C.C. Mohandas Vs. Employees State Insurance Corporation, Represented By Its Director General and Another - Court Judgment

Babu Mathew P. Joseph, J.

1. This writ appeal is directed against the judgment rendered by a learned single Judge on 08-11-2013 in W.P.(C) No.21987 of 2013. The writ petition was preferred by the appellant praying for a declaration that he is entitled to treatment benefits as provided by paragraph 2.30(a) of the E.S.I. Medical Manual and for other reliefs. The learned single Judge dismissed the writ petition on the ground that the appellant was not entitled to claim extended sickness benefit in terms of E.S.I.C. Circular No.6-1/91/71(M)-II dated 03-01-1978 issued by the Employees' State Insurance Corporation, for short, the E.S.I. Corporation, as he had not availed himself of any treatment for sickness from September, 2007 and to July, 2012. Aggrieved by the C. R. impugned judgment, the appellant has preferred this writ appeal.

2. Heard Smt.A.K.Preeta, learned counsel appearing for the appellant, and Sri.T.P.M.Ibrahim Khan, learned Senior Counsel appearing for the respondents.

3. The appellant was employed as a Winder in M/s Thrissur Cotton Mills, Nattika, which was a factory covered under the Employees' State Insurance Act. Since 1989 he was admittedly a covered employee under the E.S.I. Scheme. During the course of employment, the appellant was diagnosed with right orbital nerve sheath tumor with lesion. He had undergone two major surgeries, one in 1995 and another in 1996, at Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram (for short, Sree Chitra Institute), for that disease. He had also undergone a minor surgery there in 1998. The establishment, where the appellant was employed, was closed down in the year 2004. Thus he lost his employment and, in turn, went out of coverage of the E.S.I. Scheme. However, by virtue of the provisions in the circular above referred to, the appellant was given medical benefits including reimbursement of medical expenses incurred by him at Sree Chitra Institute till September, 2007.

4. Even though the disease of the appellant was not cured by the treatment at the Sree Chitra Institute, he could not continue the treatment there after September, 2007 till July, 2012. Because, he could not have undertaken the journey from Kozhikode, he being a native of Mayiladikunnu in Kozhikode, to Thiruvananthapuram for the treatment owing to severe financial constraints and also for the reason that during the interregnum he was taking herbal medicines prescribed by a tribal head. His condition became worse in the year 2012 and hence he was admitted to the Medical College Hospital, Kozhikode. Since the doctors at that Hospital were of the opinion that an emergency surgery was required, the appellant was referred to Sree Chitra Institute for that purpose. The doctors at the Sree Chitra Institute were however not in favour of a surgery at that stage. They were of the opinion that the appellant would have to undergo surgery at a later point of time as a last resort. The appellant was thereafter continuing treatment there. While so, his Ext.P3 claim for reimbursement of the medical expenses incurred by him at the Sree Chitra Institute was declined on the ground that the treatment records were not available for the period from September, 2007 to July, 2012 and hence active continuous treatment cannot be confirmed. However, by way of sympathetic consideration, the case of the appellant was referred to the Headquarters of the respondents for final decision as evident from Ext.P5 letter dated 20-03-2013 issued from the Regional Office (Kerala) of the E.S.I. Corporation. Subsequently, the second respondent issued Ext.P6 letter dated 28-05-2013 informing him that he is not entitled to any medical care under paragraph 2.30 of the E.S.I. Medical Manual (circular dated 03-01-1978 already referred to) and is also not entitled to medical benefit as per the Headquarters Guidelines/ Instructions dated 30-12-2010 as he did not fulfill the conditions laid down in them. The appellant was further informed by this letter that the extended sickness benefit period is already exhausted and he is not entitled to any medical benefit/super speciality treatment under the E.S.I. Scheme.

