Central Administrative Tribunal - Delhi
Nau Nihal Singh Rana vs Union Of India Through on 7 January, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1658/2012 M.A.No.2303/2012 Monday, this the 7th day of January 2013 Honble Mr. A.K. Bhardwaj, Member (J) Nau Nihal Singh Rana (in short N N S Rana) s/o late Shri Shamsher Singh r/o Q-60 (first floor) Rajouri Garden, New Delhi-27 .. Applicant (By Advocate: Mr. Yogesh Sharma along with applicant) Versus Union of India through 1. The General Manager Northern Railway Headquarters Office Baroda House, New Delhi-1 2. Chief Medical Director Northern Railway HQ, Annexe-2 Baroda House, New Delhi-1 3. Director General (Railway Health Services) Railway Board (Ministry of Railways) Room No.348, Rail Bhawan New Delhi-1 4. FA&CAO Northern Railway HQ Annexe-2, Baroda House, New Delhi-1 5. Senior Divisional Medical Officer/Reimbursement/ Office of CMS Divisional Hospital/Northern Railway Near Old Delhi Railway Station, Delhi 6. Secretary Railway Board, Rail Bhawan, Ministry of Railways New Delhi-1 (deleted as per following order in MA-2303/2012) ..Respondents (By Advocate: Mr. Shailendra Tiwary) O R D E R (ORAL)MA 2303/2012
Since according to the learned counsel for the applicant the reimbursement of medical expenses upto Rs.2 lacs can be sanctioned by the General Manager of the concerned Railway the Secretary, Railway Board, New Delhi is considered as not necessary party and directed to be deleted from the array of parties. MA stands disposed of accordingly.
OA-1658/2012 The applicant, who resides at Q-16 (1st floor), Rajouri Garden, New Delhi, suddenly suffered a complete loss of vision in his left eye, thus had to visit a private clinic at Q-53 (ground floor), Rajouri Garden, New Delhi where Dr. S N Jha diagnosed it as retina detachment requiring immediate emergent operation of the eye after some essential pre-operation medical tests and necessary pre-operation medication. The applicant was advised to take complete bed rest to prevent further deterioration of the condition. After necessary procedure, he was operated by Dr. S N Jha and his team in Sir Ganga Ram Hospital, New Delhi on 17.1.2011 for L/E pars plana vitrectomy with 360 degree band buckle with silicone oil injection with endolaser under local anesthesia. As per medical procedure, the oil was injected by the same team on 7.4.2011. The concerned doctor considered the said operation procedure as emergent and issued required certificate dated 25.5.2011. The doctor also took pain to issue another certificate dated 23.8.2011 to explain the difference between the operation procedure adopted by him and the retinal detachment surgery with sclera buckling. According to the doctor, the operation performed by his team on 17.1.2011 was more complicated than the one mentioned by the railway authorities in their counter reply dated 23.7.2012 (ibid). On the operation procedure undergone by him in the Department of Ophthalmology, Sir Ganga Ram Hospital, New Delhi, the applicant had to spend Rs.71414.47. Being member of Retired Employees Liberalized Health Scheme (RELHS), he put forth his claim to the Chief Medical Director for reimbursement of an amount of Rs.37885/-, as an amount of Rs.33529/- was paid by the Oriental Insurance Company directly to the hospital in terms of the individual medical claim policy schedule (Annexure A-7). When the said claim was not processed and finalized by the respondents, he made a representation dated 17.10.2011 (Annexure A-2) to the Chief Medical Director, Northern Railway, Head Quarter, New Delhi, requesting for reimbursement of the aforementioned balance amount of expense incurred by him on the operations(ibid). According to the applicant, he received no response to the said representation from the respondents. Thus he has filed the present Original Application praying therein:
(i) The respondents may graciously be ordered to give reimbursement of Rs.37885.00 without any further delay.
(ii) May graciously grant interest at the rate of 18% on this amount of Rs.37885.00 from the date, target period of 59 days to send reimbursement cheque to applicant was over, after application dated 8.6.2011 was received on 17.6.2011 by Sr. DMO Punjabi Bagh Railway Health Unit, till this reimbursement is actually paid to applicant.
(iii) May kindly order the respondent to also pay Rs.10000.00 to applicant for mental agony, mental harassment and mental tension caused to applicant for not sanctioning this reimbursement upto now, which this Honble Tribunal is empowered in terms of judgment of Honble Supreme Court cited above.
