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PETITIONER:

SURJIT SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB AND OTHERS

DATE OF JUDGMENT: 31/01/1996

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

VENKATASWAMI K. (J)

CITATION:

1996 AIR 1388 1996 SCC (2) 336

JT 1996 (2) 28 1996 SCALE (1)648

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

Punchhi, J.

Leave granted.

Is the hypothetical claim of the appellant for medical

reimbursement valid in the facts and circumstances of

thiscase is the straight question which falls for

determination in this appeal.

The appellant, Surjit Singh (now retired) while

postedas a Deputy Superintendent Police, Anandpur Sahib,

Distt. Roper, Punjab, developed a heart-condition on 22-12-

1987 and that very day went on a short leave extending it

uptill 10-1-1988, on medical grounds. It remains unclarified

on the record of this case as to what steps the appellant

took thereafter to meet his ailment. However, six months

later he obtained leave from his superiors from 15-6-1988 to

8-9-1988 and went to England to visit his son. It is the

case of the appellant that while in England, he fell ill due

to his heart problem and as an emergency case, was admitted

in Dudley Road, Hospital Brimingham. After diagnosis he was

suggested treatment at a named alternate place. Thus to

save himself the appellant, got himself admitted and

operated upon in Humana Hospital, Wellington, London for

aBye-Pass Surgery. He claims to have been hospitalised from

25-7-88 to 4-8-88. A sum of Rs.3 lacs allegedly was spent on

his treatment at London, borne by his son.

On return to India, the appellant on 6-11-1988

submitted a Bill for medical reimbursement claiming that

very sum, in the office of the Senior Superintendent of

Police, Ropar which was forwarded to the Director General of

Police, Punjab, Chandigarh and the Home Department of the

State of Punjab. Some correspondence took place between the

appellant and the department. As per office requirements

some more certificates were sent by the appellant in support

of his case. Vide letter dated 21-1-93, the Department

however expressed its inability to sanction the bill for

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medical reimbursement. This led to the appellant moving the

High Court of Punjab and Haryana at Chandigarh in writ

jurisdiction. As required by the High Court, the State

responded by filing its counter affidavit. At the time of

hearing the Assistant Advocate General for the State of

Punjab made a statement to the effect that the State was

ready to pay to the appellent the expenses incurred for Bye-

pass Surgery and Angiography on the rates prevalent in

theAll India Institute of Medical Sciences, New Delhi (for

short 'AIIMS'). Applying that yardstick, as suggested, a sum

of Rs.30,000/- on account of Bye-Pass Surgery and a sum of

Rs.10,000/- for Angiography was thus ordered by the High

Court to be paid to the appellant within six weeks. The writ

petition on 18-4-1995 was disposed of on such terms. The

said sum, as claimed by the State stands paid to the

appellant.

The appellant challenging the orders of the High Court

disposing of the writ petition in such manner now pitches

before us his claim to payment on the basis of rates

prevalent in the Escorts Heart Institute and Research Centre

(for short Escorts'), reducing his high claim to the

expenses incurred for medical treatment in London. There is

an inkling to that effect in the appellant's rejoinder

affidavit in the High Court but it appears that this aspect

of the matter was not dilated upon. The claim for such

adoption of rates is now made in reiteration.

The parties counsel agree that there is a policy

regarding reimbursement of medical expenses framed by the

State on 25-1-1991, which has duly been circulated in all

the wings/offices of the State. It's operative portion, so

far relevant, is reproduced below :

"Subject : Re-imbursement of

medical expenses - policy

regarding

Sir/Madam,

In supersession of Punjab Gover

nment letter No.7/7/85- 3HBV/13855

dated 27-5-1987, the resident of

India is placed to lay down the

following policy for reimbursement

of medical expenses incurred on

medical treatment taken abroad and

in hospitals other than the

hospitals of the Govt. of Punjab

(Both outside and in the State of :

Punjab):

i) All categories of employees

whether retired or serving of All

India Service/State Govt. Judges of

Punjab and Haryana High

Court/M.L.As/Ex M.L. As will be

governed by this policy.

ii) The person who is in need of

medical treatment outside India or

in any hospital other than the

Govt. of Punjab (both outside and

in the State of Punjab) as the case

may be may make an application for

getting treatment in these

hospitals directly to the Director

Health and Family welfare 2 months

advance, duly recommended by the

C.M.O./Medical Supdt. indicating

that the treatment for the disease

mentioned is not available in the

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Hospital of the Govt. of Punjab. In

case of emergency duly

authenticated by C.M.O./Medical

Supdt. the application can be made

15 days in advance.

iii) Director, Health and Family

Welfare, Punjab will place the

application of the concerned

employee before the Medical Board

within 15 days on the receipt of

application. In case of emergency,

if immediate meeting of Medical

Board, cannot be convened, such

application may be circulated to

all the members of the Medical

Board and decision taken thereof.

iv) The Medical Board shall consist

of the following officers:

i) Director, Health and Family

Welfare, Punjab - Chairman

ii Director, Education, Punjab

Research and Medical - Member

iii) Specialist of the desired line

of treatment from PG1 Chandigarh or

AIIMS, New Delhi - Member

iv) Senior most specialist from

Medical Colleges, Patiala, Amritsar

and Faridkot - Member

v) Dy. Director/Asstt. Director,

I/c of P.M.H. Branches office of

the Director Health and Family

Welfare - Member Secy"

vi) xxxx

vii) xxxx

viii) xxxx

ix) xxxx

xi) xxxx

xi) xxxx

xii) The Health Deptt. in

consultation with Director Research

& Medical Education will prepare a

list of diseases for which

specialised treatment is not

available in Punjab Govt. Hospitals

and indicate the

Institutions/Hospitals/Clinics of

repute where necessary treatment is

available. This list will, however,

be subject to variation in future.

On 8-10-1991, the above policy has further been explained in

so far as the choice of the hospitals is concerned:

"Policy for reimbursement of

medical expenses incurred on

medical treatment taken abroad and

in hospitals other than those of

the Government of Punjab, both

within and outside he State was

laid down. However, as per the 12th

item of hese instructions, a list

of those diseases for which

specialised treatment was not

available in the Government

hospitals was to be prepared in

addition to identifying medical

institutions/hospitals/clinics of

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repute where such specialised

treatment was available.

The Government has now prepared

a list of those diseases for which

the specialised treatment is not

available in Punjab Government

hospitals but is available in

certain identified private

hospitals, both within and outside

the State. It has, therefore, been

decided to recognise these

hospitals for the treatment of the

disease mentioned against them in

the enclosed list for Punjab

Government employees/pensioners and

their dependents. The terms and

conditions contained in letter

under reference will remain

applicable, Government can,

however, revise the list, in

future.

Therefore it has been decided to

recognise those hospitals for the

treatment of diseases mentioned

against them in the enclosed list

issued with the concurrence of the

Finance Department dated 11-9-1991

which is as under:

Open Heart Surgery: Escorts Heart

Institute, New Delhi; Christian

Medical Colloge, Ludhiana; Appollo

Hospital, Madras.

The purport of the above policy is that the Escorts stands

duly recognised by the State for treatment of its employees

for open heart surgery, apart from the other two

institutions i.e. Christian Medical College, Ludhiana and

Appollo Hospital, Madras. The Finance Deptt's concurrence

signifies its willingness to entertainment reimbursement

bills in variables depending on where treatment is received.

There has been a factual dispute as to whether the

appellant went to the Dudley Road Hospital, Brimingham as an

emergency case and whether he was operated upon in Humana

Hospital, Wellington, London in that condition. Except for

the bare word of the appellant, no documentary evidence in

support or such plea had been tendered by him before the

High Court, or even before us to show that his was a case of

emergency requiring instant operation and treatment. The

State of Punjab on the other hand has countered before the

High Court, as also here, that the case of the appellant was

not that of an emergency but a planned visit to England to

have himself medically treated under the care of his son,

without submitting himself as per policy, for examination

before the Medical Board. This plea of the appellant may

have been required to be examined in thorough detail had he

stuck to his original claim for medical expenses incurred in

England. Since he has now brought down his claim to the

rates prevalent in the Escorts in place of that of AIIMS,

further reference to emergency treatment etc. would not be

necessary. It would hypothetically have to be assumed that

the appellant was in India, had not subjected himself to

Medical Board examination, and had gone on his own to the

Escorts and got himself operated upon for Bye-Pass Surgery.

The point to be considered is whether his claim is

admissible under the policy keeping in view the string of

judgments of the High Court in that regard, as well as on

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the factum that the Stats has already conceded re-

imbursement to the appellant on hypothetical basis as if

treated in AIIMS.

The policy, providing recognition for treatment of open

heart surgery in the Escorts, specifically came to be

examined by a division bench of the Punjab and Haryana High

Court at Chandigarh in C.W.P. No.13493 of 1992 titled as

Sadhu R. Pall vs. State of Puniab throuqh Secretary Health

and Family Welfare Punjab, Civil Secretariat. Chandigarh and

others decided on 6-10-1993, wherein the claim of the then

writ petitioner to medical reimbursement was accepted when

in order to save his life he had got himself operated upon

in the Escorts, and the plea of the State that he could be

paid rates as prevalent in the AIIMS was rejected. Special

Leave Petition No.22024 of 1995 against the said decision

was dismissed by this Court on 2-2-1994, The other judgments

of the High Court following the decision in Sadhu R. Pall's

case are :

(1) C.W.P. No.18562 of 1992 decided on 10-5-95 titled

K.L.Kohil vs. State of Punjab and others (DB) :

(2) C.W.P. No.260 ot 1995, decided on 30-5-1995 titled avi

Mohan Duggai vs. State of Punjab and Others (DB);

