ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in over charging the cost of the Pacemaker implanted to his body and for recovery of the same i.e., Rs.60,900/- along with compensation of Rs.1,00,000/- as damages and Rs.1,00,00/- for causing mental tension, agony and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that; the complainant is an employee working as upper division clerk in SPT All India Radio, Yelahanka New Town, Bangalore, covered under Central Government Health Scheme (CGHS).  After obtaining permission and authority from his superiors he was admitted to OP’s hospital on 26.08.2016 as inpatient No.7896 and underwent heart surgery and “duel chamber pacemaker” was implanted for his heart problem on 27.08.2016 and afterwards discharged on 29.08.2016.

3.      It is contended that at the time of discharge a bill for Rs.1,82,164/- was raised, whereas his office had paid Rs.1,57,000/- in advance and the remaining amount of Rs.25,164/- was paid by him.  When he was scrutinizing the bill, he found that OP has charged Rs.1,44,100/- for the duel chamber pacemaker implanted in his body, whereas its rate as per CGHS rate was only Rs.83,200/-.  He corresponded in this regard with the hospital i.e., OP and also his officers corresponded with OP and inspite of it, OP has not refunded Rs.60,900/-, over charged for the pacemaker.  In the reply given by OP, it is mentioned that the complainant’s brother has given an undertaking that they would pay the additional charge of the implant. He was all along conscious and no undertaking or consent was taken from him whereas two days after the operation i.e., on 29.08.2016 at the time of discharge, it appears that clandestinely OP has obtained signature on the consent form from his brother who has no authority to give consent and the bill prepared by OP has no justification.  His office is demanding him to pay Rs.60,900/- towards the pacemaker implant charge as it is in excess of the allowable cost of Rs.83,200/-, which has put him into lot of physical hardship, mental torture, agony, and pain and hence issued legal notice, which has been replied whereas OP has not paid the excess amount charged and collected. Hence this complaint. 

3.      Upon the service of notice, OP appeared before the Commission and denied all the allegations made in each and every para of the complaint and further contended that the complaint is filed on false, baseless grounds and has made an attempt to reap the unlawful profit.  OP is a reputed hospital empaneled by CGHS authorities.  It is running chain of hospitals in the country.  Complainant was admitted to its hospital at Cunningham road branch, Bangalore on August 26, 2016 for heart blockage.  He was admitted under emergency conditions and coronary angiogram was taken and a permanent pacemaker was implanted on 27.08.2016.  The assistant of the complainant i.e., his brother J.Lakshminarayana, upon the diagnosis of the complainant’s requirement of implantation of the pacemaker, was informed regarding the condition and his consent was obtained. 

4.      It is further contended that there are several kinds of permanent pacemakers designed to meet different needs and requirements.  Pacemakers are categorized on the basis of the areas of the heart they stimulate.  The choice of which pacemaker to be used for a particular patient depends upon the patient, their life style and the underlying heart conditions.  In respect of the complainant, it was observed that the complainant required a pacemaker of ENDURITY CORE (DDDC), PM 2140 batch 4717558 pacemaker and they found that the said pacemaker was more suitable for the patient’s condition and since the same was not within the CGHS rates, they were forced to consult the complainant’s attendant i.e., the brother of the complainant during surgery and sought consent with regard to the cost of the pacemaker.  Complainant’s brother was apprised of the CGHS sealing limit, the need for paying the additional amount and only after obtaining the oral consent of the brother of the complainant, they proceeded to implant the said pacemaker.  In view of the emergency, they obtained oral consent whereas at the time of discharge, the complainant’s brother who had given oral consent has given the consent in writing and further undertook to pay the differential cost.   They were shocked to receive the notice on September 20,2016 from Prasara Bharathi requesting them to refund Rs.60,900/- being the extra amount charged for the pacemaker. On October 5^th, 2016 as per the request of the complainant, the certificate regarding the cost of the pacemaker was given to the complainant.  The complainant did not express anything regarding not obtaining his consent and the same was reclarified to Prasara Bharathi. 

5.      It is further contended on June 22, 2017 Additional Director, Central Government Health Scheme, issued a show cause notice regarding over charging for the implant and to take initiation against them. They wrote a detailed response in this regard as to why the higher value implant was implanted and regarding obtaining the necessary consent and that they have not over charged any amount to the complainant, but it is the actual cost of the pacemaker, which was required to be implanted to the complainant. 

6.      It is further contended that in case the beneficiary demands a specific brand of stunt on  implant, and gives his consent in writing, the difference in cost over and above the sealing rate may be charged from the beneficiary which is non reimbursable as per CGHS circular 11045/36/2012/CGHS/HEC.  In view of the same, and as per the consent given by the attendant, the implant was fixed to the body of the complainant.  In view of the said reply given, CGHS or the central government has not initiated any action against them. The jurisdiction of reimbursement and matter relating to over charge, false within the jurisdiction of central administrative tribunal.  This consumer forum has no jurisdiction to decide the complaint. It is a desperate attempt made by the complainant to extract money from them.  They cannot be penalized or direct to pay the amount as prayed. Hence prayed the forum to dismiss the complaint.

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the OP and OP has over charged the cost of the implant and recovered the same from the complainant?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Negative

POINT NO.2:            In the negative

                                For the following.

