Shri. Mohan Lal Goswami vs . Union Of India & Ors.
2022 Latest Caselaw 452 Meg

     Serial No. 01
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                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

WP(C) No. 401 of 2018

                                               Date of Decision: 12.08.2022
Shri. Mohan Lal Goswami            Vs.          Union of India & Ors.
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :       Ms. P.D. Bujarbaruah, Sr. Adv. with
                                          Ms. M. Gogoi, Adv.
For the Respondent(s)             :       Mr. R. Debnath, CGC.

i)       Whether approved for reporting in                   Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                           Yes/No


                        JUDGMENT AND ORDER

1. The petitioner herein was a retired Junior Engineer in the

Department of Military Engineering Service. As a retired Central

Government employee, the petitioner is also covered by the Central

Government Health Scheme (CGHS) which entitles him to be reimbursed

for any medical treatment that he undergoes.

2. In the month of February 2018, the petitioner along with his son

went on a personal trip to Chennai. However, while in Chennai, he

developed serious urinary problem and was required to urgently go for

medical check-up. Being in great pain and discomfort, on 09.02.2018, he

was taken to the Apollo Hospital which is the nearest hospital from the

hotel where he was staying. In the out-patient department (OPD), the

attending doctor advised the petitioner to get all the necessary tests and

investigations done urgently which was done so on the next day, that is,

on 10.02.2018. On the basis of the results of the tests, he was diagnosed

to have left Renal Tumor with Renal Calculi and was advised for

immediate surgery. Accordingly, the petitioner was admitted to the

hospital on 12.02.2018 in the Urology Department and underwent surgery

procedure Laparoscopic left Radical Nephrectomy on 13.02.2018 and was

discharged on 15.02.2018.

3. According to the petitioner, the whole treatment process costs

him ₹ 2,63,294/- (Rupees two lakhs, sixty-three thousand, two hundred

and ninety-four) only. Being a holder of a valid Central Government

Health Scheme (CGHS) card, the petitioner had duly submitted his

medical reimbursement claim (MRC) in the prescribed form to the

appropriate authority on 09.03.2018 vide his letter dated 07.03.2018.

4. It is also the case of the petitioner that the respondent authorities

most illegally and arbitrarily by being hyper technical had settled the

medical reimbursement claim and paid the petitioner only a sum of ₹

33,384/- (Rupees thirty-three thousand three hundred and eighty-four)

only towards his claim as aforesaid.

5. The petitioner not being satisfied with the action of the

respondent authorities has caused issuance of a pleader's notice dated

30.06.2018 requesting the authorities to reimburse the full and actual

expenditure incurred for the actual treatment.

6. The respondents vide letter No. CGHS/ESH/HOSP/43/6261-62

dated 27.07. 2018 in reply to the said pleader's notice had informed the

petitioner that his medical claim was not entertained on the grounds stated

therein. It transpired that the case of the petitioner was re-scrutinized by

a Committee with the Additional Director as Chairman and three other

members and the Committee in its meeting held on 06.07.2018 had

rejected the claim of the petitioner mainly on the ground, inter alia, that

the treatment of the petitioner was not in the emergency life threatening

condition.

7. Again, the said Committee met on 13.07.2018 wherein the

petitioner was also present. The minutes of the meeting was circulated

vide letter dated 16.07.2018. Copy of the above-mentioned minutes along

with the Report of the re-scrutinizing meeting of 06.07.2018 were all

enclosed with the reply to the said pleader's notice.

8. The petitioner in his quest for justice which was allegedly

denied to him, has accordingly approached this Court seeking invocation

of the extraordinary writ jurisdiction for redressal of his grievances.

Hence this petition.

9. Ms. P.D. Bujarbaruah, learned Sr. counsel appearing for the

petitioner has submitted that the fact that the petitioner has been admitted

at the Apollo Hospital, Chennai on 13.02.2018 to undergo surgery has not

been denied. That the petitioner has to spend a sum of ₹ 2,63,294/-

(Rupees two lakhs sixty-three thousand, two hundred and ninety-four)

only has also not been challenged by the respondents.

