Central Administrative Tribunal - Ernakulam
Madhubashani Mohan vs South Central Railway on 12 September, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00095/2023
Thursday, this the 12th day of September, 2024
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Madhubashini Mohan, aged 64 years, W/o. K. Mohan,
Retired Office Superintendent, O/o. Sr. DEE/OP/PGT,
Palghat Division, Southern Railway, Residing at Mohanam,
Ambalapuram, West Yakkara, Palghat. ..... Applicant
(By Advocate : Mr. Martin G. Thottan)
Versus
1. Union of India, represented by the General Manager,
Southern Railway, Park Town PO, Chennai - 3.
2. The Chief Medical Superintendent, Railway Hospital,
Southern Railway, Palghat Division, Palghat - 675 002.
3. The Senior Divisional Personnel Officer, Southern Railway,
Palghat Division, Palghat - 675002.
4. The Chief Medical Director, Southern Railway,
Medical Department, Moor Marked Complex,
4th Floor, Chennai - 600003. ..... Respondents
(By Advocate : Mrs. O.M. Shalina, SCGSC)
This Original Application having been heard on 16.08.2024, the
2
Tribunal on 12.09.2024 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant retired from the Railway Service on 31.5.2019, while working as Office Superintendent in the Palghat Division of Southern Railway. Her second born child was suffering from renal related illness since her childhood. She had undergone various procedures at various hospitals including a Bilateral Ureteric Re-implantation on 11.5.1994. She had to undergo medical treatments and surgeries without any respite throughout her life, it is claimed. Ultimately, she was admitted in the Lakeshore Hospital on 4.7.2015 and was advised to undergo renal transplantation evidenced by Annexure A1. According to the applicant there was no sufficient facility at Railway Hospital at Palghat to treat the applicant's daughter. Though she had taken medical advice from the 2nd respondent, the Chief Medical Superintendent, Railway Hospital, Southern Railway, he had also recommended the applicant's daughter to Perambur Railway Hospital. The Urologist at the said hospital evaluated the applicant's daughter's treatment and also suggested renal transplantation.
3
2. There were initial difficulties in finding out a matching donor. After a lot of efforts, a donor from Kerala was found out and with the approval of the authorization committee for organ transplantation the applicant's daughter was admitted at Lakeshore Hospital, Kochi on 12.1.2016. Renal transplantation was successfully conducted on her and was under
treatment from 12.1.2016 to 27.1.2017 evidenced by Annexure A2 discharge certificate. Annexure A3 is the summary bill of the hospital, amounting to Rs. 8,11,446.97. It is claimed that the applicant who had no other source of income had to borrow the amount from several persons to meet the urgent expenses.
3. According to the applicant, the claim was submitted for reimbursement of the said amount evidenced by Annexure A4. After three years she was served with Annexure A5 order informing that audit department has raised objection regarding the reimbursement and accordingly, rejected the claim for reimbursement of medical expenses. She submitted Annexure A6 representation. Claiming that she has not been granted the entire amount due as per the bills, the applicant approached this Tribunal by filing OA No. 947 of 2019. After detailed examination, this Tribunal by Annexure A9 order noted that the applicant 4 was entitled for reimbursement of at least up to the extent of Rs. 3,00,000/- as has been brought out by the respondents in the reply statement in cases of the renal transplantation at recognized hospital rates under the CGHS, taking into consideration the directions of the Hon'ble Supreme Court as laid down in Shiva Kant Jha v. Union of India [AIR 2018 SC (W) 1975] and the order of this Tribunal in OA No. 1170 of 2012. Applicant was thereafter, sanctioned a sum of Rs. 3,00,000/- and the amount was credited in the applicant's account on 28.5.2022.
4. Contending that the applicant is entitled for full reimbursement of the medical expenses incurred by her for the treatment of her daughter and claiming an amount of Rs. 5,11,446.97 with 9% interest with effect from 8.3.2016, the present Original Application is filed.
5. The respondents have filed a detailed reply statement, inter alia, contending that the OA is barred by res judicata in so far as the issue has been considered by the Tribunal and that the applicant was sanctioned the amount due as per the CGHS rate. No further amount was due to the applicant, it was contended.
5
6. Heard both sides and examined the records.
7. The short point that arises is whether in the light of the decision in OA No. 947 of 2019 the applicant is entitled for reimbursement at the CGHS rate of Rs. 3,00,000/- as admittedly paid to her, or the full reimbursement of the entire amount as claimed. Evidently, the claim of the applicant is supported by Annexure A7, the letter of the 2nd respondent to concur with an amount of Rs. 3,00,000/-. The essentiality certificate is produced as Annexure A8. It is also an admitted fact that the amount of Rs. 3,00,000/- at CGHS rate was credited into the bank account of the applicant on 28.5.2022.
