State Consumer Disputes Redressal Commission
Chittithoti Subharatnam, Ongole, ... vs 01. The General Manager, Telecom ... on 22 May, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 5/2012 against CC 56/2011 on the file of the District Consumer Forum, Prakasam District at Ongole. Between : Chittithoti Subharatnam, D/o late Lingaiah, Aged about 57 years, Oc : Senior Section Supervisor ( Operations) O/o the G. M. Telecom District, BSNL, Ongole town, Ongole Mandal, Prakasam District ..Appellant/complainant And 01. The General Manager, Telecom District, Ongole Town, Prakasam District. 02. The Accounts Officer ( Pay & Claims ), office of GMTD, BSNAL Ongole Town 03. The Chief General Manager, Telecommunications, A. P. Circle. 04. The Chief Managing Director, Bharat Sanchar Nigam Limited Corporate office, Statesman House, B-148, barakkamba road New Delhi 110 001 . .. Respondents/OPs Counsel for the Appellant1 : M/s. A. V. Satyanarayana Rao Counsel for the Respondents : Mr. M. C. Jacob Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Wednesday, the Twenty Second Day of May Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 25.11.2011 in CC 56/2011 on the file of the District Consumer Forum, Prakasam at Ongole.
For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that the complainant, who is an employee of BSNL, obtained medical advance amount of Rs.22,400/- from OP.1 to get operated both eyes of his daughter at L.V. Prasad Eye Hospital, Hyderabad, which is the recognized and empanelled hospital of Ops. Surgery was done to her right eye on 13.07.2004 and to left eye on 14.07.2004 and the complainant paid Rs.28,500/- to the hospital. After submission of medical bills to OP.1 in the year 2005, without sanctioning the same, OP. 1 recovered the medical advance amount from the salary of the complainant in the months of October and November, 2010 @ Rs.11,200/- per month without any notice and evaded to pay the reimbursement on the ground that the Lasik surgery conducted to his daughter is a cosmetic surgery but, in fact, it is not a cosmetic surgery. In spite of his representation dated 29.12.2010 to refund the amount of Rs.22,400/- which was deducted from his salary, the Ops paid deaf year. The acts of Ops amounts to deficiency in service and it caused great mental agony to them and thus he filed the complaint to pay an amount of Rs.22,400/- with interest @18% PA from January, 2011, Rs.10,000/- towards mental agony and costs.
3. OP.1 filed counter which was adopted by Ops 2 to 4 opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The complaint is not maintainable since the complainant is not a consumer under the C. P. Act. The complainant was eligible only for Rs.26,590/- at District level but his claim was Rs.28,970/- exceeded the eligibility limit, so the same was forwarded to the OP. 3 for settlement. On their request to furnish code number, the L. V. Prasad Hospital authorities replied that the Lasik surgery was not listed under CGHS list of surgeries and so code was not given and that OP. 3 intimated the same to Op. 1 vide letter dt. 5.10.2010 with a statement that Lasik surgery comes under cosmetic surgery and the complainant is not eligible for medical reimbursement and hence the Ops recovered the medical advance amount from his salary and that there is no negligence or deficiency in service on their part and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A-9 were marked on behalf of the complainant and Ex. B -1 was marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint.
6. Feeling aggrieved with the said order the unsuccessful OPs filed this appeal on several grounds and mainly contended that the District Forum erred in considering the inherent defect I the eye sight is corrected with the assistance of laser and hence LASK surgery cannot be stated as cosmetic surgery and under this surgery a permanent disability is being cured and if this surgery is treated as cosmetic surgery to the broken bones can also be state to be cosmetic surgery and that the District Forum failed to give valid reasoning in dismissing the complaint and thus prayed to allow the appeal and set aside the impugned order.
7. Heard both sides with reference to their respective contentions in detail.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. There is no dispute that the complainant is an employee of Opposite parties. In a case between Jagdish Kumar Bajpai vs Union Of India (Uoi), Ministry Of ... on 20 October, 2005, reported in IV (2005) CPJ 197 NC, it was held by the Honble Natioal Commission that in consideration of service rendered to the Government till the age of superannuation, if right is conferred upon an employee to get pension as well as other benefits including medical treatment prescribed by various rules or the schemes framed by the Government, it cannot be held that it is a free service. Such employee would be a consumer as defined in Section 2(1)(d)(ii) of the Consumer Protection Act . In view of the said decision, even though, the complainant is an employee under the Ops for the purpose of this case of medical reimbursement in connection with the treatment given to his daughter in LV Prasad Eye Institute, the Consumer Complaint is maintainable.
