State Consumer Disputes Redressal Commission
E.S.I. Dispensary Dhariwal vs Joginder Singh on 24 May, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.154 of 2014
Date of Institution: 20.02.2014
Date of Decision : 03.06.2016
1. E.S.I. Dispensary Dhariwal, Tehsil & District Gurdaspur, through
its Medical Officer.
2. Medical Superintendent E.S.I. Hospital, Majitha Road, Amritsar.
3. Dr. Anita Gupta, Incharge E.S.I. Dispensary Dhariwal, Tehsil &
District Gurdaspur.
4. The Director Health, Punjab, Chandigarh.
.....Appellants/opposite parties
Versus
Joginder Singh son of Sh. Sardara Singh, resident of Village Ranja,
Post Office Dhariwal, Tehsil & District Gurdaspur.
.....Respondent/complainant
First appeal against order dated
17.10.2013 passed by the District
Consumer Disputes Redressal
Forum, Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri J.S. Gill, Member Present:-
For the appellants : Sh. B.S. Dhillon, A.A.G.
For the respondent : Sh. Randeep Singh, Advocate
................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants have directed this appeal against the respondent of this appeal, challenging order dated 17.10.2013 of the District Consumer Disputes Redressal Forum, Gurdaspur (in short the "District Forum"), vide which, the complaint of the complainant was partly accepted by directing OPs to urgently attend to the medical needs of the patient in a more humane way and to pay Rs.15,000/- as compensation for mental harassment, besides First Appeal No.154 of 2014 2 Rs.5000/- as costs of litigation. The appellants of this appeal are opposite parties in the complaint and respondent of this appeal is complainant in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he is serving with New Egerton Woolen Mills Dhariwal Tehsil & District Gurdaspur and also a member of ESI scheme and has been contributing for the same, as per rules of the department. The complainant suffered from heart disease in August 2008 and he approached OP no.1 and it referred the complainant to OP no.2 and OP no.2 further referred the complainant to PGI Chandigarh for the treatment. It was further alleged that concerned doctor at PGI Chandigarh gave date for the operation of the complainant after 15 days. It was further alleged that while the complainant was on the way from PGI Chandigarh to Dhariwal, his condition became critical and his family members got him admitted at Oxford Hospital Jalandhar, where he was operated on 07.09.2008. Thereafter, the complainant remained under continuous treatment and OP no.1 used to refer the complainant in the recognized hospitals of ESI. It was further averred that one of the colleagues of the complainant namely Sita Ram told him that he also became a heart patient and received treatment from BBC Heart Care Hospital Jalandhar, where patient has to go after long gap. The complainant request Dr. Karan, ESI Dhariwal to refer him to BBC First Appeal No.154 of 2014 3 Heart Care Hospital Jalandhar, who was kind enough to refer him to said hospital on 22.05.2012, as the said hospital is under ESI. On 23.05.2012, the complainant alongwith Sita Ram went to BBC Heart Care Hospital Jalandhar and authorities of said hospital advised him for some tests for which Rs.3000/- were needed. The hospital authorities asked the complainant to get the same into writing from OP no.1, otherwise complainant would have to pay Rs.3000/-. The complainant approached OP no.3 and requested her to give in writing for his tests, but she refused to do so. The complainant was forced to pay Rs.3000/- for tests. On 31.08.2012, the complainant again approached OP no.3 for issuing slip for medical checkup from BBC Heart Care Hospital, on which OP no.3 replied who had referred him to BBC Heart Care Hospital at Jalandhar and also asked him to take treatment there and hence OP no.3 refused to do so. The complainant requested OP no.3 that he has been treated by BBC Heart Care Hospital very carefully and he was feeling well and he wanted further treatment therefrom. OP no.3 refused to listen to the complainant. The complainant has, thus, prayed that OPs be directed to refer him to BBC Hear Care Hospital Jalandhar for further treatment, as the said hospital was recognized by ESI and further prayed for compensation of Rs.50,000/- for mental harassment, besides Rs.10,0000/- as costs of litigation.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable. It was denied that complainant is consumer of OPs. It was pleaded First Appeal No.154 of 2014 4 that OPs are government employee and are providing services free of cost and does not come under the domain of Consumer Protection Act, 1986. On merits, it was submitted that complainant was suffering from heart ailment and he on his own accord went to Guru Nanak Dev Hospital Amritsar and it further referred him to PGI Chandigarh. In fact, he was to approach Medical Superintendent, ESI Amritsar, as per the instructions of the concerned doctor of ESI Dispensary, Dhariwal District Gurdaspur. After referring the complainant to PGI Chandigarh, he without waiting the date of operation at PGI Chandigarh had undergone operation at Oxford Hospital, Jalandhar at his own accord without any intimation to the other parties. It was further alleged that as per letter dated 20.09.2011 issued by the office of Senior State Medical Commissioner, Employees, State Insurance Corporation, 'one committee will be formed for serious patients comprising of expert doctors at every ESI Hospital with name, designation, contact number and specific signature to be sent to this office immediately. One another letter dated 05.04.2010 was also issued by above office in which above clear directions was given. OPs no.1 to 3 could only refer the patient to Medical Superintendent Amritsar, where all the specialist doctors were available including specialists doctors. Only a specialist doctor can refer the patient to tie up hospital. It was further averred that no ESI doctor referred the complainant to BBC Heart Care Hospital at Jalandhar and he himself went there. It was admitted that the complaint of Seeta Ram has been decided by First Appeal No.154 of 2014 5 Forum, but Dr. Karan ESI Dhariwal could not refer the complainant to BBC Heart Care Hospital. The OP controverted the averments of the complainant and prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-5 and closed the evidence. As against it, OPs tendered in evidence affidavit and documents Ex.OP-1 to OP-3 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant as referred to above. Aggrieved by above order, the OPs, now appellants preferred this appeal against the same.
