Tripura High Court
Sri Samar Bhusan Chakraborty vs The State Of Tripura & Others on 5 December, 2019
Author: Akil Kureshi
Bench: Akil Kureshi
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.830/2019
Sri Samar Bhusan Chakraborty
----Petitioner(s)
Versus
The State of Tripura & others
-----Respondent(s)
For Petitioner(s) : Mr. P. Roy Barman, Advocate, Mr. Samarjit Bhattacharjee, Advocate, Mr. Kawsik Nath, Advocate.
For Respondent(s) : Mr. D.C. Saha, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI Order 05/12/2019 Heard learned counsel for the parties for final disposal of the petition.
Petitioner is a retired Assistant Teacher of the Government of Tripura. His grievance is that the respondents have not paid him his medical bills as per his entitlement. Brief facts are as under:
While in service, the petitioner was detected with colon cancer. He was operated at TATA Memorial Hospital on 09.12.2014.
As follow up treatment, 12 doses of chemotherapy were administered to the petitioner in the period between 28.01.2015 to 21.07.2015. For such treatment, the petitioner had presented two bills of `1,92,742.68 and `1,79,486.74 totaling to `3,72,229.42 to the Director of School Education claiming reimbursement thereof.
These bills were rejected by the Director of Secondary Education by the impugned order dated 07.12.2018 on the ground that due to non-obtaining referral certificate by the Standing Medical Board, Page 2 of 8 Tripura, as per the decision of Finance Department, such bills cannot be cleared.
Learned counsel for the petitioner submitted that upon detection of the fact that the petitioner was suffering from cancer, he was advised to rush to TATA Memorial Hospital at Mumbai for immediate treatment. The petitioner did not have sufficient time to obtain referral certificate from the Medical Board. He pointed out that on subsequent occasions whenever the petitioner needed to take follow up treatment at Mumbai, he had approached the Medical Board and was duly certified for reference. Several such referral orders are placed on record. He submitted that the objection raised by the respondents is highly technical and not accepted by various Courts including the Supreme Court in number of cases.
On the other hand, learned Government counsel opposed the petition contending that obtaining a reference by the Medical Board before taking treatment outside the State is one of the requirements for claiming medical reimbursement. In the present case, the petitioner failed to obtain such reference. The department has, therefore, correctly rejected his medical bills.
The circumstances under which the petitioner had to take immediate treatment at TATA Memorial Hospital, Mumbai can be recorded in some detail. In the petition, the petitioner has given the history of his ailment and the treatment that he received at Mumbai and with respect to which no dispute has been raised by the respondents. The averments made by the petitioner in the petition read as under:
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"3. That, in the middle of 2014, the Petitioner suffered sudden rapid loss of body weight accompanied by very low level of hemoglobin. Initially the Petitioner consulted with Dr. Susanta Sen, Diabetologist and as per his advice took medicine including Iron Tablets. But even after taking the medicines as prescribed by Dr. Susanta Sen, condition of the Petitioner further deteriorated. The body weight of the Petitioner came down from 65 kg to 45 kg. The Petitioner attended outdoor of AGMC and GBP Hospital. The Petitioner also consulted Dr. Rajesh Debbarma, M.D Medicine. The Petitioner had to take admission to AGMC and GBP Hospital on 12.11.2014. The Petitioner was discharged on 15.12.2014. In the discharge certificate issued by the AGMC & GBP Hospital it was mentioned, that, the Petitioner was suffering from Iron deficiency anemia.
A copy of the discharge certificate is annexed herewith and marked as Annexure 1.
4. That, after discharge from GBP Hospital, the Petitioner noticed fresh blood coming out with his stool. Then the Petitioner again reported to AGMC and GBP Hospital. On 11.11.2014, the Petitioner was advised for colonoscopy. Accordingly the Petitioner underwent colonoscopy at GBP Hospital on 19.11.2014. Report of the colonoscopy suggested "carcinoma of colon".
A copy of the requisition slip for colonoscopy & report of colonoscopy are annexed herewith and marked as Annexure 2 collectively.
5. That, when colonoscopy report indicated that, the Petitioner has been suffering from carcinoma of transverse colon the Petitioner became unnerved. Well wishers and friends of the Petitioner advised the Petitioner to rush immediately to the TATA Memorial Hospital, Mumbai for availing best treatment available in the century for cancer patient. Accordingly, the Petitioner being accompanied by his wife and other family members went to Mumbai in the 1st Week of December, 2014. The Petitioner could not avail treatment at TATA Memorial Page 4 of 8 Hospital due to the heavy rush. The Petitioner availed treatment at Seven Hills Hospital, Mumbai and the Petitioner underwent colon surgery on 09.12.2014 and later on chemo port was fitted under the chest of the Petitioner through surgical procedure. The Petitioner was administered 12 doses of chemotherapy during the period of 28.01.2015 to 21.07.2015.
