Citation Codes

Equivalent Citations

citation codes

Case Number

A/135/2020

Disposition

dismissed

Attorney(S)

Acts

SECTION 3 CONSUMER PROTECTION ACT 1986
Rule 3.30 read with Regulation 96-A of ESI Medical
Section 41 of Consumer Protection Act, 2019.
provisions of Section 75 of ESI Act, 1948.
Section 75 of ESIC 3 Act.
provisions of Section 75 of the ESI Act 1948,
Rule 3.30 of ESI
Section 57 & 58 of ESI Act.

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Smart Summary

Structured Summary of the Opinion: State Consumer Disputes Redressal Commission, U.T., Chandigarh (Appeals Nos. 135 & 137 of 2020)

Factual and Procedural Background

The two consolidated appeals (No.135 of 2020 and No.137 of 2020) challenge an order dated 10.08.2020 of District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (the "District Commission") in Consumer Complaint No.660 of 2019. The District Commission allowed the complaint filed by the respondent/complainant, Nidhi Dhingra, directing the opposite parties (appellants before the State Commission) to reimburse Rs.80,173/- for medical expenditure, pay Rs.7,000/- as compensation and Rs.5,000/- as litigation cost. The District Commission's order required compliance within 30 days, with an additional compensatory cost of Rs.15,000/- if not complied with.

Brief factual matrix as set out by the District Commission: the complainant and her family were insured under an ESIC family policy. Her husband, insured under ESIC, sought treatment for a skin disease and underwent surgery at a private hospital (IVY Hospital, Mohali) due to long waiting lists at PGI, Chandigarh. The complainant submitted a medical reimbursement claim (Ann. A-1) for Rs.80,173/- to the ESI dispensary/ESIC authorities; the claim was returned as "time barred" and with a requirement to give an "undertaking". The complainant alleged denial of reimbursement by the opposite parties and filed the consumer complaint alleging deficiency in service and unfair trade practice.

The opposite parties (variously the Director, Health & Family Welfare, Chandigarh; Medical Officer-Incharge, ESI Dispensary; Senior State Medical Commissioner, ESIC; and Regional Director, ESIC) raised preliminary objections as to jurisdiction invoking Section 75 of the ESI Act, 1948 and contended on merits that the claim was time-barred, original bills were not supplied, and required formalities (including an undertaking to establish dependency) were not complied with.

The State Commission heard the parties (through video conferencing), considered the record and the written arguments, condoned a 13-day delay in filing appeal No.135 of 2020, and issued a common order dated 23.02.2022 dismissing both appeals and upholding the District Commission's decision.

Legal Issues Presented

Whether the District Commission had jurisdiction to entertain the consumer complaint despite the provisions of Section 75 of the ESI Act, 1948 (i.e., whether jurisdiction was barred).
Whether the complainant's medical reimbursement claim was time-barred under the ESI Medical Manual (Rule 3.30 read with Regulation 96-A) and therefore not payable.
Whether the absence of an undertaking or original bills (as required by the ESI authorities) justified non-processing/rejection of the reimbursement claim.
Whether the ESI family insurance policy covered the complainant's husband for reimbursement regardless of the husband's financial dependency on the insured.
Whether the opposite parties committed deficiency of service/unfair trade practice in refusing or delaying reimbursement, entitling the complainant to relief under the Consumer Protection regime.

Arguments of the Parties

Respondent / Complainant (as set out in the complaint and relied on by the District Commission)

The complainant and her family were insured under ESIC family policy since 13.9.2014.
The husband, an insured person, was treated through the ESIC system and later advised surgery at PGI but underwent surgery at a private hospital due to long waiting lists; medical expenditure of Rs.80,173/- was incurred.
A reimbursement claim was submitted to OP No.4 but was not entertained and returned as "time barred" with a requirement for an undertaking; the complainant alleged improper refusal and delay amounting to deficiency in service and unfair trade practice.

