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Tripura High Court · body

2016 DIGILAW 117 (TRI)

Anita Ghosh (Roy) v. State of Tripura

2016-05-26

S.C.DAS

body2016
JUDGMENT : The petitioner, a house wife, dependent on the income of her husband, a petty shop keeper, having monthly income of Rs.5000/-from all sources, fell ill at her residence at Jatrabari, P.S. Bodhjungnagar, District West Tripura and she attended Ranirbazar Primary Health Centre of her locality on 06.10.2014 wherefrom she was referred to I.G.M. Hospital on that day itself. She was suffering from severe headache and reeling of head. In the I.G.M. Hospital she was referred to the surgery OPD and on 09.10.2014 CT scan of head was done and it was found that she was having with well defined hyper dense lesion in right perisylvian region with suggestion for further evolution to rule out possibility of aneurysm/hemorrhage. The petitioner thereafter attended Agartala Govt. Medical College ( for short, AGMC) with severe headache and vomiting on 10.10.2014 and on that day she was referred to SSKM Hospital, Kolkata/R.N. Tagore International Institute of Cardiac Sciences (RTIICAS) for further investigation and treatment since the required treatment was not available at AGMC. 2. It is the case of the petitioner that on 10.10.2014 itself, the petitioner was taken to RTIICS at Kolkata and she was admitted in the hospital. Some investigation was carried out at a cost at Rs.30,500/and it was advised that she would require to undergo surgical intervention for removal of right middle cerebral artery bifurcation and giant aneurysm and the cost would be involved about Rs.10 lakhs. The petitioner’s husband was not in a position to arrange such a huge amount and so her husband took her to the National Institute of Mental Health and Neurosciences (NIMHNS), Bangalore and she was admitted in the hospital on 18.10.2014. Some investigations again were made at the cost of Rs.10,727.84 and thereafter the petitioner was given option of either Neurological intervention or surgery and her husband was informed by the doctor that the cost of treatment would be around Rs.10 lakh. Since the petitioner’s husband was not in a position to arrange such huge amount, she got discharge from the NIMHNS hospital and thereafter went to Christian Medical College (for short CMC), Vellore on 11.11.2014 and in that hospital, the treatment of right frontal craniotomy and clipping of the aneurysm was done on 21.11.2014. Thereafter she was discharged on 01.12.2014. She made payment of Rs.1,96.322/at CMC, Vellore for her treatment. The petitioner contended that the State Govt. Thereafter she was discharged on 01.12.2014. She made payment of Rs.1,96.322/at CMC, Vellore for her treatment. The petitioner contended that the State Govt. formulated a scheme namely Tripura Health Assurance Scheme for Poor and issued certain guidelines by Memo dated 06.08.2014 (Annexure P/7 to the writ petition) with the objective of rendering financial assistance to the poor families of Tripura for critical care, hospitalization, surgeries, etc. It is the claim of the petitioner that as per that scheme she is entitled to get Rs.1.5 lakh for the treatment she had undergone at CMC, Vellore. She submitted bill seeking reimbursement with a prayer to make payment but the respondent No.3 by writing letter dated 09.02.2015 (Annexure P/10 to the writ petition) declined to make any reimbursement of the bill stating that it was not permissible. The petitioner, therefore, prayed for directing the respondents to provide her financial assistance in terms of the guidelines of Tripura Health Assurance Scheme for Poor (for short, THASP) dated 06.08.2014 and also prayed for quashing and cancelling Memo dated 09.02.2015 issued by the Director refusing reimbursement. 3. Respondents by a common counter affidavit contended that to avail the benefit of THASP one has to follow the guidelines contained in the THASP and since the petitioner did not follow the guidelines at all her claim was not entertained. The Scheme prescribes for assistance in the particular Hospital on cashless basis and since the petitioner did not avail the Scheme according to the procedure as prescribed, her claim was rejected. The respondents, therefore, prayed for dismissal of the writ petition. 4. I have heard learned counsel, Mr. P. Roy Barman for the petitioner and learned State Counsel Ms. R. Purkayastha for the respondents. 5. Referring to the principle laid down by the Apex Court in the case of Paschim Banga Khet Mazdoor Samity & Ors. V. State of West Bengal & Anr., reported in (1996) 4 SCC 37 and Surjit Singh V. State of Punjab & Ors., reported in (1996) 2 SCC 336 , learned counsel, Mr. Roy Barman submitted that right to health is a fundamental right as guaranteed under Article 21 of the Constitution of India. The State of Tripura has the constitutional obligation and duty to ensure proper healthcare to the petitioner who is a poor citizen of the State. Roy Barman submitted that right to health is a fundamental right as guaranteed under Article 21 of the Constitution of India. The State of Tripura has the constitutional obligation and duty to ensure proper healthcare to the petitioner who is a poor citizen of the State. Since the facility of treatment was not available in the State and the Medical Board referred her outside the State and so, it is the obligation of the State to make payment of the cost of treatment to the petitioner in view of the law laid down by the Apex court in Paschim Banga Khet Mazdoor Samity (supra). He has submitted that the petitioner had no scope to approach the authority and on the very date of reference