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Judgment
Prem Narain, Presiding Member
The present revision petition no.2518 of 2014 has been filed against the judgment dated 12.03.2014 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur ('the State Commission') in First Appeal no.1113 of 2010.
The brief facts of the case are that the respondent/ complainant a driver with Ajmer Depot was suffering from heart ailments and received medical consultation initially at Jawaharlal Nehru Hospital, Ajmer on 24.06.2006. Thereafter he was referred to Jaipur on account of blockage of arteries on 02.07.2006. At Sawai Mansingh Hospital, Jaipur, the respondent was asked to get his angiography done from a private hospital as the angiography machine was not functioning at that hospital at the relevant time. The respondent got the angiography done on 16.07.2006 at Soni Hospital, Jaipur for which the respondent spent an amount of Rs.10,000/-.
From 13.08.2006 to 24.08.2006 the respondent on his own without any application or sanction or referral got himself treated in the State of Gujarat. The respondent was admitted at Krishna Heart and Super Speciality Hospital, Ahmedabad, Gujarat and underwent bypass surgery. The respondent incurred an expenditure of Rs.1,09,532.08 for the said surgery. The said hospital does not fall within the list of notified/ authorised hospitals under the applicable rules. On 06.02.2008, the respondent sent an undated application seeking reimbursement of the amount spent by him for the bypass surgery which was rejected by the Rajasthan State Road Transport Corporation on the ground that such medical treatment from a private hospital was not allowed under the relevant rules and it was sought without permission/ approval/ referral from the competent authorities.
On 23.09.2008, the complaint was filed before the District Consumer Disputes Redressal Commission, Ajmer ('the District Forum'). On contest the petitioner has contended that the consumer forum does not have the jurisdiction to entertain this dispute as the complainant is not a consumer. Further, Krishna Heart and Super Speciality Hospital, Ahmedabad, Gujarat is not authorised under the applicable rules and no permission/ approval was obtained prior to undertaking the treatment.
On 22nd April 2010 the District Forum allowed the consumer complaint and passed an award in favour of the respondent/ complainant directing payment of Rs.1,19,532/- with interest @ 9% per annum from the date of filing of complaint and an amount of Rs.1500/- towards cost of litigation was also awarded.
The State Commission vide its order dated 12.03.2014, has dismissed the appeal filed by the petitioner herein.
Hence, the present revision petition.
Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner has stated that the respondent/ complainant was not a consumer of the petitioner/ opposite party. He was only an employee of the petitioner. The medical facilities are provided to the employees of the petitioner/ corporation as a welfare measure towards employees and no charges are collected for providing the medical facilities, thus, the complainant is not a consumer. Under the policy of the corporation, treatment in an out of state hospital is not allowed when all kinds of super speciality hospitals are available within the State of Rajasthan. The complainant got himself treated at Ahmedabad, Gujarat, therefore, his expenditure cannot be allowed as per the policy of the corporation.
In support of his arguments, the learned counsel has referred to the judgment of this Commission in the case of Chief Manager, Ajmer Depot, Rajasthan and Ors vs Champa Lal Sharma - in RP No 1879 of 2013 decided on 22.05.2014, wherein it has been held as under:
"8. Thus, in our opinion, OP denied the claim on absolute technical ground. The complainant has served the State Government for his whole life, therefore the RSRTC, the OP should not show such an apathetic approach towards human life. Similar view was taken by the Hon'ble Apex Court in the case of State of Punjab & Ors. Vs. Ram Lubhaya Bagga, (1998) 4 SCC 117, wherein the Hon'ble Apex Court has held that the State can neither urge nor say that it has no obligation to provide medical facility. If that were so, it would be ex-facie violating Article 21 of the Constitution. While adverting to fixing any rate vis-vis an ailment, the Hon'ble Supreme Court has observed as infra:- No State of any country can have unlimited resources to spend on any of its projects. That is why, it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
Therefore, we are of considered view that, there is no deficiency in service by the OP. The OP has acted in accordance to the Rajasthan Civil Services (Medical Attendance) Rules 1970, the complainant has not taken any administrative approval from the authority prior to taking the treatment at Bhagwan Mahavir Cancer Hospital. Even though, the Consumer Protection Act is a social and benevolent act, mainly for the benefit of helpless consumers and our sympathy is with the ailing complainant, who has served OP, throughout his life. But, legally, it is not tenable, therefore, on those grounds, we allow this revision petition, and dismiss the complaint. No order as to costs".
It was stated that the respondent/ complainant was ordered to file an affidavit stating as to what was the urgency for the complainant to get his operation done at Ahmedabad, Gujarat. Nothing has been filed by the complainant in this regard and this shows that there was no urgency in the matter. Thus, even from the emergency point of view the operation at Ahmedabad is not justified and clearly this is violation of rules, therefore, the claim filed for reimbursement is liable to be dismissed. Both the fora below have wrongly granted the claim and the orders of the fora below are required to be set aside.
