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2015 DIGILAW 204 (RAJ)

Pradeep Kumar Bhardwaj v. State of Rajasthan

2015-01-22

SANDEEP MEHTA

body2015
JUDGMENT : The case involves a situation of extreme grief and misfortune befalling on one human being on account of greed of another. The petitioner’s only son Aditya Bhardwaj was travelling in a train to Mangalore in relation to his educational pursuits. While travelling, he was administered poison by some unknown persons and was victim of an act known in common parlance as Zahar Khurani. Co-passengers got him admitted at the Government Hospital, Mangalore on 5.10.2007. On receiving information, the petitioner reached Mangalore and as the boy was not responding to the treatment provided at the Government Hospital and remained in a coma, he was shifted to the Unity Hospital, Mangalore on 19.10.2007 as a life saving measure. The petitioner’s son passed away while undergoing treatment at the said hospital on 7.11.2007. The petitioner claims that he went into depression owing to the death of his only son and thus he could not submit the medical bills for reimbursement timely in the department. When the bills were submitted for reimbursement under the Rajasthan Civil Services (Medical Attendance) Rules, 1970 (hereinafter in short referred to as the Rules of 1970) the same were rejected on the ground that the treatment was undertaken in an unrecognized hospital outside State of Rajasthan and thus could not be reimbursed as per rules. Learned counsel for the petitioner contends that the facts of the case are exceptionally harsh and require that the technical objections with reference to the Rajasthan Civil Services (Medical Attendance) Rules, 1970 (hereinafter in short referred to as the Rules of 1970) should not be permitted to restrict or curtail the reimbursement of the medical expenses borne in the treatment of the petitioner’s son at Mangalore. He contends that it is undisputed that the petitioner’s son was a victim of poisoning while traveling in a train. He was found unconscious in the train and his co-passengers got him admitted at the Government Hospital. The petitioner reached Mangalore and waited for his son’s recovery by continuing the treatment at Government Hospital itself but the efforts proved unfruitful. He contends that no hospital at Mangalore is empanelled in the Schedule I of Medical Concession Rules. As such, the petitioner was having no option but to shift his son to the best possible private medical facility in Mangalore itself. He contends that no hospital at Mangalore is empanelled in the Schedule I of Medical Concession Rules. As such, the petitioner was having no option but to shift his son to the best possible private medical facility in Mangalore itself. However, the efforts to revive the petitioner’s son in the private hospital also failed and ultimately he passed away on 7.11.2007. The petitioner went into a state of shock by loosing his only son of young age did not even apply for reimbursement for a period of three years. The application for reimbursement was rejected by the communication dated 12.7.2010 Annexure-4 conveying that the Unity Hospital, Mangalore was not an authorized private hospital under the Rules of 1970, and therefore, the reimbursement of the medical expenses was not permissible. Learned counsel submits that in view of the fact that no empanelled/recognized hospital is available at Mangalore, the rejection of the petitioner’s claim for reimbursement is absolutely unjustified. He, therefore, prays that a sympathetic view deserves to be taken and the respondents be directed to reimburse the total medical bills of the expenses incurred in the treatment of the petitioner’s son at the Unity Hospital Mangalore. Learned Addl. Government Counsel appearing for the respondents submit that since the treatment of the petitioner’s son was undertaken in an unrecognized/non empanelled hospital outside the State, reimbursement of the expenses incurred therein is not permissible under the Rules of 1970. Heard and considered the arguments advanced at the bar. Perused the material available on record. The petitioner’s son was studying at the Sikkim Manipal University, Mangalore and was administered poison while travelling to Mangalore in train and became unconscious. Unknown persons admitted him at the Government Hospital, Mangalore. The petitioner is a resident of Jodhpur and at the time of his incident was posted at Pali. Upon being informed of the unfortunate incident. He reached Mangalore and as his son did not respond to the treatment provided in the Govt. Hospital, the boy was shifted in a comatose condition to the Unity Hospital, Mangalore where he passed away during treatment. On perusing the Rajasthan Civil Services Medical Attendance Rules, 1970 and the schedule appended thereto, it is evident that no private hospital at Mangalore is empanelled as a recognized hospital. Thus, evidently there was no option with the petitioner but to avail the best possible medical facility in the town. On perusing the Rajasthan Civil Services Medical Attendance Rules, 1970 and the schedule appended thereto, it is evident that no private hospital at Mangalore is empanelled as a recognized hospital. Thus, evidently there was no option with the petitioner but to avail the best possible medical facility in the town. It goes without saying that the situation in which the boy had to be taken to the private hospital was a situation of grave emergency as the patient was comatose. Rule 7 of the Rules of 1970 deals with the situations in which, reimbursement of the expenses of treatment undertaken at a hospital/institution outside the State is permissible. The Rule is quoted hereinbelow for the sake of convenience:- “Treatment of a disease for which treatment is not available in the State.