5. The appellant, thereupon, filed the writ petition challenging Ext.P6 letter and praying for a declaration that he is entitled to treatment benefits as provided in paragraph 2.30(a) of the E.S.I. Medical Manual. The respondents have filed a counter affidavit. They contended, inter alia, that the circular dated 03-01-1978 issued by the E.S.I. Corporation provides for medical benefits only till the spell of sickness ends or in case of long term ailments as long as the insured person requires active treatment and the appellant who had not availed himself of any active continuous treatment for five years, i.e., from September, 2007 to July, 2012, is not entitled to claim the medical benefits. The learned single Judge dismissed the writ petition accepting the contention raised by the respondents.

6. The fact that the appellant was diagnosed with right orbital nerve sheath tumor with lesion in the year 1995 and he had undergone treatments at the Sree Chitra Institute is not in dispute. He had undergone two major surgeries in 1995 and 1996 and a minor surgery in 1998. Thereafter also he had undergone treatment at the Sree Chitra Institute. The disease of the appellant has been named or described differently in different documents such as right orbital nerve sheath tumor with lesion, intra-orbital tumor, right orbital neurofibroma and neurofibroma orbital. A Medical Certificate dated 18-11-2015 issued by Prof. S. Nair, Head of the Department, Sree Chitra Institute, shows that intra-orbital tumor, neurofibroma orbital and right orbital neurofibroma convey the same meaning. There is no dispute also with regard to the fact that the different names or descriptions of the disease used in the different documents convey the same meaning.

7. M/s Thrissur Cotton Mills, where the appellant was employed, was closed down in the year 2004. However, notwithstanding the fact that the appellant ceased to be a covered employee, extended sickness benefit was given to him till August, 2007 in terms of the circular dated 03-01-1978 issued by the E.S.I. Corporation. He was not cured by that treatment. Thereafter, he discontinued the treatment at the Sree Chitra Institute owing to financial constraints and resorted to herbal medicines administered by a tribal head till July, 2012. When his condition became worse in the year 2012, he was admitted to the Medical College Hospital, Kozhikode. Since the doctors at that Hospital were of the opinion that an emergency surgery was required, the appellant was referred to Sree Chitra Institute for that purpose. At that point of time, the E.S.I. Corporation took the stand that he is not entitled to extended sickness benefit as the period of extended sickness benefit is exhausted and he had not availed himself of any medical treatment for the past five years, i.e., from September, 2007 to July, 2012. The learned single Judge accepted that contention of the respondents and rejected the claim of the appellant based on circular dated 03-01-1978 of the E.S.I. Corporation.

8. It is the definite case of the appellant that his ailment is not curable, but can only be controlled. The respondents also have no case that the ailment of the appellant is curable. The appellant was taking herbal medicines administered by a tribal head during the five year period when he did not avail himself of any allopathic treatment for his ailment. Severe financial constraints is raised as the reason for discontinuing allopathic treatment at the Sree Chitra Institute during the said period. We find no reason to disbelieve the facts so stated by the appellant. The respondents contend that the appellant is not entitled to extended sickness benefit mainly for the reason that he discontinued the treatment from 2007 to 2012 as explained earlier. The appellant contends that in the light of the provisions in the circular dated 03-01-1978 issued by the E.S.I. Corporation, which is incorporated in paragraph 2.30 of the E.S.I. Medical Manual, he is entitled to continued treatment at the Sree Chitra Institute. We shall examine.

9. The relevant portion in paragraph 2.30 of the E.S.I. Medical Manual is its clause(a) which reads as follows:

"(a) Treatment of IP who becomes disentitled to Medical Benefit during treatment (to IP only).

The Corporation has decided that the medical treatment in case of Insured Persons who go out of coverage of the scheme during the period of treatment be entitled to get continued treatment once started till the spell of sickness ends or in case of long term ailments as the IP requires active treatment vide ESIC circular no. 6-1/91/71(M)-II dated 03.01.1978. The family members of IP are not entitled to this facility which has been extended to IP only.

