IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 WP(C).No. 25372 of 2008(U) -------------------------- PETITIONER(S): --------------- ABHILASH.S, AGED 28 YEARS, S/O.SOMARAJAN, RESIDING AT ABHILASH NIVAS, KARADIPURAM NAGAR-146, ARAMAM, KOLLAM-691 002. BY ADV. SRI.JOHNSON GOMEZ SRI.S.BIJU (KIZHAKKANELA) RESPONDENT(S): --------------- 1. THE DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, KORAHTAL ROAD, NEW DELHI. 2. THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, PANCHDEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR-680020. 3. THE DEPUTY DIRECTOR, SUB REGIONAL OFFICE EMPLOYEES STATE INSURANCE CORPORATION,KURUMBELIL BUILDINGS, POLAYATHODU, KOLLAM.691021. 4. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT FOR LABOUR WELFARE, SECRETARIAT, TRIVANDRUM. 5. THE SUPERINTENDENT, MODEL HOSPITAL ESI CORPORATION, ASRAMAM, KOLLAM KERALA. ADV. SRI.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. FOR R1 TO 3 SR. GOVT. PLEADER SHRI.K.S.MUHAMMED HASHIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 25372/08. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE IDENTITY CARD. P2. COPY OF THE REFERENCE LETTER DTD.12.6.08. P3. COPY OF THE CERTIFICATE DTD.17.6.08 FROM THE MEDICAL COLLEGE. P4. COPY OF THE ESSENTIALITY CERTIFICATE DTD.18.6.08. P5. COPY OF THE INSTRUCTION NO.4/03 DTD.26.8.03 BY R1. P6. COPY OF THE INSTRUCTION NO.5/04 DTD.13.4.04 BY R1. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.25372 of 2008 ================== Dated this the 2nd day of November, 2009 J U D G M E N T The petitioner is an employee of M/s.Brinks Arya India Pvt. Ltd., Kollam. The petitioner is a subscriber to the Employees' State Insurance Scheme. As a member of the Scheme, the petitioner is entitled to reimbursement of medical expenses for specialist treatments in hospitals approved by the ESI Corporation in respect of himself and his family members. The petitioner's mother contracted a serious heart disease. The petitioner approached the Thiruvananthapuram Medical College and the petitioner's mother was treated there. By Ext.P3, the Professor of Cardiology of Medical College Hospital, Thiruvananthapuram, certified that the petitioner's mother is suffering from the particular heart ailment, for which the petitioner's mother was treated in the Medical College the cost for which treatment of the petitioner's mother was Rs.30,000/- and that she requires life long medications for the ailment. The petitioner obtained Ext.P4 essentiality certificate and applied for reimbursement of the medical expenses which he incurred for the specialist treatment of the petitioner's mother. That is not being considered favourably by the respondents citing Exts.P5 and P6 circulars issued by the Corporation, which state that insured persons and their family members other than W.P.C.25372/08 2 those injured in accident will be entitled to super speciality medical care and or reimbursement of the expenditure thereon including costs of supply of medicines thereto only if they become eligible for sickness benefit. For becoming eligible for sickness benefit the petitioner should have remitted contributions covering the benefit period. Unfortunately for the petitioner, although the petitioner had remitted contributions promptly this particular period during which the petitioner's mother was treated does not fall within the benefit period corresponding to the contribution period. According to the petitioner, Exts.P5 and P6 orders are against the provisions of the Employees' State Insurance Act and Scheme. The petitioner also challenges Exts.P5 and P6 on the ground of want of jurisdiction. The petitioner, therefore, seeks the following reliefs: “a. To declare that the petitioner and his and his family members mentioned in Ext.P1 are entitled for medical benefits including Super Speciality Treatment from the date of entry in Insurable Employment. b. To issue a writ of Certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P5 issued by the 1st respondent and quash the same. c. To issue a writ of Certiorari or any other appropriate writ order or direction calling for the records leading to Ext.P6 issued by the 1st respondent and quash the same. d. To issue a Writ of Mandamus or any other appropriate Writ order or direction compelling and commanding the respondents 1 to 4 to reimbursement (sic) the treatment expenses mentioned in Ext.P3 and P4 towards Super Speciality treatment taken by the petitioner's mother on the basis of Ext.P1 within a time limit that this Hon'ble Court may consider reasonable.” 2. A counter affidavit has been filed on behalf of the 3rd W.P.C.25372/08 3 respondent, in which, two contentions are raised. First is that the petitioner's remedy lies in approaching the Employees' Insurance Court under Section 75 of the Employees' State Insurance Act, without exhausting which remedy, the petitioner cannot approach this Court. The second contention is that the Standing Committee has ample powers under the ESI General Regulations, 1950, and therefore, Exts.P5 and P6 are not liable to be interfered with by this Court. Therefore, according to the 3rd respondent, in so far as the petitioner is not eligible for reimbursement benefits going by Exts.P5 and P6, the writ petition is not maintainable. 3. I have considered the rival contentions in detail. 4. I am not inclined to go into the validity of Exts.P5 and P6 as such in this writ petition in so far as, according to me, going by Ext.P5 itself the petitioner is entitled to the benefits requested for. The relevant portion of Ext.P5 reads thus: “Now as per the decision of the Standing Committee, the Insured Persons and their family members (other than those injured in accident) will be entitled to super speciality medical care and/or= reimbursement of expenditure thereon including cost of supply of medicines there to only if they become eligible for Sickness Benefits. This restriction will however not be applicable to accident cases. The Standing Committee however indicated that genuine cases should not be allowed to suffer and restriction being imposed may be relaxed in deserving cases by the Director of General.” (underlining supplied) Going by the underlined sentence, it is evident that despite the restriction mentioned in Ext.P5, the Director General can, in genuine W.P.C.25372/08 4 cases, allow reimbursement relaxing the conditions in Ext.P5. In this case the petitioner did not treat his mother in any private hospital. The mother was treated in the Medical College, Thiruvananthapuram, which is owned by the State Government who runs the hospitals of the ESI Corporation also. The 3rd respondent cannot with any amount of certainty dispute the genuineness of the petitioner's claim in view of Exts.P2, P3 and P4. Therefore, it cannot be disputed that the case of the petitioner's mother comes squarely within the exemption provided in Ext.P5. In such circumstances, I hold that the Director General ought to have relaxed the rigour of Ext.P5 in the petitioner's case, in view of the fact that undoubtedly the petitioner's mother's case is a genuine, eligible and deserving case for relaxation. Accordingly, I dispose of this writ petition with a direction to the 3rd respondent to consider the application for reimbursement submitted by the petitioner in accordance with the findings hereinabove. Orders in this regard shall be issued and reimbursement given to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.25372/08 5