State Consumer Disputes Redressal Commission
Employee State Insurance Corporation ... vs Amarjit Singh And Others on 30 March, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.726 of 2013 Date of Institution: 04.07.2013 Date of Decision: 30.03.2016 1. Employee State Insurance Corporation through its Regional Director, Chandigarh. 2. Employee State Insurance Corporation Sub Regional Office through office Incharge, Shaheed Udham Singh Nagar, Jalandhar. Appellants/Opposite parties no.3 and 4 Versus 1. Amarjit Singh son of Sh. Gurcharan Singh, resident of WJ-93, Basti Guzan, Jalandhar. Respondent no.1/ Complainant 2. Tagore Hospital and Heart Care Centre Pvt. Ltd., through Managing Director, Banda Bahadur Nagar, Mahavir Marg, Jalandhar. 3. Dr. Nitish Garg MD, DM (Cardiology) Tagore Hospital and Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar. 4. Oriental Insurance Company, Divisional Office 32. G.T Road, Jalandhar through its Manager. Respondents no.2 & 3 /Opposite Parties No.1,2 & 5. First Appeal against order dated 06.05.2013 passed by the District Consumer Disputes Redressal Forum, Jalandhar Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri.H.S.Guram, Member Present:-
For the appellants : Sh.Adarsh Malik, Advocate For respondent no.1 : Ms. Mandeep Kaur Kohlar, Advocate For respondent no.2 &3 : Sh.Munish Goel, Advocate For respondent no.4 : Sh. D.P Gupta, Advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Aggrieved by order dated 06.05.2013 of District Consumer Disputed Redressal Forum Jalandhar (in short, the District Forum), the appellants of this appeal (the opposite parties no.3 and 4) in the complaint) have directed this appeal against the respondent no.1 of this appeal (the complainant in the complaint), respondents no.2 and 3 (the opposite parties no.1 and 2 in the complaint) and respondent no.5 (the opposite party no.5 in the complaint). The District Forum partly accepted the complaint of the complainant by directing the OPs no.3 and 4 to pay medical claim of the complainant, as per its rules and regulations ignoring the shortage of one day's attendance of the complainant during the period in question within one month positively and further to pay composite amount of Rs.5,000/- as compensation and litigation expenses. The instant appeal has been preferred against the same by the opposite parties no. 3 and 4 now appellants in this appeal.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he has been working in Sarb Multiplex as a Supervisor since 01.11.2008 and is covered under ESI Scheme having ESI No.9703140. OPs no.1 and 2 are the hospitals rendering service regarding heart surgery and OPs no.3 and 4 also rendering the services of employees state insurance and OP No.5 has joint and several liability being insurance company. On 17.12.2009, the complainant fell sick due to heart attack and approached ESI Hospital and on the direction of the ESI Hospital, he was referred to the Tagore Hospital, which was covered under ESI Scheme. As per direction of the doctors, complainant was operated for heart surgery on 19.12.2009 and was advised bad rest for a period of four months. All the expenses of the open heart surgery of complainant were borne by the ESI Department, as complainant was under ESI Scheme. The doctor assured the complainant that his operation was successful and there was nothing wrong therewith. The complainant again suffered heart attack on 24.08.2010 and was again referred to Tagore Hospital by the doctors of the ESI Hospital Jalandhar. The complainant was asked by the Tagore Hospital for the eligible certificate from the ESI Department. The doctors again diagnosed the complainant by referring him to angiography. The complainant and his family members were asked that one arties of the heart of the complainant was again blocked and OPs no.1 and 2 recommended for the stenting of the blocked arties. OPs no.1 and 2 failed to explain the same, as such the complainant and his family members have no option except for the stenting of one of the arteries of the heart. OPs no.3 and 4 refused to give the eligible certificate to complainant on the ground that during the past six months, the complainant had appearance of total attendance of 77 days instead of 78 days, which is the pre-condition for the eligible certificate to be issued under ESI Scheme. It was brought to the knowledge of OPs no.1 and 2 that complainant was absent on one day due to medical bed rest, as advised by the doctors and it was not intentional and willful. The complainant again suffered from the disease of heart attack due to medical negligence of OPs no.1 and 2, as he was earlier operated through open heart surgery. The complainant spent the amount of Rs.2 lac by arranging it from his family friends and relatives, as and when he recovered the same from ESI, it was to be returned it to them. The absence was of one day and it was required under ESI Scheme, absence of at least 78 days. The complainant averred that OPs no.1 and 2 have been medically negligent and OPs no.3 and 4 wrongfully repudiated the genuine claim of the complainant and they are deficient in service. The complainant has, thus, filed complaint against OPs with the prayer that OPs be directed to admit the claim of the complainant pertaining to the medical expenses borne by the complainant to the tune of Rs.2 lac and to release the same to the complainant. The complainant has also prayed for Rs.5 lac for mental harassment and Rs.11,000/- as costs of litigation.
