STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. First Appeal No.665 of 2018 Date of institution : 22.11.2018 Reserved On : 04.02.2019 Date of decision : 12.02.2019 Senior State Medical Commissioner, ESIC, Sector 19-A, Chandigarh. .Appellant/Opposite Party No.1 Versus
1. Joginder Singh R/o Village Devi Nagar, P.O. Manakpur, District Mohali. .Respondent/Complainant
2. Director, Health Services (ESI) Parivar Kalyan Bhawan, Sector 34-A, Chandigarh.
3. SMO, ESIC Hospital, Phase-VII, Industrial Area, Mohali. .Respondents/Opposite Parties No.2 & 3
4. Social Security Officer, Employees State Insurance Corporation, Local Office, Phase VII, Industrial Area, Mohali. .Performa Respondent/Opposite Party No.4 First Appeal against the order dated 04.07.2018 of the District Consumer Disputes Redressal Forum, Sahibzada Ajit Singh Nagar (Mohali). Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member Present:- For the appellant : Sh. H.S. Bhatia, Advocate For respondent No.1 : Ms. Amanjot Kaur, Advocate For respondent No.2 : Sh. Balkar Singh, Auth. Rep. For respondent No.3 : Ms. Supriya, Clerk, Auth. Rep. For respondent No.4 : Ex parte. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/opposite party No.1 against the order dated 04.07.2018 First Appeal No.665 of 2018 passed by District Consumer Disputes Redressal Forum, Sahibzada Ajit Singh Nagar (Mohali) (in short, the District Forum), whereby the complaint filed by respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and the opposite parties were directed to pay compensation of 15,000/- on account of mental pain, agony and harassment suffered by the complainant, besides payment of 5,000/-, as litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant is working with M/s Sigma, B-70, Phase-7, Industrial Area, Mohali since 27.09.2006 and he is having Insurance No.1209976928 and has been depositing ESI contribution at the rate of 1.75% from his salary, along with employers contribution at the rate of 4.75% regularly. It was averred that mother of the complainant, namely Mrs. Charanjeet Kaur, was operated at Civil Hospital, Phase-VI, Mohali after being referred from ESI Dispensary, Phase-7, Mohali for her eye problem. She took treatment therefrom with effect from 12.12.2014 to 30.12.2014. The complainant submitted medical reimbursement bill of 9,822/- in ESI Dispensary, Phase-7, Mohali on 28.02.2015, vide Diary No.135, but his claim was not paid for more than two years. He First Appeal No.665 of 2018 visited the offices of the opposite parties several times for getting reimbursement of the claim amount, but to no effect. Hence, the complainant approached the District Forum, seeking following directions to the opposite parties:
i) to reimburse the medical bill of 9,822/-, along with interest at the rate of 18%; ii) to pay 50,000/- as compensation for the harassment suffered by him; and iii) to pay 25,000/-, as litigation expenses. Defence of the Opposite Parties
4. Upon notice, opposite parties No.1 to 3 did not appear before the District Forum despite their service and, as such, they were proceeded against ex part.
5. Opposite party No.4 appeared and filed reply to the complaint, pleading that the complainant has not furnished any evidence in support of his claim. As per Section 58 of Employees State Insurance Act, 1948 (in short, ESI Act), the State Govt. is to provide reasonable medical, surgical and obstetric treatment for insured persons and to their families (where benefit is extended to the family). Thus, the insured person was required to submit the medical bills to the ESI Dispensary allotted to him under the jurisdiction of State Govt./Director Health Services. The bills are further required to be forwarded by concerned Medical Superintendent or SMO and thereafter the same were to be sent to Director Health Services, if necessary, for further action First Appeal No.665 of 2018 regarding reimbursement of the bills. Therefore, no action was required on the part of opposite party No.4. It was admitted that Social Security Officer has his office in the premises of Branch Office in Mohali, but he works under the direct control of Regional Director Employees State Insurance Corporation. Opposite party No.4 carries out the inspection or survey of factories/ establishments, as per the directions of the Regional Office. Thus, opposite party No.4 has nothing to do with hospital work. All other allegations levelled in the complaint were denied and it was prayed that the complaint against opposite party No.4 be withdrawn, in the interest of justice. Finding of the District Forum
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
7. We have heard learned counsel for the parties, except respondent No.4, who has not appeared in the appeal and has been proceeded against ex parte. We have also carefully gone through the records of the case.
