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2018 DIGILAW 439 (GUJ)

Jayantilal Bhikhalal Shah v. State of Gujarat

2018-02-07

MOHINDER PAL

body2018
JUDGMENT : 1. The petitioner herein is a retired Government teacher. He retired from Vibhag High School, Dabhoi, District Vadodara. After his retirement, the petitioner suffered a heart attack in the year 1997 and took medical treatment as an indoor patient from 28.1.1997 to 11.2.1997 and remained admitted in the hospital. 2. It is the case of the petitioner that after suffering heart attack, he was required to take immediate treatment. As such, he took a flight for Banglore and got himself admitted in Wockhardt Hospital and Heart Institute, Bangalore. Although, his total expenditure was Rs. 1,38,776/-, however, he has applied for medical reimbursement of an amount of Rs. 78,000/- and has placed on record, photocopies of required medical bills etc. with the respondents. However, his medical claim came to be rejected by the respondents for the reasons that his claim was not covered by the Health and Family Welfare Department's Resolution dated 26.3.1999. 3. Aggrieved from this decision of the respondents, he approached the Commissioner, Lokprahari Department Office, Vadodara. The said department passed an order dated 25.8.2005, vide which, his medical claim for an amount of Rs. 1,38,776/- was allowed. It is the grievance of the petitioner that Commissioner, Lokprahari Department Office, Vadodara having decided in his favour, the respondents have failed to pay the medical reimbursement to the petitioner. Aggrieved from respondent's inaction, the petitioner has approached this Court by way of this petition. 4. After notice, respondents have contested this petition by filing reply, wherein, it has been stated that the case of the petitioner does not fall under the instructions of the State Government under Resolution dated 1.5.1997 and 26.3.1999, and as such, his case for medical reimbursement has been rightly rejected by the respondents. 5. Learned counsel for the petitioner has argued that the petitioner's health condition was a case of emergency and required specialized treatment, for which, the petitioner was required to be taken to Bangalore from where he underwent the treatment. It is further argued that immediately after the petitioner got recovered, he applied for medical reimbursement along with the photocopies of the bills as required under Rule 10 of the Medical Reimbursement Rules. However, his case for medical reimbursement has been wrongly rejected by the respondents while referring to the Resolutions dated 1.5.1997 and 26.3.1999 which were not applicable in his case. 6. However, his case for medical reimbursement has been wrongly rejected by the respondents while referring to the Resolutions dated 1.5.1997 and 26.3.1999 which were not applicable in his case. 6. On the other hand, learned AGP has reiterated the averments made in the reply and has submitted that petitioner has undergone angiography on 24.1.1997 and there was ample time with the petitioner to obtain necessary approval, before undergoing treatment, but he failed to do so. Under these circumstances, his claim has been rightly rejected by the respondents. 7. This Court has considered the submissions of both the sides. The fact that the petitioner was a retired government employee and has worked as a teacher, is not in dispute. He was suffering from heart ailment and on 28.1.1998 has to be taken to Bangalore for the purposes of open heart by-pass surgery. It is further the case of the petitioner that this was an emergency and there was no sufficient time with the petitioner to have obtained, prior permission of the concerned medical authorities before taking treatment. 8. Respondent State rejected the claim for the reasons that the petitioner was required to take prior permission from the officials of the Health Department, before undergoing treatment from a hospital which was not on the sanctioned list of the hospitals of the State of Gujarat. It is further their case that as treatment for open heart by-pass surgery was available in the State of Gujarat, the expenses incurred by the petitioner for treatment from a hospital which is outside the State of Gujarat, cannot be reimbursed. 9. It could be seen that initially the petitioner has claimed for reimbursement of Rs. 78,000/-, while the actual expenses incurred by him was much more i.e. Rs. 1,38,776/-. Almost, all the States in the country have calculated the minimum expenses in lumpsum which are incurred on hospitalizing for such treatments. It appears that State of Gujarat has fixed an amount of Rs. 78,000/- for this treatment. Once it is established that the petitioner had undergone the treatment, whether he has undergone this treatment from the Gujarat or outside the Gujarat, it must not be the concern of the respondents. It is a matter of will and faith of the person from where to take the treatment. Otherwise also, State has fixed the minimum expenses of Rs. Once it is established that the petitioner had undergone the treatment, whether he has undergone this treatment from the Gujarat or outside the Gujarat, it must not be the concern of the respondents. It is a matter of will and faith of the person from where to take the treatment. Otherwise also, State has fixed the minimum expenses of Rs. 78,000/- for this treatment, which has been claimed by the petitioner, though his actual expenditure is much more. 10. The State seems to have rejected the claim while referring to two reasons in their letter available at page 110 of the court record. One of the reasons, mentioned is that the petitioner has not taken prior permission before getting the treatment, and secondly, he has not applied within six months from the date of discharge from the hospital. 