DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 27^th day of February 2024

CC.322/2018

Complainant

Shaji. P. N,

S/o. Velayudhan,

Leal Officer, Shri Ram City Union Finance Ltd,

Arafa Complex, Cherootty Road, Kozhikode,

Residing at “Pranavam”,

Kalarikkal Paramba (HO),

Varattiak, Kunnamangalam.P.O,

                        Kozhikode.

(By Adv. Sri. Santhosh Kumar. P)

Opposite Partties

1.               Insurance Medical Officer,

ESI Dispensary, Eranhipalam,

                         Kozhikode.

2.               Employees State Insurance Corporation,

Branch Office, Chakkorathukulam,

West Hill, Kozhikode.

(OP2 By Adv. Sri. P.V. Hari)

ORDER

By Sri.V.BALAKRISHNAN  - MEMBER

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2. The case of the complainant, in brief, is as follows:

The complainant is working as a legal officer in a private limited company in Kozhikode and he is insured with the second opposite party with the insurance card No. 7204065800. The contribution towards the insurance scheme under ESI act is being deducted regularly from his salary and deposited by his employer to the second opposite party. The complainant and his family members are eligible for free treatment at ESI dispensaries and hospitals. His wife Smt. Shyni became pregnant in the month November 2017 and she was taken for antenatal medical check-up at ESI dispensary, Eranjippalam on 07/03/2018. The duty doctor after check-up advised her to take iron tablets. The duty doctor also informed that his wife was not entitled for further treatment in ESI dispensary and not referred her to ESI hospital Feroke, where the maternity service facilities were available at that time. It is the duty of the medical officer to refer the patient to the ESI hospital, where obstetrics facilities are available at that time. Due to the negligence and deficiency in service on the part of the medical officer, ESI dispensary, Eranjipalam his wife was denied free treatment facilities provided in ESI hospital and ultimately her periodic medical check-up and other medical treatments were done from private hospitals. She was hospitalised for delivery on 14/08/2018 at Mukunda Hospital, Payyannur and was discharged from the hospital after delivery on 18/08/2018. Rs. 40,815/- was spent for operation charges and medicines. The complainant then submitted the application for claiming confinement expenses at ESI dispensary, Eranjipalam on 05/10/2018. It was denied by the first opposite party stating that his wife was not reported for medical check-up at that dispensary and therefore not entitled for the benefit of confinement expenses. Even though she had reported for medical check-up on 07/03/2018 at ESI dispensary Eranjipalam the act of duty doctor in not referring her to ESI hospital Feroke amounts to the deficiency in service.

