Capt. N.C. Jain vs Air India Ltd. & Anr.
2013 Latest Caselaw 5457 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of Decision: 26.11.2013

+               WP(C) No.5569 of 2012 & CM No.11360 of 2012

CAPT. N.C. JAIN                                         ..... Petitioner
                          Through:    Mr. K.K. Rohatgi, Adv.

                                       versus

AIR INDIA LTD. & ANR.                  ..... Respondents
               Through: Mr. Mukesh Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                     JUDGEMENT

V.K.JAIN, J. (Oral)

The petitioner before this Court is a retired employee of the respondent-Air India Limited and is entitled to avail the Medical Benefit Scheme of Air India Limited, which covers not only the serving but also the retired employees of the said organization. The petitioner who is now aged about 68 years was examined in Tata Memorial Hospital and found to be suffering from Carcinoma Prostate. He underwent surgery on 23.3.2007, followed by post operative External Radiation Therapy from 20.10.2008 to 4.12.2008. He was, however, advised to consult a Urologist for further management of urinary incontinence. The petitioner was then examined by Dr. T.B. Yuvaraja, Consultant Urologist at Kokilaben Dhirubhai Ambani Hospital & Medical Research Institute at Mumbai. It was found by the aforesaid doctor that he had moderate incontinence of urine. He was, therefore, advised to undergo

Male sling operation for the aforesaid problem. The approximate cost of the surgery was estimated at Rs.3.00 lakh which included Rs.1.7 lakh towards cost of the implant. The petitioner then went to a doctor in the Medical Services Department of Air India where the concerned doctor recommended issue of a letter to Kokilaben Dhirubhai Ambani Hospital & Medical Research Institute for admission for four (4) days under Dr. Yuvaraja of the said hospital. The petitioner accordingly underwent the surgery for implantation of male sling and a bill of Rs.2,66,322.00 was raised by the aforesaid hospital on NACIL - Air India & Indian Airlines. However, the respondent vide letter dated 24.1.2011 informed the petitioner as under:

"During the hospitalization, you underwent treatment for carcinoma prostate with urinary incontinence and American Urtheral Sling operation prosthesis was used.

We are now in receipt of the bill from the hospital for Rs.2,66,322.00 and would like to inform you that as the cost of American Urtheral Sling, the prosthesis is not reimbursable under the Empoyees Medical Benefit Scheme of Air India Ltd; you are requested to please clear the bill directly with the hospital and inform us accordingly to update our records.

We would also like to inform you that the issue of reimbursement of American Urtheral Sling was discussed once again by the members of EMBS/CMBS committee; who have opined that use of penile external clamp is more cheaper, simpler, non-invasive and widely used alternatives and thus use of imported prosthesis is not reimbursable under our laid down schedule of charges. The Executive Director - Medical Sciences concurs with the opinion of the Committee.

In light of above, I am directed to request you to please clear the bill towards your hospitalization directly with the hospital. We regret the inadvertent error in issue of reference letter by Dr. A.S. Khedkar, Asst. Chief Medical Officer."

It would, thus, be seen that the stand taken by the respondent in refusing to pay the bill for the aforesaid surgery of the petitioner was that penile external clamp, which was which a cheaper, simpler, non- invasive and widely used alternatives should have been resorted to instead of penile implant surgery which was a costly procedure and was not reimbursable under the Scheme.

2. I have perused the Medical Benefits Scheme of Air India Limited. Nowhere does the said Scheme exclude penile transplant Surgery. Clause 12 (b) of the aforesaid Scheme which applies to referrals outside the panel of Air India reads as under:

"12. (b) Referrals Outside: For the proper health care of employees, the company has appointed a panel of dental surgeons, other specialists, laboratories and institutions like nursing homes and hospitals. When required and specially when in-house facilities for such investigations/treatments are not available, the medical officer caring for the ailing employee will direct him/her for such services with referral notes clearly stating that the bill will be settled by the Company directly."

