State Consumer Disputes Redressal Commission
Ram Pal Singh vs E S I Corporation on 17 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2004/805 (Arisen out of Order Dated in Case No. of District State Commission) 1. Ram Pal Singh Noida ...........Appellant(s) Versus 1. E S I Corporation New Delhe ...........Respondent(s) BEFORE: HON'BLE MR. Vijai Varma PRESIDING MEMBER HON'BLE MR. Sanjay Kumar MEMBER For the Appellant: For the Respondent: Dated : 17 Aug 2017 Final Order / Judgement RESERVED State Consumer Disputes Redressal Commission U.P., Lucknow. Appeal No.805 of 2004 1- Rampal Singh s/o Sh. Bhoole Singh, 2- Smt. Brahmavati w/o Rampal Singh, Both R/o Village, Nithari, Sector-31, Noida. ....Appellants. Versus 1- ESI Corporation, Panchdeep Bhawan, Kotla Road, New Delhi through Director General. 2- ESI Hospital, Sector 24, NOIDA. 3- Dr. Anita, ESI Hospital, Sector, 24, NOIDA. 4- Dr. Preeti Sharma, ESI Hospital, Sector, 24, NOIDA. ...Respondents. Present:- 1- Hon'ble Sri Vijai Varma, Presiding Member. 2- Hon'ble Sri Sanjai Kumar, Member. Shri Ram Gopal for the appellants. None for the respondents. Date 13.9.2017 JUDGMENT
(Delivered by Sri Vijai Varma, Member) Aggrieved by the judgment and order dated 11.3.2004, passed by the Ld. DCDRF, Noida, Gautam Budh Nagar in complaint case No.996 of 2003 (245 of 1995), the appellants have preferred the instant appeal.
The facts leading to this appeal, in short, are that the appellant no.1/complainant no.1 is the husband of the appellant/complainant no.2 and the appellant no.1 is working in an Export Tractor Factory in Ghaziabad wherein the employees and their family members are provided medical facility through ESI dispensary. On 12.5.1994, the appellant no.1 has got admitted the (2) appellant no.2 for delivery in the hospital of the respondent/OP no.2 where on 6.12.1994 and 8.12.1994, OP no.3 & 4 had done cesarean operation whereby the appellant no.2 used to feel much pain and despite medicine there was no improvement in the condition of the appellant no.2, hence she was admitted in Kailash Hospital, Noida on the advice of the doctors where she was again operated on 21.12.1994 and then it was disclosed that while doing cesarean operation by the respondent no.3 & 4 a sponge was left in the stomach of the appellant no.2 and thus, they committed serious deficiency in service. The appellants had spent a lot of money in the treatment hence, the appellants/complainants filed a complaint case in the District Consumer Forum where the respondents/OP no.1 & 2 filed their WS submitting therein that after completion of the formalities a sum of Rs.1,12,102.06 was already paid through cheque to the complainants on 7.5.1996 and therefore, now no grievance remains. Besides this case was not maintainable as the dispute under Section 75(3) of the ESI Act was not maintainable in the Forum and therefore, the complaint was liable to be dismissed. After hearing the parties, the ld. Forum dismissed the complaint on the ground that this case was not maintainable under Section 75(3) of the ESI Act. It was also observed in the impugned order that there was no pecuniary jurisdiction of entertaining the complaint as the complaint was made for Rs.19,76,151.00 whereas the pecuniary jurisdiction of the Forum at the time of lodging the complaint was only Rs.5,00,000.00.
(3)Feeling aggrieved with the impugned order, the appellants/complainants have filed his appeal mainly on the grounds that the ESI Organization charges an amount to the tune of 4% through the salary of the employees for running the medical service and for the purpose ESI dispensary card was issued to the appellants/complainants. In the instant case, the ESI had failed to reimburse the policy holder and there was negligent discharge of medical duties by the OP doctors and therefore, the case was maintainable against the ESI. Even though the ESIC had reimbursed the appellant but compensation is to be awarded which is beyond the purview of the tribunal under the ESI Act and therefore, the ld. Forum has passed the impugned order wrongly that the case was not maintainable in the Forum. Therefore, the impugned order is liable to be set aside and the appeal allowed.
The respondent no. 1 & 2 filed their objections submitting therein that with regard to dispute between an employee and Principal or immediate employer and the corporation, the same is to be decided by the Employees Insurance Code in accordance with provisions of the ESI Act. Besides, contribution paid under the Act by the employees is not a consideration for a particular benefit but a statutory compliance on the part of the employer of the coverable units to pay contribution in respect of the persons employed by him. Under section 75(3) of the Act, no civil court was to have jurisdiction to decide any dispute or adjudicate any liability therefore, the under the aforesaid Section 75 of the ESI Act, this case was not (4) maintainable in the Forum and therefore, the ld. Forum has passed correct order and this appeal is liable to be dismissed.
