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Judgment
-THIS appeal has been filed by the appellants under Section 15 of the Consumer Protection Act, 1986 against the order in Complaint No. 110/05 dated 24. 8. 2005 passed by the learned District Forum, Sri Ganganagar whereby the complaint of the complainant was partly allowed and the appellants were directed to pay the amount spent by the complainant on his treatment in Dr. Balabhai Nanavati Hospital at Bombay.
THE brief facts giving rise to this appeal are that the complainant-respondent, a retired Senior Lecturer in College Education Department of the Government of Rajasthan, had gone to meet his son who was serving as Civil Engineer with a private firm at Bombay. There, on 2. 7. 2004, all of a sudden the complainant fell ill and had consulted the doctors at Bombay Hospital where he was admitted and angiography was conducted. As blockade of main arteries was found, he was advised to go for bypass surgery. The complainant got himself discharged from that Hospital on 6. 7. 2004 and was admitted again on 15. 7. 2004 in Dr. Balabhai Nanavati Hospital at Bombay where a bypass surgery was conducted. The complainant submitted that he had, thus spent Rs. 23,890 for angiography at Bombay Hospital and Rs. 1,84,583 at Nanavati Hospital at Bombay. Thereafter, he submitted his claim to the Treasury Officer-O. P. 2 under the Rajasthan Pensioners Medical Concession Scheme, 1981 but the O. P. repudiated the claim of the complainant on 11. 3. 2005 on the ground that the complainant had not taken treament at Bombay in any one of the hospitals recognized in that Scheme and as such his claim cannot be accepted. The complainant then filed a complaint in the Forum below claiming reimbursement of medical expenses amounting to Rs. 2,08,473 and other damages amounting to Rs. 7,100. The O. P.-appellants filed a reply to the above complaint and submitted that the complainant had not paid any consideration under the Rajasthan State Pensioners Medical Concession Scheme and as such he is not a consumer. It was also alleged by them that as the complainant has not taken treatment at any one of the hospitals recognized under the Scheme and had not obtained recommendations of the Medical Board for taking treatment outside the State, he is not entitled to any reimbursement under the rules.
After hearing both the parties, the learned District Forum made the impugned order directing the appellants to pay, within two months, to the complainant 80% of Rs. 1,58,473 spent by the complainant or Rs. 1,20,000, whichever is less, as also an amount of Rs. 5,000 as consolidated damages.
AGGRIEVED from this order, the appellants have filed this appeal. We have heard the arguments and submissions made by the learned Counsel of both the parties, perused the impugned order and considered the materials placed on record. We are in general agreement with the findings of the Forum below. The learned Counsel for the appellants has contended that the learned District Forum has not considered the fact that the complainant is not a consumer within the meaning of the Consumer Protection Act, 1986. Moreover, the complainant has taken treatment in a private hospital and a treatment taken in such a hospital under the Scheme is not permissible.
ON the other hand, the learned Counsel for the respondent has sought to justify the impugned order. On the question of the complainant being a consumer, it is pertinent to point out that the Government of Rajasthan had formulated a Scheme for medical assistance for its pensioners. With this in view, a fund, namely, "rajasthan Pensioners Medical Fund" was constituted under Rule 5 of the Medical Attendance Rules and subscription to this Fund is deducted on the prescribed scale from the monthly salary of all the Government servants. This fund is administered by a Trust constituted under the Medical Attendance Rules. The benefits of the Scheme are available to those pensioners who hold a Medical Diary on payment of certain renewal charges every year or those who make one-time payment in lump sum as per the amount fixed. It is clear from the above undisputed facts that this Scheme is contributory in nature. It is also clear that employees have subscribed to the RMPF fund during their service period and on that consideration the medical facility had been extended to the pensioners. Therefore, the service rendered by the Trustees of the Fund cannot be termed as ''free service''. In this view of the matter, in our considered opinion, a pensioner is very much a "consumer" within the meaning of Section 2 (d) of the Consumer Protection Act and is entitled to seek relief under the Consumer Protection Act, 1986. Therefore, the plea of the learned Counsel for the appellants that the complainant is not ''consumer'' deserves to be rejected. The view which we have taken also finds support from the observations made by the Hon''ble National Commission in R. P. No. 540/95, State of Rajasthan and Ors. v. G. K. Joshi, (decided on 23. 2. 1996 ). It was held in this case that the pensioner availing of the benefit of the Pensioners Medical Benefit Scheme promulgated by the Government of Rajasthan is a consumer entitled to seek relief under the Consumer Protection Act. This view was upheld by the Hon''ble Supreme Court in the Special Leave Petition [slp (Civil) 3627/96 S, decided on 10. 9. 1996] filed against the above judgment and order of the National Commission.
AGAIN, in Jagdish Kumar Bajpai v. Union of India, IV (2005) CPJ 197 (NC), the dispute was whether or not the employees of the Central Government who had subscribed to the CGHS Scheme during their service period, and had retired thereafter from service, are ''consumers''. It was held in this case by the Hon''ble National Commission that benefits including medical treatment prescribed by various rules or schemes framed by Government are not free service and an employee would be a consumer within the meaning of Consumer Protection Act, 1986. It was further held that past service rendered by Government employees before retirement would be consideration for providing medical facility and other facilities.
VIEWED in the light of the above well settled legal position, in the present case, it is not in dispute that during his service period, the monthly subscription to the RMPF was recovered from the pay bills of the complainant in terms of Rule 6 of the Medical Attendance Rules. On his retirement from service, the appellants on 29. 10. 1996 which was renewed for the years 2002-2005 issued a Medical Diary to the complainant. Therefore, the complainant was a consumer within the meaning of Consumer Protection Act, 1986 and was entitled to take medical benefits of the Scheme. As regards medical treatment taken by the complainant in a hospital outside the State of Rajasthan, it is not the case of the complainant that he had taken treatment at Bombay because that treatment was not available in any Government Hospital in the State. The simple case of the complainant is that he went to Bombay to meet his son and there all of a sudden he fell sick and was advised to go for a bypass surgery. Therefore, his case is Government by Rule 4e of the Medical Rules which, insofar as are applicable to the present case, reads as follows: "4e. Treatment of heart ailment in recognized hospital outside the State (with or without the recommendation of the Medical Board ). (b) In case a pensioner undergoes bypass surgery of heart (Cardio thoracic surgery) in any recognized hospital outside the State in emergent circumstances without any recommendation of the Medical Board, he may be allowed 80% of hospital expenses limited to Rs. 56,000 i. e. , 80% of General Ward charges of AIIMS, New Delhi provided that he submits a Certificate from a Cardiologist who holds a degree of D. M. in Cardiology or MCH in Cardio Thoracic Surgery stating that pensioner''s condition was such that immediate treatment was essential.
(c) In case a pensioner takes treatment of Angiography/balloonplasty in recognized hospitals outside the State, he/she may be allowed 80% of the expenditure incurred or Rs. 40,000 whichever is less. "
In this case, the complainant has claimed an amount of Rs. 23,890 spent by him for Angiography at Bombay Hospital. This Hospital was recognized under the Medical Attendance Rules for taking treatment outside the State. Therefore, his case is covered under Rule 4e (c) ibid and under this provision, he is entitled to 80% of Rs. 23,890, i. e. , Rs. 19,112 for the amount paid by him for Angioplasty at Bombay Hospital, Bombay.
APART from this, the complainant has claimed an amount of Rs. 1,84,583 paid by him to Dr. Balabhai Nanavati Hospital at Bombay for bypass surgery. It is not in dispute that an amount of Rs. 50,000 has been received towards this treatment by the complainant from the Mediclaim policy that was taken by him. Therefore, according to the complainant, the amount of Rs. 1,34,583 remains in dispute. In this connection, it would be pertinent to point out that Dr. Balabhai Nanavati Hospital is not included in the list of hospitals recognized under the Rajasthan Medical Rules for treatment outside the State.
IN the present case, the complainant has placed evidence on record that when he went to Bombay to meet his son, he fell ill all of a sudden and in the emergent circumstances alone, he had perforce to take treatment at Bombay. There is no evidence on record that the complainant was ever suffering from any cardiac problem during his service or during the retirement period. The doctors at Bombay had conducted radiological tests which suggested Cardiac Triple Vessel Disease. The Coronary Arteriograms suggested lesion in RCA/lca/lad ranging from 50% to 90% at seven places. Admittedly, therefore, there was emergency and the paramount consideration before the complainant or his attendant was to save the precious life. In such cases, the act of the complainant cannot be weighed in terms of money and even the ultimate responsibility of the State cannot be washed out. In these circumstances, in our considered opinion, the reimbursement of the medical expenses to the complainant cannot be denied on some hyper-technical ground. This issue was also raised before the Hon''ble Rajasthan High Court in Himmat Singh v. State of Rajasthan, 2005 (2) WLC (Raj.) 268. In that case also, in emergent situation, the wife of the petitioner was taken for treatment to a private hospital outside the State of Rajasthan. It was observed by the Hon''ble Rajasthan High Court in this case that in the case of saving a human life at a given point of time it is not expected of an attendant to look into the list and then hunt for the recognized hospital. In case of grave emergency whichever hospital comes to the mind of the attendant and which hospital is considered just for saving the life of the patient is the prime consideration. The Hon''ble Court had further observed that in a welfare State, the welfare of the people is frustrated just because of bureaucratic approach of the concerned authorities. A person having put in whole life in the services of the State till he attains the age of superannuation always requires human consideration. Technicalities of the rules and regulations are not required to be followed just in mechanical manner so as to frustrate the very purpose of the Scheme. Accordingly, the State Government was directed to reimburse the bills to the petitioner. In the light of the above discussion, in our considered opinion, the complainant is also entitled to reimbursement of medical expenses incurred by him for taking treatment for heart ailment outside the State at Bombay. On the question of quantum :
AS stated above, the complainant has claimed an amount of Rs. 1,84,583 stated to be spent by him for the treatment taken at Dr. Balabhai Nanavati Hospital. As against this, he has placed copies of six bills issued by the above hospital for his treatment which comes to Rs. 1,34,583 only. Admittedly, the complainant has recovered an amount of Rs. 50,000 from the Mediclaim policy against the above expenditure leaving a balance of Rs. 84,583.
IN this connection, the learned Counsel for the appellants states that in any case the complainant is not entitled to receive more than Rs. 56,000 which is maximum limit which could be paid to any pensioner for treatment of heart ailment outside the State. We agree with the contention of the learned Counsel for the appellants. The complainant has not challenged the fixation of rate and scale of expenses payable to pensioners for taking treatment outside the State. In our view, the State Government is well within its powers to fix the rates and scale of reimbursement to the Government servants, including the pensioners. The Government has laid down in Rule 4e (b) of the Rajasthan Medical Rules, the complainant is entitled to 80% of hospital expenses limited to Rs. 56,000 in cases of bypass surgery treatment outside the State of Rajasthan. Therefore, in pursuance to this rule, the complainant is entitled to 80% of Rs. 84,583 spent by him on bypass surgery at Dr. Balabhai Nanavati Hospital. As this amount comes to Rs. 6,7,666 and exceeds the permissible limit, the reimbursement of expenses is to be limited to Rs. 56,000.
The question of limiting the expenses in such cases was considered by the Hon''ble Supreme Court in Special Leave to Appeal (Civil) No. 23517/2002, Board of Trustees, R. S. P. M. C. Scheme and Anr. v. Amar Singh (decided on 7. 7. 2003 ). In that case the Hon''ble Supreme Court had modified the judgment of the Hon''ble Rajasthan High Court in S. B. Civil Writ Petition No. 902/1998, Amar Singh v. The Board of Trustee, Rajasthan State Pensioners Medical Concession Scheme, and had restricted the claim of the petitioner to Rs. 56,000 only in terms of the Scheme.
IN the above circumstances, in our considered opinion, in the present case also the complainant is entitled to only Rs. 56,000 for his bypass surgery treatment taken at Dr. Balabhai Nanavati Hospital at Bombay and Rs. 19,112 for expenses incurred by him for Angiography at Bombay Hospital, Bombay, totalling to Rs. 75,112. In view of the above, the appeal of the appellants deserves to be partly allowed.
ACCORDINGLY, the appeal is partly allowed and the impugned order is modified to the extent that the appellants shall pay an amount of Rs. 75,112 to the complainant-respondent within four weeks from today. The rest of the order is upheld. No costs. Appeal partly allowed.