Opposite Parties No.1 & 4 (The Director, Health & Family Welfare, Chandigarh Administration; Dr. Purnima, Medical Officer‑Incharge, ESI Dispensary) — Appellants' contentions

The District Commission failed to consider that original bills were not provided by the complainant, which prevented processing of the claim.
The District Commission failed to apply Rule 3.30 read with Regulation 96-A of the ESI Medical Manual requiring submission of bills within one year; therefore, the claim was time-barred.
The impugned order is based on conjectures and surmises and ignored the appellants' written statements and the applicable rules.
The District Commission did not properly consider the issue of the claim being time barred and procedural non-compliance by the complainant (including an undertaking and original bills).

Opposite Parties No.2 & 3 (Senior State Medical Commissioner, ESIC; Regional Director, ESIC) — Appellants' contentions

The District Commission failed to appreciate the evidence and documents placed on record by them and ignored legal objections, including reliance on Section 75 of the ESI Act to contest jurisdiction.
The ESI Act and scheme constitute a social welfare scheme; the District Commission did not recognize that the claim was time-barred and that the undertaking was not in the prescribed format (invoking Rule 3.30 of the ESI Manual), justifying rejection of the claim.
No cause of action accrued against the appellants to prove negligence or deficiency in service on their part; the District Commission failed to take relevant considerations into account when exercising its powers.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kishori Lal versus Chairman Employees State Insurance Corporation, 2007(3) M.L.W, 234	Used in relation to the question of jurisdiction under the ESI Act and the applicability of consumer fora jurisdiction.	The District Commission referred to this Supreme Court judgment (and the State Commission relied on that discussion) when rejecting the appellants' contention that jurisdiction was barred by Section 75 of the ESI Act.
Employees State Insurance Corporation Vs. Sri Siddaramaiah, Revision Petititon No.96, 97, 98 & 99 of 2006 (Hon'ble National Commission)	Also cited on the jurisdictional issue and interpretation of the interplay between ESI provisions and consumer protection jurisdiction.	The District Commission relied on this National Commission decision (and the State Commission accepted that reliance) in concluding that the consumer forum's jurisdiction was not ousted by Section 75 of the ESI Act.

Court's Reasoning and Analysis

The State Commission evaluated the appeals after hearing counsel and perusing the record. The court's reasoning proceeded in the following steps (as recorded in the opinion):

Condonation of Delay: The State Commission condoned a 13-day delay in filing appeal No.135 of 2020 upon application supported by an affidavit (Dr. Purnima).
Jurisdictional Objection (Section 75 ESI Act): The State Commission noted that the District Commission had dealt with the appellants' contention regarding jurisdiction in detail, relying on the Supreme Court judgment in Kishori Lal and the National Commission decision in Employees State Insurance Corporation Vs. Sri Siddaramaiah, together with Section 3 of the Consumer Protection Act, 1986. Applying those authorities and principles, the District Commission rightly rejected the contention that the consumer forum's jurisdiction was barred by Section 75 of the ESI Act; the State Commission agreed with that rejection.
Coverage under Family Policy / Dependency Issue: The State Commission agreed with the District Commission's finding that the insurance policy in question was a family policy which covered family members irrespective of dependency. The appellants themselves had admitted (in a reply to legal notice, Annexure R-4) that under Section 58 of the ESI Act the State Government provides medical treatment to the insured person and their family and may reimburse such expenditure. On this basis, the District Commission correctly found the husband of the complainant covered under the policy and eligible for reimbursement.
Documentary Record and Requests by Appellants: The record contained a letter dated 03.07.2019 (Annexure A-4) from the appellants indicating that, after discussion with higher authorities, they had sought certain documents to reconsider the claim. The State Commission noted that the requisite documents had been duly furnished by the complainant pertaining to the husband's treatment, and therefore the District Commission correctly concluded there was no need for the complainant to file a fresh claim when documents were already on record.
Time‑bar and Undertaking Contentions: The appellants argued that many cash memos were beyond one year and that the undertaking and original bills were not furnished in the form required. The District Commission considered these contentions but concluded (and the State Commission agreed) that the policy coverage and the documents on record, together with the appellants' own communications, made out entitlement to reimbursement. The State Commission held that the District Commission had properly applied the law and facts and had not erred in its assessment.
Conclusion on Deficiency of Service: On the basis of the above findings (jurisdiction, policy coverage, existence of documents on record, and the appellants' conduct in correspondence), the State Commission concluded that the District Commission rightly held the opposite parties deficient in service and properly directed reimbursement and compensation.