Learned counsel for the petitioner has stated that the Government can always limit the medical expenditure on the employees. In support of his contention the learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan vs Mahesh Kumar Sharma - (2011) 4 Supreme Court Cases 257 decided on 02.03.2011 wherein it has been observed as under:
In this connection it will be profitable to refer to the judgment of a Bench of three Judges of this court in State of Punjab vs Ram Labhaya Bagga where the Bench has laid down that the Government would be justified in limiting the medical facilities to the extent it is permitted by its financial resources. In the instant case, the Government has formulated the necessary rules permitting the reimbursement of medical expenses in certain situations and upto a certain limit. The Government has been reimbursing the necessary expenditure as permitted by the rules uniformly. It will, therefore, not be proper for a 5Government employee or for his relatives to claim reimbursement of medical expenses otherwise than what was provided in the Rules.
Learned counsel for the petitioner has further argued that the government servant is not a consumer as per section 2 (1) (d) of the Consumer Protection Act, 1986. In support of his arguments, the learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme Court in the case of Jagmittar Sain Bhagat and Others vs Director, Health Services, Haryana and Ors - (2013) 10 Supreme Court Cases 136 decided on July 11, 2013, wherein it has been observed as under:
"In view of the above, it is evident that by no stretch of imagination a government servant can raise any dispute regarding his service conditions or for payment of gratuity or GPF or any of his retiral benefits before any of the Forum under the Act. The government servant does not fall under the definition of a "consumer" as defined under Section 2(1)(d)(ii) of the Act. Such government servant is entitled to claim his retiral benefits strictly in accordance with his service conditions and regulations or statutory rules framed for that purpose. The appropriate forum, for redressal of any his grievance, may be the State Administrative Tribunal, if any, or Civil Court but certainly not a Forum under the Act.
In view of the above, we hold that the government servant cannot approach any of the Forum under the Act for any of the retiral benefits.
Mr Hooda has made a statement that all the dues for which the appellant had been entitled to had already been paid and the penal rent has also been dispensed with and the State is not going to charge any penal rent. If the State has already charged the penal rent, it will be refunded to the appellant within a period of two months. In view thereof, we do not want to pass any further order.
In view of the above, the appeal stands disposed of. Before parting with the case, we record our appreciation for the assistance rendered by Shri Prateesh Kapur, learned Amicus Curiae. He is entitled for full fees as per the Rules.
Learned counsel for the petitioner also informed that in case of the applicant, office order no.142 dated 02.08.2006 of the Executive Director (Tech) HQ Jaipur was issued sanctioning Rs.37,500/- in the name of DD Rajasthan Medicare Relief Society Jaipur, but the applicant intentionally has not taken the benefit thereof.
On the other hand, the learned counsel for the respondent/ complainant stated that after the angiography at Jaipur, the complainant was advised to undergo bypass surgery as early as possible and therefore, he went to Ahmedabad, Gujarat for undergoing the bypass surgery.
Learned counsel for the complainant has stated that the provision of medical facility granted to the employees of the petitioner/ corporation is a part of service conditions and therefore, if there is any deficiency in service on the part of the employer, complaint can be filed by the employee and therefore, the employee is a consumer so far as medical facilities are concerned. It is wrong to say that no fee is being charged from the employees for this scheme. The fact is that the salaries of the employees of the corporation are fixed after considering all the facilities like medical facilities being provided to the employees, therefore, all the services are being provided by the petitioner/ corporation in lieu of the labour being provided by the employee of the corporation. Thus, clearly, the complainant is a consumer under section 2 (1) (d ) of the Consumer Protection Act, 1986.
Learned counsel has contended that the judgment of the Hon'ble Supreme Court in the case of Jagmittar Sain Bhagat and Others vs Director, Health Services, Haryana and Ors (Supra) relied upon by the learned counsel for the petitioner is only in respect of retiral benefits and benefit of medical facilities is not a retiral benefit, therefore, the said judgment is not applicable in the present case.
It was further argued that the claim of the complainant has been raised on the basis of actual expenditure incurred by the complainant in getting his bypass surgery done in a hospital where he was admitted under emergency as he could not have waited to get the permission of the department to undergo the bypass surgery in some other private hospital. It was further argued that both the fora below have given concurrent finding and therefore, the scope under the revision petition is quite limited as facts cannot be reassessed by this Commission against the concurrent finding. Learned counsel has requested for dismissal of the revision petition.
I have carefully considered the arguments advanced by both the parties and have examined the material on record.
