Delhi

StateCommission

A/438/2017

SANJANA TREHAN - Complainant(s)

Versus

MEDICAL SUPERINTENDANT SHRI BALAJI ACTION INSTITUTE - Opp.Party(s)

KOMAL TREHAN

21 Jan 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 21.01.2019

Date of Decision : 29.01.2019

First Appeal No.438/2017

In the matter of:

 

Mrs. Sanjana Trehan,

W/o. Mr. Utpal Trehan,

R/o. D-1/121, Janakpuri,

New Delhi-110058.                                                                                     ………Appellant

 

Versus

 

Medical Superintendent,

Sri Balaji Actio Medical Instittue,

A-4, Paschim, Vihar,

New Delhi-110063.…….Respondent

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. Challenge in the present appeal is to order dated 09.06.17 passed by District Forum (West) in CC No.28/14 vide which complaint was dismissed.
2. Facts which can be gathered from impugned order are that complainant was  working as Dietician in Deen Dayal Hospital and is entitled to DGEHS facility. She was in a family way and her treatment was going on with the OP under supervision of Dr. Ekta Sharma who is on panel of the OP. She was told that OP is in the empanelment of DGEHS. On 12.05.13 she was admitted in emergency for surgery section treatment. Her husband gave copy of DGEHS  card, staff of OP told that they were no longer on panel of DGEHS and asked her husband to pay the bill. Her condition was complicated, therefore family was left with no other option except to bear expenses of her treatment.
3. Accounts Department of the complainant told her that she was charged wrongly by the OP as they were never removed from DGEHS. The complainant visited OP several times to consider her case and return excess money charged. The OP had charged Rs.43,512/- in excess. Total charges were Rs.60,762/-, she received reimbursement of Rs.17,250/- only. Complainant sent legal notice which was not replied. Hence she filed complaint for refund of Rs.43,512/- charged in excess from her with interest @18% per annum, Rs.2 lakhs towards physical strain and mental agony, Rs.1,000/- towards cost of petition and Rs.21,000/- towards litigation expenses.
4. The OP filed reply raising preliminary objections that complaint was without cause of action, false and frivolous, based on wrong and concocted version as the OP was not on panel of DGEHS from 12.05.13 to 15.05.13, Therefore the OP rightly charged Rs.60,762/- from complainant.
5. Complainant did not file rejoinder. However she filed evidence by affidavit. The affidavit was on the lines of complaint. She proved copy of DGEHS card as Exhibit CW 1/1, copy of letter written by Additional Director, DGEHS to Medical  Supdt. Of OP as Exhibit CW 1/2,  bill dated 14.05.13 as Exhibit CW 1/3, email dated 22.08.13, 29.08.13, 10.09.13, 19.09.13 as Exhibit CW 1/4 to 7, Copy of notice as Exhibit 1/8 and postal receipts as Exhibit 1/9 and 10.
6. As compared to it OP  filed affidavit of Shri K.N Gulati, General Manager Administration which repeated the defence taken by the OP in written statement. OP relied upon letter dated 01.03.13 which is Annexure R/1 to WS, written by OP to Director (Health Services) for discontinuation of their empanelment from 01.04.13. They also relied upon letter dated 16.04.13 from Additional Director DGEHS to Medical Supdt. OP, letter dated 01.03.13 was received in the office of OP on 20.03.13. This is Annexure R/2 to WS. The Medical Supdt. of OP wrote letter dated 20.05.13 to Additional Director DGEHS for confirming continuation of penal of DGEHS with immediate effect which is Annexure R/3.
7. Both the parties filed written arguments. After going through the material on record and hearing argumentsthe District Forum found that  question to be decided was whether OP was on panel of DGEHS from 12.05.13 to 14.05.13. The burden to prove the same lay heavily upon the complainant. The District Forum referred to letter dated 16.04.13 from Additional Director DGEHS to Medical Supdt of OP which is Exhibit CW 1/2. The same recites that letter for discontinuation from empanelment w.e.f. 01.04.13 was received  in the office of Director DGEHS on 17.04.13. Empanelment can not discontinued with retrospective effect. One month notice from date of receipt of letter ought to have been provided for discontinuation  of empanelment. The OP hospital agreed to continue  empanelment under DGEHS w.e.f.21.05.13. Therefore there was practically no period when OP could not be on panel of DGEHS, if request received on 17.04.13 was considered as notice. The letter went on to state that since OP hospital was very much on the panel of DGEHS from12.05.13 to 14.05.13 during the period of admission of complainant, the OP hospital ought to have charged as per DGEHS rates during said period.  The OP requested to sort out of problem over charging with the beneficiary at the earliest under intimation to Director DGEHS.
8. The District Forum was swayed by the fact that letter Exhibit CW 1/2 is undated. The same was in response to discontinuation of empanelment letter w.e.f 01.04.13 received in the office of Director DGEHS on 17.04.13. Annexure R/2 showed that said letter was received in the office of Director DGEHS on 20.03.13. Letter Exhibit CW 1/2 is falsified from Annexure R/2 to WS on the ground that said letter is undated.
9. I am unable to appreciate how the letter being without date which is Annexure R/2 to WS falsifies Ex. CW 1/2. It may be noticed that letter Exhibit CW 1/2 is not from complainant. It is from Director DGEHS. Complainant had no role to play. She can not be blamed for not putting a date on Exhibit CW 1/2.
