DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

MUCHIPARA, BURDWAN.

Consumer Complaint No  272 of 2014

Date of filing: 26.12.2014                                                                      Date of disposal: 14.12.2015

Complainant:              Adityanath Hazra,S/o. Late Radha Krishna Hazra, resident of Bhatchala (South), PO: Sripally, PS. & District: Burdwan.

-V E R S U S-

Opposite Party:    1.   The Medical Superintendent, E.S.I., Durgapur, Bidhannagar, Durgapur – 6, District: Burdwan.

2.    The Administrative Medical Officers, E.S.I. (M.B.) Scheme, West Bengal, P- 233, CIT Scheme- VIII-M, Bagmari, Kolkata – 700 054.

3.    The Director General, State Insurance Co. Ltd., Panchadwip Bhavan, Comrade Indrajit Gupta (CIG) Marge, New Delhi – 110 002.

Proforma Opposite Party:     The Director, Institute of Neuro Science, Kolkata – 700 017.

Present:        Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:                          Ld. Advocate, Santi Ranjan Hazra.

Appeared for the Opposite Party No. 1:            None.

Appeared for the Opposite Party No. 2:            Ld. Advocate, Sovan Kumar.

Appeared for the Opposite Party No. 3:           Auto. Representative.

Appeared for the Proforma  Opposite Party:  Ld. Advocate, Sandip Chakraborty.

J U D G E M E N T

This complaint is initiated by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice as the Ops did not pay him the actual treatment cost incurred by him during treatment at the ESI Network hospital.

The brief fact of the case of the complainant is that being an employee of proforma OP-3 he was under insurance scheme of Employer State Insurance Corporation, insurance no. was 4113501027 and the date of registration was 13.8.2011. All on a sudden on 12.01.2013 at about 6 pm the complainant felt a shock over his head and experienced tremendous headache and the same time started to vomit and he vomited for 7 to 8 times. As his condition was deteriorating his family members admitted him at Burdwan Medical College & Hospital. The doctor of the said hospital after observing his symptom opined a case of internal hemorrhage and considering his critical condition the of BMCH referred to SSKM, Kolkata for better treatment. As the complainant belongs to a very low income family, so that the local MLA recommended him for treatment at SSKM Hospital at Kolkata. But unfortunately on 13.01.2013 at about 12.25 am the SSKM Hospital authority refused him to admit at their hospital due to non- availability of sit/bed. Finding no other alternative his family members took him at Institute of Neuro Science, Kolkata where the complainant was treated from 13.01.2013 to 17.01.2013 and had to incur medical expenditure to the tune of
Rs. 49,900=00 his treatment is still continuing at the state run Govt. Hospital at Burdwan and borrowing huge amount the complainant had to met the said expenditure from his near relatives. On 11.12.2013 the complaisant sent an application to the OP-2 stating the fact of the entire incident along with necessary documents and prayed to consider his claim sympathetically and reimburse the medical expenditure as incurred by him. Upon perusing the said application the complainant was instructed to submit the claim form for reimbursement of Rs. 49,900=00 and as per instruction of the Op-2 the complainant submitted all the documents and the claim form to consider his claim sympathetically and reimburse the medical expenses incurred by him. The claim form had duly received by the OP-2 by issuing an A/D on 20.02.2014. Since then the Ops did not communicate with the complainant in respect of such claim. Due to his physical condition the complainant could not attend the office of the Op-2 but on several occasions the relatives of the complainant attended the office of the OP-2 requesting to take necessary steps regarding the claim of the complainant. But in spite of sincere efforts all became futile as till date the OP-2 neither reimbursed any amount to the complainant nor repudiated the claim the office of the OP-2 has withheld the claim of the complainant for long time without assigning any cogent reason for the same. According to the complainant he is entitled to get the entire amount of expenses form the OP-2 incurred by him but till today the complainant is totally in dark about the fate of his legitimate claim. Finding to other alternative the complainant communicated with his ld. Advocate and on according to his advice on 21.12.2014 one legal notice was sent addressing to the OP-2 and the copy was given to the OP-3 requesting to disburse the legitimate claim for Rs. 49,900=00 in favour of the complainant within 15 days from the date of receipt of the said notice, but till filing of this complaint no communication has been made by the Ops. Therefore being compelled the complainant has taken shelter under the court of law by filing this complaint  praying for direction upon the Ops for making payment of Rs. 49,900=00 to him along with interest @12% p.a. till the date of  realization, Rs. 20,000=00as compensation due to harassment and mental agony and litigation cost of Rs. 10,000=00.

