member                                            President

Announced in Open Forum.

Dated:24.04.2015 

Hardeep Singh