IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan : President Smt.K.P.Prethakumari : Member Smt.M.D.Jessy : Member Dated this, the 1st day of February 2010 CC.No.60/2006 P.V.Rajamohan, Kakkunnath House, P.O.Pallikunnu, Kannur 4. (Rep. byAdv.K.Sahadevan) Complainant 1.Dist.Executive Officer, Kerala Motor Transport Workers Welfare Fund Board, Ashoka Building, Talikkavu,Kannur 1. 2. Chief Executive Officer, Kerala Motor Workers Welfare Fund Board, Opposite parties Kollam 1. (Rep. by Adv.K.K.Balaram) O R D E R Sri.K.Gopalan, President This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to allow the complainant to continue his membership without break in service or else to pay the eligible amount Rs.72632/- with interest and cost. The facts of the case of the complainant in brief are as follows: the complainant is an Auto rickshaw driver and a member of the Kerala Autoricksha Thozhilali Kshemanidhi with an account number AW.1300010.He took membership in Welfare Fund on 28.10.1991. He was contributing to the Fund till the month of May 2005. Without any default. He completed his 50 years of age in May 2005. He had not been allowed thereafter to continue his membership and to pay contribution since the age limit was 50 years for retirement. Then he was directed to submit application to get the retirement benefit from the Fund. Complainant submitted the application and opposite party thereafter, informed by order AG.496/05 dt.30.10.05 that he was entitled to get totally an amount of Rs.7528/-. Complainant had paid an amount of Rs.5546/-towards the Fund but the opposite party has allowed him only an increase of anamount of Rs.1982/- a little more than what he has deposited. Another autoricksha driver named as Karuvan Kandy Veetil Raghavan joined in the same scheme on 29.1.1992 just 3 months after his joining in the Fund. He completed his retirement age of 50 years on 31.12.1999 and applied for retirement benefit. The total amount that he has paid during the scheme period was only 1920/- @ Rs.20/- per month. The order No.A/4/123/2000 dt.31.10.2000 granted Rs/.6218/- to Mr.Raghavan who had paid only a total amount of Rs.1920/-. So the complainant sent a Lawyer notice pointing out the disparity but opposite party sent reply with baseless and vague explanations. Complainant again sends a detailed letter with more particulars showing error that has been committed by the opposite party in calculating the amount. But opposite party neither sends reply nor sanctioned the amount agreed to grant earlier. When the complainant took membership, the age limit was 60 years. Subsequently in 1999 the age limit was reduced to 50 years. But in the year 2005 the age limit again raised to 60- years. Since the age limit was increased to 60 years complainant was eligible to continue in membership but 1st opposite party did not allow him to continue. The application for retirement was compulsorily obtained by opposite party. At present the retirement age limit is 60 years. But the complainant, who has been compulsorily forced to retire have to be joined in Welfare scheme without which the tax of the autorikshaw will not be received. Because of this reason itself the membership of the complainant has to be allowed to continue with retrospective effect. Complainant was compelled to retire in May 2005 and joined again in June 2005 which shows that there is no break in service. Though there is no break of service complainant has lost his seniority though started his membership from June 2005 onwards. It is a gross injustice complainant requested the opposite parties to permit him to continue as a member in the fund maintaining his seniority. But they are not allowing. Hence this complaint to direct the opposite parties either to allow to continue the membership on the basis of existing terms and conditions with retrospective effect or else to pay the eligible amount Rs.72632/- with interest and cost Pursuant to the notice opposite parties entered appearance and filed version jointly. The brief facts of the contentions are as follows: The complainant joined in the Welfare Scheme from 28.10.91 onwards till 1999. He deposited @Rs.20/- per month as share of the Thozhilali for a period of 7 years and 6 months. Complainant was also the owner of the vehicle. So he was also liable to pay Rs.10/- per month as owner’s contribution to welfare fund but he did not pay the same till 1999. He is entitled to get the full benefit only if he contributes both the share of the Thozhilali and of the owner. From 10/91 to 3/99 the complainant deposited only Rs.1800/- in the Fund. So as per Para 10(13)4. 