10. This is a case of reimbursement of medical expenses incurred for treatment of Kum. C. Praveena, daughter of the complainant, in connection with her treatment of Lasik surgery to her eyes. The contention of the complainant is that his daughter had undergone Lasik surgery to both her eyes on 13.7.2004 and 14.7.2004 for compound myopic astigmatism vide Ex. A7 and A8 and that Ex. A6 bill dt. 14.7.2004 was issued by LV Prasad Eye Institute, Hyderabad for Rs.28,500/- and that being an employee of BSNL he applied to Op.1 for reimbursement of Rs.28,500/- after deducting Rs.22,400/- paid as advance and that the bill was kept pending and that in the months of October and November, 2010, without any notice OP. 1 recovered Rs.11,200/- per month and when he raised objection the Ops contended that Lasik surgery conducted to the daughter of the complainant is a cosmetic surgery and thus evaded the payment and therefore he was constrained to file the complaint and according to him it is not a cosmic surgery.
11.There is no serious contest from the Ops that the daughter of the complainant had undergone Lasik surgery for compound myopic astigmatism in her both the eyes. That apart Ex A7 and a8 establish the same. The complainant has marked Ex.
A6 bill for Rs.28,500/- issued by LV Prasad Eye Institute, Hyderabad in connection with the said treatment. The plea of the Ops is that as per LV Prasad authorities Lasik surgery is one kind of cosmetic surgery and therefore complainant is not entitled for reimbursement of the medical expenses aforesaid. In Ex. A3 letter dt. 15.09.2005 addressed by Deen John, Associate Administrator, patent Care services, L V Prasad Eye Hospital to the Account officer ( Cash ), GMTD, BSNL, Ongole, it is mentioned that Lasik surgery is not listed under CGHS of surgeries. As per medical literature, In a LASIK procedure, a laser is used to reshape your cornea the clear, round dome at the front of your eye to improve the way your eye focuses light rays onto your retina. LASIK is shorthand for laser-assisted in situ keratomileusis. LASIK or Lasik (Laser-Assisted in situ Keratomileusis), commonly referred to as laser eye surgery, is a type of refractive surgery for the correction of myopia, hyperopia, and astigmatism. The LASIK surgery is performed by an ophthalmologist who uses a laser or microkeratome to reshape the eye's cornea in order to improve visual acuity. For most patients, LASIK provides a permanent alternative to eyeglasses or contact lenses.[2] Major side effects include halos, starbursts, night-driving problems, keratoconus (corneal ectasia), and eye dryness. LASIK is most similar to another surgical corrective procedure, photorefractive keratectomy (PRK), and both represent advances over radial keratotomy in the surgical treatment of refractive errors of vision. For patients with moderate to high myopia or thin corneas which cannot be treated with LASIK and PRK, the phakic intraocular lens is an alternative. In the case on hand, there is no dependable evidence from the side of Ops that the said Lasik surgery which was being conducted with the assistance of laser can be treated as cosmetic surgery. The said surgery proceedings were undertaken to correct the inherent defect in the eye sight with the assistance of laser and hence it cannot be treated as cosmetic surgery. Therefore, the refusal of reimbursement is not justified. Hence in the circumstances of the case the appeal is liable to be allowed allowing the complaint for reimbursement of the medical expenses.
12. In the result, the appeal is allowed setting aside the order of the District Forum and consequently the complaint is allowed in part directing the opposite parties 1 to 3 jointly and severally to pay Rs.22,400/- recovered the medical advance amount from the salary of the complainant in the months of October and November, 2010 @ Rs.11,200/- per month and also costs of Rs.2,000/- throughout within one month from the date of receipt of the order. Remaining claim of the complainant stands dismissed. Time for compliance (4) weeks.
MEMBER MEMBER DATED 22.05.2013