ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI

Transcription

1 ARMED FORCES TRIBUNAL REGIONAL BENCH, KOCHI O.A.NO. 127 of 2015 WEDNESDAY, THE 16TH DAY OF NOVEMBER, 2016/25TH KARTHIKA, 1938 CORAM: HON'BLE MR. JUSTICE S.S.SATHEESACHANDRAN, MEMBER (J) HON'BLE VICE ADMIRAL M.P.MURALIDHARAN, AVSM & BAR, NM, MEMBER (A) APPLICANT: EX NK P.V.RAJAN, NO OF ARMY MEDICAL CORPS, SREYAS, CHIRAKKAL (RS) P.O., KANNUR DISTRICT, KERALA BY ADV.SRI.V.K.SATHYANATHAN VERSUS RESPONDENTS: 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW DELHI THE CHIEF OF THE ARMY STAFF, INTEGRATED HQ OF MOD (ARMY), D.H.Q. P.O., NEW DELHI THE MANAGING DIRECTOR, CENTRAL ORGANISATION (ECHS) ADJUTANT GENERAL'S BRANCH, IHQ OF MOD (ARMY), MAUDE LINES, DELHI CANTT THE REGIONAL DIRECTOR, REGIONAL CENTRE ECHS, NAVAL BASE, KOCHI THE OFFICER-IN-CHARGE, ECHS POLYCLINIC, C/O MILITARY HOSPITAL KANNUR, KANNUR, KERALA BY ADV.SRI. M.RAJENDRAKUMAR, SENIOR PANEL COUNSEL

2 OA No 127 of 2015 : 2 : O R D E R VAdm.M.P.Muralidharan, Member (A): 1. The Original Application has been filed by PV Rajan, Ex Naik No of Army Medical Corps, essentially seeking reimbursement from ECHS of the expenses incurred by him on the treatment of his wife. 2. Sri VK Sathyanathan, the learned counsel for the applicant submitted that the applicant and his wife are bonafide members of ECHS (Annexure A1). The applicant's wife who was suffering from Hypertension and Dyslipidemia was hospitalised in the year 2012 in Pariyaram Medical College, Kannur, an ECHS empanelled hospital. As investigations revealed renal failure, she was referred to Amrita Institute of Medical Sciences (AIMS), which is also a hospital empanelled by the ECHS (Annexure A2). In

3 OA No 127 of 2015 : 3 : view of the deteriorating condition of her kidney, she was eventually advised kidney transplantation. 3. The learned counsel further submitted that transplantation in AIMS is done only from first degree relative donors. Since the applicant could not arrange a first degree relative donor, he appealed to the respondents for sanction to carry out transplantation at Medical Trust Hospital, Ernakulam, which was forwarded by ECHS Polyclinic, Kannur for approval to MH Kannur (Annexure A5) and in turn to Command Hospital at Bangalore (Annexure A6). The learned counsel submitted that while no sanction was received even after the lapse of one year, a suitable donor was identified in the interim. The applicant's wife, whose condition had become critical, was admitted at Medical Trust Hospital in November 2014 and the transplantation was carried out.

4 OA No 127 of 2015 : 4 : 4. The applicant who incurred an expense of Rs.5,60,411 submitted his claim for reimbursement to ECHS (Annexure A7). The applicant was then advised by OIC ECHS at Kannur to submit his claim for reimbursement online also (Annexure A8), which he complied with. The applicant's claim for re-reimbursement was however rejected by the respondents stating that reimbursement of planned treatment in a non-empanelled hospital cannot be sanctioned (Annexure A9). The applicant thereafter submitted a further request through Station Headquarters to MD, Central Organisation of ECHS (Annexure A10). Once again the applicant was informed that since it was a planned treatment in a non-empanelled hospital, no sanction could be accorded for reimbursement of expenditure (Annexure A11). 5. The learned counsel for the applicant submitted that AIMS was the only empanelled hospital which was

