State Consumer Disputes Redressal Commission
Dr.Raju Singh vs Aiims on 22 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 23.03.2016 Date of arguments heard : 22.02.2016 Complaint Case No.148/09 IN THE MATTER OF: Dr. Raju Singh CMO-Professor Grade, C-ii/45, AIIMS Campus (East) Ansari Nagar New Delhi-110029 ...........Complainant Versus The Director All India Institute of Medical Sciences Ansari Nagar New Delhi-110029 .......Opposite Party CORAM O.P. Gupta,Member(Judicial) S.C. Jain (Member) 1.
Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not O.P. Gupta, Member (Judicial) The case of the complainant is that he is a senior doctor working as C.M.O. Professor Grade & Officer Incharge, OPD & Pharmacy for the last 25 years. He is a permanent employee of All India Institute of medical Sciences (AIIMS) and authorized to take treatment vide 'Employees Health Scheme Token No. 2772' with a nominal subscription monthly fee charges Rs.150/- alongwith his dependent family members. He visited the United States of America in July, 2007 for vacation alongwith his family with prior permission of Director, AIIMS. He had been suffering from Urological ailments for the last 10 years. He was investigated and treated offered on as a case of chronic prostatitis. He was regularly under follow up of Prof. P.N. Dogra, Deptt. Of Urology, AIIMS for the last 10 years. Dr. Dogra advised further investigations in Jan., 2007 i.e. U/S TRUS, the lesion detected in one lobe of Prostate. Then M.R.I. Prostate Spectroscopy and P.S.A was done which revealed abnormal lesion inside the prostate gland and raised P.S.A. range. The consultant surgeon further advised investigations i.e. Biopsy of the Prostate gland. The complainant was hospitalized for Biopsy under consultant Prof. N.P. Gupta. The Biopsy was done on 26.6.07 and it was revealed that complainant was suffering from Prostatic adenocarcinoma, Gleason's Score 6 (3+3). Perineura invation. The complainant consulted Prof. N.P. gupta and he advised to go for operation and a provisional date was given in the first week of August, 2007. Prof. N.P. Gupta gave clearance to the complainant to visit U.S.A. and then complainant visited U.S.A. on 10th July, 2007 with prior permission of Director, AIIMS.
During visit to U.S.A. complainant's Urological ailments aggravated. He consulted prof. Ashutosh Tewari, Urologist of Presbyterian Hospital New York, U.S.A., his prostate Biopsy slide was examined and it was diagnosed aggressive prostate cancer with a Fleason score of 7 (4+3). He under went an emergent Urological surgery on 7th August, 2007 at New York Presbyterian Hospital (U.S.A) during his visit to USA. He has filed copy of certificate of medical emergent operation dated 14.8.07 by Prof. Ashutosh Tewari. He paid for the Surgery, medicines and one-day hospitalization charges amounting to US$40,218.93/- which he borrowed @ 10% interest from his brother in U.S.A. who is an NRI. Complainant came back to India on 20.8.07 and resumed his duties at AIIMS in the forenoon of 27.8.07, the Director, AIIMS accepted medical certificate issued by Prof. Ashutosh Tewari of New York Presbyterian Hospital, US.A. and converted his earned leave into 41 days commuted leave (Medical leave w.e.f.17.7.07 to 26.8.07). He submitted the original medical bills for reimbursement on 9.10.07. Despite several requests and meetings with Director, AIIMS, nothing has been done till filing of complaint over a period of four months and submissions of medical bills for reimbursement. He submitted a request to Sh. Anbumani Ramadoss, President (AIIMS) and Minister of Health and Family Welfare, Govt. of India. Despite several meetings and requests to Sh. D.S. Murthy, OSD to President, AIIMS to put up the matter of reimbursement of medical bills before the President, AIIMS and Minister of Health and Family Welfare, Govt. of India, nothing was done over a period of two months. Complainant gave reminder on 7.4.08 to the President, AIIMS and Hon'ble Health Minister through Sh. D.S. Murthy, OSD but to no use. Complainant gave another reminder on 29.5.08 to Sh. D.S. Murthy, OSD. He also provided lists of employees and doctors of AIIMS who had taken treatment outside in private hospital in India as well as abroad whose medical bills has been reimbursed. He submitted a representation on 5.11.08. Even Central Govt. Health Service beneficiaries availing reimbursement facilities of medical bills for treatment taken in all cities of India while on tour or in unforeseen emergency are allowed to seek reimbursement vide OM No.S-11011/7/99-CGHS (P) dated 30.9.99.
