ORDER
Meera Chhibber, Member (J)
1. By this O.A. applicant, who is widow of the employee late Shri Amar Nath Bhatia, has challenged order dated 21.12.2005 with a further direction to the respondents to accept the medical claim of the employee and to reimburse the full amount along with interest to her.
2. It is stated by applicant that her husband retired from the ESIC Directorate (Medical) as Head Clerk. The ESIC Directorate (Medical) issued an identity card P-267 on 22.6.1993 valid for whole life. The applicant’s husband was a heart patient and was receiving treatment from the ESIC dispensary at Okhla, New Delhi regularly. He was erlier referred to Jaipur Golden Hospital, Rohini, Sector-3, New Delhi for his Echo to be conducted as the same facility was not available with the ESI Hospital, Badsaidapur. He was again referred for Echo, which was conducted on 23.1.2003 at ESI Hospital, Basai Darapur, New Delhi as the facilities were then available there.
3. On 15.4.2005 the applicant’s husband got severe chest pain, including cold sweating/vomiting and breathing problems. He became unconscious and his face also turned pale yellow. As his condition was worsening, his wife (applicant) rushed him to the Metro Heart Institute Sector-16A, Faridabad so that his life could be saved. At the Metro Heard Institute ECG was conducted immediately which revealed acute inferior all MI. While conducting angiography, the doctors treating him found that there was significant triple vessel disease for which he underwent an operation of primary PTCA with stenting to LAD on the same day, i.e., 15.4.2005. It was found that his two arteries were 100% blocked and one was 95% blocked. He remained in the hospital from 15.4.2005 to 21.4.2005. That the applicant’s husband incurred an amount of Rs. 2,43,050/- (Rupees Two lakh forty three thousand and fifty only) towards expenditure in the hospital for surgery, Tests and CT Scans etc. Accordingly, her husband preferred a claim for Rs. 2,43,050/- on 13.6.2005 along with essential certificate. His claim was placed before the committee by the Director, who in turn recommended reimbursement as per AIIMS rates. However, the claim has been rejected on 9/12.12.2005 on the ground that treatment was not taken in ESI hospital. Being aggrieved, her husband filed appeal but the same was not decided. In the meantime, her husband died on 10.07.2006.
4. It is in these circumstances applicant has filed the present O.A. on the ground that as per Section 17 (2) of ESI Act, her husband was entitled for medical benefits and in emergency, he could go to any hospital. It is submitted by applicant that her husband had to be rushed in emergency to the nearest hospital within 2 km. from their residence as he had suffered severe heart attack otherwise he would have died, therefore, OA may be allowed.
5. Respondents on the other hand have opposed this O.A. on the ground that there is no rule under which a pensioner could claim reimbursement for taking treatment in other than ESI hospital. They have also stated, it is not known whether he has gone for any treatment at all. If the plea of the applicant for reimbursement for obtaining treatment in private hospital is allowed then everybody would be making a false claim to extract several lakhs of rupees as though they have gone to Apollo or Brooklyn Hospital in USA. They have further stated that medical benefit is extended to retired employees as a welfare measure only, though, it is not in any way obligatory on the part of ESI Corporation to provide medical facilities. As such, his claim was rightly rejected for reimbursement as per rules. As far as Section 17 (2) of ESI Act is concerned, it speaks about the conditions of service of ESIC employees at par with the Central Government employees in respect of recruitment, pay and allowances, conduct rules etc. The medical facility provided to ESI employees does not form a part of condition of services. The ESIC is providing medical facility to its pensioners through ESI institutions where an agreement has been entered into with some of the State Government. They have thus prayed that OA may be dismissed.
6. Counsel for applicant in rejoinder has reiterated the stand already taken and relied on the judgment of Promlesh Bhatnagar v. Employees State Insurance Corporation and Anr. 2006 VI AD (DELHI) 103 , Suman Rakheja v. State of Haryana and Anr. decided by Hon’ble Supreme Court, Milap Singh v. U.O.I. and Anr. and Narendra Pal Singh v. U.O.I. and Ors. .
7. I had heard both the counsel on 31.1.2008. Since committee in this case had specifically recommended that amount should be reimbursed as per AIIMS rates, yet the request was rejected on 21.12.2005 by merely stating that pensioner had not taken treatment in ESI hospital. Counsel for respondents was asked to explain how committee’s recommendations were dealt with and on what basis the said recommendations were made. Counsel for the respondents had sought adjournment for taking instructions in the matter. Accordingly, matter was adjourned to 15.2.2008. In the meantime counsel was replaced as earlier counsel had been appointed as Additional Advocate General of State of Tamil Nadu. Original record has now been produced. Perusal of same shows matter was reconsidered and it was noted case should be defended but in case court directs, to pay at AIIMS rates, they shall abide by it.
8. Having noted that, let us advert to the facts of the case. Applicant’s husband was employee of ESIC. It cannot be disputed that applicant was taking treatment for cardiac problem from ESIC even after retirement which is evident from page 14 as prescription is dated 6.1.2003 whereas he had already retired in 1993 which is evident from the card issued to him for life (page 9).
9. It is stated by applicant that her husband had severe chest pain on 15.4.2005 including cold sweating/vomiting and breathing problem and he even became unconscious, therefore, he was rushed Metro Heart Institute in Faridabad itself because they were living in Faridabad. Perusal of certificate dated 22.12.2005 (page 22) read with page 47 issued by Metro Heart Institute shows that the same day, i.e., on 15.4.2005 angiography was done as he was admitted in emergency and since it revealed significant Tripple Vessel Disease, stent was put on 15.4.2005 itself. This is sufficient to show that applicant was admitted in Metro Heart Institute in emergency. He was discharged on 21.4.2005 but unfortunately he died on 10.7.2006.
10. The only ground why his claim has been rejected by the respondents is, that he did not take treatment in ESIC Hospital (page 8). It goes without saying that in case of emergency, if a person is admitted in an approved hospital, he is entitled to get the claim as per AIIMS rates. It is relevant to note that committee had also recommended for reimbursement as per AIIMS rates, therefore, the contention of counsel for respondents that claim was untenable because he had taken treatment in hospital other than ESIC is rejected.
11. I am rather surprised at the stand taken by respondents in counter. They have stated it is not known whether applicant’s husband took treatment at Metro or not. This stand to say the least shows insensitivity on the part of respondents. If they had any doubt regarding the correctness of treatment or the bill, they could always have verified the facts from Metro Heart Institute. Without verifying the facts defence of respondents cannot be sustained. Respondents can always reject fake claims but simply on the apprehension that others would make false claims by taking treatment in Apollo or Brooklyn Hospital in USA applicant’s case could not have been rejected. Respondents must understand that each case has to be decided in given claim and it is always open to the respondents to verify the facts.
12. At this juncture it would be relevant to refer to the judgment of Hon’ble High Court of Delhi in Promlesh Bhatnagar v. Employees State Insurance Corporation and Anr. 2006 VI AD (DELHI) 103.
13. In this case also petitioner’s husband was initially admitted in AIIMS but was subsequently shifted to Ganga Ram Hospital. Claim was rejected on the ground that he was not card holder of the applicable scheme. After considering contentions of both the sides, it was held as under:
15. In the instant case, the husband of the petitioner was allotted the medical card, albeit a day before he expired. However, admittedly, the medical card was valid from 1st October, 2002. The petitioner was constrained to seek voluntary retirement on health grounds on 17th September, 2002 and remained admitted in hospital from 12th September, 2002. He has been treated even in the ESIC hospital. Right to health is a constitutional right of a citizen of India and the retired beneficiary cannot be denied reimbursement of medical expenses only on the ground that he is not a card holder of the applicable scheme or has not made payment of some nominal amount. The respondents are possessed of the retrial benefits of the petitioner. Any amount which was due and payable to the petitioner’s husband could have been notified to her. The quantification of the amount payable has not been placed even before the court. However, in view of the facts noticed in the judgments placed beforeThis Court , undoubtedly, the amount is a notional amount. The petitioner, therefore, cannot be denied reimbursement for the hospital bills paid by the petitioner on account of treatment given to her deceased husband who was an employee of the respondent Corporation.
16. For all these reasons, the writ petition has to be allowed.
17. The order dated 17th September, 2003 is hereby quashed. The respondents are directed to examine the case of the petitioner for reimbursement of the medical expenses incurred by her in respect of the treatment given to her husband and to reimburse the same to the petitioner on the basis that the petitioner’s husband was entitled to reimbursement of medical expenses as a retired employee of the corporation. The needful shall be done within a period of two months from today. The respondents shall also communicate the computation of payment effected by them to the petitioner.
The petitioner shall be entitled to costs of the present proceedings which are quantified at Rs. 7,500/-
14. It was also observed as under in Narendra Pal Singh’s case by Hon’ble High Court :
The petitioner has admittedly suffered the ailment and required urgent and immediate treatment in an emergency. The plea of the Government that he has not taken prior sanction for taking treatment in non-C.G.H.S Hospital is clearly erroneous and cannot be entertained. 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. It is always open for the Government to grant ex-post facto sanction subject to verification of the claim which has not been denied in the present case.
15. Copies of above judgments were supplied to the counsel for respondents. Counsel for the respondents did not say above said judgments have been quashed or reversed by Hon’ble Supreme Court. On the contrary even Hon’ble Supreme Court in a recent case in 2006 SCC (L&S) 890 in the case of Suman Rakheja v. State of Haryana and Anr has held as under:
The discharge certificate shows that the case was an emergency one. In Sant Prakash case the Division Bench held that the petitioner therein would be entitled to 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto.
In the result, in this appeal also, the appellant herein would be entitled to get the refund of the amount of 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto.
16. In view of above settled position coupled with the fact that applicant’s husband was also admitted in Metro Heart Institute in emergency and the committee had itself recommended to grant reimbursement on AIIMS rates, impugned order dated 21.12.2005 is quashed and set aside. Respondents are directed to pass fresh orders keeping in view the recommendations of their own committee and above said judgments after verifying the facts with Metro Heart Institute and after verifying the rates from AIIMS. While reimbursing the amount, details shall be given by giving the break up as to which amounts have been admitted or rejected and duly indicating the reasons with reference to the bill submitted by applicant’s husband. This shall be done within a period of 3 months from the date of receipt of a copy of this order. It is made clear applicant shall not be entitled to any interest in view of Om Prakash Gargi v. State of Punjab reported in 1997 (1) ATJ (SC) 372 wherein it was held as under:
The question is: Whether on account of delay in reimbursing the amount incurred towards medical expenses, the State should be liable to pay also interest on the delayed payment? We are of the view that it is inexpedient and not proper to direct the State to pay interest for delay in payment of the reimbursement amount. It requires verification of the amounts spent by the petitioner and similar person. His right only is to get reimbursement and it does not follow that for the delay in the payment of medical reimbursement, he should also be entitled to interest thereon….We do not think that it would be proper to direct payment of interest on the delayed reimbursement of the medical expenses incurred by a Government servant.
17. With above directions, O.A. is partly allowed. No costs.