BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H.Prasad,,B.A.,LL.B.,President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 6th day of June, 2008
C.C.No.150/06
Between:
G. Sharat Babu,
S/o. G. Krishna Murthy,
Resident of D.No.26,348, Peta,
Kurnool. … Complainant
Versus
- The Manager,
Kapil Chit Funds (P) Limited,
Kurnool Branch,
Opp. Zilla Parishad,
Kurnool.
- The Assistant General Manager,
Kapil Chit Funds (P) Limited,
Kurnool Branch,
Opp. Zilla Parishad,
Kurnool.
- The Managing Director,
Kapil Chit Funds (P) Limited,
Plot No.84, P & T Colony,
Gunrock Enclave,
Secunderabad.
- The Manager,
E.S.I. Corporation,
Opp. Balaji Hotel, Bellary Road,
Kurnool. … Opposite party
This complaint is coming on this day for orders in the presence of Sri. M. Sivaji Rao, Advocate, for the complainant, and Sri.A. Rama Subba Reddy, Advocate, for the opposite party No.1,2 and 3 and Sri. E.Sreenivasulu, Advocate for opposite party No.4 and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.150/06
1. This case of the complainant is filed U/s 12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay to the complainant Rs.13,00,000/- with 24% interest p.a from the date of accident, Rs.10,000/- towards costs alleging deficiency on the part of the opposite party No.3, under whom opposite parties 1, 2 are working, in not issuing ESI card to the complainant as its Employee and not in sending their part of contribution to employers State Insurance Fund along with the contribution of complainant at Rs.68/- per month as their employee to opposite party No.4 and the deficiency of OP.No.4 in refusing to give treatment to the severe burn injuries of the complainant, who met with fire accident on 23-7-2005, which constrained the complaint to under go treatment in Viswa Bharathi Hospital, Kurnool incurring an expenditure of Rs.1,00,000/- besides to confining to bed for two months at half pay leave of Rs.2,000/- and further necessitating medical expenses of Rs.2,000/- per month and a plastic surgery worth Rs.2,00,000/- for disfiguration of face and the above caused mental agony to the complainant of Rs.8,00,000/- worth.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties 1 to 4 contested the case filling written version denying any of their liability to the complainant’s claim.
3. In substantiation of their contentions while the complainant’s side has taken reliance on documentary record in Ex.A1 to A7 and sworn affidavit of complainant and third party (G.Anil) and the evidence of PW.1 Dr.Sudharshan who lent treatment to the complainant, the opposite party side has taken reliance on the documentary record in Ex.B1 to B7 and sworn affidavit of opposite parties 1 and 4.
4. Hence, the point for consideration is whether the complainant has made out the liability of the opposite parties 1 to 4 to the complainant’s claim.
5. The written version of the opposite party No.1 adopted by the opposite parties 2 and 3, admits the status and privy of the complainant to it as its employee and his entitle ness to the benefits of the employees insurance, but disowns any of his duty to furnish ESI card to the complainant as it is duty of ESI corporation (OP.No.4). Neither the legal notice dated 6-7-2006 (Ex.A6) nor the reply to said notice in Ex.A7 dated 21-9-2006 takes any mention as to this aspect of issual ESI card.
6. Regulation No.17 of Employees State Insurance (general) Regulations, 1980 casts a duty on the ESI - who receives the declaration of the employee through its employer - to prepare ESI identity card in form 4 for each employee in respect of whom an insurance number is allotted and to send all such identity cards to the employer and the latter shall deliver the said identity card to the employee after obtaining the employee’s acknowledgment. Hence what follows from the above is that when an employer sends declarations of his employees to the ESI the latter has to prepare and issue necessary identity cards of the employees and send it to the employer for their delivery to the concerned employee under acknowledgment.
7. Regulation No.14 of Employees State Insurance (general) Regulations, 1980 contemplates the sending of said declarations of employees obtained by employer, on the employee joining is employment, along with Form No.3 within 10 days from therein.
8. Hence, if the employee does not get necessary identity card contemplated under the ESI Act both the employer and ESI are equally hold their liability as to their deficiency in furnishing identity card to the employee as both are having their duties to comply viz., employer to obtain declaration after employee joins employment and send declaration to the ESI along Form No.3 and the later has to prepare and issue necessary identity card and transmit to the employer for its delivery to the employee. As contribution of Rs.68/- per month was made by the employer from the salary of the employee contributed to the ESI along with its contribution all other things as contemplated under Regulation No.14 and 17 are to be held as complied in positive till otherwise proved.
