Final Order District Consumer Disputes Redressal Forum, Sonitpur Tezpur Complaint Case No. CC/2/2018 ( Date of Filing : 12 Jan 2018 ) 1. Mrs Pranpakshi Saikia W/o Binod Kumar Sharma Vill: Deka Baruah chuburi,P.O Ketekibari Sonitpur Sonitpur Assam ...........Complainant(s) Versus 1. Employees State Insurance Corporation Bishnu Rabha Path, Kamar Chuburki,Tezpur-784001 Sonitpur Assam ............Opp.Party(s) BEFORE: JUDGES Smit Aruna Devee PRESIDENT HON'BLE MRS. Smt Sangita Bora MEMBER HON'BLE MR. Sri Pramoth Das MEMBER For the Complainant: For the Opp. Party: Dated : 28 Aug 2018 Final Order / Judgement IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SONITPUR AT TEZPUR District: Sonitpur Present: Smti A. Devee President, District Consumer D.R Forum, Sonitpur, Tezpur Smti S.Bora Member District Consumer Disputes Redressal Forum,Sonitpur CONSUMER COMPLAINT NO.02/2018 1.Mrs Pranpakshi Saikia : Complainant W/o Sri Binod Kumar Sharma Resident of vill:Deka Baruah Chuburi P.O :Ketekibari & P.S Tezpur Distt:Sonitpur,Assam Vs. 1.Employee?s State Insurance Corpn.Ltd. : Opp.party Bishnu Rabha Path, Kamar Chuburi Tezpur,Dist:Sonitpur,Assam-784001 2.Emmanuel Christian School, : Proforma Opp. party Mission Chariali, Tezpur Appearance: Sri Ananta Goswami,Adv.& Sri Abhijit Kar,Adv : For the Complainant Sri Mohan Parsain,Adv. : For the Opp. party Date of written argument : 04-08-18 & 13-08-18 Date of Judgment : 28-08-18 JUDGMENT The facts leading to the complaint, in brief, are that Complainant Mrs Pranpakshi Saikia was serving as a permanent Assistant Teacher at the Emmanuel Christian School, Tezpur (hereinafter as the School). She was duly enrolled with Employees State Insurance Coporation (ESIC) under its registration number 4301172186 and her monthly contributions were accordingly regularly deducted from her monthly salaries by the school Contd.Pg..2 authority in favour of the ESIC w.e.f 2013 to 2017. On 16-10-16, she was diagnosed with Stage-II Cancer of her left breast. Her consultant doctor at Tezpur, Dr Sanjay Singh suggested her to immediately go to Manipal Hospital, Bangalore for better management and advance treatment of her ailment. She immediately on 19-10-16 rushed to the said hospital at Bangalore and on Biopsy and Pet C.T Scan, was diagnosed with Stage-III aggravation of her ailment. Ultimately her left breast was removed followed by several cycles of Chemotherapy at the hospital at Bangalore and also under the supervision of Dr Sanjay Singh at Tezpur and with Radiation at the B. Barooah Cancer Institute Guwahati. As alleged, she has been further required to visit the hospital at Bangalore every six months for regular check up and medication. It is further alleged that due to her ailment she was forced by the school management to resign from her service and she finally resigned in the month of June,2017. It is alleged that no sooner she knew about her ailment, she informed the school management and Dr Barman of ESIC over telephone. A written intimation was also submitted by her to the Principal of the school for onward submission to the ESIC. That an amount of Rs.9,00,479/- was incurred by her towards her medical expenses and on approaching the ESIC office at Tezpur for reimbursement as a beneficiary under it, she was denied entertainment of her case on the ground that her medical treatment ensued in private hospital and not in government hospital.Being aggrieved with the stand taken by the opposite party ESIC, the Complainant is thus before the Forum praying relief of a total sum of Rs.9,25,479/- as compensation and cost which is inclusive of the sum incurred towards her medical treatment. Opposite party ESIC contested the case by filing written version contending that the complaint is bad for non-joinder of the State of Assam, which is a necessary party. Denying any deficiency on its part, it had sticked to its stand of non-entertainment of the case of the Complainant to be right on the ground that Complainant on her own accord had undergone treatment in the hospital at Bangalore and the EMM, Hospital, Tezpur and in the B. Barooah, Cancer Institute, Guwahati without the knowledge and approval of the ESIC which is repugnant to the terms and condition laid under the provision of the Employees State Insurance Act (in short ESI Act). The opposite party has prayed for dismissal of the complaint against it. Complainant tendered her evidence in chief and that of her husband by way of affidavit exhibiting numerous documents thereunder. She also examined the Principal of the School that she served in, as her witness. Opposite party ESIC declined to adduce evidence of any witness on its side and preferred to remain content by cross-examining the Complainant and her witnesses. We have carefully gone through the entire materials available on record inclusive of the written argument filed on both sides.Also heard both the learned counsels for the contesting parties and draw up the following points for determination of the dispute. Contd.Pg/3 POINTS FOR DETERMINATION Whether the State of Assam is a necessary party ? Whether there was deficiency in service ? Whether the Complainant is entitled to get benefit under the provisions of the ESI Act ? To what relief/reliefs, if any, the Complainant is entitled to ? DISCUSSION ON THE POINTS WITH REASONS: 5.POINT No.