3. Upon notice, OPs no.1 and 2 filed its separate written reply raising preliminary objections that entire complaint is vitiated by malafides and ill-intentions. The problem of complainant is only with OPs no.3 and 4. Any deficiency in service on the part of OPs no.1 and 2 was vehemently denied. The complaint is alleged to be bad for misjoinder of causes of action. The complainant had mild disease of coronary artery on 17.12.2009 and it could further develop into Acute Myocardial Infraction at any time. On 26.08.2010, the complainant's PTCA and stenting was done by Dr. Amit Jain, Senior Cardiologist with correct results and there was no negligence on the part of the doctor. The problem of stenting could have been avoided, if he had been to the OPD of the hospital for examination regularly, but he has not followed it. From 12.03.2010 to 23.08.2010, there was a gap of more than 5 months, but complainant had not visited the hospital of OP No.1 at all for follow up. On merits, OPs no.1 and 2 contested the complaint of the complainant. It was admitted that Dr. Nitish Garg M.D , D.M diagnosed the complainant and hence coronary angiography was advised to him. The coronary angiography showed significant disease in LAD (Left Anterior Descending Artery) and mild disease in LCx (Left Circumflex Artery). The right coronary artery (RCA) was nondominant vessel. Two grafts on LIMA to LAD & SVG to LAD were put as per report and surgery was successful of the complainant. The complainant again suffered heart attack on 24.08.2010. Another LCx was blockage of 80% due to which he sustained heart attack. This vessel had only a mild disease at the time of last CABG. OPs no.1 and 2 contested the complaint of the complainant and prayed for dismissal of the complaint.
4. OPs no.3 and 4 filed their separate written reply raising preliminary objections that complainant has not come to the court with clean hands. The complaint is alleged to be barred for want of jurisdiction. OPs further averred that complaint is not maintainable in the present form, as per rules and regulations provided by Employees State Insurance Act 1948 and is liable to be dismissed on that score. Ops no.3 and 4 prayed for dismissal of the complaint.
5. OP no.5 filed its separate written reply raising preliminary objections that complainant is not a 'consumer' of the OP. The complainant has not come to the Forum with clean hands. On merits, OP no.5 contested the complaint of the complainant and prayed for dismissal of the complaint.
6. The complainant tendered in evidence, his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-21. As against it; OPs tendered in evidence affidavit of Dr. Vijay Mahajan M.D Tagore Hospital & Heart Care Centre Ltd Ex.OP-1/A, affidavit of Dr. Nitish Garg M.D D.M C/o Tagore Hospital & Heart Care Centre Ex.OP-2/A along with copies of documents Ex.OP-1 to Ex.OP-10. On conclusion of evidence and arguments, the District Forum Jalandhar, accepted the complaint of the complainant by virtue of order dated 06.05.2013. Dissatisfied with the order of the District Forum Jalandhar dated 06.05.2013, the OPs No.3 and 4 now the present appellants, carried this appeal against the same.