10. Moreover the date of receipt of letter for discontinuation by OP is irrelevant. The reason being that mere application by OP is not sufficient to discontinue. It is the acceptance of said request which is material. Director DGEHS never accepted the request. Rather he declined the request vide letter Exhibit CW 1/2. Unilateral action of OP to seek its continuation is insufficient.
11. The District Forum found fault with the letter of Director DGEHS by holding that there is no agreement on record to show that one month notice was required for cancellation of empanelment. It is not required to be mentioned in agreement. It is as per rules.
12. It is not clear as to from where District Forum found that empanelment of the OP was cancelled  on 19.04.13. Rather letter Exhibit CW ½ shows that OP agreed to continue empanelment under DGEHS w.e.f. 21.05.13. Thus there was practically no period when OP was not panel of DGEHS, if request received on 17.04.13 was considered as notice.
13. The things boil down to the fact that request for discontinuation of empanelment received on 17.04.13 could result in dis- empanelment w.e.f. 17.05.13. OP agreed to continue empanelment w.e.f. 21.05.13. Thus hardly three days from 18.05.13 to 20.05.13 remained in between during which OP could urge that it was not on panel. That does not help the OP in the instant case. The reason being that OP is trying to show dis-empanelment for three days from 12.05.13 to 14.05.13 during which period the complainant was in treatment with OP. That period would undisputedly remain in the bracket of empanelment.
14. In view of the above discussion the conclusion of District Forum that OP was not on panel of DGEHS during the relevant period can not be sustained.
15. The counsel for  respondent filed written arguments in appeal on 25.01.19, after the case has been reserved for orders on 22.01.19. In the written arguments he has mentioned that all the tests advised to the complainant by Gyane doctor as well as bills were accepted under DGEHS facility. This supports the plea of the complainant.
16. The counsel for respondent has referred to certain decisions to show that a litigant who is unscrupulous and repeatedly misleading the courts by filing false affidavits and illegally retain unlawful benefits, is not entitled to any relief. That is true but the same has no relevance in the present case. The OP has not shown as to what misrepresentation the complainant made.
17. Counsel for respondent referred to decision of this Commission in Ram Kumar Roller Flour Mills Pvt. Lt vs. U.P. S.E.B. and anr. to make out that if complainant does not file rejoinder to the WS, he must be deemed to have been admitted the plea taken by OP in WS.  Neither the copy of said judgement has been provided nor particulars of that case as to whether it was complaint or appeal, number of case, date of decision have been provided. Moreover law on the point has been enunciated by our own Hon’ble High Court in Anant Raj Construction 1994 (3) Delhi lawyer 71. Hon’ble Mr. Justice R.C. Lahoti as his lordship then was held that replication is not to be filed in a routine. It was further held that no adverse inference can be drawn for not filing rejoinder.
18. Respondent has tied to show that Dr. Ekta Sharma who treated the complainant was a necessary party. He also tried to show that Govt. of NCT was a necessary party as the contract of providing medical facilities, if any, was between the government and OP. I do not find any force in the said contention. The law is that the beneficiary is a consumer and he can file complaint against a person who is deficit in service. It was the OP who  was deficit in servic. The government has supported the case of the complainant by mentioning in letter Exhibit CW1/2 that OP  should settle the claim of the complainant.
19. Before parting with the file I may  mention that whole controversy has arisen because there is the huge difference in rates approved by DGEHS / CGHS and rates charged by private hospitals. They charged exorbitantly and that is why they discourage patients coming from DGEHS/ CGHS, This is what has happened in the present case. The approved rates were Rs.17,250/-, OP charged Rs.60,762/-. The complainant was given reimbursement of approved charges of Rs.17,250/- that is why the controversy remained regarding difference viz. Rs.43,512/-.
20. In the view of the  above discussion the appeal is accepted, impugned order is set aside. Respondent is directed to refund Rs.43,512/- with interest @12% per annum from the date of bill i.e. 14.05.13 till the date of refund, Rs.5,000/- as compensation for harassment including cost of litigation. Respondent is directed to comply with the order within one month from the date of receipt of copy of this order.
21.  Copy of the order be sent to both the parties free of cost.
22. One copy of the order sent to District Forum for information.
23. File be consigned to record room.

 

                                                                                                                                                

                                                                                                                                                                         (O.P. GUPTA)                                                    

                                                                                                                                                                    MEMBER (JUDICIAL)