Punjab

Ludhiana

CC/15/252

Mrs.Gurdish Kaur - Complainant(s)

Versus

ESIC Corpn. - Opp.Party(s)

R.K.Bhandari Adv.

12 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 252 of 16.04.2015

Date of Decision          :   12.06.2017

 

Mrs.Gurdish Kaur aged 54 years d/o S.Harbans Singh Sandhu, r/o 221-D, Bhai Randhir Singh Nagar, Ludhiana, holder of Insurance No.2610348185.

….. Complainant

Versus 

 

1.The Director General,  E.S.I.C. Corporation, Kotla Road, New Delhi-110002.

2.The Regional Director, E.S.I.C. Corporation, Panchdeep Bhawan, Block No.3, Sector-19-A, Madhya Marg, Chandigarh-160020.

3.The Senior State Medical Commissioner, E.S.I.C. Corporation, Panchdeep Bhawan, Block No.3, Sector 19-A, Madhya Marg, Chandigarh.

4.The Joint Director, ESIC Corporation, SCO:22-23, Phase II, Urban Estate, Focal Point, Ludhiana.

5.The Health Director, Directorate of Health & Family Welfare Punjab, Parivar Kalyan Bhawan, Sector-34-A, Chandigarh.

6.The Medical Officer In-charge of ESIC Model Hospital, Bharat Nagar Chowk, Ludhiana.

7.Baba Jaswant Singh Dental College & Hospital & Research Institute, Sector 40, Moti Nagar, Ludhiana through its Manager.

8.Christian Medical College & Hospital, Ludhiana, through its Chairman.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.R.K.Bhandari, Advocate

For Op1 to OP4 & OP6 :         Sh.Sudhir Kumar Gupta, Advocate

For OP5 and OP7          :         Ex-parte

For OP8                         :         Sh.Ravison Mattu, Senior Law Officer

 

PER G.K DHIR, PRESIDENT

 

1.                          To recapitulate, the case of the complainant, she was born on   14.4.1961 and joined service of OP7(erroneously mentioned as OP6 in the complaint) as regular employee as Assistant Warden, due to which, she became member under ESIC scheme w.e.f.1.9.2009 by way of allotment of insurance No.2610348185. A smart card carrying photograph of the complainant was issued by OP1 in her name. Complainant and her family members were entitled to avail all types of sickness benefits as provided under the ESIC scheme. OP7 had been deducting employees contribution from her salary each and every month @1.75% and thereafter, the same has been deposited along with share of employer @4.75% in account of ESIC in State Bank of India, Treasury Branch, Ludhiana. Complainant  suffered from left renal cell carcinoma, due to which, she was taken by her       family on 24.7.2013 to OP6 for her proper medical treatment. Dr.Gurinder Kaur, Surgeon, after checking the complainant, refused to perform operation for treatment of above said disease. Rather, the complainant was referred to OP8, despite the fact that she and her family members kept on pleading the concerned doctor and Medical Superintendent of ESIC Model Hospital, Ludhiana for providing medical treatment there. As the complainant  suffered from unbearable physical pain and heaviness     of abdomen on left side and as such, Op1 to OP6 as per ESIC rules were bound to provide best medical treatment to her, but they refused to do so. So, complainant had to get medical treatment from OP8 by way of getting herself admitted as indoor patient on 26.7.2013. Case of the complainant was diagnosed as of left renal cell carcinoma. Complainant was scheduled to be operated for the same on 30.7.2013, but she  suffered from high fever on that day and that is why surgical operation     was postponed. Dr.Kim J. Mammen, Professor & Head of Department of Urology of OP8 hospital, vide his written letter dated 31.7.2013, informed OP6 about the same. Through that letter, intimation even was given to Medical Officer In-charge of OP6 that complainant will require further hospital stay for 8 days and approximate cost of her treatment would be Rs.1.5 lac. Approval was sought for such treatment through that letter. Complainant had to get advance from her employer namely OP7 for medical treatment and thereafter, she was medically treated on 1.8.2013 in hospital of OP8. Complainant remained admitted in hospital of OP8 from 27.7.2013 to 17.8.2013. An amount of Rs.2,85,095/- including admission fee, nursing charges and hospitalization charges etc were spent by the complainant. Vide letter dated 8.8.2013, Dr.Francis Sridhar, Assistant Professor, Department of Urology, CMC & Hospital, Ludhiana called upon OP6 to provide approval and appropriate referral for the said treatment. Thereafter, vide letter dated 10.8.2013, Dr.Kim J.Mammen, Professor & Head of Department of Urology of OP8 called upon OP6 to give approval and appropriate referral for the plan of treatment. Despite persistent efforts by the complainant and OP8, Ops made payment of barely Rs.1 lac vide two installments of Rs.70,000/- and Rs.30,000/- respectively vide receipts NO.8801270 dated 14.8.2013 and 8790274 dated 31.7.2013. Complainant had to cough up the balance amount of Rs.1,85,095/- out of her pocket for her medical treatment and as such, by unethical action of OP1 to OP6 in not paying the balance amount, complainant suffered mental agony and harassment. This harassment suffered by the complainant despite the big slogans of ESIC qua providing VIP treatment for the insured person. OP1 to OP6 have flouted the ESIC rules and norms in not paying the balance amount of Rs.1,85,095/- and as such, by pleading deficiency in service, prayer made for directing OP1 to OP6 to reimburse the balance amount of Rs.1,85,095/-. Compensation for harassment and agony of Rs.1 lac more claimed.

