::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL COMMISSION AT BIDAR::

                                                          C.C. No.33/2021.

                                                                                                                           Date of filing: 01.04.2021.

                                                              Date of disposal:06.10.2023.

P R E S E N Ts:-    

                                (1) Shri. Mabu Saheb H.Chabbi,                                                                                                               B.Com.,LL.B.,(Spl.),

                                                                                President., 

                                (2) Kum. Kavita,

                                                               M.A.,LL.B.,(Spl.), 

                                                                         Member.

                                   (3) Shri.Thriyambakeshwara,

                                                                                   B.A.,LL.B.,(Spl.), 

                                                                                           Member.

COMPLAINANT/S:          Dr.Sharnayya S/o Shivakumar,

                                         died LR Akkamahadevi W/o Late Sharnayya 
                                         Hiremath, Age:Major, Occ:Private work,

                                         R/o H.No.17-4-241, Mahesh colony,

                                         Gumpa Road, Bidar-585403.                    

                                                                          (By Sri. Shridhar.B.Wadde., Adv)                                          

                                                                 VERSUS

OPPONENT/S:              1.     The Branch Manger,

                                            ESIC Branch Office, CIB Colony,

                                            Behind central Bus Stand,

                                            Kalaburagi-585103.

                                     2.        Office the Medical Commissioner (KAR)

                                            ESIC NO.10, Binnyper,

                                            Binny field Bangalore-560023(Karnataka).

                                                                          (By Sri.Satish Kulkarni.,Adv.).

                                                     ::   J U D G M E N T  ::

By Shri.Thriyambakeshwara, Member.

The complaint filed by complainant under section 35 of the Consumer Protection Act, 2019, against the opponents for the deficiency in service in not entertaining his claim for reimbursement of medi-claim amount of Rs.4,41,000/- along with cost and compensation.  Hence, passed the following judgement.

Brief facts of the complaint.

The brief facts of the complaint are as follows: -

1.         The complainant is the registered member of the Insurance policy OP No.1 vide under insurance policy No.7117965150 and vide employer code No.71000033990001303, and the date of the registration is 25.03.2017 on which complainant purchased said above policy.  The OPs Insurance Corporation is premier organization providing social Security to work in the form of medical and cash benefits in the contingencies of sickness, maternity, disablement and death due to emplacement injury.  The complainant had some nerve pain and urinary discharge problem and accordingly he immediately under gone for emergency treatment at City Neuro Center Hyderabad.  Wherein it was Diagnosed as “Guillian” Bare Syndrome (higher Grade 4) SP/VIG i.e., complaint of weakness of upper lower limbs with urinary troubles for which he under gone surgery in between 14.10.2018 to 04.11.2018.  When he was discharged from said hospital and later on he was on medication and for which he incurred about Rs.4,41,000/- apart from getting Physiotherapy treatment for which he spent about it is Rs.36,000/- and hence in all complainant incurred about Rs.4,77,000/- for said treatment. 

2.         The complainant filed claim for medical reimbursement by furnishing all details which were required by OP No.2 by enclosing all the bills.  The OPs repudiated the said claim on 27.07.2020, without showing any reason and hence the complaint filed before this commission with the prayer as shown in compliant. 

3.         During pendency of the complaint, the said complainant died on 04.05.2021 and hence by order dated 17.05.2022, on the application moved by his wife as LR was brought on record and preceded with the case. 

Written Version of Ops.

4.         The OPs after service of summons, OP No.1 & 2 filed power and OP No.2 filed W.V. on 29.10.2021.  On perusal of W.V. of OP No.2, by denying that, the complainant purchased particular health policy of the institution and is not entitled to get this medical reimbursement claim bill under non applicability of SST (Super Specialty Treatment) as he did not completed continually 02 years of eligibility Criteria for SST.  It is further  contended that, the complaint is not maintainable either in law or on facts by categorically denying the very claim made by the deceased complainant as not maintainable in view of bar of jurisdiction before this commission under C.P.Act u/s 75(1)&(3)  of ESI Act and thereby alleged that, this commission has no jurisdiction to adjudicate the complaint, in view of bar of jurisdiction of Civil Court and this commission by expressly and any  other authority except ESI Court provided at Hubbali.  Further, contended that, it is not in dispute that, the deceased complainant was employee of the OPs during his life time as lecturer in R.V.Bidap Law College Bidar, and he was admitted to City Neuro Centre, Hyderabad on 24.10.2018 wherein it was diagnosed disease as “Guillain Barre Syndrome” and discharged on 04.11.2018.  The Medical Reimbursement Claim Bill submitted by the complainant was received at Office of the State Medical Officer, ESI Corporation, Bengaluru on 08.07.2019 and same was placed before SST Reimbursement Committee on 10.07.2019.  The committee rejected the Medical Reimbursement claim of the complainant stating the reason that, “Not eligible for SST” as the complainant had not completed two years of eligibility criteria for SST (Super Specialty treatment) as per ESIC Hqrs. Letter No.V-14/11/5/2012-Med.I (policy) dated 07.11.2016 which reproduced as, “The IP (Insured Person) should have been in continuous employment for the last two years as on the date of diagnosis for SST”.  The OPs also explained in their W.V. how they are working under ESI Act under compulsory State Insurance and providing for certain benefits in the event of sickness, maternity and employment injury to workmen employed in or in connection in the work of the factory/establishment.