itself, the petitioner left for Kolkata with her husband for treatment since it was very urgent and under such situation it was not possible for the petitioner to approach the authority according to the guidelines of the THASP. He has candidly submitted that procedure is a handmade to serve the object/purpose of the scheme and since the life is larger than rules and procedure, the petitioner should be given the benefit of the scheme though procedure cannot be said to have been complied in strict sense. The procedure has been incorporated only to sub serve the purpose and since it is not disputed that the petitioner is otherwise entitled to avail the benefit of the scheme she should be allowed reimbursement of the amount as per the scheme admissible to her. 6. Learned counsel, Ms. Purkayastha, on the contrary, submitted that welfare State made a scheme to assure the health services to the poor people and for that purpose the welfare Govt. made certain procedure for availing the benefit. Once that procedure has not been followed, the petitioner cannot be given the benefit and if such benefit is allowed by the Court, it will amount to formulating a different scheme than that of the scheme formulated by the welfare Govt. 7. Both the petitioner as well as the respondents placed on record a copy of the guidelines of THASP, dated 6th August, 2014. Para 2, 3, 4, 5 and 6 of the scheme are very relevant for decision which read as follows: “2. 7. Both the petitioner as well as the respondents placed on record a copy of the guidelines of THASP, dated 6th August, 2014. Para 2, 3, 4, 5 and 6 of the scheme are very relevant for decision which read as follows: “2. Objective of the Scheme: The objective of the scheme is to provide financial assistance to the poor families of Tripura for critical care, hospitalization, surgeries and therapies for identified diseases in pre empanelled hospitals on cashless basis. Tripura is located in remotest part of the country. People of the state have to travel long distances to avail advanced procedures by spending huge out of pocket expenses. Medical expenses are one of the key drivers for increasing poverty among the families in the state. Therefore, the scheme is envisaged with a view to provide assistance to the poor people of Tripura to meet the cost for critical care diseases and to reduce out of pocket expenses. 3. Coverage and Eligibility: The Scheme will cover all the families of Tripura whose annual income is less than Rs.1,50,000/(Rupees One lakh fifty thousand only). A family includes legal spouse, unmarried children upto the age of 25 and dependent parents. The scheme covers upto five members of a family on a floater basis. Names of family members should be on the ration card issued by the Government of Tripura. An eligible beneficiary should be referred by the Medical Board to any of the preidentified hospitals in the country. Application for grant of assistance shall be made in the prescribed format with documentation. 4. Assistance to be provided: Under the scheme, financial assistance will be provided to a member of the eligible families for the following purposes: (i) For treatment towards the cost of approved medical procedure, subject to a ceiling of Rs.1.15 lakh per year per family on floater basis. (ii) Assistance towards journey from Agartala to the hospital and back for the referred patient upto a ceiling of Rs. 0.10 lakh. (iii) Assistance for treatment shall be paid directly to the hospital empanelled for the purpose for which the patient is referred on getting relevant details about the treatment. (iv) Financial assistance towards travelling will be paid in advance by Bank Draft or by direct transfer to the bank account indicated in the application as soon as the patient is referred by the Medical Board for treatment. 5. (iv) Financial assistance towards travelling will be paid in advance by Bank Draft or by direct transfer to the bank account indicated in the application as soon as the patient is referred by the Medical Board for treatment. 5. Procedure to be followed for getting assistance: For getting assistance under the scheme, either the patient or any of his/her family members shall have to submit an application in the format (given in Annexure-II) with relevant details addressed to the Director State Illness Fund. (i) The applications received shall be processed on priority and the empanelled hospital where the patient is referred for treatment shall be informed through email/fax for extending necessary treatment to the patient on his reporting there. A copy of the letter referring the patient to the empanelled hospital shall be handed over to the patient or his/her relative for reference. (ii) The list of hospitals along with terms & conditions shall be decided after following due procedure and hospitals agreeing to provide the treatment at the CGHS rates and for getting the payment by raising the bill from the government after the treatment process is completed. In the interim period, the facilities will be provided for treatment in the hospitals (list enclosed in Annexure-I) which were enlisted under the State Illness Assistance Fund. (iii) The empanelled hospital shall set up a separate counter and or designated person for patients referred by the Health Department of Government of Tripura. The empanelled hospital shall intimate necessary telephone number/counter where the referred patient shall report for getting the medical treatment. The empanelled hospital shall provide necessary healthcare facilities to the referred patient as per the agreement executed with the State Government. In case, the cost of procedure exceeds Rs.1.15 lakh, the fact should be indicated to the patient or his relative to obtain their consent to pay. Government of Tripura is not responsible for any excess amount beyond the agreed cost of procedure. (iv) The empanelled hospital shall have to send information indicating the healthcare facilities provided to the patient along with the bills to the Director of the scheme through email or Fax/MIS. This bill shall be verified and admissible amount shall be reimbursed to the hospital as per provision under this scheme. 