BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                             MANGALORE

Dated this the 22^nd November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D      : HON BLE PRESIDENT

       SRI. T.C. RAJASHEKAR                    : MEMBER

ORDER IN

C.C.No.218/2013

(Admitted on 13.08.2013)

Mr. Sarvothama Acharya,

S/o Late Babu Acharya,

Of age 72 years,

(Retired) Assistant Marins Surveyors,

D.No.3.461, Laxmana Chandra,

Near Vijaya Vittala Bhajana Mandir,

Main Road Bajpe, Post Bajpe  574 142.

                                                     ….. COMPLAINANT

     (Advocate for the Complainant: Sri DS)

VERSUS

The Authorised Signatory and

Chairman,

New Mangalore Port Trust,

Panambur, Mangalore  575 010.

                                                  ….....OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. KSB)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

     The admitted facts of the case are the complainant retired employee of new Mangalore Port trust Panambur (for short NMPT) has become member of medical scheme by name Rationalised New Medical Benefit Scheme to the retired employee of NMPT by paying an amount of Rs.14,400 and another Rs. 600 on 24.4.1996 and again the complainant obtained treatment for his eye from Dr. Jayaram shetty an Ophthalmologist and purchased certain medicines and produced bill on 16.4.2012 for his payment with opposite party. 

Complainant further alleged opposite party by communication dated 9.4.213 repudiated the claim.  The complainant obtained medical treatment at NMPT Hospital from Dr. Jayaram shetty. Hence seeks refund of amount Rs. 15,000 paid by complainant on 21.8.2010 to the interest at 15% and amount of Rs. 525/ spent to the interest 12% and solatium of Rs.50,000/.

II.    Opposite party further contends the enrolment of complainant to the scheme is voluntary.  There is nothing to show that Dr. Jayaram shetty is Licensed Chemists/Druggists under Drugs and Cosmetics Act and Rules.  Hence claim for reimbursement for Rs.525/ of complainant was rejected.   When the prescribed drug are not available in NMPT hospital the ex employee can purchase the drug from authorised drug shop and can claim reimbursement.   Dr. Jayaram shetty does not disclosed in his letter that he was an authorized pharmacist.  He further contended that the amount of Rs.14,400/ and another Rs.600/ were collected from the complainant under the scheme towards enrolment to the scheme and not for consideration under the C P Act 1986.  Hence seeks dismissal.

          In support of the above complainant Mr. Sarvothama Acharya filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C10 detailed in the annexure here below.  On behalf of the opposite parties Dr. A. Annadurai (Rw1) Chief Medical Officer also filed affidavit evidence and answered the interrogatories served on them and produced documents detailed in the annexure here below produced documents got marked Ex R1 to R4 detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

       We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:  

                        Point No. (i): Affirmative 

                       Point No. (ii): Partly Affirmative

                       Point No. (iii): As per the final order.                  

                                                                                  REASONS

IV.      POINTS No. (i): The ground urged by opposite party against complainant is that the amount of 14,400/ and Rs. 600/ paid is towards the scheme and not as consideration under the C P Act cannot be justified for the simple reason, when once the complainant as ex-employee of NMPT accepted the voluntary offer of opposite party to become member of the scheme by payment of member ship fee there is an undertaking by opposite party to provide medical treatment under the scheme.  As such the complainant in our view, even though a member of the scheme is a consumer defined under the C P Act as opposite party is a serviced provider under the said Act.

The learned counsel for opposite party referred to a reported Judgment of Apex Court CDJ 2013 (SC) 607 in Dr.Jagmittar Sain Bhagat Versus Dir.Health Services, Haryana & Others refer to sections 2(1)(d) of 14 Constitution of India, Art 311-Payment of Gratuity Act, 1972-Section 4-Dispute regarding retirement benefits, Provident Fund, Gratuity cannot be entertained by Consumer Forum, Government servant is not a consumer for judgment that dispute regarding benefit.

In CDJ 2011 (Cons) case No.372 National Consumer Disputes Redressal Commission  Premsingh Verma Versus The Cantonment Executive Officer Cantonment Board referred by learned counsel opposite party it is held:

Consumer Protection Act- Section 11 (2) (c ) Pensionary Benefits-deficiency in service Petitioner was under the employment of Op Cantonment Board, as a steno-typist-His pensionary benefits were not given by the OP Board and hence he filed a consumer complaint before the District Forum, Bhopal alleging deficiency in service on the part of the Ops-Because of some confusion regarding the pecuniary jurisdiction of District Forum, Complainant/petitioner withdrew his application approached the District Forum with an application for restoration of his complaint OP did not turn up and was proceeded ex parte District Forum vide its order rejected the application for reviewing its earlier order permitting withdrawal of the complaint on the ground that it does not have sucha power vested in it under the Act and complaint was not at all maintainable Aggrieved by this order, complainant challenged the same in appeal before State Commission dismissed the appeal of the complainant vide its order which has now been challenged by the petitioner through revision petition Court held petitioner filed his complaint against his employer/Cantonment Board, for his terminal benefits for which the consumer forum is not the appropriate authority because the complainant could not be treated as a consumer qua his employer within the meaning of the term çonsumer’ under Act and agree with the view taken by the fora below and do not see any justification or ground to interfere with the impugned order-revision petition dismissed in limine.

