State Consumer Disputes Redressal Commission
The Union Of India And Others vs Ch. Padmaja, on 27 January, 2012
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.1119 OF 2010 AGAINST C.C.NO.542 OF 2007 DISTRICT FORUM GUNTUR Between 1. The Union of India, Department of Posts, Represented by Director-General Department of Posts, New Delhi-110001. 2. Chief Postmaster-General, A.P. Circle, Abids, Hyderabad-500001. 3. Postmaster-General, Vijayawada Region, Vijayawada-520010. 4. Supdt. Of Post Offices, Guntur Division, Guntur-522007 Appellants/opposite parties A N D Ch. Padmaja, W/o G.Srinivasa Rao, R/o. D.No. 3-28-48, 6th Line, Brundavan Gardens, Guntur-522006. Respondent/complainant Counsel for the appellants Sri V.Vinod Kumar Counsel for the Respondent Sri M.Hari Babu F.A.No.688 OF 2011 AGAINST C.C.NO.542 OF 2007 Between: Ch. Padmaja, W/o G.Srinivasa Rao, R/o. D.No. 3-28-48, 6th Line, Brundavan Gardens, Guntur-522006. Respondent/complainant A N D 1. The Union of India, Department of Posts, Represented by Director-General Department of Posts, New Delhi-110001. 2. Chief Postmaster-General, A.P. Circle, Abids, Hyderabad-500001. 3. Postmaster-General, Vijayawada Region, Vijayawada-520010. 4. Supdt. Of Post Offices, Guntur Division, Guntur-522007 Respondents/opposite parties Counsel for the appellants Sri M.Hari Babu Counsel for the Respondent Sri V.Vinod Kumar QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER FRIDAY THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. Both appeals arise from the same order. The insurance company has filed the appeal challenging the validity of the order whereas the complainant has come in appeal contending that the compensation awarded by the District Forum is inadequate. For the sake of facility of the expression, the parties are referred to as they have been arrayed in the complaint.
2. The factual matrix of the claim is that the complainant has been working as Office Assistant in the office of the fourth opposite party. The complainants daughter, Anusha was born on 26-01-1999 with bi-lateral profound deafness. The baby was provided with Digital Hearing Aids costing `1,50,000/- in her both ears since 2001. The baby had also undergone speech therapy. There was no improvement with the existing equipment. The complainant is a beneficiary of P & T Dispensary, Guntur in accordance with the provisions of The Central Services (Medical Attendance) Rules, 1944. The Chief Medical Officer In charge of the Postal Dispensary, Guntur referred the claim of baby Anusha to the Superintendent of Govt. General Hospital, Guntur for investigations and diagnosis and for the treatment/indoor treatment.
3. As the facilities for investigations/diagnosis (indoor treatment) are not available in the Dispensary, the Superintendent, Government General Hospital, Guntur referred the complainants daughter to the Superintendent, Government ENT Hospital, Koti, Hyderabad under G.O. Ms No.445; M & W dated 19-07-1991. On the request of the complainant, the fourth opposite party permitted the complainant on 01-06-2005 to attend on her daughter at the hospital. The baby was taken to the Government ENT Hospital, Hyderabad.
4. A team of Doctors examined the baby and opined that the baby was fit to undergo cochlear implant surgery which would help her in better hearing and good speech development and also recommended that the baby should be implanted with a cochlear implant for good future. The Superintendent of the Hospital proposed to perform upon the complainants daughter on 9-7-2005 the Cochlear Implant Surgery and issued estimation certificate for the expenditure involved item wise to the tune of Rs.9,55,500/-. A workshop on Cochlear Implant Surgery was conducted at the Government E.N.T. Hospital, Koti, and Hyderabad on July, 8, 9th & 10th, 2005. ENT surgeons of Apollo Hospital, Madras and foreign delegates participated in the workshop.
5. The complainant informed the fourth opposite party, the tests conducted at the Hospital and the decision of the Superintendent of the Hospital to conduct the Cochlear Implant Surgery to her daughter and requested him on 07-07-05, to grant medical advance for the purpose. The fourth opposite party sought for clarification as to whether the hospital was recommended under CS(MA) Rules for the purpose of cochlear implant surgery and whether the surgery was performed, if not the date of the surgery.
6. The doctors at the ENT Hospital, Koti, Hyderabad conducted COCHLEAR IMPLANT SURGERY upon the complainants daughter on 09-07-2005 and charged an amount of `9,62,904/-. As the Medical advance was not granted, the complainant raised personal loans from friends and relatives and paid the amount to the Hospital. The complainant submitted the medical claim for reimbursement of medical expenses of `9,62,904/-, the fourth opposite party through his letter dated 6-10-2005 directed the complainant to comply certain omissions. The complainant complied with the objections and resubmitted the claim on 26-10-05.
7. As the claim was not settled within a reasonable time, the complainant submitted a representation to the 1st opposite party on 16-03-06 and on 07-07-06. The fourth opposite party informed the complainant through letter dated 14-07-06 that the complainants claim and her representation dated 7-7-2006 was submitted to the Directorate on 23-3-2006 and on 13-7-2006 respectively. The fourth opposite party informed the complainant on 21-12-2006 that her claim was referred to the Ministry of Health for their approval and that the Ministry has returned the proposal with a request to provide documents in accordance with the new guidelines for Cochlear Implant.
8. The new guidelines were not circulated to the complainant or in the office of the fourth opposite party. She was not informed as to when new guidelines came into force. No new guidelines are in existence even at the time of operation was performed upon her daughter. The new guidelines are not applicable to her medical claim. The complainant submitted representation on 29-12-2006 with the copies of the clinical reports enclosed thereto.
9. The fourth opposite party through his letter dated 23-03-07 communicated the decision of the Ministry of Health and Family Welfare sent to the Directorate through letter No. 21-21/2005-Medical dated 19-3-07 and Regional Office, Vijayawada letter No.AC.III/MA/Ch.P/GTR Dn., dated 20-3-07 stating that the request of the complainant regarding reimbursement of medical expenses incurred by her was rejected. The rejection of complainants medical bill without valid reasons what so ever, amounts to deficiency of service.
10. The opposite parties resisted the claim contending that the complainant being a government servant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and service rendered under CGHS does not constitute a service under section 2(1)(o) of the Act. The complainant was permitted to attend the E.N.T. Hospital, Koti, Hyderabad with her daughter since the Superintendent, Govt. General Hospital, Guntur referred the claim to the aforesaid hospital. Permission was not accorded for the surgery upon her daughter.
11. The doctors of E.N.T. Hospital, Hyderabad recommended the claim for cochlear implant surgery but not opined that it is a claim of emergency. The complainant submitted a representation on 13-06-05 requesting for grant of medical advance in c/w the Cochlear Implant surgery of her daughter and it was forwarded to the Regional Office, Vijayawada on the same day. The Regional Office, Vijayawada on 14-06-2005 directed the complainant to submit detailed estimation indicating the cost of device, operation, medicines, room rent etc., and also informed that the medical advance would be admissible when a Government Servant or a member of his family is being treated as an inpatient in a hospital under the provisions of CS(MA) Rules 1944. She was not permitted to admit her daughter in a workshop at the hospital.
12. The complainant submitted representation dated 07-07-2005 to the fourth opposite party on 12-07-2005 i.e., after her daughter was discharged from the hospital with a request to grant permission for the cochlear implant surgery upon her daughter on 09-07-2005 and also for grant of medical advance which was forwarded to the Regional Office, Vijayawada on the same day for taking further action as the matter was beyond the powers of the Superintendent of Post Offices. As the amount involved in the claim is about `10,00,000/-, the claim was to be dealt by the Ministry of Health and Family Welfare, New Delhi. The Cochlear Implant Surgery was performed upon the complainants daughter on 09-07-05 and she was discharged from the hospital on 11-07-05.
