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2019 DIGILAW 2432 (RAJ)

Srigopal Guchiya v. State of Rajasthan

2019-09-11

MOHAMMAD RAFIQ

body2019
JUDGMENT Mohammad Rafiq, J. - This writ petition has been filed by the petitioner Srigopal Guchiya assailing orders dated 21.08.2017 and 17.07.017 passed by Respondent No. 2 and 3 respectively whereby claim of the petitioner for reimbursement of medical expenses has been declined. 2. Mr. Jagdish Vyas, learned counsel for the petitioner submitted that the petitioner was working as Senior Clerk at Panchayat Samiti Phalodi and retired from services on 30.08.2000. He was issued PPO No. 49142 (R) and medical diary. The petitioner, who was staying at Phalodi, on 23.12.2016 suddenly felt severe pain in his chest and was immediately rushed to Jodhpur and admitted in Mathuradas Mathur Hospital, Jodhpur in Department of Cardioogy in the unit of Dr. Sanjeev Sanghvi. He remained under treatment there from 23.12.2016 to 27.12.2016 as indoor patient. During that period, he was subjected to angiography, which revealed that his heart was functional only to the extent of 20%. He was suffering from 'Coronary Artery Disease-Triple Vessel Disease' and required immediate Coronary Artery Bypass Grafting Surgery (CABG). Since the facility of this treatment was not available in Mathuradas Mathur Hospital, the petitioner was discharged on 27.12.2016 with the advise, "Adv. CABG Referred to higher centre for needful." 3. Learned counsel for the petitioner submitted that the petitioner, who was 70 years of age, immediately taken to Ahmedabad on the same day and was admitted in SAL Hospital on 28.12.2016 by his family members where CABG was done on 03.01.2017 on "on pump". Cardiothoracic Surgeon of the said hospital has issued a certificate to the petitioner on 17.02.2017, certifying, "70 yaers-old-male patient, Mr. Shre Gopal Guchiya, was suffering from Coronary Artery Disease-Tripple Vessel disease. Patient was admitted to SAL Hospital on 28/12/2016. Patient's position was critical. He was in need of life saving measures urgently. In Emergency Coronary Artery Bypass Grafting Surgery was done on 03.01.2017 on "On Pump". Patient was discharged on 11/01/17." Learned counsel submitted that the petitioner was discharged from that hospital on 11.01.2017. A total sum of Rs. 2,66,326/- was paid to the hospital towards operation and surgery charges, which is evident from Annexure-2. Thereafter, the petitioner approached the Treasury (Rural), Jodhpur and claimed reimbursement of medical expenses of Rs. 2,78,465/- towards the surgery and the medicines. A total sum of Rs. 2,66,326/- was paid to the hospital towards operation and surgery charges, which is evident from Annexure-2. Thereafter, the petitioner approached the Treasury (Rural), Jodhpur and claimed reimbursement of medical expenses of Rs. 2,78,465/- towards the surgery and the medicines. The petitioner also submitted an affidavit along with his claim disclosing the circumstances under which he was taken to SAL Hospital, Ahmedabad as also the aforementioned certificate issued by the hospital. However, the respondents, mechanically rejected the claim of the petitioner by stating that the same is not in consonance with the Rule 10(1) of the Rajasthan Civil Services (Medical Attendance) Rules, 2013 (for short 'the Rules of 2013') and that the petitioner had taken the treatment outside the State without proper reference and the treatment appears to have been taken in a planned manner. 4. Learned counsel for the petitioner submitted that after rejection of the claim of the petitioner, the petitioner again submitted a representation to the respondents but they again rejected the same vide communication dated 17.07.2017. The petitioner then submitted a detailed representation to the State Government on 21.08.2017 but of no avail. Therefore, the petitioner has approached this Court by way of filing present writ petition. Learned counsel for the petitioner, in support of his arguments, has relied upon the judgment of the Supreme Court in Shiva Kant Jha Vs. Union of India, (2018) AIR SC 1975 and judgments rendered by the Division Bench of this Court in The State of Rajasthan & Others Vs. Tikam Chand Maloo (D.B. Civil Special Appeal (Writ) No. 1124/2015 decided on 15.05.2018) and State of Rajasthan Vs. Mangal Singh Rajpurohit (D.B. Civil Special Appeal (Writ) No. 1549/2014 decided on 15.12.2018) wherein in similar circumstances, claim of reimbursement was allowed and the respondents therein were directed to pay the entire medical expenses incurred by the claimants therein. 