Punjab

Ludhiana

CC/15/251

Vinod Singh - Complainant(s)

Versus

ESIC Corpn. - Opp.Party(s)

R.K.Bhandari Adv.

27 Mar 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.251 of 16.04.2015

Date of Decision          :   27.03.2017

 

Vinod Singh aged 30 years s/o Sh.Bindeshwar Parshad, r/o Ram Nagar, Bhamian Road, Gali No.2, Roop Nagar, Ludhiana.

….. Complainant

Versus 

 

1.The Director General, E.S.I.C. Corporation, Kotla Road, New Delhi-110002.

2.The Regional Director, E.S.I.C. Corporation, Panchdeep Bhawan, Block 3, Sector 19-A, Madhya Marg, Chandigarh-160020.

3.The Senior State Medical Commissioner, E.S.I.C. Corporation, Panchdeep Bhawan, Block 3, Sector 19-A, Madhya Marg, Chandigarh-160020.

4.The Joint Director, E.S.I.C. Corporation, SCO:22-23, Phase II, Urban Estate, Focal Point, Ludhiana.

5.The Health Director, Directorate of Health & Family Welfare Punjab, Parivar Kalyan Bhawan, Sector 34-A, Chandigarh.

6.M/s.Knitwell Apparels(P) Limited, Plots No.302, 303-A, 303-B, Focal Point, Phase 8, Ludhiana through its Managing Director.

7.Gupta Hospital (formerly) Gupta Children Hospital, The Multi Specialty Centre, B-23-3844/1, near Punjab National Bank, Shingar Road, Ludhiana, with its clinic at Metro Road, Jamalpur, opposite Dushera Ground, Ludhiana, through Dr.Mahesh Gupta, M.D.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.R.K.Bhandari, Advocate      

For Op1 to OP4             :         Sh.Sudhir Gupta, Advocate

For OP5                         :         Complaint not pressed vide order dated 30.11.2015

For OP6                         :         Sh.Davinder Singh, Advocate

For OP7                         :         Ex-parte.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant joined the service of OP6 as a regular driver w.e.f.22.10.2011 and thereafter, he was allotted an insurance No.2612454379 by Employees State Insurance Corporation (hereinafter in short referred to as ‘ESIC’). A smart card carrying the family photograph of the complainant, his wife and minor son Jatinder Yadav was also issued by OP1. Family members are entitled to avail all type of sickness benefits as per ESIC scheme and ESIC health rules. OP6 had been deducting the employee contribution from the salary of the complainant each and every month @1.75%. OP6 had been depositing the share as employer @4.75% against the drawn salary in the account of ESIC at State Bank of India, Treasury Branch, Ludhiana. Jatinder Yadav suffered abdominal pain and was taken by his father (i.e. complainant) to ESIC Model Hospital, Bharat Nagar, Ludhiana on 6.2.2015 for medical treatment, where Dr.Kunal Dhall, General Surgeon, after checking him, refused to operate for RIH (Congenital problem). OPD Case Sheet Summary in that respect was issued. Date of birth of Jatinder Yadav mentioned as 7.5.2011 in the complaint itself. Dr.Kunal Dhall gave vague and unacceptable reason for refusal to provide medical treatment, due to which, Jatindre Yadav could not be operated. Despite numerous requests by the complainant to provide the medical treatment, the same was not provided and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to pay Rs.17,521/- to the complainant, the amount of expenses incurred for treatment of Jatinder Yadav in Gupta Children Hospital. Due to refusal by Ops to provide treatment, the same has to be obtained from Dr.Mahesh Kumar, MD of Gupta Children Hospital, The Multi Specialty Centre. Jatinder Yadav remained admitted in the said hospital as indoor patient w.e.f.13.3.2015 at 12:10 PM to 16.3.2015. Jatinder Yadav was operated for RIH(Congenital problem) in the said hospital. Incurred expenses of Rs.17,521/- includes the admission and hospitalization charges, anesthesia, operation charges, bed charges, doctor’s visit, blood tests, U/S scan and medicines. Compensation for mental harassment and humiliation of Rs.50,000/- more claimed along with litigation expenses.

