Central Administrative Tribunal - Bangalore
K Gireesha vs Income Tax Department on 23 August, 2024
1 OA 593/2023/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00593/2023
DATED THIS THE 23RD DAY OF AUGUST, 2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
Shri K.Gireesha,
Retired Additional Commissioner
Of Income Tax (Assessment Unit-1(1),
Mysuru,
Presently residing at 'Sphoorti, No.972,
12th 'A' Cross Roopanagar,
Mysuru-570026. ...Applicant
(By Advocate, Ms.Kumari M.)
Vs.
1. The Union of India,
Department of Finance (Revenue),
No.128A, North Block,
New Delhi -110001.
Rep. by its Secretary.
2. The Government of India,
Department of Personnel and Training,
Loknayak Bhavan,
Khan Market,
New Delhi-110001,
Rep. by its Secretary.
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3. The Central Board of Direct Taxes,
North Block,
New Delhi 110001,
Rep. by its Chairman.
4. The Principal Chief Commissioner
of Income Tax,
Karnataka and Goa Region,
Central Revenue Building,
Queens road,
Bangalore -560001. ...Respondents
(By Advocate, Shri Vishnu Bhat for Respondents No.1to4)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant retired as Additional Commissioner of Income Tax upon attaining the age of superannuation on 31.05.2023, is before this Tribunal seeking the following reliefs:
"i) Call for records relating to the claim of the Applicant for reimbursement of expenses towards Cochlear Implant Surgery done to his daughter and;
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ii) Direct the 3rd respondent to sanction claim/reimbursement of medical expenses towards the Cochlear Implant Surgery done to the applicant's daughter on 24.09.2014, as claimed by him, in a sum of Rs.12,80,750/- along with General Provident Fund rate of interest and;
iii) Pass such other order/s, as this Hon'ble Tribunal deem fit to grant, in the facts and circumstances of the case, in the interest of justice and equity."
2. Briefly stated the facts as narrated by the applicant are that he sought for reimbursement of medical expenses of Rs.12,80,750/- with respect to Cochlear Implant Surgery done to his daughter, Ms.K.Suma Bhat on 24.09.2014 at Cumballa Hill Hospital, Mumbai, but the same has not yielded any positive response.
3. The applicant claims that his daughter had hearing impairment in both the ears since her birth. The applicant had series of correspondence with Income Tax Department with respect to the medical claim for the Cochlear Implant Surgery done to his daughter. The Commissioner of Income Tax has sanctioned advance of Rs.2,00,000/- to the applicant to meet the expenses 4 OA 593/2023/CAT/BANGALORE BENCH towards the said surgery of his daughter and stated that the said sum would be adjusted with the final bill within one month from the date of the treatment. The surgery was done on 24.09.2014 at Cumballa Hill Hospital, Mumbai. On the request/representation submitted by the applicant seeking for the reimbursement of the medical expenses incurred towards the Cochlear Implant Surgery of his daughter, initially some clarifications were sought for but no amount has been reimbursed as claimed. Hence this OA.
4. Learned Counsel Ms.Kumari M., representing the applicant reiterating the grounds urged in the application submitted that the benefit claimed for carrying out the Cochlear Implant Surgery to the applicant's daughter by Dr.Milind V. Kirtane, a Specialist ENT Surgeon at Cumballa Hill Hospital, Mumbai, was during the course of his employment which comes within the purview of the service benefits. The respondents having sanctioned an advance amount of Rs.2,00,000/- to enable the applicant to meet the expenses towards Cochlear Implant Surgery to his daughter, Ms.K.Suma Bhat, now cannot turn around and deny 5 OA 593/2023/CAT/BANGALORE BENCH the same on flimsy grounds. The age limit of 16 years provided in the OM dated 12.06.2009 (Annexure R1)- Guidelines for Cochlear Implant Surgery, is relaxable in cases of children using hearing aids and getting auditory training from age one years of less, may be considered at higher age also on a cases to case basis. Placing reliance on the medical certificate issued by the Ministry of Health and Family Welfare, Government of India to Ms.K.Suma Bhat, daughter of the applicant, learned counsel submitted that she had the hearing loss in both ears by birth and as such notwithstanding she has completed 16 years of age on the date of Cochlear Implant Surgery i.e., 24.09.2014, the applicant is entitled to claim reimbursement of medical expenses incurred towards said Cochlear Implant Surgery. The Cochlear Implant Surgery was done with the approval of the Income Tax Commissioner, Mysuru. Consultation was done with the specialist Surgeon in July, 2014 and details of the same were communicated to the Commissioner of Income Tax and approval was secured. The Standing Committee has failed to consider the request of the applicant in a right perspective. It is only a misconceived information that no relaxation is permissible 6 OA 593/2023/CAT/BANGALORE BENCH since the patient has completed 16 years of age at the time of Cochlear Implant Surgery. The Committee has come to the conclusion that no recommendation for ex-post facto approval of implant could be made. The laudable object of Assistance to Persons with Disabilities for Purchase/Fitting of Aids and Appliances (ADIP) Scheme has to be achieved. The same cannot be rejected on technicalities. The applicant being retired Government servant is solely dependent on his pension and is entitled for reimbursement of medical expenses actually incurred for the surgery of his daughter. Hence seeks for interference of this Tribunal.
