KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL Nos.27/2016 & APPEAL No. 609/2015

COMMON JUDGEMENT DATED: 16.10.2024

(Against the Order in C.C.No.825/2006 of DCDRC, Thrissur)

PRESENT:

APPEAL No.27/2016

APPELLANTS:

(by M. Nizarudeen, Addl. Govt. Pleader)

Vs.

RESPONDENTS:

(by Adv. Unnikrishnan V.)

(by Adv. V.G. Jayagopan)

APPEAL No.609/2015

APPELLANT:

(by Adv. V.G. Jayagopan)

Vs.

RESPONDENTS:

(by Adv. Unnikrishnan V.)

(by M. Nizarudeen, Addl. Govt. Pleader)

COMMON JUDGEMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  :  PRESIDENT

          Appeal No. 27/2016 has been filed by the opposite parties 2 to 5 and Appeal No. 609/2015 has been filed by the 1^st opposite party in C.C.No.825/2006 on the files of the District Consumer Disputes Redressal Commission, Thrissur (for short ‘the District Commission’).

          2.       For the sake of convenience, the appellants in Appeal No.  27/2016 are respectively referred to as appellants 1 to 4 and the appellant in Appeal No.
 609/2015 is referred to as the 5^th appellant and the complainant before the District Commission is referred to as the respondent in this judgement.

          3.       The respondent was an employee covered under the Employees State Insurance Act, 1948. He is entitled to medical benefits as provided under the E.S.I. Act, Rules and Regulations.  On 24.06.2006, the respondent approached the 2^nd appellant, who was then the doctor in the E.S.I. Dispensary, Olarikkara, for treatment of pain on his left ear.  He consulted the 2^nd appellant, who examined him and referred him to the ENT doctor at the E.S.I. Hospital, Olarikkara.  Since the ENT doctor was not available there, the respondent came back to the 2^nd appellant.  At that time, the 2^nd appellant had given some medicines.  Thereafter, on 01.07.2006, the respondent again approached the 2^nd appellant at the E.S.I. Dispensary at Olarikkara for treatment.  The 2^nd appellant referred him to the E.S.I. Hospital, Olarikkara.  But on that day also, the doctor was not available in the E.S.I. Hospital, Olarikkara.  So, the respondent came back to the 2^nd appellant. The respondent was then given some medicines by the 2^nd appellant.  The respondent again approached the 2^nd appellant on 11.07.2006 due to severe pain.  The 2^nd appellant again referred him to the E.S.I. Hospital, Olarikkara.  The 3^rd appellant, who was then the doctor in the E.S.I. Hospital, Olarikkara, after examining the respondent referred him to the ENT wing of the Medical College Hospital, Thrissur. 

4.  The respondent was examined in the Medical College Hospital on the next day. The doctor who examined the respondent prescribed medicines for 15 days and directed him to meet the doctor afterwards with Audiogramme test result.  The respondent met the ENT doctor of the Medical College Hospital again on 31.07.2006 with the result of Audiogramme test.  The doctor, after examining him, prescribed for CT scan.  Since the CT scan machine in the Medical College Hospital was not working, the respondent approached private centres.  However, he was informed that the cost for taking CT scan was Rs.1,900/- (Rupees One Thousand Nine Hundred only).  Therefore, he approached the appellants 2 to 4 and requested them to make arrangements to take CT scan.  However, they rejected the request stating that rules would not permit them to either give a letter to the private centre or to advance money for the purpose.  The respondent was under acute financial difficulties and hence he could not take the CT scan.  Consequently, the respondent suffered permanent hearing disability of twenty five percent.  In the said circumstances, the respondent claimed an amount of Rs.4,50,000/-  as compensation in addition to costs.

