FA.No.856/2007 AGAINST C.D.No.654/2006  DISTRICT FORUM-III, HYDERABAD.

Between:

1. Ex.Servicemen  Contributory Health Scheme

    (ECHS) Regional  Centre,

    Roberts Road, Trimulgherry

    Secunderabad 500 015

2. Ex.Servicemen Contributory Health Scheme

    (ECHS) Central Organization

    Adjutant General’s branch

    South Block, Room No.278-A

     Army Headquarters, New Delhi  110 011

3. Ex.Servicemen Contributory Health Scheme

    ECHS polyclinic Giddalur

    Prakasam District.

    Rep. by its Medical Officer.                                                                                      Appellants

                   And

Mrs.N.Shyamala Devi

W/o.N.Surya Prakash

Aged about 44 years, Occ:Housewife

Indian, R/o.H.No.18, SBI Colony

Dorasani Palle, Proddatur

Kadapa District.                                                                                                            Respondent/

                                                                                                                                       Complainant

Counsel for the Appellants: Mr.Vasireddy Vinod Kumar.

Counsel for the Respondent:-M/s.V.Gourisankara Rao

QUORUM:      SMT.M.SHREESHA,  MEMBER

&

SRI K.SATYANAND, MEMBER

THURSDAY, THE SEVENTEENTH DAY OF DECEMBER,

TWO THOUSAND NINE

(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***

         This is an appeal filed by the opposite parties assailing the order of the District Forum and holding them liable to pay an amount of Rs.50,000/- as compensation and costs of Rs.2,000/-.

        The facts that led to filing this appeal are briefly are as follows:

        The complainant, Mrs.N.Shyamala Devi, W/o.Ex.Servicemen N.Surya Prakash jointed the “Ex Servicemen Contributory Health Scheme” (ECHS by short) by paying a sum of Rs.8,400/-  so as to avail comprehensive and quality medicare to be provided by military hospitals and their empanelled civil hospitals.  The complainant being the wife of the ex-servicemen was eligible for the benefits of the scheme.  The complainant was suffering from pain in abdomen, dysmenorrheal, P/V bleeding since 4-5 months and had consulted Sri Swarna hospital, Proddatur and the consultant doctor there opined that surgery was required at an early date.  Thereupon the complainant approached opposite party no.3 the ECHS polyclinic, Giddalur who referred her to Military hospital, Secunderabad on 10-4-2006.  It is the case of the complainant that it was contrary to the terms and conditions laid in ECHS and that opposite party no.3 ought to have referred her to an empanelled hospital  as opposite party no.3 was at non-military station.  It is the further case of the complainant that the Military hospital at Secunderabad did not attend properly and there was no treatment provided to her on 12-4-2006 and that a Specialist doctor examined her confirming surgery but refused to specify a date.  Therefore the complainant requested for referral to an empanelled hospital but the Director, ECHS refused the same on the ground that the facilities were available at Military hospital, Secunderabad.  Therefore the complainant discharged herself from the military hospital and admitted herself at Yashoda hospital which was an empanelled hospital under ECHS  and undergone hysterectomy on 15-4-2006 and was discharged on 19-4-2006 and a sum of Rs.50,000/- was incurred as expenditure.  The complainant alleged that the opposite parties rejected her request of reimbursement despite several reminders both oral and written and she therefore got issued a legal notice on 19-7-2006 which evoked no reply.  Hence the complainant approached the District Forum for a direction to the opposite party to pay Rs.50,000/- with interest and other reliefs.

        In the version, opposite parties 1 to 3 admitted that the complainant’s husband was a member of ECHS scheme with effect from 16-3-2006 and that the polyclinic at Giddalur referred the complainant to Military hospital Secunderabad for treatment on 10-4-2006.  On 11-4-2006, the complainant was diagnosed as a case of Fibroid uterus with menorrhagia and they contended that since facilities for treatment of the said disease existed at military hospital, the complainant was not referred to any empanelled hospital.  The complainant did not require immediate surgery and there was no emergency, however, the complainant wished to be discharged on 12-4-2006 against medical advice after submitting an unwillingness certificate. They submitted that as per ECHS terms, the patient would be referred initially to a service hospital and in case of non-availability of bed space/treatment, only then the patient would be referred to empanelled hospital.  The ECHS member would be provided treatment, medicines and ward facilities as per entitlement and the choice of empanelled hospital by the patient was only after referral was made by the specialist at Military hospital, they added. As there was no specialist at Polyclinic, Giddalur she was referred to a specialist at military hospital, Secunderabad and in case of non availability of treatment in service hospital only the ECHS member would have the right to make selection of desired civil empanelled hospital and as there was no emergency, the patient was referred to Military hospital where she was examined by the Specialist and advised to undergo hysterectomy but the date of surgery could be fixed only after thorough pre-operative work up.  However, the complainant was unwilling to the same and insisted for immediate referral to empanelled hospital or discharge from military hospital as she had some domestic problems. Therefore they contended that there was no provision to reimburse the expenses to the ECHS member and in case a patient was referred to the empanelled hospital, the expenses for the treatment were to be claimed by the hospital directly from ECHS scheme as per the CGHS or negotiated rates agreed in MOA and prayed for dismissal of the complaint.

