Central Administrative Tribunal - Ernakulam
Madhubashini Mohan vs The General Manager Southern Railway Hq ... on 26 May, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00947/2019
Thursday, this the 26th day of May 2022
C ORAM :
HON'BLE Mr. K. V. EAPEN, ADMINISTRATIVE MEMBER
Madhubashini Mohan, aged 61 years, W/o. K. Mohan,
Retired Office Superintendent, O/o. Sr. DEE/OP/PGT,
Palghat Division, Southern Railway,
Residing at Mohanam, Ambalapuram, West Yakkara, Palghat
- Applicant
(By Advocate: M/s. Varkey & Martin)
versus
1. Union of India represented by the
General Manager, Southern Railway,
Park Town P.O., Chennai - 3.
2. The Chief Medical Superintendent,
Railway Hospital, Southern Railway,
Palghat Division, Palghat - 675002.
3. The Senior Divisional Personnel Officer,
Southern Railway, Palghat Division, Palghat
675002.
4. The Chief Medical Director,
Southern Railway, Medical Department,
Moor Market Complex, 4th Floor,
Chennai - 600003. - Respondents
(By Advocate: Mrs. O. M. Shalina, SCGSC)
This application having been heard on 19.04.2022, the
Tribunal on 26.05.2022 delivered the following :
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ORDER
Per : Mr. K. V. EAPEN, ADMINISTRATIVE MEMBER The applicant in this O.A is a retired Office Superintendent of the Palakkad Division of Southern Railway. She had retired on 31.05.2019 after more than 35 years of service. She is aggrieved by the rejection of the claim submitted by her for reimbursement of medical expenses incurred for her dependent daughter Miss Nisha Mohan for undergoing Renal Transplantation due to advanced renal failure. The Railways, vide their letter dated 18.07.2019, produced as impugned order at Annexure A5 have returned the medical claim for reimbursement along with all papers submitted by the applicant for the treatment during the period from 12.01.2016 to 27.01.2016 at Lakeshore Hospital, Cochin. It is stated in the impugned letter that in the 'Guidelines for Renal Transplant', the Railway Board has defined Renal Transplant as a planned procedure and not an emergency procedure. It is also stated therein that the Railway Board had advised that all renal transplant patients should be referred to suitable government hospitals or the nearest recognised private hospitals only. It is further mentioned in the letter that M/s. Kaliappa Renal Centre Private Ltd., Chennai 28 has been recognised by Railway Board for bills system of payment for renal transplantation for railway beneficiaries during that period. However, in the instant case, it is seen that the Railway beneficiary on her own violation preferred renal transplant without being evaluated and recommended by Railway Doctors. Further, it is stated that in terms of Railway Board letter no. 2005/H/64/Policy.II dated 31.01.2007 and item 5 b(i) of SOP on Medical Matters, only emergent cases are to be reimbursed -3- for medical expenses. Further, the emergency for undergoing the above procedure has not been certified.
2. The applicant is aggrieved by the above action of the respondents taken through the letter at Annexure A5 turning down her case. She submits that Miss Nisha Mohan is her 2nd child and her date of birth is 03.06.1982. From the time of her birth, Miss Nisha Mohan has been suffering from renal related illness. She has had to undertake medical treatment and surgeries without any respite throughout her life. Miss Nisha Mohan has been suffering renal failure from 2015 onwards. Her life has been supported only by frequent and constant dialysis. It is submitted that there isn't an adequate facility at Railway Hospital at Palghat to treat such patients and, therefore, quite often the applicant had taken advice of the second respondent (Chief Medical Superintendent Railway Hospital, Palakkad). The second respondent had referred the patient to Railway Hospital Perambur, Chennai. Dr. Umashankar, Urologist, at the Railway Hospital Perambur evaluated the applicant's daughter's treatment and, as instructed by the doctor, her daughter continued treatment at Lakeshore Hospital and Research Center at Kochi. Hence, it was accepted that the applicant's daughter had been suffering from advanced renal failure and that the only option available was a renal transplantation. As the applicant could not find a matching donor among her family relatives and the waiting list for cadaver renal transplantation in Kerala State is very long, the help of altruistically inclined unrelated donors was sought. After lot of effort the applicant could finally get a willing donor, who came forward to donate the organ to save the life -4- of the applicant's daughter. After obtaining the approval of Authorization Committee of the State Government for organ transplantation, the applicant's daughter was admitted at Lakeshore Hospital, Kochi on 12.01.2016. The Renal transplantation was then successfully conducted on her daughter. The patient recovered from the complications of the transplantation gradually and was finally discharged from the hospital. It is submitted that the applicant incurred an overall expenditure of Rs. 8,11,446.97 for the period from 12.01.2016 to 27.01.2016 in this regard. A true copy of the summary medical bill has been produced as Annexure A3. The applicant submits that, being eligible for the reimbursement of medical expenses, she submitted a claim (as at Annexure A4) dated 10.12.2016 for reimbursement to the 2nd respondent after following all procedures. All the relevant documents were submitted in original. However, almost three years after submitting the claim for medical reimbursement, the applicant was shocked to receive the letter dated 18.07.2019 at Annexure A5 issued by the 2nd respondent rejecting her claim.