11. This Court is of the view that none of these conditions can be pressed into service, while rejecting the claim of the petitioner. Prior permission is only relevant, when the petitioner could be cured by any other treatment than open heart by-pass surgery. Further, it is known fact that things moves slow when it comes to the Government office. A patient is not expected to wait till his death so that he can get prior permission from the concerned authority before taking treatment from the hospital of his choice. These Rules are framed for the welfare of the society and are to be used liberally for their benefits. The authorities are not expected to adopt a wooden attitude and stick to technicalities while dealing with the human beings. Once the petitioner has applied for a minimum expenses of Rs. 78,000/-, there was no reason for the respondents to have rejected the claim of the petitioner once it was established that he has actually undergone the treatment of open heart by-pass surgery. 12. The second reasoning given by the respondents for rejection of claim of the petitioner pertains to the limitation. It is the case of the respondents that the petitioner has not applied for medical reimbursement within a period of six months from the date of treatment. This reasoning of the State to reject the claim is incorrect. First of all, six months are counted from the date the person resumes his duties after surgery. It is the case of the respondents that the petitioner has not applied for medical reimbursement within a period of six months from the date of treatment. This reasoning of the State to reject the claim is incorrect. First of all, six months are counted from the date the person resumes his duties after surgery. In the present case, the clause of resumption of duty may not be applicable because the petitioner was a retired government teacher. This Court is of the considered opinion that even if there was some delay in approaching the respondents for medical reimbursement, this could have been condoned keeping in view the nature of surgery and the place from where the petitioner has undergone the surgery. The petitioner might have spent sometime in collecting the bills and other records from the hospital at Bangalore, and therefore, there was some delay in approaching the respondents for medical reimbursement. Though respondents have rejected the claim while relying upon instructions of State Government dated 1.5.1997 and 23.3.1999, however, none of these instructions has been placed on record. This Court is of the considered opinion that such instructions may not come in the way of the cases when there is an emergency. The treatment of heart is always an emergency. Otherwise also, such instructions may have some relevancy if the petitioner was asking for advance before undergoing surgery, however here, he has undergone the surgery and then applied for minimum expenses that cannot be denied. 13. Learned counsel for the petitioner has also referred to two decisions of this Court passed in the cases of (1) J.V. Shah, Ex. Managing Director vs. State of Gujarat & Ors., reported in 2012(2) GCD 1374 (Guj) and (2) Hasmukhbhai N. Shah v. Commissioner of Health & Welfare Deptt. And another, reported in 2012(3) GCD 2122 (Guj). The facts of the aforementioned cases are similar to that of the case of the petitioner. It could be seen that in both the cases, the actual amount of medical expenses has been reimbursed. 14. The petitioner in the present case has claimed fix amount of Rs. 78,000/-, though his total expenditure incurred for the surgery is Rs. 1,38,776/- There are number of instances in which the actual amount spent on such treatment has been reimbursed with the intervention of the Apex Court. 14. The petitioner in the present case has claimed fix amount of Rs. 78,000/-, though his total expenditure incurred for the surgery is Rs. 1,38,776/- There are number of instances in which the actual amount spent on such treatment has been reimbursed with the intervention of the Apex Court. However, keeping in view the fact that the petitioner has only claimed the amount to the tune of Rs. 78,000/-, there is no reason to deny the same to the petitioner. This is particularly so when the decision of Commissioner of Lokprahari Department Office, Vadodara dated 25.8.2005 passed in Lokprahari Case No. 41/2004 has remained undisputed and has attained finality. 15. Accordingly, this petition is allowed. The petitioner is held entitled to reimbursement of Rs. 78,000/-. Since the amount has been withheld by the respondents for no fault of the petitioner, the petitioner will be further entitled to the interest of 9% from the date such amount fell due till the actual payment is made. The amount shall be disbursed to the petitioner within a period of 4 weeks from the date of receipt of the copy of this order. If the amount is not paid within a period of 4 weeks, the petitioner will be further entitled to the interest at the rate of 12% from such date the amount fell due till the actual payment is made. Rule is made absolute. 16. Learned AGP has requested for stay of this order, however, keeping in view the fact that this is a case of medical reimbursement, the petitioner is a retired teacher and he has undergone open heart by-pass surgery, and therefore, the request is declined.