ORDER
The petitioner has filed the present petition being aggrieved by the action of the respondents, inasmuch as the medical expenses incurred towards the treatment of the petitioner's husband, amounting to Rs.9,02,403/-, have not been reimbursed in full, and only an amount of Rs.2,00,000/- has been sanctioned post treatment.
02. The facts of the case are that the husband of the petitioner Mr. Pankaj Joshi was an officer in the respondent No. 1 department serving on the post of Assistant Director of Industries/Manager. The petitioner was suffering from critical Renal ailment, thus he submitted an application for his voluntary retirement which was accepted vide order dated 30.09.2019. Before his retirement, the husband of the petitioner was serving on the post of Deputy Director in the respondent No. 1 Department at Bhopal in the year
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2017 and on account of Chronic Renal ailment, he was referred to Bombay Hospital Indore for kidney transplant by a duly constituted board of Gandhi Medical College, Bhopal as per reference letter dated 28.02.2017 and OPD slip (Annexure P/3). Accordingly, the Civil Surgeon-cum-Chief Hospital Superintendent, J.P. Hospital, Bhopal, being the competent authority under the provisions of the M.P. Civil Services (Medical Attendance) Rules, 1958, accorded sanction for the kidney transplant of the petitioner's deceased husband at Bombay Hospital, Indore, vide order dated 07.03.2017.
03. The competent authority then granted permission to the husband of the petitioner for organ transplant in terms of the provision of Human Organ Transplantation Act, 1994. It was also pointed out that the kidney transplantation be done at Bombay Hospital, Indore.
04. After sanction and permissions as referred above, the transplant of the kidney of the husband was done in the month of June, 2017, after which the petitioner submitted an application in the prescribed format for reimbursement of expenses incurred by him in the process of kidney transplantation to the tune of Rs.9,51,143/- and Rs.1,51,260/-. Pursuant to which, total sum of Rs.3,36,000/- was sanctioned for kidney transplant vide order dated 23.06.2017. A total payment of Rs.3,36,000/- was made to the petitioner, out of which Rs.1,36,000/- was an advance amount and Rs.2 lakhs for post operation. Unfortunately, the husband of the petitioner expired due to renal failure on 18.02.2022.
05. The office of CME vide its letter dated 07.12.2017 addressed to respondent No. 2 requested to forward the claim of the petitioner for
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reimbursement of a sum of Rs.9,02,403/- to the Director of Health Services, Bhopal. The petitioner submitted a representation on 11.12.2017 seeking reimbursement of the medical expenses; however, no action was taken thereon. Ultimately, vide letter dated 29.08.2018, the petitioner was informed that the entire amount could not be sanctioned, as the concerned committee had sanctioned only an amount of Rs.2,00,000/- in accordance with the package prescribed by the Government.
06. The learned counsel for the petitioner submits that capping the amount of medical reimbursement is no more res integra. In fact the Rule 4 of M.P. Civil Services (Medical Attendance) Rules, 1958 was considered by this Court in the case of Mukesh Tiwari vs. State of M.P. (2012) 3 MPLJ 447 in which this Court after considering the provisions of the said Rule and after taking into account the law as laid down by the Hon'ble Apex Court has concluded in para-12 that there can be no capping as the same would amount to supplanting the Rule 4 which cannot be permitted. He thus submits that in the facts of the present case, the petitioner deserves to be given the entire amount of medical expenditures as incurred by the husband of the petitioner while he was in service in his treatment of renal ailment.
07. Per contra, the learned counsel for the State submits that the expenses incurred by the petitioner was related to kidney ailment for which according to the competent committee, a package of Rs.2 lakhs has been sanctioned which has duly been paid to the petitioner. He further submits that in addition to Rs.2 lakhs, a sum of Rs.1,36,000/- was already paid to the husband of the petitioner as an advance. He thus submits that considering
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that the outer limit of expenditure was fixed by the competent committee i.e. the referral committee, no further amount is required to be paid to the petitioner, hence the petition being bereft of merit, deserves to be dismissed.