5 OA No 127 of 2015 : 5 : capable of doing kidney transplantation. However as per their policy, only first degree relative donor is accepted. Therefore the applicant's wife whose condition was critical had to be treated at a hospital where other donors were also acceptable. It was with great difficulty that the applicant was able to obtain a donor and it was an emergency situation, as without transplantation the life of applicant's wife was in danger. The learned counsel further submitted that the transplantation was done after necessary approval of the Government Organ Transplantation Committee. The learned counsel therefore prayed that the respondents be directed to reimburse expenses incurred by the applicant for renal transplantation of his wife. 6. The respondents in their reply statement have submitted that the applicant and his wife are entitled for all treatment through ECHS. The applicant's wife was advised renal replacement and AIMS Kochi is the only empanelled

6 OA No 127 of 2015 : 6 : hospital under ECHS in Kerala for organ transplantation. However in that hospital, organ for transplantation is accepted only from relatives. The applicant's request for transplantation from a non-related donor to be carried out at Medical Trust Hospital was not approved by Command Hospital Bangalore in accordance with the existing rules. 7. The respondents further submitted that applicant's wife had been admitted to the Medical Trust Hospital on 04 November The admission was to be intimated to the nearest ECHS Clinic within 48 hours. However the applicant informed ECHS Poly clinic at Kochi only on 10 December 2014 which was well after the surgery on 13 November The claim submitted by the applicant was examined and rejected by the Central organization ECHS as per rules, in that planned surgery in a non-empanelled hospital, is not permitted. The applicant did not follow the procedures laid down for emergency

7 OA No 127 of 2015 : 7 : treatment and reimbursement (Annexure R1). 8. The respondents further submitted that kidney transplantation from a non-related donor was not approved by the concerned specialist at Command Hospital Air Force and the applicant had been intimated about the same. (Annexure R2). The respondents also submitted that the policy on obtaining prior approval has been promulgated by Central Organization of ECHS vide letter of June 2011 (Annexure R3) which was not followed. The respondents also submitted the norms laid down by Government of Kerala on human organ transplant (Annexure R4). 9. The learned counsel for the applicant, submitted that the Medical Trust Hospital where the transplantation was carried out had followed all the norms laid down by the Government of Kerala. The learned counsel for the applicant further submitted that while the respondents have

8 OA No 127 of 2015 : 8 : been insisting that he did not intimate them within 48 hours of surgery, he could not do so as he was looking after the needs of his wife in the hospital and could inform the ECHS only after his wife had recovered. The learned counsel therefore prayed that for this reason alone the applicant should not be denied reimbursement of expenses incurred. 10. Heard rival submissions and perused records. 11. During the course of the arguments Col KVR Varrier (retd) of the ECHS assisted the learned Central Government Counsel in clarifying policy issues pertaining to ECHS. The respondents also placed before us records pertaining to the treatment of applicant's wife and concerned policy directives of ECHS on reimbursement of expenses incurred for medical treatment. 12. It is not disputed that the applicant and his wife

9 OA No 127 of 2015 : 9 : are members of the ECHS and entitled for treatment through ECHS. It is also not disputed that the applicant had initially sought renal transplantation of his wife at AIMS, an empanelled hospital of the ECHS but had to resort to treatment in a non-empanelled hospital only because AIMS accepts organ donation only from relatives (Annexure A7/5). The essential objection of the respondents to the reimbursement is that the applicant carried out the surgery in a non-empanelled hospital without prior approval and that there are no provisions for reimbursement of a planned treatment if it is carried out in a non-empanelled hospital. 13. While the applicant has contended that the approval sought by him for organ transplantation at a nonempanelled hospital, was not responded to, the respondents have submitted that intimated about denial of approval. the applicant was A letter from the Command Hospital Bangalore in this regard was placed

10 OA No 127 of 2015 : 10 : before us. As observed the applicant was not accorded sanction for the reason that he was seeking transplantation from a non-related donor which was not admissible under Human Organ Transplant Act. 14. It is however observed that the guidelines for conducting organ transplantation in Kerala as promulgated by the Government of Kerala (Annexure R4), provide for donation from relatives as well as from non-relatives. Guidelines provide for an Authorisation Committee to evaluate a joint application from the donor and the recipient and for approval based on specified norms. There is no contention by the respondents that Kerala Government norms were not followed by the Medical Trust Hospital or the applicant. It is also not the contention of the respondents that they are not bound by the Guidelines of Government of Kerala.