2.                In joint written statement filed by Op1 to OP4 and OP6, it is claimed that the complainant is not an employee of OP6, rather she is employee of OP7. Admittedly, the complainant visited OP6 on 24.7.2013 and thereafter, she was referred to CMC Hospital for further treatment, but after conducting of due preliminary investigation. ESIC Model Hospital has made an arrangement with OP8 for getting provided cashless services to the patients referred by ESIC Model Hospital, Ludhiana. However, the medical bill amount claimable as per CGHS rates, terms and conditions of ESIC rules and regulations. Complainant was referred for specialized treatment at expenses of OP6. OP6 to make payment of medical bill amount after being submitted by OP8 after treatment and discharge of the patient concerned. Op6 approved the stay of the complainant with OP8 as per requirement. It is denied that an amount of Rs.2,85,095/- were incurred as expenses by the complainant on treatment during admission period from 27.7.2013 to 17.8.2013. Rather, OP8 submitted medical bill of amount of Rs.1,11,188/- by specifically mentioning the dates as from 27.7.2013 to 19.8.2013. Against this bill, payment of Rs.80,193/- was made to OP8 by OP6 as per CGHS rates, terms and conditions of the scheme. This payment was made as per agreement with OP8. In case, any payment in excess of the agreement claimed by OP8, then liability of OP1 to OP6 for payment of the same is not there. Entitlement of the complainant for her treatment was by way of admission in general ward only, but she took a private room along with other facility attached thereto, while getting treatment. Jasdeep Kaur, attending daughter of the complainant submitted a patient/attendant satisfaction certificate for mentioning that a private room along with facilities was taken for treatment of complainant at their own expenses. Admittedly, answering Ops are provided cashless treatment services to the insured persons. As per policy, the complainant was         got provided medical treatment from OP8 and payment as per approved rates had already been made and as such, it is claimed that the complainant is not entitled to any balance amount or to compensation. Each and every other averment of the complaint denied by claiming that full payment for treatment of the complainant has been made to OP8.

3.                In separate written statement filed by OP5, it is admitted that complainant was covered under the scheme framed as per the provisions of ESI ACT in matter of getting treatment. ESI Model Hospital, Ludhiana referred the complainant for treatment to OP8. If an employee covered under the ESI Act, then entire responsibility for medical reimbursement is of ESI Corporation and its officers. The Punjab Government or the Health Director, Directorate of Health and Family Welfare Punjab, Parivar Kalyan Bhawan, Sector 34-A, Chandigarh is not responsible for the medical reimbursement. So, it is claimed that OP5 has             been erroneously impleaded, despite the fact that liability of OP5 is not there at all. Rather, liability for medical reimbursement solely lies on ESIC Corporation as per Section 53 of the Employees State Insurance Act, 1948. Prayer made for dismissal of complaint against OP5.

