Central Administrative Tribunal - Ernakulam
N.R.Purushothaman Pillai vs Union Of India Represented By on 19 June, 2013
Central Administrative Tribunal
Ernakulam Bench
OA No.1168/2012
Tuesday, this the 19th day of June, 2013.
C O R A M
HON'BLE DR.K.B.S.RAJAN, JUDICIL MEMBER
N.R.Purushothaman Pillai
Enforcement Officer (Retd)
B-20, Dhanam
Ilangam Gardens
Thiruvananthapuram-695 010. Applicant
(By Advocate: Mr.C.S.G Nair)
Versus
1. Union of India represented by
its Secretary
Ministry of Health
New Delhi-110 001.
2. Director General
Central Government Health Scheme
New Delhi-110 001.
3. Joint Director
Central Government Health Scheme
Pattom
Thiruvananthapuram-695 004. Respondents
(By advocate : Ms.Jishamol Cleetus, ACGSC)
This Original Application having been heard on 11th June, 2013, the
Tribunal on 19th June, 2013 delivered the following:-
O R D E R
HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER OA No. 1053 of 2010 was earlier filed by the applicant in which the following order was passed by the Tribunal:-
"9. In view of the above, the Original Application is disposed of with the direction to the 3rd respondent to transmit all the documents relating to the applicant's claim to the Director General, Central Government Health Scheme, New Delhi so that the latter shall consider the same keeping in view the decision of the Apex Court in respect of claims of medical reimbursement in the following cases :-
(a) State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117, wherein the Apex Court has held as under :-
29. No State of any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
(b) Confederation of Ex-Servicemen Associations v. Union of India, (2006) 8 SCC 399. This was however, in connection with the challenge as to whether there should be no one time payment at all by the Ex Servicemen for their medical treatment and should the government bear the full amount.)
(c) State of Punjab v. Mohan Lal Jindal, (2001) 9 SCC 217, after referring to 'Ram Lubhaya Bagga' the Apex Court has observed as under :
It was however, vehemently submitted by learned counsel for the respondent that exception deserves to be made in this case as the respondent who was a Teacher could not afford such huge medical expenses which had to be incurred by him due to long queue for bypass surgery in the AIIMS Hospital and he had to go to other hospital. It is further submitted by learned counsel for the respondent that the appellants may consider his grievance. He may submit such a representation on compassionate grounds. We have no doubt that such a representation will be sympathetically considered by the appellant authorities on its own merits. The judgment of the High Court will stand modified to the extent indicated herein.
(d) Secy. Irrigation & Power, Govt. of Punjab vs Surjit Singh (1999) 9 SCC 219, the Apex Court has permitted retention of excess amount if paid as reimbursement to the employee.
(e) In K.B. Singh vs Union of India (2001) 10 SCC 1678, the observation of the Apex Court is as under :-
6. The last grievance, and it is of some note, is that a beneficiary of the Scheme will receive reimbursement only at the rate approved by the CGHS, regardless of the fact that in his particular town or city there are only private hospitals and no government hospital; there is, therefore, no option for him but to enter a private hospital for such treatment. It is also submitted that the approved rates are not updated by the CGHS from time to time so that what the beneficiary receives by way of reimbursement can be substantially less than the cost that has actually been incurred upon his hospitalization. While there is, we think, merit in the submission, it is not for us to dictate what should be done. We direct that the Union of India shall immediately consider this aspect and give appropriate directions thereon. It would clearly be appropriate for it to update its approved rates on an annual or, at least, biennial basis.
(f) In the case of State of Karnataka v. R. Vivekananda Swamy, (2008) 5 SCC 328, the Apex Court has held as under :-
20. Law operating in this field, as is propounded by courts from time to time and relevant for our purpose, may now be taken note of.