Holding and Implications

Holding: The State Commission's final decision is summarized as follows:

APPEALS NOS. 135 OF 2020 AND 137 OF 2020 ARE DISMISSED; THE ORDER OF THE DISTRICT COMMISSION DATED 10.08.2020 IS UPHELD.

Direct consequences and implementation:

The District Commission's order directing the opposite parties to reimburse Rs.80,173/- to the complainant (for the husband's medical expenditure), to pay Rs.7,000/- as compensation and Rs.5,000/- as litigation cost stands upheld.
The appeals filed by the opposite parties (appellants) were dismissed as devoid of merit, and there was "no order as to cost" in relation to these appeals.
The State Commission directed that certified copies of its order be placed in the file of Appeal No.137 of 2020 and be sent to the parties free of charge; the file is to be consigned to the Record Room after completion.

Broader implications: The opinion does not indicate that a new legal precedent was being laid down; rather, it affirmed the District Commission's application of existing authorities (including the cited Supreme Court and National Commission decisions) and maintained the consumer forum's jurisdiction in the circumstances of this case.

Order dated: 23.02.2022. Members on the bench: Justice Raj Shekhar Attri (President), Mrs. Padma Pandey (Member), Mr. Rajesh K. Arya (Member).

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The Director, Health and Family welfare, Chandigarh Admintration Chandigarh v. Nidhi Dhingra

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	135 of 2020
Date of Institution	:	08.10.2020
Date of Decision	:	23.02.2022

1. The Director, Health and Family Welfare, Chandigarh Administration, Chandigarh.

2. Dr. Purnima, Medical Officer-Incharge, ESI Dispensary, Sector 23, Chandigarh. …..Appellants/Opposite Parties No1. & 4.

VERSUS

1. Nidhi Dhingra wife of Sh. Ravinder Dhingra resident of House No.733, Sector 43-A, Chandigarh. …..Respondent/Complainant.

2. The Senior State Medical Commissioner, ESIC, Regional Office, Sector 19-B, Chandigarh.

3. The Regional Director, Employee State Insurance Corporation, Plot No.3, Panchdeep Bhawan, Sector 19-A, Madhya Marg, Chandigarh-160019.

….Respondents/Opposite Parties No.2 & 3.

Appeal under Section 41 of Consumer Protection Act, 2019.

PRESENT: (THROUGH VIDEO CONFERENCING):

Sh. Rajinder Singh, Govt. Pleader for the appellants. None for respondent No.1 (already exparte vide order dated 22.04.2021). Ms. Seema Pasricha, Advocate for respondents No.2 & 3.

Appeal No. : 137 of 2020

Date of Institution	:	13.10.2020
Date of Decision	:	23.02.2022

1. The Senior State Medical Commissioner, ESIC, Regional Office, Sector 19-B, Chandigarh.

2. The Regional Director, Employee State Insurance Corporation, Plot No.3, Panchdeep Bhawan, Sector 19-A, Madhya Marg, Chandigarh-160019.

…..Appellants/Opposite Parties No.2 & 3.

VERSUS

1. Nidhi Dhingra wife of Sh. Ravinder Dhingra resident of House No.733, Sector 43-A, Chandigarh. …..Respondent/Complainant.

2. The Director, Health and Family Welfare, Chandigarh Administration, Chandigarh.

3. Dr. Purnima, Medical Officer-Incharge, ESI Dispensary, Sector 23, Chandigarh. ….Respondents/Opposite Parties No.1 & 4.