The elder brother of the complainant was demanding his money back. Complainant was suffering from life threatening illness i.e. Aggressive prostate Cancer, temporarily came out from the jaws of death, still had not come out from mental shock and trauma and financial burden and was running from pillar to post to get relief but in vain. The Director, AIIMS was giving harassment and victimizing, bias and asympathetic attitude towards complainant. The authority have taken casual approach to process his case. He prayed for US$40,218.93/- alongwith interest @10%, Rs.50,000/- for expenses for meeting officials of OP, Rs.23,00,000/- for mental agony and harassment, Rs.50,000/- towards litigations charges, Rs.1,30,000/- one way air fare from New York to Delhi with spouse and attendant. (Total Rs.48,42,096/-) OP has filed a reply raising preliminary objection that complaint is false, frivolous and vexatious and is filed for unfair gains. The same is the gross abuse of process of law. The complainant is an employee of the OP and as such is in contract of personal service of OP. Therefore, provisions of Consumer Protection Act are not applicable to the present case. The issue relates to service conditions of complainant which does not come within the purview of Consumer Protection Act. The complainant had not availed any service from the OP and as such is not a consumer within the meaning of Consumer Protection Act. There is no deficiency of service on the part of OP. OP is an institute of National importance and is not amenable to the provisions of Consumer Protection Act. Treatment provided to patient who come to AIIMS is provided free of costs and no amount is charged from them for diagnosis, treatment and consultation.
In preliminary submissions, the OP has mentioned that complainant was supposed to resume his duties on 1.8,07 but over stayed in U.S.A. without any intimations/prior approval of the Competent authority till 26.8.07. The complainant reported to doctor in New York on 17.7.07 for initial investigations and underwent uneventful Urological surgery on 7.8.07 i.e. during period of his over stay. The matter regarding reimbursement of claim of complainant was placed before the Standing Committee which referred the matter to Ministry of Health and Family Welfare for examination by the Standing Committee under the Director General of Health Services which has been set up under CS (MA) Rules for consideration of request for treatment abroad. The Ministry of Health and Family Welfare vide letter dated 24.8.10 replied that treatment abroad was available under Rule 11 of CS (MA) rules. But as per Note-2 (ii) under Rules 2 of CS (MA) rules, the said rules do not apply to government servants who were on leave or deputation abroad. On merits, the OP reiterated the same defense.
Complainant filed rejoinder and his evidence by way of affidavit.
OP filed affidavit of Sh. Dheeraj, working with it as Administrative Officer in its evidence.
The complainant filed synopsis arguments. The OP filed written submissions dated 22.2.16. It had already filed written arguments dated 11.11.13.
We have gone through the material on records and heard the arguments. The first plea of the OP is regarding applicability of Consumer protection Act. The complainant had relied upon decision of Six Members Bench of the National Commission in Jagdish Kr. Vajpai Vs. UOI IV (2005) CPJ 197 where it was held that a petitioner and beneficiary of CGHS is a consumer under Consumer Protection Act. The same is based upon decision of Hon'ble Supreme Court in V.P. Sharma III (1995) CPJ 1 what the National Commission observed is that where as part of conditions of service, the employer bear expenses of medical treatment of an employee and a family member dependant upon him, the service rendered to meet by the medical beneficiary would not be free of charges and would, therefore, constitute service under Section 2 (1) O consumer Protection Act. If, employee covered under CGHS can invoke the jurisdiction of Consumer Forum, there is no reason why the employees of AIIMS can not do so.
It may be mentioned that OP tried to confuse by raising preliminary objection No. 3 that service imparted to patients coming to AIIMS is free of charge. The case in hand is not a instance of patient of AIIMS. It is a case of reimbursement of employee of AIIMS. In any event the service being free in government hospitals has been discussed by the Hon'ble APEX Court in V.P. Sharma - Supra and by National Commission in Jagdish Kr. Bajpai - Supra. Both the said decisions have been followed recently by National Commission in Ved Prakash Juneja Vs. CGHS III (2013) CPJ 662. Thus objection of the OP in that regard is over ruled.
Coming to the merits of the case the complainant had produced certificate of Dr. Aushutosh Tewari which is Ex.CW1/7. The said certificate recites that the complainant underwent an emergent robotic prostatectomy on 7th August, 2007 at New York Presbyterian Hospital (U.S.A). He was diagnosed with an aggressive prostate cancer with a Gleason score of 7. This certificate leaves no doubt that complainant was compelled to undergo the said surgery, he could not wait till return in India. Had he waited, the things could have deteriorated and complainant could have lost his life.