6. (iv) The empanelled hospital shall have to send information indicating the healthcare facilities provided to the patient along with the bills to the Director of the scheme through email or Fax/MIS. This bill shall be verified and admissible amount shall be reimbursed to the hospital as per provision under this scheme. 6. Implementation of the scheme: The scheme shall be implemented through the Tripura State Illness Assistance Fund, a society registered under the Societies (Regulation) Act as per these guidelines and the earlier scheme will cease to operate. Assistance shall be approved by a Committee consisting of Minister, Health as Chairman, Secretary, Health and Director of Health Services and Director, FW & PM as members.” 8. It is not disputed that the petitioner is covered within the category of poor people to avail the benefit of the scheme. It is an admitted position that the petitioner was suffering from a disease treatment of which was not available in Tripura and therefore, she was referred to SSKM Hospital/RTIICS, Kolkata. 9. The petitioner contended that she attended RTIICS on 10.10.2014 and thereafter NIMHNS on 18.10.2014 and it is the case of the petitioner that for the required surgery in both the hospitals huge amount was demanded which her husband could not provide and therefore, ultimately she went to CMC, Vellore on 11.11.2014 and surgery was made there on 21.11.2014 and she spent an amount of Rs.1,96,322/in that hospital. 10. It is an admitted position that the petitioner submitted a bill to the respondents seeking reimbursement of the amount and the bill was pending for which husband of the petitioner on 21.01.2015 submitted an application to the Secretary, Health and Family Welfare but ultimately the prayer of the petitioner was rejected. 11. The Supreme Court in the case of Paschim Banga Khet Mazdoor Samity (supra) has observed that in a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the Government in a welfare State. Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail all those facilities. Article 21 imposed an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail all those facilities. Article 21 imposed an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Court has further observed that it is a constitutional obligation of the State to provide adequate medical services to the people to preserve human life. Whatever is necessary for this purpose has to be done. The State cannot avoid its constitutional obligation in that regard on account of financial constraints or otherwise. In Para 16 of the judgment the Supreme Court has observed thus: “16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See : Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. It is necessary that a timebound plan for providing these services should be chalked out keeping in view the recommendations of the Committee as well as the requirements for ensuring availability of proper medical services in this regard as indicated by us and steps should be taken to implement the same. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated 2281995 and the further directions given herein.” 12. The State of West Bengal alone is a party to these proceedings. Other States, though not parties, should also take necessary steps in the light of the recommendations made by the Committee, the directions contained in the Memorandum of the Government of West Bengal dated 2281995 and the further directions given herein.” 12. In the case of Surjit Singh (supra), the Supreme Court has observed that self-preservation of one’s life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self-defense in criminal law. Centuries ago thinkers of India conceived of such right and recognized it. We may gainfully refer here Para 11 and 12 of the judgment which read as follows: “11. It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self-preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to verses 17, 18, 20, and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: 17 Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit. 18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje Vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life. 20. Sharirarakshanopaayaah Kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. *** 20. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasent to himself, who else will do it? Therefore one should do what is good to himself. 12. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. *** 20. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati If one does not prevent what is unpleasent to himself, who else will do it? Therefore one should do what is good to himself. 12. 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 manning and assembling of which, barefacedly, 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 recognised 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 15 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 costs.” 