7. We have heard learned counsel for the parties and have also examined the evidence on the record in this case. Ex.C-1 is report of Angiography dated 17.12.2009, as per this report, left heart study was not done. Selective coronary angiography was done via right radial artery using 5F TIG curve Catheter. The procedure was done under aseptic precaution. It further proved that LCA being dominant vessel and showed mild disease at mid part. Left artery was found to be 100% blocked. Right Coronary Artery being non-dominant vessel was 99% blocked. At the time of first bye-pass surgery, the left circumflex artery was having a mild disease or blockage and it did not require grafting or stenting. During intervening period of eight months, the blockage of his left circumflex artery might have rapidly progressed or increased. Vide Ex.C-3, the complainant was admitted in the hospital of OP No.1 on 17.12.2009 and underwent coronary angiography (CAG) followed by Coronary Artery Bypass Grafting (CABG) on 19.12.2009 and was discharged on 26.12.2009. Ex.C-4 and Ex.C-5 have also been considered by us in this regard. OPD referral Slip dated 18.12.2009 Ex.C-6 and another referral slip dated 24.08.2010 of Employees State Insurance Corporation Jalandhar Ex.C-7 have been examined by us. The complainant suffered second heart attack again on 24.08.2010 after eight months from first bye-pass surgery. The blockage in his left circumflex artery could have rapidly progressed or increased and we find no medical negligence on the part of OPs no.1 and 2 in this regard and finding of District Forum on this point is endorsed by us.
8. We now touch the case of the complainant against OPs no.3 and 4 with regard to the refusal to pay the medical expenses incurred by the complainant for his second heart attack on 24.08.2010. The submission of counsel for OPs no.3 and 4 before us is that jurisdiction of Consumer Forum is barred under Section 76 of Employees State Insurance Act. The District Forum relied upon the judgment of the Apex Court in Kishore Lal versus Chairman Employees, reported in (2007) 4 Supreme Court Cases 579 that jurisdiction of Consumer Forum has to be construed liberally. Generally, jurisdiction of Consumer Forum should not be curtailed, unless there is an express provision to the contrary. The Consumer Forum has been vested with the additional remedy under Section 3 of the Act. The contention of the appellant is not accepted on this point.
9. The only point of controversy between the complainant and OPs no.3 and 4 is whether complainant attended duty for 77 days instead of 78 days, as such he is not entitled to this claim. The submission of counsel for the complainant is that it was due to medical advice/prescription of bed rest by the doctor and OPs no.3 and 4 are not justified in declining the claim of the complainant. Section 73 of Employees State Insurance Act, 1948 lays as under:-
"Employer not to dismiss or punish employee during period of sickness, etc -
(1) No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period of the employee is in receipt of sickness benefit or maternity benefit, nor shall be except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work.
(2) No notice of dismissal of discharge or reduction given to an employee during the period specified in sub-section (1) shall be valid or operative."
10. From perusal of evidence on the record and in view of Section 73 of the Employees State Insurance Act, 1948, it is pellucid that employee, who is absent due to illness is not to be punished. Vide certificate Ex.C-4, complainant was advised rest for six weeks after discharge from the hospital on 26.12.2009. It was beyond the capacity of the complainant to have completed one day short, as he suffered second heart attack also. We concur with the findings of the District Forum that absence of one day in this case was due to bed rest advised by the doctor on medical ground to complainant and there was no intentional or deliberate absence on his part. The counsel for the appellants referred to law laid down by Bombay High Court in Ramchandra Sitaram Kale versus The Maharashtra State Road Transport Corporation, reported in 2009(2) LLJ 686. We find that Section 73 of Employees State Insurance Act lays down that no notice of dismissal or discharge or reduction given to an employee during the period specified in Sub section (1) shall be valid or operative. The notice given to employee regarding dismissal or discharge during the period of his illness is not valid or operative. There is no misconduct on the part of the employee in this case and facts of the cited authority pertain to misconduct. We find that the instant case is a case of medical incapacity of the complainant on account of medical ailment prescribing him bed rest for a period of six weeks w.e.f. 27.12.2009 to 26.01.2010. It is not on account of any bad intention of the complainant. Consequently, the District Forum rightly passed the order under challenge in this case and same is held to be sustainable in the eyes of law.
11. As a result of our above discussion, we affirm the order of the District Forum Jalandhar dated 06.05.2013 under challenge in this case and resultantly the appeal filed by the appellant is ordered to be dismissed.
12. The appellant had deposited the amount of Rs.25,000/- at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.
13. Arguments in this appeal were heard on 28.03.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S GURAM) MEMBER March 30, 2016 (ravi)