Madras High Court
Dr.S.Prabha (Legal Heir Of ... vs The Principal Secretary To on 11 January, 2022
W.P.No.40892 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.01.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No. 40892 of 2015
S.Vadivelu
1. Dr.S.Prabha (Legal heir of deceased S.Vadivelu) ... Petitioner
Vs
1. The Principal Secretary to
Government of Tamil Nadu
Health and Family Welfare Department,
Secretariat,
Chennai - 600 009.
2. The Principal Secretary to Government,
Finance Department,
Secretariat,
Chennai - 600 009.
3. The Director of Medical and Rural Health Services,
DMS Campus, Chennai - 600 006.
4. The Director of Pension,
369 Anna Salai,
DMS Campus,
Chennai - 600 009.
5. United India Insurance Company Limited,
Chennai - 600 006. ... Respondents
1/13
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W.P.No.40892 of 2015
Writ Petition is filed under Article 226 of the Constitution of India, to
issue a writ of Certiorarified Mandamus, calling for the entire records of the
first respondent in G.O.M.S.No.171 of Finance (Pension) Dept dated
26.06.2014 and the consequential proceedings of the third respondent in
O.M.NO.819/KA P.1/3/2015 dated 19.08.2015 and quashing the same
insofar as the petitioner is concerned as being in violation of Article 300-A
of the Constitution and Article 14 of the Constitution and direct the first
respondent Government to reimburse the entire expenditure of Rs.1,82,700/-
(Rupees One Lakh Eighty Two Thousand and Seven Hundred Only)
incurred by the petitioner for undergoing prostate surgery in the Guest
Hospital, Poonamallee High Road, Chennai-600 010 on 24.12.2014.
For Petitioner : Mr.P.Chandrasekaran
For R1 to R4 : Mr.M.Rajendiran
Additional Government Pleader
For R5 : Mr.P.Sankara Narayanan
ORDER
The order impugned dated 19.08.2015 rejecting the claim of the writ
petitioner for medical reimbursement is under challenge in the present writ
petition.
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W.P.No.40892 of 2015
2. The petitioner is a member of the Medical Insurance Scheme. The
petitioner retired as Commissioner and Secretary to Government, Law
Department and receiving pension from the Pension Office, Chennai and his
PPO Numberis A96721. The petitioner underwent Prostate Surgery on
24.12.2014 at Guest Hospital, Poonamallee High Road, Kilpauk, Chennai-
600 010. The petitioner was admitted on 23.12.2014 and discharged on
27.12.2014. The copy of the discharge summary is also enclosed along with
the typed set of papers. The petitioner incurred an expenditure of
Rs.1,82,700/- for his treatment. The petitioner submitted an application for
medical reimbursement under the scheme along with the medical bills,
discharge summary, etc. However, the claim of the petitioner was rejected on
the ground that the hospital the petitioner had taken treatment is not
included in the list of approved hospital in the Government Order. Thus, the
petitioner is not entitled for medical reimbursement.
3. This Court is of the considered opinion that on certain medical
emergency, one cannot expect to verify the list of hospitals and get
themselves admitted. This apart, various specialized treatments are provided
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W.P.No.40892 of 2015
in number of hospitals and those hospitals are not in the list of approved
hospitals by the Government. In such circumstances, the Courts have
repeatedly held that the genuinity of the treatment is alone to be verified for
the purpose of medical reimbursement and not the hospital under which the
treatment is taken. In the event of restricting the claim, the rights of the
aggrieved persons are affected, and very purpose and object of the medical
reimbursement is to remove the medical expenditure. This being the very
purpose and object of the claim, merely on the ground that the hospital is not
listed in the Government Order, the claim cannot be rejected.
4. The legal principles in this regard were already considered by this
Court in W.A.No.2749 of 2018 dated 04.02.2019 and the relevant
paragraphs of the judgment are extracted hereunder :
"4. The Writ Court by order dated 13.02.2018 in W.P.
No. 22270 of 2017 noticed that Sudha Hospital at Erode,
where the Petitioner had undergone treatment, though had
not been included in the list of Network Hospitals at the time
of treatment, it was subsequently added in that list by G.O.
(Rt) No. 199, Finance (Salaries) Department dated
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W.P.No.40892 of 2015
21.03.2017. However, in view of the settled legal position as
reiterated in the judgments in S. Dhanalakshmi -vs-
Government of Tamil Nadu (Order dated 12.10.2015 in W.P.
