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Judgment
ORDER
Mohd. Jamshed, Member (A):
The applicant retired as Senior Carpenter on 30.03.2016. He is a pensioner and life member of CGHS for medical treatments. It is submitted that on 03.11.2017, he fell unconscious and was taken to a nearby private hospital i.e. Mata Chanan Devi Hospital, Janakpuri, Delhi. He was examined in the Neurology Department of Mata Chanan Devi Hospital and was advised that he should take his further treatment in Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi, which specialises in Neurosurgery matters. The applicant's wife took him to Rancan Gamma Knife Centre -VIMHANS Hospital, Nehru Nagar, Delhi in emergency on 03.11.2017, where various tests were conducted and the applicant subsequently underwent a surgery on 04.11.2017. On 05.11.2017, he was discharged from Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi.
On 14.11.2017, the applicant submitted all his medical bills of Rancan Gamma Knife Centre -VIMHANS Hospital, Nehru Nagar, Delhi amounting to Rs. 2,60,000/-. He submitted his bills along with emergency certificate to the CGHS Dispensary, Rajouri Garden for reimbursement of the medical expenditure incurred by him. He was advised that against the claim of Rs. 2,60,000/-, reimbursement of only Rs. 31556/- has been passed. He further met respondent No. 2 in this regard and subsequently made a representation on 30.05.2018 seeking reimbursement of the entire amount incurred by him towards the medical expenditure. He is aggrieved by the fact that the respondents have rejected his claim vide their letter dated 16.10.2018. The applicant contends that he had fallen unconscious on 03.11.2017 and was taken to Mata Chahan Devi Hospital, Janakpuri, Delhi by his wife and, thereafter, had to be taken to Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi for further treatment in emergency. He was operated upon in emergency at the Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi on 04.11.2017 and a certificate to that extent was also submitted by him. He has claimed the reimbursement of Rs. 2,60,000/- that he paid to Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi for his treatment. He has filed the present OA aggrieved by the impugned order dated 16.10.2018 whereby his claim for reimbursement has been rejected. He seeks directions to the respondents to reimburse the remaining due amount.
The applicant contends that he was suffering from Neurological problem and had fallen unconscious on 03.11.2017. He took emergency treatment in Rancan Gamma Knife Centre -VIMHANS Hospital, Nehru Nagar, Delhi as advised to him by doctor of Neurological Department of Mata Chanan Devi Hospital, Janakpuri, Delhi. He was operated upon in emergency at the Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi. He contends that he has also enclosed the emergency certificate and despite that, the rejection of his claim by the respondents is illegal and denial of his rightful claim for reimbursement. The applicant has placed reliance upon the judgment of this Tribunal in OA No. 2041/2017 decided on 23.08.2018, which has relied upon various judgments passed by the Hon'ble Apex Court and Hon'ble High Court. In addition, the following judgments in support of his claim have also been filed:-
judgment of Hon'ble Apex Court in Shiva Kant Jha Vs. Union of India, W.P. (C) No. 694/2015 dated 13.04.2018.
judgment of Hon'ble Delhi High Court in Basant Dabas Vs. Govt. Of India & Ors., W.P. (C) No. 9849/2015 dated 31.07.2019.
judgment of Principal Bench of this Tribunal in OA No. 1443/2014 dated 19.04.2018.
judgment of Mumbai Bench of this Tribunal in OA No. 645/2017 dated 31.08.2018.
judgment of Principal Bench of this Tribunal in OA No. 362/2017 dated 30.11.2018.
judgment of Ernakulam Bench of this Tribunal in OA No. 852/2018 dated 31.01.2019.
Respondents have filed the counter affidavit opposing the OA. It is submitted that there is no emergency certificate submitted by the applicant from Mata Chanan Devi Hospital, Janakpuri, Delhi where he took treatment on 03.11.2017 and that his case has been examined by Standing Technical Committee on 10.10.2018. The Committee did not find justification in view of the fact that this was not a medical emergency and this treatment is also widely available in many Government hospitals. The respondents have rejected the claim of the applicant primarily on two grounds. The first is that this is not a case of emergency and the second is that facility of such kind of treatment is widely available in many Government hospitals and those empanelled under CGHS at a lower price.
