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Judgment
Per: Hon’ble Shri Umesh Gajankush, Member (J)
In the present Original Application, applicant is challenging the impugned communication dated 21.09.2021 issued by the respondent no.3 by which the claim of the applicant for reimbursement of medical expenses incurred by him has been rejected as it is not admissible as per Rules (Annexure A/1).
Brief facts of the case are as under:-
Applicant is working in the Postal Department as LSG at Surat. On 21.02.2019, applicant developed severe chest pain and his family members brought him to nearest Hospital, Pramukh Swami Hospital at Adajan Char Rasta, Adajan, Surat. Dr. Ashish K. Singwala checked the applicant and after taking ECG, he was advised to get admitted at Sunshine Global Hospital, Surat for advance treatment. Accordingly, applicant was taken to the said hospital and Dr. Parekh treated the applicant for Acute Coronary Syndrome (inf. Wall MI – Heart Attack primary/urgen). Applicant was discharged from the hospital on 25.02.2019 (Annexure A/2).
Thereafter, on 13.05.2019, applicant submitted an application for claiming refund of medical expenses incurred by him to the tune of Rs.2,86,928/-. By letter dated23.05.2019, the respondent no.3 directed the applicant to furnish certain details like the distance between where the patient (i.e., applicant) fell ill and to the nearest Government Hospital, distance where the patient fell ill and hospital where treatment was taken etc. In response to aforesaid letter dated 28.05.2019, the applicant supplied the required information to the respondent no.3. Again on 03.07.2019, the respondent no.3 directed the applicant to submit some more details, which was supplied on 08.08.2019. 2.3 By an order dated 03.04.2020, the respondent no. 4 was informed that the competent authority has rejected the medical reimbursement claim of the applicant. Alongwith this letter, a copy of the order dated 30.03.2020 issued by the respondent no. 2 was also annexed. Being aggrieved the order dated 30.03.2020, applicant submitted a representation dated 01.06.2020 through proper channel to the respondent no.2 i.e., Postmaster General, Vadodara Region, Vadodara and alongwith this representation, applicant had also produced the letter issued by the Shri Pramukh Hospital dated 18.03.2020 stating that the patient was transferred to cardiac unit as the said hospital did not have cardiac control facilities. By letter dated 23.06.2020, respondent no.3 forwarded a copy of the letter dated 16.06.2020 issued by the respondent no. 2, respondent no. 3 was asked to resubmit the claim made by the applicant in case any new points for consideration on which basis the said office had recommended the case vide letter dated 03.06.2020.
Thereafter, another representation dated 07.11.2020 was made by the applicant to the respondent no.2. However, the claim was denied vide impugned communication dated 21.09.2021.
It is stated that the rejection by the respondents is arbitrary and illegal. It is submitted that when the first hospital referred the case to the second hospital, applicant did not have any other choice but to accept the said opinion. Applicant further submitted that as per various judgments of Hon’ble Supreme Court and Hon’ble High Courts, claims are settled subject to the rate prescribed by CGHS. By clearing the reimbursement claim as per the rate fixed by CGHS, no loss is caused to the department. It is also stated that by getting the treatment in a private hospital with all facilities, an employee is not getting any extra benefit. These private hospitals may be charging exorbitant money towards such treatments. However, department is not bound to make the said payment. Finally department will have to pay as per the rates fixed by CGHS.
It was further stated that the only objection of the respondents is for getting the treatment done in private hospital. This situation could not have been avoided by the applicant as he was not in a position to take a decision at the relevant point of time. Therefore, applicant has prayed for quashing of impugned communication dated 21.09.2021 with direction to respondents to pay medical expenses incurred by him for the treatment he had undergone from 21.02.2019 to 25.02.2019.
After notice, official respondents have filed their reply justifying their action. It was submitted that as per applicant’s application it was not mentioned that doctor has orally stated that treatment was available in Government Hospital was not enough (unavailability of advance equipment) for better and fast treatment doctor advised to choose Sunshine Global Hospital for better and fast treatment in case of any emergency circumstances.
