State Consumer Disputes Redressal Commission
B.Narasimha Reddy Chittoor vs E.S.I. Dispensary And Others Chittoor on 8 May, 2009
FA 1330 of 2007 BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No. 1330 OF 2007 AGAINST C.C. NO. 64 OF 2006 DISTRICT FORUM CHITTOOR Between: B.Narasimha Reddy D.No.2-1254, Upstair Beside Babu Nursing Home, Nalanda Nagar, Chittoor-517001 Appellant/complainant A N D 1. The Incharge Medical Officer E.S.I. Dispensary Beside Nutrine Factory Palamaner Road Chittoor-517002 2. Joint Director, D.No.6/1471, Sankarapuram Kadapa-02 (AP) 3. Director of Insurance of Medical Services D.No.4-6/8 Opp: Old Musheerabad Jail Kavidiguda, Secunderabad (AP) 4. Director General ESI Corporation Panchadeep Bhavan Kotla Road, New Delhi-110002 Respondents/opposite parties Counsel for the Appellant: Sri B.Narasimha Reddy Counsel for the Respondents G.P.for state QUORUM: SRI SYED ABDULLAH, PRESIDING MEMBER
& SRI R.LAKSHMINARSIMHA RAO, MEMBER FRIDAY THE EIGTH DAY OF MAY TWO THOUSAND NINE Oral Order ( As per Sri R.Lakshminarsimha Rao, Member) *** This appeal is filed by the unsuccessful complainant against the order of the District Forum Chittoor in C.C.No.64 of 2006.
The brief facts leading to filing of the complaint are as follows:
The appellant is a monthly subscriber to the ESI Corporation under Employee State Insurance Corporation Scheme from 4.11.1998 to till April 2005. Monthly premium @ 6.5% was deducted from his salary and credited to his account maintained by the respondents. According to the ESIC guidelines the appellant and his family members are entitled to full and comprehensive medical cover and cash benefits in contingency of sickness. The appellant suffered disc compression during the period from April 2000 to June 2004 and on being referred by the respondent no.1 the appellant approached ESIC Hospital Tirupati from there he was referred to SVIMS Hospital Tirupati where he was treated along with his son Ranjit Kumar. The appellant had hired taxi as and when he visited the hospital at Tirupati and he incurred a sum of Rs.13,308.50 towards conveyance. The appellant submitted his medical claim and taxi rents to the respondent no.1 who returned the claim on the ground that the appellant is not entitled for getting reimbursement of conveyance as per G.O.Ms.No.117/27.03.2000. The appellant submitted his claim to the respondent no.3 for settlement. The respondent no.3 on 14.3.2005 directed the appellant to respondent no.2. The respondent no.2 again returned the claim stating that treating doctor had not advised the appellant to travel in a taxi. The appellant approached the respondent no.4 who forwarded the claim to the respondent no.3 with an advice to consider the claim. Respondent no.3 had not settled the claim resulting in filing of the complaint before the District Forum.
The respondent no.1 filed counter and the respondents no.2 and 3 filed memo adopting the counter of the respondent no.1.
The averments of the counter filed by the respondent no.1 in brief are that the appellant was a subscriber of their corporation and he suffered from disc compression for which the respondent no.1 referred him to ESIC Hospital Tirupati. The appellant had undergone surgery on 15.12.2000 and he was totally reimbursed on 19.12.2003. The specialist doctors at SVIMS, Tirupati advised the appellant to get admitted in the hospital for taking treatment and against the advice of the doctor the appellant opted to be treated as outpatient. There was no necessity for the appellant and his son to hire taxi.
The respondent no.1 forwarded by oversight the conveyance bills which were enclosed to the medical bills to the respondent no.2. The appellant was not eligible for getting reimbursement of conveyance as per the G.O.Ms.No.117 dated 27.03.2000 as the illness suffered by the appellant is not covered under emergency and there was no need for conveyance in special mode. The appellant was not referred by the respondent no.1 to proceed in ambulance to Tirupati. The condition of the appellant was not serious so as to require transportation. The District Forum has no jurisdiction to entertain the complaint on ESI matters.
The respondent no.4 filed counter. It was contended that he had no role in the issue of treatment or payment of reimbursement of expenses to the appellant. The appellant is not entitled to claim ambulance services without any recommendation from the medial officer, Chittoor. As per Sec.56 to 59(a) of the ESI Act the respondent no.4 is not responsible for discharging the functions related to medical benefits, ambulance services etc., to the insured though entitled as per his eligibility. The Consumer Forum has no jurisdiction to entertain the complaint in view of Sec.74 & 75 of the ESI Act.
The District Forum has dismissed the complaint on the ground that the Consumer Forum has no jurisdiction in regard to the matters related to ESI Act.
The appellant was a monthly subscriber to the respondents under ESI Scheme from 1998 to April 2005.
Premium @ 6.5% was deducted from his salary and credited to his account by the respondents. His claim was repudiated on the ground that it was not covered in view of G.O.Ms.No.117 dated 27.3.2000. However, the District Forum on the wrong impression that the claim does not fall within the ambit of the provisions of the Consumer Protection Act, dismissed the complaint. The Honble Supreme Court as early as in the year 2007 in Kishorilal Vs E.S.I. Corporation reported in II (2007) CPJ 25 (SC) held that the service rendered in ESI Hospital is amenable to the jurisdiction of the Consumer Forum. The Apex Court further held as follows:
Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees' Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide.
Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees' Insurance Court. An Employees' insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees' Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees' Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumer's dispute falling under the CP Act.
21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees' State Insurance Act, 1948.
The appellant who is prosecuting the case in person requested this Commission to remand the matter to the District Forum in view of the judgment of the Apex Court holding that Consumer Forum has jurisdiction in regard to the matters relating to the claims for reimbursement of medical expenses covered under the ESI Act. As aforesaid, we are of the opinion that the District Forum was at fault in holding that it had no jurisdiction to entertain the complaint. Therefore without going into the merits of the case we are of the considered opinion that it is a fit case to be remanded to the District Forum for denova enquiry.
In the result the appeal is allowed setting aside the order of the District forum dated 14.6.2007. The District Forum is directed to give opportunity to both sides to adduce evidence and pronounce orders on merits within three months. Both parties are directed to appear before the District Forum on 16.6.2009 without insisting on fresh notice. No costs.
PRESIDING MEMBER MEMBER Dt.08.05.2009