This provision is intended for providing continued medical treatment to those insured persons who go out of coverage under the Scheme during the period of treatment. The first part of this provision deals with the entitlement to continued treatment once started till the spell of sickness ends. The second part of this provision deals with long term ailments and the continued treatment in such cases. The first part ofthe provision assures continued treatment till the spell of sickness ends. Sickness may be curable or not curable. The expression spell of sickness is not seen defined. No enactment defining the meaning of such expression was brought to our notice. The word spell used in the expression spell of sickness is in the noun form. The Oxford Advanced Learner's Dictionary of Current English, Seventh Edition, defines the meaning of the word spell in the noun form as a short period of time during which something lasts. Therefore, going by this definition, the expression spell of sickness means a short period of time during which the sickness lasts. Such a definition can be applied only in the case of curable diseases. In the case of long term diseases or diseases that cannot be cured, the expression spell of sickness used in paragraph 2.30 is not attracted. In the case on hand, the appellant has been suffering from right orbital neurofibroma which is not curable, but only controllable. Therefore, the expression 'spell of sickness' cannot be applied here. What is attracted and can be applied is only the second part of the paragraph dealing with long term diseases requiring active treatment.

10. The E.S.I. Corporation in their meeting held on 06-09-2002 considered the recommendations of the Tripartite Committee formed to study the long term recommendations of the Sathyam Committee Report in respect of reasonable medical care and some other matters and accepted them. The recommendation (vii) among the recommendations on reasonable medical care accepted by the E.S.I. Corporation reads as follows:

"vii) With regard to spell of sickness it was decided that the present provision should be made applicable only in respect of curable diseases and not in respect of controllable diseases. For controllable diseases if the patient is in acute phase at the time of going out of coverage, the treatment can be continued till he is stabilized. The word active should be replaced by acute.

This decision(vii) does not say that it clarifies the provisions made in clause(a) of paragraph 2.30 of the E.S.I. Medical Manual in respect of continued treatment of an insured person going out of coverage under the Scheme. But, the contents of this decision definitely clarify/modify the scope of clause(a) of paragraph 2.30 of the E.S.I. Medical Manual. Therefore, for giving a reasonable meaning to the provisions in clause(a) of the said paragraph 2.30, they are to be read in the light of the clarification/modification made in the decision(vii) in respect of the expressions spell of sickness and active treatment'. The expression spell of sickness is applicable only in respect of curable diseases and not in respect of controllable diseases. If that be so, the expression spell of sickness used in clause(a) of paragraph 2.30 does not take in diseases like the one afflicting the appellant. Whether the second part of that provision will be attracted in the case of appellant in the light of the clarification/ modification contained in decision(vii) is the question now tobe considered.

11. The appellant has been continuing active treatment for his ailment, namely, right orbital neurofibroma, since 1995. Even though he discontinued the allopathic treatment for his ailment from September, 2007 to July 2012, he was continuing active treatment by taking herbal medicines administered by a tribal head. Thereafter, he had to resort to active allopathic treatment for which he had approached Medical College Hospital, Kozhikode, and, as referred from there, approached Sree Chitra Institute. The surgery for the right orbital neurofibroma suggested long back could not be undergone by the appellant for the concomitant high risk as advised from Sree Chitra Institute and such a surgery was being kept open as a last resort. Now the appellant, as a last resort, is prepared to undergo that surgery as recommended by the doctors of Sree Chitra Institute. The appellant is suffering from an ailment which is not curable but only controllable. He had already undergone two major surgeries and a minor surgery at the Sree Chitra Institute for his ailment. From the facts obtained in this case, it can reasonably be found that he was all along under active treatment since he was diagnosed with right orbital neurofibroma in 1995. There cannot be any dispute that the appellant was under an acute phase of treatment for his ailment at the time he went out of coverage under the E.S.I. Scheme. In the case of controllable diseases, the said decision(vii) lays down that if the patient is in acute phase at the time of going out of coverage, the treatment can be continued till he is stabilized. When this provision is considered in the premise of the facts obtaining in this case, the appellant is entitled to continue his treatment enjoying the sickness and medical benefit till he is stabilized as provided in clause(a) of paragraph 2.30 of the E.S.I. Medical Manual read with decision(vii) in respect of reasonable medical care taken by the E.S.I. Corporation on 06-09-2002.

