DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.65 of 2017
Date of institution: 30.01.2017 Date of decision : 04.07.2018
Tek Bahadur Pradhan, House No.183, Phase-5, Shahi Majra, District Mohali.
…….Complainant
Versus
1. Through its Senior State Medical Commissioner, O/o The Senior State Medical Commissioner, Employee’s State Insurance Corporation, Sector 19-A, Madhya Marg, Chandigarh.
2. Through its Director, O/o The Director Health Services (ESI), Punjab, Parivar Kalyan Bhawan, Sector 34-A, Chandigarh.
3. Through its Social Security Officer, O/o Manager, ESIC, Local Office, Phase-VII, Industrial Area, Mohali.
4. Through its Medical Officer, ESI Dispensary, Phase-VII, Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Jasbir Singh, counsel for the complainant.
Shri Ravi Inder Singh, counsel for OP No.1 and 3.
Shri Balkar Singh, Sr. Assistant in the office of OP No.2 for OP No.2.
Ms. Supriya, Clerk in the office of OP No.4 for OP No.4.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, due to his working with M/s Synergy Telecommunication, Industrial Area, Phase-1, Mohali since from 06.01.2014, had been depositing his ESI contribution @ 1.75% and his employer’s contribution @ 4.75%. This deposit made with respect to insurance policy No.1213160324. Wife of complainant got treatment from PGI Chandigarh during period from 23.10.2015 to 30.10.2015 as delivery case, after being referred by OP No.4. Medical reimbursement bill of amount of Rs. 11,975/- was submitted on 22.04.2016 vide diary No.295, but reimbursement of bill amount has not taken place despite calling upon OPs to do so. So this complaint for seeking reimbursement of bill amount of Rs.11,975/- with interest @ 18% alongwith compensation for mental harassment and agony of Rs.50,000/-, but litigation expenses of Rs.25,000/-.
2. In joint reply filed by OP No.1 and 3, it is pleaded as if complaint is not maintainable because complainant has not approached the Forum with clean hands; there is no verification of complaint as per requirements of Order 6 Rule 15 CPC; answering OPs have no role to play in the matter of reimbursement of bill. As per notification of ESI dated 07.06.2002, claims of reimbursement to be done by OP No.2. OP No.3 has no role to play in verification, passing and sanction of the bill as per provisions of ESI Act. It is claimed that complainant has never visited OP No.3 at any point of time and as such complaint prayed to be dismissed with costs.
3. In separate reply filed by OP No.4, it is claimed that complainant has been reimbursed Rs.9,775/- through NEFT on 22.03.2016 through his saving bank account. Factum regarding contribution to ESI scheme by OP or of getting of treatment by wife of complainant are not denied in this written reply of OP No.4. Delay in payment took place because of lengthy procedure because first of all bills are sent to SMO Mohali for verification and thereafter they are sent to OP No.2. It is after sanction of these bills by OP No.2 that payment is made by District Treasury Officer, Mohali. Amount alleged to be paid through NEFT on 22.03.2017. (It may be mentioned here that there is contradiction in the plea taken in this reply regarding date of reimbursement of Rs.9,775/- through NEFT because at one point it is claimed as if the amount paid on 22.03.2016, but at other point it is claimed as if this amount paid on 22.03.2017).
4. In separate reply filed by OP No.2 particulars regarding complainant being member of ESI scheme not denied. Further it is claimed that financial sanction of bills amounting upto Rs.10,000/- is granted at the level of concerned SMO, but bills for amount of more than Rs.10,000/- are sent by concerned SMO to OP No.2 for financial sanction, but after processing of reimbursement bills by ESI dispensary No.1, Phase-VII, Mohali. It is claimed that OP No.2 has not received the medical reimbursement bill.
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter his counsel closed evidence. On the other hand, counsel for the OP No.1 and 3 tendered in evidence affidavit Ex.OP-1/1 of Shri Jatinder Kumar, SSO and documents Ex.OP-1 to Ex.OP-2 and thereafter closed evidence. Shri Balkar Singh, Senior Assistant in office of OP No.2 tendered in evidence affidavit Ex.OP-1/2 of Smt. Jaspal Kaur, Director Health Services and thereafter closed evidence. Ms. Supriya, on behalf of OP No.4 tendered in evidence affidavit Ex.OP-4/1 of Dr. Renu, Medical Officer alongwith document Ex.OP-4/2 and thereafter closed evidence.