The petition of complaint has been contested by the Op-2 by filing written version wherein it is stated that the instant complainant cannot be considered as consumer and hence the dispute cannot be considered as consumer dispute because the complainant cannot fall under the definition of consumer as given in the Consumer Protection Act, 1986.  The Op-2 has submitted that this complaint is also not maintainable before this ld. Forum due to lack of territorial jurisdiction no cause of action arose within the territorial jurisdiction of this ld. Forum nor has any office within this jurisdiction. Therefore the complaint should be dismissed due to barred by territorial jurisdiction. The Op-2 has contended that the reimbursement for the treatment in case of a person insured or registered with the ESI, he has to comply with the rules and regulation of the same, failing which he is not entitled to get reimbursement from ESI. In the present case the complainant did not take admission for his alleged treatment at any ESI hospital, on the contrary, he get admitted in the Institute of Neuro Science at Kolkata which is not a hospital enlisted under the ESI scheme, therefore the reimbursement for the claim of the complainant could not be made straightway by the ESI as per their guidelines which they used to do in case of a patient treated at ESI hospital rather the reimbursement of the claim of the complainant  can be settled only as per CGHS scheme and rate. Therefore, it is absolutely a fanciful claim that the complainant having a legitimate claim before the ESI or that has not been settled as the prevailing rules and regulations of the ESI. It is submitted by the OP-2 that the complainant got discharge from the hospital on 17.01.2013 and he lodged the claim application before the OP-2 on 11.12.2013 i.e. after lapse of almost 11 months which is appearing from the complaint. It is worthy to mention further that the supervising medical officer had to give the petitioner or his family members necessary advice regarding the process and procedure of reimbursement of the claim; as such it is firmly denied that there is any lapse or negligence on the part of the Ops. Upon receipt of the relevant papers and documents along with the claim form for reimbursement the same was processed as early as possible and there was no willful delay or negligence occurred in processing of the claim and ultimately following the rules and regulations along with rates of CGHS a sum of Rs. 19,672=00 was sanctioned and accordingly the same has already been processed, cheque prepared and this OP intimated the complainant such intimation which had duly been sanctioned later by the Administrative Medical Officer, West Bengal. Therefore, this OP was not at all deficient or negligent in processing of the claim of the complainant. Therefore this complaint case is absolutely motivated, vexatious and liable to be dismissed.

The petition of complaint has also been contested by the OP-3 by filing written version contending that the Administrative Medical Officer, Govt. of West Bengal, Employees State Insurance (Medical Benefit) Scheme has passed the claim of the complainant for Rs. 19,672=00 towards reimbursement of medical expenses submitted by the complainant and he same was forwarded to the Senior State Medical Commissioner, ESIC for making payment. The Senior State Medical Commissioner (EZ) duly issued the payment to the applicant through cheque on 17.3.2015 for Rs. 19,672=00 and handed over the said cheque to the representative of OP-2 for onward transmission to the applicant. Photocopy of the letter dated 19.3.2015 was received by the office of the Senior Medical Commissioner and the said cheque was issued to the complainant. It is further submitted by the OP-3 that u/S. 58 of ESI Act, 1948 the State Govt. of West Bengal through the Administrative Medical Officer, Employees State Insurance (Medical Benefit) Scheme shall provide medical treatment to the insured person. The OP-2 is a sole authority  for accepting and passing medical expenses /reimbursement claim from the insured persons covered under the ESI Scheme, therefore the OP-3 has no authority either accepting or passing any reimbursement claim of the insured persons under the ESI Scheme. The OP-3 is no way involved in making payment of the said amount in respect of the claim of the complainant. Therefore, no delay has been occurred at all on behalf of this OP for issuance of cheque or makes payment in cash to the complainant. The OP-3 has the liability only to issue cheques as per amount sanctioned by the OP-2. Therefore, OP-3 is not the right person to determine the amount as claimed by the complainant. According to the Op-3 this complaint is liable to be dismissed against it.

            The petition of complaint has been contested by the proforma OP by filing written version wherein it is stated that as within the forecorners of the complaint no relief has sought for by the complainant it is not liable to pay any amount as claimed in the prayer portion of the complaint. According to the proforma OP appropriate medical service was provided on behalf of it during tenure of her treatment. Therefore, question of deficiency in service and unfair trade practice do not arise at all. According to the proforma OP the complaint is liable to be dismissed against it.

The complainant has filed evidence on affidavit along with several papers and documents by way of ‘firist’. The complainant also field written notes of argument with a copy to the other side. The Ops have also filed several papers and documents in support of their respective contentions and the Ops have filed photocopies of the rules and regulations of their Department.