3. So the complainant prays that the opposite parties may be directed to pay an amount of Rs. 40,815/-, the confinement expenses of his wife. Also the opposite parties may be directed to pay compensation of Rs. 1,00,000/- for the pain and sufferings, in addition to the cost of the proceedings.
4. The first and second opposite parties filed version separately. The first opposite party denied almost all the allegations and averments contained in the complaint. It was submitted that the complaint with regard to the benefits available under ESI act are to be filed before the Employees Insurance Court as per section 75 of the Act. As per section 75(3) of the act, the Civil Court is clearly barred from entertaining any petition coming under the preview of this Act. Under these circumstances, jurisdiction and the maintainability of the above petition is to be decided as preliminary issue and petition should be returned for lack of jurisdiction. He admits that the petitioner is insured with ESI Corporation and is entitled to free medical treatment from ESI dispensary and ESI hospitals. The complaint that the wife of the complainant Smt. Shyni had been denied free medical treatment from ESI hospital is false and is denied.  Smt. Shyni was taken to ESI dispensary for the first time only in the 4^th month of pregnancy. Prior to that she was treated in other hospitals. The complainant had taken his wife to the ESI dispensary on 07/03/2018 and had been given sufficient medical check-up and medication which is required at that stage of pregnancy. There was no negligence or denial of service on the part of the opposite parties. The primary check-ups and medications are to be given to the patients from the concerned ESI dispensary after registering the IP. Since primary diagnosis are to be done by the dispensaries there is no point in the argument raised by the complainant that his wife was not referred to ESI hospital Feroke. The complainant had never took his wife to the ESI dispensary for Pregnancy confirmations test and ante natal check-ups. The complainant had preferred the treatment from the private hospitals even prior to his coming to the dispensary. The complainant had never enquired to the first opposite party or to the office and never shown any interest to get her treatment continuously from ESI hospital. The complainant who is a well educated person having clear knowledge about free medical benefits available to him and his family opted out the services of ESI and preferred treatments from the private hospitals at his own free will. So the opposite parties have no liability to give the medical bills reimbursed. The opposite parties have performed their duty in accordance with the ESI Act, Rules and ESI medical manual.
5. The complainant has no case that the opposite party had not treated his wife or had given wrong medical advice. The medical bills are to be sanctioned as per the order of the Insurance Medical Service Director or the ESI Corporation. The patients are not entitled to claim reimbursement for the expenses incurred by them for the treatment received from the private hospitals without obtaining the letter of reference except in case of emergency. Apart from that, Insurance Medical Service Director has clearly pointed out that pregnancy could not be considered as an essential situation required for urgent treatment. The urgent treatment can be extended to gynaecological issue if the certificate is obtained from the ESI gynaecologist who had such an opinion after treating the lady in her 1^st, 2^nd and 3^rd month of pregnancy. The complainant had no difficulty in obtaining the free medical aid from ESI hospitals, or empanelled private hospitals, if necessary. The complainant had not complied with any of the requirement for getting a free check-up or reimbursement. Under above circumstances, the 1^st opposite party prays to dismiss the above complaint.
6. The second opposite party submitted that as per Section 58 of the ESI Act, the State Govt. has the primary responsibility for providing medical treatment under the scheme. The State Govt. shall provide for insured person and their families in the state, reasonable medical, surgical and obstetric treatment. The dispute here in is between first opposite party and the complainant and hence is not maintainable against the second opposite party, ESI Corporation. A special Court in the nature of Tribunal is setup under section 74 of the ESI Act.  As per section 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. The state Govt. also enacted a separate and simple procedure for Employees Insurance Court called Employees Insurance Court Rules under section 78(2), while giving certain powers of Civil Court to Employees Insurance Court. The object and purpose of the above setup is to ensure expeditious disposal of disputes under the ESI Act. Under section 78(1) the Employee Insurance Court shall have all the powers of a Civil Court for the purpose of summoning and enforcing the attendance of witnesses, compelling the discovery and production of documents and material objects, administering oath and recording evidence and such Court shall be deemed to be a Civil Court within the meaning of section 195 chapter XXXVI of the code of criminal procedure 1973 (2 of 1974). So the second opposite party pray to dismiss the complaint.