6. Written arguments submitted by complainant and OP No.1 and 3. Oral arguments of appearing representatives and counsel heard and records gone through.
7. Ex.OP-4/2 produced to show as if through NEFT transaction an amount of Rs.9,775/- deposited in account of complainant on 22.03.2017 and as such it is obvious that virtually OPs acknowledged the claim of complainant regarding entitlement for medical reimbursement bill regarding which copies produced on record as Ex.C-4. It is not disputed that this bill submitted by complainant with OP No.4 on 22.04.2016 because contents of relevant para of the complaint not specifically denied by any of the OPs either through their replies or submitted affidavits. As despite submission of bill on 22.04.2016, payment made on 22.03.2017 and as such certainly there is delay of more than 10 months in reimbursement of bill amount. Ex.C-1 is copy of prescription form of insured persons’ family members, whereas Ex.C-2 is out patient card and Ex.C-3 discharge and follow up card issued by PGI. It is not disputed that wife of complainant got treatment from PGI Chandigarh on being referred by OP No.4.
8. Ex.OP-1 the copy of notification shows as to who are the authorities competent to represent ESI, whereas Ex.OP-2 makes mention about authorities competent to accord sanction for reimbursement of medical bills.
9. Grievance of complainant remains that though the medical bill Ex.C-4 for amount of Rs.11,975/- submitted, but payment of Rs.9,775/- alone made and as such paid amount is deficient by Rs.2,200/-. In view of payment of part of the medical bill amount during pendency of this complaint filed on 30.01.2017, now OPs estopped by their act and conduct from claiming that complaint is barred by limitation.
10. Perusal of notification Ex.OP-2 reveals that if the amount of bill is in limit of Rs.10,001/- to Rs.50,000/-, then sanction of Director Health Services is required. Bill in question is of amount in excess of Rs.10,001/- and as such certainly sanction of OP No.2 is required. In view of this, OP No.2 cannot shirk from responsibility of ensuring early payment of bill amount in question. However, plea has been taken on behalf of OP No.2 as if bill in question never received in its office. That plea certainly is incorrect particularly when sanction of OP No.2 required in view of amount of bill exceeding Rs.10,001/-. So, false plea virtually taken for shirking responsibility for delayed payment by OP No.2.
11. As bill amount of Rs.11,975/- has been submitted alongwith description of amounts spent on different items mentioned in Ex.C-4 and as such it is for the OPs to prove as to which of the items were not in the approved list. If the amounts detailed in Ex.C-4 would have been with respect to any item not liable to be included for reimbursement, then the same would have been deleted from bill Ex.C-4 itself, but the same has not been done and as such in view of verification of Ex.C-4 by OP No.4 itself, it is obvious that actually complainant is entitled for total bill amount of Rs.11,975/-. However, payment of Rs.9,775/- alone has been made out of this amount and as such entitlement of complainant for balance amount of Rs.2,200/- remains there.
12. It is not at all specified by OP No.4 or OP No.2 or any other OP as to where bill remained pending after its submission with OP No.4 on 22.04.2016 and as such virtually OPs have suppressed material facts from this Forum also, due to which inference is inevitable that inaction of concerned OPs paved way for non clearance of medical reimbursement bill expeditiously. As complainant had been contributing from his salary to ESI Scheme and even the employer had been contributing and as such the medical reimbursement to be done by concerned OPs expeditiously as per terms of the Scheme, but OPs remained negligent in not disbursing the amount expeditiously and even they remained negligent in not disclosing about the status of bill or the stage, where it remained pending for about ten months.