Regarding over stay abroad beyond sanctioned leave, it may be observed that Sr. Administrative Officer of AIIMS has regularized the said leave vide O.M. No.6-34/85/Estab.I dated 21.9.07 copy of which is Exhibit CW-2/08. When the leave was regularized, that too in the form of commuted leave i.e. Half pay leave/medical leave, OP can not keep the same differently for the purpose of reimbursement of medical bills.
Now coming to the plea that no reimbursement is permissible for the treatment taken abroad, the complainant has filed information supplied to him under RTI Act. In reply dated 29.6.09, it has been mentioned that Dr. Omrish Coshic, Asstt. Professor of surgery, Husband of Dr. Poonam Coshic was allowed reimbursement for treatment taken abroad. Similarly Dr. D.K. Gupta, Pediatric Surgery, AIIMS was allowed reimbursement. To say that in the case of Dr. Coshic payment was made after approval of SFC of said administration is no answer. Approval of SFC could have been taken in the case of complainant also. Similarly to say that reimbursement in respect of Dr. D.K. Gupta was made in pursuance of sanction vide memorandum dated 22.4.1993 is again no answer.
Sh. S.P. Mohala, CF & CAO, Dr. D.K. Sharma, Medical Suptd. and Dr. V. Kochupillai, IRCH was given reimbursement for treatment taken outside AIIMS.
The complainant had also cited the case of Dr. Shafali Gulati, Professor of Paediatric at AIIMS who was reimbursed medical expenses of US$64564/- which is more than amount claimed by the complainant. The same is part of Item No. SFC-206/21. In that case, the claim pertained to emergency treatment incurred when official was on leave travel to United States. The case of the complainant is strictly covered by this instance. Discrimination without any justification is not sustainable in law.
As a result of the above discussions, the conclusion is that the complainant is entitled to reimbursement. Now turning to the quantum of reimbursement it may be observed as below:-
The complainant is entitled to reimbursement of US $40218.93 actually paid by him to New York Presbyterian Hospital, USA for emergent surgery, medicines and one day hospital charges. However, its value in Indian rupee would be calculated as on date of this order as per decision of Hon'ble Supre Court in Forasol Vs. ONGC para 40 (1984) supplementary SCC 263. This is so because the crucial date is date of decision by first court which determines the entitlement of the complainant to receive the amount. The same was followed in Jinu Kuruvilla & Ors. Vs. Kunjamma Mohan & Ors. AIR 2013 Supreme Court 2293 though in the context of court fees to be paid by the plaintiff. The complainant had claimed Rs.20,10,946/- on the basis of value of dollar prevailing in 2007 when he incurred the expenses. At that time the value of dollar was arround Rs.50/-. Now it is arround Rs.68/-. Calculated from the said rate the amount would come to Rs.27,34,824/-.
As regards interest it is sufficient to mention that change in the rate of dollar takes care of interest. Otherwise also the complainant borrowed the money from his real brother and none else. So there is no justification for grant of separate interest. The same is declined.
The complainant has not given the details of expenses born by him for meeting the officials of AIIMS. He has not given even the number of meetings or dates on which he met them. The claim is artificial.
The claim on account of mental agony and harassment is again highly expressive and imaginary. Mere non reimbursement of a claim does not mean that it caused mental agony and harassment. After all, all claims are subject to scrutiny and there could be difference of opinion whether to allow the same or not. It is not the case of the complainant that OP has any malafide against him. The claim on that account is declined.
Litigations charges claimed by the complainant aremoderate and in order. He had to follow up the case for seven years. He must have spent minimum Rs.50,000/-.
One way air fare from New York to New Delhi with spouse and attendant is again misconceived. The complainant had already gone to USA and was bound to return irrespective of the fact whether he underwent surgery or not. He was Indian citizen and a government employee. He was to return to his duties. No air fare can be allowed to him.
To sum up the OP is directed to pay Rs. 27,34,824/- towards reimbursement and Rs.50,000/- towards litigations costs within 45 days. In case of failure the OP will be liable to pay interest @ 10% p.a. on the amount so awarded from the date of this order till the date of payment.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge.
File be consigned to record room.
(O.P. Gupta) Member (Judicial) (S.C. Jain) Member ak