BOMBAY HOSPITAL And RESEARCH MEDICAL CENTRE vs VISHWANATH SHUKLA

THIS appeal has arisen from order dated 18.1.1995 passed by District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), Jabalpur, in Complaint Case No. 102/93. District Forum ordered the appellant to pay Rs. 40,939/- and interest at the rate of 12% from date of discharge 2.7.1990 till the date of payment and in addition Rs. 500/- as proceeding costs.

APPELLANT filed the appeal in M.P. State Consumer Disputes Redressal Commission (hereinafter for short State Commission) on 14.2.1995. On 14.9.1995 Counsel for respondent No. 1 filed preliminary objections on maintainability of appeal. Copy was given to appellant Counsel. APPELLANT''s Counsel requested that this point be decided during final hearing. This will be done in this order. The facts of the case briefly stated are that respondent No. 1 was a retired District and Sessions Judge and he was appointed as Presiding Officer, Central Government, Industrial Tribunal, Jabalpur after retirement from M.P. Government Services. He remained Presiding Officer of the Industrial Tribunal during the period 5.9.1990 to 4.9.1992. During this period, he had heart problem and hence he was required to undergo Angiography and Bye-pass Surgery at the Bombay Hospital and Research Centre, Bombay. Respondent No. 1 claimed that he remained admitted in Bombay Hospital between 9.6.1992 to 2.7.1992 and underwent Angiography and Bye-pass Surgery. His grievance was that Bombay Hospital, billed him for Rs. 1,15,439/- when they could not have charged more than Rs. 74,500/- under C.G.H.S. Scheme. Respondent in his complaint before District Forum, Jabalpur prayed for directions to Bombay Hospital to refund Rs. 40,939/- and also pay interest on this sum @ 18%. Respondent No. 1, also prayed for payment of Rs. 25,000/- for mental agony.

Appellant-Bombay Hospital, who was opposite party in District Forum, raised preliminary objections about the jurisdiction of Jabalpur Forum and also that case should not be heard in the Forum because it requires oral evidence and lengthy collection of evidence and hence be adjudicated in Civil Court. In addition to these objections present appellant, denied the allegation of respondent No. 1 complainant in a District Forum, that he was admitted in Bombay Hospital, as a patient referred from Jabalpur under C.G.H.S. Scheme. They averred that he was admitted under recommendation of Dr. Saxena, a Consultant of their Hospital. Appellant also denied that they cannot charge more than Rs. 74,500/- as per rates approved by C.G.H.S. Scheme which as per their version was not binding on them. They further averred that respondent No. 1 having enjoyed the facility that they offered has not right to ask for refund any payment of interest. They reiterated that Shri Vishwanath Shukia never informed them from the date of admission till discharge that he was entitled to some benefits under C.G.H.S. Scheme and, therefore, the complaint was an after- thought. District Forum after hearing both parties and going through record held that they had the jurisdiction to adjudicate. They also held that appellant was guilty of malpractice in charging more than the approved rate and hence, passed the order referred to in para 1 above.

IN the appeal memo, the appellant has challenged the order of District Forum on following main grounds amongst several others cited in paras 7 to 16 of their appeal. (a) Respondent No. I was not a consumer and liability for payment of certain dues under the C.G.H.S. Scheme cannot be said to be service within the meaning of the Act. (b) Findings of the District Forum are not based on any evidence. Whether case of respondent No. 1 was referred to by C.G.H.S. Authorities or Dr. Saxena has not been established. They argued that matter should have been left to be decided in Civil Court. IN the end they prayed for setting aside the order of District Forum or alternately to direct respondent No. 1 to lay the claim before Civil Court. Before discussing the merits of the case, we would like to dispose of the preliminary objections of respondent No. 1 by pointing out that respondent No. 1 who was original complainant has himself not filed documents which would provide clinching evidence in support of his claim. This objection on technical grounds does not have any effect on the disposal of the case and hence his objections are ruled out.