4.                In separate written statement filed by OP8, it is claimed that it is not a necessary and proper party at all, due to which, complaint against it is not maintainable, particularly when the relief against OP8 even has not been sought through complaint. OP8 claims to be having no knowledge if the complainant regularly working with OP7. However, it is admitted that the complainant was diagnosed as a case of carcinoma and she was referred to OP8 for treatment through ESIC, Ludhiana. Admittedly, the complainant was admitted for medical treatment in OP8 hospital on 27.8.2013 for diagnosis of left renal cell carcinoma on being referred by ESIC Hospital, Ludhiana. Admittedly, the surgery of the complainant was planned for 30.7.2013, but the same had to be postponed on account of sufferance of high fever by the complainant. Intimation of postponement of surgery to ESIC Hospital, Ludhiana was given through letter dated 31.7.2013 written by Dr.Kim J. Mammen. Admittedly, the complainant underwent surgery on 1.8.2013 and she was discharged on 19.8.2013. Payable bill amount alleged to be of amount of Rs.2,85,095/-. It is further claimed that post operative plan was duly explained and informed to ESIC Hospital, Ludhiana. Complainant was treated well by the qualified, competent and experienced doctors and as such, there was no negligence or deficiency in service on the part of OP8 and nor OP8 had adopted any unfair trade practice.

5.                OP5 and OP7 are ex-parte in this case. Though, written statement filed by OP5, but later on, none appeared for it and that is why, OP5 was proceeded ex-parte vide order dated 21.10.2016.

6.                Complainant to prove her case tendered in evidence her affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C22 and thereafter, her counsel closed the evidence.

7.                On the other hand, counsel for OP1 to OP4 and OP6 tendered in evidence affidavit Ex.RW1 of Dr.Rakesh Kumar, Medical Superintendent of ESIC Model Hospital, Bharat Nagar Chowk, Ludhiana along with documents Ex.RW1/A to Ex.RW1/F and then closed the evidence.

8.                Counsel for OP8 tendered in evidence affidavit Ex.RA8 of Dr.William Bhatti, Medical Superintendent of Christian Medical College & Hospital, Ludhiana along with document Ex.R1/8 and thereafter, closed the evidence.

9.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

10.              Undisputedly, from the pleadings of the parties and from the record of ESIC Card Ex.C1=ExC4, it is made out that the complainant is an insured person under the ESIC scheme, due to which, she is entitled to avail medical facilities for treatment/ super specialty treatment as per rules and regulations of ESIC Corporation. There is no dispute regarding fact that the complainant got treatment for suffering from left renal cell carcinoma on being referred by OP6 to OP8 during period from 27.7.2013 to 19.8.2013 as an indoor patient. Even if the complainant is an insured entitled to avail facility of medical reimbursement claim, despite that the payment to be made as per rules and regulations of ESIC.

11.              Ex.C2 is referral form(permission letter) issued by OP6, on the basis of which, treatment was got by the complainant from the hospital of OP8 under an arrangement between OP1 to OP4 and OP6 with OP8. Ex.C3 is the check-in/admission of referred patient card, whereas Ex.C4 is Smart Card issued in favour of complainant by ESIC.

12.              Record of treatment of complainant with OP8 along with letters and reports of treatment as well as bills are produced on record as Ex.C5 to Ex.C22 by the complainant. Letter Ex.C6 was sent by Dr.Kim J. Mammen to the Medical Officer Incharge of OP6 for informing as if the complainant was diagnosed with left renal cell carcinoma, due to which, schedule for left radical nephrectomy was of date 30.7.2013, but the same had been postponed because of the complainant suffering from high grade fever. Eight days more stay was suggested/advised through this Ex.C6 by mentioning as if approximate cost of the treatment would be  Rs.1.5 lac. Even if    this letter Ex.C6 has been sent by Dr.Kim J.Mammen of OP8 hospital to OP6, despite that same does not mention that disclosed cost of treatment will be as per CGHS rates or as per rules and norms of ESIC or not. However, after that letter Ex.C7 dated 8.8.2013 was sent by Dr.Francis Sridhar, Assistant Professor, Department of Urology of OP8 hospital to OP6 for informing that complainant underwent left radical nephrectomy on 1.8.2013, due to which, she will be required to have further hospitalization for 7 days on approximate costs of treatment as Rs.80,000/-. Even in this letter Ex.C7 or in the subsequent letter of date 10.8.2013 Ex.C8, mention is not at all made as to billing at what rate is suggested.            Rather, in Ex.C8, total billing amount upto the date of billing mentioned as Rs.1,12,000/-. If in Ex.C8 of date 10.8.2013, it is mentioned that total billing amount is of Rs.1,12,000/-, but for further hospitalization for seven days, an approximate amount of Rs.80,000/- more will be spent on treatment, then the contents of Ex.C6 and Ex.C7 suggests the costs of treatment as Rs.1,50,000/- and Rs.80,000/-,         which shows as if the approximate cost of treatment mentioned is                        somewhat  extra. So, reliance on Ex.C6 and Ex.C8 cannot at all be placed for    holding that actually more than Rs.2 lac were required for treatment of the complainant during hospitalization from 27.7.2013 to 19.8.2013.