(iv) May kindly order the respondents, to also pay Rs.26625.00 to applicant, which applicant had paid as premium to Oriental Insurance Co. for Mediclaim Insurance Policy for the period 21.5.2010 to 20.5.2011, as whole of this premium has got adjusted towards Rs.33529.00 paid by this Insurance Company, Sir Ganga Ram Hospital as part of total expenses of Rs.71414.47 on this operation on left ye, because no other claim was made from this Insurance Company during this period against this Mediclaim Insurance Policy. The applicant has to take this mediclaim policy as there is no Rly. Hospital within 2.5 km of his residence.
(v) May kindly order that the amount of interest if any and amount granted to applicant for mental agony etc. if any, be recovered from the Medical Officer/Staff or the Account Officer/Staff in Northern Rly. HQ, who have caused so much delay in this reimbursement.
(vi) May kindly order the respondents GM/N. Rly, CMD/N. Rly, DG (Rly. Health Services) Railway Board and Secretary Railway Board to have a tie up with prominent Private Hospital in different areas of NCR for cashless treatment of retired Railway Servant (both gazetted and non-gazetted) for indoor treatment of different ailments of Retired Railway Servants so that Retired Rly. employees may have no need to take Mediclaim Insurance Policy, and to save clerical work for dealing with such re-imbursement claims.
(vii) Cost of this O.A., with counsels fee may also be granted.
(viii) Any other relief, which this Honble Tribunal may deem fit and proper may also be graciously granted, in view of facts and circumstances above.
2. Mr. Yogesh Sharma, learned counsel for the applicant submitted that the aforementioned treatment availed by the applicant was emergent in nature and the doctors have already given a certificate to this effect. According to him, the emergency shall mean any condition or symptom resulting from any cause, arising suddenly and if not treated at the early convenience would be detrimental to the health of the patient. He also submits that had the applicant not taken the treatment immediately, he could have lost his sight in his left eye. According to the applicant, in terms of the individual medical claim policy claim of the Oriental Insurance Company Limited, he could be entitled to reimbursement of medical expenses only if the total amount of the same could be beyond Rs.25000/- and the respondents could not confuse their liability with the benefits accrued to him in terms of an individual policy availed by him as per the terms of the same. Reference has also been made to the letter No.15 Med/Bills/CH/2012 dated September 2012 issued by the Central Hospital, Northern Railway, New Delhi (Annexure A-14) to show that the beneficiaries of RELHS are reimbursed the expenses incurred by them on treatment in Sir Ganga Ram Hospital. Relevant excerpt of the said letter is extracted hereinbelow:-
Sub: Disposal of Appeal submitted under section 19 of RTI Act 2005 In reference to Shri N N S Rana, Advocate Supreme Court letter dated 05/06/2012, the para wise reply are as under:-
1. No. of patient took treatment in Sir Ganga Ram Hospital and Advance payment for the same was sanctioned by the Competent Authority and deposited in the above hospital.
Baby of Kavita W/o Shri Bir Singh Rs. 173500/- dated 13/01/2012 and 2,25,000/- dated 15/12/2011.
Rajnish Mishra Rs.945758/- dated 28/03/2012 Ms. Asha Shukla Rs.350000/- dated 18/05/2012 and Rs.71022/- dated 23/06/2012 Shri N K Sharma Rs.5,00,000/- dated 23/08/2012
2. Reimbursement claimed by patients to took treatment in Sir Ganga Ram Hospital and claimed for the same Sh Sail Pandey Rs.145402/- dated 04/04/2012 Sh A K Puthia Rs.51363/- dated 23/11/2011 Sh B K Singh, Rs.404787/- dated 22/01/2012 Sh Manish Tiwari Rs.59110/- dated 04/04/2012 Mr Rajiv Makhija Rs.31558/- dated 23/12/2012
3. It is also the plea of Mr. Sharma, learned counsel for applicant that there is procedure in Railway Board providing for reimbursement of expenses incurred by the members of RELHS on their treatment in private hospital without referral by authorized medical officers.
4. On the other hand, Mr. Tiwari, learned counsel appearing for the respondents submits that since the applicant approached the doctor on 13.1.2011 and operations were performed on 17.1.2011 and 7.4.2011, it cannot be said that the applicant was in emergent need of taking treatment in non-recognized hospital. He further submitted that the applicant could have approached concerned railway hospital for the required treatment, which in lieu could refer him to any of the said medical centres, with whom the Railway has a contract and in such situation, the expenses could be far less. According to him, having got the reimbursement from insurance policy, the applicant is not entitled to any such reimbursement from the respondents.
5. I have heard the learned counsel for the parties and perused the records.
6. In view of the rival stand of the parties, following propositions arise to be determined in the present Original Application:
i) Whether on having received the reimbursement of medical expenses from the Oriental Insurance Company Limited, the applicant could get reimbursement from the respondents also? and
ii) Whether the expenses incurred on the treatment availed by him in Sir Ganga Ram Hospital, which is not recognized by the Northern Railway as medical centre for treatment of retina detachment (eye treatment) are reimbursable to the applicant by respondents?