9. The complaint and the complainant’s sworn affidavit and the Ex.A6 legal notice dated 6-7-2006 alleges that he was refused treatment of his accidental burn injuries on his approach to ESI Hospital (OP.NO.4) on the pretext that no contribution is received from complainant’s employer. But where as G. Anil the 3rd party of the complainant in his affidavit says the reasons for refusal of treatment to the complainant is non production of the ESI card, which the complainant himself does not say. While such is the inconsistency with the complainant and his 3rd party as to the reasons for refusal for lending treatment to the complainant, the Ex.B4 letter dated 20-6-2006 addressed by complainant to the opposite party No.1 does not whisper of any of complainants approach for treatment to his accidental burn injuries to ESI Hospital (OP.No.4) and any of the later refusal for treatment on either grounds stated supra finding fault with the conduct of his employer only. As the fact of complainant sustaining injuries and getting treatment elsewhere as not disputed and as an employee contributing to the ESI fund as remaining entitled to the benefits of insurance under ESI Act the above said inconsistency does not appear to be so material effecting merits of the case.
10. The Ex.B4 only alleges as to non issual of ESI identity card by the employer of the complainant as neither the complainant nor the Ex.A6 legal notice dated 6-7-2006 caused to opposite parties 1,3 and 4 does take any such mention. But however as no material appears form the opposite parties 1 to 3 as to delivery of any ESI identity card to the complainant in due discharge of their obligation under Rule 17 of Employees State Insurance (general) Regulations, 1980 the non issual of identity card to the complainant by his employer is held in favour of the complainant.
11. The statement of objects and reasons of Amendment Act 44 of 1966, Act 38 of 1975, and Act 45 of 1984 says the Employees State Insurance Act, 1948 provides benefits to employees in case of sickness, maternity and employment injury and for certain other matters in relation there to. It is submitted for opposite parties 1 to 3 that the insurance benefit under ESI Act 1948 to the employee is available only to employment injuries arising in course of employment. There is any express provision in the Act limiting the liability of insurance to employment injuries only. If the intention of the statute is to limit the insurance benefit only to sickness arising out of employment injury it would not have included in its fold the aspects of maternity which could be extendable to the non employee members of the employee also and it would have clearly stated that the insurance benefit will be available to the sickness arising out of employment injury only. When the statement of object and reasons of supra stated Amendment Acts says the Act provides benefits to employee in case of sickness, maternity and employment injury and certain other matters in relation there to limiting to insurance liability to one of them only shall not be in agreement with the objects and reasons of the act and so such an interpretation of opposite parties appears to be of any merit worthy of consideration.
12. Hence, the criteria to be taken to consideration for extending the benefit of insurance to the employee is his sickness however it may occur and need not be only on account of any employment injury, as long as the definition of sickness mentioned in Sec.2 (20) of ESI Act,1948 has been satisfied.
13. Sickness is defined as such condition which requires medical treatment and attendance and abstention from work on medical grounds. From the material in Ex.A2 – case sheet and Ex.A2 to A5 (Medical Bills of incurred Expenditure) it remains clear that the complainant for his sustained injuries required medical attendance and treatment. The fact of the complainant being paid half pay salary during said period of treatment envisaging his abstention from duty. Hence, the condition of the complainant on said accidental burn injuries is satisfying the requirement of definition of sickness as for extending the insurance benefits under the ESI Act, 1948. As the status and privy of the complainant as employee is admitted besides to contribution deducted from his salary under Ex.B5 and B6 issued by OP.No.4. The case of the complainant for insurance claim under ESI Act remains good irrespective of the fact of compliance or non-compliance of Rules 14 and 17 by the opposite parties 1 to 4. Further in the above said circumstances the entries the Ex.B1 and B2 showing the wording “left” against the name of the complainant appears to be of any avail to the opposite parties 1 to 3 as there orgination dates to 17-4-2006 and the accidental injuries of the complainant occurred on 23-7-2005 while the complainant was employees of opposite parties 1 to 3 and the said entrees in Ex.B1 and B2 being sufficiently after to it.
14. The decision cited by the learner counsel for the opposite parties 1 to 3 reported in 1996 (6) SC cases Pg.1 in reasonal Director ESI corporation and another Vs Francis De Costa and another as says of the scope and what constitutes an employment injury and not limits and excludes the scope and applicability of the benefits of insurance under ESI Act to other aspects, does not appear to be any relevant application to the set of circumstances of this case.