5.         The OPs further contended that, the complainant has suppressed certain material facts before this commission as mentioned in Paras above.  The complainant has not come to this commission with clean hands and misrepresented the facts/documents and provisions of law before this commission thereby playing fraud on this commission.  The rejection of Medical reimbursement claim by the OPs is fair, reasonable and in accordance with law and does not suffer from any legal infirmities.  As such the grounds stated by the complainant are bereft of any legal substance and mischievous in nature only to claim the relief prayed for, and thereby prayed for dismissal of the complaint.

Evidence of complainant.

6.         The complainant is examined herself as P.W.1 and got marked   documents Ex.P.1 to Ex.P.13 which are as follows,

1. Ex.P.1-Perticulars of Insured person .
2. Ex.P.2-Claim Form medical reimbursement for insured person.
3. Ex.P.3-Employees State insurance corporation e-pehchan Card.
4. Ex.P.4- Discharge Summary dt:04.11.2018.(13pages).
5. Ex.P.5- ENMG/EP/AFT Report dt:24.10.2018 issued by City Neuro Center Hospital Hyderabad.
6. Ex.P.6- In patient final bill dt:04.11.2018.
7. Ex.P.7-Physiotherappy Certificate dt:05.10.2019.
8. Ex.P.8&9- Cash receipts dt:05.12.2018 &05.01.2019.
9. Ex.P.10-Legal notice dt:05.02.2021.
10. Ex.P.11-Aadhar Card of Sharnayya Hiremath.
11. Ex.P.11(a)-Postal receipt.
12. Ex.P.12-Death Certificate.
13. Ex.P.13-Experience Certificate dt:17.07.2023.

Evidence of Opponent.

7.         One Aditya Pal S/o Sri.Radhey Shyam Pal, is examined as R.W.1 on behalf of Ops  and got marked 6 documents as per Ex.R.1 to Ex.R.6 which are as below.

1. Ex.R.1-e-pehchan Card dt:25.03.2017.
2. Ex.R.1(a)- personal details of deceased Sharnayya.
3. Ex.R.2- Form medical reimbursement for insured person.
4. Ex.R.3- Particulars of Insured person
5. Ex.R.4-Labour Secretary to Govt. of India letter dt:07.11.2015.
6. Ex.R.5-Rejection letter dt;20.02.2020 issued by OP No.2.
7. Ex.R.6- Discharge summary.

8.         On perusal of pleadings, evidence of the both parties and documents, this commission raised the points for discussion as below;

1. Whether the complainant proves that, she is consumer to OPs and further prove any deficiency in service by the OPs in not settling medical reimbursement claim? 

2. Whether the OPs prove that, this commission has no jurisdiction to try and adjudicate this complaint in view of Section 75(3) of ESI Act?

3. Whether the complainant is entitled for any relief as sought in his complaint? If so, What orders? 

9.         Our answers to the points raised above are as follows: -

1. In the affirmative.
2. In the negative.
3. In the affirmative and as per the final order.

Points No 1 to 3

10.       In order to decide the complaint issues, this commission discussed points/issues No.1 to 3 altogether for discussion as each points are inter related to each other- as follows.

Complainant is Consumer.

11.       In order to prove the case of the complaint, she lead her evidence as P.W.1 by way of reiterating the complaint facts and got marked Ex.P.1 to Ex.P.13 documents in support of his claim and in similar manner, OP 2 was also examined himself as R.W.1 and 04 documents are marked i.e., Ex.R.1 to Ex.R.4 on his behalf.  On perusal of overall pleadings, evidence of both kinds of the parties, though the OP NO.2 denied the fact that, the complainant is not the registered member of OPs and not purchased the policy in question, but it is not in dispute from the records Ex.P.1 to Ex.P.3 & Ex.P.13 and Ex.R.1 to Ex.R.3 that, the deceased complainant was working in R.V.Bidap Law college Bidar,  since 9 years prior to his death which is evident from Ex.P.13 experience certificate and in accordance with his employment he was also registered member of OPs as per the details found in Ex.P.1 to Ex.P.3, certainly the deceased complainant was the registered member of OPs and subsequent to his death (as per Ex.P.12 Death ceritficate), during pendency of the complaint, his legally wedded wife Smt.Akkamahadevi as a LR and beneficiary was brought on record. Hence, she is a consumer to the OPs.  Therefore, this commission is of the opinion that, the LR of deceased complainant is certainly consumer to OPs. 