12. One of the reasons stated in Ext.P6 issued by the second respondent for rejecting the claim of the appellant is that he is not entitled to medical benefit as he does not fulfill the condition as per the Headquarters Guidelines/ Instructions dated 30-12-2010. The other reasons stated for rejecting the claim of the appellant in Ext.P6 cannot hold good in the light of the findings we have already entered in this judgment. The Headquarters Guidelines/Instructions dated 30-12-2010 referred to in Ext.P6 is produced as Annexure-R1(C)2 along with the counter affidavit filed by the respondents in this writ appeal. The Guidelines/Instructions issued in this document deal with conditions for availing of super speciality medical treatment by insured persons and their family members and not dealing with the cases of insured persons who had gone out of coverage under the E.S.I. Scheme. Nothing is contained in Annexure-R1(C)2 taking away or abridging the rights of those insured persons who had gone out of coverage of the E.S.I. Scheme or their entitlement to continued treatment guaranteed under clause (a) of paragraph 2.30 of the E.S.I. Medical Manual read with recommendation(vii) of the Tripartite Committee accepted by the E.S.I. Corporation in their meeting held on 06-09-2002. It is an admitted fact that the E.S.I. Corporation has extended sickness and medical benefit to the appellant for undergoing super speciality treatment at the Sree Chitra Institute even after he had gone out of coverage till August, 2007. Relying on a document like Ext.R1(C)2, which has no application at all to the facts of this case, the respondents cannot turn round and say that the appellant is not entitled to sickness and medical benefit including super speciality treatment which are available to him under paragraph 2.30 of the E.S.I. Medical Manual read with the decision dated 06-09-2002 of the E.S.I. Corporation.

13. The appellant is aged about 50 years and a bachelor. His parents are no more. He is unable to do any kind of hard-work. He is surviving at the mercy of an Ashram. He had filed an application in this writ appeal for a direction to the respondents to deposit Rs.1 lakh with Sree Chitra Institute for meeting the medical expenses in connection with the surgery to be conducted. When this writ appeal came up for hearing on 03-11-2015, the learned counsel appearing for the appellant brought to our notice a treatment certificate dated 13-10-2015 issued by the Senior Medical Records Officer, Sree Chitra Institute, in which it is certified that the appellant was on continuous treatment and he is scheduled for operation once the finance is arranged. The planned treatment is neuro surgical excision of tumor. Since we were prima facie satisfied that the appellant would come within the scope of paragraph 2.30(a) of the E.S.I. Medical Manual and the fact that the surgery was immediately required to be performed, the E.S.I. Corporation was directed to deposit Rs.1 lakh with Sree Chitra Institute in order to enable the appellant to undergo the surgery at the earliest. The direction so issued was subject to the outcome of the writ appeal. Subsequently, we were told that the amount so directed was deposited. In view of the findings we have entered in this judgment in regard to the entitlement of the appellant to continued sickness and medical benefit including super speciality treatment, the order directing the respondents to deposit Rs.1 lakh with Sree Chitra Institute has to be regularized and made absolute. We do so.

14. For the foregoing reasons, Ext.P6 letter dated 28-05-2013 issued by the second respondent rejecting the claim of the appellant is liable to be quashed. The appellant is entitled to a declaration that he is entitled to sickness and medical benefit as provided under clause(a) of paragraph 2.30 of the E.S.I. Medical Manual read with the decision dated 06-09-2002 of the E.S.I. Corporation in respect of reasonable medical care. Therefore, the respondents are bound to honour the claims with respect to the medical expenses incurred by the appellant in connection with his treatment.

15. In the result, Ext.P6 letter dated 28-05-2013 issued by the second respondent is quashed. It is declared that the appellant is entitled to sickness and medical benefit as provided under clause(a) of paragraph 2.30 of the E.S.I. Medical Manual read with the decision dated 06-09-2002 of the E.S.I. Corporation in respect of reasonable medical care. Consequently, the respondents are bound to honour the claims with respect to the medical expenses incurred by the appellant in connection with his treatment.

The judgment of the learned single Judge in W.P.(C) No.21987 of 2013 is vacated. This writ appeal is allowed. No costs.