Central Administrative Tribunal - Ernakulam
N.R.Purushothaman Pillai vs Union Of India Represented By Its ... on 18 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.1053/10
Friday this the 18th day of November 2011
C O R A M :
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
N.R.Purushothaman Pillai,
Enforcement Officer (Rtd.),
Anandanjali, PGRA 19,
Panchami Gardens,
Jagathi, Trivandrum - 14. ...Applicant
(By Advocate Mr.C.S.G.Nair)
V e r s u s
1. Union of India represented by its Secretary,
Ministry of Health, New Delhi.
2. The Director General,
Central Government Health Scheme, New Delhi.
3. Joint Director,
Central Government Health Scheme,
Pattom, Trivandrum - 4. ....Respondents
(By Advocate Mr.George Joseph,ACGSC)
This application having been heard on 8th November 2011 this
Tribunal on 18th November 2011 delivered the following :-
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The applicant, a retired pensioner, covered under Central Government Health Scheme, had to undergo a treatment called 'Cytotron Therapy', for his ailment in the knees, for which, he has claimed certain reimbursement of medical expenses. The total amount comes to Rs.1,01,973.84. The treatment was undertaken in a Government recognized hospital called Gautham Hospital. The office of the CGHS, Trivandrum vide Annexure A-7 order dated 6.1.2010 rejected the claim stating that the Cytotron Therapy is not reimbursable. Hence this application praying for the following reliefs :-
1. To call for the records leading to the issue of Annexure A-7 and quash the same.
2. To direct the respondents to reimburse the medical claim for the treatment of Cytotron for Osteoarthritis obtained by the applicant in Gautham Hospital, Cochin within a stipulated period.
2. The respondents have contested the O.A. According to them, the Cytotron Therapy is not reimbursable. Again they have referred the matter to Professor and Head of Department of Physical Medicine and Rehabilitation, Medical College Hospital, Trivandrum who had opined that the applicant's treatment was more in the nature of research programme for which results are not guaranteed. It is an alternative treatment to knee replacement. (Annexure R-1 refers).
3. The applicant has filed his rejoinder forwarding a copy of Annexure A-8 letter dated 3.9.2011 in which the Gautham Hospital has categorically denied that the treatment is one of research in character. In fact, the applicant happens to be the 97th patient on whom the aforesaid treatment was effected.
4. The respondents have filed an additional reply statement wherein they have annexed certain communications regarding Electronics and Radar Development relating to the instruments used in the treatment.
5. Counsel for the applicant vehemently argued that the treatment in question happens to be one of the latest treatments and an alternative for the knee replacement which is much more costlier. Obviously reference to that treatment would not figure in the orders relating to reimbursement of medical expenses for various treatments. As it is, provision exists for reimbursement of medical expenses in respect of knee problems and the applicant has been subjected to such a knee ailments for which he took the Cytotron Therapy. The applicant being 78 years of age will not be able to sustain any knee replacement and with the Cytotron Therapy he is now able to walk. The institution in which the applicant had undergone the treatment is again a CGHS recognized institution and as such there should not be any impediment in considering the case of the applicant for reimbursement. Insofar as Annexure R-1 is concerned, counsel submitted that the Professor and Head of Department has candidly stated that she has got no exposure to the said treatment and her opinion has been stoutly denied by Gautham Hospital which conducted the therapy upon the applicant. As regards Annexure R-2, counsel for the applicant submitted that scientific data etc. referred to therein relates to the equipment concerned and not with reference to the treatment given to the applicant.
6. Counsel for the respondents echoed the contentions as contained in the counter as well as additional reply statement.
7. Arguments were heard and documents perused. The following are the admitted facts :-
(a) The applicant is a retired pensioner and he is entitled to CGHS facility.
(b) His ailment is related to the knee for which medical expenses are reimbursable in general.
(c) He undertook the treatment at Gautham Hospital which again is recognized by the Government.
(d) The applicant's treatment was an alternative to knee replacement.