13. After going through Clause-4 (i) of circular Ex.C-6, it is made out that tie up institution will send the bills alongwith necessary supporting documents to the respective hospitals by 7th of the next month. Further as per Clause-4 (ii) of Ex.C-6, Medical Superintendent to forward bills complete in all respects to SSMC/SMC within the next 7 days i.e. by 14th of every month. Clause-4 (iii) of Ex.C-6 further provides that SSMC/SMC will make payment within next 7 days directly to the tie up hospitals/institutions and even they will send intimation of payment to the respective ESI Hospital. It is also made out from second para of Clause-4 (iii) of circular Ex.C-6 that in case of model hospitals and hospitals run directly by ESIC, bills will be directly paid by the Medical Superintendent within 7 days of receipt. When such an obligation of making payment of medical expenses in time bound manner stipulated through circular Ex.C-6, then certainly it is the duty of OP No.4 and of the concerned OPs to ensure payment of submitted bill Ex.C-4 within one or two months positively. That payment has not been got made and as such virtually complainant was denied benefit of ESI Scheme regarding reimbursement of medical expenses. Such denial to complainant was done by violating the statutory obligations on part of OPs also and as such complainant being sufferer, liable to somewhat reasonable hefty amount of compensation for mental agony and harassment alongwith reasonable amount of litigation expenses, because he stood dragged to this litigation due to inaction of OPs in not reimbursing the amount in time stipulated by above circular.
14. Even if the bills are submitted online in the Treasury, despite that OP No.4 or the concerned OPs cannot shirk their responsibility because here delay in sending the bill is apparent, as discussed above. Submission of representative of OP No.2 to the effect that bill could not be sent due to workload, cannot help OP No.2 because when the payment envisaged through Ex.C-6 in time bound manner, then rush of work is no ground for denying the benefit to the beneficiary of ESI Scheme. Shortage of staff also is no ground for shirking responsibility of making payment in time bound manner.
15. Counsel for OP No. 1 and 3 vehemently contends that function of ESI and Punjab Govt. is to undertake joint venture in implementing the ESI benefit scheme and as such role of OP No.1 and 3 does not remain. After citing provisions of Section 58 of ESI Act, it is vehemently contended by counsel for OP No.1 and 3 that as these OPs have no role to perform either in sending the bill to Director for verification or to Treasury concerned or to any other authority and as such complaint against OP No.1 and 3 is not maintainable. It is also contended that complainant has never approached OP No.3 for helping him in matter of seeking reimbursement of submitted medical bill and as such deficiency in service on part of OP No.3 is not there at all. Rather the amount to be paid by SSMC, who is bound to have tie up with hospitals and as such it is contended that OP No.3 should not be held liable for delay, if any, in making payment of the bill amount. Certainly after going through Section 58 (3) of ESI Act, it is made out that ESI Corporation to enter into an agreement with State Govt. regarding the nature and scope of medical treatment that is to be provided to the insured persons or the family members. Even if this provision is there, despite that after referring to circular dated 14.03.2012, it has been held by 2nd Addl. Bench of Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh in First Appeal No.1630 of 2014 decided on 07.01.2015 titled as Senior State Medical Commissioner, ESIC & another Vs. Savita & another, that duty of Social Security Officer is to discuss with employees working in the premises about the availability of benefits and thereafter to report about their grievances, if any. The guidelines issued vide above circular of the Corporation aims at providing prompt action in matter of grant of benefits under the Scheme expeditiously. After holding all this, duties of SSOs were discussed by holding that liability of SSOs in respect of not getting the benefit provided at earliest remains there. Even Hon’ble National Consumer Disputes Redressal Commission, New Delhi while deciding Revision Petitions No.640 and 641 of 2015 on 01.04.2015 in case titled as Senior State Medical Commissioner and another Vs. Rajinder Singh & others held that Director Health Services is a necessary party in matters pertaining to grant of benefits to beneficiaries under ESI Scheme. Hon’ble National Commission in this case held further that in future Director (Health Services) should be impleaded as a party in all such cases because powers regarding reimbursement lies with the Director. It was also held in this un-reported case by Hon’ble National Commission that it is the duty of Director Health Services to see that no such like bills remain pending for months and years together. Rather such like bills should be passed or rejected within one week from their receipt and as such it is obvious that Hon’ble National Commission as well as Hon’ble State Commission has specifically made responsible the Director Health Services for ensuring passage or rejection of bills in question at earliest. So Director Health Services i.e. OP No.2 cannot shirk from responsibility referred above of ensuring early passage or rejection of medical bills like one presented by complainant with OP No.4.
