BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU. (ADDL. BENCH)
DATED THIS THE 28th DAY OF FEBRUARY, 2024
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
COMPLAINT NO.86/2018
Sri.Ramaprasad,
S/o H.V.Seetharamaiah,
Aged about 61 years,
R/o.#597/1, “AMMA”,
Opp.: Biligiri Apartments ….Complainant/s
Anjaneya Extension,
Davanagere-577004
(By Sri.J.Prashanth, Advocate)
-Versus-
1. Divisional Manager,
South Western Railway,
KRS Road, Yadavagiri,
Mysore-570 020
… Opposite party/s
2. General Manager,
Southern Railways,
Hubli
3. The Union of India,
Department of Railway,
New Delhi
(OP Nos.1 to 3 by Sri.S.R.Khamroz Khan, Advocate)
O R D E R
BY SMT.SUNITA C.BAGEWADI, MEMBER
The complainant filed this complaint against the Opposite Parties alleging deficiency in service and prays to direct the Opposite Parties to award compensation of Rs.49,34,462/- together with interest @ 24% per annum to the complainant and grant such other relief, in the interest of justice and equity.
2. The brief facts of the complaint is that, the complainant is a retired railway employee and his wife Smt.Bhavani Prasad during her life time has suffered stomach ache and bleeding. She took some treatment as and when she suffered pain for some years. When the pain intolerable, she consulted one Dr.Shukla Shetty at Davanagere on 5-8-2016 and on the same day she was treated as outpatient basis. After clinical examination, she diagnosed that she is suffering from disease related to Uterus and she required surgery to overcome the pain.
The complainant further submitted that, on the same day, the complainant’s wife Smt.Bhavani Prasad admitted to City Hospital, Davanagere as per the advice of doctor. On 8-8-2016 some examinations were conducted and patient was taken to surgery on 9-8-2016. After completion of surgery, the patient was shifted to ward and she took treatment from 8-8-2016 to 13-8-2016 in the said hospital and discharged on 13-8-2016. Even after surgery, Smt.Bhavani Prasad was on follow up treatment nearly for three months, but when the time lapsed, she started suffering intolerable pain in her abdomen reason, for that she consulted the many doctors who are all at their disposal, but in vain. With no other option left with, the complainant took her to Bapuji Hospital, Davanagere on 7-11-2016. The said hospital authorities have taken necessary instructions and got admitted Smt.Bhavani Prasad in hospital on 7-11-2016 and she took treatment in the said hospital for three days till 10-11-2016. The said hospital authorities initially have diagnosed that the patient is suffering from Adnexal, malignancy under evaluation with ascities and right pleural effusion. After commencing the treatment, the said Bapuji Hospital authorities diagnosed that Smt.Bhavani suffered from Ovarian Cancer and the same has been reached to dangerous position, the said hospital authorities have advised the complainant to take his wife to Bengaluru for further treatment and nourishment.
The complainant further submitted that immediately as per the advice of the Bapuji hospital, the complainant has taken his wife to HGC hospital, Bengaluru for necessary treatment and nourishment. In the said hospital, Smt.Bhavani Prasad started treatment from 17-11-2016 till 8-3-2017. During the course of treatment between afore said duration, Smt.Bhavani Prasad was admitted to the hospital as and when the doctor advised. At last on 8-3-2017 Smt.Bhavani Prasad was collapsed as she has not come out from the said disease. After aforesaid happenings, the complainant realized that he lost his wife just because of negligent act of Doctor Smt.Shukla Shetty. After death of Smt.Bhavani Prasad, the complainant submitted his representation to the OPs No.1 and 2 dated 22-5-2017, the said letter was duly served against the OPs. After receipt of representation from the complainant, the OPs ought to have reimburse the claim made by the complainant, but went in vain. Instead of making settlement, the OP No.1 has issued a replay dated 8-6-2017 by assigning vague and evasive reasons.