3. The applicant submits that the reasons stated in Annexure A5 are based on the observations of the audit/finance department and not those of the second respondent (Chief Medical Superintendent, Railway Hospital, Palghat Division). After this letter was received the applicant gave another representation to the 2nd respondent, detailing the entire treatment undergone by her daughter as well as the reimbursement of medical expenses granted to her in the past. It is submitted that the 2 nd respondent had actually recommended the claim of the applicant for the medical -5- reimbursement and had also requested the Sr. Divisional Finance Manager to concur with an amount of Rs. 3,00,000 and to obtain sanction from the 4 th respondent (The Chief Medical Director, Southern Railway, Chennai). This letter of the 2nd respondent has been produced at Annexure A7. The applicant has also produced an essentiality certificate issued by the 2 nd respondent while forwarding the applicant's claim at Annexure A8.
4. It is the main contention of the applicant that the reasons stated in Annexure A5 to reject her claim are unjust and untenable. She submits that the renal transplantation was conducted as a life saving measure. There is no facility in the Railway Hospital at Perambur for renal transplantation and it was advised there to conduct the renal transplantation in the hospital where the applicant's daughter had been undergoing treatment for a long time. It is also submitted by the applicant that the expenditure for renal transplantation at M/s. Kaliappa Renal Centre Private Ltd., Chennai, the hospital referred to in Annexure A5 letter, is more or less the same as in Lakeshore Hospital, where the applicant's daughter had undergone the renal transplantation, if not more. It is also submitted that as per the rules applicable to the State of Tamil Nadu, the donor of the organ has to be a blood relative thus making it impossible for applicant's daughter to undergo renal transplantation in Tamil Nadu. The applicant has therefore no other option other than to approach this Tribunal for justice. It is further submitted that the respondents have a constitutional obligation to bear the expenses incurred by a dependent of a Government servant for medical treatment and, as such, the respondents are not justified in refusing to disburse the entire expenditure incurred by the -6- applicant for the medical treatment. Finally, as per the Supreme Court directions dated 13.04.2018 in W.P. (C) No. 694 of 2015 Shiva Kant Jha v Union of India, AIR 2018 SC (W) 1975, it has been laid down that it is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. Further, if the treatment has been undergone in a private medical institution as an emergency measure, it is incumbent on part of respondent to disburse the entire amount incurred by the employees, provided the treatment was necessary.
5. In the reply statement filed by the respondents it is submitted that, while the respondents have taken all humanitarian care in dealing with the case of the applicant, no reimbursement can be given as the case of the applicant has not met the basic conditions required for such reimbursement. It is submitted that paragraphs 647 & 648 of Indian Railway Medical Manual (IRMM) 2000 (Vol-I) lay down the conditions for reimbursement of medical expenses at the instance of the Authorised Medical Officer. Paragraph 647 of the IRMM deals with the reimbursement which would be allowed if medical attendance and/or treatment for himself or for a member of his family or dependent relatives is at the instance of the Authorised Medical Officer. Further, Paragraph 648 of the IRMM lays down conditions for reimbursement of medical expenses for treatment in an emergency. It is submitted that the M/o Railways had modified Paragraph 648 by adding the sub-para (3) after the existing sub-para (2). This has been produced at Annexure R1 of the reply. In the said Paragraph 648, sub para 3, -7- "Emergency" has been defined as meaning 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 patients. In order to establish an emergency condition, parameters that are to be examined have also specified in the said letter. It is submitted that, from these conditions, the rules regarding reimbursement of medical expenses as defined in Paragraphs 647 & 648 of the Indian Railway Medical Manual, Vol-I, can be summarised as follows:
"i. Reimbursement can be entertained only if the medical attendance was availed at the instance of the Authorised Medical Officer.
ii. Consent of the Authorised Medical Officer is not necessary in the case of family members and dependent relatives, when they go to one of the recognized hospitals.
iii. In case of treatment in an emergency, at Govt. hospital or a recognised hospital or a dispensary run by a philanthropic organization, reimbursement can be entertained.
iv. In case of treatment in an emergency, private/non-recognised hospitals, without being referred by the Authorised Medical Officer, reimbursement can be entertained.
v. Emergency has been defined as a 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 his life."
