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2018 DIGILAW 1591 (RAJ)

Director, Pension & Pensioner Welfare Department, Jyoti Nagar, Jaipur Raj v. Nawal Kishor Pareek

2018-07-30

DINESH CHANDRA SOMANI, MUNISHWAR NATH BHANDARI

body2018
JUDGMENT 1. Heard on the application under Section 5 of the Limitation Act. 2. There is a delay of 84 days in filing appeal. 3. The application would be considered after considering merit of the appeal in view of the judgments of the Apex Court in the case of State of Haryana Vs. Chandramani, (1996) 3 SCC 132 and N. Balakrishnan Vs. M. Krishnamurthy, (1998) AIR SC 3222. The judgments aforesaid rule the issue for consideration of application for condonation of delay. The appeal should not be dismissed if the case has merit and otherwise delay is not such, which may defeat merit of the case thus consideration on the application would be made after considering merit of this case. 4. By this appeal, a challenge has been made to the order dated 24th November, 2017 passed by learned Single Judge on a writ petition preferred by the non-appellant. It was to seek reimbursement of medical charges incurred for Coronary Artery Bypass Grafting (for short "CABG"). In common parlance, it is known as Open Heart Surgery. 5. The petitioner-non-appellant's wife was initially admitted in SMS Hospital, Jaipur. She was discharged on 14th February, 2014. It was after finding her to be fit. The petitioner-non-appellant's wife then got admitted in Eternal Heart Care Centre & Research Institute on 16th February, 2014. After investigation, she was given surgery of CABG and a bill of Rs. 1,82,915.53/- (Rs. One Lac Eighty Two Thousand Nine Hundred Fifteen and Fifty Three Paisa only) was raised. The petitioner-non-appellant sought reimbursement of said amount but reimbursement of Rs. 41,000/- (Rs. Forty One Thousand only) was allowed. The petitioner-non-appellant thus preferred a writ petition. It has been allowed by learned Single Judge with the direction to allow medical expenses at the rate of SMS Hospital, Jaipur. In case same treatment is not available then at the rates provided by All India Institute of Medical Sciences, New Delhi (for short "AIIMS"). 6. Learned counsel for the appellant submits that direction for reimbursement of medical bills at the rate prescribed by SMS Hospital, Jaipur or AIIMS is without referring to the Rajasthan Civil Services (Medical Attendance) Rules, 2013 (for short "the Rules of 2013"). 6. Learned counsel for the appellant submits that direction for reimbursement of medical bills at the rate prescribed by SMS Hospital, Jaipur or AIIMS is without referring to the Rajasthan Civil Services (Medical Attendance) Rules, 2013 (for short "the Rules of 2013"). Learned Single Judge has given reference of the judgment of this Court when the Rules of 2013 were not existing, rather, the judgment aforesaid was given in reference to the earlier Rajasthan Civil Services (Medical Attendance) Rules, 2008 (for short "the Rules of 2008"). On the aforesaid ground itself, the impugned order deserves to be set aside. 7. The direction to reimburse the medical bills at the rate provided by the SMS Hospital, Jaipur or, alternatively, AIIMS is contrary to Rules 9 to 11 of the Rules of 2013. The Rules of 2013 provides four categories. The first category is of those who have taken treatment in government hospital. The second category is a government hospital outside the State. The third category is to referral hospital or recognised hospital and fourth category is unrecognised hospital within or outside the State in case of emergent circumstances. The fourth category is governed by Rule 11 of the Rules of 2013. As per the aforesaid Rule, reimbursement of treatment is as given under Appendix IX and Appendix XIII to the Rules. Learned Single Judge ignored aforesaid and issued directions not only in ignorance of the Rules but contrary to the rate prescribed therein. In view of the above, impugned order deserves to be set aside. 