13.              Perusal of bill Ex.C9 reveals that bed charges of amount of Rs.65,750/- claimed for stacking claim of total charges of Rs.2,47,354/- including amount of Rs.30,000/- already deposited as balance by contents of Ex.C10, which is part of Ex.C9. However, in final bill Ex.C11, bed charges of amount of Rs.88,850/- are included. In the total, claimed amount of Rs.2,85,095/-, an amount of Rs.1 lac already stood deposited as reflected by contents of Ex.C12, which is part of Ex.C11.

On bill Ex.C12 itself endorsement made that private room for 20 days was used by the complainant during her treatment as indoor patient in CMC & Hospital, Ludhiana. If private room for 20 days availed by the complainant at her own, then certainly ESIC not liable for paying the charges for availing and using of this private room for 20 days because liability of ESIC is to pay as per rules and regulations of it.

14.              Ms.Jasdeep Kaur, daughter of the complainant through Ex.RW1/E endorsed in her hand having taken private room and other facilities at their own

 

expenses by making payment from their pocket. So, this endorsement of Ex.RW1/E along with contents of noting of use of private room for 20 days endorsed on Ex.C8 enough to establish as if the complainant and her family members were fully aware that they will have to pay the amount from their own pocket for use of private room and the other facilities/services attached with that room. In view of that knowledge on the part of the complainant or her family members, certainly ESIC not bound to pay the charges for availing services of private room or facilities attached with that. So, amount of charges of bed endorsed in Ex.C9 or Ex.C11 liable to be deducted from the alleged entitled amount straightway.

15.              Ex.C17 to Ex.C22 are the documents showing the details of contribution made by the complainant towards employee state insurance scheme for availing medical facilities. That medical facilities not denied by OP1 to OP4 and OP6, but claim has been restricted to the extent alleged to be as per rules and regulations of ESIC.

16.              Ex.RW1/A is the agreement between OP6 and OP8 through which cashless medical facilities to be provided by the insured persons under the ESIC scheme. Perusal of sub clause 9(b) of clause 1 of general conditions of Ex.RW1/A shows that as per arrangement between OP6 and OP8, OP8 to charge for providing treatment to the admitted patients as per CGHS (Chandigarh) rates and where those charges not applicable, then as per CGHS(Delhi) rates. However, in case such package rates are not available, then charges to be levied by OP8 as per ESIC      rates as applicable on the date of providing treatment to the insured patients referred by ESIC. As per clause III of Ex.RW1/A, if increased duration of indoor patient due to infection or the consequences of surgical procedure or due to any improper procedure is not justified, then OP6 will not be liable to reimburse the amount for such increased duration. Extended stay for more than period covered in the package rate in exceptional cases permissible on being supported by relevant documents and medical records and certificate of the hospital as per clause IV of Ex.RW1/A. Further as per clause IV of Ex.RW1/A, the additional reimbursement will be limited to accommodation charges, investigation charges, at approved rates and doctors visit charges(two visit/day) and cost of medicine. No record produced by the complainant to show that after issue of letters Ex.C6 by Dr.Kim J.Mammen, the period of stay has been extended by OP6.

17.              Preferring of bills will be strictly as per CGHS Codes/ESIC Codes is also prescribed by clause 2 of agreement Ex.RW1/A available at page no.8. Even clause 16.2 of criteria for empanelment/de-empanelment or public health organization framed under ESIC Operational Manual 2015 provides that the tie-up arrangement will be made by ESIC with the other CGHS approved hospitals/institutions (whether public or private) in the State on the CGHS rates and terms and conditions without any inspection. So, certainly rules and regulations of ESIC provides that reimbursement permissible at CGHS rates or as per terms and conditions of ESIC Rules and Regulations. So, even if treatment got by the complainant from OP8 on the basis of referral slip as per clause 2.2 of Operational Manual Super Speciality Service of ESIC Operational Manual 2015 rules, despite that reimbursement permissible only at CGHS rates and not more than that.