Further, the ceiling limit of reimbursement has been revised from time to time by the Ministry of Railways (Railway Board). The latest Schedules of Power has been produced at Annexure R2.
6. The contention of the respondents following from the above is that the applicant's case is not confined under any of the conditions specified in -8- Paragraphs 647 and 648, due to the following reasons:
a. She had not consulted the Authorised Medical Officer first to proceed in accordance with his advice.
b. She had not referred her daughter to the recognised hospital. Consent of the Authorised Medical Officer is not necessary for such referral. Instead, she had taken her daughter to Lakeshore Hospital, Cochin, which was not a recognized hospital. Kaliappa Renal Centre Private Limited, Chennai-28 was the recognised hospital by Southern Railway, then, for renal transplantation.
c. "Emergency" nature of treatment is not established, as defined under sub-para (3) of Para 648 of Medical Manual. The applicant has stated that her daughter was suffering from renal related illness, since her birth. Hence, it cannot be termed as "Emergency" and renal transplant is an elective procedure.
d. If the patient had come to the Railway Hospital for evaluation, in which case, she would have been referred to the recognised center & the Railways would have arranged the payment and hence, the need for payment by the patient or her relatives would not have arisen.
It is submitted that the applicant herself has admitted that the Railway Administration had reimbursed her daughter's treatment during 2006, 2014 & 2015, since those surgeries were referred by Authorised Medical Officers under the Rules. However, as regards the renal transplantation, the Administration rejected her claim for Rs. 8,11,447/- as the same was not referred by Authorized Medical Officer or was done at the recognised hospital. Further the "Emergency" factor was not established. It is also submitted that the applicant's contention that the expenses for renal transplantation at M/s. Kaliappa Renal Centre Private Ltd., Chennai (the recognised hospital) was more or less same as that of Lakeshore Hospital, Cochin, (private/non-recognised hospital) is wrong. It is also submitted that the Administration bears the expenses incurred at recognized hospitals at the rate specified under the Central Government Health Scheme, which -9- comes to only Rs. 3,00,000/- for the cases of renal transplantation. Thus, it is submitted that the claim of reimbursement of Rs. 8,11,447/- is not possible to be reimbursed under the Rules.
7. In a rejoinder filed by the applicant it has been reiterated that there was a referral by the Urologist at the Railway Hospital Perambur who evaluated the treatment. He had advised the applicant to continue treatment at Lakeshore Hospital and Research Centre, Kochi, considering the complexities involved. The Railways have reimbursed some of the medical expenses incurred for the treatment of the applicant's daughter at Ernakulam. It is submitted that unlike other diseases renal transplantation cannot be done in a planned manner as it depends upon the availability of a willing and matching donor or availability of a suitable cadaver, which is purely on chance. Three donors in different parts of Kerala had come forward with willingness to donate their organs in response to the fervent appeal of the applicant. However none of these donors could provide a match for the patient. An offer was then received from a donor hailing from Aluva, which is close to Kochi. Meanwhile, nearly 18 months had passed in between, and the emergency situation was worsening. Thus, there was no time to approach the Railway Hospital when the donor was identified and get all the formalities and the operation authorised as there was urgency for the transplant. Further, it was also convenient for the donor to undergo the operation at Kochi instead of Chennai and also for the transplant to be performed at Kochi. Hence, it was a combination of factors which included the availability of a donor, the place of the residence of the donor, proximity -10- of the hospital to the patient and the donor as well as the urgency for the transplant, which had been already delayed by nearly 18 months. All these factors have forced the applicant to get the transplantation done at Kochi to save the life of her daughter. It is submitted that there is no recognized hospital by the Railways in Kochi. The system of reimbursement directly to the hospital has also been discontinued by the Railways long back. Thus, the kidney transplantation undergone by the applicant's daughter was an emergent life saving measure since she could not survive too long only on the basis of dialysis. Finally, the transplantation with the particular donor could only be done in Kerala and not in Tamil Nadu, due to the reasons earlier stated.