15. The material in EX.A3 in the light of the evidence of PW.1 Dr. B. Sudharshan – a Plastic Surgeon and Consultant Surgeon to Viswa Bharathi Hospital – where the complainant took treatment to his accidental burn injuries gives an estimate of expenditure of Rs,1,50,000/- for plastic surgery for reconstruction of ear which was damaged in said fire accident. Nothing much to discredit its worth comes forth in the cross examination of said PW.1. In the same way the expenditure incurred for the amounts shown in Ex.A4 (two bills) and Ex.A5 (bunch of 41 bills) was not disputed much by the opposite parties as they are more interested in their plea of non entitlement of any ESI insurance benefits to the complainant rather than the bonafidees of said incurred expenditure appear in Ex.A3 to A5 which are totaling to Rs.3,55,530.60/- when rounded to nearest Rupee is Rs.3,55,534/-. As the insurance under ESI Act provides reimbursement of reasonable expenses and the complainant is not claim more than Rs.3,00,000/- towards the incurred medical expenditure, the complainant is not remaining entitled to that of Rs.3,55,534/- and thereby remaining entitled to Rs.3,00,000/- extent only as claimed in the complaint.
16. As the complainant has not placed any cogent material which will justify his claim of Rs.8,00,000/- as compensation and damage towards the alleged loss he is not remaining entitled to said claim .
17. As the opposite parties by their indifferent and deficient conduct not made available ESI identity card for availing the benefits under ESI Act, collecting necessary contributions from the complainant and thereby constrained the complainant to take treatment for his accidental injuries in private hospital at the expenditure of considerable amount and driven the complainant for remedy of his grievances to the forum, a liability of opposite parties for Rs.20,000/- as compensation for mental agony and cost of Rs.3,000/- to complainant appears to be reasonable and justifiable.
18. As the consumer protection Act no where excludes or forbids an employee from acquiring the status of consumer when by contribution as an employee is remaining entitled to the service of employer under ESI Act and can agitate for the deprived statutory insurance benefits under the ESI Act occurred at the deficient conduct of the opposite parties there appears any merit and force in the contention of the opposite parties as maintainability of the complainant’s case alleging him as not a consumer.
19. In the same way there appears any merit in the contentions of the opposite party that the complainant has got reimbursement of his expenditure under other insurance as any claim under other insurance does not disentitle the complainant of the entitle benefits of ESI Act.
20. Hence, in sum up of above discussion the complaint is allowed ordering the opposite parties 1 to 4 at their joint and several liability to pay to the complainant Rs.3,00,000/- towards medical expenditure incurred and incurable medical expenditure, Rs.20,000/- as compensation for mental agony and Rs.3,000/- as costs of this case within a month of receipt of this order. In default the opposite party shall be jointly and severally liable to pay the supra award amount with 9% interest from the date of said default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 6th day of June, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
PW.1. Deposition of PW.1, dated 1-5-2007
(Dr. B. Sudharshan)
List of exhibits marked for the complainant:-
Ex.A1. Case sheet pertaining to the treatment given
to the complainant.
Ex.A2. Case sheet pertaining to the complainant for
for the treatment given from 6-9-05 to 7-9-05.
Ex.A3. Estimation certificate, dated 21-6-2006.
Ex.A4. A bunch of two (2) bills as to Hospitalization expenses.
Ex.A5. A bunch of 41 bills as to the purchase of medicines.
Ex.A6. Office copy of legal notice, dated 06-7-2006 along with
postal receipts and acknowledgment of OP.No.4.
Ex.A7. Reply of opposite party No.1 & 3. dated 21-9-2006 to Ex.A6.
List of exhibits marked for the opposite parties:
Ex.B1. Return of declaration form, submitted by OP.No.1
Ex.B2. Continuation sheet in form 3-A,
Ex.B3. Declaration form and regulation 11 and 12.
Ex.B4. Letter, dated 20-6-2006 of complainant to OP.No.4.
Ex.B5. Attested Xerox return of contribution/regulation
26 in form No.6 (No. in 2 papers)
Ex.B6. Attested Xerox pay-in-slip for contribution.
Ex.B7. Proforma of certificate of employment.
Sd/- Sd/-
MEMBER PRESIDENT
Copy to:-
1. Sri. M. Sivaji Rao, Advocate, for complainant.
2. Sri. A. Rama Subba Reddy, Advocate, for Ops 1,2 and 3.
3. Sri. E. Sreenivasulu, Advocate, for OP.No.4.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