8. A vague contention was set up that the claim of the applicant was the subject matter of consideration in the earlier proceedings and to that extent the order in OA No. 947 of 2019 will operate as res judicata in so far as the present claim was considered. This Tribunal, by a detailed order dated 16.6.2023 had considered this on a preliminary issue and held that though in the earlier proceedings the Tribunal had observed that orders should be passed in the light of the directions in Shiva Kant Jha's case (supra), the Tribunal had not given a definite verdict as to whether such 6 an amount was realizable by the applicant from the respondents. The said relief also was not rejected. The question as to the payment of the balance amount was relegated to the respondents for their wisdom to be decided in the light of the principles enunciated in Shiva Kant Jha's case (supra). They have not taken any decision on it. Ultimately this Tribunal overruled the preliminary objection that OA was barred by res judicata and held that the OA was sustainable.
9. Another contention set up by the respondents was that the treatment was done at the Lakeshore hospital not in an emergency. It was contended that it was done after a lot of preparation and it cannot be deemed to be an emergent situation, warranting kidney transplantation. By a detailed order this issue was also answered by this Tribunal in Annexure A9. It was held as follows:
"10. .............. Kidney transplantation cannot be a pure fully planned procedure as is being made out by the respondents because it does depend on the availability of the donor, matching of the donor's kidney with the recipient, the fitness of the recipient as well as the donor etc. One could therefore consider whether an emergency does exist in such cases, especially as during the intervening period waiting for a donor, there is continued deterioration in the applicant's condition due to frequent dialysis etc."
7Evidently, this issue has been answered by holding that such a procedure has to be deemed to be done in emergency. That finding has also become final and conclusive.
10. The learned counsel for the applicant vehemently contended that in Shiva Kant Jha's case (supra), as well as in OA No. 1170 of 2012 it was held that the applicant was entitled for the full reimbursement of the amount claimed. The learned counsel for the applicant referred to paragraph 13 of Shiva Kant Jha's case (supra) wherein it was held as follows:
"13) It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment.
Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the 8 grant of medical reimbursement in full to the petitioner forcing him to approach this Court."
11. In the above case the question that arose was whether the applicant was entitled to reimbursement on the ground whether it was done in an emergency. After a detailed evaluation of the facts, the court concluded that the treatment was done in an emergency and the observations were made accordingly. It was contended that in Shiva Kant Jha's case (supra) it was specifically held that the applicant was entitled for entire reimbursement, it can only be deemed to be reimbursement as provided under the Rules and law applicable to the parties. To that extent, I feel that the applicant is only entitled for the amount due as per the CGHS rate. It seems that the maximum amount as per the CGHS rate has been granted to the applicant. Hence, the payment of an amount of Rs. 3,00,000/- is to be held as in full compliance of the order.
12. However, it is pertinent to note that applicant claimed the reimbursement of medical claim by Annexure A4 dated 8.12.2016. It was rejected after almost three years by Annexure A5 dated 18.7.2019. Thereafter, on a technical ground that the surgery was not conducted in an emergency, the claim was declined. It was after a long duration that 9 the sum of Rs. 3,00,000/- was credited to the applicant's account on 28.5.2022. In the above circumstances, since that amount has been delayed to be paid, I am inclined to hold that the applicant is entitled for interest on the amount deposited from the date of Annexure A4 namely, 8.12.2016 till the date of deposit on 28.5.2022 at 9% interest. The entire amount due as interest shall be paid within a period of one month from today. If the amount is not paid that amount will carry a further interest of 9% from the date of expiry of one month period prescribed as above.
13. OA is allowed to the above extent. No costs.
(JUSTICE SUNIL THOMAS) JUDICIAL MEMBER "SA"
10
Original Application No. 180/00095/2023 APPLICANT'S ANNEXURES Annexure A1 - True copy of certificate dated 4.7.2015 issued by the consultant Nephrologists of Lakeshore Hospital, Kochi.
Annexure A2 - True copy of the discharge certificate issued from the Lakeshore Hospital, Kochi.
Annexure A3 - True copy of the summary medical bill issued from the Lakeshore Hospital, Kochi.
Annexure A4 - True copy of the covering letter submitted by the applicant, along with the claim application.
Annexure A5 - True copy of the letter bearing No.
MD.RH/PGT/REIM/MBM dated 18.7.2019 issued by
the second respondent.
Annexure A6 - True copy of representation submitted by the
applicant.
Annexure A7 - True copy of letter dated J/MD 105/IV/32/17 dated
7.3.2018.
Annexure A8 - True copy of the essentiality certificate issued by the
second respondent.
Annexure A9 - True copy of the judgment in OA/180/947/2019 dated
26.5.22.
RESPONDENTS' ANNEXURES
Annexure R1(A) -True copy of the Railway Board letter No. 2005/H/6- 4/Policy-III dated 16.4.2007.
11Annexure R1(B) -True copy of the Railway Boad letter No. 2005/H/6- 4/Policy II dated 31.1.2007.
Annexure R1(C) -True copy of the relevant pages of Schedule of Powers on medical matters.
Annexure R1(D) -True copy of the letter No. J.MD.105.IV/49/18 dated 29.8.2022.
-x-x-x-x-x-x-x-x-