DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.64 of 2017
Date of institution: 30.01.2017 Date of decision : 04.07.2018
Balwinder Singh, Village Sohana, 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, E.S.I.C., 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, on account of his working with M/s. Synergy Telecommunication, Industrial Area, Phase-1, Mohali since from 26.12.2009 had been depositing ESI contribution @ 1.75% from his salary regularly. Even the employer’s contribution @ 4.75% is regularly deposited since start in the account of insurance policy No. 1212262528. Wife of complainant got treatment from GMCH, Sector 32, Chandigarh after being referred by OP No.4. This treatment was got during period of 12.02.2015 to 14.02.2015 by incurring an expenditure of Rs.10,067/-. Bill of this amount was submitted with OP No.4 on 26.02.2016 vide diary No.165. Despite approach to OPs many times, needful has not been done. Even complainant approached OP No.3 for seeking help in getting reimbursement, but of no use. So this complaint filed for seeking direction to OPs to reimburse the medical bill of amount of Rs.11,975/- alongwith interest @ 18%. Compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.25,000/- more claimed.
2. In joint reply filed by OP No.1 and 3, it is pleaded inter alia as if complaint is not maintainable because of complainant not approaching the Forum with clean hands; complaint being not verified as per Order VI Rule 15 CPC deserves to be dismissed. Besides it is claimed that as per Notification of ESIC dated 07.06.2002, claim of reimbursement to be done by DHS i.e. OP No.2. It is claimed that the answering OPs have no role to play in matter of reimbursement of bills.
3. OP No.2 submitted short reply by admitting the particulars of treatment of wife of complainant and of his contribution towards the insurance plan. However, it is claimed that financial sanction of bills of amount upto Rs.10,000/- is granted at the level of concerned Senior Medical Officer. Bills of amount of more than Rs.10,000/- are sent by the concerned Senior Medical Officer to OP No.2 for financial sanction, but after processing of reimbursement bills.
4. In separate short written statement filed by OP No.4, it is submitted that reimbursement of Rs.9,812/- through NEFT has been made in the account of the complainant on 22.03.2016. It is claimed that delay in payment of reimbursement occurred due to lengthy procedure i.e. firstly bills are sent to SMO Mohali for verification and after verification the bills are sent to DHS ESI (Punjab) Chandigarh for sanction and after sanction, payment was made by District Treasury Officer Mohali through NEFT on 22.03.2017
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-5 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 ESIC alongwith documents Ex.OP-1 and 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 Ms. Jaspal Kaur, Director and thereafter closed evidence. Ms. Supriya, on behalf of OP No.4 tendered in evidence affidavit Ex.OP-4/1 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. From the facts pleaded in the complaint as well as replies thereto submitted by OPs and contents of affidavit Ex.CW-1/1, it is made out that no dispute is raised regarding submission of medical reimbursement bill of Rs.10,067/- by complainant with OP No.4 on 26.02.2016. This bill Ex.C-3 was submitted by complainant on account of treatment of his wife got from GMCH Sector 32, Chandigarh. It is not disputed that case of complainant is governed by provisions of ESI Act and payment of medical expenses amount to be reimbursed as per provisions of ESI Act and the rules framed thereunder. Out of the claimed amount of Rs.10,067/-, an amount of Rs.9,812/- has been paid to complainant through NEFT on 22.03.2017 as per case of OP No.4, is a fact borne from Ex.OP-4/2. In view of disbursal of this amount during pendency of the case, it is vehemently contended by representatives of OP No.2 and 4 and counsel for OP No.1 and 3 that complaint has become infructuous. That submission of representative of OP No.2 and 4 and counsel for OP No. 1 and 3 has no force because there is delay of more than one year in making of payment. It is so because the bill submitted on 26.02.2016 and the payment through NEFT was made on 22.03.2017. Complainant had to approach OPs many times for seeking reimbursement of medical expenses amount and as such he certainly stood harassed due to inaction of OPs concerned in not getting the bill amount paid at earliest.
8. 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 26.02.2016 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 one year.
9. Ex.C-1 is copy of temporary identity certificate issued in favour of complainant by ESI for showing his registration details, whereas Ex.C-2 is copy of discharge and follow up card of wife of complainant. Copy of bill Ex.C-3 in question is produced to show as if the same was received by OP No.4. Ex.C-4 is copy of instructions dated 30.09.2010, whereby duties and responsibilities of Social Security Officers have been mentioned. It is not disputed that wife of complainant got treatment as ESI beneficiary from GMCH, Sector 32, Chandigarh and as such certainly the guidelines issued through circular Ex.C-5 to govern the case regarding reimbursement of medical expenses amount.
10. After going through Clause-4 (i) of circular Ex.C-5, 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-5, 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-5 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-5 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-5, then certainly it is the duty of OP No.4 and of the concerned OPs to ensure payment of submitted bill Ex.C-3 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.
11. Affidavit Ex.OP-4/1 of OP No.4 alongwith copy of NEFT Pay Order Ex.OP-4/2 only shows payment of Rs.9,812/- made by OP No.4 to complainant. No explanation in this affidavit offered qua cause of delay in reimbursing the bill amount and same is the position with regard to contents of affidavit Ex.OP-1/2 submitted on behalf of OP No.2. Director Health Services cannot shirk its statutory duty of ensuring payment of reimbursement amount just by claiming that his sanction required only for the bills, where amount exceeds limit of Rs.10,000/-. It is so because each and every functionary to ensure compliance of circular Ex.C-5 for ensuring that payment is made in stipulated time.
12. 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-5 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.
13. 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.4 does not remain. After citing provisions of Section 58 of ESI Act, it is vehemently contended that as OP No.1 and 3 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 these OPs is not maintainable. It is also contended that complainant has never approached OP No.1 and 3 for helping him in matter of seeking reimbursement of submitted medical bill and as such deficiency in service on part of OP No.1 and 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.1 and 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 finding 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 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 of 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.
14. 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.
15. 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. So in view of this letter, it is obvious that ESI formulated scheme for allowing of medical expenditure incurred on treatment only on those items, which have been approved. Complainant has been unable to show by any evidence as to for what item the amount of medical expenditure disallowed, despite such item being in the approved list. Out of the claimed amount of Rs.10,067/-, an amount of Rs.9,812/- has already been paid and as such there is not much difference of payment. However, this circumstance will be taken into consideration, while allowing quantum of compensation for mental harassment and agony.
16. 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 unable to show by any 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. As disbursed amount of Rs.9,812/- not shown to be disbursed in violation of rules permitting for reimbursement of incurred medical expenditure on approved items and as such complainant not entitled for full amount.
17. Counsel for complainant points out to Clause-1 of circular Ex.C-5 for arguing that expenditure of treatment from Govt. hospital under tie up arrangements (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 as wife of complainant got super specialty treatment and as such entitlement is for the entire incurred amount. However, when contents of circular Ex.C-5 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-5 itself. Being so, entitlement for reimbursement of full amount of Rs.10,067/- virtually is not there.
18. No other point argued.
19. As a sequel of above discussion, the complaint allowed with direction to OPs to pay compensation for mental harassment and agony of Rs.15,000/- and litigation expenses of Rs.5,000/-. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Liability of all the OPs held as joint and several. 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
