State Consumer Disputes Redressal Commission
Rup Chand Bhardwaj vs The Govt. Of India, Ministry Of Health & ... on 9 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 39 of 2012 Date of Institution : 31.01.2012 Date of Decision : 09.07.2012 Rup Chand Bhardwaj, H.No. 715 A, MIG Super, Phase-XI, Sector 65, Mohali. Appellant V e r s u s [1] The Govt. of India, Ministry of Health & Family Welfare, New Delhi, through its Secretary, MH & FW (DH & FW), Nirman Bhawan, Mulana Azad Road, New Delhi 110 108. [2] Dr.S.C.Anand, Additional Director, CGHS, Chandigarh, 4th Floor, Kendriya Sadan, Sector 9A, Chandigarh-160019 ....Respondents Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (Retd.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Appellant in person.
Sh. A.L. Vohra, Advocate for the respondents.
PER JUSTICE SHAM SUNDER (Retd.), PRESIDENT
1. This appeal is directed against the order dated 19.12.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that, the complainant being a Central Govt. pensioner, alongwith his family members, is a beneficiary, of the Central Govt. Health Scheme (hereinafter to the called as CGHS). He had submitted several medical bills, for reimbursement of the claim, to Opposite Party No.2. According to the complainant, Opposite Party No.2, did not reimburse the complete amount, as per the bills submitted by him. It was stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for reimbursement of the amount, not paid to him, against the bills submitted by him, was filed,
3. Opposite Parties No.1 and 2, in their joint written version, pleaded that the complainant was not a consumer, as per the provisions of the Act. It was further pleaded that the complaint was barred by time. It was stated that the complainant was only a beneficiary of the CGHS, being a Central Govt. pensioner. It was further stated that the medical bills mentioned, in the complaint, were submitted by the complainant, for reimbursement of the amount, shown therein. It was further stated that the amount of medical claim, could only be reimbursed, as per the Rules, Regulations and Instructions, governing the subject matter, and not contrary to the same. It was further stated that the amount, which was due to the complainant, in respect of the medical bills, submitted by him, as per the relevant Rules, Regulations and Instructions, was reimbursed to him, and there was no shortfall. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor, they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the complainant, Counsel for the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the complainant, did not fall within the definition of a consumer, as defined under the Act; that the complaint was barred by time; and that the amount, which was due to the complainant, as per the relevant Rules, Regulations and Instructions, was paid to him, against the bills, submitted by him, and there was no shortfall. It was further held by the District Forum, that, therefore, there was no deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
6. Ultimately, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the appellant in person, the Counsel for the respondents, and, have gone through the evidence and record of the case, carefully.
9. The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by the Act, or not. Admittedly, the complainant, being a Central Govt. Pensioner, is a beneficiary alongwith his family of the CGHS. Some of the bills, which were submitted by the complainant, for reimbursement, related to the medical treatment of his wife also. Section 2(1)(d)(ii) of the Act reads as under :-
(d) "consumer" means any person who-
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment.
10. The perusal of Section 2(1)(d)(ii) of the Act clearly reveals that if a person hires or avails of any service, for consideration, for the benefit of another person, then the beneficiary of such service is also included in the definition of consumer. In Jagdish Kumar Bajpai Vs Union of India IV (2005) CPJ 197(NC), a case decided by a six Member Bench of the National Consumer Disputes Redressal Commission, it was held that pension including other service benefits payable, under the scheme, framed by the Government, is a valuable right, vesting in a retired Government employee. It is a part of wages, and, in that, it consists of payment, provided by an employer, made in consideration of past service, and the purpose of helping the recipient, to meet the expenses of living. It is not bounty, but is an obligation of a welfare society, and that too, it is in accordance with the Constitutional goal. It may be stated that medical facilities or aid is mostly needed after the age of retirement. It may also be stated that under the law, consideration can be in cash or kind. The definition of the word consumer under Section 2(1)(d)(ii) provides that a person would, inter alia, be a consumer, if he hires or avails of the services for consideration paid (paid in past or agreed to be paid in future including deferred payment). 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 facilities, 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. Service rendered by the Government employees, before retirement, would be consideration for providing medical facilities, to him, and his family members. In the instant case, the medical reimbursement bills were submitted by the complainant, for his medical treatment, and for the medical treatment of his wife, under the CGHS, in consideration of the past service, rendered by him (complainant), to the Central Government. Under these circumstances, the principle of law, laid down, in Jagdish Kumar Bajpai`s case (supra), by the National Consumer Disputes Redressal Commission, New Delhi, is fully applicable to the facts of the instant case. It is, therefore, held that the complainant falls within the definition of a consumer, as per the provisions of Section 2(1)(d)(ii) of the Act. The District Forum, was wrong in holding, that the complainant did not fall within the definition of a consumer. The findings of the District Forum, in this regard, being incorrect are reversed.