2.                Op1, OP2 and OP4 in their joint written statement admitted that complainant was allotted insurance No.2612454379 by ESIC for availing all type of sickness benefits in respect of his family, but subject to fulfillment of contributory conditions. It is not disputed that the complainant was regularly working as driver with OP6 and deductions of contribution of employees and of employer used to be deposited in ESIC account with State Bank of India, Treasury Branch, Ludhiana. The answering Ops only to cover the establishment and the workers employed by the establishment. The medical facilities are to be provided by ESI Model Hospital, which are separate identity and is run by Central Government. Other allegations relates to ESI Model  Hospital, Ludhiana and not by these answering Ops. As liability    for all the treatment taken by ESI Model Hospital for treatment of patients/persons covered under the ESIC Act and as such reimbursement, if any,                                 to be provided by the ESI dispensary to eligible subscribers. These Ops claims that it is not in their knowledge that complainant or his son suffered from any injury or they got treatment from any hospital. Rather, it is claimed that these answering Ops have not committed any deficiency. Allegations of negligence or of dereliction of service denied.

3.                In separate written reply filed by OP3, it is claimed that medical facilities are to be provided by the ESI Model Hospital, which has separate identity, being run by Central Government. As per ESIC decision executed on 31.7.2014, the child of an insured person having congenital disease, is eligible only if he is born after the insured person had become eligible for Super Specialty Treatment. ESIC alone to cover the establishment and its employees, but the medical facilities are to be provided to the ESI Cardholders by the ESI Hospital. As responsibility of reimbursement, if any, is of the ESI dispensary and as such, it is claimed that no negligence or deficiency in service is there on the part of OP3.

4.                In separate written statement filed by OP6, it is admitted that the complainant had been regularly working with him as a driver and contribution under ESIC scheme deducted from his salary and even paid by the employer by crediting the same in the account of ESIC at State Bank of India, Treasury Branch, Ludhiana. Admittedly, Jatinder Yadav, son of complainant suffered from abdominal pain, due to which, he was taken to ESIC Model Hospital, Bharat Nagar, Ludhiana on 6.2.2015 for medical treatment, but Dr.Kunal Dhall after checking refused to operate him for RIH, but issued OPD case sheet summary only. Said doctor gave vague reply regarding refusal to provide the medical treatment to minor Jatinder Yadav. Admittedly, the complainant pleaded with concerned doctors and medical superintendent of ESIC Model Hospital, Ludhiana for providing medical treatment to his ailing son, but they refused. Admittedly, the minor son of the complainant suffered from congenital problem, but OP1 to OP5 refused to provide medical treatment despite the fact that they were bound to provide the same and that is why, complainant had to get treatment for his son from another hospital as an indoor patient. Admittedly, the complainant and his family suffered unbearable mental agony, hardship and trauma. It is also claimed in this written statement that ESI is bound to provide best cashless medical treatment to the insured person and dependent family members up to the limit of Rs.10 lac per annum. There was no reason on the part of Op1 to OP5 to deny this treatment. Admittedly, complainant is a consumer and he is entitled to the claimed relief and to the compensation amount of Rs.50,000/-.

5.                In separate written statement filed by OP7, it is claimed that complaint in the present form is not maintainable because the same has been filed for abusing the process of law. Besides, it is claimed that complaint is bad for non joinder of necessary parties because OP7 has been wrongly impleaded as a party in the complaint, despite the fact that relief from him is not claimed. It is also claimed that complaint does not disclose any cause of action against OP7. However, it is admitted that Jatinder Yadav was admitted in the hospital of OP7 as indoor patient on 13.3.2015 at 12:10 PM and there he was operated for RIH Congenital problem and thereafter, discharged on 16.3.2015. It is also admitted in this written statement as if complainant paid Rs.17,521/- to OP7 for this treatment. Other averments of complaint denied by praying for dismissal of complaint.

6.                Counsel for complainant suffered statement on 30.11.2015 for not pressing the complaint against OP5 and that is why, complaint against OP5 was dismissed as not pressed vide order of 30.11.2015 itself.

