Civil Writ Petition No.21480 of 2008 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: April 19, 2011 Rajeev Kumar Garg .....Petitioner VERSUS State Bank of Patiala & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.K.S.Dadwal, Advocate, for the petitioner. Mr.C.B.Goel, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner, a bank employee, is seeking reimbursement of the cost incurred by him for a Cochlear implant surgery of his son who is born 100% deaf and dumb. The adament- State Bank of Patiala continues to defy logic and law and also the instructions and the precedents to decline the claim of the petitioner. Even the humanitarian ground when pressed before the Bank has not made it to relent. Civil Writ Petition No.21480 of 2008 : 2 : When this case came up for hearing before the court on 24.2.2011, the fact that the son of the petitioner was born handicapped was noticed and so also the stand of the Bank that petitioner was not entitled to reimbursement of the cost of treatment. A peculiar facts in this case were impressed upon the counsel appearing for the Bank asking him to relent on technicalities to see if the case could be amicably resolved. The copy of this order was also supplied to the counsel for the respondent-Bank, who took time to have instructions, but ultimately only to return with a submission that Bank is prepared to reimburse 50% of the cost of the surgery. The counsel for the petitioner thereafter chose to make his submissions instead of accepting this offer. The facts as pleaded in the petition would show that the son of the petitioner, born on 20.5.2001 is 100% deaf and dumb. He was got medically examined at Dr.Ram Manohar Lohia Hospital, new Delhi and Dr.J.M.Hans recommended cochlear implant surgery. On enquiry by the petitioner, he learnt the expenses of surgery to be more than Rs.6.00 lacs. The petitioner approached the Bank for some advance. The respondent-Bank referred to a hospitalization scheme dated 2.5.2001 which did not clarify as to whether the cost of implanted items, like stunt/valve etc. inserted during the course of surgery could be reimbursed over and above the charges as permissible under the package. The matter was even examined at IBA Level. As per policy, the reimbursement of the cost of implanted items wherever these are provided in the hospital under the package may be considered at rates not exceeding those applied by AIIMS for the lowest paying subject to the maximum permissible under the Civil Writ Petition No.21480 of 2008 : 3 : Hospitalization Scheme. As per this scheme, 100% expenses could be reimbursed for the employees but only 75% in case of family members. The petitioner would also refer to a circular dated 29.11.2001 of State Bank of India, wherein the Cochlear implant surgery has been included in the list of diseases where expenses are reimbursable. The perusal of these guidelines would show that this circular has been issued for standardization of medical charges. A reference is made to the position in the rules which provides that when treatment by a doctor other than an authorised doctor, the reimburse may be ordered at the discretion of the sanctioning authority to such extent as the authorized doctor considers the expenses to be reasonable having regard to the circumstances of the case. The Hospital and Nursing Home fees may also be reimbursed to a reasonable extent depending upon the status of the officer. In conformity with the aforesaid restriction and guidelines, the sanctioning authority in examining the claim of medical reimbursable claim, the Bank had standardized charges for various types of medical reimbursement of officers posted in circle. In this background, consultation charges at the clinic as well as the patient's residence and bed charges are given in Annexure A . Charges for surgical and operation are contained in Annexure B. Reference to this annexure would show that cochlear implant surgery is referred to as one of the surgery for which any reimbursement could be sought. Reference is made to an order passed by Assistant General Manager, State Bank of Patiala, Lucknow clearing payment of cochlear implant to one Ashok Kumar Pandey Clerk-cum-Typist on Civil Writ Petition No.21480 of 2008 : 4 : 24.9.2003. Reference is also made to reimbursement of medical claim in respect of S.K.Rampal by State Bank of India, Hyderabad Circle for reimbursement of such type of implant surgery. Other precedents have also been referred to. Taking support from these, the petitioner made an application for reimbursement of the cost of surgery on 9.1.2006. The Deputy General of the Bank sought advice from the Medical Officer, who recommended the case for favourable consideration . The estimate of the cost of implant surgery, thus, was sought from AIIMS, New Delhi on 27.1.2006. In response, it was intimated that the cost of this surgery was Rs.5.12 lacs. Deputy General Manager recommended advance of Rs.5,64,500/- to be paid to the petitioner for the surgery of his son. The petitioner was required to