5. Learned Counsel Shri Vishnu Bhat representing the respondents submitted that the OM dated 12.06.2009 issued by the Ministry of Health and Family Welfare has stipulated the following conditions for reimbursement of medical bills for Cochlear Implant Surgery:
7 OA 593/2023/CAT/BANGALORE BENCH i. Cochlear Implant Surgery should be allowed only in Government hospitals having proper post-operative rehabilitation.
ii. Reimbursement for Cochlear Implant Surgery will be permitted only after the request has been approved and recommended by a Standing Committee set up in this regard. iii. Prior permission has to be obtained from Directorate General of Health Services, New Delhi, in respect of CS(MA) beneficiaries.
Vide letter dated 14.08.2014, the Board was requested to obtain the approval of the Standing Committee as stipulated by MoH&FW in OM dated 12.06.2009. In the meanwhile, the applicant was sanctioned medical advance of Rs.2,00,000/- on 14.08.2014 by the Commissioner of Income Tax, Mysuru. As per the OM dated 12.06.2009, the ceiling rate for Cochlear Implant Surgery is fixed at Rs.5,35,000/- for reimbursement. It is also mentioned that for children above the age of 10 years, but below 16 years, only 50% of the ceiling rate for the implant will be reimbursed. Since an 8 OA 593/2023/CAT/BANGALORE BENCH amount of Rs.2,00,000/- has already been sanctioned as medial advance to the applicant, the claim of medical reimbursement of Rs.12,80,750/- made by the applicant is not acceptable. There are no guidelines for reimbursement of cost of Cochlear Implant for the case where the patient completed 16 years of age. Admittedly, the patient has already completed 16 years of age at the time of the surgery. The applicant had got the surgery done in a private hospital, Mumbai. The Cochlear Implant Surgery being a planned surgery, the applicant could have obtained prior approval for the surgery as it is not an emergency. The Board has referred the matter to the Ministry for advice. The Ministry refused to give ex- post facto approval on the proposal for reimbursement of the medical claim of the applicant after examining the records. Hence the applicant is not entitled for any reliefs claimed and accordingly seeks for rejection of the OA.