8. Learned counsel for the appellant/opposite party No.1 mainly contended that the complaint was not maintainable before the Consumer Fora, in view of Section 75 (3) of the Employees State Insurance (ESI) Act, 1948 and the dispute qua the medical First Appeal No.665 of 2018 reimbursement comes within the purview of Section 75 (1) (e) and Section 75 (2) (f) of the ESI Act. As per Section 58 of the ESI Act, only the State Government is to provide the reasonable medical, surgical and obstetric treatment, where benefit of the scheme is extended to the employees and their families. It was further contended that the complaint was hopelessly time barred, as the cause of action arose on 28.02.2015 while the complaint was filed on 12.04.2017 i.e. after the limitation period of two years. The District Forum lost sight of all these facts and passed a wrong order, which is liable to be set aside by way of allowing the appeal. In support of his contentions, learned counsel for the appellant relied upon following cases:
i) Arun Kumar Gupta v. ESIC 1998 CPJ 11 (NC); ii) Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council. No.7142 of 1993, decided on 09.02.1995 (SC); iii) Union of India & Anr. v. M. Adaikalam R.P. No.125 of 1992 decided on 05.04.1993 (NC); iv) ESI Hospital (Medical Officer) & Anr. v. Ranjit Kumar Das & Ors. 2006 (3) CPR 284 (NC); and
v) State Bank Of India v. B.S Agriculture Industries (I) (2009)
5 SCC 121.
9. Per contra, learned counsel for respondent No.1/complainant vehemently contended that the complaint was very much maintainable before the District Forum, in view of Section 3 of the Act, which provides for additional remedy. It was further contended that the claim amount has already been paid by First Appeal No.665 of 2018 the opposite parties to the complainant during the pendency of the complaint before the District Forum and, as such, the issue involved in the complainant is in the academic nature and the appeal is liable to the dismissed as infructuous.
10. Similar type of arguments, as raised on behalf of the appellant, have been raised by respondents No.2 & 3. Consideration of Contentions
11. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
12. Admittedly, the complainant is working with M/s Sigma, B-70, Phase-7, Industrial Area, Mohali since 27.09.2006 and had been depositing his ESI contribution at the rate of 1.75% from his salary with employers contribution at the rate of 4.75% regularly. It is, thus, clear that the contribution is regularly being made by the complainant and his employer towards the Insurance Scheme, as a result of which the treatment to the insured person is provided, the expenses of which are reimbursed by the ESI Corporation, as per rules. Hence, the services hired by the complainant/his family members are covered under section 2 (1) (o) of the Act and the complainant is consumer of the opposite parties. The mother of the complainant was got operated at Civil Hospital, Phase VI, Mohali on 12.12.2014 for her right eye, after being referred by opposite party No.3, as per Form, Ex.C-1. The complainant spent a sum of 9,822/- on her treatment and submitted a medical reimbursement bill of the same amount in ESI, Dispensary, Phase- First Appeal No.665 of 2018 7, Mohali. It is not in dispute that the claim amount has already been disbursed to the complainant, vide demand draft of 9,322/- on 28.12.2017 during the pendency of the complaint, as is apparent from Para No.6 of the impugned order.
13. Now, the only issue which needs to be decided in this case, is about maintainability of the complaint before the District Forum, as learned counsel for the appellant contended that this issue should be decided, keeping in view Section 75 (3) of the ESI Act, as the same continues to arise in many cases.
14. Section 75 (3) of the ESI Act reads as under: No Civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.
15. The above said issue is no more res-integra. Honble Supreme Court in case Kishori Lal v. E.S.I. Corporation II (2007) CPJ 25 (SC) held in Para Nos.17, 18 and 21 as follows:
17. It has been held in numerous cases of this Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In the case of M/s. Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, AIR 1998 SC 1801, it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to First Appeal No.665 of 2018 adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.
18. The submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees' Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees' Insurance Court. clause (e) of Section 75(1) gives power to the Employees' Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees' State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents' benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule
61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees' Insurance Court. The appellant's claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees' Insurance Court. The appellant's claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein. First Appeal No.665 of 2018
21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees' State Insurance Act, 1948.
16. Further, the scope and reach of the Act of 1986 has been considered by the Honble Supreme Court in catena of judgments, some of the important ones are: Lucknow Development Authority v. M.K Gupta.. Gupta (1994) 1 SCC 243, Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385, Skypak Couriers Ltd. v. Tata Chemicals Ltd. (2000) 5 SCC 294, State of Karnataka vs. Vishwabharathi House Building Cooperative Society (2003) 2 SCC 412, CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited (2003) 7 SCC 233, Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305, H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka (2004) 6 SCC 230.
17. In M.Lalithas case (supra), Hon'ble Supreme Court noticed the background, the object and reasons and the purpose for which the Act of 1986 was enacted. After referring to its earlier judgments in M.K. Guptas case (supra) and N.K. Modis case (supra), the Honble Supreme Court observed as under:- First Appeal No.665 of 2018
11. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders.
18. The Larger Bench of the Honble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr. also held in view of Section 3, which envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force, the jurisdiction of the Consumer Fora is not ousted. The Civil Appeal No.(s) 23512- 23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Honble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the First Appeal No.665 of 2018 above said order dated 13.02.2018 was also dismissed by the Honble Supreme Court, vide order dated 10.12.2018.