Heard Mr. Padma Kr. S., learned counsel for the applicant and Mr. Rajiv R. Raj, learned counsel for the respondents, through video conferencing.
The applicant is a beneficiary covered under CGHS. On 03.11.2017, he had fallen unconscious and was taken to Mata Chanan Devi Hospital, private hospital. He was treated in Neurological Department and was advised that for his treatment he should go to Rancan Gamma Knife Centre -VIMHANS Hospital, Nehru Nagar, Delhi which specialises in such treatments. He was treated in Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi. A certificate in this regard from the hospital has also been enclosed in the OA at Annexure A-3. He was subjected to various tests and was advised Gamma Knife Radio-surgery on emergency basis. Medical procedures were undertaken on 04.11.2017 and he was discharged from hospital on 05.11.2017. A detailed certificate in this regard has been enclosed at Page - 29 of the OA which shows that he took medical treatment in emergency issued by the Consulting Neuro Surgeon of Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi. The applicant paid Rs. 2,60,000/- to the hospital towards medical expenses. He submitted his reimbursement claim accordingly, however, only Rs. 31,556/- were paid to him towards reimbursement. He made various representations in this regard. However, vide letter dated 16.10.2018, it was advised that the Standing Technical Committee did not find justification for his reimbursement claim as this treatment as an emergency is not justified and that Gamma Knife Surgery is available at many Govt. Hospital at much lower price.
The applicant herein claims that he on 03.11.2017 fell unconscious and was taken to a private hospital in emergency. He was advised in that hospital that he should take further treatment at the Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi. He was taken to Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi wherein he underwent emergency medical treatment and after having been subjected to multiple tests, he underwent Gamma Knife Surgery on 04.11.2017 and was discharged from the hospital on 05.11.2017. In support of his claim that this was a emergency treatment necessary certificates by the concerned treating Neuro Surgeon have been annexed by the applicant which clearly indicate that treatment and surgery in Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi was taken in emergency. The applicant has also made a payment of Rs. 2,60,000/-towards medical expenses and the details were accordingly submitted for reimbursement. The respondents have taken the plea that this treatment cannot be considered as an emergency and that the Gamma Knife Surgery is available in many Government Hospital at a much lower price. It is not clear whether the part reimbursement sanctioned to him by the respondents was for certain items or the whole treatment. It is also not clear as to whether Rs. 31556/- reimbursed to him is in terms of CGHS prescribed rules for such treatment, cost of medicines and surgery for similar treatment in other hospitals. This reflects a rather casual handling of this case.
It is evident from the records and the contention of the applicant that he was admitted to Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi which is a super speciality hospital for Neurological medical treatments and was operated in emergency on 04.11.2017 itself. There is no reason to refute the "emergency" as indicated in the certificate issued by Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi. The very fact that he had to be operated on 04.11.2017 itself makes it clear that this was a medical emergency. On the other hand, the claim of the applicant has been rejected primarily on this ground and also that the similar treatment is available at many Government Hospitals at much lower price. In this regard a number of judgments have been passed by the Hon'ble Apex Court. However, the ratio of judgment in the case of Shiva Kant Jha Vs. Union of India, W.P. (C) No. 694/2015 decided on 13.04.2018 by the Hon'ble Apex Court makes it abundantly clear that a Government Employee during his lifetime or after his retirement will entirely get the benefit of CGHS facilities and no fetters can be placed on his rights. Their Lordships also observed that the petitioner was taken to hospital in emergency condition for survival of his life, which requirement was above sanctions and treatment in empanelled hospitals. Relevant paras of the judgment read as under:-
"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 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 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/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.
14)This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
15)In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only."
Recently, the Hon'ble Delhi High Court in Basant Dabas Vs. Govt. Of India & Ors., W.P. (C) No. 9849/2015 decided on 31.07.2019 dealt with the issue of CGHS empanelled hospitals and Non-CGHS empanelled hospitals. It is also observed that the petitioner was admitted in emergency and the impugned order rejecting his claim for reimbursement on the grounds that the petitioner was not admitted in emergency is unsustainable. The relevant paras of the judgment read as under:-
"12.The petitioner had submitted that he lost consciousness on 14.09.2014 and was resuscitated. He had thereafter, also undergone a procedure at Max Hospital. However, the pacemaker implantation was not a planned procedure. The petitioner had explained that he had fallen unconscious while he was at work at Gurgaon on 22.09.2014. He was carried by his two colleagues to the nearest hospital (Paras Hospital) which was two kilometers away from the place where the petitioner became unconscious. He was admitted in an emergency at the said Hospital on that date (that is, 22.09.2014).