5. Ms. Akshiti Singhvi, learned counsel appearing on behalf of the respondents opposed the writ petition and submitted that the petitioner has taken treatment from SAL Hospital, Ahmedabad without proper reference. She argued that in view of the mandate of Rule 10(1) of the Rules of 2013, reference ought to have been made by the Medical Board headed by the Principal of the Medical College concerned for treatment of the petitioner outside the State. Therefore, he is not entitled for any reimbursement. She argued that in view of the mandate of Rule 10(1) of the Rules of 2013, reference ought to have been made by the Medical Board headed by the Principal of the Medical College concerned for treatment of the petitioner outside the State. Therefore, he is not entitled for any reimbursement. In the present case, emergent situation for getting treatment from private hospital outside the State has not emerged as per Rule 11 of the Rules of 2013. Therefore, the respondents were perfectly justified in rejecting the claim of the petitioner. Case of the petitioner is not covered by Rajasthan State Pensioners Medical Concession Scheme, 2014, according to para 4 of which, the medical reimbursement can be made only when treatment was undergone out of State when such treatment was not available in the any of the Government Hospitals of State of Rajasthan or in emergent situation were such condition is proved by the certification of Principal of Medical College on approval of Medical Board, which was not obtained by the petitioner. Learned counsel in support of her arguments relied upon the judgment of the Supreme Court in State of Rajasthan Vs. Mahesh Kumar Sharma, (2011) 4 SCC 257 . 6. I have given my anxious consideration to rival submissions and carefully perused the material on record. 7. Cited judgment of the Supreme Court in State of Rajasthan Vs. Mahesh Kumar Sharma (supra) arose out of the Rajasthan Civil Services (Medical Attendance) Rules, 1970. Relevant Rule therein was Rule 6, pertaining to medical attendance and treatment outside Rajasthan and Rule 7, which pertained to treatment of a disease for which treatment is not available in the State. The Supreme Court in that case referred to its earlier judgment in State of Punjab Vs. Ram Lubhaya Bagga, (1998) 4 SCC 117 . However, the present case arises out of the Rules of 2013. In Shiva Kant Jha (supra), the petitioner was CGHS beneficiary having a CGHS Card valid for whole life for medical treatment in Private Ward. The petitioner therein submitted two sets of his medical bills under the CGHS for reimbursement on account of his treatment done in November, 2013 in the Fortis Escorts Hospital, New Delhi for Rs. 9,86,343/- for his cardiac ailments involving the implant of CRT-D device and two sets of bill amounting to Rs. The petitioner therein submitted two sets of his medical bills under the CGHS for reimbursement on account of his treatment done in November, 2013 in the Fortis Escorts Hospital, New Delhi for Rs. 9,86,343/- for his cardiac ailments involving the implant of CRT-D device and two sets of bill amounting to Rs. 3,98,097/- for his treatment at Jaslok Hospital, Mumbai for cerebral stroke and paralytic attack. The claim of the petitioner was rejected without informing him of the reasons of rejections. The petitioner directly approached the Supreme Court by filing writ petition under Article 32 of the Constitution of India contending that he being in late 70s of his age, needs money to meet the needs for his survival. The Supreme Court in para 9 of the Report took note of the fact that the 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. 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 resynchronization 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. Case of the petitioner therein was considered by Special Technical Committee in its meeting held on 29.04.2014 but it did not find any justification for implant of CRT-D device of the petitioner. On request of the petitioner, the matter was again reconsidered by the Special Technical Committee. 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 treatment at Jaslok Hospital. In those facts, the Supreme Court held as under: "12. With a view to provide the medical facility to the retired/serving CGHS beneficiaries, the Government has empanelled a large number of hospitals on CGHS panel, however, the rates charged for such facility shall be only at the CGHS rates and, hence, the same are paid as per the procedure. In those facts, the Supreme Court held as under: "12. With a view to provide the medical facility to the retired/serving CGHS beneficiaries, the Government has empanelled a large number of hospitals on CGHS panel, however, the rates charged for such facility shall be only at the CGHS rates and, hence, the same are paid as per the procedure. Though the respondent-State has pleaded that the CGHS has to deal with large number of such retired beneficiaries and if the petitioner is compensated beyond the policy, it would have large scale ramification as none would follow the procedure to approach the empanelled hospitals and would rather choose private hospital as per their own free will. It cannot be ignored that such private hospitals raise exorbitant bills subjecting the patient to various tests, procedures and treatment which may not be necessary at all times. 