7. As far as the first proposition is concerned, a reference can be made to OM No.S-11011/4/2003-CGHS (P) dated 27.2.2004 issued by the Govt. of India, Ministry of Health & Family Welfare (Department of Health) for guidance. In terms of the said OM, the beneficiaries of CGHS, who hold a CGHS pension card, are entitled to claim reimbursement of medical expenses both from insurance policy as well as CGHS in case they have taken a mediclaim policy. However, the beneficiary is required to raise the claim first with the insurance company and then with the Director, CGHS for reimbursement of balance amount of expenses, i.e., the amount of difference of expenses and reimbursement by the insurance company. For easy reference, paragraph 2 of the OM is extracted hereinbelow:-
2. The issue has been examined in consultation with the Insurance Division of the Department of Economic Affairs and also the Department of Expenditure. It has been decided that the beneficiaries of CGHS who hold a CGHS Pensioner Card would be allowed to claim reimbursement of medical expenses both from Insurance Companies as well as the CGHS in case such pensioners have taken a Mediclaim policy. However, medical claim against the original vouchers/bills would be raised by the pensioner first on the Insurance Company who would issue a certificate to the Director, CGHS of the amount reimbursed to the pensioner holding the Mediclaim policy. The concerned Insurance Company would retain the original bills in such cases. The CGHS pensioner cardholder would then prefer his/her medical claim along with photocopies of the vouchers/bill duly certified, in ink along with stamp of the Insurance Company on the reverse of the bills, to the concerned Additional Director of CGHS. The CGHS would then reimburse to the pensioner beneficiary only the balance of the admissible amount (that is the admissible amount minus what has been reimbursed to the CGHS Pensioner cardholder by the Insurance Company). The CGHS Pensioner cardholder would be subject to he further condition that the total amount reimbursed by the two organisations does not exceed the total expenditure incurred by the pensioner.
8. In the present case, admittedly, the applicant spent an amount of Rs.71414.47 on the operation procedure and other ancillaries. He espoused the claim for reimbursement of expenses first with Oriental Insurance Company Limited, which reimbursed an amount of Rs.33529/- alone. Only for the reimbursement of remaining amount of Rs.37885/-, the applicant had approached the respondents. In view of the judgment of the Apex Court in Suman Rakheja v. State of Haryana & another, 2006 SCC (L&S) 890, the beneficiary of health scheme is entitled to get refund of 100 per cent medical expenses at the AIIMS rates and 75 per cent of expenditure in excess thereto. Paragraphs 4 & 5 of the said judgment read as under:-
4. Counsel for the appellant submitted that in similar case (Annexure P-4) i.e. by the order of the High Court of Punjab and Haryana in Sant Prakash v. State of Haryana wherein in an emergency case the patient had to be immediately admitted in hospital, the relief has been granted. In the present case also the appellants husband had to be rushed to the private hospital because he had developed a paralytic stroke on the left side of the body, as there was blood clotting on the right side of the brain and therefore, was admitted in an emergency condition in the hospital. In the present case the discharge certificate also shows that the case was an emergency one. In Sant Prakash case the Division Bench held that the petitioner therein would be entitled to 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto.
5. In the result, in this appeal also, the appellant herein would be entitled to get the refund of the amount of 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto.
9. Thus in view of the aforementioned OM and the judgment of Honble Supreme Court, the respondents are liable to refund of 100 per cent medical expenses at the AIIMS rates and 75 per cent of expenditure in excess thereto to arrive at the total amount to be reimbursed to the applicant. From the amount so arrived at, they would be entitled to deduct an amount of Rs.33529/- reimbursed by the insurance company and balance amount shall be payable to the applicant by the respondents only.
10. Regarding the plea of the respondents of inadmissibility of expense incurred on treatment taken by the applicant in a medical centre (hospital) not recognized by the respondents for retina operation, I find that in terms of their own policy (Annexure A8) in case of treatment of beneficiary of the health scheme of the respondents in a private hospital in emergency, the CMS/MD should scrutinize the claim first and if emergency is established, would recommend the amount to be reimbursed and will send it for financial concurrence of the associate finance. Clause (i) of the said addendum (policy) is extracted below:-
1. Procedure The procedure to be followed for consideration and rejection of the reimbursement claim, if the treatment is taken by railway employee in a non-recognized private hospital without referral by authorized Medical Officer shall be as under:-
A. At the Division/Zonal Hospital/ Production Unit Level:
(i) AMO will scrutinize the claim list and will forward it to CMS of the concerned Division/Production Unit or MD of the Zonal Hospital.