        In support of her case, the complainant filed her own affidavit and relied upon documents marked as Exs.A1 to A13.  The opposite parties on the other hand filed counter by way of affidavit and relied upon documents marked as Exs.B1 to B4.

        On a consideration of the evidence adduced on either side, the District Forum came to the conclusion that though there was no deficiency in service  on the part of the opposite parties in the matter of declining to refer her case to empanelled private hospital, the opposite parties were nevertheless faulted for not having attended upon the complainant as expected of a prudent and diligent doctors forcing her to give an unwilling certificate and seek treatment at an alternative place.  The District Forum awarded compensation for the deficiency in service on this last mentioned count highlighting it by saying that there was no reason to postpone the required surgery as was done by the military hospital at Secunderabad.

        Aggrieved by the said order, the opposite parties filed the present appeal contending inter-alia that the order of the District Forum was not in conformity with the terms and conditions that govern the parties by virtue of this scheme of health care by name “Ex-servicemen contributory health Scheme” the bulletin of information of which was exhibited by the complainant himself as Ex.A1.  The memorandum of grounds extensively adverted to various clauses in the said bulletin as also in the information brochures of ECHS marked as Exs.B2 and B3 to contend that the District Forum failed to see that the withdrawal of the patient from the Military hospital and switching over to an empanelled hospital on her own without complying with the conditions pre-requisite including the emergency compelling them to loose no time as found by the hospital authorities was totally unwarranted.  The District Forum wrongly relied upon the unwilling certificate Ex.B1 given by the complainant herself as furnishing proof of the negligence on the part of the military hospital in attending to her and proceeding with the surgery instead of dragging on the matter on the ground that it was a case of planned surgery and that there was no urgency. 

        Heard both sides.

        In as much as the complainant did not file any cross appeal questioning the findings that went against her to the effect that the non referral by the military hospital cannot be faulted with as there was no proof of the complainant  suffering from any syndrome which required emergency treatment, the only point that arises for consideration is:

1)      Whether the District Forum in concluding, on the basis of Ex.B1, that the military hospital was wrong in not attending to the complainant and thereby driving her to sign the unwilling certificate and seek treatment at an alternative place? 

        As could be seen from the impugned order of the District Forum, the bulk of negligence is attributed only to the doctors in the military hospital even while categorically holding that the ECHS was justified in refusing a referral to the empanelled hospital against which the complainant did not prefer any appeal.  If such is the case, it is the doctors in the military hospital where she admitted herself before leaving it after handing over an unwilling certificate that would have been in a position to clarify  the allegations against their conduct.  In the absence of such an enquiry which is made impossible in as much as the complainant failed to make the military hospital and its doctors as parties to this litigation, the vicarious liability of ECHS who happened to be the only party though represented by three functionaries at various levels for the negligence of the military hospital and its doctors could have been hardly validly adjudicated.  Unfortunately the District Forum embarked upon such an enquiry against the main respondents for such a charge behind their back.  The vicarious liability can be fixed or imposed only after the negligence of the persons in the employ of such principal is properly adjudicated.  The complainant gave a go by to this fundamental procedure and the District Forum too followed suit without actually analyzing as to whose alleged negligence is at the root of the grievance of the complainant  especially after having been convinced that there was no flaw in ECHS represented by the poly clinic and the military hospital declining to refer the complainant to an empanelled private hospital.   The order of the District Forum suffers from this incurable defect.

        As could be seen from para 11 of the complaint, the charge of deficiency in service was levelled against ECHS in three limbs.  The first is that the opposite parties especially opposite party No.3failed to refer the complainant straight away to an empanelled civil hospital as per the terms and conditions of ECHS for surgery.  But this contention was repelled by the District Forum against which finding there is no appeal.  The next limb is the non rendition of the treatment at military hospital, Secunderabad and keeping the patient in dark with regard to the probable date of surgery for indefinite time. As already pointed out this is an allegation directed against the military hospital and its doctors.  In the absence of the said faulted, namely, the military hospital and its doctors, as parties no finding against them ought to have been given.  It is   only after giving a finding against them that the District Forum could have fixed up the vicarious liability against ECHS.  Though this aspect of the order is not impugned in this appeal in so many words, the fact remains that it is very critical and rudimentary in the administration of justice.    It is already held in the foregoing discussion that the finding of the District Forum against ECHS on account of the so called lapse on the part of the military hospital and its doctors is simply untenable.  The third limb of the deficiency in service alleged pertains to the failure on the part of the ECHS to accede to the request of the complainant to reimburse the amount spent by her elsewhere in the empanelled hospital.  But her resort to empanelled hospital was effected by making a departure from the rules of the scheme which among other things specifically bars any reimbursement by cash to the beneficiaries.   In any view of the matter, when she joined a private civil hospital without qualifying herself to resort to such civil hospital within the parameters of the scheme, the ECHS will be under no obligation to make good her expenditure which from the point of view of ECHS simply turned out to be unauthorized and untenable. The District Forum clearly exceeded its jurisdiction by granting relief on this score and its order cannot be upheld.

        Accordingly the appeal is allowed setting aside the order of the District Forum and consequently dismissing the complaint but without costs throughout.

                                                                                                                Sd/-MEMBER.

                                                                                                                Sd/-MEMBER.

JM                                                                                                             Dt.17-12-2009