Punjab

StateCommission

A/316/2015

Dev Raj - Complainant(s)

Versus

Medical Referee - Opp.Party(s)

Sunny K. Singla

16 Mar 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,     PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.316 of 2015

 

                                                          Date of Institution: 20.03.2015

                                                          Order Reserved on: 14.03.2017

                                                          Date of Decision  : 16.03.2017

 

Dev Raj son of Sadhu Ram, resident of Chittan Nagar, Imamgarh Road, Near Eidgrah, Malerkotla.

 

                                                                           Appellant/Complainant

                   Versus

 

1.      The Medical Referee (SMO), Employee's State Insurance       Corporation, Civil Hospital, Malerkotla.

2.      The Branch Manager, Employee's State Insurance Corporation       Karbala Road, Near Dr. Zakhir Hussain Stadium, Malerkotla.

3.      Employee's State Insurance Corporation through its Regional          Director, Sector 19-A, Madhya Marg, Chandigarh.

 

 

                                                              Respondents/Opposite parties

 

First Appeal against order dated 06.02.2015 passed by the District Consumer Disputes Redressal Forum,  Sangrur.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

         

Present:-

          For appellant                          : Sh.Dev Raj in person.

          For respondent no.1             : Ms. Anju Sharma, Advocate

          For respondents no.2&3      : None.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant has directed this appeal against order dated 06.02.2015 of District Forum Sangrur, dismissing his complaint. The appellant of this appeal is the complainant in the original complaint before District Forum and respondents of this appeal are OPs therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he was insured with OPs, vide insurance no. 6585776. He has been suffering from disease namely COPDRA, which is covered under Extended Sickness Benefit (in short ESB). After his medical checkup, the doctor of ESI at Malerkotla and Ludhiana declared his disease covered under ESB and he was allowed allowances at ESB rates and Rs.6,000/- were paid through cheque and Rs.1800/- were paid in cash against receipt to him for 124 days from 01.07.2010 to 01.11.2010 due to ESB benefits @ Rs.102/- per day. He was suffering from the same disease and was entitled to ESB rates. He approached OP no.2 for ESB rates, but advised him for re-checkup, whereupon he approached OP no.1 for his check up, but OP no.1 without check up, change his disease with malafide intention, which is not covered under ESB  benefits. OP no.1 refused to recommend the case of the complainant for ESB rates and this has been done in illegal and wrongful manner. On the wrongful recommendation of OP no.1, OP no.2 refused to pay ESB rates to complainant. The complainant was asked to appear before medical board two/three times in different cities and complainant complied with the same, but nothing was done in that regard. The complainant has been suffering from disease namely COPDRA, which is covered under ESB scheme. He is unable to join his duty due to above disease. He requested OPs to consider his disease namely COPDRA and allow Extended Sickness Benefits to him, but OPs failed to consider the same by not giving him the benefits under ESB. The OPs only harassed the complainant and complaint was registered as complaint no. 66 dated 02.02.2012 decided on 26.08.2013 directing the OPs to pay benefits of 189 days to the complainant within one month and to constitute the Medical Board within one month to examine the complaint. OPs constituted the medical board and complainant was examined on 6.11.2013 and medical board recommended that disease of the complainant falls under ESB  and asked the OPs to pay benefit under ESB for more 330 days from 06.05.2011 to 31.03.2012, but OPs failed to pay the same. The complainant filed execution proceedings under Consumer Protection Act, wherein OPs were burdened with Rs.10,000/- out of which Rs.5,000/- were got paid to complainant. OP no.2 refused to pay the amount of 330 days on the lame excuse that matter was not within its jurisdiction and complainant was advised to enter into correspondence with OP no.3, vide letter dated 7.11.2013 written to OP no.2 to make the payment of 330 days. The complainant has, thus, filed the instant complaint directing the OPs to pay Rs.102/- per day for 330 days, as recommended by the medical board amounting to Rs.33,660/- along with interest @ 12% per annum from 07.11.2013 till payment, besides Rs.50,000/- as compensation for mental harassment and Rs.5500/- as litigation expenses.

3.      Upon notice, OP no.1 appeared and filed written reply by raising legal objections that it is not medical referee of Employees State Insurance Corporation and hence it prayed for dismissal of the complaint. The complaint is alleged to be bad for non-joinder of necessary parties. This fact was denied by OP no.1 that complainant is consumer of OP no.1. The complainant has not come to the Forum with clean hands. The complainant is alleged to be estopped from filing the complaint. On merits, OP no.1 denied this fact that complainant is insured with it. It was pleaded that complainant was referred to medical board by the then medical referee (SMO) and he appeared before the Board, where he was medically examined and medical board recorded the finding. The medical board checked the complainant thoroughly and came to the conclusion that he was not suffering from any disease, which fell under ESB scheme. OP no.1 denied the averments of the complainant that he was harassed by OP no.1. The complainant is alleged to be not entitled to any relief from OP no1. OP no.1 prayed for dismissal of the complaint with special costs under Section 26 of the CP Act, due to its frivolous nature.

