National Consumer Disputes Redressal
Union Of India & 3 Ors. vs Ch. Padmaja on 7 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2794 OF 2012 (Against the Order dated 27/01/2012 in Appeal No. 1119/2010 of the State Commission Andhra Pradesh) 1. UNION OF INDIA & 3 ORS. Department Of Posts Rep By its Director General New Delhi - 110 001 Delhi 2. The Chief Postmaster General A.P Circle Hyderabad A.P 3. The Post Master General Vijayawada Region Vijayawada 4. The Supdt Of Post Offices Guntur Division Guntur - 7 A.P ...........Petitioner(s) Versus 1. CH. PADMAJA Office Asst O/O Supt Of Post Offices Guntur Division Guntur A.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : MR. BALDEV MALIK & MR. ARJUN MALIK For the Respondent : MR. GUNTUR PRAMOD KUMAR Dated : 07 Sep 2015 ORDER This revision is directed against the order of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (in short, "the State Commission") in first appeal No.1119/2010 whereby the State Commission Hyderabad dismissed the appeal of the petitioners opposite parties against the order of District Forum Guntur in CC No. 542/2007.
2. Briefly stated the factual matrix of the case is that the complainant has been working as Office Assistant in the office of Superintendent of Post Offices, Guntur Division. The complainant's daughter Anusha was born on 26.01.1999 with bi-lateral profound deafness. The child was provided with digital hearing aids in both the ears since 2001. The child had to undergo speech therapy but there was no improvement with the existing equipment.
3. The complainant by virtue of her employment was a beneficiary of medical facility for self as well her family members. The Chief Medical officer Incharge of the Postal Dispensary Guntur referred the case of baby Anusha to Government General Hospital Guntur for investigation, diagnosis and treatment.
4. As the facility for investigation / diagnosis were not available in the dispensary, the Superintendent, Government General Hospital, Guntur referred the case of the complainant's daughter to Government ENT Hospital, Koti, Hyderabad. The complainant submitted a letter in the office of Superintendent of Post Offices seeking permission for her daughter to undergo "Cochlear Implant Surgery" at Government ENT Hospital Koti, Hyderabad and the Superintendent of Post Offices ( OP No.4) vide letter dated 01.06.2005 granted permission for the treatment of the daughter of the complainant at Government ENT Hospital, Koti, Hyderabad. The said letter reads as under :
"To Smt. Ch.Padmaja Office Assistant O/o Supdt. Of Post Offices Guntur-522 007 No. AC/Med/Chp dated at Guntur 522 007 the 01.06.2005 Sub: Grant of permission to attend Govt. ENT hospital, Koti, Hyderabad-reg.
Ref: Your representation dated 01.06.2005 Since the Superintendent, Government General Hospital, Guntur referred your daughter's case to Government ENT Hospital, Koti, Hyderabad, you are permitted to attend the said hospital."
5. The child was taken to Government ENT Hospital Hyderabad. A team of doctors examined the child and opined that she was fit to undergo "Cochlear Implant Surgery" which would help her in better hearing and good speech development. They also recommended cochlear implant for good future prospects. The Superintendent of hospital proposed to perform the surgery on 09.07.2005 and issued estimation certificate for the expenditure involved to the tune of Rs.9,55,500/-. A workshop on "Cochlear Implant Surgery" was conducted at the said hospital on 08th to 10th July, 2005. It was attended by ENT surgeons of Apollo Hospital, Madras and foreign delegates. The complainant informed the fourth opposite party about the advise of Superintendent of Government ENT Hospital at Koti and applied for the advance. As the medical advance was not sanctioned, the complainant raised personal loans to meet the expense of the hospital. "Cochlear Implant Surgery" was conducted on the complainant's daughter on 09.07.2005 at the cost of Rs.9,62,904/-.
6. The complainant submitted the medical claim for reimbursement of Rs.9,62,904/- spent on the surgery. The claim, however was rejected. The complainant made representation against the rejection of the complaint but in vain. Being aggrieved of the rejection of the medical claim, the complainant filed the complaint in District Forum Guntur.
7. On being served with the notice of the complaint, the opposite party filed a written statement justifying the rejection of medical claim of the complainant on the ground that the "Cochlear Implant Surgery" was done without the approval of the authority concerned in violation of the rules.
8. The District Forum on consideration of the pleadings and the evidence partly allowed the complaint and directed as under:
"1. The opposite parties 1 to 4 are hereby directed to pay a sum of Rs.5,17,000/- (rupees five lakhs seventeen thousand only) to the complainant towards reimbursement of medical claim of cochlear implant surgery performed on the daughter of complainant instead of Rs.9,62,904/-.
