State Consumer Disputes Redressal Commission
The Regional Director, Employees State ... vs Dalwinder Singh on 31 August, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1503 of 2007.
Date of Institution: 20.11.2007.
Date of Decision: 31.08.2012.
1. The Regional Director, Employees State Insurance Corporation,
Madhya Marg, Sector 19-A, Chandigarh.
2. The Manager, Employees State Insurance Corporation, Local Office,
Mandi Gobindgarh, District Fatehgarh Sahib.
.....Appellants.
Versus
1. Dalwinder Singh S/o Sh. Malook Singh, Resident of Village Chhaleri
Khurd, Tehsil and District Fatehgarh Sahib.
2. Ajay Gases (Pvt.) Limited, G.T. Road, Sirhind side, Mandi Gobindgarh,
Tehsil Amloh, District Fatehgarh through its Director.
...Respondent.
First Appeal against the order dated
17.09.2007 of the District Consumer
Disputes Redressal Forum, Fatehgarh
Sahib.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
...................................
Present:- Sh. B.S. Bhatia, Advocate, counsel for the appellants.
Sh. R.K. Shukla, Advocate, counsel for respondent no.1. None for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
The Regional Director, Employees State Insurance Corporation and another, appellants (In short "the appellants") have filed this appeal against the order dated 17.09.2007 passed by the learned District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short "the District Forum").
2. Facts in brief are that Sh. Dalwinder Singh, respondent no.1/complainant (in short, "respondent no.1") filed a complaint under section First Appeal No.1503 of 2007 2 12 of the Consumer Protection Act, 1986 (in short, "the Act"), against the appellants and respondent no.2, alleging that he is working with Ajay Gases Pvt. Ltd., respondent no.2 since October, 2004 and is member of ESI vide Insurance No.8365125 allotted by the appellants. The ESI amount was deducted by respondent no.2 from the salary of respondent no.1 which was deposited with the appellants regularly. According to rules and provisions of ESI Act, the respondent no.1 was entitled for all medical benefits and for treatment of his family members.
3. Sh. Pawanjot Singh, son of the respondent no.1 was suffering from heart disease and he was operated upon in Sigma Heart Centre, Ludhiana and respondent no.1 spent Rs.1.55 lacs for his treatment. Respondent no.1 presented the said medical bills to the Incharge, ESI, Mandi Gobindgarh and the ESI recommended the same to the manager of the appellants, but the appellants refused to make the payment/sanction the medical amount spent for the treatment of the son of respondent no.1 Respondent no.1 sent many reminders, but nothing was paid. The act of the appellants amounts to deficiency in service and respondent no.1 suffered mental tension, harassment. It was prayed that the appellants be directed to pay the amount of medical bills for the treatment of the son of the respondent no.1 amounting to Rs.1.55 lacs and to pay compensation to the tune of Rs.20,000/-.
4. In the written reply filed on behalf of the appellants, it was admitted that respondent no.1 is member from 09.09.2004 as per the record of the appellants. Respondent no.1 is not entitled for the amount as per the rules, as he did not serve in the firm for four contribution periods and one period is of 180 days and he is not entitled to any relief. He did not work for 156 days in four contribution periods, preceding the benefit period and is not entitled to sickness benefits. The presentation of the bill was admitted, but respondent no.1 was not eligible as per the rules. The complaint is not maintainable and the District Forum has no jurisdiction. Other allegations of First Appeal No.1503 of 2007 3 the complaint were denied and it was prayed that the complaint may be dismissed.
5. In the written statement filed on behalf of respondent no.2, preliminary objections were taken that the complaint is not maintainable and respondent no.1 has no cause of action. The District Forum has no cause of action as per the law laid down by the Hon'ble Supreme Court.
