State Consumer Disputes Redressal Commission
Senior State Medical Commissioner Esic vs Jasveer Chand on 1 April, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1054 of 2014
Date of institution: 28.7.2014
Date of Decision: 1.4.2015
1. Senior State Medical Commissioner, ESIC, Sector 19-A,
Chandigarh.
2. Social Security Officer, ESIC, Local Office, Phase VII, industrial
Area, Mohali.
Appellants/OP Nos. 2 & 3
Versus
1. Jasveer Chand, Village Thathiala Bet, P.O. Garlon, Teh. Balachaur,
District Shaheed Bhagat Singh Nagar.
Respondent No.1/Complainant
2. S.M.O., ESIC Hospital, Phase - VII, Industrial Area, Mohali.
Respondent No.2/OP No.1
First Appeal against the order dated 3.6.2014
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. B.S. Bhatia, Advocate
For respondent No.1 : Sh. Karam Singh, Advocate
For respondent No.2 : Service dispensed with.
2nd Appeal
First Appeal No. 1055 of 2014
Date of institution: 28.7.2014
1. Senior State Medical Commissioner, ESIC, Sector 19-A,
Chandigarh.
2. Social Security Officer, ESIC, Local Office, Phase VII, industrial
Area, Mohali.
2
FIRST APPEAL NO. 1054 OF 2014
Appellants/OP Nos. 2 & 3
Versus
1. Vijay Singh, H. No. 484, Sector 56, Chandigarh.
Respondent No.1/Complainant
2. S.M.O., ESIC Hospital, Phase - VII, Industrial Area, Mohali.
Respondent No.2/OP No.1
First Appeal against the order dated 3.6.2014
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. B.S. Bhatia, Advocate
For respondent No.1 : Sh. Karam Singh, Advocate
For respondent No.2 : Service dispensed with.
3rd Appeal
First Appeal No. 1056 of 2014
Date of institution: 28.7.2014
1. Senior State Medical Commissioner, ESIC, Sector 19-A,
Chandigarh.
2. Social Security Officer, ESIC, Local Office, Phase VII, industrial
Area, Mohali.
Appellants/OP Nos. 2 & 3
Versus
1. Ravinder Singh Room No. 99/2, Ambedkar Colony, Balongi, Mohali.
...Respondent No.1/Complainant
2. S.M.O., ESIC Hospital, Phase - VII, Industrial Area, Mohali.
Respondent No.2/OP No.1
First Appeal against the order dated 3.6.2014
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
3
FIRST APPEAL NO. 1054 OF 2014
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. B.S. Bhatia, Advocate
For respondent No.1 : Sh. Karam Singh, Advocate
For respondent No.2 : Service dispensed with.
4th Appeal
First Appeal No. 1057 of 2014
Date of institution: 28.7.2014
1. Senior State Medical Commissioner, ESIC, Sector 19-A,
Chandigarh.
2. Social Security Officer, ESIC, Local Office, Phase VII, industrial
Area, Mohali.