Appeal under Section 41 of Consumer Protection Act, 2019.

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MRS.PADMA PANDEY, MEMBER

MR. RAJESH K. ARYA, MEMBER.

PRESENT: (THROUGH VIDEO CONFERENCING):

Ms. Seema Pasricha, Advocate for the appellants. None for respondent No.1 (already exparte vide order dated 22.04.2021). Sh. Rajinder Singh, Govt. Pleader for respondents No.2 & 3.

RAJESH K. ARYA, MEMBER

Vide this common order, we are disposing of two appeals bearing Nos.135 of 2020 filed by opposite parties No.1 & 4 and No.137 of 2020 filed by opposite parties No.2 & 3 against order dated 10.08.2020 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short

'District Commission') in consumer complaint No.660 of 2019 vide which, the said complaint was allowed and the opposite parties (appellants herein) were directed to reimburse an amount of Rs.80,173/- to the complainant (respondent herein) being the medical expenditure incurred on the treatment besides payment of Rs.7,000/- towards compensation and Rs.5,000/- as litigation cost. The order was to be complied with within a period of 30 days from the date of receipt of its certified copy failing which the opposite parties have been held liable to pay additional compensatory cost of Rs.15,000/- to the complainant.

2. Briefly stated the fact as culled out from the impugned order passed by the District Commission are as under:-

"The case of the complainant, in brief, is that she and her family members are insured with ESIC vide Insurance Policy No.1713253751 since 13.9.2014. It is averred that the husband of complainant Sh.Ravinder Dhingra, insured, was treated initially at ESIC Dispensary, Sector 23, Chandigarh and then referred to ESIC Hospital, Industrial Area, Phase-I, Sector 29, Chandigarh. Thereafter, he was referred to PGI, Chandigarh for check-up and treatment. It is also averred that Sh.Ravinder Dhingra, husband of the complainant (insured) was suffering from a skin disease and has been advised surgery by PGI, Chandigarh, but due to long date & long waiting list at PGI, Chandigarh, he has to take surgical treatment from IVY Hospital, Mohali in Nov.-Dec., 2018. After the surgery, Sh.Ravinder Dhingra, husband of the complainant, visited PGI, Chandigarh for further follow-up and was discharged from PGI, Chandigarh. Thereafter, the complainant lodged medi-claim with OP No.4 amounting to Rs.80,173/- for reimbursement (Ann.A-1). However, the OP No.4 did not entertain the claim, even though it has been submitted twice on 18.4.2019 and 25.4.2019, but the same were returned by it with remarks of 'time barred claim', and imposing a condition to give 'undertaking'. The complainant also sent legal notice to the OPs, but their reply is not satisfactory. Hence, alleging the said act & conduct of the OPs, as gross deficiency in service and unfair trade practice, this complaint has been filed.

2] The OP No.1 & 2 have filed reply and took objection that the jurisdiction of this Forum is barred in view of provisions of Section 75 of ESI Act, 1948. On merits, while admitting the factual matrix of the case, stated that the treatment of husband of complainant was initiated at ESI Dispensary-29, from where he was referred to ESI Model Hospital, Ram Darbar, Chandigarh (Ann.A-12). It is pleaded that there were three medical claims of complainant which were found in order and have already been processed in respect of Medical Reimbursement Claim of herself and her Son. It is also pleaded that on preliminary scrutiny of claim, it is observed that her daughter and son only to be her dependent and so far as her husband is concerned, he is not stated to be her dependent as such, she is otherwise not entitled to raise any claim in respect of him (Ann.A-1). It is submitted that on preliminary scrutiny of claim, it was found that most of the Cash Memos attached with the claim have been time barred i.e. beyond the period of one year and moreover, despite reply to her legal notice, she failed to submit original bills. It is further submitted that the complainant herself failed to fulfill the requirement/requisite documents and refused to accept the format of an undertaking to be furnished in order to ascertain the factum of dependency of her husband (Ann.A-6 to A-10). It is pleaded that the complainant had failed to furnish the undertaking that her husband is dependent upon her from financial aspect and even failed to produce/submit original bill, therefore, her conduct is non-cooperative with answering OPs. It is also pleaded that answering OPs had not rejected the claim or refused to process the case of the complainant at any stage, rather the complainant was requested to submit the claim case after completing the formalities so that the same can be examined and submitted further for consideration/opinion of higher authorities. Pleading no deficiency in service and denying all other allegations, the OPs NO.1 & 4 have prayed for dismissal of the complaint. The OPs No.2 & 3 have filed joint reply and took preliminary objection to the effect that present complaint is not maintainable before this Forum in view of Section 75 of ESIC