08. Heard the learned counsel for the parties and perused the case file.
09. From the documents enclosed along with the petition, it is clear that the competent authority has made referral for admission of the petitioner for kidney transplant in Bombay Hospital, Indore. The husband of the petitioner before taking treatment, has already taken due permission from each and every competent authority for his treatment. As such, the present is not a case where the treatment has been taken without prior approval of the competent authority. The only question involved in the present case pertains to the capping which has been done by the referral committee, the Hon'ble Apex Court in the case of Shivkant Jha vs. Union of India, AIR 2018 SC 1975 has considered this aspect in para 13 to 15 as under:-
"13. Further, the writ petitioner was admitted in emergency condition with complaint of breathlessness on 11-11-2013 in Fortis Escorts Health Institute, which was a non-empanelled hospital at the relevant time. He underwent angiography on 12-11-2013 which revealed diffused disease in left anterior descending coronary artery 50-60%. He had been implanted the CRT-D device (Combo) as part of cardiac resynchronisation therapy (CRT) on 12-11-2013. The hospital charged an amount of Rs 11,56,293 for the said treatment, out of which, an amount of Rs 10,70,000 was for the cost of the unlisted cardiac implant (CRT-D) and an amount of Rs 3,19,950 was paid by the insurance company directly to the hospital.
14. A Special Technical Committee meeting was held on 29-4-2014 to consider the case of the petitioner.
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However, on examining the same, the Committee did not find any justification for the implant of CRT-D device of the petitioner. On a further request by the petitioner, the Special Technical Committee again did not find any justification for the implant of CRT-D device on 10-7-2014. On a request for reconsideration by the petitioner, on 15-1-2015, the case of the petitioner was again reconsidered by the Special Technical Committee which denied the claim of CRT-
D.
15. The total expenditure incurred by the petitioner towards his medical treatment at Fortis Escorts Heart Hospital, Delhi was Rs 9,86,343 and at Jaslok Hospital, Mumbai was Rs 3,98,097, hence, the total amount claimed by the petitioner was Rs 13,84,440. Though the Special Technical Committee did not find the implant justified, the competent authority, keeping in view the emergency nature of the case of the petitioner, approved the reimbursement of implant as per AIIMs rate. Therefore, out of the total amount i.e. Rs 13,84,440, an amount of Rs 4,90,000 was paid to the petitioner on the direction of the authority and Rs 94,885 for the treatment at Jaslok Hospital. As per this Court's direction dated 1-2-2016 [Shiva Kant Jha Petitioner(S) v. Union Of India (S)., 2016 SCC OnLine SC 1752, wherein it was directed:"Ms Binu Tamta, learned counsel appearing for the respondent, seeks time to file the affidavit as regards the amounts due and payable to the petitioner within four weeks' time. Four weeks' time is granted for the same. In the meantime, we direct the respondent to pay a sum of Rs 3,00,000 (Rupees three lakhs only) to the petitioner, without prejudice to the rights and contentions of the respondent. The said payment shall be effected within two weeks from today. List the matter on 22-2-2016."] , a sum of Rs 3,00,000 has also been paid by the respondent. Hence, a sum of Rs 4,99,555 is the claim of the petitioner in the present writ petition."
10. This Court also while considering the provisions of Rule 4 of M.P. Civil Services (Medical Attendance) Rules, 1958 in the case of Mukesh
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Tiwari (supra), has considered the aspect whether by executive instructions, capping can be made contrary to Rule 4 of Rules, 1958 and after considering each and every aspects, has held in para 8 & 12 as under:-
"8. Be that as it may. Except what is provided under Rule 7, no capping in respect of the reimbursement of expenses for treatment availed by a Government servant in the hospital has been shown to be in the Rules. Expect that by way of instructions circulated vide F18- 58/2000/55/vishi/1, dated 15/20.03.2001 by the Medical Education Depart, providing the capping of medical reimbursement in case of Angiography of Rs.10,500/-, for Open Heat Surgery Rs.1,15,000/- and for Kidney Transplant Rs.1,92,000/-. Clause 2 of the said instruction stipulates that expenses exceeding the aforesaid amount shall be borne by the government servant.
12. Therefore, in the considered opinion of this Court executive instruction dated 15/20-3-2001, which put a capping on a maximum amount which has to be disbursed towards medical reimbursement was contrary to Rule 4 (1) and (2) of the Rules of 1958 will not be applicable as the same leads to supplanting of Rule 4 of Rules, 1958, if followed the operation of Rules is restricted."
11. Considering the above facts and the settled position of law, this Court is of the considered view that the respondents have incorrectly placed capping on the medical reimbursement on the claim of the petitioner which in view of the above position of law is not sustainable. As such, the petition is allowed. The respondents are hereby directed to reimburse the entire amount of Rs.9,02,403/- to the petitioner within a period of three months from the date of communication of this order.
12. Considering that the respondents are responsible for delay in
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(PAVAN KUMAR DWIVEDI)
JUDGE
payment and have made the petitioner to approach this Court, the petitioner shall be entitled to 6% interest on the entire amount from the due date till its payment.
13. With the aforesaid, the petition stands disposed of. soumya
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