4.      OP No.2 and 3 filed joint written reply and contested the complaint of the complainant. Preliminary objections were taken by OPs no.2 and 3 that complainant has no locus standi to file the complaint. The complainant dragged answering OPs in false litigation.  The complainant has not come to the Forum with clean hands. The complainant has concealed the material facts from the Forum. The complainant is not consumer of the OPs. On merits, OPs no.2 and 3 pleaded that complainant approached OPs for ESB rates and he was asked to appear before medical board for recheck up and he appeared before the medical board. It is matter of record that OP no.1 changed the disease of the complainant without checkup, which is not covered under ESB. It was denied that OPs no.2 and 3 refused to recommend the case of the complainant for ESB rates. The complainant filed earlier consumer complaint, which was accepted by directing the OPs to pay benefit of 189 days under ESB scheme to complainant and to constitute the medical board within one month to examine  the complainant, which fact was not denied by OPs. OPs no.2 and 3 constituted a special medical board and the complainant was examined on 06.11.2013 and medical board recommended that the disease of the complainant fell under ESB scheme and advised that he is entitled to the benefits under ESB scheme for more 330 days from 06.05.2011 to 31.03.2012 or date of fitness, whichever occurred earlier. This fact was also admitted that complainant filed execution application and same was allowed and OPs no.2 and 3 were burdened with Rs.10,000/- out of which Rs.5,000/- were  got paid to the complainant. On 27.09.2013, the complainant was requested to collect the payment for 132 days i.e. from 3.11.2010 to 14.03.2011 for which medical certificates had been provided by the complainant himself to OPs. The answering OPs paid the amount of Rs.13,491/- for 132 days on 10.10.2013. The complainant himself had not submitted the medical certificates of incapacity from the period of 15.03.2011 to 31.03.2012 and onwards till date. The medical board confirmed the disease of complainant for his entitlement to the payment of ESB for 330 more days i.e. from 06.05.2011 to 31.03.2012. Any deficiency in service on the part of OPs no.2 and 3 was vehemently denied by them and they prayed for dismissal of the complaint.

5.      The complainant tendered in evidence his affidavit Ex.C-37   along with copies of documents Ex.C-1 to Ex.C-36 and Ex.C-38 to Ex.C-42.  As against it; OPs tendered in evidence affidavit of Dr. Mohd. Jamil Bhatti, Senior Medical Officer Civil Hospital Malerkotla Ex.OP-1/1. OPs no.2 and 3 tendered evidence copies of documents Ex.OP2&3/1 to Ex.OP2&3/15 and Ex.op2&3/16 is affidavit. On conclusion of evidence and arguments, the District Forum Sangrur dismissed the complaint of the complainant by virtue of order dated 06.02.2015. Dissatisfied with the order of the District Forum Sangrur dated 06.02.2015, the complainant now appellant, carried this appeal against the same.

6.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

7.      The submission of appellant in person is that his insurance number is 6585776 with OPs. He suffered from COPDRA disease, which is covered under Extended Sickness Benefit. His above disease was declared admissible under ESB by doctors of ESI at Malerkotla and Ludhiana. He was allowed allowances at Extended Sickness Benefit rates and Rs.6000/- was paid through cheque and Rs.1800/- was paid in cash against receipt to him for 124 days from 01.07.2010 to 01.11.2010 @ Rs.102/- per day. His vehement submission is that he was suffering from same disease and hence was entitled to ESB rates. He approached  OPs for ESB rates, but nothing was done despite his appearance before medical board. Despite the fact that he suffered from COPDRA disease, he remained unable to join his duty and could not work properly. He was, thus, entitled to get benefit under ESB scheme. Earlier he filed complaint, which was accepted by District Forum directing the OPs to give benefit of 189 days to the complainant within one month and to constitute the medical board within one month to examine the complainant. He further submitted that medical board was constituted and he was medically examined on 06.11.2013 and disease was  declared under ESB Scheme. He approached the OPs to pay benefits under ESB for more 330 days from 06.05.2011 to 31.03.2012 or till date of his fitness. He argued that OPs failed to pay the benefits for 189 days and he filed execution petition before Consumer Forum in that regard. The gravamen of his argument is that he was examined by medical board on 06.11.2013  and medical board recommended that his disease fell under ESB and he is entitled to get benefit for 330 days from 06.05.2011 to 31.03.2012 or till the date of his fitness, whichever occurred earlier. The OPs failed to consider that his disease falls under ESB category and he is entitled to the benefits thereunder.  The order of the District Forum has been challenged by the complainant now appellant on the ground that his complaint has been wrongly dismissed on the sole ground that he has failed to produce the medical certificate of his incapacity from the period of 15.03.2011 to 31.03.2012. He further contended that he could not arrange incapacity certificate of the prior date and medical board recommended his disease falls under ESB scheme.