Act. On merits, while admitting the complainant and his family being insured under ESIC, as matter of record, denied other allegations being not related to them. It is submitted that OPs No.2 & 3 has nothing to do with the present complaint as the claim of reimbursement is to be made by OPs No.1 & 4 as per notification dated 7.6.2002 and as per Section 57 & 58 of ESI Act. Denying other allegation, it is prayed that the complaint qua OPs NO.2 & 3 be dismissed."

3. It may be stated here that there is a delay of 13 days in filing appeal number 135 of 2020. For condoning the said delay the epilogue opposite parties number one and 4 along with their appeals have also moved an application bearing number 693 of 2020 for condonation of delay which is duly supported by an affidavit of Dr. Purnima - opposite party number 4. For the reasons stated in the application the delay of 13 days in filing the appeal is condoned.

4. In their appeal bearing No.135 of 2020, opposite parties No.1 & 4, namely, The Director, Health and Family Welfare, Chandigarh Administration, Chandigarh and Dr. Purnima, Medical Officer-Incharge, ESI Dispensary, have stated that District Commission failed to deal with the main contention that the original bills were never provided by the complainant owing to which the claim could not be processed. It has further been stated that the District Commission also failed to consider another contention that bills pertaining to the complainant were required to be submitted within a period of one year in terms of Rule

3.30 read with Regulation 96-A of ESI Medical Manual. It has further been stated that the impugned order is based on conjectures and surmises and hence, required to be set aside. It has further been stated that the District Commission failed to apply its judicious mind on the aforesaid Rule, facts & circumstances of the case and pass the impugned order in total ignorance of stand taken by the appellants in their written statement. It has further been stated that the District Commission failed to consider the issue with respect to the claim being time barred.

5. In their appeal bearing No.137 of 2020, opposite parties No.2 & 3, namely, The Senior State Medical Commissioner, ESIC and The Regional Director, Employees State Insurance Corporation have stated that the District Commission failed to appreciate the evidence as well as the documents placed on record by them. It has further been stated that the District Commission failed to appreciate that the ESI Act is the outcome of social welfare policy of State to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. It has further been stated that the District Commission failed to appreciate that the claim of the complainant was time barred and further that the undertaking is not provided as per rules, therefore, it was rejected in view of Rule 3.30 of ESI Manual. It has further been stated that the District Commission did not appreciate that no cause of action accrued to the complainant against the appellants to prove the negligence or deficiency of service on their part. It has further been stated that the District Commission failed to appreciate that the ESI Scheme is a social scheme, which regulates under ESI Act 1948 enacted for the benefit of employees under the said scheme. It has further been stated that the District Commission failed to appreciate that the contributions are to be collected under the provisions of ESI Act 1940 which is a special law enacted for the said purpose. It has further been stated that the District Commission failed to take relevant consideration into account in exercise of its power and not at all considered the documentary evidence as well as the legal objection taken before the District Commission.