Deficiency in Service of OPs.

12.       On perusal of the entire pleadings, evidence of the OPs No.2, he had strongly raised his objection as to the very maintainability of the compliant before this commission on the ground that, this commission jurisdiction is barred expressly along with jurisdiction of Civil Court u/s 75(3) of E.S.I Act 1948 and it is the only Employees Insurance Court alone has the jurisdiction to decide it.  This commission is not in agreement with OP2’S the bar of jurisdiction of this commission to adjudicate the compliant, as section 100 of C.P.Act 2019, specifically speaks of jurisdiction of this commission to entertain complaint despite existence of Arbitration clause as Section 100 Act not in derogation of any other law- “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.  The preamble of the C.P.Act 2019 declares that, it is an Act to provide for better protection of the interest of consumers and for that, purpose to make provision of the establishment o Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith.  Even, in Section 3 of the Old Act 1986 it is clear and unambiguous terms stated that, the provisions of the 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force. 

13.       Apart from the above, this commission also gains the judgment of Hon’ble NCDRC larger Bench vide order dt:13.07.2017, passed in CC No.701/2015 titled as Aftab Singh Vs Emaar MGF Land limited and Anr. Where in it is held, in view of Section 3, (old Act 1986) (As per this commission opinion the same provision is reflected in new act 2019 at Sec.100) which envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force, and the jurisdiction of the Consumer For a is not ousted.  On challenge of above said order before Hon’ble Apex Court in Civil Appeal No.23512-23513/2017 in Emaar MGF Land limited and Anr. Vs Aftab Singh, dismissed the said Appeal vide order dt:13.02.2018 and also Review Petition (C) No.2629-2630/2018 in above Civil Appeals  was also dismissed by Hon’ble Supreme Court by upholding the judgment of Larger Bench of the NCDRC passed in CC No.701/2015.  Hence, the OPs contention on the ground that, Section 75(3) of the ESI Act, the jurisdiction of this commission is barred cannot be accepted in law and not sustainable also.  Further, under the judicial notice of this commission in various Catena of judgments of Hon’ble Supreme court has held in en-number of reported cases viz,

i)          Lucknow Development authority Vs N.K.Gupta (1994(1) SCC 243.

ii)         Fair AIR Engineers (P.Ltd.) Vs N.KModi (1996(6) SCC 385.

iii)        Sky Park Coriars Ltd Vs Tata Chemical Ltd. (2000(5) SCC 294.

iv)       State of Karnataka Vs Vishwa Bharathi House Building Co-opoerative Society (2003(2) SCC 412.

v)        CCI Chamber Co-operative housing society Ltd. Vs Development Credit bank Ltd (2003(7)SCC 233.

vi)       H.N.Shankar Shastri Vs Asst.Director of Agriculture Karnataka (2004(6)SCC 230.   

Hence, in view of the law laid down in above noted cases, this commission is of the opinion that, the commission/s under C.P.Act has jurisdiction to decide the compliant as Section 75 of the ESI Act which doesn’t create any bar expressly against Consumer Fora /Commission for Redressal of Consumer complaints against E.S.I Corporation under the Act.   The plain reading of the Section 75(3) of the ESI Act 1948 which reads as under: “No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees Insurance Court”. 

            This above issue is no more Res-Integra as the Hon’ble Supreme Court in case of Kishore lal Vs ESI corporation reported in II (2007)CPJ 25(SC) by holding that, the jurisdiction of Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal and further held that, the provisions of the CP Act are required to be interpreted as broadly as possible and the Fora under C.P.Act have jurisdiction to entertain a complaint despite the fact that, other Fora/Courts would also have the jurisdiction.  Hence, in view of the above dictum laid down by the Hon’ble Apex Court this commission is of the view that, the objection raised by the OP No.2 in the instant case in respect of bar of jurisdiction to entertain the compliant and adjudicate the same is not tenable in law and hence, the said objection is un-tenable in law, accordingly negated the said issue of OPs. 