6. That, thereafter, the Petitioner submitted two MR Bills for Rs.1,92,742.68/- & Rs.1,79,486.74, in total Rs.3,72,229.42/- to the then Director of School Education, through proper channel. Along with two bills the Petitioner submitted all necessary vouchers, documents, cash memos related to his treatment at Seven Hills Hospital, Mumbai, being authenticated by the competent authority of the said Hospital. By forwarding letter, dated, 29.09.2015, the Petitioner submitted two MR Bills for Rs.1,92,742.68/- & Rs.1,79,486.74, in total Rs.3,72,229.42/-.
A copy of the letter, dated, 29.09.2015 is annexed herewith and marked as Annexure 3."
It can thus be seen that initial symptoms of the disease were that the petitioner suffered rapid weight loss coupled with drastic depletion of level of Hemoglobin in his blood. The petitioner lost close to 20 kgs of weight in a short span. With these complaints when the petitioner approached the GBP Hospital, the medical opinion was that the petitioner was suffering from iron deficiency anemia. The petitioner thereafter noticed that he was passing blood in the stool upon which he once again approached the GBP Hospital on 11.11.2014 when he was advised colonoscopy which was performed on 19.11.2014. The colonoscopy revealed that the petitioner had possible colon cancer. Under the advice of friends and well-wishers, therefore, he immediately rushed to the TATA Memorial Hospital at Mumbai for availing best treatment of cancer. Page 5 of 8 He was operated on 09.12.2014 and 12 cycles of chemotherapy were administered between 28.01.2015 to 21.07.2015.
The respondents do not dispute the medical expenditure. They only argue that because prior referral order from the Medical Board was not obtained, such bills cannot be passed. In my opinion, in facts of the present case, such objection is totally invalid. As noted, initially the petitioner suffered from weight loss and low hemoglobin in his blood. The fact that he was suffering from cancer was not detected at that stage. When he went back to the doctors with a complaint of passing blood in his stool, colonoscopy was advised which when performed revealed that he was suffering from colon cancer. Considerable time thus was already lost between the petitioner reporting early symptoms of a possible serious ailment and actual detection of the fact that he was suffering from cancer. He, therefore, had every reason to rush for best medical advice and treatment for such life threatening and dreaded disease. At such stage to expect him to apply, await and appear before the Medical Board and obtain a referral order before proceeding for the treatment is an unreasonable expectation. The respondents do not even dispute that had he appeared before the Medical Board, such reference would have been made. They only argue that the petitioner did not obtain a prior order of reference. The fact that on each subsequent occasion when the petitioner had the opportunity he applied to the Medical Board and referral orders were duly passed itself is an evidence of the justification of the petitioner obtaining medical treatment from outside State hospital. Page 6 of 8
The Supreme Court in case of Surjit Singh vs. State of Punjab and others reported in (1996) 2 SCC 336 had in somewhat similar circumstances made following observations:
"11. It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to verses 17 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:
17 Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakar maani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.
20 Sharirarakshanopaayaah Kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
22 Aatmaiva yadi naatmaanama hitebhyo nivaarayet Konsyo hitakarastasmaa- daatmaanam taarayishyati Page 7 of 8 If one does not prevent what is unpleasent to himself, who else will do it? Therefore one should do what is good to himself.
12. The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs.40,000 already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for.
Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."
Similar view is expressed by this Court on number of occasions granting relief to the Government servants. Reference in this respect can be made to the following decisions: Page 8 of 8
Judgment dated 18.08.2016 in case of Sri Kallol Roy vrs.
The State of Tripura & others in WP(C) No.277 of 2016, judgment dated 04.05.2018 in case of Sri Uttam Pal vrs. The State of Tripura & others in WP(C) No.1479 of 2017 and judgment dated 27.03.2019 in case of Sri Subal Das vrs. The State of Tripura & others in WP(C) No.895 of 2018.
In the result, the impugned order dated 07.12.2018 is set aside. The respondents are directed to pay the petitioner's medical bills in question as permissible. Such payment shall carry simple interest @ 7.5% from the date of completion of 3(three) months of presentation of bills till actual payment. Entire payment be made within a period of 2(two) months from today.
Petition is disposed of accordingly.
(AKIL KURESHI), CJ Pulak