6. After hearing the Council for the parties and going through the record of the case and the written arguments very carefully, we are of the considered opinion that both the appeals filed by the opposite parties are liable to be dismissed for the reasons to be recorded hereinafter. As regards the contention of the appellants that the jurisdiction of the District Commission is barred in view of provisions of Section 75 of the ESI Act 1948, it may be stated here that the District Commission has dealt with this contention of theirs in the impugned order in Para 5 in detail, wherein the District Commission while referring to the judgment of Hon'ble Supreme Court of India in case titled 'Kishori Lal versus Chairman Employees State Insurance Corporation', 2007(3) M.L.W, 234 and that of Hon'ble National Commission in case titled Employees State

Insurance Corporation Vs. Sri Siddaramaiah, Revision Petititon No.96, 97, 98 & 99 of 2006 and also to the provisions of Section 3 of Consumer Protection Act, 1986, has rightly rejected the aforesaid contention of the opposite parties. So far as the other grounds taken in appeal to assail the order of the District Commission, we would also like to state here that the District Commission further in its order rightly observed that the insurance policy obtained by the complainant (respondent herein) is a family policy and it covered all family members irrespective of dependency of any of them. Since the opposite parties, in their reply to the legal notice, AnnexureR-4 admitted that as per Section 58 of the ESI Act, the State Government shall provide for the insured persons and their families in the state, reasonable medical, surgical and obstetric treatment and further stated that the State Government has full authority to reimburse expenditure in respect of medical treatment of IP (insured person) and his family, therefore, the District Commission rightly held that the husband of the respondent/complainant was duly covered under the said Policy and as such, entitled for reimbursement of medical expenditure/expenses incurred on the treatment. It (District Commission) also rightly opined that in a policy whereby the insured along with family is insured, no requirement is left to submit any clarification whether the spouse duly insured under the policy, is dependent on the insured person or not. It is also culled out from the record of the District Commission and as also mentioned in order passed by the District Commission that during the pendency of the complaint, the appellants/opposite parties placed on record of District Commission a letter dated 03.07.2019 (Annexure A-

4) to the effect that after due discussion with their higher authorities, the opposite parties sought certain documents from the respondent/complainant to reconsider the claim and since all the requisite documents had duly been furnished to the opposite parties by the complainant pertaining to the treatment of her husband, therefore, as rightly held by the District Commission, there was no need to file claim afresh and the documents already submitted by complainant.

7. In view of aforesaid, we are of the considered opinion that the District Commission rightly allowed the complaint of the complainant and rightly held the opposite parties/appellants deficient in service and consequently, directed them (opposite parties) to reimburse the medical expenditure to the tune of Rs.80,173/- incurred on the treatment of the husband of the complainant besides other relief, as stated above.

8. For the reasons recorded above, it is held that the order passed by District Commission-II allowing the consumer complaint did not need any interference and as such, is upheld. Resultantly, both the appeals bearing Nos.135 of 2020 filed by opposite parties No.1 & 4 and No.137 of 2020 filed by opposite parties No.2 & 3, being devoid of merit, stand dismissed with no order as to cost.

9. Certified copy of this order be placed in the file of appeal No.137 of 2020 titled 'The Senior State Medical Commissioner, ESIC & Anr. Vs. Nidhi Dhingra & ors'.

10. Certified copies of this order be sent to the parties free of charge.

11. File be consigned to Record Room after completion. Pronounced

23.02.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

(PADMA PANDEY)

MEMBER

(RAJESH K. ARYA)

MEMBER

The Director, Health and Family welfare, Chandigarh Admintration Chandigarh v. Nidhi Dhingra

Structured Summary of the Opinion: State Consumer Disputes Redressal Commission, U.T., Chandigarh (Appeals Nos. 135 & 137 of 2020)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent / Complainant (as set out in the complaint and relied on by the District Commission)

Opposite Parties No.1 & 4 (The Director, Health & Family Welfare, Chandigarh Administration; Dr. Purnima, Medical Officer‑Incharge, ESI Dispensary) — Appellants' contentions

Opposite Parties No.2 & 3 (Senior State Medical Commissioner, ESIC; Regional Director, ESIC) — Appellants' contentions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

The Director, Health and Family welfare, Chandigarh Admintration Chandigarh v. Nidhi Dhingra

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