5. We have heard the learned AAG for the appellant and counsel for respondent of this appeal and have also examined the record of the case. Affidavit of complainant is Ex.C-1 on the record in support of his averments. Ex.C-2 is reference letter to be issued to Medical Officer. The name of BBC Hear Care Centre Hospital Jalandhar has been referred to in this letter Ex.C-2. Ex.C-3 is the copy of ESIC Card of complainant. Ex.C-4 is the copy of prescription slip of BBC Hear Care Pruthi Hospital Jalandhar. Ex.C-5 is the list of empanelled hospitals under ESI and the name of BBC Heart Care Centre Hospital is at serial no.17 in this list. This hospital deals in ailments of cardiac and cardiac surgery. The OPs tendered in evidence affidavit of Dr. Anit Gupta Incharge, ESI Dispensary Dhariwal, Gurdaspur Ex.OP-1 on the record. She admitted this fact that complainant was suffering from heart ailment and he went to Guru Nanak Dev Hospital Amritsar on his own accord and it further First Appeal No.154 of 2014 6 referred him to PGI Chandigarh. In fact, he was to approach Medical Superintendent, ESI Amritsar, as per the instructions of the concerned doctor of ESI Dispensary, Dhariwal District Gurdaspur. After referring the complainant to PGI Chandigarh, he without waiting the date of operation at PGI Chandigarh; had undergone the operation at Oxford Hospital, Jalandhar of his own accord without any intimation to the other parties. Ex.OP-2 is the copy of letter dated 08.09.2011 regarding non-compliance to the repeated guidelines in r/o referrals for SST/SSI by ESIS Hospitals. Ex.OP-3 is the copy of letter addressed to SMO Incharge/Medical Superintendent of ESI Hospital expressing concern that some doctors are referring the patient directly without consulting their Medical Superintendent.
6. From conclusion of above evidence on the record and hearing the submissions of counsel for the parties, we find that complainant took treatment from BBC Heart Care Hospital at Jalandhar and this hospital is one of the empanelled hospitals of ESI for cardiac surgery. The complainant was suffering from heart problem. He took the treatment from above empanelled hospital. Even if certain procedural irregularities were not complied with in receiving treatment of serious ailment of heart; even then, we find that District Forum rightly gave no significance to them. The complainant is card holder of ESI and he would be certainly a consumer. Even if there are some administrative instructions; non- compliance thereof cannot be said to be a case for declining the First Appeal No.154 of 2014 7 relief to the complainant with regard to the treatment received by him for the heart ailment, which is a serious problem. Reference is made to law laid down in case "Major Singh Vs. State of Punjab & others" 2015 DNJ[Raj.]-43 by the National Commission and in case "Indian Medical Association Vs. V.P. Shantha & others"
1996(1) CLT-1 (SC) that while considering the services rendered free of cost including the services under the Consumer Protection Act, 1986 where charges are required to be paid by persons availing service, but certain category of persons, who cannot afford to pay are rendered free service of charge; even than they would be consumers. The complainant being ESI card holder is entitled to medical facility from the empanelled hospitals. We do not find any merit in the submissions of AAG for the appellant that there is no relationship of consumer and service provider between two. The order of District Forum under challenge in this appeal is affirmed, as we find no illegality or material infirmity in this order, as procedure has to bend before equity and fairness.
7. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed.
8. The appellants of this appeal had deposited the amount of Rs.10,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to the respondent of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.154 of 2014 8
9. Arguments in this appeal were heard on 23.05.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(J. S. GILL)
June 03, 2016 MEMBER
(MM)