State Consumer Disputes Redressal Commission
Employees State Insurance Corporation vs Dinkar Baliram Lute & Anr. on 8 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA, CIRCUIT BENCH, NAGPUR 5th floor, Administrative Building, Civil Lines, Nagpur-01 RBT No. RBT/13/87 (Appeal No.A/09/4) (Arising out of Order dtd.20.10.2008 in Complaint No. CC/08/194 of District Forum, Nagpur) Employees State Insurance Corporation Through its Director Panchdeep Bhavan Nagpur .Appellant(s) Versus 1. Dinkar Baliram Lute R/o 47, Ramkrishna Nagar Wardha Road Nagpur 2. All India Reporters Pvt Ltd Through its Manager Congress Nagar Nagpur .Respondent(s) BEFORE: Honble Mr B.A. Shaikh, Presiding Member Hon'ble Smt.Jayshree Yengal, Member Hon'ble Mr N. Arumugam, Member PRESENT: Adv. Mr V P Maldhure ..for the Appellant Adv. Mr H I Kothari .....for the Respondent ORDER
(Passed on 08.01.2014) Per Mr N Arumugam, Honble Member This is an appeal filed by the original o.p. No.1 against the orders dtd.20.10.2008 and 26.05.2009 passed by District Consumer Forum, Nagpur directing in Consumer Complaint No. CC/08/194 directing the o.p. No.1 to pay Rs.1,07,950/- as sickness benefit and Rs.18,000/- towards permanent disable benefit and Rs.10,000/- towards physical & mental harassment and Rs.3,000/- towards the cost of proceedings.
The facts of the case in brief are as under:-
1. The complainant was working as peon in All India Reporters Pvt Ltd, Congressnagar, Nagpur and this unit is covered under the provisions of Employees State Insurance Act 1948 (for short ESI Act) and the complainant is a insured person under the said provision. The complainant was suffering from Para Parasis of loss of bladder and bowl sensation hence, the complainant was certified ESI Leave for the period 17.05.2003 to 21.02.2005 and the payment was made to the complainant as extended sickness benefit.
According to the complainant, thereafter no extended sickness benefit was paid from 22.02.2005 though the complainant was eligible. The complainant was admitted in Super Speciality Hospital, Nagpur on 17.05.2004 for treatment. According to the complainant, since no proper treatment was given at Super Speciality Hospital, he got himself discharged from the said hospital on 21.05.2004 and started taking treatment by Dr. Pradeep Katakwar at Ajni Square, Khamla Road, Nagpur. Again on 05.08.2004 the condition of the complainant got worsen hence the complainant was admitted in Central India Institute of Medical Science (CIIMS) on 07.08.2004 and got operated and he was in CIIMS for the period 05.08.2004 to 19.08.2004 and incurred expenditure of Rs.47,988/-. After discharging from the said hospital the complainant lodged claim with the O.P.No.1 for reimbursement of expenditure incurred by him for his treatment in CIIMS, Nagpur and claimed extended sickness benefit by submitting bills and necessary documents. However, the O.P.No.1 rejected the claim of the complainant, stating that the claim could not be considered because the complainant did not submit Emergency Certificate from the CIIMS as required for claiming the reimbursement for the treatment taken in the CIIMS, Nagpur. The complainant also alleged though the Chairman, Handicapped Board & Civil Surgeon, Nagpur issued certificate, stating that the complainant is permanently disabled to the extent of 40%, the O.P.No.1 refused to grant permanent disability benefit as per the provisions of ESI Act. Hence, he filed consumer complaint before the Forum, claiming as under:-
i.
Reimbursement of medical bills Rs. 47,988/-
ii.
Extended Sickness benefit For the period from 22.02.2005 to 31.01.2008 for 1074 days at the rate of Rs.175/- per day Rs.1,87,950/-
iii.
Damages on account of Mental Agony etc. (Special damages) Rs.2,00,000/-
iv.
Permanent disablement benefit From February 2008 to 31 May 2008 = 150 x 3 x 4 Rs. 18,000/-
___________ Rs.4,53,938/-
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2. The O.P.No.1 resisted the complaint by submitting Written Version and documentary evidence and also provisions of ESI Act.
3. After hearing of both the parties and perusal of the case papers, the Forum partly allowed the complaint as stated above.
4. Being dissatisfied with this order the O.P.No.1 preferred the present appeal.
5. Adv.Mr Maldhure appeared for the O.P.No.1 and argued that:-
i. The complainant should have approached to the Bombay Employees Insurance Court, established under the provisions of Bombay Employees Insurance Court Rules 1959 which is mandatory under provisions of Employees State Insurance Act, 1948, because it is a special Act. He further stated the complainant also approached the Maharashtra State Human Rights Commission for non-granting of extended sickness benefit and non-reimbursement of medical bills. However, the Member, Human Rights Commission directed the complainant to approach appropriate authority for redressing his grievances as provided in ESI Act.
ii. The learned Advocate also argued that sanctioning medical benefit under this act is within the jurisdiction of Employees State Insurance Scheme (ESIS), which is run by the Government of Maharashtra. But the concerned authority under the ESIS of Maharashtra was not made a party to the complaint. Hence, the Forum ordering respondent No.1 to reimburse the medical bill amount of Rs.47,988/- is illegal.
iii.
