Rajesh Acharath vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member -

The applicant is engaged as a Machinist under the respondents. According to applicant, while he and his wife were in Chennai, the wife developed serious ailment and was admitted in emergency in Apollo Hospital, Chennai on 9.1.2016. She was advised emergency surgery for brain tumor and which was performed. The anticipated expenditure initially was Rs. 10,80,000/-. Accordingly, the applicant applied for medical advance of Rs. 5,00,000/- which was sanctioned, evidenced by Annexure A3 communication. She underwent consequential treatment in the same hospital and was discharged on 8.2.2016, after prolonged treatment. Annexure A2 emergency certificate was issued to evidence that she had undergone emergency admission and surgery. Annexure A4 is the discharge summary. Annexure A6 bills for Rs. 9,96,176/- was issued to the applicant. Based on the expenses so incurred he submitted Annexure A5 claim for refund of the balance amount of Rs. 4,96,176/-, after adjusting Rs. 5,00,000/- given as medical advance. By Annexure A1 communication he was informed that he was only entitled for medical refund of Rs. 2,83,547/-. After adjusting the said amount against the advance of Rs. 5,00,000/-, a sum of Rs. 2,16,453/- was ordered to be recovered from him in four monthly installments.

Aggrieved by Annexure A1, the applicant approached this Tribunal by filing OA No. 987 of 2016. By Annexure A8 order, the said OA was allowed holding that the applicant was entitled for reimbursement of full amount in terms of the medical bills given by the employee himself. It was held that in case any amount was not payable as per the Departmental Rules a speaking order shall be passed to that effect. It was further directed that till department passes an order in favour of the applicant, no recovery shall be effected. It was further directed that the amount payable to the applicant shall be paid within a period of six weeks from the date of receipt of a copy of that order.

Pursuant to Annexure A8 order, the competent authority passed Annexure A12 detailed order reiterating its earlier stand that the applicant was entitled for reimbursement of only Rs. 2,83,547/-. Aggrieved by the said order, the applicant has approached this Tribunal challenging Annexure A12 contending, inter alia, that it was issued in breach of the spirit of Annexure A8 order. The reliefs sought are to quash Annexure A12 to the extent it rejected the claim for full reimbursement of the expenses incurred for the medical treatment evidenced by Annexure A4 discharge certificate and to declare that the applicant was entitled for the refund of the entire expenses of Rs. 9,96,176/- and to direct the respondents to refund within a time to be stipulated by the Tribunal the entire amount less the amount of Rs. 5,00,000/- being the amount of advance sanctioned and paid.

Traversing the above claim a reply statement was filed by the respondents, inter alia, contending that applicant was entitled only for the amount covered by Annexures A1 and A12 orders. It was contended that the amount which the applicant was legally entitled has been ordered to be paid to him.

Heard both sides and examined the records.

There seems to be no serious dispute that the applicant’s wife was admitted in the Apollo Hospital, Chennai in emergency. Emergency admission is also evidenced by Annexure A2. Further, by Annexure A1, the claim of the applicant was partially allowed accepting the emergent admission. Hence, the respondents cannot now contend that there was no emergency admission.

The specific contention of the respondents is that the applicant is entitled only for the reimbursement of a sum of Rs. 2,83,547/-. The justification for the above is clear from paragraph 4 of Annexure A12 which reads as follows:

It is pertinent to note that by Annexure A8 order this Tribunal has specifically held that notwithstanding the various contentions taken up by the respondents, the applicant was entitled for the benefit of reimbursement of bills evidenced by Annexure A6. Annexure A6 specifically gives the details of the various procedures performed on the applicant’s wife and the expenses incurred. The total amount covered by Annexure A6 is Rs. 9,20,240/-. There is no dispute that the wife of the applicant had undergone the above surgery and had incurred the above expenses.

However, the stand taken by the respondents is that the applicant is entitled only for the CGHS, Chennai Super Specialty rates at package rates which have been taken into consideration. It is also pertinent to note that the respondents had confined the rates for the major treatment of surgery at 100% for major procedure of excision of tumors at serial No. 860 and for that, the highest package rate of 1,10,000/- has been admitted. According to the respondents, the second procedure performed on the applicant was Craniotomy which as per Serial No. 860 was Rs. 85,000/- being the super specialty highest rate. However, it being a second procedure, 50% of 85,000/- was admissible thereby granted a sum of Rs. 42,500/-. The reasoning was that if one or more procedure form part of the major treatment, then package rate charges should be admitted at 100% for the major procedure and only 50% of the charges for the second procedure as per the CGHS guidelines.

It seems that, regarding this, the respondents seems to have committed an error. According to the respondents apart from the major procedure of excision of tumour, a second procedure of Craniotomy was performed on the applicant. It is pertinent to note that Craniotomy is a surgical procedure in which a part of the scull is temporarily removed to expose the brain and to perform an intracranial procedure. The most common conditions that can be treated by such procedure include brain tumours, aneurysm, malformations etc., Evidently, in the case of excision of tumour of the applicant’s wife, it was preceded by a Craniotomy. In other words, for the purpose of excision of tumour essential part of the procedure is a Craniotomy which has to precede the excision of tumour. Definitely, from the very nature of Craniotomy performed on the applicant’s wife herein, it cannot be considered as a second procedure. In other words, without performing Craniotomy excision of tumour cannot be done. Definitely, both are independent procedures and for both, 100% reimbursement is liable to be granted. The authorities went wrong in calculating package rate for Craniotomy at 50% and confining it to Rs. 42,500/-. Essentially, the entire expenses for the both has to be paid at 100%.