8. A reference of the judgment of this Court in the case of Jubeda Begum Vs. State of Rajasthan & Ors., SB Civil Writ Petition No.2322/2016 decided on 16th September, 2016 has been given. The Judgment aforesaid was upheld by the Division Bench in DB Special Appeal (Writ) No.1411/2016, Jubeda Begum Vs. State of Rajasthan & Ors. vide order dated 30th May, 2017. Therein, the Court has allowed reimbursement of medical bills at the rates provided in the Rules of 2013. This includes even the treatment taken from private unrecognised hospital in emergent circumstances. In the instant case, nothing is on record to show emergent situation so as to take treatment from unrecognised hospital but taking a liberal approach, reimbursement of amount was made at the rates given under Appendix XIII to the Rules of 2013. This includes even the treatment taken from private unrecognised hospital in emergent circumstances. In the instant case, nothing is on record to show emergent situation so as to take treatment from unrecognised hospital but taking a liberal approach, reimbursement of amount was made at the rates given under Appendix XIII to the Rules of 2013. It has wrongly been interfered by learned Single Judge thus the order under challenge may be set aside. 9. Learned counsel for the non-appellant supported the order given by learned Single Judge. It is submitted that Appendix IX and Appendix XIII do not provide rate for CABG treatment, therefore, it has been allowed at the rates provided by SMS Hospital, Jaipur or AIIMS, as the case may be. In view of the above, the appeal, preferred by the appellant, may be dismissed. 10. In the alternate, a prayer is made to apply Appendix X for reimbursement of amount of CABG On Pump for Rs. 55,000/-. 11. We have considered rival submissions made by learned counsel for the parties and perused the record. 12. We find that treatment taken by the petitioner-non-appellant is from unrecongised private hospital thus Rule 11 of the Rules of 2013 would apply and is quoted hereunder for ready reference : "11. Indoor Treatment in a private unrecognised hospital within the State and out side the State in case of emergent circumstances - The reimbursement shall be allowed to the extent prescribed in Appendix-IX & Appendix-XIII for the charges paid by a Government servant on account of medical attendance and treatment as indoor patient in private unrecognized hospital within the State or out side the State in case of grave emergency for life threatening diseases or in case of accident. The emergent nature of hospitalization in private hospitals has to be established by an affidavit of the employee supported by a certificate of the treating doctor. No follow-up treatment shall be allowed in the cases where the treatment has been undertaken in emergent circumstances." 13. The case of the non-appellant is covered by the Rule quoted above. The reimbursement of medical bills can be at the rate prescribed under Appendix IX and Appendix XIII of the Rules of 2013. Appendix IX does not provide rates for treatment of the type of surgery underwent by the non-appellant. Appendix XIII provides general rates for treatment and has been applied by the Government. 14. The reimbursement of medical bills can be at the rate prescribed under Appendix IX and Appendix XIII of the Rules of 2013. Appendix IX does not provide rates for treatment of the type of surgery underwent by the non-appellant. Appendix XIII provides general rates for treatment and has been applied by the Government. 14. The rate for CABG has not been provided under Appendix XIII of the Rules of 2013. It provides a general rate for surgery, which may be of any kind. The rate for CABG in the government hospital is provided in Appendix X and with Pump, it is Rs. 55,000/-. Appendix X is strictly not applicable to the case in hand but taking into consideration that Appendix XIII does not provide rates for the treatment in question but is general in nature and, therein also, the bill of medicine and drugs is reimbursable only @ of 50 per cent, we find reason to allow reimbursement of Rs. 55,000/- (Rs. Fifty Five Thousand only) against the bills, thereby, interference in the order of learned Single Judge is made. 15. The direction aforesaid has been given in peculiarity of the case and would not apply in general thus this order would not be treated as precedence. 16. Accordingly, the appeal is allowed in part. 17. The payment of remaining amount of Rs. 14,000/- (Rs. Fourteen Thousand only) would be made within a period of one month from the date of receipt of copy of this order. 18. In light of the consideration of merit of the case, we have considered the application under Section 5 of the Limitation Act by applying criteria given by the Apex Court in the cases of Chandramani and N. Balakrishnan . 19. Finding merit in the appeal, we find reasons to accept the application for condonation of delay, moreso when, there exits explanation and otherwise delay is only of 84 days. Accordingly, the application under Section 5 of the Limitation Act is allowed. The delay in filing appeal is condoned.