7.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C16 and thereafter, his counsel closed the evidence.

8.                On the other hand, counsel for OP1 to OP4 tendered in evidence affidavit Ex.RA of Sh.Vikrant Gosain, Social Security Officer(Legal) of ESIC along with document Ex.R1 and then closed the evidence.

9.                Counsel for OP6 tendered in evidence affidavit Ex.RA/6 of Sh.Sanjeev Talwar, Authorized Signatory of OP6 and thereafter, closed the evidence.

10.              Though, earlier, OP7 continued to appear through counsel, but later on non appeared for OP7 and as such, OP7 was proceeded against ex-parte vide order dated 8.8.2016.

11.              Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

12.              After going through the complaint and affidavit of complainant, it is made out that claim for reimbursement of the incurred medical expenses of Rs.17,521/- stacked against OP1 to OP5 along with compensation for mental harassment and agony. OP7 just treated the son of the complainant and charged the amount of Rs.17,521/-. In view of non stacking of any claim against OP7, certainly complaint against OP7 merits dismissal for want of any cause of action against him. Likewise, complaint against OP6 also merits dismissal because deficiency in service on his part not pleaded and nor proved. Rather, it is borne from affidavit of representative of OP6 and also from the temporary identity certificate Ex.C2 as well as record of entitlement of benefits of Ex.C3 and the records of ESIC deduction contribution Ex.C11 to Ex.C16 that complainant had been regularly contributing to ESIC Insurance Plan since from March 2013 onwards till October 2015. Deductions from the salary of complainant were used to be made by OP6 and due contribution even used to be provided by the employer and that is why identity card Ex.C1 was issued along with temporary identity certificate Ex.C2. Perusal of Ex.C2 reveals that complainant along with his wife and minor son Jatinder Yadav was insured under the scheme. Date of appointment of complainant mentioned as 22.10.2011 in Ex.C2. List of entitlement of the benefits disclosed in Ex.C3, as per which, those benefits of Super Specialty Treatment for insured person and for his family members were to be granted and as such, it is vehemently contended that complainant along with his son were entitled for the due amount on account of Super Specialty Treatment got for son of the complainant from OP7 during period from 13.3.2015 to 16.3.2015. Even if due to registration of complainant, the above benefits of Super Specialty Treatment were available, but despite that those benefits to be provided as per terms and conditions of the insurance scheme in question.

13.              Admittedly, birth of minor child of complainant took place on 7.5.2011 as per para no.3 of the complaint. Claim is stacked for reimbursement of Rs.17,521/- incurred as expenses on medical treatment of the son of the complainant namely minor Jatinder Yadav during period from 13.3.2015 to 16.3.2015 for RIH Congenital problem At Gupta Children Hospital, The Multi Specialty Centre. Ex.C2 the temporary identity certificate of complainant Vinod Singh shows as if the date of appointment was 22.10.2011 with date of registration with ESI as 10.11.2011. Ex.C3 and Ex.C11 to Ex.C16 proves that deductions on account of ESI contribution from the salary of the complainant continued to be made from  October  2012 to 31.3.2015. Even if these contributions along with share of employer used to be deducted and deposited for contribution in ESI scheme, but despite that benefit      for medical treatment referred above can be provided as per the terms and conditions of provisions of Employee’s State Insurance Act, 1948.

14.              Section 56 of Employee’s State Insurance Act, 1948 provides that an insured person along with his family shall be entitled to receive the medical benefit during any period for which, contributions are payable in respect of him or in which, he is qualified to claim sickness benefit or maternity benefit etc. However, medical benefit available under Section 56 of Employee’s State Insurance Act, 1948 is subject to the provisions of Section 55A of the same. Section 55A of this Act provides that any decision awarding dependents benefit under this Act may be reviewed at any time by the Corporation, if it is satisfied by fresh evidence that the decision was given in consequence of non-disclosure or misrepresentation by the claimant or any other person of a material fact or that the decision is no longer in accordance with this Act due to any birth or death or due to the marriage, remarriage or cessation of infirmity or attainment of the age of eighteen years by a claimant. Section 55A(2) of Employee’s State Insurance Act, 1948 provides that the Corporation may on such review direct the dependents benefit be continued, increased, reduced or discontinued. So, the medical benefit available under Section 56 of the Employee’s State Insurance Act, 1948 is subject to restrictions that can be imposed by the ESI Corporation under Section 55A of Employee’s State Insurance Act, 1948. Being so, any decision taken by the ESI Corporation through circulars for increase or  reduction or continuation or discontinuation of benefit has to be given effect to. So, circulars issued by ESI Corporation after holding due deliberations has force of law in respect of grant of medical benefit to                     the dependents of insured persons.