It seems that the respondents have granted benefit adopting the methodology to grant package rate for the first 12 days and for the remaining days, from 13^th onwards to have conservative item wise amount calculated at Rs.1,31,047/-. The total admissible amount included 1,10,000/- for the main procedure, Rs. 42,500/- for the second procedure and Rs. 1,31,047/- being the admissible amount for the period covering from the 13^th day till date of discharge at the extant government rates.

It seems that under package rate, a consolidated amount has been sanctioned. Annexure R1(2) Office Memorandum relied on by respondents itself show that CGHS package rate shall mean and include lump sum cost of in-patient treatment/day-care/diagnostic procedure for which in the CGHS beneficiary has been permitted and shall include the various expenses incurred therein though not limited to that. It seems that the various other expenses incurred by the applicant and covered by Annexure A6 have not been granted, since package rate for 12 days has been sanctioned. For the remaining period, from 13^th day onwards, admissible amount has been calculated at the CGHS rate.

To contend that applicant is entitled for full reimbursement, he relied on the reasoning given by the Hon’ble Supreme Court in Shiva Kant Jha v. Union of India [(2018) 16 SCC 187]. In that case, the Hon’ble Supreme Court has held that it was a settled legal position that the government employee during his lifetime or after his retirement was entitled to get the benefit of medical facilities and no fetters can be placed on him. It was held that ultimate decision as to how a patient should be treated rests only with the doctor who was well versed and expert both on academic qualification and experience gained. Rejecting the contention of the respondents therein, that private hospitals charge huge amounts and hence granting of such benefits would impose higher burden on the CGHS, it was held by the Hon’ble Supreme Court that it cannot 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 was not included in the government order. The right to medical claim cannot be denied merely because the name of the hospital was not included in the government order. The real test was the fact of treatment. Once it was established, the claim cannot be denied on technical grounds.

Evidently, a pragmatic approach is liable to be adopted in the present case, having regard to the fact that applicant was admitted in emergency and that considerable expenses has been incurred. Even if the package rate at 100% is accepted still the difference with actuals will be considerable. The patient was admitted in emergency and needed super specialty treatment. This Tribunal earlier in Annexure A8 order had held that applicant was entitled for full reimbursement. OM No. Z.15025/38/2018/DIR/CGHS/EHS, dated 22^nd May, 2018 of Department of Health and Family Welfare, provides the procedure for granting reimbursement in cases of CGHS rates in exceptional circumstances, in relaxation of Rules. I feel that the case at hand falls within clauses (1) and (2) of paragraph (a). Hence, I feel that the question whether relaxation can be granted to the applicant needs to be considered in the light of OM.

Having considered the entire facts, I feel that Annexure A12 order needs reconsideration. The third respondent shall address the Director General, CGHS, to place the matter before the High Powered Committee to consider the question of relaxation and grant of benefit at actual rate as covered by Annexure A6 and to pass appropriate orders in terms of the above OM.

Accordingly, OA is allowed. Annexure A12 is set aside. The third respondent is directed to address the Director General, CGHS to place the matter before the High Powered Committee to consider the question of relaxation of Rules and granting of full reimbursement of Annexure A6 bills, in accordance with OM No. Z.15025/38/2018/DIR/CGHS/EHS, dated 22^nd May, 2018. Appropriate communication shall be issued by 3^rd respondent within a period of two months from the date of receipt of the copy of this order. Recovery proceedings pursuant to Annexure A1 shall be kept in abeyance till the order of High Powered Committee is received. O.A is allowed to the above extent.

Annexure A1 – True copy of the order bearing No. C/121/MED/INS Zamorin dated 4.7.2016, issued by the 5^th respondent.

Annexure A2 – True copy of the emergency certificate dated 22.1.2016 issued by the Apollo Hospital, Chennai.

Annexure A3 – True copy of the letter bearing No. C 121/MED/Zamorin dated 3.2.2016 issued by the 5^th respondent.

Annexure A4 – True copy of the discharge summary issued by the Apollo Hospital, Chennai indicating the treatment for the period from 9.1.2016 to 8.2.2016.

Annexure A5 – True copy of the claim made by the applicant dated nil.

Annexure A6 – True copy of the bills issued by the Apollo Hospital, Chennai and the receipts for purchase of medicines.

Annexure A7 – True copy of representation dated 18.11.2016, addressed to the Area Accounts Officer.

Annexure A8 – True copy of the order dated 28.1.2019 rendered by this Hon’ble Tribunal in OA No. 987/2016.

Annexure A9 – True copy of the letter No. CS 2695/43/1744, dated 11.11.2019 issued from the office of the 3^rd respondent addressed to the Commanding Officer, INS Zamorin, requested to send a draft speaking order for vetting.

Annexure A10 – True copy of the letter NO. CS 2695/43/1744, dated 22.11.2019 from the Flag Officer in Chief to the ACDA-in-Charge, Area Accounts Office (N), Cochin.

Annexure A11 – True copy of the letter NO. CS 2695/43/1744, dated 17.12.2019 along with its enclosures sent from the office of Flag Officer, Commanding-in-chief (3^rd respondent) to the 4^th respondent Commanding Officer.

Annexure A12 – True copy of the letter bearing file No. 275 dated 6^th March, 2020 issued on behalf of the 4^th respondent the order bearing No. C/121/MED/INS Zamorin dated 4.7.2016 issued by the 5^th respondent.

Annexure R-1– MoH&FW OM No. F. No. S14025/14/2012-MS dated 11.6.2013.

Annexure R-2– MHO File No. 2-1/2012/CGHS/VC/CGHS(P) dated 1.8.2013.