DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.05 of 2017
Date of institution: 03.01.2017 Date of decision : 20.07.2018
Mahatam Prajapati, c/o Saini Concrete System Pvt. Ltd., P/No.264, Industrial Area, Phase-IX, Mohali.
…….Complainant
Versus
1. Senior State Medical Commissioner, Employee’s State Insurance Corporation, Sector 19-A, Madhya Marg, Chandigarh.
2. Director Health Services (ESI), Parivar Kalyan Bhawan, Sector 34-A, Chandigarh.
3. Social Security Officer, ESIC, Local Office, Phase-VII, Industrial Area, Mohali.
4. 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 Manish Sharma, counsel for OP No.1 and 3.
OP No.2 and 4 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Son of complainant namely Sunny got super specialty treatment from PGI Chandigarh after being referred by OP No.4. Two medical reimbursement bills of amounts of Rs.5,526/- (for period from 27.08.2011 to 11.09.2011) and of Rs.27,288/- (for period from 04.05.2012 to 19.08.2013) were submitted by complainant through his Advocate vide legal notice dated 19.06.2015 with OP No.1. Entire expenses referred above to be borne by ESI Corporation outside the existing ceiling w.e.f. 01.08.2008, but the amount of above referred bills not paid for the last 1-1/2 years, even though complainant had been approaching OPs numerous times. So direction sought to OPs to reimburse the amount of Rs.32,814/- (of the above referred two bills) with interest @ 18% alongwith compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.25,000/- .
2. In joint reply submitted 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 and that the present complaint is barred by limitation because the bills pertain to the year 2011 to 2013, but complaint filed in 2017. Besides it is claimed that as per notification of ESI dated 07.06.2002, claim of reimbursement to be done by Director Health Services i.e. OP No.2. It is claimed that answering OPs have no role to play in matter of reimbursement of bills regarding which intimation was duly given to complainant and his counsel Shri Jasbir Singh, Advocate vide letters. Concerned SSO Shri Sanjeev Kumar has already submitted bills with OP No.4, who refused to take the bills. Separate letter in this respect was also written to Shri Sanjeev Kumar. It is not the duty of SSO to deposit the bills with the dispensary, but it is the duty of complainant to do so. If complainant approaches wrong forum, then fault does not lie with answering OPs.
3. Short reply submitted by OP No.2 contains plea that financial sanction of bills of amounts upto Rs.10,000/- granted at the level of concerned SMO, but bills of amount in excess of Rs.10,000/- to be sent by concerned SMO to DHS(SI), Punjab, Chandigarh for financial sanction after processing, for reimbursement of bills by ESI Dispensary No.1, Phase-7, Mohali. It is claimed that office of OP No.2 has not received the medical reimbursement bills till date. After receipt of notice dated 17.01.2017 from this Forum, OP No.2 directed SMO Incharge of ESI Hospital, Phase-VII, Mohali vide memo dated 06.02.2017 to file reply.
4. In short reply submitted by OP No.4 it is claimed that after presentation of bills by employee of SSMC, those were scrutinized and were found not filled completely regarding which intimation was given to the said employee. However, SSMC did not show interest in removing the pointed out defects. Telephonic calls even were given for calling upon the concerned insured worker to remove the defects. The concerned insured worker was not having PGI card available with him and that is why verification of bills was not done.
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 3 tendered in evidence affidavit Ex.OP-1/1 of Shri Yashwant Kumar, SSO alongwith documents Ex.OP-1 to Ex.OP-5 and thereafter closed evidence. Shri Balkar Singh, Senior Assistant in office of OP No.2 tendered in evidence affidavit Ex.OP-2/1 of Shri Dharam Pal, Director Health Services and thereafter closed evidence. Representative of OP No.4 tendered in evidence affidavit Ex.OP-4/1 of Dr. Daisy Sahoti, Medical Officer and thereafter closed evidence.
6. Written arguments in this case submitted by complainant and OP No.1 and 3 and not by any other party. Oral arguments of counsel for complainant and OP No.1 and 3 heard and records gone through.
7. It is not disputed that complainant due to contribution to ESI scheme entitled to the benefits of ESI insurance plan scheme. It is also not disputed that benefit of ESI contribution insurance scheme extended to the family members of complainant, due to which after acceptance of two bills of amounts of Rs.5,526/- and Rs.27,288/-, amounts of Rs.5,526/- and Rs.26,757/- were paid to him. Amount of Rs.26,757/- was paid to counsel for complainant through cheque dated 26.03.2018 regarding receipt of which statement of counsel for complainant was recorded on 19.04.2018. Besides, counsel for complainant suffered statement on 06.06.2018 that his client has received amount of Rs.5,526/- from OP No.2 on 03.05.2018. Earlier these bills were not accepted from complainant and that is why he issued legal notice Ex.C-1 dated 26.05.2015 through counsel. It is not disputed that on receipt of this notice alongwith enclosures consisting of bills, processing of the same was done and thereafter payment was made. In view of the factum of payment of above referred amounts being made by OPs to complainant, it has to be held that virtually entitlement of the paid amounts was found and that is why those amounts were paid to complainant. When such entitlement of complainant is there, then processing of bills must have been done at earliest without waiting for service of legal notice Ex.C-1 by complainant through counsel. That has not been done in this case and as such fault lays with OPs concerned in not paying the due ESI benefits to complainant expeditiously.