The advocate further argued that the complainant is entitled to get extended sickness benefit up to 309 days and it can be extended up to maximum 730 days in all as a special case on recommendations of Sr. State Medical Commissioner and certification by the Medical Board. Accordingly, an amount of Rs.95,088/- was paid to the complainant towards sickness benefit and extended sickness benefit. Since, the complainant did not attend the ESI Dispensary for treatment after 22.02.2005 and on 16.03.2005 the Medical Officer issued final certificate stating that he is fit to join duty. Hence, the complainant was not eligible to get any benefit after 22.02.2005. However, the complainant did not challenge the fitness certificate issued by the Medical Board before the competent authority under ESI Act i.e. before the Labour Court.
iv. The advocate also argued that as per Sec.64 of the ESI Act, it was necessary for the complainant to submit Emergency Certificate for the medical treatment he has taken in CIIMS Hospital for claiming reimbursement of the medical bill.
v. The advocate further argued that the complainant is not eligible to get the permanent disability benefit because the complainant was suffering a disease which was not arising due to accident during the course of employment as per Sec. 2(15-A), 2 (15-B) & 2(8) of ESI Act. The Forum below wrongly awarded the disability benefit on the basis of the Disability Certificate, issued by the Handicapped Board under the Chairmanship of Civil Surgeon, Nagpur and finally he submitted that the Forum below allowed the complaint partly without appreciating the facts and wrongly applying the provisions of the Act and prayed for dismissal of the complaint.
6. Advocate H I Kothari appeared for the complainant and argued that the O.P.No.1 wrongly rejected the claim of the complainant regarding Extended Sickness Benefit, medical reimbursement and the disability benefit. However, the Forum rightly allowed the complaint partly by granting benefits which are eligible to the complainant. He further argued that the Forum did not review its own order and passed two orders. But it is a clerical correction of earlier order. He finally prayed that since there is no illegality in the order of Forum and the same should be maintained.
7. None appeared for O.P.No.2 hence, we could not get opportunity to hear it.
8. After hearing both the parties on 24.09.2013 and perusal of the case papers we observed that the complainant got himself discharged from the Super Speciality Hospital, stating that the facility in the said hospital is not up to the mark and started taking treatment from the private Doctor, which creates suspicion about the intention of the complainant. Further as per the provisions of the ESI Act, it is mandatory that the complainant should have obtained Emergency Certificate from the CMIIS Hospital for the treatment;
he has taken in emergency condition nature for claiming reimbursement. Further it is also observed that the complainant did not take treatment for his illness from the ESI Dispensary since 22.02.2005. Hence, the Medical Board finally issued fitness certificate on 16.03.2005 stating that the complainant is fit to join duty. Since the medical certificate is issued by the Board is not eligible to get Extended Sickness benefit after 22.02.2005. If the complainant was not satisfied with the Fitness Certificate, issued by the Medical Board, he should have challenged it before the competent authority i.e. Labour Court. Regarding payment of reimbursement of medical bill it is very clear from the provisions of the ESI Act that the Employee State Insurance Scheme is run by the Government of Maharashtra, however, the complainant did make concerned authority under ESI Scheme as also party to the complaint. However, the Forum without going in detail of the scheme wrongly directed the O.P.No.1 to reimburse the medical bills, which cannot be maintainable.
9. Regarding order of payment of disability benefit to the complainant the Forum below also committed an error by relying on the disability certificate issued by the Chairman, Handicapped Board and the Civil Surgeon, Nagpur.
However, as per provision of Sec.2(15A) & 2(15B) of ESI Act, for getting disability benefit the disability should have been occurred due to the accident during the course of employment and not suffering from any disease as claimed by the complainant and allowed by the District Forum. For more clarity the above provisions are reproduced below:-
(15A)] permanent partial disablement means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:
Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement;] [(15B) permanent total disablement means such disablement of a permanent nature of incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement:
Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity as specified in the said Part II against those injuries, amounts to one hundred per cent or more].
10. Regarding passing of two orders dtd. 20.10.2008 and 26.05.2009 cannot be treated two separate orders because it is simply correction of clerical error.
11. For the foregoing reasons, we have come to the conclusion that the Forum below wrongly appreciated the facts and provisions of the law and allowed the complaint which is not maintainable. We therefore, pass the following order:-
ORDER i. The appeal is allowed ii. The impugned orders dtd. 20.10.2008 and 26.05.2009 passed by the Forum below, is hereby set aside.
iii. Consequently, the complaint bearing No. CC/08/194 is dismissed.
iv. No order as to cost in this appeal.
v. Copy of this order be supplied to the parties.
[ B. A. SHAIKH ] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER [ N. ARUMUGAM] MEMBER sj