2. The opposite parties 1 to 4 are further directed to pay interest over sum of Rs.5,17,000/- @ 6% p.a. from the date of repudiation i.e. 23.3.2007 till the date of realization.
3. Further the opposite parties 1 to 4 are also directed to pay sum of Rs.5,000/- towards compensation for mental agony, pain and suffering and Rs.1000/- towards legal expenses to the complainant.
4. The amount ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in item No.3 shall carry interest @ 9% p.a. till the date of realization.
5. Rest of the claim of the complainant is hereby dismissed."
9. Being aggrieved of the order of the District Forum, the parties filed cross appeals. The State Commission vide the impugned order dismissed both the appeals. This has led to the filing of the revision petition.
10. We have heard learned counsel for the parties and perused the record.
11. The revisional jurisdiction of the National Commission flows from Section 21 (b) of the Consumer Protection Act, 1986 ( in short, the Act) which reads as under:
"21. Jurisdiction of the National Commission.
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity."
12. On reading of the above, it is evident that revisional jurisdiction conferred on the National Commission is limited to the extent of jurisdictional illegality or material irregularity. Admittedly, there is no jurisdictional error in the order of the foras below. As regards material irregularity, learned Shri Baldev Malik, Advocate has contended that both the foras below have passed the order in utter disregard of the existing rules and guidelines. Expanding on the argument, learned counsel for the petitioners have drawn our attention to Office Memorandum of Government of India, Ministry of Health and Family Welfare bearing no. No.114025/10/2002-MS dated 28th October, 2002 which deals with the revision in the schedule of charges for reimbursement of expenses to purchase / replacement/repair/adjustment of hearing aid under CS (MA) Rules, 1944. Para 3 of the said office memorandum provides as under
"3. This should be done on the recommendation of 3 ENT surgeons of 3 different government hospitals who have facilities to audiometric assessment and have all performing their independent audiological assessment."
13. Learned counsel has also referred to the revised guidelines for "Cochlear Implant Surgery" to Central Government employees and their family members as revised on 04.07.2005 wherein clause IV of the Selection Criteria provides as under:
"IV. Standing Committee Reimbursement for Cochlear Implant Surgery will be permitted only after the request has been approved and recommended by a Standing Committee comprising of the following:
1. DDG (M) / equal rank officer from Directorate General Of Health Chairman
2. HOD, ENT, Dr. RML Hospital Member
3. HOD, ENT, SJ Hospital Member
4. HOD, ENT, LHMC and Smt. SK Hospitals Member"
14. Learned counsel has argued that from the above, it is clear that as per the office memorandum and the guidelines, the complainant before agreeing for surgery of her daughter was supposed to get recommendation of three ENT surgeons of three different government hospitals having facility for audiological assessment based upon independent audiological assessment and also the prior approval of the Standing Committee as provided in revised guidelines dated 04.07.2005. As the complainant did not follow the relevant rules and guidelines, the opposite parties were fully justified in rejecting the medical claim.
15. Learned counsel for the respondent on the contrary has argued in support of the impugned order. He has contended that from the record it is evident that the daughter of the complainant was born with bi-lateral profound deafness which has direct correlation to the capacity of the child to speak and her mental development. It is argued that any delay in the treatment of the child would have affected her mental development. Therefore, the complainant had shown urgency in going for "Cochlear Implant Surgery" of her child. It is further contended that there is no dispute about the genuineness of her medical claim. Therefore, the State Commission was right in dismissing the appeal of the petitioners opposite parties against the order of the District Forum. .
16. On careful consideration of the record, we do not find merit in the contention of the petitioner. From the record it is evident that on 01.06.2005, the complainant made representation to the Superintendent of Post Offices, Guntur Division seeking permission for "Cochlear Implant Surgery" of her daughter at Government ENT Hospital, Koti, Hyderabad. On the same day, the Superintendent of Post Offices, Guntur Division granted permission for treatment of daughter of complainant at Government ENT Hospital, Koti, Hyderabad. The contents of the letter has been reproduced above. On reading of the contents of the letter, it is evident that letter is vague and it does not draw the attention of the complainant to the above noted office memorandum or guidelines which insist on recommendation of three ENT surgeons of three different government hospitals and prior approval of the Standing Committee. Thus, the permission granted to the complainant was misleading. Therefore, by its own conduct, the opposite parties are estopped from raising plea of violation of the conditions mentioned in office memorandum and the revised guidelines.
