Central Administrative Tribunal - Delhi
Yogender Kumar vs Delhi Transport Corporation Through on 21 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2225/2014
Order Reserved on: 05.05.2015
Pronounced on: 21.05.2015
Honble Mr. A. K. Bhardwaj, Member (J)
Honble Mr. V.N. Gaur, Member (A)
Yogender Kumar
S/o Sh. Gulab Singh
R/o 246 Vill & PO Sanotha,
Delhi-40.
- Applicant
(By Advocate: Sh. U.Srivastava)
Vs.
Delhi Transport Corporation through
1. The Chairman cum Managing Director,
DTC Head Office, Indraprastha Estate,
New Delhi.
2. The Depot Manager
DTC Bawana Depot,
Delhi-39.
- Respondents
(By Advocate: Ms. Ruchira Gupta)
ORDER
Honble Shri V.N.Gaur, Member (A) The grievance of the applicant in this case arises from the refusal of the respondent to reimburse the medical expenses incurred on the treatment of his wife in a non-empanelled hospital.
2. The wife of the applicant was suffering from Orthopaedic problem and was under medical treatment for quite some time. The applicant approached the respondents for granting permission for replacement of knee (both legs) of his wife. The Medical Board of the respondents issued a reference dated 19.09.2013 to the applicant, valid from 19.09.2013 to 30.09.2013 (subsequently renewed upto 31.03.2014), referring the wife of the applicant to Government hospital/empanelled hospitals on panel of the respondents as per CGHS rates. The applicant, in the meantime, got the treatment of his wife at Sant Parmanand Hospital, Civil Lines, Delhi on 14.10.2013. The applicant submitted a medical claim of Rs.4,61,445/- incurred on knee replacement surgery of his wife in Sant Parmanand Hospital. The respondents rejected the claim of the applicant on the ground that he got the treatment done from a non-empanelled hospital.
3. The learned counsel for the applicant submitted that the wife of the applicant was taking treatment from various approved hospitals but there was no improvement, and therefore, the applicant had to ultimately go to Sant Parmanand Hospital where his wife was advised knee replacement surgery. The essentiality of the knee replacement surgery had been recognized by the Medical Board of the respondents and they had referred him to take treatment from a specialized Government/empanelled hospital. Since the applicant was not able to get proper response from the Government hospitals he had no alternative but to take a treatment at any hospital where proper expertise and care was available. The learned counsel for applicant further submitted that there was a medical emergency because of which applicant could not wait any longer as the process of getting appointment and treatment in the Government hospitals was quite time consuming. The learned counsel relied on the judgment of Honble Supreme Court in State of Punjab vs. Mahender Singh Chawla, (1997) 2 SCC 83 and the order of this Tribunal in Rajinder Sharma vs. MCD and another, OA-505/2013.
4. Learned counsel for the respondents, on the other hand, submitted that the rules were very clear with regard to taking of treatment in the cases where specialized medical care was required. The office order no.16 dated 27.08.1991 of DTC contains a provision that an employee of the respondents can be referred to an empanelled hospital, besides Government hospitals, for treatment. The claim for reimbursement of expenditure on a specialised medical treatment would be entertained only if the patient was referred by DTC Medical Board and the treatment was taken in the aforementioned hospitals. In case of an emergency an employee/dependent family members has to intimate the Medical Board within the next working day. In this case the Medical Board of the respondents had already given him permission to take a specialized medical treatment in accordance with rules, but the applicant chose to go to some other non-empanelled hospital. The knee replacement surgery is a planned surgery and cannot be categorized as an emergency where an employee has no time to go to an authorized hospital for treatment. Further even for the argument sake if it is assumed that there was an emergency, the applicant should have immediately informed the Medical Board by the next working day about the treatment being taken by his wife, which he did not do. With regard to the judgments cited by the applicant the learned counsel stated that those judgments pertained to medical conditions which could be categorized as emergency situation while in the present case there was no such emergency, and therefore, those judgments would not be relevant in this case.