16. Even Hon’ble National Commission in above cited case of Sr. Medical Commissioner & Anr. Vs. Rajinder Singh & another specifically held that duty of SSO is to find out ways to expedite the matter in respect of passage or rejection of medi claim bills by ESI beneficiaries. Even if complaint not made with SSO, despite that it is the bounden duty of SSO to find out that there was no such like bill pending. For that purpose SSO should made a request to Director Health Services to expedite the matter. So from these observations recorded in Para No.9 by the Hon’ble National Commission, it is made out that responsibility also is of SSO to ensure early passage or rejection of medi claim bills like this. As both Director Health Services and SSO as well as SMO of the concerned dispensary failed to discharge their duty of expeditious passage or rejection of medical bill in question and as such all the OPs are liable to pay compensation for harassment to complainant. They also are liable to pay litigation expenses amount to complainant. So even if role of OP No.1 and 3 or of OP No.2 in matter of verification of bills or of passing or sanctioning thereof may not be there, despite that they are liable for shirking their responsibility of not ensuring early passage or rejection of the medical bill in question.
17. Counsel for complainant places reliance on ratio of case Secretary State Govt. Labour Department represented by Director of Insurance Medical Services, ESI Scheme, Trivendrum Vs. S. Gopakumr s/o Soman Pillaji & Ors. 2018 LLR 264 (Hon’ble Kerala High Court) for arguing that in view of Section 57 of ESI Act, State Govt. or ESIC bound to pay the full amount of incurred medical expenses. However, after going through ratio of this case, it is made out that in case the State Govt. or the ESIC has fixed scale for reimbursement of any medical benefit, then benefits to be allowed as per this fixed scale. Even if provision in Section 57 of ESI Act not there to adopt CGHS rates, despite that powers are available with the State Govt. or ESIC to fix scale for reimbursement of any medical benefit in view of Section 57 of ESI Act. Photocopy of letter dated 05.01.2017 is produced in course of arguments for showing that ESI Corporation in its 170th meeting held on 15.12.2016, has approved enhancement of ceiling on medical expenditure incurred by State ESI Scheme by providing further that no scheme should be included, which has not been duly approved by ESIC. Further as per Clause-d (iii) of this letter dated 05.01.2017, the funds shall not be appropriated for expenditure on any item, which has not been approved. As already referred above, full amount of the incurred medical expenses has not been paid and as such concerned OPs liable to pay difference of the amount.
18. Even in case titled as State of Rajasthan Vs. Mahesh Kumar Sharma, bearing Civil Appeal No.2278 of 2011 arising from SLP ( C) No.2888 of 2008, it has been held by Hon’ble Supreme Court of India on 02.03.2011 that the Govt. would be justified in limiting medical expenses to the extent it is permitted by its financial recourses. It is further held in this unreported case that it will not be proper for a Govt. employee or for his relations to claim reimbursement of medical expenses, otherwise than what was provided in the rules. Complainant able to show by evidence that his entitlement was for the total incurred expenditure. Rather the above referred letter of 05.01.2017 shows that limit of medical expenditure fixed by ESI in 170th meeting of ESI Corporation. Besides amount not shown to be disbursed as per rules permitting such disbursement as notified in Ex.C-6 and as such entitlement of complainant for remaining amount remains there.
19. Counsel for complainant points out to Clause-1 of circular Ex.C-6 for arguing that expenditure of super specialty treatment (including diagnosis) will be totally borne by ESI Corporation outside the existing ceiling w.e.f. 01.08.2008 and as such it is vehemently contended that the complainant got super specialty treatment and as such entitlement is for the entire incurred amount. However, when contents of circular Ex.C-6 in entirety read, then the same leaves no manner of doubt that the scope of services covered under super specialty treatment mentioned in Clause-6 alongwith inclusions. The inclusionary makes mention of expenses of more than Rs.3,000/- per test on any other investigation than the one mentioned in Clause-6. So it is obvious that certain restrictions on reimbursement are placed through Clause-6 of Ex.C-6 itself. Being so, entitlement for reimbursement of balance amount of Rs.2,200/- virtually is there.
20. No other point argued.
21. As a sequel of above discussion, the complaint allowed in terms that OP No.1, 2 and 4 will make balance payment of Rs.2,200/- to complainant within 40 days after receipt of certified copy of order failing which they will be liable to pay interest @ 9% per annum on this balance amount of Rs.2,200/- from today till payment. Compensation for mental harassment and agony of Rs.15,000/- and litigation expenses of Rs.5,000/- more allowed against all the OPs, whose liability is held as joint and several. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies of the order be supplied to the parties free of cost as per rules. File be indexed and consigned to record room.
Announced
July 04, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