-(1) A Government servant and the members of his family suffering from a disease for which treatment is not available in any Government hospital in the State shall be entitled to medical attendance and treatment to the extent indicated in sub-rule (2) of this rule in a Hospital/Institution outside the State recognized by the Government provided that it is certified by the Principal of a Medical College/Director of Medical & Health Services on the basis of opinion of the Authorised Medical Attendant to the effect that the treatment of a particular disease from which the patient is suffering is not available in any Government Hospital in the State and it is considered absolutely essential for the recovery of the patient to have treatment at a hospital outside the State. (2) The following charges/expenses shall be reimbursable:- (a) Cost (Including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other therapeutic substances reimbursable under these rules. (b) Sums actually paid to the Hospital/Institution on account of medical attendance and treatment including charges for surgical operations and ordinary nursing facility. (c) Travelling allowance for journey by rail/road from duty point at the station at which the patient falls ill to the place of treatment outside the State and back to a single fare of the class to which his classification entitles him under Rajasthan Travelling Allowance Rules. Such travelling allowance shall also be admissible for an attendant, if the Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel unattended and that an attendant is necessary to accompany the patient to the place of treatment and back. Such travelling allowance shall also be admissible for an attendant, if the Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel unattended and that an attendant is necessary to accompany the patient to the place of treatment and back. (3) The facility of medical attendance and treatment in the type of cases mentioned in sub-rule (1) can be had at any of Hospitals/ Institutions mentioned in Appendix 11. (4) For the purpose of reimbursement, the original receipts issued by such Hospital/Institutions and vouchers of medicines etc. shall be countersigned by the Authorised Medical Attendant of Government Hospital on whose advice the treatment outside the State was undertaken.” As per Clause (1) of the said rule, the Government servant and the members of his family suffering from a disease for which treatment is not available in any Government hospital in the State are entitled to medical attendance and treatment to the extent indicated in sub-rule (2) of the rule in a hospital/Institution outside the State recognized by the Government, subject to procurement of the requisite certificate from the Principal of Medical College/Director of Medical & Health Services. Obviously and undisputedly the treatment of the petitioner’s son was undertaken outside the State of Rajasthan because of an emergent unavoidable situation. The petitioner waited for the recovery of his son in the Government Hospital itself for a fairly long period of time. However, when the efforts proved unsuccessful, the boy was shifted to the private hospital as a life saving measure. The facts which have been narrated above clearly show that the case is squarely covered by the conditions set out in Rule 7(1) of the Rules of 1970. Looking to the peculiar facts and circumstances, it has to be held that treatment of the petitioner’s son was not possible in the State because he was admitted in a hospital at Mangalore having gone into coma after administration of poison. The petitioner’s son was administered poison by some miscreants while travelling in a train. The Constitution of India casts a duty on the State to protect life and liberty of its citizens. It is thus clearly a case wherein a citizen’s fundamental right of life enshrined in Article 21 of the Constitution of India was breached because the State failed to protect the life of its citizen who was travelling in a public transport system. It is thus clearly a case wherein a citizen’s fundamental right of life enshrined in Article 21 of the Constitution of India was breached because the State failed to protect the life of its citizen who was travelling in a public transport system. It is not in dispute that there is no recognized/empanelled private hospital at Mangalore. Procuring the certificate of the Principal of a Medical College/Director of Medical & Health Services under Rule 7(1) was neither feasible nor possible in view of the emergent situation in which the treatment was undertaken. As the place where the mishap occurred is far away from Rajasthan, to expect that the petitioner would go about procuring the certificate under Rule 7(1) of the Rules of 1970 while his son was struggling between life and death, apart from being unjust would also be inhumane and deplorable. As per Rule 7(2), the amount actually paid to the hospital is reimbursable in situations covered by Rule 7(1) of the Rules of 1970. As this Court has already concluded that the facts of the case clearly brings it within the purview of the conditions stipulated in Rule 7(1) of the Rules and since procuring the certificates from either the Principal of the Medical College/Director of the Medical & Health Services was not possible, the action of the petitioner in getting his son treated at the Unity Hospital, Mangalore was definitely justified because no empanelled hospital is admittedly available in that town. Looking to the situation that the patient was in a state of coma, it would not be reasonable to expect that family members in such a condition would attempt to take the patient to any of the recognized hospitals which have been enumerated in the Appendix-11. Expecting such an action from the family members would be extremely harsh, unreasonable and inhuman. As the boy was comatose, moving him from one city to another so as to avail the facility of a recognized hospital would virtually be impossible and risky as well. Thus, the facts & circumstances as available on record warrant that the reimbursement of medical expenses borne in the petitioner’s son’s treatment at the Unity Hospital, Mangalore should be directed to be made as per Rule 7(2) of the Rules of 1970. As a consequence, the writ petition deserves to be and is hereby allowed. Thus, the facts & circumstances as available on record warrant that the reimbursement of medical expenses borne in the petitioner’s son’s treatment at the Unity Hospital, Mangalore should be directed to be made as per Rule 7(2) of the Rules of 1970. As a consequence, the writ petition deserves to be and is hereby allowed. The communication Annexure-4 whereby the application for reimbursement of the medical bills to the tune of Rs. 1,93,848/-was rejected is quashed and set aside. The respondents are directed to make reimbursement of the bills submitted by the petitioner in accordance with Rule 7 of the Rules of 1970 forthwith but not later than two months failing which the amount shall carry an interest @ 9%. No order as to cost.