10. The only dispute according to the petitioner is the non-

acceptance of the respondent authorities that the case of the petitioner is

an emergency one. The fact that the attending Physician who had

examined the petitioner at the hospital has advised that he should

undertake surgery at the earliest implies that there is an element of

emergency, submits the learned Sr. counsel.

11. It is also submitted that the Office Memo dated 28.05.2018

issued by the Government of India, Ministry of Health and Family

Welfare which provides for the relaxation in case of medical emergency

in excess medical reimbursement is applicable to the petitioner who is

clearly covered under conditions a(1) and b(iii) of the same.

12. Reference was also made to the case of Shiva Kanta Jha v.

Union of India in Writ Petition (Civil) No. 694 of 2015, wherein the

Apex Court has observed that right to medical claim cannot be deprived

merely because the name of the hospital is not included in the Government

order. The observations of the Apex Court at para 15 of the said case of

Shiva Kanta Jha, wherein it was mentioned that the decision shall be

confined to the said case, meaning that it shall not apply to any other case,

including the case of the petitioner is also not correct, submits the learned

Sr. counsel as the oblique reference was made only to the amount of ₹

4,99,555/- (Rupees four lakh ninety nine thousand five hundred and fifty-

five) only and not to the other findings and observations made in the case.

13. It is finally submitted that the case of the petitioner being a

genuine one as he had to undergo surgery on an emergency mode, as such,

he is entitled to reimbursement for the full amount spend for his treatment.

14. Mr. R. Debnath, learned CGC appearing on behalf of the

respondents-Union of India has submitted that there is no merit in the case

of the petitioner for which the same ought to be dismissed.

15. The learned CGC has admitted the fact that the petitioner had

gone to Chennai with his son in connection with some domestic matters.

It is also admitted that the petitioner had gone to the out-patient

department (OPD) at Apollo Hospital Chennai on 09.02.2018 and was

advised by the doctor to undertake necessary tests for which he did so on

10.02.2018. On being admitted at the said hospital on 12.02.2018, he

underwent surgery procedure being laparoscopy left Radical

Nephrectomy on 13.02.2018 and was discharged on 15.02.2018.

16. It is submitted that the claim of the petitioner for reimbursement

of a sum of ₹ 2,63,294/- (Rupees two lakh, sixty-three thousand, two

hundred ninety-four) only as medical claim was done so without

following due procedure and rules governing the same, particularly under

the Central Government Health Scheme (CGHS). However, to the extent

admissible, a sum of ₹ 33,384/- (Rupees thirty-three thousand three

hundred eighty-four) only was disbursed to him.

17. The learned CGC went on to submit that the case put forth by

the petitioner is that since it is an emergency situation, he could not have

got himself admitted into any of the empaneled CGHS hospitals.

However, the physical examination findings of the petitioner would show

that on 09.02.2018 as an OPD patient was NAD (Nothing Abnormality

Detected). In this regard, it is also noticed that the petitioner was not given

any medication or treatment from 09.02.2018 to 12.02.2018 (almost 72

hours) except for investigation and tests conducted on him, which clearly

shows that no emergency treatment was required during the relevant

period.

18. Reference was also made to the Office Memorandum issued by

the Ministry of Health and Family Welfare, Government of India being

No. Z.15025/38/2018/DIR/CGHS/EHS dated 22.05.2018 (Annexure-V

of the writ petition), the subject matter being 'Relaxation of Rules for

consideration of reimbursement in excess of the approved rates pertaining

to medical claims', wherein a provision is found dealing with the request

for full reimbursement only under certain defined criteria being seven in

numbers, however the relevant criteria as regard the case of the petitioner

would be the following:

"a (1) Treatment was obtained in a private unrecognized hospital under emergency and the patient admitted by others when the beneficiary was unconscious or severely incapacitated and was hospitalized for a prolonged period."

19. The learned CGC has also submitted that in view of the

complaint of the petitioner portrayed in the legal notice dated 30.06.2018,

the respondent authorities has convened an emergency meeting on

13.07.2018 to discuss the same. The convening order dated 12.07.2018

was also issued upon the petitioner for his attendance.