(i): Opposite party in the written version stated that the complaint is bad u/s 58 of the ESI Act for non-joinder of the State of Assam as party to the complaint. We have gone through the provisions of Section 58 of the ESI Act. In this case, Complainant has come to the Forum as beneficiary under the ESI Scheme as during the tenure of her service as Permanent Assistant Teacher at Emmanuel Christian High School, Tezpur, she made contributions regularly under the ESI Act and Schemes made thereunder. In view of the nature and character of the complaint and facts of the case, we are of the opinion that the State of Assam is in no way connected with the complaint. Thus, the State of Assam is neither a necessary nor a proper party to the complaint. The Point is decided accordingly. POINT No.(ii) & (iii): As both these Points are co-related, so for the sake of convenience and to avoid repetition, the points are taken up together for discussion. Evidently, no claim in writing as required under Regulation 44 of the Employees State Insurance (General) Regulations has been submitted by the Complainant. Complainant categorically submitted that when her left breast cancer was diagnosed on 16-10-16, she intimated the matter in writing to the Principal of the School, she was serving, Mr Jimmy Gothorp. She also informed the matter over telephone to the ESIC. As the disease at the time of diagnosis was in its advance stage, her attending doctor at Tezpur, advised her to go for better medical treatment at Manipal Hospital, Bangalore. Accordingly, she got her treatment at Manipal Hospital. During medical treatment, surgery was done and her left breast was also removed. As per advice of the doctors at Manipal Hospital, she undertook Chemotherapy and Radiation therapy at EMM Hospital and Research Centre, Tezpur and Dr. B. Barooah Cancer Institute, Guwahati respectively. Thereafter, Complainant visited ESIC office at Tezpur to avail the benefits under the ESI Act. But she was informed that as she had taken treatment at private hospital, so she was not entitled to any benefit under the Scheme. Contd.Pg..4 9. The opposite party in the written version at para 2 to 4 stated as under- ?2. As per the laid norms and procedure for any treatment and management of sickness, the Insured Person (IP)/Insured Woman (IW) should first approach the local ESI Dispensary and for further treatment or management under secondary treatment, the IMO of ESIS Dispensary refer the case to ESIC Model Hospital, Patients requiring Super Speciality Treatment or management are further referred to Super Speciality Treatment Hospital/ Institutions tied up by ESIC relating to that particular treatment. Relating to the submission of the petitioner/complainant no telephonic nor written intimation has been received by Branch office, Tezpur, Regional Office, Guwahati, Office of the Senior State Medical Commissioner,ESIC, Guwahati, ESIC Model Hospital, Beltola,Guwahati, Office of the Administrative Medical Officer, Guwahati and ESIS Dispensary, Tezpur. 3. In light of the above, the alleged statement that she had undergone treatment in Bangalore, EMM Hospital & B. Barooah Institute in Guwahati is without the knowledge and approval of ESIC and hence the question of reimbursement for medical treatment does not arise for which she has undertaken on her own without information or intimation and also without following the laid down norms. Hence, the complainant representation that there is deficiency of services from ESIC is not tenable as because the procedure and norms laid down for availing treatment and management for sickness has not been followed and as such does not attract the provision of Consumer Protection Act and there is no deficiency of service or negligence on the part of ESIC. 4. This instant complaint does not come within the purview of Consumer Protection Act in so far as ESIC is concerned as the complainant/IP has not availed medical services from ESIC Dispensary or Hospital as per this office record and hence negligence of service or deficiency of service does not arise. Instant complaint may be dismissed as against ESIC?. Advancing his argument, Sri Mohan Parsain, learned advocate appearing for the opposite party contended that as per the Rules of ESIC, if a person takes treatment in private hospital without consent or information to the ESIC, he or she is not entitled to any benefit under the ESIC Act. He continued to submit that the Complainant failed to contribute for two years to the ESIC, so she is not entitled to claim full benefit. Learned advocate Sri A. Goswami, appearing for the Complainant submitted that in an emergency the Complainant had to rush to private hospital immediately as at the time of diagnosis her breast cancer already reached its IInd stage and in support of his submission, Mr Goswami has placed the following judgments. Suman Rakheja vs. State of Haryana and another (Order passed by the Supreme Court on 6th August,2004) State