7. The points that arise for determination in this case are;                                                                                                                                   1) Whether the complaint is maintainable before the Commission?                                                                                                         2) Whether there was any deficiency of service on the side of the opposite parties, as alleged?                                                             3) Reliefs and costs.
8. Evidence consists of the oral evidence of PW1 who is the complainant, and Exts A1 to A6 on the side of the complainant. On behalf of opposite party RW1, Insurance Medical Officer ESI dispensary, Eranjippalam was examined.
9. Heard. Argument note is filed on behalf of complainant.
10. Point No 1: The contention of opposite parties is that this Commission has no jurisdiction to entertain the complaint, since it is barred under section 75 of ESI Act. As per Section 75(3) of the ESI 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.
11. The complainant is working in a company which is insured with the second opposite party and making regular contribution towards the insurance scheme under ESI Act which is being deducted regularly from his salary. The service from ESI hospital is given only to the scheme members who are paying the contribution as consideration. Section 3 of the Consumer Protection Act 1986, clearly specifies that provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. In Trans Mediterranean Air Ways Vs Universal Exports and Another – 2011 KHC 4842 – the Hon’ble Supreme Court has held that “Remedies under the Consumer Protection Act are in addition to the remedies available under any other statute”. So the remedies under this Act is an additional remedy and it is not barred by any other law or provisions prevailing under any other rules. The learned counsel of the complainant produced the decision of Hon’ble Supreme Court of India in Kishore Lal Vs Chairman, Employees State Insurance Corporation (Appeal (Civil) 4965 of 2000). The Hon’ble Supreme Court allowing the appeal has stated “Having considered all these aspects we are of the view that the appellant is a consumer within the ambit of section 2(1)(d) of Consumer Protection Act 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent corporation falls within the ambit of sections 2(1)(d) of Consumer Protection Act and therefore the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of such section (1) or (2) or (3) of section 75 of the Employees State Insurance Act 1948. So the present complaint is maintainable before this Commission.
12. Point No. 2: The main allegations raised by the PW1 about the opposite party in, a nut shell, are stated below. The complainant is employed in a private company and insured with second opposite party and paying regular contribution towards the insurance scheme under ESI Act. The complainant along with his wife, who became pregnant on November 2017, reported before first opposite party for medical check-up on 07/03/2018. The duty doctor had not referred the wife of the complainant to ESI Hospital Feroke, where the maternity service facilities were available at that time. So the wife of complainant was denied free treatment facilities and had to approach private hospital. After delivery, on 05/10/2018 the complainant submitted the application form for claiming confinement expenses at ESI Dispensary,  Eranjippalam. The same was denied stating that his wife was not referred for medical check-up and not entitled for the benefit of confinement expenses. The negligent action of duty doctor in not referring to ESI Hospital Feroke, amounts to deficiency of service on the part of opposite party. Ext A1 is the ESI card of complainant, Ext A2 is the copy of the treatment book kept in ESI dispensary Eranjippalam, Ext A3 series are cash bill of Mukunda Hospital, Ext A4 is the discharge summery of Mukunda Hospital, Ext A5 is the obstetric record of wife of the complainant in Mukunda Hospital. Ext A6 is the form submitted for claiming confinement expenses.          
13.   The main 3 points in the allegation of the complainant against the opposite parties are as follows;