20. In the minutes of the said meeting held on 13.07.2018 (Annexed

by the petitioner as Annexure IV-G in the petition), apart from all the

concerned officials, the petitioner and his counsel Shri G.C. Choudhury

were also present. The relevant portion of the said minutes would be the

reading out by the Addl. Director of the categories of conditions as per

para a (1) to (7) of the Office Memorandum dated 22.05.2018 and upon

enquiry, the petitioner has admitted that his case does not fall under any

of the said seven categories, submits the learned CGC.

21. Therefore, in view of the categorical statement of the petitioner

that his case does not fall under any of the said seven categories, the case

of the petitioner not being an emergency case, he is accordingly not

entitled to be treated at any of the hospitals apart from those hospitals

empanelled under the CGHS and consequently, he is not entitled to the

claim made by him except to the extent as found admissible by the

respondent authorities, once again submits the learned CGC.

22. This Court has heard the parties and has also gone through the

petition and the affidavit-in- opposition including all the related rejoinder

and additional affidavits filed by the parties to bring on record the

pleadings of the parties and additional facts thereto.

23. However, in the opinion of this Court, the only point to be

considered is whether the case of the petitioner falls within the category

of 'an emergency case' and whether he would qualify for reimbursement

in excess of the CGHS rates?

24. Admittedly, there is no dispute that the petitioner has undergone

a surgical procedure for his related complaint at the Apollo Hospital,

Chennai which is obviously not one of the hospital empaneled under the

CGHS. The rules however provides that he may be reimbursed for the

actual amount spend only if it is proved that the procedure was carried on

an emergency mode and that the beneficiary was unconscious or severely

incapacitated and was also hospitalized for a prolonged period.

25. Records have shown that the petitioner went to the hospital on

09.02.2018, but was never admitted for treatment immediately on the

same day, instead he was asked to get some tests carried out which was

complied by him and was done on 10.02.2018 and 11.02.2018 since he

was then actually hospitalized on 12.02.2018. As contended by the

respondents, the criteria to qualify for an 'emergency' procedure is

usually within 24 hours, being critical hours. In the case of the petitioner,

this was not the case as even the physical examination on 09.02.2018 also

record a finding that 'nothing abnormality detected'. It was also

contended that even the expression 'severely incapacitated' would not

apply to the case of the petitioner as it would mean that at the time of

admission to the hospital, he has to be severely ill or gravely or even

critically ill with incapacitated meaning to be deprived of strength or

power or debilitated disabled, unfit, immobilized, paralyzed etc., which

was not so in the case of the petitioner.

26. The above factors being present, it has been demonstrated that

the treatment process of the petitioner is not one under emergency

conditions, hence under the relevant rules, he ought to have got himself

treated at one of the wellness centres recognized under the CGHS,

irrespective of the nature of his ailment as has been indicated by the

petitioner, even to the extent of the same being treatment required in the

case of removal of 'left renal tumor measuring about 5.8 cm with left PUJ

calculus measuring 1.9 cm' for which he was advised to undergo surgery

ASAP (As soon as possible) but not necessarily immediately.

27. Another telling factor going against the case of the petitioner is

that in the meeting held on 13.07.2018 which is a re-scrutiny committee

to reconsider the case of the petitioner in which he along with his counsel

are present, he has admitted that his case does not fall under any of the

seven categories found in the said Memorandum dated 22.05.2018

(supra). Though he has denied this fact at the hearing, yet the fact remains

that there was no representation or appeal for correction of the alleged

wrong admission preferred before the relevant authorities.

28. On an overall consideration of the case in hand, this Court is of

the considered opinion that the authorities concerned have not acted in

such a manner as regard the case of the petitioner herein, so as to convince

this Court that the same was done arbitrarily or illegally or in clear

violation of the fundamental and legal rights of the petitioner.

29. The case of Shiva Kant Jha (supra) relied upon by the petitioner

cannot be taken note of by this Court, primarily because the Hon'ble

Supreme Court has made it clear at para 15 of the same that the decision

made therein is to be confined only to the case under consideration.

30. This being the case, there is no merits in this petition, the same

is accordingly dismissed.

31. Petition disposed of. No costs.

Judge

Meghalaya 12.08.2022 "D. Nary, PS"