5. We have heard the learned counsels and perused the record. From the facts of the case it is clear that the applicant was aware that specialized treatment of the kind required by his wife was covered under the specialized medical scheme of the respondents. He accordingly applied for permission to the respondents and after examination by a Medical Board such permission was given with a condition that treatment had to be taken from one of the empanelled hospitals or Government hospitals. This permission was granted on 19.09.2013 and subsequently extended upto 31.03.2014. However, the applicant has not produced any evidence to support his contention that he approached any of the empanelled/Government hospitals for treatment and there was any difficulty or inordinate delay in getting appointment for surgery. The applicant has also not produced any paper to show that the patient was undergoing treatment at any Government hospital but there was no improvement in her condition as claimed. The contention that the applicant had to approach a non-empanelled private hospital because of emergency also does not get any support from the fact that permission was granted on 19.09.2013 but the knee replacement surgery was done after about a month. Further, if it was an emergency the applicant was expected to inform the respondents within 24 hours about the fact that his wife was admitted in a non-empanelled hospital, which he did not do. In these circumstances, we do not find that the respondents had committed any illegality or there was any arbitrariness in the decision taken by them in rejecting the claim of the applicant. We have considered the judgment in Surjit Singh vs. State of Punjab, (1996) 2 SCC 336. The Honble Supreme Court had observed thus:
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 ensbrined 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 recognised it. Attention can usefully be drawn to versus 17 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:17
17 Vinaa dehena kasyaapi Without the body how can onecanpurushaartho na obtain the objects of human vidyate Tasmaaddeham life? Therefore protecting thedhanam rakshetpunyakar- body which is the wealth, one maani saadhayet should perform the deeds of merit.18
18 Rakshayetsarvadaatmaanamaatmaa One should protect his body sarvasya bhaajanam Rakshane which is responsible for yatnamaatishthejje everything. He who protects vanbhaadraani pashyati himself by all efforts, will see many auspicious occasions in life.20
20 Sharirarakshanopaayaah The wise always undertake Kriyante sarvadaa the protective measures budhaih Necchanti cha for the body. Even the punastyaagamapi persons suffering from kushthaadiroginah leprosy and other diseases do not wish to get rid of the body 22 22 Aatmaiva yadi naatmaanama If one does not prevent what hitebhyo nivaarayet is unpleasent to himself, Konsyo hitakarastasmaa- who else will do it? daatmaanam taarayishyati Therefore one should do what is good to himself.
12. The appellant therefore had the right to take steps in self preservation, He did not have to stand in queue before the Medical Board the manning and assembling of which, bare- facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellantt the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset 15 answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs.
6. To appreciate the observations of the Honble Supreme Court it will be necessary to familiarize ourselves with the facts of the case contained in para 3 of the judgment reproduced below:
3. The appellant, Surjit Singh (now retired) while posted as a Deputy Superintendent Police, Anandpur Sahib, Distt. Roper, Punjab, developed a heart-condition on 22-12- 1987 and that very day went on a short leave extending it uptill 10-1-1988, on medical grounds. It remains unclarified on the record of this case as to what steps the appellant took thereafter to meet his ailment. However, six months later he obtained leave from his superiors from 15-6-1988 to 8-9-1988 and went to England to visit his son. It is the case of the appellant that while in England, he fell ill due to his heart problem and as an emergency case, was admitted in Dudley Road, Hospital Brimingham. After diagnosis he was suggested treatment at a named alternate place. Thus to save himself the appellant, got himself admitted and operated upon in Humana Hospital, Wellington, London for aBye-Pass Surgery. He claims to have been hospitalised from 25-7-88 to 4-8-88. A sum of Rs.3 lacs allegedly was spent on his treatment at London, borne by his son.
7. It can be seen that the facts of that case are quite different from the present case. In Surjit Singh (supra), the applicant was suffering from heart problem and required emergency treatment while he was in London. It is obvious that in such a situation it was not practicably possible to comply with the rules and procedure laid down for obtaining permission for such treatment. The Honble Supreme Court in the judgment has held that the 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 key word in the above dicta of the Honble Supreme Court is self-preservation, which harmonised with the law that the requirements of statutory rules have to be complied with, would mean that the medical condition has to be such that would threaten the life of the person and he is forced to take steps beyond the rules for self-preservation. If a person is suffering from heart ailment as was the case in the Surjit Singh (supra), as also in OA-505/2013, the medical condition of a person can deteriorate at any time without any warning, and therefore, a person would tend to take even preventive steps to avoid any emergency and such steps can also be considered as a part of his effort for self-preservation. At the same time, this argument cannot be stretched to such an extent that any medical condition is considered as life threatening as theoretically, a minor medical symptom, could also be a symptom of or may lead to some serious medical condition. Therefore, if the logic is extended further the employee could resort to steps much beyond the scope of the rules and procedure even where there is no emergency, and seek reimbursement of the expenditure incurred on medical treatment. We are, therefore, of the view that the judgment of Honble Supreme Court in Surjit Singh (supra) and the order of this Tribunal in OA-505/2013, would not be relevant in the present case.
8. Considering the facts and circumstances of this case and for the reasons stated, we do not find any merit in the OA and the same is accordingly dismissed. No costs.
(V.N. Gaur) (A.K. Bhardwaj) Member (A) Member (J) sd