The complainant further submitted that since from the date of admission till the date of death of Smt.Bhavani Prasad. The complainant has spent a huge amount of Rs.40,84,462/- towards her treatment and nourishment. The complainant served with the OPs department for more than 32 years without there being any adverse remarks and he has been superannuated in the month of Feb.2016 at Harihara as Chief Booking Officer. The claim made by the complainant is just and proper and genuine claim. The OPs are deliberately not settling the medical reimbursement in favour of the complainant with an oblique intention to deprive the complainant from claiming the same. Due to conduct of OPs the complainant has suffered financial loss, mental agony. Hence, this complaint is filed.
3. After service of notice, the Opposite Party Nos.1 to 3 have appeared through their counsel and filed version along with some documents and contended that the complaint is not maintainable either in law or on facts hence it is liable to dismissed. The complainant is not a consumer within the meaning of CP Act and the complainant is a retired employee. Therefore if there is any grievance the complainant has against the OPs for any administrative action on the part of the OPs. The complainant has to approach either Civil Court or any other Forum and not the Consumer Forum as the Consumer Forum has no jurisdiction to adjudicate the dispute or the claim and as such the complaint is liable to be dismissed for want of jurisdiction. Other averments made in the complaint are denied as false and not within the knowledge of these OPs.
The OPs further contended that, the complainant had served the OPs department for more 32 years without being any adverse remarks and he was superannuated in the month of Feb.2016. The OPs have all the sympathy for the complainant that his wife died due to terminal illness. The OPs contrary to Railway Board policy and RELHS scheme with regard to reimbursement of medical expenses or treatment could not have settled the alleged medical expenses incurred by the complainant. As per the Railway Board’s policy, the complainant was not entitled to any reimbursement.
The OPs further contended that the complainant during his service before this superannuation opted for RELHS scheme. Under the said scheme, the Railway Employees and his dependent/s are entitled to reimbursement of medical expenses taken at Government at Philanthropic Hospital in case of emergencies and does not cover the treatment taken at Private Hospital as per Railway Board’s letter No.88/H/6-4/72 dated 15-2-1982. For reimbursement of medical expenses incurred at private hospital, the prior approval or referral by the concerned Railway Doctor is mandatory as per the Railway Board’s letter No.99/H/6-4/85 dated 10-9-1999.
The OPs further contended that, the RELHS scheme was launched in the year1997. The said scheme clearly defines the scope and services and benefits as amended from time to time. The scheme is not all inclusive and it is subject to limitations as defined in the said scheme. The complainant is an educated Group-C Railway Retired Employee, who was aware of the scope and benefits and limitation of the scheme when he was subscribed to the scheme by paying one month basic pay as one time contribution. Under the scheme subscribed by the complainant the railway board from time to time to modified the scheme keeping in interest of retired employees and also to prevent any misuse of the scheme. As per the railway board letter and notification issued from time to time to condition in which the retired employee are entitled to medical reimbursement are clearly specified apart from limit to claim for medical reimbursement in emergency and non emergency cases. The chronological events leading to treatment taken by the complainant’s wife do not qualify the complainant to claim medical reimbursement as the treatment of his wife has taken is not an emergency condition.
The OPs further contended that Smt.Bhavani Prasad wife of Sri.H.S.Ramprasad Rtd.CBSR/HRR has under gone hysterectomy in August 2016 at Davanagere. The above process and treatment was not an emergency as per records. She was diagnosed as ovarian cancer and admitted in private hospital at Davanagere in Nov.2016 and later admitted to HCG hospital, Bengaluru on 17-11-2016, she has undergone chemotheraphy till February, 2017 and planned elective surgery was done on 16-2-2017. From November 2016 to February 2017, CMS/MYS was neither intimated nor obtained permission by CMS/MYS and private treatment was taken at own risk. Railway beneficiary should inform authorized medical officer at the earliest regarding the private treatment taken. As application did not fulfill the criteria of Railway board letter No.2005/H/6-4/policy II dated 31-1-2007 “Re-imbursement of expenses in emergency without being referred by authorized medical officer requires emergency situation to be clearly established.