8.      On the other hand, counsel for opposite parties contended that there is no medical certificate of Extended Sickness Benefit and in the absence of the same, no benefit can be extended to complainant for any disease under ESB Scheme. The evidence on the record has also been examined by us. OPD Tickets Ex.C-1 to Ex.C-3 have been appraised by us. The medicine for Bronchiectasis was prescribed for him. The Branch Manager ESI Corporation Malerkotla wrote letter to Medical Referee Civil Hospital Malerkotla on 21.07.2010 intimating the exact name of disease as available in the list of cases for which diseases, ESB is payable, vide Ex.C-4. There is no dispute about this fact that complainant is covered under the Employees State Insurance Act, 1948 and insurance registration number has been issued to him. The complainant also served legal notice Ex.C-19 to OPs in this regard. Ex.C-23 is letter dated 22.12.2010 addressed to Medical Referee (SMO) Civil Hospital Malerkotla to the effect that it was not confirmed that the disease falls under the ESB Scheme or not. The confirmation of the same was insisted upon in letter Ex.C-24. Most of the documents Ex.C-26 to Ex.C-30 pertained to legal cases filed by complainant/appellant. Ex.C-32 is letter of Branch Manager to complainant advising him to appear before medical board to be convened at ESIC Model Hospital Ludhiana on 06.11.2013. Execution order passed by District Forum Sangrur in case of complainant is Ex.C-34. Order of this Commission in revision petition filed by authorities is Ex.C-35 and Ex.C-36 on the record. The affidavit of the complainant is Ex.C-37 in support of his allegations. The complainant wrote letter to Branch Manager Employees State Insurance Corporation, vide Ex.C-38. Ex.C-42 is letter dated 31.10.2013 by Deputy Director to Assistant Director Sub Regional Office ESIC Ludhiana for arranging medical board for insured person. Rebuttal evidence has also been led by OPs, which has also been examined by us. Dr.Mohd. Jamil Bhatti Senior Medical Officer Civil Hospital Malerkotla tendered his affidavit Ex.OP-1/1. This witness stated that he rightly came to the conclusion that complainant was not suffering from any disease, which falls under ESB. He denied the allegation of the complainant that he was unnecessarily harassed by him. Letter Ex.OP2&3/6 dated 22.11.2010 addressed to Medical Referee Civil Hospital Malerkotla regarding confirmation of the disease of the complainant It is stated in this letter to examine the insured person and confirm if the insured suffered from disease admissible under ESB for 124 days. Letter Ex.OP2&3/7 dated 22.11.2010 also sent to Medical Referee (SMO) Civil Hospital Malerkotla in this regard. Similarly, we have also examined other documents Ex.OP2&3/8 to Ex.OP2&3/16 on the record.

9.     From appraisal of above-referred evidence on the record and hearing the submissions of the counsel for parties, we stumble across that the benefits are payable to employees insured person under Section 46 of Employees State Insurance Act, 1948. Section 56 deals with Medical Benefits to the effect that "insured person or (where such medical benefit is extended to his family) a member of his family whose condition requires medical treatment and attendance shall be entitled to receive medical benefit". Certain regulations have also been framed under the Act. Regulation 53 of the ESI Regulations, 1950 lays down that "every insured person claiming sickness benefit or disablement benefit shall furnish evidence of sickness or temporary disablement in respect of the days of his sickness or temporary disablement by means of medical certificate given by an insurance medical officer." Regulation 54 (supra) defines the persons, who are competent to issue medical certificates. Regulation 55 thereof defines the appropriate form in which the medical certificates are to be issued by the Insurance Medical Officers. Regulations 56 to 61 framed under the Act further laid down the time period for granting the medical certificates. In the case in hand, we find that there is no medical certificate for incapacity of the complainant due to his sickness justifying him to receive ESB for his disease. The Employees State Insurance Act, 1948, as well as, regulations enacted thereunder make it obligatory for the complainant-insured to produce the medical certificate of the insurance doctor to prove the incapacity of the employees by means of medical certificate. The District Forum has also focused on this point and came to the conclusion that in the absence of medical certificate of the complainant, incapacity to work has not been established on the record. Undoubtedly, complainant was examined by medical board on 06.11.2013, but for the subsequent period, the complainant has not produced any medical certificate of his incapacity to work. The complainant has failed to submit the medical certificate of his incapacity to work to OPs. In the absence of medical certificate, proving incapacity of the complainant for remaining period, the complainant is held not entitled to ESB scheme therefor. We, thus, find no illegality or material infirmity in the order of the District Forum under challenge in this case. The order passed by the District Forum in this appeal is, thus, affirmed.

10.    As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of District Forum Sangrur dated 06.02.2015 under challenge in this appeal.

11.    Arguments in this appeal were heard on 14.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

12     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

 

                                                                                                         

March 16, 2017                                                          

(ravi)