By Sri. Mohamed Ismayil.C.V, Member
The grievance of the complainant are submitted hereunder:-
1. The complainant is a member of Employees’ State Insurance Corporation, the opposite party. The membership is 7204137930 number and the complainant joined in the benefit scheme while he was working in firm named Popular Motors. Subsequent to the closure of popular motors, he joined in APCO Honda. On 22-06-2018, the complainant met with an road accident and seriously injured. The complainant spent 15 days in hospital for the treatment. After the above said accident, the complainant could not go for work. The opposite party had provided all insurance benefit to the complainant including last instalment of Rs. 12,688/-(Rupees Twelve thousand six hundred an eighty eight only) after complying medical examination as directed by the opposite party. The opposite party issued a notice dated 20/05/2019 to the complainant demanding to refund Rs. 12,688/- on ground of false statement and the complainant as an undeserved person. The complainant as an received the notice at the time of physical disability and afflicted with diseases. On 08/06/2019 the complainant sent reply to the opposite party stating that no false statement was made and he was legally entitled for the amount received by him. It is alleged by the complainant that even after his reply, the opposite party was haunting and threatening him to refund Rs. 12,688/-. Meanwhile the physical condition of the complainant was severally worsened resulting the amputation of his leg. But the opposite party continued to harass the complainant. On 16/02/2020 the opposite party again sent a notice No.72/F/16/19200 to the complainant demanding to refund Rs. 12,688/- as the complainant was not legally entitled to it. It is averred in the complaint that the complainant is entitled to receive Rs. 12,688/- from the opposite party and did not made any mis representation for availing the benefit under the scheme. It is further stated by the complainant that he received Rs. 12,688/- from the opposite party after complying all directions and formalities suggested by the opposite party and even he underwent medical examination. The benefit is issued by the opposite party on the legal ground. The complainant did not act illegally for securing the benefit from the opposite party. The complainant is entitled for the amount of Rs. 12,688/- received as benefit of the scheme. The complainant is not in a position to refund the above received amount as there was no financial source and his legs are amputed. So the complainant attributes deficiency in service against the opposite party. According to the complainant, the opposite party acted negligently resulting mental agony and hardship to the complainant. So the complainant approached this Commission praying for a direction to the opposite party to declare the amount received by the complainant as legally entitled one and prohibiting the opposite party from taking any action against the complainant for the recovery of the money. The complainant prayed for a direction to the opposite party to pay compensation of Rs. 1,00,000/- to the complainant for the sufferings of mental agony and hardship due to the negligent act of the opposite party. The complainant prayed for a direction to the opposite party to pay compensation of Rs. 1,00,000/-for the sufferings of financial loss . The complainant also demanded Rs. 20,000/- from the opposite party as the cost of the proceedings.
2. The complaint is admitted on the file and issued notice to the opposite party. The opposite party entered appearance and filed version.
3. The opposite party contended that the complaint is not maintainable and the allegations are denied. According to the opposite party, the Extended Sickness Benefit is paid to an insured person where he has exhausted sickness benefit due to him or is ineligible to it after recognition of diagnosis by medical referee as eligible for Extended Sickness Benefit. It is stated in the version that the complainant has not completed 4 contribution periods immediately preceding the spell of sickness. As per one of the conditions to be satisfied by the complainant to eligible for Extended Sickness Benefit is that at the beginning of the spell, the complainant should be in continuous employment for a period of 2 years or more in a covered factory or establishment. According to the opposite party, the term “ continuous employment” means that the insured person should have completed 4 contribution periods immediately preceding the spell of sickness. Secondly the contribution should have been paid/payable for 156 days in the above said 4 contribution periods in respect of the insured person. So considering the above criteria, the complainant is not eligible for Extended Sickness Benefit. It is further contended by the opposite party that as per S. 70 of ESI Act if any person has received any benefit or payment under the ESI Act, when he is not entitled thereto, he shall be liable to repay to the corporation the value of benefit or the amount of such payments, or in case of death his representative shall be liable to repay the same from the assets of the deceased if any, in his hands. So the complainant is liable to return the amount which he had received as benefit. According to the opposite party, the District Consumer Disputes Redressal Commission has no jurisdiction to entertain the complaint. So the opposite party prayed for dismissal of the complaint with compensatory cost.
4. The complainant and the opposite party filed affidavits as part of their evidence. The complainant also produced documents and marked them as Ext. A1 to A7 documents. Ext. A1 document is the copy of notice No.7204137930/MVR dated 20/05/2019 issued by the opposite party demanding to refund Rs.12,688/-. Ext.A2 document is the copy of registered reply notice dated 08/06/2019 issued to the opposite party. Ext. A3 document is the copy of notice No.72/F/16/2020 issued by the opposite party to the complainant. Ext.A4 document is the copy of discharge summary dated 16/10/2019 showing the amputation of leg. Ext. A5 series documents is the copy of RM form undated, and copies of RM Forms dated 17/10/2018 and 27/11/2018 along with copies of ESIC MED (F) (information of sickness) dated0/10/2018,15/10/2018,22/10/2018 and 29/11/2018. Ext.A6 document is the copy of discharge summary dated 10/04/2021 showing the details of amputation of second leg of the complainant. Ext. A7 document is the copy of photograph of the complaint.
5. Heard both sides in detail. Read all available documents along with affidavits. The Commission considered the following points for adjudicating the matter:-
Is there any kind of deficiency in service on the part of the opposite party?
Relief and cost.
