National Consumer Disputes Redressal
Hardev Singh vs Bses Rajdhani Power Ltd. & Anr. on 1 August, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3073 OF 2017 (Against the Order dated 24/04/2017 in Appeal No. 125/2017 of the State Commission Delhi) 1. HARDEV SINGH S/O LATE SHRI GIAN SINGH RESIDENT OF HL-29, L BLOCK, HARI NAGAR, NEW DELHI-110064 ...........Petitioner(s) Versus 1. BSES RAJDHANI POWER LTD. & ANR. ACTING THROUGH MANAGER- H.R. HAVING OFFICE AT BSES BHAVAN NEHRU PLACE, NEW DELHI-110019 2. DELHI VIDHUT BOARD EMPLOYEES TERMINAL BENEFITS FUNDS 2002 (PENSION TRUST) MEDICAL REIMBURSEMENT CELL, RAJGHAT POWER HOUSE, NEW DELHI-110002 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. S.S. Hora, Advocate with Petitioner in person. For the Respondent : Ms. Anju Thomas, Advocate & Mr. Sunil Fernandes, Advocate for R-1.
: Mr. Sumeet Pushkarna, Advocate & Mr. Devanshu Lahiri, Advocate for R-2.
Dated : 01 Aug 2019 ORDER PER HON'BLE M. SHREESHA, MEMBER
Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 24.04.2017 in First Appeal bearing No. 125/2017 passed by the Delhi State Consumer Disputes Redressal Commission (for short "the State Commission"). By the impugned order, the State Commission has dismissed the Appeal preferred by the Petitioner herein and concurred with the findings of the District Consumer Disputes Redressal Forum, (Central) ISBT, Kashmere Gate, Delhi (for short "the District Forum"), which has dismissed the Complaint.
2. The facts in brief are that the Complainant served with the erstwhile Delhi Vidyut Board (DVB) for more than 35 years and retired from its Archini Branch Office on 30.06.1995, as an Executive Engineer. It is averred that later on the said DVB or DESU was bifurcated into several independent units. Second Opposite Party (hereinafter referred to as "Pension Trust") was entrusted with the task of providing free medical treatment to its employees and their family members on the analogy of CGHS scheme existing for Central Government employees; that as per Delhi Vidyut Board service/retirement rules, the Complainant and his wife were entitled to avail medical benefits from nearby Government Dispensary for which he had been issued with Registration No. 296; that the nearby Government Dispensary was situated at Janak Puri, New Delhi - 110058. It is further averred that the Complainant and his wife were receiving normal medical treatment from the afore-said Government Dispensary situated at Janak Puri, New Delhi. While so, the Complainant was detected to be suffering from the ailment of Prostate Cancer on 05.06.2012. His ailment was of such a critical nature and required exhaustive examination and tests and treatment which was either not available in any of the enlisted/panelled hospital of Delhi Vidyut Board or out of reach of the Complainant. It is pleaded that the Complainant was at an advanced age of 76 years with physical infirmity and was not in a position to go to a far-off Hospital for an Emergency. As he was in need of immediate assistance, he took treatment from Adiva North Point Hospital at Green Park Extension, New Delhi. He was admitted on 12.06.2012 and was examined in detail for high PSA and Prostatomegaly. He was also advised a Biopsy, samples of which were sent to Mumbai and the Complainant paid an amount of ₹20,775/- for the testing report. As the empanelled hospitals of Pension Trust were far from his place of residence and further were also not sufficiently equipped with the facilities required for treatment of advanced prostate cancer, the Complainant took the treatment from B.L. Kapoor Multi Specialty Hospital at Pusa Road which is linked to a Metro Station. He paid a number of bills for his treatment at the said Hospital and brought the same to the notice of the Department concerned. The collective amount of those bills comes to ₹2,39,374/- and apart from this, the Complainant is regularly spending enormous amounts for taking injections of LUPRIDE DEPOT 11.25 m.g. every three months for saving his life and the cost of one injection is approximately ₹11,000/-.