I agree with the contention of the learned counsel for the respondent/ complainant that the judgment of the Hon'ble Supreme Court in the case of Jagmittar Sain Bhagat and Others vs Director, Health Services, Haryana and Ors (supra) in mainly in the context of retiral benefits to a government servant and therefore, the same may not be applicable in the present case as the present case is not related to any retiral benefit rather, it is in respect of a facility which has been promised by the employer to its employees. If an employee feels that the service has not been provided as promised under the conditions of the employment, he may file a complaint for deficiency in service on the part of the employer. Petitioner has stated that no fee is being charged for the medical facilities being provided to the employees of the corporation, hence, this service is not covered under the Consumer Protection Act, 1986. In this regard, I am inclined to agree with the contention of the learned counsel for the complainant that the corporation is providing services in lieu of labour put in by the employees of the corporation and accordingly, the salaries and other benefits of the employees are fixed. Recently, Hon'ble Supreme Court in the case of Taj Mahal Hotel vs United India Insurance Company Ltd., and Ors. - IV (2019) CPJ 44 (SC) has observed that even if no fees was charged by the hotel for valet parking, the person whose vehicle was stolen from the parking of the hotel, was entitled to get compensation. The relevant portion of the judgment reads as under:
"18.7 30In view of the foregoing discussion, we find that the decision in Bombay Brazzerie (supra) is wrong insofar as the National Commission observed that the laws of bailment would apply only when a customer makes a separate payment to park the car in a parking lot. It is not disputed that a contract of bailment under Section 148 may be gratuitous. In any case, it is common knowledge that 'complimentary' services provided by 5- star hotels are not actually free-of-cost. These services are covered by the exorbitant rates charged for renting of rooms, food, entry fee to lounges and clubs, and so on. It cannot be denied that valet parking service, even if offered gratuitously, benefits the hotel. A hotel holding itself out to the public as providing such a service seeks to pitch it as a value addition to the experience of a guest and incentives greater foot fall. In fact, many luxury hotels are located in central urban areas which are prone to congestion, thereby necessitating valet parking to protect guests from overcrowding and pollution caused by haphazard parking of vehicles. In such a setting, the provision of valet parking offers the hotel an edge over others, as visitors are generally inclined to accept the invitation of greater convenience furnished by the hotel, i.e. of having someone else park their vehicles in a secure place. Therefore, for such cases, there exists an implied consideration for the contract of bailment created by virtue of the valet parking service".
Thus the argument that no separate fee is being charged for the service of medical benefits by the corporation and hence, the complainant is not entitled to file a consumer complaint is not tenable in the light of the above observation of the Hon'ble Supreme Court particularly in the context of the Consumer Protection Act, 1986.
It is seen that both the fora below have given a concurrent findings in regard to the fact that there was an urgency of bypass surgery in order to save the life of the complainant. In fact, the State Commission has observed as follows:
"The District Forum on the basis of judgments of Hon'ble Rajasthan High Court in Surjit Singh vs State of Punjab (AIR 1996 SC 1388); Shanker Lal vs the State of Rajasthan and Ors [ 2000 (3) WLC 585]; Khuman Singh Mehta vs State of Rajasthan and Ors [1996 WLC (UC) 61 ] and Shyam Singh vs State of Rajasthan 7 Ors [1996 (2) WLC 441 ] held that on account of non-availability of bypass surgery at SMS Hospital, Jaipur and looking to the possible delay in getting sanction from the competent authority for surgery out of the State, the complainant in order to save his life, was compelled to undergo bypass surgery immediately at Krishna Hospital, Ahmedabad and therefore, his claim for reimbursement could not be reputed on the ground that the aforesaid hospital was not notified under the Rules. The findings given and the conclusions arrived by the learned District Forum appears to be quite reasonable and justified."
The above observation of the State Commission has given justification for getting the bypass surgery at Krishna Heart and Super Speciality Hospital, Ahmedabad, Gujarat to which I broadly agree.
Though, both the fora below have allowed the payment of the expenses incurred by the complainant on the ground of urgency in the matter, however, it has to be kept in mind that the Government servants or servants of State Enterprises are governed by the rules of the Government/ Corporation and if the rule-breakers are allowed to get the full benefits, no employee will respect the rules. On the other hand, it is also true that the complainant in the present case has undergone by-pass surgery and he could have been entitled to the expenses if the by-pass surgery was undertaken in a Government Hospital/ private hospital approved by the Corporation under the scheme. As no information has been submitted by either party about the expenses allowed in the Government Hospital or in a private hospital approved by the corporation under this scheme for by-pass surgery, it will be appropriate and reasonable to take these expenses as eligible for by-pass surgery in AIIMS. The information gathered from the internet suggests that the charges for by-pass surgery as applicable with effect from 01.02.2004 in AIIMS was Rs.60,000/-. Hence, the complainant will not be eligible to get more than this amount.
Based on the above discussion, the revision petition is partly allowed and the petitioner is directed to pay to the complainant Rs.70,000/- including Rs.10,000/- paid for angiography, along with interest @ 7% per annum from the date of filing of the complaint i.e., 23.09.2008 instead of Rs.1,19,532/- as ordered by the District Forum.
Accordingly, the order of the District Forum dated 22.04.2010 stands modified to the extent that the figure of Rs.70,000/- along with interest @ 7% per annum from the date of filing of the complaint i.e., 23.09.2008 shall be substituted in place of figure of Rs.1,19,532/- along with 9% per annum interest as ordered by the District Forum. Rest of the order of the District Forum shall remain the same. The order be complied within 45 days.