Tamil Nadu

StateCommission

FA/116/2017

The President, - Complainant(s)

Versus

D. Mathivanan, S/o. Dakshinamurthi - Opp.Party(s)

D.Prabu and others

09 Nov 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                      PRESIDENT

              TMT. Dr. S.M.   LATHA  MAHESWARI,                                             MEMBER  

 

                              F.A.No.116/2017

(Against the order passed in C.C.No.34/2014, dated 10.02.2016 on the file of the District Commission, Tiruvarur.)

THE 09^th DAY OF NOVEMBER - 2021.

The President,

Z.A. 137, Thiruvarur Co-operative

    Housing Society Ltd.,

No.36, South Street,

Tiruvarur.                                                                                                                                      Appellant/1^st opposite party

 

               Vs

1.   D. Mathivanan,

      S/o. Dakshinamurthi,

      No.2/82, Kanoor (Athipuliyur)

      Keelatheru,  Adiyakkamangalam, Tiruvarur District.

 

      Represented by

      R.Agastheeswaran,

      Nannilam Taluk Consumer Protection Council,

      No.2, South Madavilagam  Peralam.                                                                                  1^st Respondent/Complainant

 

2.   The Deputy Registrar,

      Housing Society,

      Ramalingam Adigalar Educational

       Trust Building,

      Damet Thomas Nagar,

      Thanjavur.                                                                                                                      2^nd Respondent/2^nd opposite party

   

Counsel for the Appellant/1^st Opposite Party:  M/s. D. Prabha, Advocate.  

Counsel for the 1^st Respondent/Complainant:  M/s. G. Vinoth Kumar, Advocate.   

Counsel for the 2^nd Respondent/2^nd opposite party:- Served & Called absent. 

      

             This appeal is coming before us for final hearing on 09.11.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT. (Open Court)   

1.     This appeal has been filed by the appellant/1^st opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Tiruvarur, made in C.C.No.34/2014, dated 10.02.2016, allowing the complaint.        

2.      For the sake of convenience and brevity, the parties are referred to here as they ranked in the District Consumer Disputes Redressal Commission, Tiruvarur.         

3.       The brief facts which are necessary to decide this appeal is as follows;-

         The case of the complainant before the District Commission is that he had served as Secretary in the first opposite party’s office and on attaining superannuation on 31.10.2011 he retired from service and totally he had served for a period of 33 years.  After the retirement, on 31.10.2011, his gratuity, provident fund amount and arrears of salary was not paid by the 1^st opposite party Society and as on date a sum of Rs.11,76,873/- is due to be payable to the complainant by the 1^st opposite party. Hence, the complainant lodged a complaint with the Consumer Protection Council, Nannilam on 04.09.2014. Thereafter, a part amount was paid to the complainant through cheque and subsequently the complainant issued a letter on 12.09.2014 to the opposite parties for payment of the entire amount.  But the said letter was not responded and hence lastly the complainant filed a consumer complaint before the District Commission through the Consumer Protection Counsel claiming a sum of Rs.11,76,873/- being the retirement benefit and Rs.30,000/- as compensation for mental agony with cost of Rs.3000/-.  

4.      The complaint was resisted by the opposite parties by contending inter alia that the issue raised by the complainant is not maintainable before the Consumer Commission. If at all there is any grievances with regard to the non-payment of provident fund amount, gratuity and other pension benefits the complainant has to approach the Arbitrator, as per the rules of the Society.  The complaint has not filed the complaint within the period of two years from the date of superannuation and therefore the complaint is barred by limitation.  The Consumer Protection Council has no authority to file a complaint on behalf of the complainant. The 1^st opposite party also denied the statement of the complainant that a portion of the amount was paid only on 02.11.2012 through cheque. The said averment was purposely added in order to save the period of limitation. Thus, the opposite parties sought for dismissal of the complaint.       

5.        In order to prove their case, before the District Commission, the complainant and the 1^st opposite party have filed their respective proof affidavit in support of their case.  Exhibits A1 to A8 were marked on the side of the complainant and no document was marked on the side of the 1^st opposite party.    

6.       The District Commission by analysing the materials available on records has allowed the complaint by holding that there is deficiency in service on the part of the opposite parties and directed them to pay the complainant a sum of Rs.11,76.873/- towards the retirement benefit and also to pay a sum of Rs.20,000/- as compensation for deficiency in service and mental agony suffered by the complainant with litigation expenses of Rs.2000/- with default interest at the rate of 9% per annum.  Aggrieved over the above order, the 1^st opposite party has preferred this appeal praying for setting aside the same.