13. It is a settled legal position that the government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court. 14. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the Central Government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time-to-time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals. 15. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central Government employees and pensioners. In the facts and circumstances of the case, we are of the opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. In the facts and circumstances of the case, we are of the opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs.4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only." 8. In State of Rajasthan Vs. Mangal Singh Rajpurohit (supra), respondent was a retired employee of this Court, who upon diagnosis was declared as patient of dreaded deceased cancer (RLGVS). As per medical advice, he was treated in Government Hospital but without any improvement. He took treatment in private hospital where he incurred expenses of Rs. 1,12,551/-. However, only part of the medical expenses amounting to Rs. 22,038/- were reimbursed. He approached this Court by filing writ petition, which was allowed. State of Rajasthan filed appeal, which was dismissed by the Division Bench of this Court with the following direction: "It is not in dispute that the respondent-pensioner is entitled to get reimbursement of the claim for treatment taken in a private hospital in light of the Circulars issued by the State Government itself as such the point which remains to be decided in the present appeal is only to the limited extent of quantum of reimbursement to be allowed to the writpetitioner. In view of relevant Rules and the Circulars issued from time to time by the State of Rajasthan, entitlement of the writ-petitioner to get reimbursement is unquestionable. Moreover, in want of reasons, much less plausible reasons for slashing the total amount of medical bills, learned Single Judge has rightly concluded that impugned action of the State is not sustainable. Before us also, appellant State has miserably failed to show any justification about break-up for arriving at such a meager amount of entitlement of the respondent. Therefore, in totality, findings and conclusions of the learned Single Judge to concur with the afflictions of the writpetitioner, is based on sound reasonings warranting no interference in this intra-court appeal." 9. In the State of Rajasthan & Others Vs. Tikam Chand Maloo (supra), when similar writ petition was allowed by the Single Bench of this Court, State of Rajasthan preferred appeal which was dismissed by the Division Bench of this court. In the State of Rajasthan & Others Vs. Tikam Chand Maloo (supra), when similar writ petition was allowed by the Single Bench of this Court, State of Rajasthan preferred appeal which was dismissed by the Division Bench of this court. In that case, Tikam Chand Maloo, who was employee of Public Health and Engineering Department and working on the post of Lower Division Clerk, went with his family at Ahmedabad in June, 2011 after taking two days lave with permission to leave headquarter on account of summer vacation to meet his relatives. At Ahmedabad, he felt immense pain in his lower lip. After being diagnosed he was found to be suffering from malignancy of the lower lip and was advised by the concerned specialist to be immediately hospitalised so that operation could be performed as malignancy was in its initial stage but was likely to spread. He was admitted in HCG Medi-Surage Hospital, Ahmedabad on 27.06.2011 and after requisite tests, operation was performed on 30.06.2011. When he submitted medical bills for reimbursement, only part of that was accepted. Therefore, he approached this Court by way of filing writ petition, which was allowed by the learned Single Judge of this Court. The matter was then taken up before the Division Bench by the State of Rajasthan by filing appeal. The Division Bench dismissed the appeal filed by State. 