On going through reported judgments it is seen that in both cases what is held is in respect to the pensionary benefit.

Both in the case on our hand the claim of complainant is not in respect of pensionary benefit it is in the respect of certain scheme run by opposite party of providing medical services to which ex-employee and employee are permitted to join voluntarily by contributing money.  Hence we are of the view that the law led down in the above reported judgment are not applicable as opposite party refused to provide the said service namely to reimburse the medical expenses under the scheme and the repudiated the claim of the complainant.

It was contended for opposite party as the scheme is under NMPT Employees (Contributory Outdoor and Indoor Medical Benefit after Retirement) Regulation 1991 framed under Major Port Trust Act vide Ex.R 3 NMPT is a Central Government establishment and as NMPT is the Central Government establishment the complainant cannot seek enforcement under the provision of the Act.  However as already considered this contention cannot be accepted in as much as the said regulations makes an offer to the employees as well as ex employees to join the scheme and receive the services which the complainant has joined by contributing the required amount.  Hence the arguments for opponent on this count in notenable.  Another aspect to be noted is there is a dispute as defined under the Act. Hence answer point No.1 is in the affirmative.

POINTS No. (ii):  The ground urged by opponent to reject the claim for reimbursement is of Rs.525/ spent by complainant is Dr. Jayarama Shetty had no licence to dispense medicines.  And Ex.C7 is a prescription issued by Port Trust Hospital of NMPT dated 16.4.2012 and Ex.C1 receipt for the sale of medicine on 16.4.2012 itself to complainant for Rs.525/ Ex.C5 is claim for reimbursement of this expenditure of Rs.525/ with signature of authorised medical attendant of NMPT Hospital.  Thus from Ex.C5 with essentiality certificate attached that is issued by authorised medical attendant attached to Port Trust Hospital of NMPT there is authorisation issued for purchase of medicine.  Hence whether Dr.Jayaram Shetty could have sold the medicine as per the bill Ex.C.1 or otherwise is not a matter of investigation by this Forum.  Suffice to mention that the payment made by complainant of Rs.525/ under Ex.C1 as per Ex.C.1 is authorised by the medical attendant. Hence we are of the view that opposite party cannot escape from liability to reimburse the said amount as the treatment, i.e. consultation for the treatment, by complainant was at the hospital of NMPT as seen from Ex.C2.  Hence the repudiation to pay the amount to Rs.525/ to the compliant by opposite party is unjustified. 

     In respect of complainant’s claim for refund of the voluntarily paid amount of Rs.14,400 plus Rs. 600 from opposite party to avail the benefit under the scheme of opposite party is concerned when once the complainant opted to the facility he cannot turn round and seek refund on the ground that one of his claim was rejected by opposite party.

      Infact Ex.R3 the New Mangalore Port Trust Employees (Contributory Outdoor and Indoor Medical Benefit after Retirement) Regulations, 1991 makes it abundantly clear at clause of 3(c) the amount is non refundable.  As such the question of ordering to opposite party to refund this amount claimed by complainant does not arise.

     In respect of compensation claimed is concerned the complainant definitely entitled for.  The complainant as claimed an amount of Rs.50,000/.   Considering in the quantum of claim and the torture and inconvenience undergone by complainant ordering opposite party to pay a sum of Rs.5,000/- as compensation with cost of the complaint in our view is justified. Advocate fee of Rs.1,000/-  in the circumstances is justified.  Hence we answer Point No. 2 partly in the affirmative.

POINTS No. (iii): As per final Order:

ORDER

The complaint is party allowed. Opposite party is directed to pay a sum of Rs.525/ (Rupees Five hundred Twenty Five only) with the interest at 9% from the date of notice Ex.C8 6.5.2013 till the date of payment.

Opposite party shall also pay Rs.5,000 as compensation to complainant and also cost of the petition Advocate fee is fixed at Rs.1,000/ .  Payment shall be made within 30 days from the date of receipt of the copy of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

    (Page No.1 to 8 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 22^nd November 2016)

                                                                  ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. Sarvothama Acharya

Documents produced on behalf of the Complainant:

ExC1: Bill dated 16.04.2012

ExC2: Drug Prescription slip dated 16.4.2012

ExC3: Receipt Voucher dated 24.2.1996

ExC4: Receipt Voucher dated 21.08.2010

Ex.C5: Form of Application for Medical Clause Med 97B dated 25.06.2012

Ex.C6:  Letter of Authority for receipt voucher dated 21.08.2010

Ex.C7: Drug prescription Slip

Ex.C8: Reply issued by the complainant dated 06.5.2013

Ex.C9:Communication of the opposite party dated 9.4.2013

Ex.C10: RPAD acknowledgment

Witnesses examined on behalf of the Opposite Parties:

RW1: Dr. A. Annadurai , Chief Medical Officer

Documents produced on behalf of the Opposite Party:

Ex.R1: Medicine Bill/invoice dated 10.12.2014 issued by United Medicals

Ex.R2:  Medicine Bill/Invoice dated 31.12.2013 issued by City Drug House, Kadri

Ex.R3: T/c NMPT Employees (Contributory Outdoor and Indoor Medical Benefits after Retirement) Regulations, 1991 along With                        Annexures A to D

Ex.R4: T/c of Office Memorandum stating the contribution amount

   Dated: 22.11.2016                                           PRESIDENT