10(B) 6 of the Kerala Autorickhsaw Thozhilali Kshemanidhi rules he is entitled to get only Rs.3058/- after adding 5.5% interest to the total deposit of Rs.1800/- . He started depositing the owners share only in 1999. When he started depositing the revised workers share in accordance with the amendment of the scheme in 1999. Accordingly he deposited an amount of rs.3700/- from 4/99 to 5/05@ Rs.25/-as workers share and Rs.25/- as owners share. So he is entitled to get Rs.4470/- and he was granted a totally benefit of Rs.7528/- ie.3058+Rs.44.70). The case of the Raghavan is entirely different from that of the complainant. He was only a Thozhilali. He was not the owner. He is entitled to get full benefit on remitting the contribution @ Rs.20/- per month. The complainant retired on 28.10.1991 after attaining 50 years with a service of 13 years and 7 months. His retirement benefit had to be determined in two different stages. The retirement age was raised to 60 years as per the amendment in 2005. As per the amended rules the complainant is entitled to continue the membership as if he is not retired and to get the full benefit restored if he applies for the same. Even though these facts were told to the complainant he did not make any representation but preferred to file the complaint stating false allegations. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite parties? 2. Whether the complainant is entitled for the remedy as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of complainant as PW1, DW1, and Exts.A1 to A15 and B1 to B3. Issue Nos.1 to 3 Admittedly complainant was a member of the Kerala Auto rickshaw Thozhilali Kshemanidhi from 28.10.1991. The complainant contributed Rs.20/- per month as a worker’s share. As per the scheme he registered as a worker and owner of the vehicle. The case of the opposite party is that the complainant was to pay Rs.10/- per month as owners share to get the full benefit. Complainant contributed only workers share and defaulted in paying owner’s share from10/91 to 3/99. So the amount of contribution of the complainant was only Rs.1800/-. He is also entitled for 5.5% interest. As such he is totally entitled for an amount of Rs.3058 as per rules. After amendment in 1999 the contribution raised to Rs.25 each for worker as well as the owner. From 4/99 to 5/05 the complainant contributed Rs.50/-. He applied for retirement on attaining 50years of age as per Ext.A1.So he was granted Rs.7, 528/-. Complainant on the other hand alleged that form 28.10.91 onwards he had been paying his contribution without fail. The Kannur district Executive Officer of the Welfare Fund refused to accept the contribution from the complainant from 5/2005, when the complainant attained 50 years of age and compelled the complainant to submit application for retirement benefit from the Fund. Therefore he was constrained to submit applications. Then the opposite parties informed that complainant is entitled for a total amount of Rs.7, 528/- as retirement benefit. He had paid Rs.5546/- towards Fund but opposite party allowed only a meager amount of Rs.1982/- other than the contribution. At the very same time another Driver Mr.Raghavan who joined in the fund on 29.1.1992 and retired on 31.12.1999 on attaining 50 years of age was allowed Rs.6218/- as the retirement benefit. In other words the complainant who has 13 years and 7 months service allowed to have allowed only Rs.1982/- more than that of his contribution whereas, Mr.Raghavan who had only 8 years service Rs.4298/- more than the total amount of his contribution as benefit. This is unjustifiable and against rules. It can be seen that complainant Sri.Rajmohanan was worker and the owner of the vehicle. Therefore he was liable to remit contribution to the fund @Rs.20/- per month as a worker and @Rs.10/- as the owner as per the then existing rule. As per the amended rule 1999 towards the contribution workers share and owner’s share are @Rs.25/- each. It can be seen that in the old scheme for 7 years and 5 months from 10/91 to 3/99 complainant has not paid the owner’s contribution and thereafter complainant paid both workers contribution and owner’s contribution without fact. Since the retirement age was 50 years as per the then existing rule complainant applied for retirement benefit. Opposite party contended that the complainant did not make payment of owner’s share since 10/91 to 3/99 and hence not entitled for full benefit. The default of payment on the part of complainant is an admitted fact. An owner and worker are legally bound to remit contribution both that of owner and worker and if there is default he is not entitled for full benefit. The only explanation of complainant for the default that the opposite party did not inform him to remit he amount, which cannot be taken as a ground for justification of committing default. Thus the example of another member Mr.Raghavan cannot be compared with that of the complainant since Mr.Raghavan is only a worker and there is no question of default in his case. He is a person who is entitled for retirement benefit under Para 10(A). Complainant failed to establish his case that he is entitled for full benefit though there is default in payment of contribution. Complainant failed to give a justifiable explanati0on for his default in payment of owner’s share. Opposite party has given clear explanation of calculation up on which the benefit of the complainant was granted. Opposite party contended that the benefit was calculated as per Para 10(B) 4, 10(B) 6 of the amended Rule of Kerala Autorickshaw Thozhilali Kshema Nidhi. Complainant could not challenge this. If the