Central Administrative Tribunal - Delhi
Yogesh Nirala vs Union Of India on 18 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.437/2014
M.A. No.401/2014
Order reserved on: 05.02.2015
Order pronounced on: 18.02.2015
Honble Mr. G.George Paracken, Member (J)
Yogesh Nirala
S/o Late Shri Murli Dhar Sharma,
Age about 48 years,
Chief Loco Inspector, Northern Railway,
Head Quarter office, Baroda House,
New Delhi.
R/o H. No. M-184, Sector-12,
Pratap Vihar, Ghaziabad. -Applicant
(By Advocate: Shri Gaya Prasad)
Versus
1. Union of India, through
General Manager,
Northern Railway, Head Quarter office,
Baroda House, New Delhi.
2. Chief Medical Director,
Northern Railway, Head Quarter office,
Baroda House, New Delhi.
3. Dy. Chief Medical Superintendent,
Northern Railway, Head Quarter office,
Baroda House, New Delhi.
4. Chief Medical Superintendent,
Northern Railway,
Divisional Hospital, Delhi. -Respondents
(By Advocate: Shri A.K. Srivastava)
O R D E R
In this Original Application, the applicant has challenged the Annexure A-1 order of the Chief Medical Superintendent, Northern Railway, Divisional Hospital, Delhi dated 17.07.2012, rejecting his request for reimbursement of the medical expenses incurred by him on the following grounds:-
Case of Duchene Muscular Dystrophy, underwent stem cell therapy at Pvt. Hospital in Pune. This is a chronic illness and emergency as per RB policy cannot be justified. Claim is hence rejected.
2. The brief facts of the case are that the applicant is working as Chief Loco Inspector, Northern Railway, New Delhi. His son Kapil Nirala has been suffering from the serious disease of Duchene Muscular Dystrophy (DMD), from the time of his birth. As a result, the following deficiencies were developed in him:-
1. Bilateral Tendoachillis Tightness
2. Bilateral Equinusvarus Deformity (40-45 degree) 3. Bilateral ilipsoas Tightness
4. Bilateral Rectus femoris Tightness
5. Bilateral adductors
6. Bilateral Finger Flexor
7. Poor Balance
8. Bilateral Pes Planus
9. Kyphoscoliosis
10. Bilateral FFD of knee (50-55 degree)
3. When he was three years old, it was noticed that his growth was not normal and the applicant approached the Central Hospital, Northern Railway, New Delhi for diagnosis and treatment. As there is no treatment available with them, they have referred his son to All India Institute of Medical Sciences (AIIMS) for specialized treatment and they have also diagnosed his disease as DMD and referred him to their doctors Rohit Bhatia & Sumit Singh. There he was getting treatment from 28.07.1999. As no proper treatment was made available to his son even in AIIMS, he consulted Santosh Medical & Dental Hospital, Ghaziabad and Rajpur Orthopaedic Centre, Bombay and he got his son examined on 11.11.2009 and 28.11.2009 respectively. Again, as he did not get any proper treatment from them also, he approached the centre at Chaitanya Hospital and Nursing Home, Pune, and got his son admitted there during the period from 17.11.2011 to 29.11.2011. They administered him the Stem Cell doses for the treatment during the said period. The Hospital charged him Rs. 4 Lacs for four doses of Stem Cell Therapy administered on his son. As per their advice, he was again admitted in the said Hospital from 16.02.2012 to 15.03.2012 for further treatment and charged further amount of Rs. 3 Lacs. Thereafter, the applicant submitted his claim for reimbursement of the total amount of Rs. 7 Lacs to the Chief Medical Superintendents, Delhi on 14.04.2012. But the respondents rejected his request vide the impugned letter dated 17.07.2012 stating that his son was suffering from chronic illness and the treatment was not on any emergency basis as per Railway Board policy. The applicant filed an appeal on 30.07.2012 against the said decision to the Chief Medical Director (Respondent No.2) but despite several reminders sent to him, he has not considered the same. He has also stated that as he could not afford to take his son for continued treatment in Chaitanya Hospital and Nursing Home, Pune, he expired on 15.11.2013.
