Kerala High Court
Beena Kuriakose vs Employees’ State Insurance ... on 31 July, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 31ST DAY OF JULY 2024 / 9TH SRAVANA, 1946
WP(C) NO. 23052 OF 2024
PETITIONER:
BEENA KURIAKOSE
AGED 29 YEARS, W/O. BINOY N PAUL,
RESIDING AT MUKALEL HOUSE, KANJIRAKKUNNU,
KEERAMPARA POST, ERNAKULAM, PIN - 686 681.
BY ADVS.
C.ANIL KUMAR
DEVIKA MOHAN
JITHIN VARGHESE
RESPONDENTS:
1 EMPLOYEES' STATE INSURANCE CORPORATION
REPRESENTED BY ITS REGIONAL DIRECTOR,
PANCHDWEEP BHAVAN, NORTH SWARAJ ROUND,
THRISSUR, PIN - 680 020.
2 DEPUTY DIRECTOR
ESI CORPORATION, SUB REGIONAL OFFICE,
5TH AND 6TH FLOOR, BSNL BHAVAN,
KALATHIPARAMBU ROAD, KOCHI, PIN - 682 016.
3 DIRECTOR
INSURANCE MEDICAL SERVICES,
DIRECTORATE OF INSURANCE MEDICAL SERVICES,
PANCHDEEP BHAVAN, THYCAUD, THIRUVANANTHAPURAM,
PIN - 695 014.
4 AMRITA HOSPITAL
AIMS PONEKKARA POST, ERNAKULAM,
REPRESENTED BY ITS GROUP MEDICAL DIRECTOR,
PIN - 682 041.
BY ADVS.
SRI.T.V.AJAYAKUMAR, FOR R1
RIMJU P.H.(K/504/2014)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.07.2024, THE COURT ON 31.07.2024 DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.23052/2024
:2:
N. NAGARESH, J.
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W.P.(C) No.23052 of 2024
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Dated this the 31st day of July, 2024
JUDGMENT
~~~~~~~~~ The petitioner, who is an employee of M/s.DentCare Dental Lab Private Limited which is an establishment covered under the Employees State Insurance Act, is before this Court seeking to direct respondents 1 and 2 to provide cashless treatment facility to the treatment of petitioner's baby at Amrita Hospital, Ernakulam.
2. The petitioner states that she is enrolled under the ESI Scheme and her employer is remitting contribution to the ESI as required by the Employees State Insurance (General) Regulations. The petitioner gave birth to a baby girl named Agnel Sara Binoy on 06.03.2024. The name of the new born was added as her dependent in the ESI records. W.P.(C) No.23052/2024 :3:
3. It was noticed that the baby was showing difficulty in breathing and gulping milk. When the baby was taken to ESI Hospital, Pathalam, Ernakulam, the baby was referred to Amrita Hospital, Ernakulam on 31.05.2024 by the ESI Hospital. The baby required an emergency surgery to correct "Expansile lesion of left maxilla extending from midline to buccal vestibula". The baby underwent surgery at Amrita Hospital on 25.06.2024. In the biopsy report, Melanotic Neuroectodermal tumor is found.
4. On admitting the baby, the Amrita Hospital sought sanction from the 1st respondent for providing cashless treatment facility to the baby. Estimated cost of surgery is about ₹1,30,000/-. The petitioner is unable to raise such a sum in a short period. The petitioner's employer sent an e-mail request to the ESI Corporation on 24.06.2024. When the petitioner approached ESIC Hospital, Udyogamandal, the petitioner was informed that cashless treatment facility is not available for Maxillofacial Surgery. The petitioner's baby was referred to the Amrita Hospital by the ESIC Hospital, as W.P.(C) No.23052/2024 :4: expert treatment was required.
5. The petitioner states that the 4 th respondent- Hospital is one among the Hospitals providing cashless treatment facility for referred patients under arrangement with the ESI Corporation. The petitioner was informed that her baby is not eligible for cashless treatment for technical reasons.
6. The petitioner would urge that her family is not in a position to afford the amount required for specilised treatment for her baby. The ESI Corporation has published a list of Private Hospitals providing cashless treatment facilities for ESI covered employees. The Amrita Hospital is a Hospital enlisted for such facility. Therefore, respondents 1 and 2 are compellable to provide cashless treatment facility to the petitioner's baby.
7. Respondents 1 and 2 resisted the writ petition filing counter affidavit. Respondents 1 and 2 stated that the petitioner's baby was initially admitted in ESIC Hospital, Udyogamandal. In view of critical condition, she has been W.P.(C) No.23052/2024 :5: referred to Amrita Hospital for specialised treatment. Sanction for superspeciality treatment of patients referred by the ESIC Hospital shall be done by the ESIC Hospital concerned. When the petitioner attended the OP Department of ESIC Hospital with MRI report from Amrita Hospital, the Medical Superintendent of ESIC Hospital had advised the petitioner to obtain referral to a Government Institution / RCC, since the Department of Maxillofacial Surgery of Amrita Hospital is not empanelled with ESI Corporation. Therefore, there is no merit or bona fide in the writ petition. The writ petition is liable to be dismissed.