13. The Cochlear implantation surgery was got done by complainant without approval of the authority concerned and the surgery was not an emergency and it was elective. Her claim was referred to first opposite party on 21-07-05 and reply was awaited and without any orders from the Postal Directorate advance cannot be granted. The complainant was directed on 06-10-2005 to submit the medical claim (As the medical claim preferred by her on 03-08-05 was incomplete) accompanied by complete clinical details of patient along with reports of investigations .The complainant submitted the documents on 26-10-05 and in turn the fourth opposite party submitted them to the Regional Office, Vijayawada on 27-10-2005 for approval. She was informed vide this office letter dt.21-02-2006, that as per the observations of Ministry of Health and Family Welfare communicated vide Postal Directorate letter dt.14-02-06, that as per existing guidelines reimbursement for cochlear implant surgery would be permitted only after request has been approved and recommended by the Standing Committee, and as the surgery was done without recommendation of Standing Committee of Director General of Health Services, New Delhi and as such her request regarding reimbursement of medical expenses was not acceded.
14. The complainant ought to have waited for approval of Postal Directorate for the surgery as it is not in emergency. The complainant is aware of the requirement to take prior permission for the surgery as she obtained permission for attending the E.N.T. Hospital, Hyderabad. She was already informed that her claim is not acceded to, by the Postal Directorate, New Delhi vide its letter dt.19-03-07. The complainant has given no chance to the Department to examine her claim by Standing Committee for giving permission to Cochlear Implant Surgery.
15. The complainant has filed her affidavit and the documents Exs.A1 to A27. On behalf of opposite parties G.Venkataiah, Superintendent of Post Offices, Guntur Division i.e., opposite party no.4 filed his affidavit and the documents Ex.B1 to B19.
16. The District Forum allowed the complaint directing the opposite parties no.1 to 4 to pay a sum of `5,17,000/- with interest @ 6% per annum from the date of repudiation together with compensation of `5,000/- and costs `1,000/-.
17. Aggrieved by the order of the District Forum the opposite parties filed F.A.No.1119 of 2010 contending that the service rendered by them does not come under the purview of the C.P. Act and that medical attendance rules 1944 do not provide for payment of the amount to the complainant.
It is contended that the service under Central Government Health Scheme to the government servant does not place the complainant in the status of the consumer as she is an employee and the matter is a service matter. It is submitted that the representation made by the complainant for grant of permission for Cochlear implant surgery of her daughter and for grant of medical advance is contrary to the medical attendance rules of the Central Government. It is submitted that a standing committee comprising of experts working in was established to render opinion before performing the Cochlear Implant Surgery and that the complainant got the surgery done upon her daughter based on the opinion of doctors of a hospital where no Cochlear Implant Surgery was done previously.
18. The points for consideration are :
1. Whether the District Forum ahs jurisdiction to entertain the complaint?
2. Whether there was any deficiency in service on the part of the opposite parties in the matter of refusal for reimbursement of the medical expenses to the complainant?
3. To what relief?
19. POINT NO.1: The complainants claim is resisted on the grounds that, 1. the District Forum has no jurisdiction to entertain the complaint, 2. the complainant had not obtained prior permission and prior opinion of the Experts Committee and that she relied upon the opinion of the doctors in a hospital where no Cochlear Implant Surgery was performed earlier, and 3. her claim cannot be settled as per the guidelines.
20. The complainant is working as office assistant in the office of the opposite party no.4 and her daughter who was born with bi-later profound deafness was referred by the Chief Medical Officer Postal Dispensary, Guntur to the Government General Hospital, Guntur and the doctors there in turn referred the complainants daughter to the Government ENT Hospital, Koti Hyderabad. On the request of the complainant, the fourth opposite party permitted her on 1.6.2005 to attend on her daughter and the team of doctors at the ENT Hospital examined the girl and opined that the girl was fit for Cochlear Implant Surgery. The Superintendent of the Hospital proposed to perform the surgery upon the complainants daughter on 9.7.2005 and issued estimation certificate to the tune of `9,55,500/-.