(MD) No. 13159 of 2015) and N. Raja -vs- Government of
Tamil Nadu [2016 (3) CTC 394] passed by this Court, the
Writ Court held that in cases where the Insurance Company
cannot be held liable for having treatment in a Non-Network
Hospital, the Government Servant was entitled to his claim
settled by the State Government under the Tamil Nadu
Medical Attendance Rules. Accordingly, a direction was
issued to the First Respondent to consider the case of the
Petitioner and reimburse the medical expenses incurred by
him along with interest at the rate of 9% per annum from
16.03.2017 till reimbursement within a period of four weeks
from the date of receipt of copy of that order. Aggrieved
thereby, the First, Second and Fourth Respondents have
preferred this Appeal.
7. We are unable to countenance the submissions made
on behalf of the First, Second and Fourth Respondents,
particularly in view of the ruling of the Division Bench of this
Court in Star Health and Allied Insurance Company Limited
-vs- A. Chokkar [(2010) 2 LW 90], which has been followed in
India Healthcare Services (TPA) Limited -vs- K.
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W.P.No.40892 of 2015
Parameshwari, reported in CDJ 2017 MHC 2213 and
Director of Pension -vs- B. Sarada, reported in CDJ 2017
MHC 7488. In the aforesaid decisions, the earlier Judgments
of the Hon'ble Supreme Court of India and this Court on the
subject have been extensively referred. It would suffice here to
refer to paragraphs 24 and 25 of the decision in Star Health
and Allied Insurance Company Limited -vs- A. Chokkar
[(2010) 2 LW 90], which read as follows :-
“24. In the present case, what we have to decide
is whether the State is bound to reimburse the claim,
whether the insurance company is bound to indemnify
the beneficiary for the claim made by him. As held in
the decisions referred to above, the insurance company
is strictly bound to strictly by the terms of contract and
cannot be asked to settle a claim which does not fall
within the terms of the contract and therefore the claim
made by the beneficiaries in respect of treatments that
were taken in a Non-Network hospital or for
reimbursement of the claim made the insurance
company is not liable. For this reason, the insurance
company had made it clear that only if the beneficiary
took treatment in a Network hospital they would settle
the claim and more importantly the facility itself is a
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W.P.No.40892 of 2015
cashless facility. The insurance company cannot pay
cash and if we issue direction to the insurance company
to reimburse the claim, we would be virtually re-writing
the contract which we are not entitled to.
25. The Tamil Nadu Medical Attendance Rules
(“the Rules” in short) clearly lay down the rules
regarding dependents and who is entitled to medical
concessions under the Rules. It also defines who is a
well to do person. The Rules lay down the manner in
which claims can be made. According to the learned
Advocate General, these Rules are still in force and
therefore when it is a claim not covered by the present
Insurance Scheme, the Government Servants have the
right to make their claims under the Rules. Therefore,
as regards Category-A, where treatment has been taken
in a Non-Network hospital, the insurance company
cannot be asked to cover the expenses, since the scheme
itself make the Network hospitals as intrinsic. However,
the Petitioner/Claimants were also not no remediless
and that is why we will issue directions to the claimants
to make an application under the Rules or go before the
Redressal Committee."
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W.P.No.40892 of 2015
8. The Hon'ble Supreme Court of India in Shiva Kant
Jha -vs- Union of India [2018 (5) MLJ 317], dealing with
unfair treatment meted out to Government servants for
medical reimbursement under similar provisions of the
Central Government Health Scheme, held in paragraphs 13,
14 and 15 as follows :-
“13. 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 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.
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W.P.No.40892 of 2015
14. 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
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W.P.No.40892 of 2015
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.
15. 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
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W.P.No.40892 of 2015
consideration. The doctors did his operation and had
implemented 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.”
5. In view of the legal principles enunciated, this Court is of the
considered opinion that the impugned order is not in consonance with the
settled principles of law. Accordingly, the impugned order passed by the
third respondent in letter O.M.No.819/KA P.1/3/2015 dated 19.08.2015 is
quashed. The respondents are directed to settle the medical reimbursement
claim of the writ petitioner as per his eligibility within a period of twelve
weeks from the date of receipt of a copy of this order.
6. With these directions, the Writ Petition is allowed. No Costs.
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W.P.No.40892 of 2015
11.01.2022
Internet : Yes / No
Index : Yes / No
Speaking order / Non-speaking order
nti/Raja
S.M.SUBRAMANIAM, J.
nti/Raja
To
1. The Principal Secretary to
Government of Tamil Nadu
Health and Family Welfare Department,
Secretariat,
Chennai - 600 009.
2. The Principal Secretary to Government,
Finance Department,
Secretariat,
Chennai - 600 009.
3. The Director of Medical and Rural Health Services,
DMS Campus,
Chennai - 600 006.
4. The Director of Pension,
369 Anna Salai,
DMS Campus,
Chennai - 600 009.
W.P.No. 40892 of 2015
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W.P.No.40892 of 2015
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