The OPs further contended that the cancer is chronic disease with various stages of disease and long periods of treatment at varying intervals of time. Treatment varies according to the stage of disease with different methodology of treatment for different stages. Hence it is not an emergency condition. The policy letter 2005/H/6-4/policy-II dated 31-1-2007 and the eligible rates and condition for claiming medical reimbursement para 648 (2) of IRMM 2000.
The OPs further contended the medical documents including medical bills produced by the complainant are created and manufactured for the purpose of case and the complainant is put to strict proof of the same, as the OPs did not have any occasion to verify the same during the complainant’s wife treatment at the hospital and the documents are collusive one. Hence the present complaint is liable to dismissed with cost.
4. The complainant filed affidavit evidence and marked documents at Exs.C1 to C7. In spite of granting sufficient time, the OPs have not filed their affidavit evidence.
5. Heard from complainant. The OPs have not submitted their arguments, despite granting sufficient opportunities.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainant has proved the deficiency of service on the part of the Opposite Parties?
(2) Whether the complainant is entitled for the reliefs as sought?
(3) What order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the partly affirmative
(3) As per the final order
R E A S O N S
8. Point Nos.1 to 3:- Perused the contents of complaint, objections of the Opposite parties, affidavit evidence of complainants and documents produced by the complainant, we noticed that the OPs have admitted that the complainant was a retired employee of the OPs department for more than 32 years and he was superannuated in the month of February, 2016 and contended that if there is any grievance, the complainant has against the OPs for any administrative action on the part of the OPs, the complainant has to approach either Civil Court or any other Forum/Commission and not the Consumer Commission as the Consumer Commission has no jurisdiction to adjudicate the dispute or the claim, as such the complaint is liable to be dismissed for want of jurisdiction.
9. The OPs further contended that the complainant during his service, before his superannuation opted for RELHS scheme, under the said scheme, the Railway Employees and his dependent/s are entitled to reimbursement of medical expenses taken at Government at Philanthropic Hospital in case of emergencies and does not cover the treatment taken at private hospital as per Railway Board’s letter No.88/H/6-4/72 dated 15.2.1989. The OPs further contended that the RELHS Scheme was launched in the year 1997, the said scheme clearly defines the scope and services and benefits as amended from time to time. The complainant is an educated Group-C Railway Retired Employee, who was aware of the scope and benefits and limitation of the scheme. When he has subscribed to the scheme by paying one month basic pay as one time contribution. As per the railway board letter and notification issued from time to time, the condition in which the retired employee are entitled to medical reimbursement are clearly specified part from limit to claim for medical reimbursement in emergency and non emergency cases. The chronological events leading to treatment taken by the complainant’s wife do not qualify the complainant to claim medical reimbursement as the treatment of his wife has taken is not an emergency condition. The OPs further contended that the cancer is chronic disease with various stages of disease and long periods of treatment at varying intervals of time. Treatment varies according to the stage of disease with different methodology of treatment for different stages; hence it is not an emergency condition. The policy letter 2005/H/6-4/policy-II dated 31.1.2007 and the eligible rates and condition for claiming medical reimbursement para 648 (2) of IRMM 2000.
10. Perused the evidence affidavit of the complainant and documents produced by the complainant and OPs; we noticed that the complainant had taken treatment at Private hospital from Nov.2016 to Feb.2017 without prior information given to the OPs and as per the Criteria of Railway Board letter No.2005/H/6-4/policy II dated 31.1.2007. The condition is that “Re-imbursement of expenses is emergency without being referred by authorized medical officer requires emergency situation to be clearly established” and also the OPs contended that the cancer is chronic disease with various stages of disease and long periods of treatment, hence it is not an emergency condition.