21. At the time when the complainants daughter was admitted to the ENT Hospital, a workshop was held at the hospital on July, 8th, 9th and 10th 2005. Several ENT surgeons and foreign delegates attended the workshop. On 7.7.2005 the complainant made representation to the fourth opposite party to grant medical advance for the purpose of Cochlear implant surgery for her daughter and as the medical advance was not granted the complainant stated to have collected the amount on loan to the tune of Rs.9,62,904/- for the purpose of surgery on 9.7.2005. Thereafter the complainant submitted medical claim for reimbursement of medical expenses of Rs.9,62,904/-. On 6.10.2005 the fourth opposite party returned her claim with certain objections and after complying with the objections the complainant resubmitted the claim on 26.10.2005.
22. The complainant addressed letters dated 16.3.2006 and 7.7.2006 to the first opposite party with a request to settle her claim. The fourth opposite party gave reply dated 14.7.2006 informing the complainant that her claim as also her representations were submitted to the first opposite party and through letter dated 21.12.2006 the complainant was informed that her claim was referred to the Ministry of Health for their approval and later through letter dated 23.2.2007 the fourth opposite party communicated the decision of the Ministry of Health and Family Welfare that the claim of the complainant was repudiated.
23. The learned counsel for both parties relied upon the decisions of the National Commission, the High Courts and the Supreme Court in support of their respective contentions. The principles laid down in those decisions and their applicability to the facts of the present case would determine the jurisdictional dispute in the matter.
24. The learned counsel for the opposite parties has relied upon the decision of the Honble National Commission in The Additional Director, CGHS Vs Dr.R.L.Butani, in RP NO.219 of 1995 decided on 9.2.1996 and Om Prakash Sethi Vs Accountant General, Haryana (A&E) in RP NO.3878 of 2009 decided on 6.7.2010 as also the decision of the State Commission of U.P. in Union of India and others Vs Mahendra Kumar Gupta, I (2011) CPJ 473.
25. The learned counsel for the complainant has relied upon the decisions, Indian Medical Association Vs. VP Shantha and others AIR 1996 SC 550 (1996) 8 SCC 655; Laxman Thamappa Kotgiri Vs. G.M.Central Railway & Ors. (2007) 4 SCC 596; Kishore Lal Vs. Chairman, Employees State Insurance Corporation, decided on 08-05-07, (2007) 4 SCC 579; Regional provident Fund Commissioner Vs Shiv Kumar Joshi CDJ 1999 SC 762, Regional Provident Fund Commissioner Vs Bhavani, CDJ 2008 SC 760, and the decisions of the National Commission in Jagdish Kumar Bajpai Vs. Union of India, Revision Petition No.570 of 2002 decided on 20-10-05, Union of India and anr Vs Savitaben Sumanbhai Patel and ors, RP No.1725 of 2009 decided on 5.5.2011 and South Western Railway Keshawapur, Hubli Vs D.J.Manuel RP No.3142 of 2006 decided on 19.5.2011.
26. The scope of service amenable to the jurisdiction of District Forum under the provisions of the Consumer Protection Act has been elaborately dealt with by the full bench of the Honble Supreme Court in Indian Medical Association Vs V.P.Shantha and others AIR 1996 SC 550.
In paragraph 50 of the judgment, the service rendered by the doctor to the employee at the expenses meted out to, by the employer was held to be within the scope of the C.P.Act. It was held:
There may, however, be a claim where a person has taken an insurance policy for medi-care whereunder all the charges for consultation, diagnosis and medical treatment are borne by the insurance company. In such a claim the person receiving the treatment is a beneficiary of the service which has been rendered to him by the medical practitioner, the payment for which would be made by the insurance company under the insurance policy. The rendering of such service by the medical practitioner cannot be said to be free of charge and would, therefore, fall within the ambit of the expression `service' in Section 2(1) (o) of the Act. So also there may be claims where as a part of the conditions of service the employer bears the expense of medical treatment of the employee and his family members dependent on him. The service rendered to him by a medical practitioner would not be free of charge and would, therefore, constitute service under Section 2(1) (o).