REASONS

9.     POINT No.1:-

    Perused the contents of the complaint, the version, affidavit evidence and the documents produced by both the parties and got the duel chamber pacemaker implanted to his body for his heart ailment on 27.08.2016.  It is not in dispute that the complainant is an employee of All India Radio working in Yelahanka and was authorized to take treatment with OP.

        10.   Only contention of the complainant is that OP has charged excessive amount in respect of the cost of the pacemaker.  According to him the CGHS has prescribed the cost of duel chamber pacemaker at Rs.83,200/- and the OP has charged Rs.1,44,100/- for the said pacemaker and thereby over charged him for the said pacemaker and his employer is demanding for the repayment of the same as the same is not reimbursable.

        11.   It is to be considered here that as per the documents produced by the complainant himself, the maximum amount reimbursable by the government, in respect of duel chamber pacemaker is Rs.83,200/- and in case the patient wants to have a pacemaker of a higher value, he has to pay the same.  Of course, consent has to be obtained by him by the hospital for bearing the excess amount.

        12.   It is the contention of the OP that the complainant was admitted to the hospital in an emergency and critical condition and when the coronary angiogram was taken it was found that he required a pacemaker and since he was in critical condition and emergency situation, his brother’s oral permission was obtained regarding bearing the extra cost of the pacemaker informing him well the requirement and he also agreed for the same and since it was an emergency case the consent was taken later i.e., at the time of discharge.

        13.   Complainant has also produced the cost of the pacemaker implanted to the body which is duel chamber pacemaker. The patient wanted the high value pacemaker device and on the acceptance given by the brother of the complainant the same was implanted. The value of the pacemaker implanted is as per the invoice is Rs.1,44,100/-.  The said implant is named as pacemaker duel chamber endurity core (DDDC) PM 2140+2088/188 with tendril, leads, ST judi medical.  The said cost includes output vat of Rs.7,512/-.  The said pacemaker was supplied by cardiac care products, HSR Layout, Bangalore.

        14.   Complainant has not produced any document to show that the product i.e., pacemaker which was implanted in his body for his heart ailment was in fact costing less amount or Rs.83,200/- and OP has collected more money from him.  On the other hand, OP has produced the copy of the invoice regarding the said pacemaker wherein it has paid Rs.1,44,100/- towards the same. Though there is a delay in obtaining the consent of the brother of the complainant regarding sharing of the additional cost of the implant which is after the operation, under the normal circumstances, the patient or his relatives agree for a superior quality of implant as it is quite but natural for any man to have the best of the things to have a decent and good life. 

15.   Under the circumstances, it cannot be held that the complainant through his brother has not all given consent for bearing the additional cost.  Further no affidavit of his brother has been filed by the complainant to say that the consent of his brother was obtained under the threat or coercion. 

16.   It is not the cost of the implant which the CGHS has fixed at Rs.83,200/-.  The maximum amount payable for a duel chamber pacemaker is limited to the said amount by the government and in case the patient requires a higher value implant, he or she can do on his/her own by paying the additional cost of the pacemaker.  When the above things are taken into consideration, we are of the opinion that there is no deficiency in service on the part of the OP and also further there is no unfair trade practice of charging extra amount in respect of the cost of the pacemaker.  

17.   Further, complainant was operated on 27.08.2016 and all the correspondences have been done by him from which it is clear that OP was not ready to refund the amount and made its stand clear.  This complaint ought to have been filed before this forum on or before 27.08.2018, whereas this complaint is filed on 29.01.2019 which is much after two years after the time limit prescribed u/s 24-A of the Consumer protection act. Further correspondences issue of legal notices will not give fresh cause of action to condone the delay.  No IA for condonation of delay is also filed. In view of the same, the complaint is also barred by time.  Hence we answer point No.1 in the Negative and in the result complainant is not entitled for any of the relief claimed. In the result we answer point No. 2 in the Negative and proceed to pass the following;

ORDER

1. Complaint is Dismissed.
2. Parties to bear their own cost.
3. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 7^th day of September 2020)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the permission letter issued by Deputy Director, giving permission to get the treatment from FORTIS Hospital

Ex P2: Copy of the Discharge summary

Ex. P3: Copy of the letter written by the Deputy Director to the CGHS Hospital for claiming refund of the amount of Rs.60,900/- claimed in excess than the prescribed by CGHS rates.

Ex P4: Copy of the letter correspondences

Ex P5: Copy of the memorandum dated 27.11.2018 directing to deduct the amount from my salary

Ex P6: Copy of the representation dated 30.11.2018

Ex P7: Copy of the legal notice

Ex P8: Copy of the reply given by OP.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Keshav Koparde    -        OP

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Discharge summary

Ex R2: Patient/attendant declaration in respect of complainant

Ex R3: Letter written by the All India Radio to Hospital

Ex R4: Letter written by us to the Deputy Director AIR(2 in number)

Ex R5: Letter written by complainant

Ex R6: Letter written by AD CGHS to our hospital

Ex R7: Our letter in that respect Government of India guidelines

Ex R8: Legal notice issued by the complainant

Ex R9: Reply given by us.

MEMBER                                PRESIDENT