DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.211 of 2017
Date of institution: 17.03.2017 Date of decision : 04.07.2018
Charanjit Kaur # 1525, 3B2, Mohali.
…….Complainant
Versus
1. Senior State Medical Commissioner, ESIC, Sector 19-A, Chandigarh through its Senior State Medical Commissioner.
2. Director Health Services (ESI), Parivar Kalyan Bhawan, Sector 34-A, Chandigarh through its Director Health Services (ESI).
3. SMO, ESIC Hospital, Phase-VII, Industrial Area, Mohali through its SMO.
4. Social Security Officer, ESIC, Local Office, Phase-VII, Industrial Area, Mohali through its Social Security Officer.
……..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 4.
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.3 for OP No.3.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, due to her employment with M/s. Soynia Electronics E-63, Phase-8, Industrial Area, Mohali since from -7.04.2003 has been depositing her ESI contribution @ 1.75% from her salary alongwith employer’s contribution @ 4.75% of her salary regularly since from start. This contribution is made towards insurance policy No.1207348984. Complainant was admitted in OP No.3 Hospital on 05.12.2011 for operation of right eye and this treatment continued uptill 22.12.2011. Bill for amount of Rs.15,055/- for reimbursement was submitted on 16.02.2012 vide diary No.583, but that bill amount has not been reimbursed despite numerous visits by complainant to OP No.3 and even despite approach to OP No.4. This complaint filed for seeking direction to OPs to reimburse the bill amount of Rs.15,055/- with interest @ 18% alongwith compensation for mental harassment and agony of Rs.50,000/-, but litigation expenses of Rs.25,000/-.
2. OP No.2 filed short reply by claiming that financial sanction of bill amount upto rs.10,000/- is to be granted at the level of concerned SMO, but bills of amount of above Rs.10,000/- are sent by Senior Medical Officer to OP No.2 for financial sanction, but after processing of reimbursement bills. It is claimed that OP No.2 has not received the medical reimbursement bill of complainant till date. Particulars regarding getting of treatment by complainant from OP No.3 not denied, but it is claimed that those facts are matter of record.
3. In short reply submitted by OP No.3, it is admitted that complainant has submitted medical reimbursement bill of amount of Rs.15,055/-, but payment of Rs.7,700/- out of the same has been made through RTGS in bank account of complainant on 16.05.2017. It is claimed that delay in payment of reimbursement was due to the objections raised by OP No.2. After removal of those objections, payment was released in favour of complainant. Moreover, it is claimed that delay in payment occurred due to rush of work.
4. In joint reply submitted by OP No.1 and 4, it is pleaded inter alia as if complaint in present form not maintainable, more so when complainant has not approached this Forum with clean hands; complaint merits dismissal for want of verification required by Order 6 Rule 15 CPC; complaint is barred by limitation because treatment got during period from 05.12.2011 to 22.12.2011, but this complaint filed after lapse of more than 5 years. OP No.1 and 4 have nothing to do with the present complaint because the claim of reimbursement of amount of Rs.10,000/- to be made by OP No.2 as per notification dated 07.06.2002.
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-4 and thereafter his counsel closed evidence. On the other hand, counsel for the OP No. 1 and 4 tendered in evidence affidavit Ex.OP-4/1 of Shri Jatinder Kumar, SSO (Legal) 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 Smt. Jaspal Kaur, Director Health Services and thereafter closed evidence. Dr. Amandeep Kaur, Medical Officer on behalf of OP No.3 tendered in evidence her affidavit Ex.OP-1/3 alongwith document Ex.OP-1/4 and thereafter closed evidence.
6. Written arguments submitted by complainant and OP No.1 and 4. Oral arguments of appearing representatives and counsel heard and records gone through.