13. The petitioner, in the case at hand claimed benefit of THASP. No doubt it is the obligation of the welfare State to ensure medical treatment of all its citizens. The petitioner is well covered under the scheme. A bare reading of the guidelines of the scheme clearly reveals that the State Govt. The petitioner, in the case at hand claimed benefit of THASP. No doubt it is the obligation of the welfare State to ensure medical treatment of all its citizens. The petitioner is well covered under the scheme. A bare reading of the guidelines of the scheme clearly reveals that the State Govt. has some pre empanelled hospitals and the benefit should be given on cashless basis i.e. the amount to the extent of Rs.1.5 lakh should be paid to the particular pre empanelled hospital in which the petitioner was referred and she undergone treatment. The scheme also prescribes that for getting the assistance under the scheme either the patient or any of his/her family members shall have to submit an application in prescribed format with relevant details addressed to the Director, State Illness Assistance Fund. Admittedly, the petitioner did not make any such application. On the date of reference itself i.e. on 10.10.2014, the petitioner with her husband left for Kolkata for treatment. So there was no scope for her to make an application as per the scheme. Nothing is stated in the writ petition that the petitioner had no other relative or family members to make any such application on her behalf. No copy of the family ration card also submitted by the petitioner. She was referred on 10.10.2014. Thereafter she attended RTIICS, Kolkata and then NIMHNS at Bangalore. She ultimately attended CMC, Vellore on 11.11.2014, which means from the date of reference after about a month she attended CMC, Vellore and undergone treatment there when surgery was done. We cannot expect that the procedural aspect shall prevail over the purpose/object of the scheme but the procedure cannot altogether be ignored also. The scheme has provided ample scope to make application either by the patient himself/herself or by any family member. So, an application could have been made by any of the family member of the petitioner. It is stated by the petitioner in the writ petition that she left for the treatment taking loan from relatives and friends which means she had other relatives and friends who could make such application to avail the benefit of the scheme. So, an application could have been made by any of the family member of the petitioner. It is stated by the petitioner in the writ petition that she left for the treatment taking loan from relatives and friends which means she had other relatives and friends who could make such application to avail the benefit of the scheme. The scheme clearly prescribes that the treatment should be in the pre empanelled hospitals of the Government on cashless basis which means the payment should be made to the hospital directly by the authority and no reimbursement to be made to the patient. While the scheme has been formulated with a certain objective having certain guidelines, think it will not be appropriate for this Court to order reimbursement of the bill amount which will amount to rewriting of the scheme and in that case the guidelines of the scheme will be otiose. Once a welfare Government has formulated a beneficial scheme, it should be followed in strict sense. The petitioner is not ordinarily entitled to reimbursement of cost of medical treatment. The scheme prescribes that for certain treatment in empanelled hospitals payment will be made by the authority i.e. from the State Illness Assistance Fund which is a society registered under the Societies Registration Act, directly to the concerned hospital. 14. The petitioner being a poor citizen suffering from a severe ailment for which treatment was not available in the State. She is, therefore, entitled to get the cost of treatment which she somehow managed otherwise to save her life. It is the obligation of the State to secure all possible treatment to a citizen and since the facilities of such treatment was not available in the State, no doubt obligation goes on the shoulder of the State to give financial aid to the deserving patient. The petitioner no doubt failed to follow the guidelines but for that will it be proper to disentitle her from the amount which she would otherwise get had she followed the guidelines? The guidelines of the Para 6 of the Scheme shows that the assistance shall be approved by a committee consisting of the Minister, Health as Chairman, Secretary, Health and Director of Health Services and Director, FW & PM as members. The guidelines of the Para 6 of the Scheme shows that the assistance shall be approved by a committee consisting of the Minister, Health as Chairman, Secretary, Health and Director of Health Services and Director, FW & PM as members. Perhaps the committee consisting of such authorities will reconsider the case of the petitioner with a humane touch and as an exceptional case which may not be cited in future as an instance. The State has not disputed that the petitioner is not otherwise entitled to get the benefit of the Scheme and under such circumstances, I leave it to the wisdom of the committee of the State Illness Assistance Fund to reconsider the case of the petitioner with all humanity and in case such a consideration is made it shall not be applied as an instance in future. 15. The petitioner, if so desires, may approach the committee with a copy of this judgment within 30(thirty) days from today and if such an approach is made, the committee will reconsider the bill of the petitioner as an exceptional case with all humane touch and decide the matter at their wisdom within 45 days from the date of application. 16. With these observations, the writ petition stands disposed of.