11. The District Forum, no doubt, placed reliance on The Additional Director C.G.H.S., Pune Vs. Dr. R.L. Butani, (1996) CPJ 255 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, holding that a Govt. servant under the CGHS Scheme is not a consumer, within the meaning of the Act, as defined in Section 2(1)(d) of the Act, and the service rendered to him, under the CGHS, does not constitute service as defined under Section 2(1)(d) of the Act. It appears that the case of Jagdish Kumar Bajpai (supra), decided by a six Member Bench of the National Consumer Disputes Redressal Commission, referred to, in the foregoing paragraph, was not brought to the notice of the District Forum, as a result whereof, the reliance was placed by it, on the decision, rendered by a smaller Bench, on the same point. In view of the principle, of law, laid down in Jagdish Kumar Bajpai`s case (supra), decided by a Larger Bench of the National Consumer Disputes Redressal Commission, the principle of law, laid down, in The Additional Director C.G.H.S., Pune`s case (supra), decided by a Smaller Bench of the National Consumer Disputes Redressal Commission, shall not hold field. No help, therefore, can be drawn by the Counsel for the respondents, from the principle of law, laid down, in The Additional Director C.G.H.S., Pune`s case (supra).
12. The next question, that falls for consideration, is, as to whether, the complaint was barred by time or not. Admittedly, the last payment of the amount, against the bills, submitted by the complainant, was made on 16.07.2008. No doubt, the complainant continued writing letters to the Opposite Parties, that the amount paid to him, against the bills, in question, was short, yet, such correspondence did not at all extend the period of limitation, in any manner. Cause of action, thus, arose to the complainant, to file the consumer complaint on 16.07.2008, when the last payment against the bills, though according to him short, was made to him. He could file the complaint within 2 years i.e. upto 16.07.2010, (after excluding 16.07.2008), the date on which the last payment was made to him. However, the instant complaint was filed by the complainant on 22.12.2010. No application for condonation of delay was made by the complainant, at the time of filing the complaint. The District Forum was right, in holding, that the complaint was barred by time.
13. The third question, that falls for consideration, is, as to whether, the amount reimbursed to the complainant, against the bills, submitted by him, was short. The Opposite Parties, could only reimburse the amount, as was admissible to the complainant, as per the Rules, Regulations and Instructions. They could not reimburse the amount to the complainant, against the Rules, Regulations and Instructions. The Counsel for the respondents was asked to submit the claim-wise calculation sheet. He submitted the claim-wise calculation sheet. The total amount claimed by the complainant, in respect of the bills was Rs.13,752/-, but the amount as per the Rules, Regulations and Instructions, paid to the complainant was Rs.7046/-. Now coming to the item-wise claim, it may be stated here, that as per the calculation sheet submitted by the respondents, and not denied by the complainant, he (complainant) claimed Rs.7500/- on account of IOL +Oil, against which a sum of Rs.900/-, was allowed in terms of Govt. of India, Ministry of Health & Family Welfare New Delhi`s letter No.S.11011/36/2001-CGHS Desk.II/CGHS (P) dated 21.12.2004, at page 52 of the District Forum file. The amount of Rs.106/- was also disallowed, being purchee fee/admission and diet charges, as it was not reimbursable. The complainant claimed Rs.3292/- , for food supplements (Protinax) and Rs. 50/- as lab charges. The amount of Rs.50/- was reimbursed, being admissible. The amount of Rs.3292/-, was disallowed, being the cost of Protinax, which was not reimbursable, being food supplements, as per the terms of Govt. of India, Ministry of Health & Family Welfare New Delhi`s letter No.S-11012/1/91- CGHS (P) (Vol. I) dated 18.03.1992, Annexure OP/I. The complainant claimed Rs.682/-, on account of OPD Medicines. This claim was returned to the complainant, on 04.09.2006, for the reason that OPD medicine (Cobamat) which was a tonic and dietary supplement, was otherwise not reimbursable