6. Heard the learned Counsel for the parties and perused the material on record.
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7. The claim of the applicant relates to the medical expenses incurred with respect to Cochlear Implant Surgery done to his daughter, Ms.K.Suma Bhat on 24.09.2014 at Cumballa Hill Hospital, Mumbai - a non-Government hospital. It is not in dispute that the date of birth of Ms.K.Suma Bhat, applicant's daughter is 31.03.1998. As on the date of surgery, the age of the applicant's daughter was around 16 years 6 months. Placing reliance on the OM dated 12.06.2009 (Annexure R1), the respondents contend that the age group for reimbursement of medical expenses for Cochlear Implant Surgery was between 1 to 16 years, since the applicant's daughter had crossed the age of 16 years on the date of the Cochlear Implant Surgery, his claim for reimbursement is not valid. Clause-(1)(i)(a) of the guidelines for Cochlear Implant Surgery - Selection criteria for Cochlear Implant, as prescribed in OM dated 12.06.2009 (Annexure R1) reads thus:
"1. Selection criteria for Cochlear Implant:
(i) Prelinqually deaf children (severe to profound B/L, S.N.H.loss) 10 OA 593/2023/CAT/BANGALORE BENCH
a) Age group between 1 to 16 years. However, children using hearing aids and getting auditory training from age 1 years of less may be considered at higher age also on a case to case basis;"
Harmonious reading of this clause with the medical certificate of the patient, Ms.K.Suma Bhat, issued by the Ministry of Health and Family Welfare, Government of India dated 31.10.2016 indicates that she had Bilateral profound mixed Hearing loss since by birth, as such the age relaxation to the age group prescribed between 1 to 16 years, could be relaxable. The applicant's daughter, Ms.K.Suma Bhat was over aged approximately by 6 months at the time of surgery than the prescribed age group ordinarily applicable. Since she was disabled with loss in both the ears since birth and was using hearing aid and hearing assistance, certainly her case would be considered for reimbursement. Further in the said OM dated 12.06.2009 in Clause-5 ceiling rate is prescribed as under:
"5. Ceiling Rate:
The ceiling rate for cochlear implant shall be Rs.5,35,000/- (Rupees Five Lakh thirty five thousand only) for reimbursement of cost of cochlear implant with 12 11 OA 593/2023/CAT/BANGALORE BENCH channels/24 electrodes with behind the ear speech processor.
The best results are achieved if cochlear implants take place between the age of 1-5 years. Hence, it is, therefore, proposed to permit reimbursement in a graded manner. In the pre-lingual deafness, total reimbursement of the ceiling rate or actual, whichever is less, for cochlear implant will be allowed in respect of implants carried out on children aged between 1 and 5 years. For children between the age of 5 and 10 years, 80% of the ceiling rate for implant will be reimbursed. For children above the age of 10 years, but below 16 years of age, only 50% of the ceiling rate for the implant will be reimbursed."
8. In terms of the said ceiling rate specified for children above the age of 10 years but below 16 years of age, only 50% of the ceiling rate for Cochlear Implant will be reimbursed. The ceiling rate for Cochlear Implant is fixed at Rs.5,35,000/- only.
9. It is not in dispute that an advance of Rs.2,00,000/- has been sanctioned by the respondents to enable the applicant to meet the expenses towards the Cochlear Implant Surgery to his daughter, Ms.K.Suma Bhat. Even assuming that the guidelines prescribed 12 OA 593/2023/CAT/BANGALORE BENCH that Cochlear Implant Surgery should be allowed only in Government Hospitals having proper post-operative rehabilitation and reimbursement to Cochlear Implant Surgery will be permitted only after the request has been approved and recommended by the Standing Committee, could be relaxed as per Clause-1(i)(a) of the guidelines prescribed in OM dated 12.06.2009 and Cochlear Implant Surgery was not available during the relevant period in any Government Hospital with post operative rehabilitation, the ceiling rate prescribed therein comes in the way of the applicant to claim the actual medical expenses incurred towards his daughter's Cochlear Implant Surgery. The same has to be considered in terms of OM dated 12.06.2009. If giving beneficial interpretation to Clause-1(i)(a) in favour of the applicant, considering the amount of advance of Rs.2,00,000/- already granted, the applicant would be entitled to 50% of Rs.5,35,000/- ceiling rate prescribed i.e., Rs.2,67,500/-. After deducting the amount of advance Rs.2,00,000/- sanctioned as per Annexure A3, the applicant is entitled to Rs.67,500/- as against Rs.12,80,750/- claimed.
13 OA 593/2023/CAT/BANGALORE BENCH Hence the following:
O R D ER
1) The Respondent No.3 is directed to sanction and reimburse the medical expenses of Rs.67,500/- (Sixty Seven thousand and Five hundred only), the balance amount out of the entitled amount of Rs.2,67,500/- as per the Clause-5 of the OM dated 12.06.2009 (Annexure R1) (Rs.2,67,500/- (-) Rs.2,00,000/- (Medical advance paid) = 67,500/-), towards the Cochlear Implant Surgery done to the applicant's daughter on 24.09.2014, as against the claim of Rs.12,80,750/- made by the applicant.
2) Compliance shall be made in an expedite manner in any event not later than twelve weeks from the date of receipt of the certified copy of the order.
3) OA stands disposed of in terms of above.
No order as to costs.
(JUSTICE S.SUJATHA) MEMBER(J) sd.
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