          5.       The appellants 1 to 4 filed a joint version and the 5^th appellant filed a separate version.  The appellants would contend that on 24.06.2006, the respondent approached the E.S.I. Dispensary, Olarikkara with a complaint of pain on his left ear.  Since there was no ENT specialist in the dispensary, he was referred to the E.S.I. Hospital, Olarikkara.  However, since the specialist doctor was not there on that date, he again came back to the dispensary.  The doctor gave some medicines.  Thereafter, he again approached the dispensary on 01.07.2006.  On that day also, the doctor referred him to the E.S.I. Hospital, Olarikkara.  However, on that day, the ENT specialist was on duty off.  The respondent again came back to the dispensary.  The doctor in the dispensary had given some medicines for pain.  Thereafter, he again came to the dispensary only on 11.07.2006. On that date also, the doctor referred him to the E.S.I. Hospital, Olarikkara.   The doctor, who examined the respondent in the E.S.I. Hospital, Olarikkara, referred him to the Medical College Hospital, Thrissur.  Thereafter, he approached appellants 1 to 4 and requested them to give advance money for taking the CT scan.  Since there was no provision for giving the advance money, the respondent was requested to bring the bill for reimbursement after taking the CT scan from any private centre.  However, the respondent was not prepared for the same.  Therefore, the respondent was requested to submit proper application for forwarding the same to the E.S.I. Corporation for getting financial help from the Corporation, which was also refused by the respondent.  This being the fact, there was no fault on the part of the appellants in this regard, is the contention of the appellants.

          6.       The respondent was examined as PW1 and Exhibits P1 to P10 were marked for the respondent.  RW1 and RW2 were examined and Exhibits R1 to R3 were marked for the appellants.  Exhibit X1 was also marked.  After evaluating the evidence, the District Commission directed the appellants to pay an amount of Rs.1,00,000/-(Rupees One Lakh only) to the respondent towards compensation and costs.  Aggrieved by the said order, this appeal has been filed.

7.       Heard both sides.  Perused the records. 

8.       It is not disputed that the respondent approached the 2^nd appellant on 24.06.2006 for treatment in connection with the pain on his left ear.  It is also not disputed that the respondent was referred by the 2^nd appellant to the E.S.I. Hospital where ENT specialist was available, as the 2^nd appellant was a doctor having only MBBS degree and she felt that the respondent must be treated by a specialist doctor.  The respondent would contend that the respondent had gone to the ESI Hospital on 24.06.2006.  However, on that date, the ENT specialist was not available there.  Therefore, he again approached the 2^nd appellant and the 2^nd appellant had given him some medicines.  After taking the medicines, he felt relaxed.  He again had pain on his ears.  So, he again approached the 2^nd appellant on 01.07.2006.  On that date also, the 2^nd appellant referred him to the E.S.I. Hospital, Olarikkara.  The respondent again approached the 2^nd appellant and the 2^nd appellant had given some medicines for the pain.  The respondent again approached the 2^nd appellant on 11.07.2006 due to severe pain.  Then also, the 2^nd appellant referred the respondent to the E.S.I. Hospital, Olarikkara.  On that date, the 3^rd appellant, who examined the respondent, referred him to the Medical College Hospital, Thrissur. The doctor in the Medical College Hospital, after examining the respondent, instructed him to meet the doctor again with the result of Audiogramme test. That was done by the respondent.  Thereafter, the doctor in the Medical College Hospital instructed him to take CT scan of his ear. 

9.       The case of the respondent is that though the respondent approached the appellants 1 to 4 for advance money for taking CT scan, that was declined by them.  The other contention of the respondent is that the respondent was not given proper treatment by appellants 1 to 4.