It would be seen from a perusal of the aforesaid clause that wherever required facilities are not available in-house, the Medical Officer attending the ailing employee is required to refer him to an outside facility, with a referral note stating therein that the bill will be settled directly by the Company. It was in terms of the aforesaid clause that the petitioner was referred to Kokilaben Dhirubhai Ambani Hospital & Medical Research Institute by the Medical Services Department of Air India. Though the letter which Air India issued to the aforesaid hospital is not available, a perusal of the bill issued by the said hospital which is available at page 46 of the paper book contains an endorsement

that it is to be paid by NACIL - Air India & Indian Airlines. This shows that the aforesaid letter did contain a commitment on behalf of Air India to make payment for the treatment of the petitioner in terms of the aforesaid reference. In any case the respondent has not placed on record a copy of the letter sent by it to Kokilaben Dhirubhai Ambani Hospital & Medical Research Institute in support of the contention that the contents of the said letter contained no commitment on the part of Air India to make payment for the surgery of the petitioner. Moreover even if it is presumed for the sake of arguments that the letter which Air India issued contained no such commitment, that would make no difference since the petitioner being a former employee of Air India and being entitled to benefits of the Medical Benefits Scheme applicable to its serving as well as retired employees, the respondents have to meet the cost of his treatment unless it is shown that the expenditure incurred on his treatment was outside the purview of the said Scheme. As noted earlier the Scheme of Air India contains no such exclusion.

3. As regards availability of a cheaper option, in the form of penile external clamps, a perusal of the letter dated 7.2.2011 issued by Kokilaben Dhirubhai Ambani Hospital & Medical Research Institute would show that Uninary Incontinence needs to be dealt with in two ways simultaneously (i) Management of Incontinence and (ii) treatment of the disease. The treatments available for management of the disease include external penile clamp. However, such clamp do not cure the disease, they only help in its management. The aforesaid communication further shows that for the management of incontinence the petitioner was advised the use of penile clamp initially along with the treatment process but after few days, he showed the symptoms of

skin irritation, tissue loss, inflammation, etc. and, therefore, use of penile clamps had to be discontinued and the petitioner was advised to use other devices such as Catheter and Absorbents. Even the aforesaid treatment adopted at various stages did not yield the desired result and surgery became the inevitable option for curing the disease of the petitioner. Thus, the surgery was undertaken as the last resort available to the doctors since other options did not yield the desired result. Even before surgery, the suitability of the petitioner was investigated by undertaking various investigations. Consequent to surgical implant the petitioner became fully continent and cured of his disease. Thus, in the opinion of the doctors which I see no reason to reject External Penile Clamp not being a cure for incontinence cannot be the only alternative available for each patient. Some patients may be able to lead a normal life by management process such as use of External Penile Clamp, Catheter and Absorbents, etc. but there may be patients who do not respond to such treatments and in their case the only option left with the doctors is to undertake surgery. It was in these circumstances that Advance Male Sling was implanted on the petitioner so as to enable him to lead a normal social and healthy life. The respondent-Air India has been wholly unresponsive, arbitrary and unreasonable in compelling the petitioner to deposit Rs.2.00 lakh with it by stopping his further medical treatment. As a result, the petitioner had to spend about Rs.41,109.00, towards his medical expenses.

4. For the reasons stated hereinabove, the respondent-Air India is directed to refund the amount of Rs.2.00 lakh which the petitioner was compelled to deposit with it within a week from today. The respondent shall also examine the claim of the petitioner for reimbursement of

Rs.41,109.00 and to the extent found admissible under the Scheme the aforesaid claim shall also be reimbursed to the petitioner within two (2) weeks from today. The petitioner shall be entitled to avail all the facilities of medical scheme which are available under the Medical Benefits Schemes of Air India.

The writ petition stands disposed of.

No orders as to costs.

NOVEMBER 26, 2013                                           V.K. JAIN, J.
b'nesh