18.              Clause 6.1 of ESIC Operational Manual Rules of 2015 provides that the tie-up hospital will honour the referral letter issued by ESI hospitals by providing medical care on priority basis. Further, as per this clause 6.1, if tie-up hospital feel necessity of carrying out any additional treatment/procedure/investigation in order to carry out the procedure, for which, patient was referred, then permission for the same is essentially required from the referring hospital either through email or fax or telephonically(to be confirmed in writing at the earliest). De-empanelment/blacklisting of tie-up hospital even contemplated by this clause 6.1 of ESIC Operational Manual 2015. In case the tie-up hospital charges any money from the patient/attendant referred under ESI system for treatment, the same may be ground of de-empanelment. Clause 6.1 of ESIC Operational Manual 2015 further provides that drugs/dressings used during the treatment of patient requiring reimbursement should be of generic nature because reimbursement, permissible as approved under FDA/IP/BP/USP pharmacopeia or DG ESIC Rate Contract. Further, in this clause 6.1 itself, it is mentioned that food supplement will not be reimbursed and that reimbursement for any drugs/dressings not covered under the approved FDA/IP/BP/USP pharmacopeia will not take place. When such are the limitations prescribed by clause 6.1 of ESIC Operational Manual 2015, then certainly OP1 to OP4 or OP6 liable to reimburse only those amounts as can be claimed on CGHS rates.

19.              Section 57 of The Employees’ State Insurance Act, 1948 read with Section 70(2) and Rule 96 of the Employee State Insurance (General) Regulations 1950 specifically provides for the scale of medical benefit, which to be determined by the Medical Commissioner of ESIC and as such, reimbursement permissible to the extent of prescribed benefit scale and not more than that. Even in case titled as ESIC Corporation representative by its Joint Director vs. Padmavati and others-2017(2)AIR Karnataka R 50: 2017 LIC 1719(Karnataka High Court), it has been held that the insured person entitled to medical benefits incurred by him as provided by Section 56 of The Employees’ State Insurance Act, 1948 only. Such medical benefit includes treatment by way of admission in a hospital on scale of medical benefit contemplated by Section 57 of The Employees’ State Insurance Act, 1948. Section 57(2) of The Employees’ State Insurance Act, 1948 specifically provides that the insured person will be entitled for medical reimbursement scheme as per provisions of regulations framed by the corporation. Those regulations contained in ESIC Operational Manual 2015 provides for reimbursement at CGHS rates and as such, submissions advanced by counsel for complainant has no force that in view of tall claim of Ops to provide full reimbursement for medical treatment, the complainant is entitled for reimbursement of entire amount of Rs.2,85,095/- spent by her on treatment. Rather, facility of private room for 20 days by the complainant and her family members availed at      its own without getting approval of the concerned referral hospital and even extension for stay during fever period not obtained and as such, disbursal of amount of Rs.80,193/- on basis of consolidated bill Ex.RW1/C by OP6 to OP8 is quite appropriate because said bill prepared as per CGHS rates for the period, for which, authorization for treatment was given by OP6. CGHS Code specifically mentioned in identical case format annexed with bill Ex.RW1/C and as such, it is obvious that after due verification, amount of Rs.80,193/- duly passed through letter Ex.RW1/D by the Ops. As the medical reimbursement claim honoured by OP1 to OP4 and OP6 as per rules and regulations and as such, there is no deficiency in service on the part of Ops at all. Rather, complaint against OP5 certainly is not maintainable because liability to pay is of ESIC and not of the Punjab Government. OP5 is the department of Punjab Government. Even liability of payment to OP8 by OP6 is not there  because OP8 provided extra services at the asking of the complainant and her family members by providing private room along with facility annexed thereto. Op7 is just an employer, who is not to pay anything except contribution as employer.

20.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

21.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                       (G.K.Dhir)

                       Member                                                            President

Announced in Open Forum

Dated:12.06.2017

Gurpreet Sharma.