27. In Dr.R.L.Butanis claim (supra) a retired central Government servant filed the complaint stating that he pays Rs.9/- per month towards CGHS and that his wife who was operated upon at a private hospital in Pune was referred to Dr.Bhatia in Bombay. The Bombay CGHS refused to refer the claim to Bombay Hospital advising him to consult Pune CGHS and as the reimbursement from CGHS was denied since his husband was treated at a private hospital. The National Commission held that a Government Servant under CGH Scheme is not a consumer within the meaning of Sec.2(1)(d) of C.P. Act and the service rendered to him under CGHS does not constitute service as defined u/s 2(1)(o) of C.P.Act. The National Commission referred to the decision of the Supreme Court in Indian Medical Association and held that service rendered at a government hospital is outside the purview of expression service as defined in Sec.2(1)(o) of C.P.Act.
28. In Kishore Lal Vs. Chairman, Employees State Insurance Corporation, (supra), the Supreme Court of India has observed in para 17 as follows:
It has been held in numerous claims of this Court that the jurisdiction of consumer forum has to be construed liberally so as to bring many claims under it for their speedy disposal. In the claim of M/s.Spring Meadows Hospital and Another Vs. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system.
The act being a beneficial legislation should receive a liberal construction. In State of Krnataka Vs. Vishwabarathi House Building Cooperative Society and others, AIR 2003 SC 1043, the court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the this. These Judgements have been cited with the approval in paras 16 and 17 of the Judgement in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M.Lalitha and others, (2004) I SCC 305.
The trend of the decisions of this court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment.
29. The counsel for the complainant also relied upon a decision I (1996) CPJ 22 between Treasury Officer & Member Secretary, Pensioner Medical Fund & others Vs. G.K.Joshi wherein the Rajasthan State Commission held that pensioner who avails of the facility of free supply of medicine by making monthly contribution while in service has hired the service in exchange for the contribution is a consumer.
30. In Surjit Singh Vs. State of Punjab and others, AIR 1996 Supreme Court 1388, the Supreme Court observed the applicability of the reimbursement of medical claim on the basis of the estimate of a private hospital. The Apex Court held Claim for reimbursement at rate of private institution is entitled to be allowed. Government cannot insist on its employees to get him treated at recognized Government institution and claim rates prevail there under.
31. In Regional Provident Fund Commissioners decision (supra), the Supreme Court held that the member of a provident fund scheme is consumer within the meaning of Sec.2(1)(d) of C.P. Act even in the absence of any contribution to the provident fund from the employee, on account of administrative charges paid by the Central Government.
32. The principles laid down in the aforementioned decisions of the Apex Commission goes to show that the medical service rendered to an employee and to his family members by a medical practitioner or hospital/nursing home which are given as part of the conditions of the service to the employee at the expenses borne by the employer is amenable to the jurisdiction of the Consumer Forum.
33. In Laxman Thamappa Kotgiri (supra) the Supreme Court referred to its decision in State of Orissa (supra) relied upon by the learned counsel for the opposite parties and distinguished that decision referring to the larger bench decision in IMAs claim and held that the decision in State of Orissa has no binding effect in view of the larger benchs decision.
34. In the aforesaid judgments it is held that medical services provided by the employer, in the hospitals established for the benefit of its employees are part and parcel of service conditions, and therefore, it is consideration for the services rendered or to be rendered by the employee. In the light of aforementioned law laid down by the Honble Supreme Court, we are of the opinion that the claim of the complainant is amenable to the jurisdiction of Consumer Forum and that there is no jurisdictional error committed by the District Forum and the District Forum is competent to entertain the complaint. The point is answered against the opposite parties.