8. The respondents in an additional reply statement have reiterated their technical stand that the moot question in the litigation concerns the true nature of emergency in the treatment of the applicant's daughter. When sub- para (3) was added to Paragraph 648 of the Indian Railway Medical Manual 2000 (Vol.I) (IRMM) as early as on 31.01.2007 (produced at Annexure R1) the issue was clarified. It is clearly prescribed that the necessary parameters to establish an "Emergency" condition would include (a) Admission details,
(b) Clinical findings at the time of admission and (c) Types of medical treatment given immediately after admission. It is submitted that the term "Emergency" means a condition or symptom resulting from any cause arising suddenly and, if not treated at the early convenience, would be detrimental to the health of the patient or would jeopardise the life of the patient. It is submitted that in the case in hand, Renal Transplantation does -11- not fall within the definition of the word 'Emergency'. Therefore, the Railway Administration have rightly rejected the claim submitted by the applicant. The applicant's daughter was diagnosed with "Chronic" Renal failure. As the name implies, it is a chronic condition requiring replacement therapy in the form of dialysis. A Renal Transplant is the ultimate treatment, which is an elective procedure. The applicant has admitted that 18 months had passed before the renal transplant was done. During this period she could have very well attended a Railway hospital for operation and proper referral to a concerned hospital. It is submitted that there are many hospitals empanelled by Railways for emergency inpatient treatment for Railway beneficiaries with as many as seven in the Palakkad Division itself. In effect the respondents submit that the transplantation opted for by the applicant for her daughter was not an emergency procedure but an elective one requiring screening and identification of suitable matching donor, stabilization, fitness of the recipient, etc. It should also be noted that the case of the applicant that the transplant could be performed only near the place of residence of the donor is not a factor which is relevant in the instant case. The administration is bound by the official stipulations prescribed for consideration of reimbursement of medical expenses. Apart from the above reasons, it is also to be considered that the applicant cannot have a case that the donor was found one fine morning and that the transplant had to be effected immediately. It is therefore submitted that it was well within the ability of the applicant to have intimated the Administration as required under the Rules. She could got the operation/transplantation authorised which she had not done. -12-
9. Adv. Mr. Martin G. Thottan is learned counsel for the applicant and Adv. Mrs. O. M. Shalina, SCGSC appears for the respondents. Counsel for the applicant has drawn attention to two decisions; one by this Tribunal in O.A No. 1170/2012 in the case of Shri C. Jose Kuriakose v Southern Railway and Ors. decided on 15.01.2015. In this matter it appears that the applicant therein had taken treatment as an inpatient in a non-recognized hospital (the Amrita Institute of Medical Sciences (AIMS) Kochi) though he was residing in Kottayam and could have gone for treatment in the Government approved hospital there. The O.A was allowed after relying on the judgments of the Hon'ble Supreme Court in Surjit Singh v State of Punjab and Ors., AIR 1996 SC 1388 and State of Punjab and Ors v Mohinder Singh Chavala and Ors, (1997) 2 SCC 83. The Single Bench in the O.A declared that there was an emergency in the case which required quick action for preservation of the life of the applicant and where, understandably, the relatives of the applicant would have preferred the best facility available. Hence, considering the position of AIMS, it was only natural for the relatives of the applicant to ensure that he was given the best treatment possible there. The reasoning of the Apex Court in Surjit Singh(supra) was seen to be applicable in the case. It was found to be justified that the applicant had taken treatment from the AIMS, Kochi rather than from Medical College Hospital, Kottayam. The Tribunal did not find any merit in the action of the Railways rejecting the claim for reimbursement. Counsel for the applicant has also relied on the ratio of decision of the Hon'ble Apex Court in Shiva Kant Jha v Union of India (supra). It was found therein that the settled legal position is that the -13- Government employee during his life time or after retirement is entitled to get the benefit of medical facilities and no fetters can be placed on his rights. The ultimate decision as to how a patient should be treated vests with the Doctor who is well versed and expert both by academic qualifications and experience gained. The Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed of by patients only to ensure proper, required and safe treatment. It was found that the right to reimbursement of a medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. It was held that the real test should be the factum of treatment and nothing else. It was also found that before any medical claim is honoured the authorities are bound to ensure as to whether the claimant had actually taken treatment and whether the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once it is established, the claim cannot just be denied on technical grounds.