of Punjab & ors vs. Mohinder Singh Chawla (Reported in AIR 1997 SC 1225) Medical Administrative Officer vs. Santosh Pitambar Patil (order passed by the Maharastra State Consumer Disputes Redressal Commission, Mumbai on 01-04-2014 in F.A No.1016-08) Smti Sushil Bhatia vs. Employees State Insurance (Order passed on 04-03-2008 by the Central Administrative Tribunal, Delhi) Contd.Pg?5 Narendra Pal Singh vs. Union of India & others (Order passed on 28-04-1999 by the High Court of Delhi). Smt Promlesh Bhatnagar vs. Employees State Insurance (Order passed by the High Court of Delhi on 25-04-2006) In reply to objection of failure to make contribution for two years, the learned advocate Sri Goswami has placed reliance on the judgment of the Hon?ble Apex Court passed in Royal Western India Turf Club Ltd. vs. E.S.I.C and others (reported in AIR 2016 Supreme Court-1143). The learned advocate has drawn our attention to the observation made by the Apex Court in para-7 of the judgment. We have gone through the judgments and relevant provisions of law that govern the matter under discussion. In this case, complainant has arrayed Emmanuel Christian School, Tezpur as proforma opposite party. 13. The Principal of the School Mr Jimmy Gothorp as one of the witnesses for the Complainant admitted in evidence that the Complainant was a permanent employee of the School and she subscribed her contribution to the ESI which was deducted from her monthly salaries. 14. Section 42 of the ESI Act deals with the general provisions as to payment of contributions. 15. The Hon?ble Apex Court in the case of Royal Western Turf Club, discussing the matter of whether casual workers are covered under the definition of employee as defined in Section 2(9) of the Employees State Insurance Act,1948, has taken into view the provision of Section 42 and held that the provision does not prescribe that employee has to work for a particular period for availing benefit of the said provision. In view of the above referred judgment what have been contended by the learned advocate for opposite party about failure of the Complainant to contribute for two years to the ESIC has no force at all. 16. On the otherhand, regarding treatment received by the Complainant in Private hospital without information to the ESIC or its knowledge, we may refer the judgment and order of the Apex Court and the High Court of Delhi in the cases of Suman Rakheja and Promlesh Bhatnagar respectively. 17. The Hon?ble Delhi High Court in deciding the case of Promlesh Bhatnagar had taken into view the judgment passed by the Hon?ble Apex Court in the case of-(1) State of Punjab & ors vs. Mohinder Singh Chawla; and (2) Surjit Singh vs. State of Punjab & Ors. Here, we would like to quote following portion of the judgment of the Delhi High Court to justify why we are declined to accept the objection raised by the opposite party. Relying on the judgment of the Apex Court in State of Punjab & ors vs. Mohinder Singh Chawla, the Delhi High Court in Smt Promlesh Bhatnagar?s case held thus ? Contd.Pg..6 5. The law is, therefore, well-settled that right to health is an integral part to life and the Government has constitutional obligation to provide the health facilities to its employee or retired employees and in case an employee requires a specialized treatment in an approved hospital it is the duty of the Government to bear or reimburse the expenses.The petitioner in this case had to be operated in an emergency as he suffered a heart problem and in case he had waited for a prior sanction he might not have survived. Therefore, in this situation it is the duty of the Government to grant ex-post facto sanction and not deny the claim of the petition on technical and flimsy grounds. Firstly the Government does not give any proper reasoning to deny the claim of the petitioner in its communication dated 4th December,1997 and secondly the affidavit of Dr. P.K Baliar Singh merely states that since the petitioner had taken the treatment in non-C.G.H.S covered area and as per Central Government Health Schemes Orders and instructions as issued by the Government, a pensioner is not entitled to the facilities of reimbursement. These reasons cannot be appreciated in view of the settled position that the petitioner is entitled to take recourse to an emergency treatment in any area if the circumstances and the nature of disease so warrant?. 18. In Surjit Singh?s case,(reported in AIR 1996 SC 1388 the Apex Court held thus- ?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 Medical Board, the manning and assembling of which, bare-facedly, 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 alternate hospital as per policy. When the State itself has brought the Escorts on the recognized list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on 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 the 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. There need be no order as to cost?. 19. In the case before us, the Complainant had been suffering from advance stage of Cancer of her left breast. We all know that Cancer is a deadly disease. As reported in various medical journal/ media, Cancer is an abnormal growth of cells in any tissue or organ of the body and these cells have a tendency to spread rapidly and grow in other parts of the body. In its early stage, in some cases doctors can cure this deadly disease with surgery or removal of cells/growth from the organ affected, In later stage of the disease, as reported, surgery and radiation therapy or Chemotherapy often work. Mortality rate is very very high in the case of later stage of the disease. 