15.              Section 57(2) of Employee’s State Insurance Act, 1948 further provides that scale of medical benefit referred in Section 57(1) of Act will be subject to provision made in the regulations. So, even if in the brochure or in the eligibility condition, it is mentioned that medical benefit available to the insured persons or dependents, despite that payment or curtailment thereof permissible by the circulars because  those circulars has force of rules and regulations.

16.              As per circular Ex.R1 issued by Employee’s State Insurance Corporation Headquarters Office, New Delhi, after decision taken in 162^nd meeting held on 31.7.2014, medical benefit for treatment in respect of children of insured person with respect to congenital diseases not available, if the children born after the insured person has become eligible for SST. Particular reference to clause 5.3 of this circular Ex.R1 can be made. That clause 5.3 of the Circular Ex.R1 reads as under:-

“In respect of children of IP, congenital diseases requiring referral to SST and genetic dis-orders would be eligible for coverage up to the ceiling mentioned earlier only in case the child is born after the IP had become eligible for SST.”

17.              So, from perusal of this clause 5.3 of Ex.R1, it is obvious that children of the insured person referred for Super Specialty Treatment for Congenital disease not entitled for the medical benefit, if the birth of child took place before the eligibility of the insured person for Super Specialty treatment. The treatment got from Gupta Hospital is for congenital disease and is super specialty treatment and as such, date of birth of dependent child Jatinder Yadav is relevant for finding as to whether the case covered by exclusionary clause 5.3 of Circular Ex.R1 or not? As birth of that child Jatinder Yadav took place on 7.5.2011, but complainant joined services of OP6 on 22.10.2011 as regular employee and it was only after doing such services that he was allotted insurance number 2612454379 by ESI Corporation along with smart card as per case of the complainant and as such, certainly case in hand regarding reimbursement covered by exclusionary clause 5.3 of Circular Ex.R1. As birth of minor child Jatinder Yadav took place five months and fourteen days prior to complainant becoming eligible as insured person for Super Specialty Treatment and as such, in view of exclusionary clause 5.3 of Ex.R1, denial for Super Specialty Treatment through OPD Case Sheet Summary Ex.C4 is quite appropriate. That denial is in accordance with clause 5.3 of Ex.R1 and as such, no deficiency in service on the part of OP1 to OP4 is inferable. Complaint against OP5 was not pressed by suffering statement by counsel for complainant on 30.11.2015 and as such, virtually complaint against OP5 has already been withdrawn. As deficiency in service on the part of OP1 to OP4 is not at all proved and nor they proved to have adopted any unfair trade practice and as such, complaint certainly is not maintainable, particularly when the reference for super specialty treatment duly denied as discussed above by keeping in view the contents of clause 5.3 of Ex.R1. As circular has force of regulations and as such, by keeping in view the contents of Ex.R1 and provisions of Section 57(2) of Employee’s State Insurance Act, 1948, there is no escape from the conclusion that denial for reference for super specialty treatment is done as per rules and regulations. Entitlement of the complainant for reimbursement in respect of the super specialty treatment of dependents became w.e.f.22.10.2011 i.e. date of his registration as an employee with ESI and not before that. Treatment was got in 2015, but circular Ex.R1 came in existence prior to such treatment of minor Jatinder Yadav and as such, regulations in force at the time of providing treatment debarred the complainant from claiming reimbursement of medical expenses on treatment of dependent child born prior to registration of the complainant as employee with ESI.

18.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.

19.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:27.03.2017

Gurpreet Sharma.