10.     It was admitted by the respondent, when examined as PW1, that he did not go to the E.S.I. Hospital from 25.06.2006 to 30.06.2006.  Even though it was stated by PW1 that he had gone to the E.S.I. Hospital on 24.06.2006 and 01.07.2006, Exhibit R3 does not contain the name of the respondent as a person who visited the E.S.I. Hospital on 24.06.2006 and 01.07.2006.  It is in the evidence of RW2 that RW2 was on weekly off on 24.06.2006 and 01.07.2006.  RW2 is the 3^rd appellant.  It is further in the evidence of RW2 that RW2 was available in the hospital from 25.06.2006 to 30.06.2006.  RW2 was also available in the hospital from 02.07.2006 to 09.07.2006. The 2^nd appellant, when examined as RW1, had categorically stated that RW1 could refer the patient only to the E.S.I. Hospital and not to the Medical College Hospital.  The evidence on record would show that the 2^nd appellant had rightly referred the respondent to the E.S.I. Hospital for the treatment by the ENT specialist.  Though RW2 was available in the E.S.I. Hospital from 25.06.2006 to 30.06.2006 and from 02.07.2006 to 09.07.2006, the respondent did not incline to go to the E.S.I. Hospital on any of the said days. Therefore, the respondent cannot contend that he did not get the service of a specialist doctor. That apart, the evidence on record would further show that if the respondent had approached the doctor on duty in the E.S.I. Hospital, when RW2 was on duty off, the respondent would have been referred to the medical college hospital by the doctor on duty, if needed, for treatment. However, that was also not done by the respondent.  The evidence on record would further show that RW2 had rightly referred the respondent on 11.07.2006 to the Medical College Hospital, as RW2 felt that the respondent required more specialized treatment.  This being the fact, it cannot be said that the appellants 1 to 4 did not give proper treatment to the respondent. 

11.     The evidence on record would show that the appellants 1 to 4 had no right to pay advance money to the insured as part of treatment.  The evidence of RW2 would show that RW2 had instructed the respondent to submit an application, for being forwarded to the E.S.I. Corporation with recommendation, for granting advance money for the treatment of the respondent by the E.S.I. Corporation.  RW1 stated that E.S.I. Corporation is having the power to grant advance amount for the treatment.  It is clear from Section 58 of the E.S.I. Act that the E.S.I. Corporation and the E.S.I. Hospital are different.  Under Section 58 of the E.S.I. Act, the State Government is responsible to provide medical treatment to the insured persons and their families. It is clear from the evidence of RW1 that the E.S.I. Corporation is having the power to give advance money for the treatment of the insured. Though RW2 instructed him to submit application for being forwarded to the E.S.I. Corporation, the respondent did not incline to submit the application.  It is borne out from the evidence on record that in order to get advance money for the treatment of the insured from E.S.I. Corporation, an application has to be submitted by the insured to the E.S.I. Corporation with the recommendation by the E.S.I. Hospital.  The application has to be supported by a non-availability certificate stating that there is no facility in the Medical College Hospital to take CT scan.  The insured is also required to produce an entitlement certificate from the legal office and also three photographs along with the application. However, no such application was given by the respondent to appellants 1 to 4.  No provision has been brought to the notice of this Commission by the learned counsel for the respondent empowering the E.S.I. Hospital to give advance amount for the treatment of the insured.  Since there is no provision for giving advance amount by appellants 1 to 4 for the treatment of the insured, it cannot be said that there was any deficiency in service on the part of appellants 1 to 4 in this regard, particularly when the respondent was not prepared to submit the application, in accordance with law and as stated above, to the E.S.I. Corporation through the E.S.I. Hospital.  Since the respondent did not submit any application to the E.S.I. Corporation for the advance money, it cannot be said that there was any deficiency in service on the part of appellant No. 5 as well.

12.  The upshot of the above discussion is that there was no deficiency in service on the part of the appellants as alleged by the respondent and as found by the District Commission.  For the said reason, the order passed by the District Commission cannot be sustained and consequently, we set aside the same.

In the result, these appeals stand allowed, the order dated 19.10.2006 of the District Commission in C.C.No.825/2006 stands set aside and the complaint stands dismissed.  In the circumstances of the case, there is no order as to costs.

The statutory deposit made by the appellants shall be refunded to the appellants, on proper acknowledgment. 

SL