deposit the sum of Rs.5,25,000/- on 10.8.2006. When this date was approaching Assistant General Manager wrote to Branch Manager for expediting the payment of the advance. After surgery, the petitioner has submitted a bill of Rs.6,44,810.25. The General Manager, however, has mentioned that the instructions are silent about the reimbursement of medical expenses for implant of cochlear and the matter has been referred to State Bank of India, Corporate Centre, Bombay for advice. As per the petitioner, the operation has been successful and his son is now going to school and getting 90% and above marks. The petitioner in the meantime also made an application to Chief Commissioner for Persons with Disabilities on 23.8.2007, who sent it to respondent No.2 for comments. In return, Assistant General Manager has informed that the matter is referred to SBI Corporate Centre at Mumbai. Civil Writ Petition No.21480 of 2008 : 5 : While the claim of the petitioner was pending for consideration, he came across a judgment passed by Division Bench of this Court annexed with the petitioner as Annexure P-16. In this case, which was against State Bank of India, the refusal of the claim was held unreasonable, unjust and arbitrary. The writ petition was accordingly allowed with a direction to the respondent-Bank to reimburse the cost of Cochlear implant of the son of the petitioner in the said case. It is averred that the judgment was challenged by way of Special Leave Petition, which was dismissed on 14.7.2008. The Chief Commissioner for Persons with Disabilities in the meantime also directed the respondents to examine the case of the petitioner within 30 days from the receipt of the order. The respondent-Bank did not do so but rather sought extension of time for complying with the orders passed by Chief Commissioner. The time was extended upto 10.12.2008. The respondents then declined the claim of the petitioner on 9.12.2008 and hence he is before this court. On 28.7.2010, while adjourning the case, the court directed that in the meanwhile payment of medical reimbursement to the petitioner be expedited. Later on, the court had clarified this order to say that this order could not be construed as if this court had accepted the claim of the petitioner. This was so clarified while disposing of misc.application filed by the respondent-Bank for re- calling the order dated 28.7.2010. In fact, the petitioner had also filed a contempt petition No.24 of 2011 for non-compliance of the order dated 28.7.2010. The respondent-Bank was put to notice as to why proceedings under the Contempt of Court be not initiated against for Civil Writ Petition No.21480 of 2008 : 6 : failure to comply with the order. This contempt petition was ordered to be heard along with the writ petition and is accordingly listed before this court. Written statement has been filed on behalf of the respondents. The respondents have expressed their inability to deny or admit the contents about the disability suffered by the son of the petitioner and requires of him to prove this. Otherwise, the respondents would deny the applicability of the circular issued by State Bank of India, which, as per them would have no applicability to the employees of the State Bank of Patiala. To substantiate their submissions, the respondents would also deny the aspect of reimbursement by the Branch of a Bank as relied upon by the petitioner. It is pointed out that only advance for medical treatment was granted but no payment was made to the employee on account of Cochlear implant. As per the respondent-Bank, the case of the petitioner is not covered by any circular/instructions issued by State Bank of Patiala under which the medical bill of Cochlear implant surgery could be reimbursed. The petitioner has filed a replication and has placed on record the certificate issued by Ram Manohar Lohia Hospital showing 100% disability of the son of the petitioner to substantiate his plea. Reference is made to Annexure P-1 to show that the matter was examined IBA Level where it was decided that the cost of implanted items wherever they are provided by the hospital under the package may be considered at the rate mentioned in Annexure P-1. To rebut the averments made in the reply that only advance was made in the case cited by the petitioner, the petitioner has placed on Civil Writ Petition No.21480 of 2008 : 7 : record Annexure P-22 where the payment against the bill for Cochlear implant was approved. The petitioner would also make reference to the action taken by the respondent-Bank to approach the S.B.I.Corporate Centre at Mumbai for advice. It is emphasized and reiterated that the branches of the respondent-Bank had reimbursed the expenses for Cochlear implant in other cases on the basis of circular issued by the State Bank of India. Having heard the counsel for the parties, I find that the action of the respondent-Bank is not justified in rejecting the claim of the petitioner. The State Bank of Patiala has formulated a Hospitalization scheme and circular in