Mr. P.R. Kanwar (Deceased) ... vs Union Of India (Uoi), The ...
2003 Latest Caselaw 1035 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. This writ petition was filed initially by one P.R. Kanwar, retired IRS. During the pendency of the writ petition P.R. Kanwar died. His wife was imp leaded as petitioner. She is also now 85 years of age staying in Old Age Home at Kapashera. The case of the petitioner is that late husband of the petitioner was a patient of chronic bronchities and asthama. In the year 1993 he was undergoing treatment at Safdarjung Hospital, New Delhi which is a Government Hospital and was attended by Dr. J.C. Suri, M.D., OPCD, Dsc B. Head of Pulmonary and Critical Care Medicine. The said Doctor diagnosed that the late husband of the petitioner was suffering from COPD with Chronic Respiratory failure and heart rate irregularities(ventricular estopics) due to significant nocturnal oxygen desaturation. The said Doctor recommended husband of the petitioner to take long term domicillary oxygen treatment for the proper control of his illness. The said certificate of recommendation is dated 24.4.93. As the husband of the petitioner was directed to life long oxygen treatment at home as he was under serious risk of life he procured oxygen concentrator with transformer. It is the case of the petitioner that oxygen concentrator was not available in India at that time especially but was imported and the said oxygen concentrator was purchased by the husband of the petitioner by mobilising all possible resources by spending Rs.56,100/- The said oxygen concentrator was purchased on 17.5.1993 at the lowest price along with transformer on 8.6.1993. A letter was sent to the respondent to reimburse the said amount incurred on the said oxygen concentrator. The said letter was not accepted by the Central Government Health Scheme (CGHS) officials as it was not in the prescribed form. Thereafter, appropriate form was filled when the respondent directed the late husband of the petitioner that a separate certificate from the specialist was to be furnished same was also furnished. On 31.8.1993 the respondent rejected the request for reimbursement. The respondent rejected the request of the husband of the petitioner on the ground that said oxygen concentrator was a hospital equipment. Thereafter, husband of the petitioner fell seriously ill in the year 1998. He was admitted in Geetanjali Hospital Nursing Home for one month. He paid Rs.10,000/- and addition to that he also paid Rs.9300/- and Rs.8700/- for maintenance of said oxygen concentrator on 12.7.98 and 24.5.99. The husband of the petitioner also spent Rs.4685/- in another hospital on 25.1.99 for various medical treatment. The total expenditure incurred on treatment was Rs. 34,685/- and the same has not been reimbursed by the respondent. I need not go into these amounts as counsel for the respondent says that these amounts will be reimbursed to the petitioner if already not reimbursed.

3. Counsel for the petitioner has contended that respondent is responsible to look into the health care facilities for Central Government Employees as per Central Services (Medical Attendance) Rule (2) (e) (ii) and (iii). The same is as under:

"(ii) The supply of such medicines, vaccines, sera or other therapeutic substances as are ordinarily available in the hospital;

(iii) the supply of such medicines, vaccines, sera or other therapeutic substances not ordinarily so available as the authorised medical attendant may certify in writing to be essential for the recovery or for the prevention of serious deterioration in the condition of Government servant except the items mentioned in Annexure."

4. It was contended before me by counsel for the petitioner that in view of the said specific Rules domicillary oxygen concentrator was excluded, therefore, it was not a prescribed appliance. Moreover essentiality certificate was also issued by Medical Attendant of Safdarjung Hospital, there was no reason for the respondent not to reimburse cost of said equipment on the ground that said equipment was a hospital equipment.

5. On the basis of the aforesaid rules it was argued by counsel for the petitioner that right to health is enshrined in right to life. When the rules of the respondent do not exclude oxygen concentrator, action of respondent by not reimbursing the amount which was spent by husband of petitioner is illegal. In support of her contention counsel for the petitioner has relied upon the decision of Supreme Court in Surjit Singh Vs. State of Punjab & Ors. , State of Punjab & Ors. Vs. Mohinder Singh Chawla etc. , Kuldip Singh Vs. Union of India , and judgment of this Court in B.R. Mehta Vs. Union of India & Ors. Narendra Pal Singh Vs. Union of India , T.S.Oberoi Vs. Union of India CW. 475/96 decided on 3.5.2002.

6. On the other hand, counsel appearing for the respondent has contended that oxygen concentrator was a hospital equipment. It was contended that long term oxygen facility can be provided by oxygen cylinders and CGHS has got provision for supply of oxygen cylinders and if such expenditures are allowed to be reimbursed then anyone can purchase any medical equipment and ask the Government to pay for the entire cost. It was contended that husband of the petitioner was entitled to be admitted in prescribed hospital for treatment and oxygen concentrator was purchased without any specific advice from the Government specialist. In support of his contention he has relied upon the decision of Supreme Court in State of Punjab & Ors. Vs. Ram Lubhaya Bagga etc. 1998 II AD (SC) 449, as well as judgment of this Court in M.L. Kamra Vs. Lt. Governor & Ors. All India Services Law Journal 82, 2003 (1),304.