11 OA No 127 of 2015 : 11 : 15. In an ideal situation the transplantation should have been carried out in an empanelled hospital from a related donor. As the applicant did not get a suitable donor from his relatives, a non-related donor had to be resorted to. Further, as the only empanelled hospital did not carry out transplantation of organs received from non-related donors, the applicant had to approach a non-empanelled hospital which evidently followed the norms prescribed by the Government of Kerala. While the applicant had sought prior approval to carry out the transplant in the nonempanelled hospital, no sanction was accorded for the reasons we have observed earlier. 16. The respondents have also submitted that, it was not an emergency situation. It is however observed from the policy guidelines at Annexure R1 that, acute renal failure is one of the emergencies listed. Further, the additional policy guidelines placed before us by the

12 OA No 127 of 2015 : 12 : respondents on processing of bills for reimbursement of expenses incurred in emergency treatment viz., Army Headquarters letter No.B/49773/AG/ECHS dated 05 February 2005 also indicate acute renal failure as one of the conditions of emergency. While we agree that a transplantation surgery is always a planned procedure, as a suitable donor has to be found, in the instant case the applicant did not have a near relative donor and getting a non-relative donor is evidently a chance. It could therefore be considered an emergency situation as the opportunity of getting a suitable donor has to be utilised without delay. Further, as observed earlier, apparently the norms laid down by the Government of Kerala for non-relative donors were followed. 17. Three policy letters placed before us by the respondents, Annexures R1 and R3 and the letter of 05 February 2005, only indicate procedures and policy on

13 OA No 127 of 2015 : 13 : processing of reimbursement. While it prescribes norms for dealing with emergency bills for non-empanelled facilities and talks of admissions to be indicated, more so within a period of 48 hours, there is nothing in the policy/rules placed before us to indicate that no sanction can be accorded for planned treatment in a non-empanelled hospital. As such we have observed that the surgery undergone by the applicant's wife could be considered an emergency. The policy on prior approval, (Annexure R3), as observed, pertains to availing of unlisted procedures/tests/implant which are not listed in CGHS rate list and obtaining prior approval by empanelled hospitals. The policy however clarifies that emergent or life saving treatment will not be denied on the plea that prior approval needs to be obtained. 18. While the applicant has not followed the norm of intimating the ECHS authorities within 48 hours, in our view,

14 OA No 127 of 2015 : 14 : as his wife was undergoing a major surgery like a renal transplant, without possibly much assistance from relatives or friends, it cannot be held against him to deny reimbursement due. Evidently there are prescribed rates such as those of CGHS/AIIMS, New Delhi with ceiling limits for various procedures and anything above that limit needs specific approvals. In our view, therefore, the applicant would be eligible for reimbursement of medical expenses incurred by him for renal transplantation undergone by his wife to the extent permissible by law. 19. In view of the foregoing, the Original Application is partly allowed. The applicant is directed to submit a fresh appeal with all necessary documents to the respondents for reimbursement of medical expenses incurred by him for kidney transplantation of his wife, within a period of one month from the date of receipt of a copy of this order. The respondents to consider the appeal

15 OA No 127 of 2015 : 15 : overlooking the non-obtaining of previous sanction, and grant reimbursement of expenses to the extent permissible by law, within a period of four months from the date of receipt of appeal, failing which the unpaid amount will carry simple interest at the rate of 8% per annum. 20. There will be no order as to costs. 21. Issue free copy to the parties. Sd/- sd/- VICE ADMIRAL M.P. MURALIDHARAN, JUSTICE S.S.SATHEESACHANDRAN MEMBER (A) MEMBER (J) an (true copy) Prl.Pvt.Secretary