In reply it was mentioned that as per CS (MA) Rules, Appendix-XI a patient should not be referred to a private specialist, except where specifically provided for in Government orders and under no circumstances to a Specialist or Medical Office, Government or private, outside the state Annexure R/1). It was further stated that a patient should not be admitted to a hospital or nursing home which does not come with the scope of the rules or which has not been recognized for the purpose of the rules. As per rule, the Government employee can take treatment in private recognized hospital on the advice of AMA or Government Doctor. But in this case, the treatment had neither taken in Government Hospital nor in private recognized hospital under CS (MA) rules. Applicant had taken deliberate decision to obtain treatment in private hospital. Since the distance from the place of ill to Government Hospital is 5 kms and the distance from place of ill to treating hospital (Sunshine Global Hospital) is 5 Kms. Since the distance is same, applicant would have taken treatment in Government Hospital rather than Private unrecognized hospital. Advice of private doctor cannot be considered for settlement of case as per CS (MA) Rules, 1944.
In reply, the respondents contested the claim on the ground that as per OM dated 16.11.2020 issued by Government of India, Ministry of Health & Family Welfare (Annexure R/2), the total medical cost must be lesser than 2, 86,928/-. It is advisable to count admissible amount of the claim as per package rate. It was submitted that the question whether it was a case of real emergency necessitating admission in private hospital will be decided on merits by the competent authority and Postmaster has considered and rejected the medical reimbursement on merits of the case. On the basis of reply, respondents have prayed for dismissal of the Original Application.
Thereafter, rejoinder has been filed explaining and elaborating the facts stated in the OA. It was stated that Surat is second largest city of Gujarat but CGHS facility is not made available. Smaller cities like Gandhinagar, Rajkot etc. having less population have been extended with the CGHS facilities. Therefore, the government employees residing at places not covered under CGHS are not eligible to approach a Government Hospital or an authorized private hospital having the adequate medical facilities for the said treatment. It was stated that applicant received a cardiac arrest due to 100% blockage and therefore there was an emergency situation.
Heard learned counsel for the parties and perused the material on record.
Learned counsel for the applicant vehemently contended that there was an emergent situation under which applicant was referred to Sunshine Global Hospital where he was treated from 21.02.2019 to 25.02.2019. Documents to that effect have already been submitted before the competent authority. However, in arbitrary manner, without considering the rule in proper prospective and proposition of law laid down by Hon’ble Supreme Court and Hon’ble High Courts, the claim of the applicant was rejected in mechanical manner.
On the other hand, learned counsel for the respondents supported the impugned orders and contended that in view of Appendix – XI to CS (MA) Rules and OM dated 16.11.2010, the case of the applicant was rightly rejected.
After hearing learned counsel for the parties and perusal of the record, it is apparent that on 21.02.2019 applicant developed severe chest pain and his family member brought him to nearest hospital from where he was advised to shift and get admitted to Sunshine Global Hospital for advance treatment. The factum of medical treatment appears to be not seriously disputed by the official respondents. But only objection appears to be that instead of going to the Government Hospital or procedure prescribed in the rules since the applicant has undergone treatment in a private hospital and therefore is not entitled for medical reimbursement. Given facts and circumstances of the case what will be the emergent situation, said aspect has been considered by the Hon’ble Supreme Court in case of Shiv Kant Jha Vs Union of India reported as 2018 (3) SLR 328 (SC), according to which, once the medical treatment having been taken is established, it cannot be rejected on technical grounds. We would like to quote the relevant portion of this judgment: -
“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. Speciality Hospital 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 Speciality 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/Hospital 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”.
Further, looking to the reply, the official respondents are disputing the quantum of reimbursement as per OM dated 16.11.2010.
In view of the aforesaid discussion, the impugned order dated 21.09.2021 is set aside with direction to the competent authority to reconsider the claim of the applicant for medical reimbursement as per the rates prescribed in OM dated 16.11.2010 (Annexure R/2) within a period of 60 days from the date of receipt of certified copy of this order. MA if any, pending also stands disposed of. No orders as to cost.