21. In Surjit Singh v. State of Punjab this Court in a case where the appellant therein while in England fell ill and being an emergency case was admitted in Dudley Road Hospital, Birmingham. After proper medical diagnosis he was suggested treatment at a named alternate place. He was admitted and undergone bypass surgery in Humana Hospital, Wellington, London. He claimed reimbursement for the amount spent by him. In the peculiar facts of that case it was held :
"11. It is otherwise important to bear in mind that self- preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognized it. Attention can usefully be drawn to Verses 17, 18, 20 and 22 in Chapter 16 of Garuda Purana (a dialogue suggested between the Divine and Garuda, the bird): in the words of the Divine :
17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.
18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.
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20. Sharirarakshanopaayaah kriyante sarvadaa budhaih
Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.
* * 22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet
Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself."
In the above case as well, the Apex Court approved provisions of relaxation in the Rules and in fact the Apex Court under the facts and circumstances of that case as well as another case of Rajasthan, invoked the provisions of Art. 142 of the constitution.
(g) In the case of Government of Haryana s Vidya Sagar (2009) 14 SCC 652 the Apex court has qualified the act of full reimbursement of medical expenses in respect of heart treatment as an act of "magnanimity"
10. The decision of the Director General shall be arrived at within a period of two months from the date the 3rd respondent forwards the paper to him. The 3rd respondent shall within a period of six weeks from the date of communication of this order forward the case for consideration by the Director General, Health Services.
11. With the above directions, the Original Application is disposed of. No costs.
2. In due compliance of the above order, the respondents have convened a Committee which went into the entire gamut of the case and ultimately, vide Annexure A10, opined as under:-
"Cytotron Therapy is an experimental modality of treatment of osteo- arthritis of Knee based on unproven hypothesis of cartilage regeneration using electromagnetic field. It is not supported by adequate objective clinical & research evidence either in India or abroad. It is not approved by any regulatory authority and is not reimbursed by any insurance agency anywhere."
3. The applicant has challenged the said order at Annexure A-10 as also Annexure A-11 communicating the said Annexure A-10 mainly on the ground that though the expert committee has stated that the therapy was not approved by any regulatory authority and is not reimbursed by any insurance agency, the fact is that the Ombudsman of the United India Insurance Company had allowed the same and also a District Consumer Protection Disputes Redressal Forum had allowed the claim of the petitioner before it. Annexure A-12 and A-13 refer.
4. The applicant has, therefore, filed this OA seeking the following reliefs:-
a) To call for the records leading to the issue of Annexure A7, A10 and quash the same.
b) To direct the respondents to reimburse the medical claim for the treatment of Cytotron Therapy for Osteoarthritis obtained by the applicant at Gautham Hospital, Cochin within a stipulated period.
c) To grant such other relief or reliefs that may be prayed for or that are found to be fit and necessary in the circumstances of the case.
d) To grant cost of the OA.
5. Respondents have contested the O.A. According to them, the insurance claims were all allowed on technical grounds relating to Indoor/Outdoor treatment of the patient. Nowhere it is mentioned that the Cytotron Therapy is an approved modality of treatment and no Technical Standing Committee or expert committee report is referred to in support of the said Therapy.
6. Counsel for the applicant argued that the applicant did incur expenditure on medical treatment and had spent a lakh and odd under the above therapy. The decision of the Expert Committee deviates from the decision of the Ombudsman of the United India Insurance Company and the decision of the Consumer Forum.
7. The predicament of the Government is understandable. When a particular therapy is in its nascent stage and has not been one of the approved modalities of treatment, recognizing the same as qualifying for medical reimbursement would have far reaching effect. The decision of the Expert Committee cannot be subjected to judicial scrutiny save on the ground of malafide and the like. In this regard, reference could be invited to the case of Basavaiah (Dr) vs Dr. H.L. Ramesh (2010) 8 SCC 372, wherein the Apex Court has held as under:-
"21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture."
8. It has been informed by the Counsel for the respondents that all other expenses of approved modalities of treatment have been reimbursed. (This has not been rebutted by the counsel for the applicant). It is only the expenditure incurred on Cytotron Therapy that has, due to non recognition of therapy, been denied to the applicant.
9. In view of the above, the Tribunal has no option but to dismiss the O.A. No cost.
(DR.K.B.S.RAJAN) JUDICIAL MEMBER aa.