7. Besides affidavit Ex.CW-1/1 of complainant, contents of written reply submitted OP No.3 as well as of bill Ex.C-2 establishes that complainant submitted medi claim reimbursement bill of amount of Rs.1,5055/- with OP No.3 on 16.02.2012 because of his treatment got from OP No.3 during period from 05.11.2012 to 22.11.2012. It is claimed in reply submitted by OP No.3 as well as in affidavit Ex.OP-1/3 of Dr. Amandeep Kaur that an amount of Rs.7,700/- out of above referred bill amount has been paid to complainant through NEFT on 16.05.2017 and if that be the position, then certainly this complaint for seeking reimbursement of the bill amount is not barred by limitation because cause of action continued to accrue to complainant, so long payment of medical reimbursement bill amount not made. Besides, as payment of part of medical bill amount made during pendency of this complaint and as such now OPs estopped by their act and conduct from claiming that complaint is barred by limitation. OPs after making payment of part of bill amount cannot claimed that complainant is not entitled for reimbursement of incurred medical expenditure or that the complaint is barred by limitation because of rules of acquiescence, waiver and estoppel also.
8. Complainant has produced on record reference slip Ex.C-1 alongwith copy of list of duties and responsibilities of OP No.4 as Ex.C-3 and copy of the circular Ex.C-4 specifying the period within which payment of bill amount to be made, but OPs have produced on record copy of NEFT transactions as Ex.OP-1/4 for showing payment of Rs.7,700/- to complainant on 16.05.2017. Besides that copy of notification Ex.OP-1/1 produced to show authorities competent to represent ESI. Authorities competent to accord sanction of bills are specified in circular Ex.OP-2. Amount of bill in question is of Rs.15,055/- and as such in view of circular Ex.OP-2, it is obvious that sanction from OP No.2 also to be obtained because of his competence to accord sanction for reimbursement of bill amounts ranging between Rs.10,001 to Rs.50,000/-. When such responsibility of OP No.2 to accord sanction for the bill in question is there, then certainly OP No.2 cannot shirk from responsibility of delayed payment.
9. As bill amount of Rs.15,055/- has been submitted alongwith description of amounts spent on different items mentioned in Ex.C-2 and as such it is for the OPs to prove as to which of the items were not in the approved list, more so when the treatment got by complainant not from any other hospital, but from OP No.3 itself, who is to make payment. If the amounts detailed in Ex.C-2 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-2 itself, but the same has not been done and as such in view of verification of Ex.C-2 by OP No.3 itself, it is obvious that actually complainant is entitled for total bill amount of Rs.15,055/-. However, payment of Rs.7,700/- alone has been made out of this amount and as such entitlement of complainant for balance amount of Rs.7,355/- remains there.
10. It is not at all specified by OP No.3 or OP No.2 or any other OP as to where bill remained pending after its submission with OP No.3 on 16.02.2012 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 and one month.
10. After going through Clause-4 (i) of circular Ex.C-4, 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-4, 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-4 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-4 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-4, then certainly it is the duty of OP No.3 and of the concerned OPs to ensure payment of submitted bill Ex.C-2 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 she stood dragged to this litigation due to inaction of OPs in not reimbursing the amount in time stipulated by above circular.
12. Even if the bills are submitted online in the Treasury, despite that OP No.3 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-4 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.4 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 by counsel for OP No.4 that as OP No.4 has 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.4 is not maintainable. It is also contended that complainant has never approached OP No.4 for helping him in matter of seeking reimbursement of submitted medical bill and as such deficiency in service on part of OP No.4 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.4 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.3.
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.4 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 expeditiously.
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. 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.
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. Besides amount no shown to be disbursed as per rules permitting such disbursement as notified in Ex.C-4 and as such entitlement of complainant for remaining amount remains there.
17. Counsel for complainant points out to Clause-1 of circular Ex.C-4 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-4 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-4 itself. Being so, entitlement for reimbursement of balance amount of Rs.7,355/- virtually is there.
18. No other point argued.
19. As a sequel of above discussion, the complaint allowed in terms that OP No.1 to 3 will make balance payment of Rs.7,355/- 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.7,355/- 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, but in favour of complainant. Liability of OPs for that 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. Liability of all the OPs No.1 to 3 also 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