17. Otherwise also, the condition of recommendation of three ENT surgeons of three different government hospitals based upon their independent audiological assessment, in our considered view, is very harsh and in practice it amounts to virtual denial of the facility given on paper. Such a draconian condition on a government employee to comply with shows the distrust of the government on their employees as well as ENT surgeons of the government hospital. It appears that provision has incorporated with a view to prevent unjustified fraudulent claims. In the instant case it is not disputed that child was suffering from hearing disability and she had actually underwent surgery at the ENT Hospital, Koti at cost of Rs.9,62,904/-. Therefore, this being the genuine case and there being no bar on the reimbursement of the Cochlear Implant Surgery, the denial of the reimbursement to the complainant merely on the technical ground that there was no recommendation from three ENT surgeons of three different government hospital is not justified.
18. As regards the revised guidelines providing for prior approval by a Standing committee is concerned, it is suffice to say that guidelines were revised on 04.07.2005. It is obvious that some time must have been taken by the government to communicate the guidelines to various offices, who in turn must have taken some time to make the revised guidelines known to the employees. Admittedly, the surgery of the child was conducted on 09.07.2005. Therefore, it is obvious that by then, the complainant would not have been aware of the guidelines and the requirement of the prior permission from the Standing Committee. Therefore, to deny the reimbursement for a genuine Cochlear Implant Surgery on the ground of failure to take prior approval from the Standing Committee does not stand to reason and it is totally unjustified. Otherwise also, it may be noted that complainant's daughter was treated at ENT hospital at Koti, Hyderabad after she was given permission by Superintendent of Post Offices, Guntur Division vide letter dated 01.06.2005.
19. It may be noted that petitioner has placed on record one Office Memorandum dated 12.06.2009 issued by Government of India, Ministry of Health and Family Welfare. Relevant portion of the Office Memorandum is reproduced as under
"Subject: Reimbursement of the cost of cochlear implant to beneficiaries under CGHS/Central Services ( Medical Attendance) Rules, 1944 The undersigned is directed to state that the Ministry of Health and Family Welfare has been received requests from CGHS beneficiaries and beneficiaries under Central Service ( Medical Attendance) Rules, 1944, requesting for permission to be given for a dependant family member to undergo cochlear Implant surgery. Each request for considered 'on merits' of each case and permission granted by the Central Government Health Scheme in each case. This was mainly because there were no guidelines for considering requests for cochlear implant surgery. The Ministry of Health and Family Welfare, therefore, had the matter considered the matter by a Committee of specialists and it has been decided to permit the beneficiaries under CGHS and Central Services ( Medical Attenance) Rules, 1944 undergo cochlear implant surgeries, as per the guidelines outlined below
1. XXXXXXX
2. XXXXXXX
3. Implant Centres and Standing Committee :
Cochlear implant surgery should be allowed only in Government hospitals / Centres having proper post operative rehabilitation. These centres should have well trained speech therapist related to cochlear implant The reimbursement for cochlear implant surgery will be permitted only after the request has been approved and recommended by a standing committee, comprising of the following:
1. Addl. DG, CGHS / DDG (M) ( as the case may be) Chairman
2. HOD, ENT, Dr. R M L Hospital Member
3. HOD, ENT, Safdarjung Hospital Member
4. HOD, ENT, LHMC and Smt.. S.K. Hospital Member The request for cochlear implants should be accompanied by complete clinical details and report of relevant investigations as below and independent opinion from two ENT specialists of Government Hospitals undertaking cochlear implant surgery about indications for cochlear implant surgery."
20. On reading of the above, it is clear that even as per the stand of the government, earlier to 12.06.2009 there were no clear guidelines for considering the request for Cochlear Implant Surgery. Therefore, the Ministry of Health and Family Welfare on consideration of the matter decided to permit the beneficiaries under CGHS and Central Services ( Medical Attendance ) Rules, 1944 to undergo Cochlear Implant Surgery as per the guidelines. There is no evidence on record to show if after the issue of office memorandum, the reimbursement claim of the complainant was referred to the concerned Standing Committee for consideration. In absence of any evidence in this regard, it is clear that even after the post surgery, the case of the complainant for reimbursement does not appear to have been examined by the Standing Committee. Therefore, also, we do not find merit in the plea of the petitioner that medical reimbursement claim of the complainant was rightly rejected.
21. In view of the discussion above, we do not find any material irregularity or jurisdictional error in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER