The right to medical reimbursement is contingent upon actual treatment received, not solely on the hospital's inclusion in the Government Order.

JUDGMENT :

Sushrut Arvind Dharmadhikari, J.

The present writ appeal under Section 5 of the Kerala High Court Act, 1958 arises out of the judgment dated 30.01.2024 passed in WP(C) No.36631 of 2023 whereby the claim of the appellant seeking reimbursement of the amount which he had expended for diagnosing and treating prostate cancer in a private hospital was rejected.

2. The brief facts of the case are that the appellant had taken a policy namely, Cancer Care Policy (Ext.P1) which was promoted by the postal department under the National Savings Scheme through ‘Indira Vikas Patra’ deposits. The appellant was diagnosed with prostate cancer and therefore, he approached the Medical College Hospital, Kottayam and he was asked to undergo a ‘TRUS Guided Prostate Scan’ and other tests which were not available in the Medical College Hospital, Kottayam. The appellant had no option but to undergo treatment in a private hospital for which he had to expend Rs.3,44,774/-.

3. Learned counsel for the appellant submitted that the Medical College Hospital, Kottayam did not have the facilities for conducting tests as is evident from Ext.P3. The learned Single Judge failed to appreciate that, as per Ext.P2 where the policy details are mentioned, respondents herein were obliged to reimburse the expenses incurred by the appellant for cancer diagnosis and treatment. The learned Single Judge, relying on Ext.P1 membership card, came to the conclusion that according to the Cancer Care Policy, a member is entitled to receive cancer treatment facilities available in the Cancer Care Centre of Medical College Hospital, Kottayam free of charge, in the unfortunate event of his/her getting cancer in his/her lifetime from the date of validity, and that the appellant would only be entitled for reimbursement had he taken treatment in the Medical College Hospital, Kottayam only and no other private hospital. The learned Single Judge also failed to consider the fact that where required medical facilities are not available in the empanelled hospital, the treatment taken by the patient from a hospital having such facilities, reimbursement cannot be rejected. The burden lies on the Government to show and prove that the required medical facility was available in the hospital run by the Government or in the empanelled hospital. Admittedly, there was no medical facility to treat prostate cancer at the Government Medical College Hospital. The learned Single Judge heavily erred in rejecting the claim of the appellant.

4. Learned counsel for the appellant relied on the judgment of a Division Bench of this Court in Secretary, State Government Labour Department v. S. Gopakumar and others [ 2017 (4) KHC 556 ] to contend that the Division Bench had allowed similar cases where there were no medical facilities available in the Medical College Hospital and the patient had taken treatment in some other hospital. Learned counsel had also relied on the decision of the Hon’ble Apex Court inShiva Kant Jha v. Union of India [ 2018 KHC 6285 ]. Paragraph 13 of the said decision reads thus:

“13. It is a settled legal position that the Government employee during his lifetime or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality hospitals are established for treatment of specified ailments and services of Doctors specialised in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said hospital is not included