6. Point No.1 and 2:-
Both parties admitted that the complainant subscribed a membership as per ESI Act. But according to the opposite party , the complainant was not entitled for Rs. 12,688/- as insurance benefit and the complainant should have refunded the said amount immediately as per Section 70 of ESI Act. The case of the complainant is that after his subscription of membership in the scheme, he met with an accident and spent 15 days in hospital for treatment. As a result, he could not got for work. The complainant produced copies of two discharge summaries issued by the hospital authorities which are indicative of his physical condition. The copy of discharge summary dated 16/10/2019 is marked as Ext. A4 document. Ext. A4 document clearly shows that his below knee amputation was done on 09/04/2019. The complainant produced copy of another discharge summary dated 10/04/2021 issued from Government Medical College Hospital, Manjeri and same is marked as Ext. A6 document. Ext.A4 and Ext. A6 document would show that both legs are amputed. Moreover, the complainant produced copy of his photograph and marked as Ext. A7 document. It would also show that both legs are amputed. Ext. A6 document is issued by the hospital authority after filing of this complaint. The specific case of the complainant is that, he met with accident and thereafter he could not go for work. It is admitted by the complainant, he received all benefit under ESI Act including Rs. 12,688/-. But at the same the complainant contended that he produced all necessary documents for availing benefit and even undergone medical examination as per the direction of opposite party. The complainant produced copies of RM forms and copies of ESIC MED(F) (information of sickness) before the Commission and those documents are marked as Ext. A5 series documents. Ext.A5 documents would show that the complainant had completed formalities by the direction of the opposite party. It is categorically stated by the complainant that he is legally entitled for the sum of Rs. 12,688/- as insurance benefit and he had not done any misrepresentation or did not act illegally for availing the benefit. Per contra, the opposite party issued a notice dated 20/05/2019 to the complainant demanding refund of the amount received by the complainant. The copy of notice produced by the complainant is marked as Ext. A1 document. The complainant replied to Ext. A1 notice and copy of reply is produced by the complainant and marked by Ext. A2 document. In Ext. A2 document, it specifically pleaded by the complainant that he was legally entitled for the amount received as the benefit accrued under ESI Act. But the opposite party again sent notice dated 16/12/2020 to the complainant demanding to repay the excess amount received by the complainant. Issuance of Ext. A1 and A3 documents would show that the opposite party was constantly making pressure over the complainant to get refunded the amount received by the complainant. But during the proceedings of the case the opposite party did not reveal the situation which had led the release or insurance benefit of Rs. 12,688/- in favour of the complainant. Moreover the opposite party failed to produce any documentary evidence before the Commission to show that a mistake or dereliction had committed in releasing insurance benefit to the complainant. The opposite party contended that they got every right even though the Extended Sickness Benefit is paid to the complainant where he was exhausted sickness benefit due to him or is in eligible to it after recognition of diagnosis by medical referee as eligible for Extended Sickness Benefit. Moreover, according to the opposite party the complainant should be in continuous employment for a period of 2 years or more in a covered factory or establishment. From the evidence of the complainant, it can be seen that he was joined in the ESI Scheme in the 2016 and later he was met with an accident and consequently, he was unable to continue in his work. So the Commission finds that the opposite party failed to substantiate the validity of issuance of Ext. A1 and A3 documents. During the pendency of the case, the opposite party filed an application numbered as IA 20/2020 challenging the maintainability of the complaint. The complainant filed counter statement. The Commission considered IA No. 20/2020 during the time of final hearing of the case. As per Section 100 of the Consumer Protection Act, 2019 the provision of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So the insured person under ESI Act is eligible for institution of complaint before this Commission for redressing his grievances . The Commission finds no merit in the argument of the opposite party with regard maintainability of the complaint. The complainant is filed an interim application (IA No. 243/2020) for an order to restraining the opposite party from taking any further action to realise the amount of Rs. 12,688/- from the complainant till the final disposal of the complaint. The interim application was allowed after hearing both sides. The complainant does not have a case of non availability of insurance benefit from the opposite party. So the Commission declined to order compensation to the complainant. But the opposite party unnecessarily dragged a physical unfit person into a legal battle. So the Commission allows the prayer of the complainant for cost of the proceedings. In this juncture, the Commission finds that there is nothing to show the validity of Ext. A1 and Ext. A3 documents from the side of the opposite party. The Commission conclude that the complainant needs not refund the benefit availed under ESI Act. Hence the complaint is allowed in the following manner:-
The opposite party is directed to take no action against the complainant to
recover the amount of Rs. 12,688/-(Rupees Twelve thousand six hundred and eighty eight only) which was released under the Insurance Scheme.
The opposite party is directed to pay Rs. 5,000/- (Rupees Five thousand only) as the cost of proceedings to the complainant.
The opposite party shall comply this order within 30 days from the date of receipt of copy of this order otherwise the entire amount shall bear additional 9% interest from the date of this order till the realization.
Dated this 27th day of March, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A4.
Ext. A1 : Document is the copy of notice No.7204137930/MVR dated 20/05/2019
issued by the opposite party demanding to refunded Rs.12,688/-.
Ext. A2 : Document is the copy of registered reply notice dated 08/06/2019 issued
to the opposite party.
Ext. A3 : Document is the copy of notice No.72/F/16/2020 issued by the opposite
party to the complainant
Ext. A4 : Document is the copy of discharge summary dated 16/10/2019 showing
the leg of the complainant is amputed.
Ext. A5: Documents are the copy of RM form undated, and copies of RM Forms
dated 17/10/2018 and 27/11/2018 along with copies of ESIC MED(F)
(information of sickness) dated 0/10/2018,15/10/2018,22/10/2018 and
29/11/2018.
Ext. A6 : Document is the copy of discharge summary dated 10/04/2021 showing the
details of amputation of second leg of the complainant.
Ext. A7: Document is the copy of photograph of the complaint.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
CPR