(3) C.W.P. No.5669 of 1994 decided on 4-9-94 titled Prem

Singh Gill vs. State of Punjab and Others;

(4) 1995 (III) Punjab Law Reporter 529 titled Tarlok

(Chander vs. The State of Punjab etc. (SB); and

(5) 1995 (III), Punjab Law Reporter 682 titled Mrs. Surya

Pandit vs. State of Punjab and others (SB)

All the aforementioned judgments or the High Court have

a common factual basis, i.e. each recipient of the relief

from the High Court had in fact been treated in the Escorts

and had borne expenses. The other common factor is that the

High Court believed each writ petitioner pleating emergency

to go to Escorts in the given fact situation. But this

factor by itself is not the core of the views of the High

Court. Hypotheticallys the appellant says, he too may be

considered to have been treated in the Escorts, more so,

when he is being treated to have been operated upon in AIIMS

without actually having been so and had a choice to go

either to the AIIMS or Escorts or Christian Medical College,

Ludhiana or Appollo Hospita, Madras. The appellant in these

circumstances cannot be said to be far too wrong in choosing

the Escorts amongst the three recognised hospitals for open

heart surgery available in the North, the AIIMS being

governmental and the other two being private hospitals. The

division bench in Sadhu R. Pall's case observed as follows :

"The respondents appear to have

patently used excuses in refusing

full reimbursement, when the

factum of treatment and the urgency

for the same has been accepted by

the respondents by reimbursing the

petitioner the expenses incurred by

him, which he would have incurred

in the AIIMS New Delhi. We cannot

loose sight of factual situation in

the AIIMS New Delhi, i.e. with

respect to the number of patients

received there for heart problems.

In such an urgency one cannot sit

at home and think in a cool and

calm atmosphere for getting medical

treatment at a particular hospital

or wait for admission in some

Government medical institute. In

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such a situation, decision has to

be taken forthwith by the person or

his attendants if precious life has

to be saved."

We share the views afore-expressed.

It is otherwise important to bear in mind that self

preservation of one's life is the necessary concomitant of

the right to life ensbrined in Article 21 of the

constitution of India, fundamental in nature, sacred,

precious and inviolable. The importance and validity of the

duty and right to self-preservation has a species in the

right of self defence in criminal law. Centuries ago

thinkers of this Great Land conceived of such right and

recognised it. Attention can usefully be drawn to versus 17

18, 20, and 22 in Chapter 16 of the Garuda Purana (A

Dialogue suggested between the Divine and Garuda, the bird)

in the words of the Divine:

17

--

Vinaa dehena kasyaapi Without the body how can

onecanpurushaartho na obtain the objects of human

vidyate Tasmaaddeham life? Therefore protecting

thedhanam rakshetpunyakar- body which is the wealth, one

maani saadhayet should perform the deeds of

merit.

18

--

Rakshayetsarvadaatmaanamaatmaa One should protect his body

sarvasya bhaajanam Rakshane which is responsible for

yatnamaatishthejje everything. He who protects

vanbhaadraani pashyati himself by all efforts, will

see many auspicious

occasions in life.

20

--

Sharirarakshanopaayaah The wise always undertake

Kriyante sarvadaa the protective measures

budhaih Necchanti cha for the body. Even the

punastyaagamapi persons suffering from

kushthaadiroginah leprosy and other

diseases do not wish to

get rid of the body

22

--

Aatmaiva yadi naatmaanama If one does not prevent what

hitebhyo nivaarayet is unpleasent to himself,

Konsyo hitakarastasmaa- who else will do it?

daatmaanam taarayishyati Therefore one should do what

is good to himself.

The appellant therefore had the right to take steps in

self preservation, He did not have to stand in queue before

the Medical Board the manning and assembling of which, bare-

facedly, makes its meetings difficult to happen. The

appellant also did not have to stand in queue in the

government hospital of AIIMS and could go elsewhere to an

alternate hospital as per policy. When the State itself has

brought the Escorts on the recognised list, it is futile for

it to contend that the appellant could in no event have gone

to the Escorts and his claim cannot on that basis be

allowed, on suppositions. We think to the contrary. In the

facts and circumstances, had the appellant remained in

India, he could have gone to the Escorts like many others

did, to save his life. But instead he has done that in

London incurring considerable expense. The doctors causing

his operation there are presumed to have done so as one

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essential and timely. On that hypothesis, it is fair and

just that the respondents pay to the appellantt the rates

admissible as per Escorts. The claim of the appellant having

been found valid, the question posed at the outset 15

answered in the affirmative. Of course the sum of

Rs.40,000/- already paid to the appellant would have to be

adjusted in computation. Since the appellant did not have

his claim dealt with in the High Court in the manner it has

been projected now in this Court, we do not grant him any

interest for the intervening period, even though prayed for.

Let the difference be paid to the appellant within two

months positively. The appeal is accordingly allowed. There

need be no order as to costs.