BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/09/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI Writ Petition (MD)No.234 of 2010 and M.P.(MD)No.1 of 2010 Murugesan, S/o.T.Ammavasai ... Petitioner vs. The Deputy Works Manager, Government Branch Press, Madurai-7. ... Respondent Writ Petition under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus calling for the records relating to the impugned order Na.Ka.No.A2/3672/2009, dated 21.11.2009, quashing the same anc consequently directing the respondent to pay a sum of Rs.22,016/- (Twenty two thousand and sixteen only) as Medical Reimbursement incurred by the petitioner within a time frame as may be fixed by this Court. !For Petitioner ... Mr.D.Saravanan ^For Respondent ... Mr.V.Rajasekaran, Spl.Government Pleader. :ORDER
The writ petition is directed against the order of the respondent,
dated 21.11.2009, by which the respondent has rejected the claim of the
petitioner for reimbursement of the amount spent by him for medical treatment
‘coronary angiogram’ undergone by him on the ground that the treatment does not
find a place in the list of treatments enumerated by the Government under the
Scheme.
2.It is not in dispute that the petitioner, who is a member of the
Scheme, has undergone the said coronary angiogram in M/s.Vadamalaiyan Hospital
at Madurai. When once it is admitted that the petitioner is covered under the
Scheme, he is entitled for reimbursement. The said right cannot be denied on
the ground that the treatment has not been taken in the empanelled hospitals or
on the ground that the nature of treatment is not in the list of treatments
given by the Government. The nature of treatment to be obtained/given for a
patient is based on the consultation from the doctor, as an expert, and that
right, which form part of right to life guaranteed under Article 21 of the
Constitution of India, cannot be curtailed by stating that certain kind of
treatments alone are eligible for reimbursement.
3.This concept as to whether the Government can impose a condition
that for the purpose of obtaining medical reimbursement the treatment must have
been taken only in the empanelled hospitals or the treatment must be only for
such nature of diseases mentioned by the Government has been considered from
time immemorial by the Apex Court and in a series of judgments the Apex Court
has held that at the time of distress, a patient cannot be expected to instruct
his doctor to give a particular treatment and it is ultimately for the doctor to
give treatment and not for the patient to suggest. That was the view expressed
by the Punjab and Haryana High Court in Sadhu r.Pall v. State of PUnjab – (1994)
1 SLR 283 (P&H). In that case, reimbursement was rejected on the ground that
treatment was not taken in any one of the empanelled hospitals. In those
circumstances, the Punjab and Haryana High Court has held that in urgency, one
cannot expected to sit at home in cool and calm atmosphere for getting medical
treatment in a particular hospital mentioned in the Government Order. The
Division Bench has observed as follows:
“The respondents appear to have patently used excusals in refusing full
reimbursement when the factum of treatment and the urgency for the same has been
accepted by the respondents by reimbursing the petitioner the expenses incurred
by him, which he would have incurred in the AIIMS, New Delhi. We cannot lose
sight of factual situation in the AIIMS, New Delhi, i.e. with respect to the
number of patients received there for heart problems. In such an urgency, one
cannot sit at home and think in a cool and calm atmosphere for getting medical
treatment at a particular hospital or wait for admission in some government
medical institute. In such a situation, decision has to be taken forthwith by
the person or his attendants if precious life has to be saved.”
4.The said reasoning of the Punjab and Haryana High Court has been
confirmed with approval by the Hon’ble Apex Court in Surjit Singh v. State of
Punjab – (1996) 2 SCC 336. It was a case where a person who was eligible for
reimbursement under the Scheme has taken treatment in Escorts Hospitals. The
authorities, while dealing with the reimbursement application for treatment,
have contended that if the treatment was taken in AIIMS the cost would have been
lesser. In those circumstances, by approving the above referred to judgment of
the Punjab and Haryana High Court, the Supreme Court has held as follows:
“12.The appellant therefore had the right to take steps in self-
preservation. He did not have to stand in queue before the Medical Board, the
manning and assembling of which, barefacedly, makes its meetings difficult to
happen. The appellant also did not have to stand in queue in the government
hospital of AIIMS and could go elsewhere to an alternative hospital as per
policy. When the State itself has brought Escorts on the recognised list, it is
futile for it to contend that the appellant could in no event have gone to
Escorts and his claim cannot on the that basis be allowed, on suppositions. We
think to the contrary. In the facts and circumstances, had the appellant
remained in India, he could have gone to Escorts like many others did, to save
his life. But instead he has done that in London incurring considerable
expense. The doctors causing his operation there are presumed to have done so
as one essential and timely. On that hypothesis, it is fair and just that the
respondents pay to the appellant, the rates admissible as per Escorts. The
claim of the appellant having been found valid, the question posed at the outset
is answered in the affirmative. Of course the sum of Rs.40,000/- already paid
to the appellant would have to be adjusted in computation. Since the appellant
did not have his claim dealt with in the High Court in the manner it has been
projected now in this Court, we do not grant him any interest for the
intervening period, even though prayed for. Let the difference be paid to the
appellant within two months positively. The appeal is accordingly allowed.”
5.The next point raised by the learned Special Government Pleader
that coronary angiogram cannot be considered as a treatment also is not tenable.
In fact, in E.Ramalingam vs. The Director of Collegiate Education and another
– 2007-1 L.W. 10, this Court, while dealing with the treatment of
Angioplasty/PTCA Stent, which is also similar in nature as that of coronary
angiogram, held that such treatment would also to be covered under the scheme
for reimbursement. In fact, in these cases which are of the beneficial
legislation, one cannot look into technicalities and the real idea of the Scheme
has to be implemented. Once it is established that a person, who is eligible
for reimbursement under the Scheme, has undergone treatment, of course subject
to the maximum limit for which he is entitled as per the Scheme, it is not
certainly open to the authorities to deny his legitimate right, since
consistently it has been the view of judicial fora that taking treatment is a
right to life flowing from Article 21 of the Constitution of India, which is the
basic fundamental right of a citizen.
6.In such view of the matter, the impugned order of the respondent
is set aside and the writ petition stands allowed with a direction to the
respondent to reimburse a sum of Rs.22,016/- (Rupees twenty two thousand and
sixteen only) claimed by the petitioner, however, subject to the limitation
prescribed under the Scheme and such payment shall be effected within four weeks
from the date of receipt of a copy of this order. No order as to costs.
Connected M.P.(MD)No.1 of 2010 is closed.
gb
To:
The Deputy Works Manager,
Government Branch Press,
Madurai-7.