14.       Now by considering the other strong objection raised by the OP No.2 in his W.V. and as per Ex.P.1, 2^nd Page = Ex.R.5 at Sl.No.1 in the remarks column “not eligible for SST”, i.e., Super Specialty Treatment without assigning any specific reason for denial of eligibility to claim SST claim of complainant.  However, on perusal of the Ex.R.4 Circular
No.V-14/11/5/2012-Med.1 (policy) dt:07.11.2016, marked at Ex.R.4 by OP No.2, and his W.V. filed disclose the fact that, the beneficiary of Scheme i.e., the deceased complainant had not completed 2 years continuity of his service so, as to avail the said benefit in view of provisions of the ESI Act 1948.  In this regard the complainant drawn our attention to the citation relied upon by him held in W.P.(c) 14506/2021(K) on the file of Hon’ble High Court of Kerala at Ernakulam dt:22.07.2021, in the case of “Manu K.Chaco Vs ESIC Regional Director and Ors”.  On perusal of the said judgment, the Hon’ble Kerala High Court referred to a judgment already decided in the case of “Baby Devananda. D Vs ESIC and Anr., reported in 2017 SCC online
Delhi-12779”, wherein the said such provisions have been already struck down stipulating such condition of duration in respect of claim under SST.  The said decision of the Kerala High court amply applicable to the instant case.  Therefore, in rebuttal of said decision, the Ops have not produced any dictums of Hon’ble High Court of Kerala or Apex Court in this regard.  Accordingly, we are bound by the said decision of Hon’ble Kerala High Court as afore stated thereby we hold that, the complainant is entitled for benefits of re-imbursement in respect of treatment under SST had by her husband during his life time. 

Quantum of Compensation.

15.       In the light of above discussion now, it is to be decided the amount for which complaint is entitled for.  In this regard this commission referred to “in patient final bill” marked at Ex.P.6 which is issued by City Neuro Center Hospital Hyderabad, for an amount of Rs.4,05,000/- and Ex.P.8 the cash receipt issued by Shanti Physiotherapy and Rehabilitation Centre dt:05.12.2018 and 05.01.2019 which are marked at Ex.P.8 and Ex.P.9 respectively for Rs.18,000/- each (02 bills) which in total comes to Rs.36,000/-, therefore, in total of Ex.P.6 and Ex.P.8 & Ex.P.9 amount spent by deceased complainant comes to Rs.4,41,000/-, which is the amount claimed by the complainant for which she is entitled by OPs in the circumstances of the case.

16.       Hence, we are of the considered view that, the complainant succeeded in proving her case for medical reimbursement claim as prayed for and whereas the OPs utterly failed to prove his case by rebutting the case of complainant in maintaining compliant against them.  Therefore, this commission answered the point No 1 and 3 in affirmative in favor of complainant and point No. 2 in negative against to OPs and proceeded to pass the following order.

::ORDER::

        The complaint u/s 35 of CP Act 2019, filed by the complainant is hereby allowed partly with costs & compensation.

            The OPs are hereby directed to pay medical re-imbursement of claim as per Ex.P.6 Ex.P.8 and Ex.p.9 an amount of Rs.4,41,000/- along with interest at the rate of 6% from the date of rejection as per
Ex.P.1 =Ex.R.5 dt:20.02.2020, till realisation to complainant within 45 days from the date of this order along with compensation of Rs.10,000/- for having suffered mentally by complainant and   Rs.5,000/- as cost of litigation. 

Intimate the parties accordingly.                         

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Commission on this   06^th day of October -2023).

Documents produced by the complainant.

1. Ex.P.1-Perticulars of Insured person .
2. Ex.P.2-Claim Form medical reimbursement for insured person.
3. Ex.P.3-Employees State insurance corporation e-pehchan Card.
4. Ex.P.4- Discharge Summary dt:04.11.2018.(13pages).
5. Ex.P.5- ENMG/EP/AFT Report dt:24.10.2018 issued by City Neuro Center Hospital Hyderabad.
6. Ex.P.6- In patient final bill dt:04.11.2018.
7. Ex.P.7-Physiotherappy Certificate dt:05.10.2019.
8. Ex.P.8&9- Cash receipts dt:05.12.2018 &05.01.2019.
9. Ex.P.10-Legal notice dt:05.02.2021.
10. Ex.P.11-Aadhar Card of Sharnayya Hiremath.
11. Ex.P.11(a)-Postal receipt.
12. Ex.P.12-Death Certificate.
13. Ex.P.13-Experience Certificate dt:17.07.2023.

Document produced by the OP.

1. Ex.R.1-e-pehchan Card dt:25.03.2017.
2. Ex.R.1(a)- Personal details of deceased Sharnayya.
3. Ex.R.2- Form medical reimbursement for insured person.
4. Ex.R.3- Particulars of Insured person
5. Ex.R.4-Labour Secretary to Govt. of India letter dt:07.11.2015.
6. Ex.R.5-Rejection letter dt;20.02.2020 issued by OP No.2.
7. Ex.R.6- Discharge summary.

Witness examined.

Complainant:

P.W.1- Akkamahadevi W/o Late Sharnayya Hiremath.   (Complainant ).

Resondent:

R.W.1- Aditya Pal S/o Sri.Radhey Shyam Pal.