Central Administrative Tribunal - Delhi
Vijay Kumar vs Union Of India Through on 12 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI RA 198/2012 in OA 340/2011 New Delhi this the 12th day of July, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) Vijay Kumar, S/o Shri Sardari Lal, Chief Parcel Supervisor, Northern Railway, Delhi. ... Review Applicant. Versus Union of India through 1. General Manager, Northern Railway, HQ Baroda House, New Delhi. 2. Chief Medical Director (CMD), Northern Railway, HQ, Baroda House, New Delhi. Respondents. O R D E R (By Circulation)
This Review Application has been filed by the applicant in OA 340/2012 which has been dismissed vide order dated 03.05.2012 with its operative part as under:
4. I have heard the applicant in person and Shri Shailendra Tiwary, learned counsel for the respondents. It is an undisputed case that a Railway employee can get himself or his dependents admitted in a private hospital only in emergency cases without the proper reference by the competent Medical authority. Further, it is an undisputed case that the ailment of the applicants wife was diagnosed as Bilateral Knee Osteoarthritis with synovial hypertrophy which she has been suffering for the last five years. She has also been taking treatment for the aforesaid problem for all those years. However, the applicant got her admitted in Fortis Hospital, Mohali on 25.09.2009 and she was operated there as an emergency case. She got her total knee replacement also done as an emergency case. Whether case is of emergency nature or not is not always decided on the basis of the certificate of a doctor who treats the patient and performs the surgery. According to the Railways, the emergency cases have got a different connotation. It has been defined as 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. They have also given examples of emergency cases such as road accident, other types of accident, acute heart attack, etc. By no stretch of imagination, a person who has been suffering from knee pain, however acute it is, cannot claim that he/she has been admitted in the hospital as an emergency case. Knee pain which requires complete knee replacement is not a disease, if not treated immediately be detrimental to the life of the patient or will jeopardize his/her life. It is not a disease like road accident or acute heart attack. In the above facts and circumstances of the case, the contention of the applicant that he got his wife admitted in the hospital for knee replacement on an emergency situation cannot be accepted. I, therefore, find no reason to interfere in the findings of the respondents that the applicants case is not covered by their policy regarding emergency treatment. Consequently, I hold that this OA lacks merit and it is dismissed. No order as to costs.
He has sought review of the aforesaid order on the following grounds:
(1) It is a fact on record that the essentiality certificate for bilateral knee replacement was issued by the doctors of Fortis Hospital who did operation/surgery/knee replacement in an emergency but the Honble Tribunal rejected this essentiality certificate without any solid reason and ground.
(2) It is also a fact on record that the respondents also failed to consider & note this essentiality certificate issued by the doctors of Fortis Hospital while passing impugned orders challenged by the applicant in the O.A. The respondents nowhere stated in the impugned orders that they dont agree with the essentiality certificate issued by the Fortis Hospital. This essentiality certificate issued by the Fortis Hospital was as good as discharge summary and it was a part and parcel of discharge summary. However, both the respondents as well as the Honble Tribunal failed to note and consider this vital fact of the case.
(3) It is a fact on record, this Honble Tribunal even failed to consider that if this surgery has been done from the Rly. Hospital/Govt. Hospital even then the expenditure of parts provided in knee surgery was to be made by the Railway/Govt. Hospital also as these parts are not free and are not manufactured by the Railway. The Honble Tribunal at least should have directed the Railway to reimburse the amount which has to be incurred even in Railway or in Government Hospital for such bilateral knee replacement surgery.
(4) This is also a fact on record, that the applicant had not approached the Fortis Hospital of his own but he was advised by reputed surgeons for the same. Had applicant approached of his own to Fortis Hospital then the applicant could be held responsible otherwise not for approaching the private hospital.
(5) It is a fact on record that the Railway has no hospital other than Central Hospital, Delhi for knee replacement surgery and this Central Hospital is over crowded with patients from entire Northern Railway and there is huge waiting list of patients. The turn of the patient will not come even in a year from the date of registration for knee replacement whereas in case of applicant wife knee surgery was performed in emergent situation.
(6) That how the respondents can conclude there is no emergency for knee replacement surgery when expert doctors of this specialized treatment are declaring it as an emergency operation. Hence, rejecting the claim of medical reimbursement is not justified.
(7) It is also a fact on record that the applicant informed the concerned Railway doctor about admission in the ICU of Fortis Hospital.
(8) It is a fact on record that the Honble Tribunal failed to explain in its order that what grounds will be taken into account to decide the case as a emergency case and why certificate of a doctor who treats the patient and perform the surgery is not to be considered to decide whether emergency exists or not for operation.
(9) It is a fact on record that the Honble Tribunal in para 4 of its order had itself concluded that the wife of the applicant was operated as an emergency case and her total knee replacement was also done as an emergency case. Thus, when the Tribunal itself had concluded and confirmed that the operation was done in emergency then the question of not allowing the OA does not arise.
(10) The Honble Tribunal failed to note that if emergency is established then full reimbursement shall be paid but it does not mean that in case the emergency is not established then no claim t all will be paid. At least amount equivalent to CHGS rates be paid to applicant when it ahs come to the notice of respondents and Honble Tribunal that the applicants wife had actually gone for knee replacement surgery and the claim of applicant is genuine and not bogus or false. There is no law which says that no amount of reimbursement shall be paid if emergency is not established. No doubt there is a law which says full claim shall be released if emergency is established.
(11) The Honble Tribunal failed to note that several High Courts like Punjab and Haryana at Chandigarh has already passed an roder that patient has a right to choose doctor and hospital for treatment.
(12) The Honble Tribunal failed to note that the Fortis Hospital is super speciality hospital whereas Central Hospital not. The doctors who are super specialists and world renowned in field of knee replacement surgery are available in the Fortis Hospital and such experienced doctors and not available in the Central Hospital.
(13) It is also a fact on record that the expenditure by applicant for knee replacement surgery of his wife was almost equivalent to that what comes in the Govt. Hospitals.
2. I have considered the aforesaid submissions of the review applicant. It is seen from the aforesaid order of this Tribunal dated 03.05.2012 that all the aforementioned facts stated by the applicant have been duly considered. In my considered opinion, the applicant is only trying to reargue the matter which is not permissible under the Rules.
3. In Parsion Devi and Others vs. Sumitri Devi and Others [1997 (8) SCC 715], it was held as under:-
"Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise"."
4. In K. Ajit Babu and others vs. Union of India and others [1997 (6) SCC 473], it was held that even though Order 47 Rule 1 is strictly not applicable to the Tribunals, the principles contained therein have to be extended to them, else there would be no limitation on the power of review and there would be no certainty or finality of a decision. A slightly different view was expressed in Gopabandhu Biswal vs. Krishna Chandra Mohanty and others [1998 (4) SCC 447]. In that case it was held that the power of review granted to the Tribunals is similar to the power of a Civil Court under Order 47 Rule 1.
5. In view of the above position, this review application is dismissed.
( G. George Paracken ) Member (J) SRD