this regard is annexed with the petition as Annexure P-1. This circular clearly provides that officers/employees or dependent family members can undergo specialized treatment for diseases pertaining to heart and kidney, coronary bypass surgery, Angiography, Angioplasty or kidney transplant and claim reimbursement as per schedule of charges in the scheme or under package charges offered by certain hospitals. Annexure P-1 was issued to clarify whether the cost of implanted items like, stunts/valves, inserted during course of surgery could be reimbursed over and above the charges permissible under the package. This matter was examined at IBA Level, where a decision was taken to reimburse the cost of implanted items wherever they are not provided by the hospitals under the package and these may be considered at the rate not exceeding those applied by AIIMS for the lowest maximum permissible under the Hospitalization Scheme i.e. 100% in case of the employee and 75% in the case of member of the family. Civil Writ Petition No.21480 of 2008 : 8 : The aim of the scheme of the Bank is to reimburse the cost of treatment. What nexus the disease would have with the aspect of reimbursement is really not made out. No wonder, the State Bank of India has clearly made a provision while standarilising the medical charges by issuing guidelines which are placed on record as Annexure P-2. In consultation with the Senior Medical officer at the office of S.B.I., the Bank has prepared a schedule of standard charges. Annexure B is containing charges for surgical operation, where Cochlear implant surgery is mentioned as one of the surgeries for which reimbursement would be permissible. The petitioner is rightly making a grievance that he was given advance after due application of mind and now his claim has been rejected in hurry to meet the time stipulation provided by the Chief Commissioner for Disability without even awaiting for response from the S.B.I.Corporate Office at Mumbai. The Bank has declined the prayer of the petitioner primarily on the ground that reimbursement of expenses on account of Cochlear implant surgery does not fall within the ambit of Bank's scheme for reimbursement of hospitalization expenses and expenditure. The Bank had agreed to reimburse 50% of the cost in response to an initiative by the court to consider the case with sympathy. The Bank has also not been able to justify as to how another branch of the State Bank of Patiala had reimbursed the cost of such like surgery in the case of Ashok Kumar Pandey. Precedents are in plenty where the State Bank of India has been reimbursing the cost of such surgeries. Why would the respondent-Bank rely on policy to decline claim by reading the negative. A policy is framed Civil Writ Petition No.21480 of 2008 : 9 : to reimburse the medical expenses. When the aim is to reimburse the cost of expenses incurred on medical treatment, then aim should be to expand and extend the policy. Merely because Cochlear implant surgery is not found mentioned cannot be a valid reason to decline reimbursement of the cost. It would be difficult to imagine and visualise all the diseases to make a mention in the policy. Even the equity would demand that it would be unfair to decline this prayer of the petitioner in terms of the over all effect and view of the policy so formulated by the Bank. The plea that the policy has been formulated keeping in view the economic capacity to me would sound totally a `off the cuff stand'. It is not that the cost of such a surgery is so exorbitant that the Bank would find it difficult to reimburse. It would not be in any manner more than what the cost of kidney transplant surgery or bypass surgery etc. To plead economic capacity is, thus, a reason which has just been invented by the Bank to decline the claim and does not sound a fair and reasonable approach on the part of the Bank. The counsel for the respondent has also not been able to distinguish in any manner a Division Bench view taken by this court in Annexure P-16. No doubt, the said case pertained to State Bank of India, but as already noticed no different consideration would arise when the main purpose of the scheme is to reimburse the cost of medical expenses and it would not have much relevance with the disease as such. The respondent-Bank can be expected to be little considerate in helping the petitioner, whose son is born with handicap. Rather the petitioner has been made to contest for getting his reasonable demand met. Civil Writ Petition No.21480 of 2008 : 10 : In my view, the petitioner has made a case for reimbursement of the entire expenses incurred by him for Cochlear implant surgery performed on his son. The writ petition is accordingly allowed. The impugned order 9.12.2008 is set-aside. Direction is issued to the respondent-Bank to reimburse the cost of medical expenses incurred by the petitioner for getting his son treated for Cochlear implant surgery. There shall be, however, no order as to costs. April 19 , 2011 ( RANJIT SINGH ) ramesh JUDGE