10. In the case of Surjit Singh Vs. State of Punjab, (1996) 2 SCC 336 , the Supreme Court in identical situation gave verdict that the petitioner of that case while he was in England took treatment outside the country in emergent situation, therefore, he was held entitled for reimbursement of the medical expenses incurred by him. The Supreme Court held that the appellant of that case fell ill at in England and being emergency case was admitted to Dudley Road Hospital, Birmingham. After proper medical diagnosis he was suggested treatment at a named alternate place. He was admitted and undergone bypass surgery in Humana Hospital, Wellington, London. He claimed reimbursement for the amount spent by him. In the peculiar facts of that case it was held as infra: "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. In the peculiar facts of that case it was held as infra: "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 every thing. 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. 22. 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, bare- facedly, 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. 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." 11. In State of Karnataka & Another Vs. R. Vivekanand Swamy, (2008) 5 SCC 328 , the Supreme Court held as infra: "In a case of this nature, we are of the opinion, that having laid down the law for the future that claim for reimbursement must be made only in terms of the Rules and not dehors the same, and more so, when there is no power of relaxation, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct the States of Karnataka and Rajasthan to pay the balance amounts." 12. Furthermore, Division Bench of this Court in State of Rajasthan & Ors. Jawahar Lal Bohra, D.B. Special Appeal (Writ) No.1192/82014- decided on 15.05.2018, held as under:- "The aforesaid judgment loudly speaks that in the year 2004, when the writ-petitioner availed treatment at Asian Heart Institute, Mumbai, the judgment passed in the case of Surjit Singh (supra) was very much in existence and on the day on which his claim was rejected, the said judgment was in existence. The learned Single Judge has considered the Rules 6 and 7 of the Rules of 1970 so as to accept the prayer of the respondent/writ-petitioner because Bombay Hospital is included in Appendix II of the Rules of 1970 in which list of fourteen such hospitals are included. It is true that under Rule 6 of the Rules of 1970 only three hospitals are recognized situated at Delhi and 14 hospitals are recognized for the cases falls under Rule 7 but peculiar circumstances of this case and upon the fact that writpetitioner/respondent was admitted in the hospital near to his residence in emergent situation, it cannot be said that the learned Single Judge has committed any wrong so as to hold the respondent/writ-petitioner (late Sh. Jawahar Lal Bohra) entitled for reimbursement for the cost of his treatment equivalent to Bombay Hospital. In view of above, we see no reason to interfere in the judgment impugned and consequently the instant appeal is hereby dismissed. The appellant- State is hereby directed to comply with the directions issued by the learned Single Judge within a period of three months and reimburse the amount to the legal heirs of the original petitioner late Sh. Jawahar Lal Bohra." 13. In the present case, we find that facts which are not disputed are that the petitioner is more than 70 years of age; when he felt severe chest pain, he was rushed to Jodhpur and admitted in Mathuradas Mathur Hospital, Department of Cardiology in the unit of Dr. Sanjeev Sanghvi. He remained under treatment for the period from 23.12.2016 to 27.12.2016. During this period, he was subjected to angiography which revealed that his heart was functional only to the extent of 20%. He was suffering from 'Coronary Artery Disease-Triple Vessel Disease' and was advised Coronary Artery Bypass Grafting Surgery (CABG) immediately. It is common knowledge that in the case of this kind of heart disease, angioplasty is not advised and open heart bypass surgery is suggested as the treatment. It is also a fact that Emergency Coronary Artery Bypass Grafting Surgery of the petitioner was done on 03.01.2017 and that too on "On Pump", which is generally suggested for high risk heart patients. It was indeed a complicated surgery. It is also a fact that Emergency Coronary Artery Bypass Grafting Surgery of the petitioner was done on 03.01.2017 and that too on "On Pump", which is generally suggested for high risk heart patients. It was indeed a complicated surgery. The fact that the petitioner was discharged from Mathuradas Mathur Hospital, Jodhpur on 27.12.2016 and was immediately moved to Ahmedabad where he was admitted in SAL Hospital on the very next day, i.e. 28.12.2016, proves the bona fides of the petitioner that it was a case of emergency and looking to the age of the petitioner, such kind of complicated surgery was required immediately. 14. In view of above discussion, writ petition is allowed. The respondents are directed to reimburse the amount as claimed by the petitioner within the period of two months from the date copy of this judgment is produced before them.