8. The stand of the respondents is that the Cytotron Therapy is not reimbursable. This decision has been communicated to the applicant by CGHS, Trivandrum. It could be understandable, if the decision is by the Director General of Health Services at New Delhi, in which event, it could be applicable to all covered by Central Government Health Scheme. It is not exactly known at which level the decision was taken that the Cytotron Therapy is not reimbursable. If the impugned order is based on the fact that there has been no reference to the treatment in the relevant Government instructions/rules, equally there being no specific prohibition, the matter has to be considered by the Director General especially when the treatment happens to be one of recent origin. There is no need to enter into the controversy whether the treatment undergone by the applicant is one in the nature of experiment or it is after successful experiment that he has been subjected to such therapy (according to the Gautham Hospital he is the 97th patient). The fact remains that the applicant has been full beneficiary of the treatment and provision exists for medical expenses to be reimbursed in respect of knee ailments. If the said Cytotron Therapy happens to be a proper alternative for knee replacement which is more costlier, it is for the Director General to consider the same and depending upon the extent of expenses involved, rates may be prescribed, if not already done. Consideration should, therefore, be at the level of Director General, Health Services so that uniform order could be issued by the Director General, Health Services, New Delhi.
9. In view of the above, the Original Application is disposed of with the direction to the 3rd respondent to transmit all the documents relating to the applicant's claim to the Director General, Central Government Health Scheme, New Delhi so that the latter shall consider the same keeping in view the decision of the Apex Court in respect of claims of medical reimbursement in the following cases :-
(a) State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117, wherein the Apex Court has held as under :-
29. No State of any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
(b) Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399. This was however, in connection with the challenge as to whether there should be no one time payment at all by the Ex Servicemen for their medical treatment and should the government bear the full amount.)
(c) State of Punjab v. Mohan Lal Jindal, (2001) 9 SCC 217, after referring to 'Ram Lubhaya Bagga' the Apex Court has observed as under :
It was however, vehemently submitted by learned counsel for the respondent that exception deserves to be made in this case as the respondent who was a Teacher could not afford such huge medical expenses which had to be incurred by him due to long queue for bypass surgery in the AIIMS Hospital and he had to go to other hospital. It is further submitted by learned counsel for the respondent that the appellants may consider his grievance. He may submit such a representation on compassionate grounds. We have no doubt that such a representation will be sympathetically considered by the appellant authorities on its own merits. The judgment of the High Court will stand modified to the extent indicated herein.
(d) Secy. Irrigation & Power, Govt. of Punjab vs Surjit Singh (1999) 9 SCC 219, the Apex Court has permitted retention of excess amount if paid as reimbursement to the employee.
(e) In K.B. Singh vs Union of India (2001) 10 SCC 1678, the observation of the Apex Court is as under :-
6. The last grievance, and it is of some note, is that a beneficiary of the Scheme will receive reimbursement only at the rate approved by the CGHS, regardless of the fact that in his particular town or city there are only private hospitals and no government hospital; there is, therefore, no option for him but to enter a private hospital for such treatment. It is also submitted that the approved rates are not updated by the CGHS from time to time so that what the beneficiary receives by way of reimbursement can be substantially less than the cost that has actually been incurred upon his hospitalisation.
While there is, we think, merit in the submission, it is not for us to dictate what should be done. We direct that the Union of India shall immediately consider this aspect and give appropriate directions thereon. It would clearly be appropriate for it to update its approved rates on an annual or, at least, biennial basis.
(f) In the case of State of Karnataka v. R. Vivekananda Swamy, (2008) 5 SCC 328, the Apex Court has held as under :-
20. Law operating in this field, as is propounded by courts from time to time and relevant for our purpose, may now be taken note of.
21. In Surjit Singh v. State of Punjab this Court in a case where the appellant therein while in England fell ill and being an emergency case was admitted in Dudley Road Hospital, Birmingham. After proper medical diagnosis he was suggested treatment at a named alternate place. He was admitted and undergone bypass surgery in Humana Hospital, Wellington, London. He claimed reimbursement for the amount spent by him. In the peculiar facts of that case it was held :
"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 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 rakshetpunyakarmaani 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 naatmaanamahitebhyo nivaarayet
Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself."
In the above case as well, the Apex Court approved provisions of relaxation in the Rules and in fact the Apex Court under the facts and circumstances of that case as well as another case of Rajasthan, invoked the provisions of Art. 142 of the constitution.
(g) In the case of Government of Haryana s Vidya Sagar (2009) 14 SCC 652 the Apex court has qualified the act of full reimbursement of medical expenses in respect of heart treatment as an act of "magnanimity"
10. The decision of the Director General shall be arrived at within a period of two months from the date the 3rd respondent forwards the paper to him. The 3rd respondent shall within a period of six weeks from the date of communication of this order forward the case for consideration by the Director General, Health Services.
11. With the above directions, the Original Application is disposed of. No costs.
(Dated this the 18th day of November 2011) Dr.K.B.S.RAJAN JUDICIAL MEMBER asp