The appellants/complainants have filed rejoinder to the reply filed by the respondents mainly reiterating the fact that this case was maintainable in the Forum as bar under ESI Act was not applicable in the instant case as per the Supreme Court pronouncement.
Heard counsel for the appellants. None appeared for the respondents. Perused the entire records.
In this case, the appellant no.1's wife appellant no.2 was admitted in an ESI dispensary for delivery where she was operated by the respondents no.3 & 4 of the hospital of the respondents no.1 & 2 as despite delivery there was no improvement in the condition of the appellant no.2 therefore, she was admitted in the private hospital where it was found that during the treatment that there was a sponge lying in the stomach of the complainant no.2 for which another operation took place and in all this the complainants had to suffer financially as well as physically. It transpires that after filing of the complaint the OPs no.1 & 2 a sum of Rs.1,12,102.06 was paid to the complainants and hence, the respondent no.1 and 2 took the plea that the case was not maintainable firstly, because after reimbursement the appellants no grievance remains and secondly, because the case was not maintainable as per Section 75 of the ESI Act.
So now, it is to be seen as to whether the complaint (5) was barred by pecuniary jurisdiction. It is also to be seen as to whether the case was not under the bar provided under Section 75(3) of the ESI Act.
First we take up the point as to whether the complaint was barred by pecuniary jurisdiction or not. In this regard, we find that this complaint was filed firstly in the District Forum, Ghaziabad and thereafter on the direction of the Hon'ble State Commission, that the complaint case was transferred to District Consumer Forum, Noida on 2.5.2003. It also transpires that at the time of filing of the case in the District Forum, Ghaziabad, the pecuniary jurisdiction of the Forum used to be upto Rs.5,00,000.00 whereas the complainants had filed the case seeking relief for grant of Rs.19,76,151.00. The pecuniary jurisdiction of Rs.5 lacs was raised to Rs.20 lacs of the Consumer Forum by amendment Act, 2002 and hence, when the case was being dealt with in the District Forum at Noida, the pecuniary jurisdiction had increased from Rs.5 lacs to Rs.20 lacs and this case being within the pecuniary jurisdiction of less than Rs.20 lacs was certainly maintainable after the amendment Act as discussed above. Therefore, it is clear that with regard to pecuniary jurisdiction the complaint was maintainable after the amendment of the Act. It is concluded accordingly.
Now we come to the main issue as to whether this case was not maintainable as per Section 75(3) of the ESI Act as held by the ld. Forum. If so, it consequences.
Ld. counsel for the appellants has argued that as per Section 75(3) of the ESI Act, this case can not be barred as (6) the remedy of awarding compensation against the deficient service can not be awarded by the ESI courts. For proper appreciation of the relevant section 75(3), it is important to reproduce below:-
"No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid to adjudicate on any liability, which by or under this Act is to be decided by (a medical board, or by a medical appeal tribunal or by the Employees Insurance Court)."
So as per aforesaid section, no Civil Court can have jurisdiction to entertain any complaint pertaining to any dispute under the ESI Act but the ld. counsel for the appellant has cited a ruling of the Hon'ble Supreme Court I(2008) CPJ 13 (SC), Kishore Lal vs. Employees State Insurance Corporation, wherein it has been held by the Hon'ble Supreme Court that "medical service rendered in ESI hospital/dispensary by the respondent Corporation falls within the ambit of service under the Consumer Protection Act" and further that "jurisdiction of Fora" was not ousted by Section 74 and 75 of the ESI Act and thereafter has held:-
"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(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 (7) 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 75 if it is a consumer's dispute falling under the CP Act."
So as per the aforesaid ruling of the Hon'ble Supreme Court, it is crystal clear that the claim could not have been barred under the provisions of the ESI Act but the ld. Forum has relied upon the judgment of Hon'ble NCDRC given in Arun Kumar Gupta vs. ESI Corporation, III(1998) CPJ 11 (NC) wherein it was held that the complaint against ESI was not maintainable under the bar provided under Section 75(3) of the ESI Act but from the aforesaid ruling of the Hon'ble Supreme Court, it is clear that the complaint was maintainable on the facts as are the facts in the instant case and therefore, this complaint was maintainable in the Forum below and the ld. Forum has erred in passing a wrong and erroneous order which is liable to the set aside.
Since with regard to the liability pertaining to the deficiency if any of the respondents/OPs have not been dealt with by the Forum below as the complaint case was dismissed on the ground of not being maintainable under (8) Section 75(3) of the ESI Act, therefore, this case deserves to be remanded back to the Forum below for adjudication afresh in the light of the observations made above.
ORDER The appeal is allowed. The impugned judgment dated 11.3.2004 is set aside and the case is remanded back to the Forum below for adjudication afresh in the light of the observations made above Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Sanjai Kumar) Presiding Member Member Jafri PA II Court No.3 [HON'BLE MR. Vijai Varma] PRESIDING MEMBER [HON'BLE MR. Sanjay Kumar] MEMBER