3. It is pleaded that the Complainant placed an Application before the Opposite Party on 15.09.2014 for reimbursement in terms of Rules and Guidelines of CGHS. The Complainant further also stated his inability to receive treatment from the panelled hospitals of the Opposite Parties as the same were far away from his place of residence and they were also not sufficiently equipped with the facilities required in such emergency treatment of advanced prostate cancer. However, Opposite Parties vide its reply dated 22.09.2014 informed the Complainant that relaxation of taking treatment from non-panelled Hospitals cannot be granted in view of CGHS Rules and Guidelines. Complainant served Legal Notice dated 21.10.2014 upon Opposite Party whereby Opposite Party was called upon to reimburse an amount of ₹2,55,340/-. The notice was duly served as per the speed post report, but there was no reply. Aggrieved, the Complainant filed the Complaint before the District Forum seeking the following reliefs:-
"a) Opposite Parties be directed to reimburse an amount of ₹2,55,340/- along with interest, including pendentlite and future interest @ 18% p.a. from the date of respective paid bills till the date of realization;
b) Opposite Parties be directed to compensate the Complainant for mental agony, harassment, misdeeds and losses suffered by him due to non-payment on the part of the Opposite Parties by awarding a sum of ₹2,00,000/-;
c) to pay costs of proceedings and legal charges as may be assessed by the District Forum &
d) pass such other or further orders as District Forum deemed fit and proper in the facts and circumstances of the case."
4. First Opposite Party BSES Rajdhani Power Ltd. filed their reply stating that the Complaint was not maintainable as all the matters qua medical expenses of retired employees of Delhi Vidyut Board are dealt with by the second Opposite Party Pension Trust. The First Opposite Party simply denied all the versions and averments of the Complainant.
5. The Second Opposite Party Pension Trust filed its reply stating that the Complaint was not maintainable and was liable to be dismissed. It is stated that the Complainant retired from the services of erstwhile DESU as Executive Engineer on 30.06.1995 and was drawing pension and other pensionary benefits from DESU/DVB w.e.f. 01.07.2002; that the medical facility is provided by Pension Trust as part of welfare measure extended to its employees and retirees; these benefits were provided without any contribution in the shape of one time or monthly basis from the beneficiaries and that the present dispute is between the employer and employee and does not fall within the ambit of the Act. The Complainant approached the opted dispensary in Janak Puri in a routine manner on 12.06.2012 and the medical officer of Janak Puri, as per the procedure, referred his case to Government/Panel Hospital. It is stated that the Complainant in spite of knowing the rules and procedures and the availability of hospitals, had opted for taking treatment from a non-panelled hospital at his own choice. He took medical treatment from Adiva Hospital and later from B.L. Kapoor Hospital by diverting from the prevailing procedures when facilities were available at Government empanelled/listed Hospitals.
6. It is further stated that panelled hospital except those mentioned as premier institution had given their consent that they would provide treatment as per CGHS guidelines and they would charge CGHS approved rates for the patients referred by the designated dispensary; the category 2 Hospitals, viz. premier institutions hospitals were either offering CGHS rates only for certain specified procedures or not offering it at all and in such cases where the beneficiary who wishes to go to category 2 hospital premier institutions as per their own choice/preferences, the reimbursement is restricted to CGHS approved rates even if the hospital is charging their own rates; there were 60 hospitals empanelled for DVB pensioners which includes hospitals specialized in Cancer Treatment also and additionally, Rajiv Gandhi Cancer Institute, Rohini and AIIMS were exclusively earmarked for cancer treatment and further the beneficiary could avail treatment for any type of disease from a number of hospitals established by Government of NCT of Delhi at various locations of Delhi; beneficiaries could also avail treatment from Hospitals identified as Premier Hospitals subject to prior approval and limiting of all payments at CGHS rates; that the Second Opposite Party is a Pension Trust and has a fixed corpus and has to pay within the terms and conditions and no extra payment could be made at the cost of trust funds and other co-beneficiaries; the Pension Trust is thus a body with limited funding and not unlimited resources and it cannot disburse in transgression of its character and Trust Deed and Rules of the Trust Act; no special dispensation against the rules and against what is applicable uniformly for thousands of beneficiaries can be carved out for the cause of the Complainant; rules cannot be moulded to fit individual opinions and bad precedents cannot be permitted to set out in any case, especially at the cost of other co-members of the Trust, as any undue enrichment beyond the rule from the Trust, which is a body with fixed/limited resources, would lead to loss of Trust Funds, contrary to the provisions of law and rules; that the Complainant has not been able to show as to how he is entitled to excess of CGHS guidelines and applicable rules; that unlike the CGHS Scheme, the benefits to the Complainant were not contributory and thus the dispute cannot be covered in any case under the Consumer Protection Act and the Complainant was reimbursed the expenses as per rules and nothing more was payable to him.
