BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint Case No. : 54 of 2018
Date of Institution : 10.04.2018
Date of Decision : 13.02.2020
Hari Kishan son of Satyanarayan r/o Gali No.1 Rudra Colony, Tosham Road, Bhiwani, District Bhiwani.
……Complainant.
Versus
1.The Director of the Employees State Insurance Corporation, Regional Office, Panchdeep Bhawan, Sector-16, Faridabad, Haryana.
2.The Employees State Insurance Corporation, Bhiwani, through its Branch Manager at Bhiwani.
3.Chief Medical Officer, Employees State Insurance Corporation, Bhiwani, District Bhiwani, Haryana.
4.BTM Mill, Bhiwani through its Manager in-charge.
5.SPES, the Super Specialty Hospital Cardiac & Trauma Centre, near old bus stand, Bhiwani, through Dr.Abhishek Gaikwad.
……Opposite Parties.
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh.Nagender Singh, President.
Sh.Shriniwas Kundia, Member.
Present: Sh.Amit Ghosh, Adv. for complainant.
Sh.Ravinder Bibyan, Adv. for OPs No.1 to 3.
OPs No.4 & 5 exparte.
ORDER
In nutshell, brief facts of the present complaint are that the complainant was employee of opposite party No.3. He is insured person in accordance with the definition under Section 2 (9) and (14) of the Employees State Insurance Act, 1948 and in this regard IP No.1305047113 has been allotted to the complainant. On 26.01.2017, the complainant while discharging his duties, suffered heart attack and due to serious condition he was taken to opposite party No.5, where he remained admitted till 29.01.2017. The complainant has spent Rs.2,31,480/- on entire treatment. Thereafter, he moved an application dated 04.08.2017 to the Chief Medical Officer, ESI, Hospital requesting for reimbursement of Rs.2,31,480/- but the corporation had issued a cheque No.491646 dated 21.06.2017 worth Rs.1,00,800/-. After that the complainant again moved an application dated 23.09.2017 to SMC, ESIC Panchdeep Bhawan, Faridabad and requested for making the payment of remaining amount but to no effect. The act and conduct of the opposite parties clearly amounts to deficiency in service on their part. Hence, this complaint.
2. On notice opposite parties No.1 to 3 appeared and filed their joint reply wherein several preliminary objections such as maintainability, estoppal, locus standi and concealment of material facts from this Forum etc. have been taken. It has been submitted that as per ESIC Hqrs. Instructions No.U-16/26/1/2010/Med-1/Pt.II dated 18.05.2010, if the expenditure incurred by insured persons and their families on medical care treatment taken in case of emergencies from a non ESI/Private hospital should be re-imbursed as per CGHS approved rates, after ascertaining emergency and entitlement. In the present case, the reimbursement of Rs.1,00,800/- has already been done as per instructions. It has been further submitted that the complainant was treated in SPES Super Speciality Hospital Cardiac & Trauma Centre, Bhiwani which is non NABH/NABL accredited hospital, hence, CGHS rates approved for Non NABH/NABL hospital were taken into consideration for calculation of the amount and thereafter the amount to the tune of Rs.1,00,800/- was given to the complainant. No question of mental harassment and deficiency in service has arisen because the complainant has been provided with entire amount of re-imbursement by the corporation in accordance with the provisions made under rule of re-imbursement of ESIC. Other contentions have been controverted and prayer for dismissal of the complaint has been made.
3. Opposite party No.4 also submitted its reply wherein it has been submitted that the complainant is an insured person under the Employees State Insurance Act, 1948 vide IP No.1305047113. Other contentions have been controverted and prayer for dismissal of the complaint has been made. Thereafter, the opposite party No.4 remained absent during the pendency of the complaint, hence, it was proceeded against exparte on 25.04.2019. Notice to the opposite party No.5 sent through registered post but none had turned up after lapsing of necessary period of 30 days, hence, it was also proceeded against exparte vide order dated 22.02.2019.
4. Thereafter, the parties have adduced their respective evidence. The complainant in his evidence has tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C6 and closed the evidence on 25.04.2019 whereas the appearing opposite parties have tendered affidavit Ex.RW1/A and documents Annexure R1 to Annexure R3 and closed the evidence on 11.11.2019.
5. We have heard learned counsel for the parties and gone through the record very carefully.
6. Admittedly, the complainant is insured under Section 2 (9) and (14) of the Employees State Insurance Act, 1948 and in this regard IP No.1305047113 has been allotted to him. It is also not disputed that he suffered heart attack on 26.01.2017 and due to this he was admitted in SPES, Super Specialty Hospital Cardiac & Trauma Centre, Bhiwani and remained admitted there till 29.01.2017 as is evident through document Ex.C2. Learned counsel for the complainant has argued that the complainant has spent Rs.,2,31,480/- on his treatment and regarding this he drew the attention of the Forum towards reimbursement form, duly attested by the treating doctor, wherein an amount of Rs.2,31,480/- has been mentioned. Learned counsel for the complainant has argued that the opposite parties have only paid Rs.1,00,800/- to the complainant and withheld the remaining amount of Rs.1,30,680/- wrongly and illegally despite the fact that the complainant was insured under the Employees State Insurance Act, 1948. It has been further argued that the medical claim cannot be denied merely because the name of the hospital is not included in the Government Order and even the claim cannot be denied on technical grounds. In support of his contentions learned counsel for the complainant has relied upon the case law titled as Shiva Kant Jha Vs. Union of India decided on 13.04.2018 by the Hon’ble Supreme Court of India in Writ Petition (Civil) No.694 of 2015. Hon’ble Supreme Court of India in para No.15 & 16 of this judgment has held as under:
15) In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.
16) Further, with regard to the slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially, we are of the opinion that all such claims shall be attended by a Secretary level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases. We, hereby, direct the concerned Ministry to device a Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and 1 (one) Specialist in the field which shall ensure timely and hassle free disposal of the claims within a period of 7 (seven) days. We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible. Further, the above exercise would be futile if the delay occasioned at the very initial stage, i.e., after submitting the relevant claim papers to the CMO-I/C, therefore, we are of the opinion that there shall be a timeframe for finalization and disbursement of the claim amounts of pensioners. In this view, we are of the opinion that after submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of 1 (one) month.
Learned counsel for the complainant has also relied upon the case laws titled as Ayudhia Prasad Duggal Vs. CAT, Chandigarh & Ors. Decided on 20.02.2017 by the Hon’ble Punjab & Haryana High Court in CWP No.22833 of 2015 and Mr.E.K.Bharat Bhushan Vs. The Chief General Manager Telecom decided on 20.02.2019 by Central Administration Tribunal Ernakulam Bench in Original application No.180/00415/2018.
7. On the other hand, learned counsel for the opposite parties No.1 to 3 has argued that as per ESIC Hqrs. Instructions No.U-16/26/1/2010/Med-1/Pt.II dated 18.05.2010, if the expenditure incurred by insured persons and their families on medical care treatment taken in case of emergencies from a non ESI/Private hospital should be re-imbursed as per CGHS approved rates, after ascertaining emergency and entitlement, therefore, as per approved rates the amount of Rs.1,00,800/- has already been paid to the complainant as per instructions. It has been further argued that the complainant was treated in SPES Super Speciality Hospital Cardiac & Trauma Centre, Bhiwani which is non NABH/NABL accredited hospital, hence, CGHS rates approved for Non NABH/NABL hospital were taken into consideration for calculation of the amount and thereafter the amount to the tune of Rs.1,00,800/- was given to the complainant. Question of deficiency in service as harassment to the complainant does not arise at all.
8. After going through the material available on the case file as well as the case laws titled as Ayudhia Prasad Duggal Vs. CAT, Chandigarh & Ors. And Mr.E.K.Bharat Bhushan Vs. The Chief General Manager Telecom (supra) relied upon by learned counsel for the complainant we are of the considered view that the opposite parties have wrongly and illegally withheld the amount of Rs.1,30,680/-. Hon,ble Punjab & Haryana High Court in case titled as Ayudhia Prasad Duggal Vs. CAT, Chandigarh & Ors. (supra) has relied upon the case titled as State of Punjab & Ors. Vs. Mohan Lal Jindal 2001 (9) SCC 217 has held as under :
14.The undisputed position that emerges is that a patient is entitled to reimbursement of the full amount of medical expenses and not only at the rates specified in the circular of 1996 and in case respondent No.2 has charged a higher rate, than could have been charged, it is for respondent No.1 to settle the matter with respondent No.2. The petitioner cannot be deprived of the reimbursement…
4. In view of the it is no longer res integra that merely because the Government does not revise the package deal amount under the Medical Attendance Rules from time to time a person cannot be denied actual medical costs, and there has to be reimbursement of the actual medical expenses incurred.
It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Forum. It is worthwhile to mention here that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in number of judgements from time to time and is aimed at providing for better protection of the interests of the consumers as defined in the preamble to the Act itself.
7. Keeping in view the facts and circumstances of the case we are of the view that the complainant is able to prove his case against the opposite parties No.1 to 4. Accordingly, we allow the present complaint and directed the opposite parties No.1 to 4 to pay Rs.1,30,680/- being remaining amount of Rs.2,31,480/- (Rs.2,31,480 – 1,00,800 = 1,30,680/-) alongwith interest @ 9 % per annum from the date of filing of the complaint till its realization. The Opposite parties No.1 to 4 are further directed to pay Rs.6,000/- as lump sum compensation on account of mental agony, harassment and litigation expenses. The complaint against opposite party No.5 stands dismissed. Compliance of this order be made within a period of 30 days from the date of receipt of the copy of this order. Copies of this order be sent to the parties concerned, free of costs. File be consigned to the record room after due compliance.
Announced in open Forum.
Dated: 13.02.2020
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
Present: Sh.Amit Ghosh, Adv. for complainant.
Sh.Ravinder Bibyan, Adv. for OPs No.1 to 3.
OPs No.4 & 5 exparte.
Arguments heard. Vide separate detailed order of even date, the present complaint is allowed against opposite parties No.1 to 4 and dismissed against opposite party No.5. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.
Dated: 13.02.2020 Member President DCDRF, Bhiwani DCDRF, Bhiwani