Appellants/OP Nos. 2 & 3
Versus
1. Anu Prabhakar, H. No. 751-C, Phase 9, Mohali.
...Respondent No.1/Complainant
2. S.M.O., ESIC Hospital, Phase - VII, Industrial Area, Mohali.
Respondent No.2/OP No.1
First Appeal against the order dated 3.6.2014
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. B.S. Bhatia, Advocate
For respondent No.1 : Sh. Karam Singh, Advocate
For respondent No.2 : Service dispensed with.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
4 FIRST APPEAL NO. 1054 OF 2014 This order will dispose of all the above referred four appeals because these appeals cover similar facts and in all the four appeals similar dispute is involved. For the convenience, the facts have been taken from First Appeal No. 1054 of 2014. This appeal has been filed by OP Nos. 2 & 3 against the order dated 3.6.2014 passed in Consumer Complaint No. 70 dated 21.1.2014 by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short the District Forum) vide which the complaint filed by the complainant was allowed with a direction to OP Nos. 2 & 3 to pay to the complainant a lumpsum compensation of Rs. 20,000/- for harassment and cost of litigation. It was further ordered that OP Nos. 2 & 3 shall conduct an inquiry, fix the responsibility of the delinquent officers/officials, who delayed the payment to the complainant and shall recover the aforesaid amount from the salary of the delinquent officers/officials and apprise the result of the inquiry and action taken thereon to this Forum within two months.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') by stating that he was working with M/s Janta Land Promoters Ltd. as a Driver since 1.1.2006 and had deposited ESI contribution @ 1.75% from his salary with Employer's Contribution at the rate of 4.75%. He got the treatment from PGI in Emergency after referred by ESI Hospital, Phase VII, Mohali. He submitted the bill for reimbursement on 7.3.2012 for completing all the formalities. He had complained to the Senior State Medical Commissioner, Sector 19-A, Chandigarh for his reimbursement but it was not paid, accordingly, the complaint was 5 FIRST APPEAL NO. 1054 OF 2014 filed with a direction to the Ops to clear the reimbursement bill of Rs. 18,080/- and also pay Rs. 20,000/- on account of compensation and Rs. 10,000/- as litigation expenses.
3. The complaint was contested by the Ops. OP No. 1 in its reply stated that the complainant submitted the reimbursement bill of Rs. 18,080/- to this Dispensary. The cheque was received by SSMC Office on 25.2.2014 and was delivered to the concerned I.P. on 26.2.2014.
4. Whereas OP Nos. 2 & 3 have taken the preliminary objections that the complaint was not maintainable as the complainant had not approached the Hon'ble Forum with clean hands; the complaint was not properly verified according to Order VI Rule 15 CPC; complaint was bad for non-joinder of necessary parties as Director, Health Services was not impleaded as a party. According to the procedure, bill was submitted to the concerned dispensary to which the insured person attached and then to the SMO, Incharge and then these were sent to Director, Health Services for passing and sanctioning the same and then to Medical Commissioner, ESIC, who issued the cheque. In this case, the bills were cleared by Director, Health Services on 13.2.2014, Cheque No. 646415 was prepared and delivered, therefore, there was no delay on the part of these Ops. OP No. 2 has no role to play in the verification and passing of the bills as per Section 45(2) of the ESI Act, which is relevant with regard to the duties and function of the Social Security Officer. The same was reiterated on merits and ultimately, it was submitted that the complaint was without merit and it be dismissed. 6 FIRST APPEAL NO. 1054 OF 2014
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1/1, I Card Ex. C-1, prescription slip Exs. C-2 & 3, bill Ex. C-4, instructions & duties and responsibility Exs. C-5&6. On the other hand, OP Nos. 2 & 3 had tendered into evidence affidavit of Sanjeev Kumar, SSO, ESIC, instt. Ex. Op-1, reply to letter dt. 28.1.14 Ex. Op-2.
7. After going through the allegations in the complaint, written reply filed by the OPS, evidence and documents brought on the record, it was observed that during the pendency of the complaint, the bills have been cleared and delivered to the complainant on 26.2.2014 on account of delay on the part of the Ops. Lumpsum compensation of Rs. 20,000/- has been allowed against the OP Nos. 2 & 3.
8. We have heard the learned counsel for the parties. FIRST APPEAL NO. 1054 OF 2014
9. In the appeal, it was contended by the counsel for the appellants/OP Nos. 2 & 3 that according to Section 75(3) of ESI Act, 1948, the Consumer Fora did not have the jurisdiction as it was barred under Section 75(3) of the ESI Act, which reads as under:-
"No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or 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."7
FIRST APPEAL NO. 1054 OF 2014
10. The Civil Court also includes of Consumer Fora, therefore, the learned District Forum did not have the jurisdiction to entertain the consumer complaint. However, the counsel for the complainant has referred to the judgment of the Hon'ble Supreme Court in case "Kishore Lal Vs. Chairman, Employees State Insurance Corporation" Civil Appeal No. 4965 of 2000 decided on 8.5.2007 wherein one of the question before the Hon'ble Supreme Court was whether the complaint under the CP Act is maintainable. The Hon'ble Apex Court after discussing the various judgments held that the jurisdiction of the Consumer Fora would not be barred and the power of the Consumer Fora to adjudicate the dispute could not be negated. No contrary judgment was referred by the counsel for the appellants, therefore, we do not agree with the plea raised by the counsel for the appellant that the Consumer Fora did not have the jurisdiction to entertain this complaint.