10. The above issues are relevant in the consideration of this matter. The respondents contend that the facts herein do not fall within the ratio of the above two cases, as there was no 'Emergency' involved. It is contended by them that renal transplantation is a "planned" procedure and not an "emergency" procedure and this can be established by the fact that the applicant had waited for as long as 18 months in order to get a suitable donor before going ahead. There was also a provision for getting treatment from the M/s. Kaliappa Renal Centre Private Ltd., Chennai which was not opted for by the applicant. After some consideration of these options, I -14- would, however, term the objections of the respondents as very one sided. One cannot define an "Emergency" in a Renal Transplant case purely in terms of time as a matching donor and other factors come into the picture. It is an emergency nevertheless which is postponed by use of dialysis. Thus the applicant's contentions have to be given some consideration by the respondents. Further, it seems to appear that the rules and procedures governing renal transplantation in Kerala are somewhat different from those obtaining in Tamil Nadu. The only donor that was available after a long search was in Kerala and near Kochi. There is no doubt that the condition of the applicant's daughter was deteriorating over the period and, there could have been an emergency for undergoing the transplantation. The Essentiality Certificate issued by the respondent no. 2, produced by the applicant at Annexure A8, has also established an Emergency situation. This has also not been disputed by the respondents. In such a situation and, particularly, in light of the directions of the Hon'ble Supreme Court in Shiva Kant Jha v Union of India (supra), there appears sufficient justification for the respondents to re-examine the claim for reimbursement of the medical expenses submitted by the applicant for Rs. 8,11,447/-. In any case, the respondents can consider whether the sum of Rs. 3,00,000/- which is maximum allowable under the CGHS Rules in cases of renal transplantation, can be granted. It is the combination of factors, as pointed out by the applicant, which includes, availability of donor, the place of residence of the donor, proximity of the hospital to the patient and the donor and the urgency of the transplantation which was delayed for more than 18 months which need consideration. It should not be just technical objections -15- that the administration is bound purely by the official stipulation prescribed for consideration of the reimbursement of medical expenses that should be the priority. Kidney transplantation cannot be a pure fully planned procedure as is being made out by the respondents because it does depend on the availability of the donor, matching of the donor's kidney with the recipient, the fitness of the recipient as well as the donor etc. One could therefore consider whether an emergency does exist in such cases, especially as during the intervening period waiting for a donor, there is continued deterioration in the applicant's condition due to frequent dialysis etc.
11. The O.A is therefore disposed of with the direction to the respondents to re-examine the matter and to reconsider the claim for reimbursement of the medical expenditure incurred by the applicant. It is seen that reimbursement at least upto the extent of Rs. 3,00,000/- is allowed, as has been brought out by the respondents in the reply statement in cases of renal transplantation at recognized hospitals under the CGHS. The respondents should also take into consideration the directions of the Hon'ble Supreme Court as outlined in Shiv Kant Jha v Union of India (supra) and in O.A 1170/2012 of this Tribunal. A decision in this regard may be taken by the respondents within a period of three months from the date of receipt of a copy of this order. No order as to costs.
(K. V. EAPEN) ADMINISTRATIVE MEMBER bp -16- List of Annexures Annexure-Al: True copy of certificate dated 04.07.2015 issued by the consultant Nephrologists of Lakeshore Hospital, Kochi. Annexure-A2: True copy of the discharge certificate issued from the Lakeshore Hospital, Kochi.
Annexure-A3: True copy of the summar medical bill issued from the Lakeshore hospital, Kochi.
Annexure-A4: True copies of the covering letter submitted by the applicant, along with the claim application.
Annexure-A5: True copy of the letter bearing No. MD.RH/PGT/REIM/MBM dated 18.07.2019 issued by the second respondent.
Annexure-A6: True copy of representation submitted by the applicant. Annexure-A7: True copy of letter dated J/MD 105/IV/32/17 dated 07.03.2018.
Annexure-A8: True copy of the essentiality certificate isued by the second respondent.
Annexure-A9: True copy of the discharge summary issued from the Lakeshore Hospital and Research Centre Ltd., dated 05.07.2006. Annexure R1: A true copy of Railway Board Letter No. 2005/H/6-4/Policy- 11 dated 31.01.2007.
Annexure R2: A true copy of Schedule of Power.
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