11. Going through Section 3 of the CP Act, 1986. Now Section 100 of the CP Act, 2019, it reads as:
“CP Act not in derogation of any other law-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
As per CP Act, it is an additional remedy to the consumers. The consumers have got every right to move in Consumer Commissions for their remedy. Hence, the complaint filed by the complainant is maintainable. Further, it is true that the complainant has not informed and obtained the prior permission for the purpose of treatment from the OPs, but it is not in negligence or carelessness on the part of the complainant. The wife of the complainant was suffering from disease related to uterus and she was admitted to City Hospital, Davanagere and operated on 8-8-3016 and discharged on 13.8.2016 and subsequently after three months she started internal pain in abdomen and after consultation lastly got admitted in Bapuji Hospital 7-11-2016 and after diagnosis it was confirmed that she has ovarian cancer and the same was reached at last stage. On the advice of the Bapuji Hospital authority, the complainant took his wife to HCG hospital, Bengaluru for better treatment. It is true that, the cancer has various stages. When it diagnosed in the earlier stage, it is curable, but if the cancer is diagnosed at the later/last stage, then it is an emergency condition In that condition to save the patient is the first priority of the family members.
12. In the present case, the wife of complainant diagnosed as uterus cancer in Bapuji Hospital on 7-11- 2016 and she died on 8.3.2017 within four months, which is nothing but an emergency condition and hence it was necessary to the complainant to take his wife in best hospital to give better treatment and save life of his wife. The complainant took his wife in emergency condition on the advice of authority of Bapuji hospital because already cancer has been reached at dangerous stage. It was not his choice to take his wife to HCG hospital, Bengaluru, which is not in the list of the OPs hospital. In this regard, we have relied on the citations produced by the complainant. One the Hon’ble Supreme Court of India – Shivakanth Jha V/s Union of India reported in CPJ II (2018) CPJ 19 (SC) wherein the Hon’ble Apex Court has observed as follows;
“13. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Specialty Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in specialty hospital by itself would deprive a person to claim reimbursement solely on the ground that the said hospital is not included in the government order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the government order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by doctors/hospitals concerned. Once, it is established the claim cannot be denied on technical grounds. Clearly in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this court”.
And in the second case of Hardev Singh v/s BSES Rajadhani Power Ltd. and another decided on 1st August, 2019 by the National Commission held as hereunder:
“The law does not require that prior permission has to be taken in such a situation where the survival of the person in the prime consideration. The doctor did the operation and had implanted CRT-D and has done so as one essential and timely”.
13. The facts of the above cases are similar to the facts of present case. In the present case, the complainants intention is to save the life of his wife and hence on the advice of authority of Bapuji hospital, he took his wife to HCG hospital, Bengaluru where the experts to whom the patient should be treated. The cancer is one of the leading causes of death in the world; some cancers may be harder to detect at earlier stage and may not shows symptoms until last stage. It can be hard for family members to adjust the changes. The early detection of cancer is found in its early stages, this can increase the effectiveness of the treatment and lower the morality rate, however if it was detected on later stage, it can be stressed both the patient and family members also. Hence, the legitimate right of the complainant to claim medical bills cannot be denied by the OPs, merely because the complainant has taken treatment for his wife in a private hospital and not in recognized hospital of the OPs and not informed the authority of the OPs prior to the treatment.
14. Moreover perused the order sheet, we noticed that the OPs have appeared through their advocate and filed version with some documents but not filed evidence affidavit to prove their contention, in spite of sufficient opportunity has been provided. Merely filing of the objections without evidence affidavit does not hold water. The OPs have also not argued the matter and convinced the commission, how they are right to repudiate the claim of the complainant. Hence considering the facts discussion made here, we are of the opinion that, the complainant has proved the deficiency of service on the part of the OPs. The complainant has produced the medical bills of Rs.49,34,462/- which he has spent for treatment. However, he is entitled for eligible medical bills only as per the terms and conditions of the OP’s policy. Accordingly, the complaint is allowed in part.
15. Point No.3: In view of above discussion, we proceed to pass the following:-
O R D E R
The complaint is allowed in part with litigation cost of Rs.25,000/- to the complainant.
The Opposite Party is directed to pay eligible claim medical bills to the complainant as per terms and conditions of the OP’s policy.
Further Opposite Party is directed to pay compensation Rs.2,00,000-00 to the complainant for deficiency in service and mental agony.
Further the Opposite Party is directed to comply the above order within 60 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @6% p.a. from the date of default till realization.
Send a copy of this order to both parties.
MEMBER JUDICIAL MEMBER
Jrk/