(ii) CMS/MD will scrutinize the claim and if emergency is established, will recommend the amount to be reimbursed and will send it for financial concurrence of the associate finance.
(iii) The proposal will be sent to CMD of the concerned Zone.
11. From the certificate issued by doctor who performed the operation procedure, it is abundantly clear that the applicant was in emergent need of treatment. The date of performance of the operation procedure is not relevant to establish the emergency. What is relevant is the need and requirement of medical aid/emergency. It is not the case of the respondents that having consulted the doctor who administered the treatment to the applicant, he could have approached the railway authorities/hospital as per the procedure to avail the treatment for the ailment he was suffering from without loss to his health. I do not find any reason to disregard the certificate dated 25.5.2011 given by Dr. Jha to the effect that the applicant was requiring immediate emergency operation. In the absence of such operation, he could have suffered loss of sight in his left eye.
12. As per the definition of the term emergency given in Railway Boards letter dated 31.1.2007, it shall mean any condition or symptom resulting from any cause, arising suddenly and if not treated at the early convenience would be detrimental to the health of the patient. In the present case, the applicant suffered from retinal detachment suddenly on 13.1.2011 and he had to take medical advise/treatment in a clinic, which was situated at a distance of around 100 meters from his residence. Relevant excerpt of the Railway Boards circular (ibid) containing the definition of emergency reads as under:-
Emergency shall mean any condition or symptom resulting from any cause, arising suddenly and if not treated at the early convenience, be detrimental to the health of the patient or will jeopardize the life of the patient. Some examples are Road accidents, other types of accidents, acute heart attack, etc. Under such conditions, when the Railway beneficiary feels that is no scope of reporting to his/her authorized Railway Medical Officer and avails treatment in the nearest and suitable private Hospital, the reimbursement claims are to be processed for sanction, after the condition of the emergency is confirmed by the authorized Railway Medical Officer ex-post-facto.
13. Following the judgment of the Honble Supreme Court in K.P. Singh v. Union of India & others , 2002 SCC (L&S) 761, this Tribunal in Pramod Kumar v. Union of India & others, 2005 (3) (CAT) AISLJ 173 viewed as under:-
21. It is not disputed that Sir Ganga Ram Hospital has been recognised for the purposes of specialist treatment by the Ministry of Health and Family Welfare. Being a recognised hospital for the purpose of reimbursement no distinction can be made between a Government hospital or a hospital recognised by Government. With the modernisation of technique the Government hospitals have not kept pace with the private hospitals with the result the specialised treatment equipments and expectancy of life and survival rate has gone multifold in recognised hospitals and the conditions of Government hospitals have become pathetic. A citizen of India who is also a Government servant has a right to life under Article 21 of the Constitution of India and the State has to protect it. If a person in emergency when such a specialised treatment is not available in Railway hospital goes himself or takes the family member to such hospital, denial of medical expenses on the ground that it is not a Government hospital cannot be countenanced. The Apex Court in K.P. Singh v. Union of India and Others, 202 SCC (L and S) 761 observed as under:-
6. The last grievance, and it is of some note, is that a beneficiary of the Scheme will receive reimbursement only at the rate approved by the CGHS, regardless of the fact that in his particular town or city there are only private hospitals and no Government hospital, there is, therefore, no option for him but to enter a private hospital for such treatment. It is also submitted that the approved rates are not updated by the CGHS from time to time so that what the beneficiary receives by way of reimbursement can be substantially less than the cost that has actually been incurred upon his hospitalisation. While there is, we think, merit in the submission, it is not for us to dictate what should be done. We direct that the Union of India shall immediately consider this aspect and give appropriate directions thereon. It would clearly be appropriate for it to update its approved rates on an annual or, at least, biennial basis.
14. Beside as is apparent from the letter dated September 2012 (ibid), the respondents have reimbursed the medical expenses incurred by the beneficiary of their scheme on their treatment taken in Sir Ganga Ram Hospital, New Delhi. In view of the aforementioned, I am not inclined to accept the stand of the respondents that for treatment taken in Sir Ganga Ram Hosptital, not recognized by the respondents for eye treatment, he would not be entitled to reimbursement of expenses incurred by him there.
15. In the circumstances, the OA is disposed of with direction to the respondents to calculate the cost of the medical expenses for retina detachment operation of 100 per cent medical expenses at the AIIMS rates and 75 per cent of expenditure in excess thereto and adjust the amount of medical reimbursement received by the applicant from Oriental Insurance Company Limited and pay the balance amount to him within a period of four weeks from the date of receipt of a copy of this order. No costs.
( A.K. Bhardwaj ) Member (J) /sunil/