6. On merits, it was pleaded that respondent no.1 joined the service with the answering respondent on 01.01.2004 and the contribution started from 01.10.2004. It was denied that respondent no.1 is serving with the answering respondent since 2003. It was admitted that ESI amount was deducted from the salary of respondent no.1 from 01.01.2004 and was deposited in the office of ESI. The answering respondent has no knowledge regarding the disease of the son of respondent no.1, as well as medical treatment taken, because respondent no.2 was never intimated by respondent no.1. Other allegations of the complaint were denied and dismissal of the complaint was prayed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum relying upon section-46 of the Employees State Insurance Act, 1948, Section 56 of the said Act, accepted the complaint and directed the appellants to make the payment of Rs.1,47,500/- which was spent for medical treatment, on the basis of the bills referred above, with interest @ 9% p.a. from the date of filing of the complaint till realization. Rs.1000/- was awarded as compensation and Rs.500/- as costs of complaint.
9. Aggrieved by the impugned order dated 17.09.2007, the appellants have come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced First Appeal No.1503 of 2007 4 by the learned counsel for the appellants and respondent no.1, except respondent no.2 as none appeared on its behalf at the time of arguments.
11. Learned counsel for the appellants contended that the respondent no.1 has not contributed as per Regulation no.4 of the Employees State Insurance (General) Regulation, 1950 and as per Section-58 of the Employees State Insurance Act, 1948, the State Govt. only can provide the benefits to the insured person as well as to the family and the appellants are not liable in any manner. Special remedy is provided under the said Act and the complaint does not lie. The order passed by the District Forum is against the law and is liable to be set aside.
12. On the other hand, on behalf of respondent no.1, it was argued that Section-3 of the Consumer Protection Act provides additional remedy and the jurisdiction is not barred. The appellants are instrumentality of the State and the claim lies before the appellants, as such, the District Forum has rightly passed the order and there is no ground to interfere with the same. The appeal deserves dismissal.
13. We have considered the respective submissions advanced by the learned counsel for the parties and have minutely scrutinized the entire record and material placed on the file.
14. Admittedly, respondent no.1 is member of ESI vide Insurance No.8365125 allotted by the appellants since 09.09.2004. The ESI amount was deducted from the salary of respondent ono.1. Documents Ex.C-3 to Ex.C-5 prove the same. Certificate Ex.C-6 of Sigma Heart Centre, Ludhiana proves that the son of respondent no.1 was admitted in Sigma Heart Care Centre, Ludhiana and he was treated there and the bills Ex.C-7 to Ex.C-22 are regarding the medicines and the treatment taken by the son of the respondent no.1 and he spent about Rs.1.40 lacs as per the bills. The son of respondent no.1 also took treatment from PGI and medicine was purchased through bills Ex.C-25 to Ex.C-34.
First Appeal No.1503 of 2007 5
15. Learned counsel for the appellants contended that Section-58 of the Employees State Insurance Act provides that the State Govt. only can provide the benefits, but this contention is not tenable because Section-58 of the Employees State Insurance Act provides that the State Govt. has to provide reasonable medical, surgical and obstetric treatment and the State Govt. and the Corporation may enter into an agreement to share the benefits. No such agreement has been placed on file. The District Forum has relied upon Section-46 of the above Act as well as Section-56 of the Employees Insurance Act and as per those provisions, the insured person or member of the family is entitled to the sickness benefit. Hon'ble Supreme Court in case "Kishori Lal Vs Chairman, E.S.I. Corporation", AIR-2007 Supreme Court- 1819, after discussing in detail, observed in Para-14(relevant portion) as follows:-
"We are of the opinion that the service provided by the ESI Hospital/dispensary falls within the ambit of 'service' as defined in Section 2 (1) (o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI Hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous".
16. Lastly, it was concluded that the Consumer Forum has the jurisdiction and is not ousted by virtue of sub-section (1) or (2) or (3) of Section-75 of the Employees' State Insurance Act, 1948 and appeal filed by said Kishori Lal was allowed.
17. In view of above discussion and the law laid down, there is no ground to interfere in the impugned order which is legal and valid.
18. Accordingly, the appeal filed by the appellants is dismissed and the impugned order under appeal dated 17.09.2007 passed by the District Forum is affirmed and upheld. No order as to costs.
First Appeal No.1503 of 2007 6
19. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
20. Remaining amount as per the order of the District Forum shall be paid by the appellants to the respondent no.1/complainant within 45 days of the receipt of copy of the order.
21. The arguments in this appeal were heard on 24.08.2012 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member August 31, 2012.
(Gurmeet S)