13.The certificate issued by the Hospital indicates that the petitioner was "presented to emergency on 22.09.2014 with sudden unresponsiveness and loss of postures after rigorous activity on 14.09.2014". The said certificate is not happily worded, as it also refers to petitioner's episode on 14.09.2014. However, it has been clarified that the petitioner was admitted in an emergency on 22.09.2014 after he had lost consciousness. He was, thereafter, admitted in the CCU and his echo-screening indicated that the petitioner was suffering from "severe LV systolic dysfunction". This, clearly, indicated that there was an issue with the functioning of the Left Ventricle of the petitioner's heart and therefore, the petitioner had to undergo a pacemaker implantation. The aforesaid facts leave little room for doubt that the petitioner was, in fact, facing a life-threatening condition that had to be addressed on an emergency basis.
14.In view of the above, the impugned order rejecting the petitioner's claim for reimbursement on the ground that the petitioner was not admitted in an emergency, is unsustainable.
15.This Court is of the view that the petitioner would be entitled to complete reimbursement of the expenses incurred and the same cannot be limited to CGHS rates alone. The petitioner enjoyed complete cover and the fact that he had to rush in an emergency to the nearest hospital cannot curtail his right to reimbursement of medical expenses. This question had also fallen for the consideration of a Coordinate Bench of this Court in Gurcharan Singh v. Union of India and Ors.: 166 (2010) DLT 610, wherein this Court after considering the facts and circumstances of the case, directed the respondents to reimburse the balance payment towards the medical claim of the petitioner therein for the treatment of his wife. The Court rejected the respondents' contention that the reimbursement ha to be restricted to specified rates only. In Shiva Kant Jha v. Union of India: (2018) 16 SCC 187, the Supreme Court after expressing its dissatisfaction as to the state of affairs and had observed that the relevant authorities are required to be more responsive and cannot act in a mechanical manner to deprive the employees of their legitimate reimbursement. The Court had observed that the treatment of the petitioner therein in a non-empanelled hospital was genuine and there was no option left with him at the relevant time. In that case, the Court had directed the respondents to reimburse the medical expenses to the petitioner to the full extent.
16.This Court has no reason to doubt that the petitioner's treatment in this case was also genuine and he had little choice in the matter.
17.In view of the above, the petition is allowed and the respondents are directed to reimburse the petitioner's entire expenses, incurred by him on treatment at various hospitals, after due verification."
The ratio of above mentioned judgments squarely establish that the nature of medical emergencies can only be decided by the treating doctor and the treatment taken in such emergencies in private or non empanelled hospitals shall not be a reason for denial of reimbursement of medical expenses. The present OA is covered by these judgments. In the present case, the applicant attended the super specialty hospital wherein he was treated in emergency and underwent a surgery on 04.11.2017. The concerned Neuro Surgeon twice issued a certificate that this was an emergency treatment. Once the treatment has been taken from recognized super speciality hospital duly verified by the consulting surgeon that the treatment has been taken in emergency, the claim for reimbursement cannot be denied, only on the grounds that such medical treatment is not an emergency and that similar treatment is also available in many Government Hospitals at lower price. The respondents shall only consider whether the treatment has been taken and claims submitted are supported by bills and the amount has been paid to the concerned hospital. This verification can be done by the respondents and the amount as claimed has to be reimbursed in full. The ratio of the judgments of the Hon'ble Apex Court and the Hon'ble High Court quoted above cover the present case.
In view of the above mentioned, the OA is allowed and the impugned order dated 16.10.2018 is set aside. The respondents are directed to reimburse the applicant the balance amount against his reimbursement claim for the expenditure of Rs. 2,60,000/- incurred by him on medical treatment at Rancan Gamma Knife Centre - VIMHANS Hospital, Nehru Nagar, Delhi, after adjusting the reimbursement amount of Rs. 31556/- already paid to him within two months from the date of receipt of copy of this order. There shall be no order as to costs.