4. According to the applicant, the rejection of his claim for reimbursement of the medical expenses incurred by him by the Respondent No. 2 that DMD is a chronic disease and there was no emergency for his treatment by administering Stem Cell Therapy is arbitrary and illegal as he had to rush his son to the private hospitals in his critical condition as he did not get proper treatment from the Railway Hospitals as well as from the AIIMS. He has also stated that as per the Railway Boards own instructions contained in their letter No.2005/H/6-4/Policy-II dated 31/07/2007 Emergency shall mean any condition or symptom resulting from any cause, arising suddenly and if not treated at the early convenience, be detrimental to the health of the patient or will jeopardize the life of the patient. Further, according to him, there was no alternative as has been certified by Countrys top Hospital, namely, the AIIMS. He was, therefore, forced to avail the facility from private Hospital which was made available on emergency to save the life of his son as the delay in treatment would have proved fatal.
5. Respondents have filed their reply stating that the illness being suffered by the applicants son Master Kapil Nirala, namely, DMD was a congenital disorder where the child presents with progressive muscle weakness. The average life expectancy in such cases is about 25 years. His son underwent Stem Cell Therapy w.e.f. 17.11.2011 to 30.11.2012 and then 16.02.2012 to 15.03.2012 in the private hospital and incurred a total medical amount of Rs.7 Lacs. His claim for reimbursement was rejected by the respondents on 17.07.2012 and again on 16.11.2012 on the ground that the aforesaid disease is a chronic condition and emergency cannot be justified for such treatment. They have also relied upon the Railway Board policy No. 2005/H.16-4/Policy dated 31.01.2007 wherein it has been held that only in emergency conditions, claims for treatment are to be considered for sanction of reimbursement.
6. Further, they have submitted that on the instructions of the Headquarter Office, the applicant was asked to bring his son to the office of CMS/DLI for assessing the effect of Stem Cell Therapy and accordingly he was brought to the Northern Railway Divisional Hospital on 10.09.2013. The office of the CMS/DLI has stated that the child was bedridden, unable to sit up on his own. There appeared to be no significant improvement after Stem Cell Therapy. The aforesaid information was conveyed to the CMD vide letter dated 23.09.2012. They have also stated that the cause of the death of the applicants son was due to natural progression of the disease as the average life of the patient is only 25 years. They have also stated that the Stem Cell Therapy given to the applicant did not show any improvement in his condition. Again, they have stated that the Stem Cell Therapy for various illness is in experimental stages with no documented benefits. As is evident from the Medical Certificate issued by the Chaitanya Hospital on 15.03.2012, as a dead-end patient, we can certainly try Stem Cell transplantation of healthy genes of cord Mesenchymal cells, they have also stated that the applicant had travelled upto Pune for the treatment of his son and in such a situation the emergency as defined by Railway Boards letter No.2005/H/6-4/policy dated 31.01.2007 does not arose.
7. I have heard Shri Gaya Prasad, learned counsel for the applicant and Shri A.K. Srivastava, learned counsel for the respondents. I have also perused the entire documents available on record. It is an admitted fact that the applicants son was suffering from DMD. He had approached both the Railway Hospital and AIIMS for his treatment but he did not get proper treatment from both those hospitals. The respondents themselves have stated that there is no confirmed treatment procedure for the aforesaid disease and the Stem Cell Therapy is experimented on such patients. The further contention of the respondents is that the aforesaid disease is a congenital one and the life of the patient is not more than 25 years. In my considered view, no parent can leave his child to die just because the life span of the patients suffering from such disease is only for a limited period. Therefore, there was no option for the applicant but to seek whatever medical facilities are available in the field for the treatment of his son. As a parent, he did what he could have done to save his son, as far as possible. I, therefore, cannot subscribe to the stand of the respondents that the applicants son should have been left to his death by the natural progression of his disease. The life of the child is precious to all parents. The anxiety of the applicant to save his son some how or the other is quite understandable. Therefore, he knocked at every possible doors. Unfortunately he could not save his son as could not afford to have the continued expensive treatment and unfortunately he succumbed to his disease. In the said situation, the department could not have taken such a mechanical and inhuman attitude. In my considered view, case of the applicant is a very peculiar one and it needed special consideration as the same is not envisaged by the Policy of the Railway Board. Therefore, the respondents could not have rejected his request for the reimbursement of the medical expenses incurred by him applying the definition of emergency provided in their policy. Right to life as provided under Article 21 of the Constitution is the most fundamental right and it includes health.
9. I in the above facts and circumstances of the case, allow this O.A. and direct the respondents to reimburse the medical expense of 7 Lacs incurred by the applicant for the treatment of his son, within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(G. George Paracken) Member (J) cc.