We have carefully perused the record; papers and documents filed by the parties and heard argument at length advanced by the ld. Counsel by the parties. It is seen by us admittedly the complainant being an employee was under the insurance scheme Employer State Insurance Corporation. On 12.01.2013 due to tremendous headache he got admission at BMCH, Burdwan, after observing his health condition and symptoms the doctors of BMCH opined that it was a case of internal hemorrhage, considering such critical condition the patient was referred to SSKM Hospital for better treatment, SSKM Hospital refused to admit the said patient due to scarcity of bed, ultimately the patient got admission at the Institute of Neuro Since, Kolkata, he was treated therein from 13.01.2013 to 17.01.2013, during tenure at the said Institute he had to incur medical expenses to the tune of Rs. 49,900=00 for his treatment, getting discharge the complainant lodged the claim before the Ops towards reimbursement along with the claim form and related all the medical papers and documents, the Op-2 issued an acknowledgement after receipt of the claim application, since then till filing of this complaint the Ops neither reimbursed any amount to the complainant nor repudiated his claim.  In this respect several letter and legal notices issued, to no effect.  The allegation of the complainant is that the Ops did not pay his legitimate claim towards medical reimbursement till filing of this complaint and hence being compelled he has initiated this complaint before this ld. Forum praying for certain reliefs.

Though the OP-1 appeared but did not file any vokalatnama and written version to contest the complaint. Hence, the case is decided ex parte against the OP-1.

The rebuttal case of the OP-2 & 3 is that the complainant cannot be termed as consumer, no cause of action arose within the territorial jurisdiction of this ld. Forum and the complainant did not get admission at any ESI Hospital in view of the terms and the conditions of the insurance policy. The Ops have prayed for dismissal of the complaint.

Upon careful consideration in our view the complainant can be termed as consumer and the Ops are the service provider in view of the definition of ‘consumer’ and ‘service provider’ as enumerated in the C.P. Act, 1986. Moreover the landmark judgment of the Hon’ble Apex Court passed in the case of Kishorilal vs Chairman, ESI; the said dictum has strengthened the point that the complainant can easily be termed as consumer. In respect of the pleas of the Ops that cause of action arose within this district but from the cause title of the complaint it is evident that the address of the OP-1 lies within the territorial jurisdiction of this ld. Forum.  So as there is the existing of the office of the OP-1 within this district, we are not a position to hold that the complaint is barred by territorial jurisdiction. Now we are to see whether the complainant is entitled to get reimbursement as sought for or not. During hearing the ld. Counsel for the OP-1,2 & 3 has filed the G.O. of the Head Quarters Office, Employees State Insurance Corporation, Panchadeep Bhavan, CIG Road, New Delhi-110 002, dated 18.5.2010 wherein it is written that reimbursement of expenditure incurred by the IPs and their families on medical treatment taken during emergency from non- ESI hospitals, the expenditure incurred by insured persons and their families on medical care treatment taken in case of emergencies should be reimbursed as per CGHS approved rates after ascertaining emergency and entitlement.  Upon perusal of the said G.O. in our view it is applicable in the case in hand. Admittedly the complainant being compelled got admission at the Institute of Neuro Science in Kolkata which is not an ESI Hospital. Therefore, obviously the complainant is entitled to get reimbursement for his medical treatment as incurred by his as per CGHS approved rates. It is also seen by us that the Ops have issued one cheque to the tune of Rs. 19,972=00 calculating the medical expenses as per CGHS rate to the complainant, but the complainant refused to accept the said cheque as it was at the lower amount. But we also cannot go beyond the government order as filed by the ld. Counsel for the Ops and in our view the complainant to get reimbursement of the medical expenses incurred by him as per CGHS approved rate. After calculation it is seen by us that the amount will be Rs. 19,972=00 as CGHS approved rate. Therefore there is no deficiency in service and unfair trade practice on behalf of the OP-1, 2 & 3 as they were intending to give the cheque amounting to Rs. 19,972=00 to the complainant earlier, but the complainant himself refused to take the same. As neither the complainant nor the Ops can travel beyond the Govt. rules because the complainant obtained the policy after knowing the rules and regulations of ESI scheme, now he is not entitled to claim more amount than the cheque amount as the Ops were agreed to hand over. In respect of Op-4 it is seen by us that no allegation has been made out against the said Op within the forecorners of the complaint so the complainant is not at all entitled to pay compensation or relief from the Op-4.

Going by the foregoing discussion hence, it is

O r d e r e d

that the complaint is dismissed on contest against the OP-4. The complaint is allowed part ex parte against the OP-1 on contest without any cost. This complaint is allowed in part against the OP-2&3 on contest without any cost. The OP-1, 2 & 3 are directed to pay either jointly or severally to the tune of Rs. 19,972=00 to the complainant within a period of 45 days from the date of passing of this judgment, in default, the above-mentioned amount shall carry penal interest @9% per annum for the default period.

                   (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                 President       

                                                                                                          DCDRF, Burdwan

                      (Silpi Majumder)

                             Member

                    DCDRF, Burdwan

                                                   (Pankaj Kumar Sinha)                           (Silpi Majumder)

                                                           Member                                              Member    

                                                     DCDRF, Burdwan                             DCDRF, Burdwan