8. Heard.
9. The petitioner's new born baby has been diagnosed with "Expansile lesion of left maxilla extending from midline to buccal vestibula". When the petitioner took the baby to ESI Hospital, the ESI Hospital referred the baby to Amrita Hospital. The Amrita Hospital prescribed surgery, the cost of which would be about ₹1,30,000/- according to the petitioner. The petitioner cannot afford such huge sum W.P.(C) No.23052/2024 :6: and hence seeks cashless facility for treatment at Amrita Hospital.
10. In exercise of the powers conferred by Section 97 of the Employees State Insurance Act, 1948, the ESI Corporation has framed the Employees State Insurance (General) Regulations, 1950. Regulation 96-C provides that the Corporation or State Government may refer a beneficiary to any tie up arranged medical facilities, where cost of such facilities is borne directly by the Corporation and where the fund permits. The petitioner is seeking the benefit of Regulation 96-C. The problem in this case arises as the list of empanelled hospitals for superspeciality services to ESI beneficiaries in Kerala Region prepared by the 1 st respondent does not include Amrita Hospital, for the purpose of Maxillofacial Surgery.
11. A perusal of the list of empanelled hospitals prepared by the 1st respondent would show that with none of the listed hospitals, the ESIC has made tie up for treatment in Maxillofacial Surgery. In the case of the petitioner, the W.P.(C) No.23052/2024 :7: petitioner has been advised to go to any Government Hospital or RCC, Thiruvananthapuram. The list of empanelled hospitals would show that RCC, Thiruvananthapuram has been empanelled only for the speciality treatment in Oncology. The list made available to the Court would indicate that even the Amrita Hospital (Amrita Institute of Medical Sciences and Research Centre, Ponekkara PO, Kochi-682 041) is empanelled for the purpose of Oncology (Medical, Surgical, Radiation), Pediatric Surgery. The Maxillofacial Surgery has not been shown as a specified branch for treatment in any of the empanelled hospitals listed by the ESIC.
12. When the Regional Cancer Centre, Thiruvananthapuram and Amrita Hospital, Kochi, both have been included in the list of empanelled hospitals for treatment in Oncology, then there is no reason for the respondents to deny to the petitioner cashless treatment facility for her child in Amrita Hospital. This would be specifically so because in none of the listed hospitals, W.P.(C) No.23052/2024 :8: Department of Maxillofacial Surgery is indicated as a separate/different Department. The Maxillofacial Surgery is an allied branch of Oncology. Therefore, when Oncology (Medical, Surgical, Radiation) and Pediatric Surgery are made eligible for speciality treatment in Amrita Hospital, there is no reason for the respondents to deny cashless facility to the petitioner for treatment of her baby in Amrita Hospital.
The writ petition is therefore disposed of directing respondents 1 and 2 to provide cashless treatment facility for the treatment of the petitioner's baby at Amrita Hospital, Ernakulam.
Sd/-
N. NAGARESH, JUDGE aks/30.07.2024 W.P.(C) No.23052/2024 :9: APPENDIX OF WP(C) 23052/2024 PETITIONER'S EXHIBITS Exhibit P1 A TRUE COPY OF THE E-PEHCHAN CARD ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.
Exhibit P2 A TRUE COPY OF THE DETAILS OF THE ENTITLEMENT OF BENEFITS AVAILABLE TO THE PETITIONER UNDER THE EMPLOYEES STATE INSURANCE SCHEME.
Exhibit P3 A TRUE COPY OF THE SURGICAL PATHOLOGICAL REPORT DATED 07.06.2024 PREPARED BY AMRITA HOSPITAL ON PETITIONER'S BABY.
Exhibit P4 A TRUE COPY OF THE PRE ANESTHESIA EVALUATION CONDUCTED ON PETITIONER'S BABY ON 03.06.2024.
Exhibit P5 A TRUE COPY OF THE E-MAIL SENT BY
PETITIONER'S EMPLOYER TO THE 1ST
RESPONDENT ON 24.06.2024 AND THE REPLY RECEIVED BY THEM FROM THE 1ST RESPONDENT ON 25.06.2024.
Exhibit P6 A TRUE COPY OF THE LIST OF EMPANELED
HOSPITALS FOR SUPER SPECIALTY
TREATMENT WHICH IS AVAILABLE IN THE
WEB SITE OF THE 1ST RESPONDENT.
RESPONDENTS' EXHIBIT
EXHIBIT- R1(a) TRUE COPY OF THE E-MAIL DATED
25.06.2024 SENT BY THE MEDICAL
SUPERINTENDENT, ESIC HOSPITAL,
UDYOGAMANDAL.