35. POINT NO.2: The District Forum has referred to the Cochlear implant surgery undergone by the Complainants daughter and the permission obtained by the complainant for the surgery of her daughter as also the nature of the surgery in its discussion under point no.2. The District Forum held that :
A cochlear implant is a medical device that is implanted into the head behind the ear of a deaf person. When used with a microphone and speech processor it electrically stimulates the auditory nerve and results in the person being able to hear sound. When the system was first developed in 1978 by Graeme Clark it was referred to as the bionic ear. Since that time a variety of cochlear implants have been developed by the Cochlear division of Nucleus.
Cochlear implants are designed for use by adults and children who are profoundly or severely deaf and get little or no help from hearing aids.
The cochlear implant is an example of innovations in design, combines with engineering, information processing and software design and development.
What is cochlear implant:
A cochlear implant is a surgically implanted device that helps overcome problems in the inner ear, or cochlea. The cochlea is a snail-shaped, curled tube located in the area of the ear where nerves are contained. Its function is to gather electrical signals from sound vibrations and transmit them to your auditory nerve (or hearing nerve). The hearing nerve then sends these signals to the brain, where they are translated into recognizable sounds.
36. The District forum has considered the Central Service (Medical Attendants Rules, 1944 vis--vis CGH Scheme and discussed the question of entitlement of the complainant for the reimbursement of the medical expenses. It is to be remembered that an international cochlear implant first its kind was being held in the said hospital at Hyderabad when the surgery was proposed. It was an advantageous position fot the team of ENT Specialists at Kothi hospital, Hyderabad for conducting such a costly operation to the baby in the presence of worldwide famous ENT surgeons. Therefore, the complainant wanted to avail best of the opportunity for her daughter keeping in view of her well being. She has rightly informed and applied seeking permission but her claim was referred to Postal Directorate as it was not within the competency of Superintendent of Post Office. On the other hand, the Superintendent, Post Office has raised a query vide Ex.A6, whether the hospital at Kothi has recommended under CS(MA) Rules for the purpose of cochlear implant surgery and also to intimate whether surgery was already performed or date on which going to be performed. But by the time this query was raised, baby Anusha has already undergone surgery as per the schedule it was fixed on 09-07-05. Subsequent to surgery she has also applied for reimbursement of claim will all clinical details of patient, which is evident from Ex.A9 letter. As the claim was not being processed either at her office or Regional Office at Vijayawada or at State Head Quarters at Hyderabad, she also corresponded with Directorate General, Department of Posts, New Delhi through her letters vide Ex.A10, A11 and A13 explaining the facts in detail.
37. The guidelines framed for reimbursement of Cochlear implant to beneficiaries for reimbursement of cochlear implant to beneficiaries under CGHS/Central Services (Medical Attendance) Rules, 1944 (Ex.A26).
(a) Age group between 1 to 16 years. However, children using hearing aids and getting auditory training from age 1 years of less may be considered at higher age also on a claim to claim basis;
(b) No appreciable benefit from hearing aids after 6 months of trail with hearing aids. No speech formation seen;
(c) No mental retardation;
(d) No active middle ear cleft disease. Perforation of the TM should be closed at least three months prior to implantation;
(e) No cochlear aplasia and / or agenesis of cochlear never;
(f) No retro cochlear lesion or central deafness and
(g) Good family support for post op rehabilitation.
38. In the light of the guidelines extracted hereinabove, it is clear that the family member of the employee has to be in the age group of 1-16 years in order to be eligible for the benefit of the scheme.
Admittedly, the complainants daughter was aged about 8 years at the time she had undergone the surgery. The other items, b to g do not have any deniable effect on the claim of the complainant. The complainant has stated that her daughter was provided with digital hearing aids in both her ears which cost `1,50,000/- since 2001 and she has also stated that her daughter had undergone speech therapy which however did not yield any positive result with the equipment. The opposite parties have not disputed the complainant meeting with the requirement of clause (b) to (g) of the aforementioned guidelines.