8. Payment of amounts to complainant made during pendency of the complaint, on the dates referred above, will not render this complaint infructuous because payment of the due amounts has to be made expeditiously by ESI authorities/functionaries.
9. After going through Clause-4 (i) of circular Ex.C-2, 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-2, 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-2 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-2 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-2, then certainly it is the duty of OP No.4 and of the concerned OPs to ensure payment of submitted bills 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.
10. Letter Ex.C-3 was sent by functionaries of ESI to OP No.2 for calling upon it to take action on the complaint sent by complainant through legal notice of his counsel. This letter Ex.C-3 is of date 23.06.2015 and as such it is obvious that even after receipt of complaint with legal notice Ex.C-1 dated 20.06.2015, payment made after more than two years. So certainly delay in disbursement of due amounts remained on the part of the OPs, which conduct amounts to negligence in paying the due amount as per stipulation of circular Ex.C-2. It caused mental harassment and agony to complainant, due to which certainly he is entitled for compensation and also to litigation expenses.
11. Present is a case where one of the bill amount is more than Rs.10,000/- and as such certainly processing of the same even was to be done by OP No.2. If OP No.4 did not send the bills in question to OP No.2, despite that after receipt of letter Ex.C-3 dated 23.06.2015, it was responsibility of OP No.2 to ensure expeditious disposal of claim qua medical reimbursement amounts. Despite that delay of more than two years took place in making payment and as such OP No.2 cannot shirk from its responsibility of paying the amount of compensation for mental harassment and agony and of litigation expenses to complainant. Date on which action started by OP No.2 for enabling expeditious disbursal of payment of bills is not mentioned in affidavit Ex.OP-2/1 of Shri Dharam Pal, Director Health Services. Even the date of receipt of bill of amount of Rs.27,288/- in the office of OP No.2 not mentioned in Ex.OP-2/1. So virtually true facts are concealed regarding the fact as to how long submitted bill of Rs.27,288/- remained pending with OP No.2. Even in affidavit Ex.OP-4/1 of Dr. Daizy Sahota it is not mentioned as to on which date the employee of SSMC brought the bills or as to on which date scrutiny of the same was done in the office of OP No.4 and as such virtually facts in that respect are suppressed by OP No.4 also.
12. Counsel for OP No.1 and 3 claims that there is no role of OP No.1 and 3 in making payment because the payment to be made by OP No.2. In view of this, it is contended that complaint against OP No.1 and 3 deserves to be dismissed, more so when bills presented after period of limitation. Period of limitation will not come in the way of allowing claim because payment now has been made by OPs, as discussed above. In view of payments being made, these OPs are estopped by their act and conduct from taking plea of bar of limitation.
13. Ex.OP-1 is a copy of notification which shows as to which authorities empowered to represent ESI Corporation in proceeding of the suits. Ex.OP-2 makes mention of authorities, who are to sanction medical bill expenses for purpose of reimbursement. Medical Officer Incharge/SMO Incharge ESI Hospital/Dispensary competent to accord sanction in respect of bill of amount of Rs.4,000/-, but Medical Superintendent, when bill amount is more than Rs.4,001/-. Director Health Services, Punjab to accord sanction, where amount of medical bill goes beyond limit of Rs.10,000/-, but remains upto limit of Rs.50,000/-. So in view of this circular Ex.OP-2, certainly one of the bill to be passed by Medical Superintendent ESI Hospital and the other by OP No.2 i.e. Director Health Services. In response to legal notice issued by Shri Jasbir Singh, Advocate, reply Ex.OP-3 was sent to him for calling upon the complainant to submit bills in the concerned dispensary. Ex.OP-4 is a letter sent by Mr. Sanjeev Kumar, SSO to State Medical Commissioner, ESI Corporation, Chandigarh on 29.07.2015. Perusal of Ex.OP-4 reveals that the bills have been personally submitted with ESI Dispensary No.7, Mohali on 01.07.2015 and further report regarding action taken was called for. If this letter dated 29.07.2015 submitted by OP No.3, then it was his duty to ensure that expeditious disposal regarding passage or rejection of the bill takes places. Even letter Ex.OP-5 dated 01.07.2015 had been sent by Shri Sanjeev Kumar, SSO to Senior Medical Officer Incharge ESI Dispensary for sending the original bills in question. Despite sending of these bills through Ex.OP-5, payment made after more than two years and there is nothing on record to suggest as to when action taken for rendering due help to complainant by OP No.3 and as such virtually OP No.3 also failed to perform its duties envisaged by circular, copy of which is produced on record as Ex.C-4.
14. After considering the duties and responsibility of SSOs mentioned in Ex.C-4, 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 for holding that liability of SSOs in respect of 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.
15. 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 of 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 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.
16. 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, 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 amounts of Rs.5,526/- and Rs.27,288/-, amounts of Rs.5,526/- and Rs.26,757/- have 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.
17. 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 amounts 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.
18. Counsel for complainant points out to Clause-1 of circular Ex.C-2 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 as son of complainant got super specialty treatment and as such entitlement is for the entire incurred amount. However, when contents of circular Ex.C-2 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 other Clause 6. So it is obvious that certain restrictions on reimbursement are placed through Clause-6 of Ex.C-2 itself. Being so, entitlement for reimbursement of full amount of medical bill of Rs.27,288/- virtually is not there.
19. No other point argued.
20. 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 20, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
