BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.339 of 2021

      Date of Instt. 11.10.2021

                Date of Decision: 06.08.2024

Naveen Narang S/o Sh. Subhash Narang, WE 338, Ali Mohalla, Jalandhar.

..........Complainants

Versus

1.       Medical Superintendent, Employees State Insurance Corporation       Hospital, Shaheed Udham Singh Nagar, Jalandhar.

2.       Joint Director, Sub Regional Office, Employees State Insurance         Corporation           Hospital, Shaheed Udham Singh Nagar, Jalandhar.

3.       Regional Director, Employees State Insurance Corporation,      Panchdeep Bhawan, Block No.3, Sector-19/A, Madhya Marg,     Chandigarh-460019.     

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj              (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Sheikhar Prabhakar, Adv. Counsel for Complainant.

                   Mr. Rakesh Kumar, Auth. Rep. for OP No.1.

                   Sh. Sushant Kohli, Adv. Counsel for OPs No.2 & 3.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is covered under the ESI scheme bearing ESI card No.2913037779. As per the ESI scheme the family members including parents of the complainant are covered under the scheme. Mother of the complainant Smt. Shashi Narang was suffering from Osteoarthritis B/L Knee Joint for which she was required treatment. Accordingly, the complainant had got admitted his mother in Apex Hospital Maternity Home wherein she had undergone medical treatment wherein her surgery was conducted. She remained in hospital w.e.f. 24.04.2014 to 14.05.2014. The total expenditure on the said treatment came to Rs.3,19,801/- as per the final payment bill of the said hospital. The complainant lodged a claim before the OP No.1 and submitted all record regarding treatment and after a long period of more than four years, the OP No.1 sought three documents, vide letter dated 06.05.2019 and the complainant supplied two documents as remaining one is not available with him. Thereafter the OP No.1 again sought one remaining document vide letter and complainant replied that the document not available with him. Thereafter, the Covid-19 prevalied in the Country in March, 2020 and no further contact could be established between the complainant and the OPs. Thereafter, the complainant served a legal notice dated 10.08.2021 upon the OP No.1 and the OP No.1 replied and repudiated the claim of the complainant. This act and conduct on the part of the OPs tantamount to be an unfair trade practice as the OPs have committed breach of trust towards the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.3,19,801/- as claimed amount. Further, OPs be directed to pay Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.20,000/- as litigation expenses.

2.                Notice of the complaint was sent to the OPs and accordingly, OP No.1 appeared through its Clerk Mr.Jaspal, who filed reply and contested the complaint by stating that the complainant alongwith his family including parents covered under the ESI scheme. It is admitted that the mother of the complainant was suffering from Osteoarthritis B/L Knee Joint and she was admitted and thereafter claim was lodged and the complainant submitted certain documents and thereafter claim was repudiated and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.  

3.                OPs No.2 and 3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the eyes of law as the complainant has concealed the true and material facts from this Court. It is further averred that the case being vague and indefinite is liable to be rejected. It is further averred that the complainant has no locus-standi to file the present complaint. It is further averred that no cause of action has accrued to the complainant to file the present complaint. It is further averred that the present complaint is not maintainable as per the provision of Section 75 and 75 of Employees State Insurance Act 1948 as such due to want of jurisdiction the matter which need medical expert opinion should be decided by employees court as Employees State Insurance Act, 1948. It is further averred that the services are not rendered by OPs No.2 and 3 actually it is OP No.1 who has rendered the medical services directly. It is admitted that the complainant alongwith his family including parents covered under the ESI scheme, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

7.                It is not disputed that the complainant is covered under ESI scheme. The complainant has proved the ESI Card Ex.C-1. As per Ex.C-1 the ESI scheme includes the family members and parents of the complainant. The complainant has alleged that his mother Shashi Narang was suffering from Osteoarthritis i.e. Knee joint for which she required treatment and her surgery was got conducted from Apex Hospital Maternity Home from 24.04.2014 to 14.05.2014. The total expenditure on her treatment came to Rs.3,19,801/-. The complainant has proved on record the certificate of the hospital Ex.C-2. As per Ex.C-2 Shashi Narang was diagnosed as a case of Osteoarthritis B/L Knee joint and her operation was conducted on 24.04.2014 and she was discharged on 14.05.2014. This certificate has duly been issued by the Dr. Sanjiv Goyal MS. He has also proved on record the bills showing the expenditure made by him for the treatment of his mother. Complainant submitted all the documents and claim form for reimbursement in the month of August, 2014 to the OPs, but the reimbursement of medical bill expenses have not been made. This fact has been admitted by the OPs that the bill was submitted and claim was also submitted, but it has been alleged that the required documents were not supplied to the department. The OP has also produced on record the letters written to the complainant time and again for sending the documents. These letters have been proved by the OPs Ex.O1 to Ex.O4.

8.                The contention of the OP No.1 is that the emergency certificate provided by the Apex Hospital indicates that this is a case of Osteoarthritis bilateral knee joint requiring surgery that can be in most of the cases elective. X-ray is required to ascertain whether this is an emergency or not. It has been alleged that the complainant has failed to submit the documents whereas the complainant has alleged that all the documents were provided.

9.                The complainant has relied upon Ex.C-7, which is the medical reimbursement certificate of the Dr. Sanjiv Goyal, who has conducted the surgery. As per this document, the doctor has certified that the treatment was necessary. The OP has not produced on record any guidelines or any document to show that the reimbursement is to be made only in cases, where there is an emergency. Though, the treatment of knee joint may be elective, but it also may be emergent in some cases. Since, no document has been filed by the OPs in support of their contention, therefore, it cannot said that the reimbursement cannot be made in cases where the treatment is elective. The complainant has proved on record that he had spent an amount of Rs.3,19,801/-. The doctor has given the reimbursement certificate after going through all the documents pre-operative x-rays and all the necessary documentation. Thereafter only the doctor conducted the surgery. The demand of documents, which are not must for the reimbursement time, again clearly indicates the harassment to the consumer.

10.              The OP No.2 and 3 have raised the objection that as per provisions of Section 75 and 76 of Employees State Insurance Act, 1948, this Commission has no jurisdiction to try this complaint. It has been held by the Hon’ble Supreme Court in a case titled as ‘Kishori Lal Vs. Chairman, Employees State Insurance Corporation’, in a Civil Appeal No.4965 of 2000, decided on 08.05.2007 that ‘ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the scheme or his family cannot be treated as gratuitous.

                   The appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant.

                   The jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of section 75 of the Employees’ State Insurance Act, 1948.’

                   So, the consumer commission has jurisdiction. It is proved that the complainant was issued ESI card. It also proved from Ex.C-1 that Shashi Narang was also covered under this scheme. Ex.C-1, nowhere finds mentioned that pre-operative x-ray is required or the reimbursement can be made only in emergency cases. Thus, there is a clear cut deficiency in service and unfair trade practice on the part of the OPs and thus, the complainant is entitled for the relief.

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay claimed amount of Rs.3,19,801/- to the complainant. Further, OPs are directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.8000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

06.08.2024         Member                          Member                President