39. In regard to the reimbursement for Cochlear implant surgery, a standing committee comprising of the following doctors was formed:
1) Addl DG, CGHS / DDG (M) (as the claim may be) Chairman (2) HOD, ENT Dr.RML Hospital Member (3) HOD, ENT, Safdarjung Hospital Member (4) HOD, ENT, LHMC & Smt. S.K. Hospital Member
40. And after the request of the employee has been approved and recommended by the standing committee, permission would be granted to the employee. The complainants claim was repudiated on the ground that the Standing Committees approval and recommendations was not obtained for the Cochlear implant surgery.
41. The District Forum held that the opposite parties rejected the medical claim of the complainant on the basis of the new guidelines which were not in existence at the time of Cochlear implant surgery that was performed upon the daughter of the complainant. The District Forum held that the complainant had filed an application before it seeking direction to the opposite parties to produce the documents which contains the earlier guidelines that were in force at the time of the surgery and the opposite parties had omitted to produce the documents and the circular pertaining to the postal employee. Even at the stage of the appeal, the opposite parties have not filed the documents in order to show that the claim of the complainant is not covered by the guidelines at the relevant time.
42. It is not the case of the opposite parties that the complainant had not at all applied for permission for her daughter to undergo Cochlear Implant Surgery. Much time prior to the date of the surgery, the complainant submitted her application on 13.6.2005 requesting the opposite parties for grant of medical advance for the Cochlear implant surgery of her daughter. The opposite parties directed her on 16.6.2005 to submit the estimation indicating the cost of device, operation, medicines, room rent etc. Thereafter the opposite parties had not taken a concrete decision as to the admissibility or inadmissibility of her claim. The complainant was compelled to proceed for the Cochlear implant surgery upon her daughter in view of the opinion expressed by the Superintendent, ENT Hospital, Kothi and also on the advice of the doctors who participated in the workshop at the ENT Hospital, Kothi. It is pertinent to note that the renowned ENT Specialists across the globe had participated in the workshop. The opposite parties have attempted to brush aside the opinion of the expert doctor who had taken part in the workshop. The complainant had left with no option but to proceed on the advice and opinion of the expert doctors. The opposite parties failed to show that the complainant, in the circumstances was not entitled to the reimbursement of the expenses by her for the treatment of her daughter.
43. The District Forum held that the guidelines with regard to Cochlear Implant Surgery which were released on 15.7.2005 by BGHS are not applicable to the claim of the complainant as the surgery was performed on 9.7.2005. The District Forum has placed reliance upon the following decisions:
44. In Vincent Vs. Union of India (1987) 2 SCC 165, the Supreme Court held that the employer cannot deprive its employee of the full reimbursement of the amount on the premise of non-recognition of the hospital, Indraprastha Apollo Hospital. The Supreme Court approved the decision of the High Court of Madras in W.P.No.4980 of 2006 in the following words:
In regard to the reasons as to the non inclusion of the Hospital in Government Order for denial, this Court cannot brush aside the advancement in modern medical treatment. Specialty Hospitals are established for treatment for specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Specialty Hospital by itself would deprive the beneficial order of the Government, solely on the ground that the said Hospital is not included in the Government Order. It cannot be so, as the Government Order should be read keeping the purpose for which the same was issued.
45. The Supreme Court with approval held the decision of the High Court of Delhi in a claim WP (C) No.2464 of 2003 vide its Judgement dt.29-04-04 held in para 4 as follows:
A citizen is a mere spectator to what State authorities do and decide. If the hospital has charged over and above the package rate, the respondent is under an obligation to pay to such charges as the petitioner has incurred over package rates at the first instance and if in law state can recover from the hospital concerned, they may do so but they cannot deny their liability to pay to the Government employee who is entitled for medical reimbursement.
46. The Delhi High Court in a claim between Virender Agarwal Vs. Directorate of Central Government Health Scheme (CGHS) and another in WP(C) No.2156/2008, which is directly related to reimbursement of medical expenses on cochlear implant surgery of the son of beneficiary employee of CGHS Scheme was earlier sanctioned `4.8 lakhs to meet the expenditure. But by the sanction date, the expenditure has gone to `5.35 lakhs.