7. I have heard counsel for the parties at length. The reason as stated in the counter affidavit for non reimbursement has to be looked into to decide the controversy in this regard. It is not disputed by the respondent that husband of the petitioner was a patient who was suffering from chronic respiratory failure and heart rate irregularities (ventricular ectopics) due to significant nocturnal oxygen desaturation. At page 12 of the paper book there is a certificate from Department of Pulmonary and Critical Care Medicine, Safdarjang Hospital issued by Dr. J.C. Suri who was Head of the Department. In the certificate it was specifically mentioned that late husband of petitioner was advised to take long term ( life long ) domicillary oxygen treatment for proper control of his illness. When specialist of the Government hospital who was not only head of the Department of Pulmonary and Critical Care Medicine but was also attending the husband of the petitioner recommended in view of the serious illness of the patient that he was to take domicillary oxygen treatment then how the respondent has substituted its own opinion that domicillary oxygen treatment could be taken in the hospital. At the outset, this exercise was irrational, arbitrary and without even understanding that domicillary oxygen treatment is to be given at home and not in the hospital. In view of the acute respiratory failure and heart rate irregularities on account of oxygen desaturation, a specialist has prescribed oxygen concentrator to be used at home that opinion could not have been substituted by non-medical persons sitting in their offices. The whole attitude reflects insensitivity of the administration in dealing with the citizen who had served Government in their earlier days. Supreme Court as well as this Court in catena of cases has observed that it is important to bear in mind that self preservation of one's life is necessary concomitant of the right to life enshrined under Article 21 of the Constitution of India which is fundamental in nature, sacred, precious and inviolable. In Surjit Singh's case, Supreme Court held that the importance and validity of the duty and right to self preservation has a species in the right of self defense in criminal law. Quoting from Garuda Purana, the Court held that every person has a right to take steps in self preservation. In this case husband of the petitioner after getting essentiality certificate from Head of the Department of the Government hospital was not to wait for the permission from the respondent to die. After obtaining the said essentiality certificate he made his best efforts to obtain the equipment at lowest price, it has not been denied that reimbursement sought for is on the higher side or the equipment was available at the lower price. In these circumstances, there was no justification to withhold the reimbursement by the respondent. Reliance placed by the counsel for the respondent on Ram Lubhaya's and M.L. Kamra's case is also misplaced. In Ram Lubhaya's case, Supreme Court held as under:

" No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India."

8. In this case neither there is any rule excluding oxygen concentrator for domicillary use pursuant to the Rule 2(e) (ii) and (iii) of Central Services (Medical Attendance) Rules 1944 nor such kind of equipment by expressed intention otherwise has been excluded. In such an eventuality even reliance placed on M.L. Kamra's case is misplaced. As a matter of fact, instructions were issued by Government of India with concurrence of the Department of Personnel and Administrative Reforms vide their U.O. No. 432/Pension Unit/85 dated 27.2.1985 (G.I.M.H.F.W. Memo No. 140181/1/85-MS, dated 31st May, 1985. Paragraph 27 of said instructions is reproduced below:

"Cost of medical equipments for treatment.- The undersigned is directed to say that reimbursement of the cost of various artificial appliances including the cost of Heart Pace Maker and replacement of pulse generator, cost of replacement of diseased Heart Valves, artificial Electronic Larynx, artificial Hearing Aid is already within the purview of the delegated powers except in the case of initial supply for which the approval of DGHS is necessary. It has now been decided in supersession of all previous orders on the subject, that these powers be delegated to the administrative Ministries/Departments even in cases of initial supply once the instrument/equipment is prescribed by the specialist in a Government/recognised hospital.

9. From the perusal of the aforesaid paragraph it is clear that even in executive instructions postulated reimbursement of cost of medical equipment by including the appliances like heart valves, pulse generator and hearing aid. Said list is not exhaustive. There is no reason why oxygen concentrator could not have been supplied by the respondent.

10. In view of the above non reimbursement of actual expenditure incurred by husband of the petitioner on obtaining domicillary oxygen concentrator is illegal. Therefore, a direction is issued to the respondent to reimburse cost of domicillary oxygen concentrator along with transformer and cost of maintenance within a period of eights weeks from the date of judgment. Petitioner shall be entitled to interest @ 9 per cent. Petitioner shall also be entitled to cost which is quantified at Rs.10,000/-.

11. Writ petition is allowed.

12. Rule is made absolute.