WE have heard both the parties and we have also perused the record of the case and the written argument produced by parties. Perusal of documents submitted by appellant and respondent No. 1 in District Forum reveals that respondent No. 1 has not filed the document of his becoming a member of C.G.H.S. Scheme. This membership is not automatic for all Central Government employees. It is also to be recorded that respondent No. 1 became a Central Government employee by virtue of his appointment as Presiding Officer of Central Industrial Tribunal. However, respondent No. 1 has also not filed his appointment order either. Above facts are being surmised on the basis of the letters addressed to Bombay Hospital by Director, C.G.H.S., Jabalpur dated 3rd June, 1992 (Annexure 2). WE have also searched amongst the documents filed for the agreement supposed to have been entered into between Government of India and various Hospitals. No one in authority has filed any affidavit about having knowledge of such an agreement. It is therefore quite clear that District Forum while passing the order was guided by various circulars issued by the Government of India, in the Ministry of Health and Family WElfare. Apart from these circulars, there is no document filed by respondent No. 1 to show that such orders of Government of India were binding on hospitals. In the absence of such a document, we are of the opinion that it is not possible to reach a finding that respondent No 1 was entitled to get refund of Rs. 40,939/- with interest. WE, therefore, do not agree with the view taken by District Forum. It is important to record here that respondents No. 2 to 4 have not supported the stand taken and claim put forward by respondent No. 1 as is clear from their reply filed. In fact Dr. Nema who appeared before us stated that respondent No. 1 has been paid all his claims admissible under C.G.H.S. and therefore they have nothing to do with either appellant or respondent. It has also been contended on behalf of respondent No. 1 that in a separate case of Shri C.S. Sangameswaran concerning Ruby Hall Clinic, Pune, the Hospital Authorities were directed to refund the extra amount. In our opinion this case does not help respondent No. 1, because firstly, it is concerning beneficiaries prior to 1.1.1992 (Annexure 5A) and secondly when a reference was made to Government of India vide letter dated 24.11,1992 (Annexure 4), Government of India vide their letter dated 3.2.1993 (Annexure 5) have advised respondent No. 1 to take up the matter of refund with Bombay Hospital Authorities. This means, by implication, that Government of India does not hold the scales of payment fixed by them binding on Hospital Authorities. Our perusal of the circulars of the Government of India in the Ministry of Health and Family Welfare has revealed an office memorandum No.S-11012/1/93-C.G.H.S. dated 11.3.1993 which is extremely revealing and hence deserves to be quoted in full: "The undersigned is directed to say that this Ministry has been receiving a number of requests from C.G.H.S. beneficiaries for reimbursement of full medical expenditure in such cases where this Ministry have fixed a ceiling for treatment taken in recognised hospitals. This often lands this Ministry into a very embarrassing situation because even to very senior officers it has been pointed out time and again that reimbursement has to be limited to the ceiling fixed by the this Ministry and there is no question of reimbursement of full expenditure on the treatment taken. This has been happening very frequently particularly for such beneficiaries who go in for Bye-pass Surgery etc. at hospitals like Batra and Escorts etc. It has, therefore, been decided to reiterate the instructions in this regard which have already been issued in the past. All the Ministries/Departments, are, therefore, requested to give a very wide circulation to these instructions so that time is not lost in needlessly examining such cases. In this connection it is also pointed out that the Government of India has now made it possible to withdraw money from their GP funds for the purpose of medical treatment and, therefore, in all those cases where the expenditure on treatment exceeds the limit fixed by this Ministry, the contribution may be met by the beneficiary from his own resources. A copy of the instructions issued earlier in this regard are enclosed herewith. All the Ministries/Departments are, therefore, once again requested not to refer such cases to this Ministry in future".

This circular clearly shows that even senior officers embarrass the Government with requests for full reimbursement of bills. Government has also mentioned the name of Escorts and Batra Hospitals of Delhi, where in people are required to pay more. Bombay Hospital belongs to same category. Government of India has suggested to its employees to obtain funds from G.P.F. or their own resources to meet the excess expenses.

SINCE the entire case has been built on the basis of the circulars, therefore, order dated 11.3.1993 knocks the bottom out of the case. We, therefore, hold that order of District Forum is not based on proper foundation. It is also important to note that Shri Vishwanath Shukla-respondent No. 1 should have told the Authority of Bombay Hospital to sand the bill of his treatment direct to C.G.H.S. Authorities as written in letter dated 3.6.1992 (Annexure 2). It is not understood why respondent No. 1 made the payment himself. This shows that complaint was an after-thought. Respondent No. 1 has also failed to substantiate his allegation that initially Bombay Hospital agreed to treat him as patient referred under C.G.H.S. Scheme but later on changed their mind. We, therefore, feel that respondent No. 1 has failed to prove that he is entitled to refund of Rs. 40,939/-.

IN the context of discussion in preceding paragraphs the appeal succeeds and is allowed. Order dated 18.1.1995 of the District Forum, Jabalpur is hereby set aside. No order as to costs. Appeal allowed.