complainant cannot establish that the calculation on the basis of this provision is not acceptable the contention with respect to the granting of retirement benefit remains to be valid since there is admitted default in payment of the share of owner’s contribution on the side of complainant. Complainant contended that a member who has paid his contribution without fault for a year he has right to get Rs.4842.13 as retirement benefit from the opposite parties. The very sentence itself is self explanatory that a member who made default in payment of contribution has no right to get the above said amount. The contention of the complainant that opposite party did not demand to pay the contribution cannot be taken in to account. Since there is provision for payment of rs.10/- per month as the share of owners contribution from 10/91 to 3/99 and thereafter with the amended Rule 1999, contribution Rs.25/- each for worker’s share and owner’s share. The above facts make it clear that there is no deficiency on the part of opposite parties in calculating the pensionery benefit on the basis of Para 10(B)4 and 10(B)6 of the amended rule of the Kerala Autorickshaw Thozhilali KshemaNidhi. The complainant became member of Welfare scheme right from 28.10.1991 onwards. The retirement age at that time was 60 years but in the year 1999 the retirement age was reduced to 50 years. It was again raised to 60 years in the year 2005. Complainant raised the contention that though the complainant was eligible to continue his membership for the scheme, the opposite party did not allow him to continue his membership but compelled him to submit his application to get the retirement benefit. Ext.A12 is the true copy of the application for retirement benefit. Ext.A1 contains thus: F\n¡v 20-þ5-þ2005-\p A³]Xp hb-Êv]qÀ¯n-bm-b-Xp-Im-c-WT t£a-\n[n AT-K-X-zT XpSÀ¶v sImp-t]m-hm³ km[n-¡m-¯-Xp-sIm-pT CXp-h-sc-bmbn bmsXmcp hn[ B\p-Iq-e-y-hpT In«m-¯-Xp-sIm-pT Cu ]²-Xn-{]-Im-cT F\n¡vIn«m³ AÀl-amb FÃm-hn[ B\p-Iq-e-y-hpT A\p-h-Zn-¨p-X-cp-hm³ CXn-\m At]-£n-¨p-sIm-f-fp-¶p. Ext.A1 does not reveals any sort of compulsion by the opposite party to submit such an application .Ext.A5 sent by District Executive Officer shows that the complainant was called to appear so as to consider the matters raised by him through his advocate. Ext.A6 reply to the Advocate of complainant also shows that opposite party has tried to explain the questions raised by the complainant. It has clearly stated that an owner is liable to contribute his share of contribution or otherwise he will not be eligible for the benefits as per Appendix II. This explanation reveals that the complainant is entitled for Rs.3,058/- as the total amount that he has remitted with interest for the default period and of the rest of period for which the payment of share of contribution were regular and continuous Rs.4,470/- as per benefit shown Appendix II. Hence in the light of available evidence or record we hold that there is no deficiency on the part of opposite party in calculation or in granting the amount of pensionary benefit. Even then the opposite parties has admitted that as per the amendment the complainant is entitled to apply for to continue the membership avoiding retirement and to get the benefits under the previous rules. Opposite party contended that complainant approached the Forum because of the grievance of the above said facts. Under such circumstances we are of opinion that opposite party has the obligation, since it is a welfare scheme to consider the case of the complainant favorably to continue his membership without break in the welfare fund scheme on the application of the complainant. Thus the issues 1 to 3 are partly allowed in favour of the complainant. In the result, complaint is allowed partly directing the opposite parties to take necessary steps to allow the complainant to continue the membership of the Welfare Fund without break counting the past service on getting a formal application from the complainant. The opposite party is further directed to complete the process within one month from the date of receiving the application and due amount necessary to pay from the complainant. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the letter sent to OP A2.Proceedintgs dt.31.10.05 sent by OP A3& 4.Copy of the regd. Letter sent to Ops and AD cards A5.Letter dt.12.12.05 sent by OP A6.Letter dt.16.12.05sent by OP A7.Copy of the letter dt.2.1.06 sent to OP A8.Postal AD A9.Letter dt.5.1.06 sent by OP A10& 11. Copy of the pass book of complainant and K.K.Raghavan. A12.Copy of the proceedings dt.3.10.2000 issued by OP A13.Copy of acknowledgement issued by Chief Executive of Auto rickshaw workers welfare fund scheme A14.Copy of the cheque issued by OP A15.Palmphlet issued by OP Exhibits for the opposite parties B1& B2.Copy of the gazette notification dt.22.4.1999 713.10.2003 B3.Copy of the Govt. order No.607/09 dt.29.4.09. Witness examined for the complainant PW1.Complainant Witness examined for the opposite parties DW1.Manoj Sebastian /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
......................PREETHAKUMARI.K.P | | 