7. District Forum dismissed the Complaint after observing thus:-
"We have heard argument advanced at the bar and perused the record. It is admitted by the Complainant that he was an ex-employee of DVB and is getting benefits or reimbursement of medical expenses from OP-2 under the rules framed from time to time by it. In the present case as per the Complainant, he was detected a case of prostate cancer on 05.06.2012. He had then got himself evaluated in a Private Hospital i.e. Adiva North Point Hospital, at Green Park Extension on 12.06.2012. It is, therefore, clear that it was not a case of emergency and the Complainant could have got his treatment from any empanelled hospital as per the scheme evolved by OP-2. Similarly, he had got himself treated at B.L. Kapoor Multi Specialty Hospital whereas he could visit (sic) the empanelled hospital for his treatment. It is, therefore, clear that the Complainant had taken treatment at non-empanelled hospital at his own choice without their being any case of emergency as alleged by him. The OPs have relied upon the judgment of the Hon'ble Supreme Court - State of Punjab and Others Vs. Ram Lubhaya Bagga & Others which supports the case of OPs. We are, therefore, of the considered opinion that there was no merits in the Complaint which is hereby dismissed."
8. As noted-above, the Appeal preferred by the Complainant, against the said Order of the District Forum, was also dismissed by the State Commission. The State Commission observed as under:-
"We have heard the arguments of counsel and perused the records. We notice that there was no emergency and appellant has all the reasons to go the (sic) empanelled hospitals. His decision to go to non-empanelled hospitals when there is no emergency (sic) is not understood. In the absence of any emergency he was required to take treatment from empanelled hospital.
We, therefore, find no infirmity in order passed by District Forum. Accordingly, the Appeal is dismissed and (sic) the order of the District Forum is (sic) being upheld by us."
9. We have heard arguments of the Learned Counsel for both the parties and perused the material on record.
10. At this juncture, we find it a fit case to place reliance on the Judgement of the Hon'ble Supreme Court in Shiva Kant Jha Vs. Union of India, II (2018) CPJ 19 (SC) wherein the Hon'ble Apex Court has observed as follows:-
" Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court. (Emphasis supplied by us).
14) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
15) In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.
11. The facts in the instant case are that the Complainant, 76 years of age, was detected as a case of prostate cancer on 05.06.2012 which required frequent and detailed examination and tests for which he got himself admitted on 12.06.2012 at Adiva North Point Hospital for re-valuation of high PSA and and Prostatomegaly and thereafter took treatment from M/s B.L. Kapoor Multi Speciality Hospital. It is the case of the Complainant that there was an Emergency as he was diagnosed as having cancer and considering his age and the seriousness of the ailment he had chosen to take treatment from the afore-noted hospitals as they were equipped with necessary facilities and care that was required for his condition. We also find force in the contention of the Complainant that taking into consideration his age and that he was suffering from prostate cancer and also keeping in view the law laid down by the Hon'ble Supreme Court in the case of Shiva Kant Jha (supra), we find it a fit case to direct the Respondents to reimburse the amount under the Scheme. We also hold that this decision is confined to this case only.
12. For all the afore-noted reasons, this Revision Petition is allowed and the order of the Fora below is set aside. We direct Respondents to pay an amount of ₹2,55,340/- with costs of ₹10,000/- to the Complainant within four weeks from the date of the receipt of the this order failing which the said amount shall attract interest @ 9% p.a. ......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER