F.A.No.991 OF 2006 AGAINST C.D.No.744 OF 2005 DISTRICT CONSUMER FORUM-III HYDERABAD

Between

E.Chandra Mouli S/o Narasaiah
Age 37 yrs, Pvt. Employee
R/o Sri Ram Nagar, Yadagirigutta(V)(M)
Nalgonda Dist.                                                                                                                                                                       Appellant/complainant

          A N D

1.     The Regional Director
E.S.I.Corporation, 5-9-23,
Adarsh Nagar, Hyderabad-063

2.     The Director,
Insurance Medical Service
6-4-6/8, Opp- New Gandhi Hospital
Kavadiguda, Secunderabad

Respondents/opposite parties

Counsel for the Appellant                        Sri G.L.Narasimha Rao

Counsel for the Respondent No.1           Sri B.G.Ravindra Reddy
Counsel for the Respondent No.

QUORUM-                    SMT M.SHREESHA, LADY MEMBER
                                                and
                   SRI G.BHOOPATHI REDDY, MEMBER

                                 MONDAY THE NINETH DAY OF JUNE

      TWO THOUSAND EIGHT

   Oral Order ( As per the Smt M.Shreesha, Member)
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            Aggrieved by the order in C.D.No.744 OF 2005 on the file of District Forum-III, Hyderabad the complainant preferred this appeal.

          The brief facts as set out in the case are that the complainant is an employee of opposite party no.1 and when he suffered with abdominal pain on 16.8.2005 he was admitted in ESI Hospital, Nacharam and the doctors prescribed 4 tablets and even after consuming these tablets the pain was not reduced.  The said doctor advised him to take X-ray and the technicians were not available at the dispensary.  Hence the complainant was constrained to be admitted at Thirumala Nursing Home  where the doctors have diagnosed the pain as appendicitis and conducted the operation for which the complainant spent Rs.39,000/-.  Thereafter he made a calim for the payment of this amount from the opposite parties and also got issued a legal notice to the opposite parties.   The opposite parties sent a reply dated 28.3.2005 addressing the Director of Insurance Medical Services that the case of the claim petitioner will be attended to on top priority basis and the action taken in this regard may be intimated to the party concerned under intimation to this office but there was no response thereafter and therefore the complainant filed this complaint before the District Forum directing the opposite parties to pay a sum of Rs.39,000/- together with interest at 24 percent per annum.

          The opposite parties filed counter stating that in view of Sec.57 the complainant is not entitled to claim any reimbursement from ESI Corporation.  The opposite party further contended that the only remedy available to the complainant is under Sec.75 of ESI Act before the E.S.I. Court, Hyderabad.

          Opposite party no.2 did not file any counter in spite of several adjournments and the District Forum dismissed the complaint on the ground that the facility extended by the employer is under service conduct of employment and is not a service hired by the complainant from the opposite party.

           Aggrieved by the said order the complainant preferred this appeal.

          The learned counsel for the appellant submitted that the appellant is covered under ESI Insurance Coverage and he is paying contributions since the year 1997 and therefore he is well entitled to claim the amount as per the C.D.  He further contended that from the salaries  of every employee,  a contribution was deducted and paid to the ESI and therefore he is well entitled to the relief.      We have gone through the material on record.

          It is a case of the complainant that he suffered abdominal pain and was shifted from ESI Hospital at Nacharam to Tirumala Hospital, Secudnerabad where he was operated appendicitis and he incurred an expenditure of Rs.39,000/- towards medical treatment.  It is the case of the opposite parties that the subject mater does not fall within the Consumer Protection Act as per Sec.75(g) of ESI Act which reads as follows-

75(1)  If any question or dispute arises to…………
          (g)  any other matter which is in dispute between a principal employer and the  Corporation or between a principal employer and an immediate employee or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act,  19 ( or any other matter required to be or which may be decided by the Employee’s Insurance Court under his Act) such question or dispute (subject to the provisions of sub-sec (2-A) shall be decided by the Employees’ Insurance Court in accordance with the provisions of this Act.

                It is also the contention of the opposite party that the complainant is not entitled to any reimbursement under Sec.57 of ESI Act.

57(1)- An insured person and ( where such medical benefits extended to his family) his family shall be entitled to receive medical benefit only of such kind and on such scale as may be provided by the State Government or by the Corporation, and an insured person or, where such medical benefit is extended to his family, his family shall not have a right to claim any medical treatment except  such as is provided by the dispensary, hospital, clinic or other institution to which he or his family is allotted, or as may be provided by the regulations.

2)       Nothing in this Act shall entitle an insured person and (where such medical benefit is extended to his family) his family to claim reimbursement from the Corporation of any expenses incurred in respect of any medical treatment, except as may be provided by the regulations.

          We address ourselves to the aspect whether the complainant is a consumer and we hold that he has made contributions from his salary towards ESI and falls within the ambit of C.P.Act.  However, the complainant has failed to establish that he is entitled to these amounts u/s 57(1) of ESI Act an insured person or, where such medical benefit is extended to his family, his family shall not have a right to claim any medical treatment except such as is provided by the dispensary, hospital, clinic or other institution to which he or his family is allotted. The complainant did not file any documentary evidence to substantiate his contention that the said hospital where he got treatment done falls within the ambit of Sec.57 (1) of ESI Act.  Therefore we see no reason to interfere with the well considered order of the District Forum.

          In the result this appeal fails and is accordingly dismissed without costs. 

                                                          LADY  MEMBER            MALE MEMBER
                                                                                      09.06.2008

KMK-