7.      The counsel for the appellant/1^st opposite party submitted that the complainant had attained superannuation on 31.10.2011. If the provident fund, gratuity and other retirement benefit was not paid to him, he has to approach the Arbitrator as per the rules of the Society and not a Consumer Commission since there is no consumer and service provider relationship between the complainant and the opposite parties.  When the provident fund, gratuity related issues are governed by the different provisions of Laws, the complainant ought to have approached the competent authority under such Act to redress his grievances.  It is  further submitted by the appellant/1^st opposite party that when the complainant has attained superannuation on 31.10.2011, he ought to have filed this complaint within two years from the date of superannuation whereas the complaint was filed only on 27.11.2014 beyond the period of limitation.  Therefore, on the ground of limitation the complaint is liable to be dismissed.  In this regard, the counsel for the appellant/1^st opposite party relied on a judgement of this Commission delivered in F.A.No.113/20 in the case of B. Premavathy & Others – Vs – Regional Commissioner, Employees Provident Fund & Others wherein it has been held that the complaint has to be filed within two years from the date of retirement and as the above judgement is squarely applicable to this case the complaint is barred by limitation.

8.     Countering the submissions, the counsel for the 1^st respondent/complainant submitted that this is a clear case of deficiency in service.  The non-payment of gratuity and provident fund would fall within the purview of the deficiency in service.  In support of this contention, the learned counsel for the 1^st respondent/complainant relied on a decision of the Hon’ble Apex Court, reported in AIR 2008 SC 2957, wherein in the case of Regional Provident Fund Commissioner – Vs – Bhawani, the Apex Court has held that the Regional Provident Fund Commissioner is a service provider under section 2(1)(o) of the Consumer Protection Act. With regard to the ground of limitation raised by the appellant, it is replied by the 1^st respondent/complainant that the complainant retired from the service on 31.10.2011 and the appellant/1^st opposite party issued a cheque for Rs.26,262/- on 01.11.2012. Therefore, from that date the limitation has to be computed. In the instant case, the complaint was filed on 27.11.2014.  Therefore, the complaint has been filed within the period of limitation.

9.        Heard the submissions made by both sides and perused the materials available on record. The submissions of the appellant/1^st opposite party are based only on two grounds.  Firstly, the issue as to whether the non-payment provident fund amount, gratuity amount would attract the provisions of the Consumer Protection Act.  Secondly, whether the complaint is barred by limitation since the same was not filed within the period of two years from the date of superannuation. So far as the first ground is concerned, the judgement of the Hon’ble Supreme Court of India, reported in AIR 2008 SC 2952,  relied on by the counsel for the 1^st respondent/complainant is given a fitting answer wherein the Hon’ble Apex Court has held as follows’-“  Regarding the non-applicability of the Consumer Protection Act to the case of the respondent must also be rejected on account of the fact that the Reginal Provident Fund Commissioner, who us the person responsible for the working of the 1995 Pension Scheme, must be held to be a “ service giver” within the meaning of section 2(1)(o) of the Consumer Protection Act. Nor is this a case of rendering of free service or rendering of service under a contract of personal service so as to bring the relationship between the appellant and respondent within the concept of “master and servant”.  In our view, the respondent comes squarely within the definition of “consumer “within the meaning of Section 2(1)(d)(ii), inasmuch as, by becoming a member of the Employees’  Family Pension Scheme, 1971 and contributing to the same, she was availing of the services rendered by the appellant for implementation of the scheme.”.  The sheer reading of the above judgement would clearly show that non-payment of provident fund amounts to deficiency in service. Therefore, the complaint is maintainable before the Consumer Commission. The counsel for the appellant/1^st opposite party has also relied on a judgement of this Commission delivered in F.A.No.113/2010. On reading of the said judgement, the same would show that one of the issues in the said case is with regard to non-payment of the pension amount and therefore this Commission has come to the conclusion that for payment of pension amount, Proper Forum is elsewhere not the Consumer Commission.  Therefore, that judgement has no relevance to the facts of the present case.  

10.          So far as the limitation period is concerned, it is the case of the appellant/1^st opposite party that the complainant had attained superannuation on 31.10.2011 and therefore the complainant ought to have filed this complaint within the period of two years from the date of superannuation whereas the complainant has filed this complaint only on 27.11.2014.  Therefore, the complaint is barred by limitation.  But, on perusal of Ex A1, we find that the complaint was submitted by the complainant to the Consumer Counsel on 04.09.2014, it could be seen that the complainant has received a portion of the amount of Rs.26,262/- on 01.11.2012 and the complaint was filed in November 2014.  Hence, according to the complainant, the complaint was filed within the period of limitation.  We find some force in the said statement made by the counsel for the complainant/1^st respondent. Moreover, when the complainant has not admitted the payment of Rs.26,262/- on 01.11.2012 specifically,  the technical defence raised by the opposite parties that the complaint is barred by limitation will not help them in any way against the genuine case of the complainant.  In our opinion, by denying the legitimate claim of the complainant, the appellant/1^st opposite party put the complainant to undergo mental agony.  Therefore, we are of the view that the District Commission has rightly come to the conclusion by granting relief to the complainant in which we do not find any error or infirmity and therefore the appeal is to be dismissed confirming the order of the District Commission.  

11.       In the result, the appeal is dismissed by confirming the order of the District Commission, Thiruvarur, made in C.C.No.34/2014, dated 10.02.2016.  There shall be no order as to costs in this appeal.       

 

 

 

S.M. LATHA MAHESWARI,                                                                                                                              R. SUBBIAH,

           MEMBER.                                                                                                                                                   PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Nov/2021