11. It was further contended by the counsel for the appellant that the District Forum failed to appreciate Section 58 of the Act, which involves the role of the State Government and the Director, Health Services. Section 58 of the Act reads as under:-
"58. Provision of medical treatment by State Government.--(1) The State Government shall provide for insured persons and (where such benefit is extended to their families) their families in the State reasonable medical, surgical and obstetric treatment:
Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment at 8 FIRST APPEAL NO. 1054 OF 2014 clinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon. (2) Where the incidence of sickness benefit payment to insured persons in any State is found to exceed the all-India average, the amount of such excess shall be shared between the Corporation and the State Government in such proportion as may be fixed by agreement between them:
Provided that the Corporation may in any case waive the recovery of the whole or any part of the share which is to be borne by the State Government.
(3) The Corporation may enter into an agreement with a State Government in regard to the nature and scale of the medical treatment that should be provided to insured persons and (where such medical benefit is extended to the families) their families (including provision of buildings, equipment, medicines and staff) and for the sharing of the cost thereof and of any excess in the incidence of sickness benefit to insured persons between the Corporation and the State Government. (4) In default of agreement between the Corporation and any State Government as aforesaid the nature and extent of the medical treatment to be provided by the State Government and the proportion in which the cost thereof and of the excess in the incidence of sickness benefit shall be shared between the Corporation and that Government, shall be determined by an arbitrator (who shall be or shall have been a Judge of the [High Court] [of a State] appointed by the Chief Justice of India and 9 FIRST APPEAL NO. 1054 OF 2014 the award of the arbitrator shall be binding on the Corporation and the State Government.
(5) The State Government may, in addition to the Corporation under this Act, with the previous approval of the Central Government, establish such organisation (by whatever name called) to provide for certain benefits to employees in case of sickness, maternity and employment injury:
Provided that any reference to the State Government in the Act shall also include reference to the organization as and when such organisation is established by the State Government.] [(6) The organization referred to in sub-section (5) shall have such structure and discharge functions, exercise powers and undertake such activities as may be prescribed.]"
12. The abovesaid provision will make it clear that there is an arrangement between the Corporation and the State Government, how the medical treatment is to be provided to the workers registered under the scheme. No doubt that there may be some role of the State Government in the form of sanction from the Director, Health Services but ultimately it is the appellants, who are responsible to make the payment. In case any medical bill has been submitted to the District Health Services then it was also the duty of the Officers of the Corporation to supervise that the same are passed within the shortest possible time so that petty workers, who are covered under the scheme and had spent sufficient amount from their own pocket are reimbursed at the earliest possible. Therefore, even if there is 10 FIRST APPEAL NO. 1054 OF 2014 some arrangement between the State Government and the Corporation how to provide the treatment to the workers registered under the Scheme even then the Corporation cannot absolve its liability to clear the bills in time. Already the District Forum has passed the order directing OP Nos. 2 & 3 to hold the inquiry and in case any Officer/Official is found guilty for causing delay. The liberty has been given to the Corporation to recover the amount from their salary. It is worth mentioning that in these days, the Governments are boasting to give good governance and in case a medical reimbursement bill of a petty employee is pending for want of sanction for year together then what type of good governance it is? Therefore, the Government or the Corporation are required to nail its officers/officials to clear the bills within a reasonable time.
13. So far as Section 45 enumerates the duties of Social Security Officer(in short SSO), who is to help the employees falling in his jurisdiction to give assistance in getting all the benefits to them to which they are eligible. SSO is also working under the Corporation. It is special Officer designated to assist the employees to get their eligible benefits. However, in case SSO is not keeping the track and is not helpful to its employees then what is the necessity to create such a post under the Corporation. Certainly, there is deficiency in services on the part of the Ops because they took a long time approximately about 2 years in clearing the medical reimbursement bill of the complainant. All the points have been properly addressed by the learned District Forum. The counsel for the appellants has not been able to pin-point any illegality in the order so passed by the 11 FIRST APPEAL NO. 1054 OF 2014 learned District Forum, therefore, we affirm the order of the District Forum.
14. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
15. The appellants had deposited an amount of Rs. 10,000/- with this Commission at the time of filing the appeal. This amount of Rs. 10,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
16. Remaining amount shall be paid by the appellants to respondent No. 1 within 30 days from the receipt of the copy of the order.
FIRST APPEAL NO. 1055 OF 2014
17. In this case, the bill of Rs. 45,975/- was submitted in the month of January, 2013 and the payment was made on 31.1.2014 after a gap of one year. Accordingly, deficiency in services on the part of the Ops was alleged.
18. Same is the defence taken by the Ops. On the basis of pleadings and evidence on the record, the learned District Forum allowed the complaint directing OP Nos. 2 & 3 to pay a lumpsum compensation of Rs. 20,000/-, which includes cost of litigation.
19. The order has been challenged by OP Nos. 2 & 3 on the same grounds as referred in F.A. No. 1054 of 2014. Therefore, our findings recorded in F.A. No. 1054 of 2014 be also read in this appeal.
12FIRST APPEAL NO. 1054 OF 2014
20. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs. The order of the District Forum is affirmed.
21. The appellants had deposited an amount of Rs. 10,000/- with this Commission at the time of filing the appeal. This amount of Rs. 10,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
22. Remaining amount shall be paid by the appellants to respondent No. 1 within 30 days from the receipt of the copy of the order.
FIRST APPEAL NO. 1056 OF 2014
23. In this case, the bill of Rs. 45,773/- was submitted in the month of June, 2012 and the payment was made on 18.2.2014 after a gap of more than one year eight months. Accordingly, deficiency in services on the part of the Ops was alleged.
24. Same is the defence taken by the Ops. On the basis of pleadings and evidence on the record, the learned District Forum allowed the complaint directing OP Nos. 2 & 3 to pay a lumpsum compensation of Rs. 20,000/-, which includes cost of litigation.
25. The order has been challenged by OP Nos. 2 & 3 on the same grounds as referred in F.A. No. 1054 of 2014. Therefore, our findings recorded in F.A. No. 1054 of 2014 be also read in this appeal.
13FIRST APPEAL NO. 1054 OF 2014
26. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs. The order of the District Forum is affirmed.
27. The appellants had deposited an amount of Rs. 10,000/- with this Commission at the time of filing the appeal. This amount of Rs. 10,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
28. Remaining amount shall be paid by the appellants to respondent No. 1 within 30 days from the receipt of the copy of the order.
FIRST APPEAL NO. 1057 OF 2014
29. In this case, the bill of Rs. 36,587/- was submitted in the month of 27.3. 2012 but no payment was made to the complainant. Accordingly, deficiency in services on the part of the Ops was alleged.
30. Same is the defence taken by the Ops. On the basis of pleadings and evidence on the record, the learned District Forum allowed the complaint directing OP Nos. 2 & 3 to reimburse his medical bills to the tune of Rs. 29,058/- with interest thereon @ 9% p.a. from the date of submission till realization and pay a lumpsum compensation of Rs. 20,000/-, which includes cost of litigation.
31. The order has been challenged by OP Nos. 2 & 3 on the same grounds as referred in F.A. No. 1054 of 2014. Therefore, our 14 FIRST APPEAL NO. 1054 OF 2014 findings recorded in F.A. No. 1054 of 2014 be also read in this appeal.
32. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs. The order of the District Forum is affirmed.
33. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
34. Remaining amount shall be paid by the appellants to respondent No. 1 within 30 days from the receipt of the copy of the order.
35. The arguments in these appeals were heard on 24.3.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.
36. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
37. Copy of this order be placed on F.A. No. 1055, 1056 & 1057 of 2014.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 1, 2015. (Harcharan Singh Guram) as Member 15 FIRST APPEAL NO. 1054 OF 2014