As such he applied for additional sanction. The department has placed the guidelines with regard to ceiling limit of amount as per the age group. The court observed that the said guidelines are still in the formulative stage. They have not yet been crystallized into statutory rules or administrative instructions. The department is bound by existing policy. The petitioner was permitted to claim reimbursement as per the expended amount.
47. In between Arvind Kumar Garg vs. State Bank of India and others, decided by Punjab High Court on 25-03-08, the High Court held as follows:
It is admitted by the respondents that as per Circular (Annexure P-l), issued by the respondent-Bank, expenditure incurred on Cochlear Implant Surgery is reimbursable. However, strangely enough, in the written statement it has been mentioned that the said Circular is merely in the nature of guidelines issued by Chandigarh Circle for the sanctioning authority to examine the claims of medical reimbursement submitted by the Officers. It appears that the Hyderabad Circle of respondent-bank positively interpreted the Circular (Annexure P-l) and made reimbursement of Cochlear Implant to its employees.
48. The High Court did not approve the stand of the State Bank of India that competent authority has not accorded permission for Cochlear Implant. The High Court observed:
We do not appreciate the stand of respondents that the approval for reimbursement of the cost of Cochlear Implant was accorded by the Hyderabad Circle of respondent-Bank by sheer mistake. The respondents plea is not only unsustainable but is totally bereft of any plausible reason. The rules/instructions need to be construed liberally in favour of employees, for granting them the relief. The technicalities should be avoided while dealing with human problems as there can be no mathematical precision while dealing with the same. The petitioner had been repeatedly making requests to the authorities for granting him permission to take treatment for his son, but the authorities continuously opposed it to the hilt, which is not at all acceptable.
49. The High Court observed that the situation where the employee had no option except to opt for the surgery to be performed upon his son and his pooling up the funds for the purpose of surgery, as follows:
The respondents appear to have been using excuses in granting sanction to the petitioner for treatment of his son. There was no choice for the petitioner except to improve the life of his son by all efforts. Ultimately, the petitioner got his son operated for Cochlear Implant from Apollo Hospital by arranging funds from own sources and by obtaining loan from relatives and friends. He had incurred expenditure of Rs. 9.48 lakhs i.e. total cost of implant, Rs. 25,000/- a cost of rechargeable Battery, Rs. 31,000/- as Hospital expenses, and Rs.50,000/- on postsurgery speech therapy, totaling Rs. 10,54,000/- as is evident from the certificate issued by Dr. Ameet Kishore, E.N.T. and Cochlear Implant Surgeon, Apollo Hospital (Annexure P-10) . The petitioner did what was good for his son. It is fair and just that the respondents reimburse the petitioner the amount incurred by him on the Nucleus Cochlear Implant of his son.
50. The High Court directed the Union of India to reimburse to the petitioner to reimburse to the petitioner the amount incurred by him on Nuclear Cochlear of his son
51. By applying principle laid down in the aforementioned claims to the facts of the claim on hand the District Forum rightly concluded that obtaining prior approval of the standing committee which was not in existence as on the date of surgery was uncalled for as also unwarranted. By applying the decision of Honble High Court Punjab and Haryana in Arunkumar Garg Vs State Ban of India and the facts of the present claim, the District Forum has rightly concluded that a sum of `5,17,000/- along with interest @ 6% per annum is liable to be reimbursed to the complainant.
In the circumstances, we do not find any infirmity either legal or factual in the findings recorded by the District Forum and as such the appeal is liable to be dismissed.
52. The learned counsel for the complainant has not been able to show as to the entitlement of the complainant for enhancement of the amount as awarded by the District Forum on the basis of the estimate of Apollo Hospital and not on the basis of AIMS. In the circumstances we do not find any substance in the contention of the learned counsel for the complainant.
53. In the result both the appeals are dismissed.
The parties shall bear their own costs.
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