                    1. Even though his wife was reported at ESI dispensary Eranjippalam on 07/03/2018, she was not referred, to ESI Hospital   

                        Feroke. So there is deficiency in service on the part of ESI Medical Officer who examined his wife.

                    2. The duty doctor had informed that his wife is not entitled for further free treatment at ESI dispensary and ESI hospitals.

                    3. The confinement expenses of his wife at Mukunda Hospital Payyannur, was denied by opposite parties.

14. It is well settled that in a consumer complaint, the onus to prove the deficiency in service is in the complainant. Without proof of deficiency the opposite parties cannot be held liable. This has been reiterated by the Hon’ble Apex Court in SGS INIDIA Vs Dolphin International Ltd. LL 2021 SC 544.
15. Regarding the second allegation there is absolutely no evidence. It cannot be believed that an ESI Medical Officer would deny treatment to eligible persons.
16. As far as the allegation with regard to non-reimbursement of medical expenses it may be noted that there is definite procedure of treatment followed in ESI dispensary and ESI hospitals. The medical reimbursement bills are to be sanctioned as per the order of the Insurance Medical Services Director or the ESI Corporation. The patients are not entitled to claim the reimbursement for the expenses incurred by them for the treatment received from the private hospitals without obtaining the letter of reference. Also for treatment in private hospitals the eligibility of reimbursement for any patients is restricted only to empanelled hospitals of ESI Corporation. In the cross examination, the complainant admitted that Mukunda Hospital, Payyannur is not an empanelled hospital of ESI Corporation. Admittedly there was no debtor of reference also. So there is nothing wrong in not sanctioning the claim of reimbursement.
17. With respect to the first allegation of not referring to ESI hospital Faroke, it may be noted that, in the version the first opposite party admitted that the complainant had taken his wife to ESI dispensary on 07/03/2018 and had been given sufficient medical check-up and medication which was required that stage of pregnancy. It is also stated in the version that the preliminary check-up and medications are to be given to patients from the concerned ESI dispensary after registering the IP. The pregnant ladies are to be referred to ESI hospital for further treatment. In this case the pregnant wife of the complainant was not referred to ESI hospital Faroke and no reason is forth coming from the part of the opposite parties, for not following the procedure of referring such women to ESI hospital Faroke where gynaecologists are available. The opposite party has no case that the complainant or his wife was not willing for a reference to that hospital. Ext A2 does not contain any such endorsement. The reason for not referring to ESI hospital is not mentioned in Ext A2. No review or follow up is also mentioned in Ext A2. The mere fact that the complainant reported with his wife for medical attention in ESI dispensary would indicate that he was ready for treatment in ESI hospital. Otherwise he had no reason to approach the ESI dispensary with his pregnant wife. Even according to the version and the testimony of RW1, pregnant ladies are to be referred to ESI hospital Feroke. One fails to understand why such a procedure was not followed with regard to complainant’s wife. As already stated, Ext A2 is silent on this aspect.
18. At the time of evidence, the opposite parties tried to set up a new case that only PW1 reported in the dispensary and his wife was not with him. But this is in contrast with the stand taken in the written version. It is stated in written version that wife of the complainant was taken to ESI dispensary by the complainant on 07/03/2018 and she was given sufficient medical check ups and medication which was required at the fourth month of her pregnancy. The opposite parties have no consistent case. If the contention in the version is to be believed then RW1 will have to be disbelieved and vice versa. As rightly pointed out by the leaned counsel for the complainant it is a new case set up at the fag end in order to suit the situation. The inconsistent stand of the opposite parties points at the falsity of the contention of the opposite parties.
19.  As already stated, pregnant ladies are to be referred to ESI hospital Feroke for further treatment and in the case in hand that procedure was not followed, for which, no satisfactory reason is stated. The non-reference to ESI hospital by the duty doctor amounts to deficiency in service. This deficiency of service on the part of the opposite parties in this matter stands proved.
20. Undoubtedly, due to the deficient service, the complainant was deprived of the facility of treatment for his wife under the scheme, for which, he was entitled and he was put to mental agony inconvenience and monitory loss, for which, he is to be compensated adequately by the opposite parties. Considering the facts and circumstances, we are of the view that a sum of Rs. 30,000/- will be a reasonable compensation in this case. The complainant is also entitled to Rs. 3,000/- as cost of proceedings. The opposite parties are jointly severally liable.
21. POINT No.3 : In the light of findings of the above points, the complaint is disposed of as follows;

1. CC No. 332/2018 is allowed in part.
2. The opposite parties are directed to pay a sum of
   Rs. 30,000/- (Rupees thirty thousand only) as compensation to the complainant.
3. The opposite parties are directed to pay a sum of Rs. 3,000/-(Rupees three thousand only) as cost of proceedings to the complainant.
4. The order shall be complied with within 30 days from the date of receipt of copy of the order.

Pronounced in open Commission on this, the 27^th day of February, 2024.

Date of Filing: 22/11/2018

                                       Sd/-                                                               Sd/-                                                   Sd/-

                                PRESIDENT                                                  MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – ESI card of complainant.

Ext.A2 – Copy of the treatment book kept in ESI dispensary Eranjippalam.

Ext.A3 Series – Cash bill of Mukunda Hospital.

Ext.A4 – Discharge summery of Mukunda Hospital. 

Ext.A5 – Obstetric record of wife of the complainant in Mukunda Hospital.

Ext.A6 – Form submitted for claiming confinement expenses.

Exhibits for the Opposite Party

Ni.

Witnesses for the Complainant

PW1 -  Shaji. P. N, (Complainant)

Witnesses for the opposite parties 

RW1 – Dr. Nancy. N. C.

                                Sd/-                                                                      Sd/-                                                            Sd/-

                        PRESIDENT                                                          MEMBER                                                 MEMBER

True Copy,     

                                                                                                                                                                     Sd/-

                                                                   Assistant  Registrar.