20. As per evidence of the Complainant, on 15-10-2016 she was diagnosed as suffering from left breast Carcinoma stage-II by the local doctors. But on 19-10-2016 the doctors at Manipal Hospital, Bangalore confirmed after Pet CT Scan and Biopsy that her left breast cancer reached stage-III. 21. The opposite party by cross-examining the Complainant or otherwise could not rebut such evidence. Contd.Pg..7 22. Having regard to the situation of life and death of the Complainant and in the light of the judgment of the Hon?ble Apex Court, reproduced hereinbefore, we are duty bound to take the view that as the urgent nature of requirement of treatment forced the Complainant to take recourse to an emergency treatment in private hospitals, so she is entitled to the facilities and or the benefits of reimbursement of medical expenditures under the ESI Act. 23. Complainant in her complaint and evidence in chief on affidavit stated that to avail the benefit of re-imbursement, she had visited the office of the ESIC. But she was informed that the benefits of ESIC can be availed only if one avails treatment in a Government hospital and as she took treatment in private hospital, more particularly, Manipal Hospital, Bangalore and EMM Hospital & Research Centre, Tezpur, she is not entitled for any benefit under the Scheme. During cross-examination she forcefully asserted that she with her husband had gone to the ESIC office. On that day the officials present then expressed their helplessness to entertain her case. Her cross-examination clearly reveals that she had visited the ESIC office twice to meet Dr. Barman. But Dr Barman was not present each time.The opposite party has not taken any step to disprove such evidence of the Complainant. On the otherhand, evidence of the Complainant finds support from the evidence of her husband (CW 3 Sri Binod Kr Sarmah). From the above evidence, we have no hesitation to decide the Point No.(ii) in the affirmative. Consequently, Point No.(iii) is decided in favour of the Complainant. 24.POINT NO.IV:- As per complaint, Complainant has prayed reliefs as under- i) Amount incurred on treatment: Rs.9,00,479.00 ii)Compensation claimed for mental pain agony etc. Rs. 20,000.00 iii)Cost of litigation Rs. 5,000.00 Total: Rs.9,25,479.00 25. Evidently, as pointed out in discussing foregoing Points, no claim in writing as required under Regulation 44 of the ESI (General) Regulations has been submitted yet by the Complainant before the authority. 26. For the above reason, we are of the opinion that Complainant may be directed to submit claim in writing with all the medical and other documents for scrutiny and re-imbursement before the ESIC. The opposite party on receipt of the claim shall dispose of the claim in the light of the judgment of the Apex Court within one month of receipt of copy of this judgment and order. A copy of judgment passed by the Delhi Court in (1) Promlesh Bhatnagar vs. ESI and (2) the judgment passed by the Apex Court in State of Punjab & ors vs. Mohinder Singh Chawla reported in AIR 1997 SC 1225 and Surjit Singh vs State of Punjab and Ors reported in AIR 1996 SC 1388, each be forwarded to the opposite party for ready reference. Contd.Pg?8 27. Furthermore, under the facts and circumstances of the case in our considered opinion, Complainant is entitled to cost and compensation of Rs.25000/- (Rupees Twenty five thousand) as prayed for. O R D E R Consequently, the complaint stands partly allowed on contest with cost and compensation of Rs.25,000/-(Rupees Twenty five thousand)only. Complainant is directed to submit claim in writing with all the medical and other documents for scrutiny and re-imbursement before the ESIC. The opposite party ESIC on receipt of the claim shall dispose of the claim in the light of the judgment of the Apex Court within one month of receipt of copy of this judgment and order. A copy of judgment passed by the Delhi Court in (1) Promlesh Bhatnagar vs. ESI and (2) the judgment passed by the Apex Court in State of Punjab & ors vs. Mohinder Singh Chawla reported in AIR 1997 SC 1225 and (3)Surjit Singh vs State of Punjab and Ors reported in AIR 1996 SC 1388, each be forwarded to the opposite party for ready reference. Given under our hands and seal of this Forum this 28th day of August, 2018. Dictated and corrected by: Pronounced and delivered ( A.Devee) President (A. DEVEE) District Consumer D.R Forum,Sonitpur President Tezpur District Consumer Disputes Redressal Forum Sonitpur,Tezpur We agree:- (SRI P. DAS) (SMT.S.BORA) Member Member [JUDGES Smit Aruna Devee] PRESIDENT [HON'BLE MRS. Smt Sangita Bora] MEMBER [HON'BLE MR. Sri Pramoth Das] MEMBER