19. This Commission, while relying upon the aforesaid judgment of the Honble Supreme, in First Appeal No.1054 of 2014 (Senior State Medical Commissioner & Anr. v. Jasveer Chand & Anr.) decided on 01.04.2015, also held that by virtue of Section
75 (3) of the ESI Act, the jurisdiction of the Consumer Fora is not barred. The authorities relied upon by learned counsel for the appellant are not applicable, in view of the law laid down in the above cited cases.
20. In view of the law laid down in the above noted cases, the Consumer Fora has the jurisdiction to decide such like cases and Section 75 of the ESI Act does not create any bar for redressal of the consumer complaints against ESI Corporation under the Act.
21. So far as the contention of the learned counsel for the appellant regarding Section 58 of the ESI Act, which involves the role of the State Government and the Director, Health Services, is concerned, it will be necessary to go through Section 58 of the ESI Act, which reads as under:-
58. Provision of medical treatment by State Government.(1) The State Government shall provide for insured persons and (where such benefit is extended to their families) their families in the State reasonable medical, surgical and obstetric treatment: Provided that the State Government may, with the approval of the Corporation, arrange for medical treatment atclinics of medical practitioners on such scale and subject to such terms and conditions as may be agreed upon. First Appeal No.665 of 2018 (2) Where the incidence of sickness benefit payment to insured persons in any State is found to exceed the all- India average, the amount of such excess shall be shared between the Corporation and the State Government in such proportion as may be fixed by agreement between them: Provided that the Corporation may in any case waive the recovery of the whole or any part of the share which is to be borne by the State Government. (3) The Corporation may enter into an agreement with a State Government in regard to the nature and scale of the medical treatment that should be provided to insured persons and (where such medical benefit is extended to the families) their families (including provision of buildings, equipment, medicines and staff) and for the sharing of the cost thereof and of any excess in the incidence of sickness benefit to insured persons between the Corporation and the State Government. (4) In default of agreement between the Corporation and any State Government as aforesaid the nature and extent of the medical treatment to be provided by the State Government and the proportion in which the cost thereof and of the excess in the incidence of sickness benefit shall be shared between the Corporation and that Government, shall be determined by an arbitrator (who shall be or shall have been a Judge of the [High Court] [of a State] appointed by the Chief Justice of India andthe award of the arbitrator shall be binding on the Corporation and the State Government. (5) The State Government may, in addition to the Corporation under this Act, with the previous approval of the Central Government, establish such organisation (by whatever name called) to provide for certain benefits to employees in case of sickness, maternity and employment injury: Provided that any reference to the State Government in the Act shall also include reference to the organization as and when such organisation is established by the State Government.] (6) The organization referred to in sub-section (5) shall have such structure and discharge functions, exercise powers and undertake such activities as may be prescribed.
22. Perusal of above reproduced Section 58 of the ESI Act shows that there is an arrangement between the Corporation and the State Government, with regard to providing medical treatment to the workers registered under the scheme. No doubt, that there First Appeal No.665 of 2018 may be some role of the State Government in the form of sanction from the Director, Health Services, but the ESI Corporation cannot be absolved from liability to clear the reimbursement bills in time. The opposite parties are wholly responsible to make the payment of reimbursement bills to its employees. It is the duty of the Corporation to supervise that the reimbursement bills are passed at the earliest, so that the workers, who are covered under the scheme and had spent considerable amount from their own pockets, are reimbursed at the earliest.
23. So far as the plea of opposite party No.1 that the complaint was time barred, as the cause of action arose on 28.02.2015 while the complaint was filed on 12.04.2017, is concerned, it is relevant to mention that the claim for reimbursement was sent by the complainant to the opposite parties on 28.02.2015, which was not cleared up to the filing of the complaint before the District Forum. Till the clearance of the medical reimbursement bill of the complainant, he had continuous cause of action. Moreover, the payment of the said bill was made during the pendency of the complainant on 28.12.2017. Therefore, the said plea of the opposite party No.1 is rejected and the complaint was well within limitation.
24. Since the opposite parties failed to clear the reimbursement bill of the complainant for such long time, therefore, the District Forum rightly awarded compensation and litigation expenses in favour of the complainant. Learned counsel First Appeal No.665 of 2018 for the appellant has also admitted the payment of reimbursement bill to the complainant, during the course of arguments. Once payment of the reimbursement bill has already been made by the opposite parties to the complainant, as already discussed above, so no dispute is left between the parties and no ground is made out to interfere with the impugned order. Therefore, the appeal has become infructuous.
25. In view of our above discussion, the appeal is dismissed and the impugned order is upheld.
26. The appellant had deposited a sum of 10,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The respondent No.1/complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law. (JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER February 12, 2019. (Gurmeet S)
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