as per letter Annexure OP/I. This amount was therefore, not reimbursed to the complainant. Another amount of Rs.715/-, i.e. Rs.453/- on account of OPD Medicines, Rs.252/- as lab charges and Rs.10/- as purchee fee, was claimed. The amount of Rs.453/-, was disallowed by the Opposite Parties, being spent for the purchase of OPD medicines, as it was not reimbursable, as per the letter Annexure OP/I. Purchee fee of Rs.10/-, was also disallowed being not admissible as per the aforesaid letter. Only Rs.252/-, were paid to the complainant. The complainant also claimed Rs.360/-, for OPD Medicines, and Rs.375/- for Lab charges, out of which the amount of Rs.360/-, was disallowed, being spent for OPD medicines, which was not reimbursable, as per the terms of the letter Annexure OP/I. However, Rs.375/-, claimed as lab charges, were allowed to him. It was, under these circumstances, that the entire amount of the bills, was not reimbursed to the complainant. As stated above, the complainant could only be reimbursed the amount, which was admissible to him, as per the Rules, Regulations and Instructions, on the point, and not contrary to the same. Under these circumstances, it could not be said that the Opposite Parties, in any way, arbitrarily deducted the amount, from the bills, for reimbursement, submitted by the complainant. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Parties. The complainant was not entitled to the remaining amount, which was deducted, as per the Rules, Regulations and Instructions, referred to above. The findings of the District Forum, in this regard, being correct, are affirmed.
14. The appellant, however, submitted that as per the Circular letter Annexure A/1 (O.M. No.S.14026/47/86-MS dated 04.05.1992), the actual cost of Intra-Ocular Lens implantation and the treatment thereto, if undertaken, in Government Hospital, in full, and the actual cost or Rs.6,500/- which ever was less, if the treatment was undertaken at private hospitals, where such facilities were available, was required to be reimbursed. He also submitted that, no doubt, the Opposite Parties, placed reliance on the Circular -letter No.S.11011/36/2001-CGHS Desk. II/CGHS (P) dated 21.12.2004, (attached at page 52 of the District Forum file), which was not issued in supersession of the Circular-letter Annexure A/I. He also submitted that had the Circular-letter Annexure A/I., been superseded, it would have been specifically mentioned in Circular -letter No.S.11011/36/2001-CGHS Desk.II/CGHS (P) dated 21.12.2004, that it was being issued, in supersession of the same. He further submitted that under these circumstances, the Circular-letter Annexure A/I., with regard to the reimbursement of IOL +Oil etc., was applicable, according to which he was entitled to a sum of Rs.6,500/-. The submission of the appellant, in this regard, does not appear to be correct. In case, in Circular-letter No.S.11011/36/2001-CGHS Desk. II/CGHS (P) dated 21.12.2004, it was not specifically mentioned, that it was being issued in supersession of the earlier Circular-letter Annexure A/I., that did not mean, that it will not operate. The latest Circular letter, on the point, shall operate vis-a-vis, the earlier Circular letter, on the same point The Circular -letter No.S.11011/36/2001-CGHS Desk.II/CGHS (P) dated 21.12.2004, was applicable to all the Central Government Pensioners, who were the beneficiaries of CGHS. In case, the complainant has got any grievance, in that regard, he could challenge the legality and validity of Circular-letter No.S.11011/36/2001-CGHS Desk.II/CGHS (P) dated 21.12.2004, by resorting to any other legal remedy available to him. This Commission, cannot decide the legality and validity of Circular-letter No.S.11011/36/2001-CGHS Desk.II/CGHS (P) dated 21.12.2004, in summary proceedings, nor the adjudication of such subject matter falls within domain of the Consumer Commission. The submission, of the appellant, in this regard, being without merit, must fail, and the same stands rejected.
15. No other point, was urged, by the appellant, as well as, the Counsel for the respondents.
16. The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
17. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
July 9, 2012 Sd/-
[JUSTICE SHAM SUNDER(Retd.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg