T.A. NO. 20/2008
Dated this the 21st day of July, 2010
C O R A M
HON'BLE MR.JUSTICE K. THANKAPPAN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER P.K.Kumaradas
Sub Division Engineer
Office of the Sub Division Engineer
Kanjiramkulam, Trivandrum-1 Applicant By Advocate Mr. S. Radhakrishnan
1 Union of India represented by the
Secretary Ministry of Health
and Family Welfare (Department of Health)
Government of India
Nirman Bhavan, New Delhi.
2 The Director of Health Services
Directorate of of Health Services
3 The General Manager
BSNL, Telecom District
4 The Accounts Officer (PC)
BSNL, O/o the GMTD
Trivandrum. Respondents. By Advocate Mr. Sunil Jacob Jose, SCGSC for 1 & 2 Advocate Mr. C.S. Ramanathan for R 3 & 4
The Application having been heard on 30.6.2010, the Tribunal delivered the following:
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER Writ Petition (c) NO. 14919/2004 filed before the High Court of Kerala was transferred to the Tribunal which is registered and renumbered as T.A. 20/2008.
2 The applicant an officiating Sub Divisional Engineer in the BSNL at Kanjiramkulam, Trivandrum, is aggrieved by the order at Ext. P-10 dated 19.10.2001 for recovery of excess payment of advance, while settling medical reimbursement claim drawn for the treatment of his wife. According to the applicant, in 1997 his wife developed serious heart disease and the Doctor treating her suggested immediate repair of mitral valve by an open heart surgery (Ext. P-1). The patient was taken to Shri Chitra Thirunal Institute of Medical Science and Technology, Thiruvananthapuram and the Doctor advised to undergo urgent open heart surgery (Ext. P-2). Since it was a major surgery, and the SCTIMS is booked for the next six months, he decided to get the surgery done at Madras Medical Mission. The estimated total expenditure was Rs. 1,55,000/- plus the cost of the valve which ranges from Rs. 30,000/- to 55,000/- He sought permission from the Director of Health Services, the General Manager, Telecom. He also drew Rs. 2,20,000/- advance on the estimated cost of Rs. 2,65,000/- According to him, the total cost was restricted to Rs. 1,94,000/- He remitted back the excess amount of advance to the Department. However, after two years the 4th respondent asked him to refund Rs. 1,04,119/- outstanding against the advance (Ext. P-7). According to him, the recovery was ordered on the wrong presumption that he is not entitled to full reimbursement. Hence, he filed this Application contending that he is not governed by the CGHS Scheme and the respondents clubbed his case with other CGHS cases, the Tribunal in O.A. 854/97 had the occasion to consider unreasonable fixation of rates by the respondents for medical reimbursement and declared that the applicant therein was entitled to get full reimbursement in the light of judgments of the Apex Court, he had sought prior permission of the Department for treatment at the Madras Medical Mission Hospital and the draft was directly issued to the Hospital, now the department is saying that he is eligible for around 40% of the total expense, the 4th respondent has no authority to settle the medical claim and order recovery and he relied on the judgments of the Apex Court in State of Punjab and Others V. Mohinder Singh Chawla Surjith Singh V. State of Punjab (AIR 1996 SC 1388)JT 1997 (1)SC 416 and Narendar Pal Singh V. Union of India and Others (1998 Lab I.C. 1861).
3 The respondents 3 & 4 filed reply statement to the effect that medical claims for specialised treatment for heart disease, kidney transplantation, etc may be settled as per schedule of rates approved by CGHS or the actual charge whichever is less and that the cases which do not come within the CGHS area will be settled as per the schedule where item-wise ceiling is prescribed. The rates fixed for mitral value replacement is Rs. 80,000/-. Therefore, the applicant was entitled to reimbursement of only Rs. 90,781/- They further submitted that the advance of Rs. 2,20,000/- was sanctioned in view of the emergency treatment as demanded by the applicant with reference to the estimated costs for surgery. They admitted that the applicant is not governed by CGHS, but medical claims for specialised treatment have to be settled as per schedule of rates approved for treatment of CGHS beneficiaries (Appendix VIII(2) of CS(MA) Rules, 1944. 4 We have heard learned counsel for the parties and gone through the pleadings.
5 The applicant's wife was advised to undergo open heart surgery, he decided to get treatment at Apollo Hospital, Chennai. He was granted permission and advance of Rs. 2,20,000/- was released as a special case.
6 The learned counsel for the applicant relied on the following decisions:
(i) In State of Punjab and Others V. Mohinder Singh Chawla (JT 1997 (1)SC 4160 the Apex Court observed:
"It is now settled law that right to health is integral to right to life. Government has constitutional obligation to provide the health facilities. If the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference where the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee."
(ii) In Surjith Singh Vs. State of Punjab (AIR 1006 SC 1388) it was held that the appellant therein had the right to take steps in self preservation and it is only fair and just that the respondents pay to the appellant the rate admissible as per the Hospital approved by the respondents.
(iii) Following these rulings, the Delhi High Court in Narendar Pal Singh V. Union of India and others (1998 Lab IC 1861) had allowed the full reimbursement of the claimant therein in spite of the fact that he had not taken the prior sanction of the Central Government as required under the Rules.
7 The respondents have relied on the judgment of the Apex Court in State of Punjab and Others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117) and argued that Right to health is the obligation of the State but Government is justified in limiting the facilities to the extent permitted by its financial resources. The Apex Court in the case held that :
Para 29: No State or country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. The principle of fixation of rate and scale under the new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India." We have gone through the judgments. In view of the law declared by the Apex Court in State of Punjab and Others Vs. Ram Lubhaya Bagga and others (1998) 4 SCC 117) as quoted above, we are of the view that the fixation of rate and scale is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
8 We find that there is no dispute that reimbursement of the medical claims of the beneficiaries covered under CGHS and CS(MA) is governed by the OM dated 10.6.1997. As per Annexure -I to OM dated 10.6.1997, the rates chargeable for Mitral valve replacement is Rs. 80,000/- in the case of package deal, the rates include admission charges, accommodation charges, ICU//ICCU charges, monitoring charges, operation charges, anaesthetic charges, operation theatre charges cost of drugs, used during the procedure and disposable surgical sundries and physiotherapy charges. For diseases and treatment procedure not covered in the list of the package deals, the reimbursement would be at the rates to the CGHS rates or expenses for the treatment and the procedure charges like the actual cost of drugs, room rent, etc. in accordance with the rules. The applicant has not produced the item-wise bills claimed by him to ascertain whether he has undergone a package deal nor the respondents produced the list of items which are disallowed. The absence of relevant information and documents is hampering the process of adjudication and compelling us to make assumptions and presumptions. In the first instance, how was the bill passed for Rs. 1,94,000/-? Was the bill given by Madras Medical Mission accepted as such and medical claim sanctioned without regulating it, as per CGHS approved rates for Chennai city or by rates admissible under CS(MA) rules? From Ext. P-15, it is seen the respondents did try to get clarification from the Joint Director CGHS, Trivandrum, whether the cost of Mitral valve was exclusive s of the package rate fixed by CGHS for the Mitral valve replacement. The CGHS Trivandrum confirmed the admissible rates as approved by CGHS Directorate without getting a clarification from the Ministry of Health and Family Welfare through the CGHS Directorate, according to the applicant. The applicant is governed by the CS(MA) Rules, therefore, according to him, as he has not opted to become a CGHS beneficiary. , it was open to the respondents to check up the charges levied by Sree Chitra Thirunal Institute for Medical Science and Technology recognised by CGHS for Mitral valve replacement or any private hospital in Kerala approved under CS(MA) rules. The 4th respondent may get the rules in force in 1997, now. The respondents might have restricted the medical claim as per CGHS Chennai rates as the surgery was done at Chennai. It is gathered that Mitral valve replacement involves open heart surgery where the heart is put on a heart lung machine and the duration of the surgery is for more than four hours and is undertaken by a medical team of 5 to 6 Doctors. The Madras Mission Hospital has given Rs. 1.55 lakhs as the approximate cost for surgery alone in general ward accommodation and the cost of one valve to be between Rs. 30,000/- to Rs. 60,000/- Therefore, Rs. 80,000/- shown under ICU/CCU charges for Mitral Valve replacement can be the package rate for surgery exclusive of the cost of the valve. It is for the Health Department to specifically state whether the cost is inclusive of the cost of the valve or not. 9 Therefore, we hold the view that the applicant entitled to Rs. 80,000/- as package deal along with the cost of the valves. It is again presumed that CGHS Directorate would have circulated revised rules for package deals, after the OM dated 1997 at Ext. P-11. There fore, this case need not be taken as a precedent.
10 In this view of the matter, the claim of the applicant is to be reconsidered by the third respondent in accordance with the rates prevalent at the relevant time in hospital approved under CS(MA) rules. The medical claim, however needs to be sanctioned for an amount not less than Rs. 80,000/- plus the actual amount paid for the valves and other charges approved by the CGHS authorities as seen at Ext. P(9), keeping in view our observation above. Accordingly, we dispose of the Application with the direction to the 3rd respondent to reconsider the matter and settle the medical bills as per CGHS/CS(MA) Rules, at the rates applicable at the relevant time, within three months from the date of receipt of this order. The T.A is disposed of as above. No costs.
Dated 21st July, 2010.
K. NOORJEHAN, JUSTICE K. THANKAPPAN, ADMINISTRATIVE MEMBER JUDICIAL MEMBER