Date of filing:  09.12.2021                                                          Date of Disposal: 31.03.2023

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,      BENGALURU – 560 027.

DATED THIS THE 31^st DAY OF MARCH, 2023

CONSUMER COMPLAINT NO.461/2021

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mr. Sathiyanarayanan S,

S/o. Mr. S.G. Seshaiah,

Aged About 37 Years,

R/at: No.9, F1, Raga Sai

Madhuvanti Apartment,

Nagar, Madipakkam,

(Rep by Sri. Sathies Kumar, Advocate)

1) DELL India Private Limited,

Represented by:

1. Mr.Phanindra

2. Mr Sathyendra Pai (DELL PF TEAM)

Office address at:

Divyashree Greens No.12/1, 12/A & 13/A,

Koramangala Inner Main Road,

Koramangala Inner Main Road,

Domlur Post, Bangalore-560071.

(Sri.A.M.Iktear Uddin, Advocate)

2) Provident Fund Commissioner

No.36, Lakshmi Complex,

NH-4, Old Madras Road,

Opposite Syndicate Bank,

K.R. Puram, Whitefield,

Bangalore-560036.

(Smt. M.R.Shalamala, Advocate)

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

01.    The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to deposit the provident fund amount of Rs.1,04,934/- with interest at the rate of 8.5% per annum and such other relief as this Commission deems fit in the circumstances of the case.

02.    There is no dispute that, the complainant joined opposite party No.1 firm on 10.01.2008 and had resigned from company on 20.08.2010.  Further at that time the complainant was assigned the provident fund account No. KN/WF/35674/1326 and on which money was deposited as per law.  Further it is not in dispute that, opposite party No.2 had received a letter from opposite party No.1 dated: 04.03.2021 requesting to clarify the provident fund account relates to the complainant and one Naganand Kolar.  Further it is not in dispute that, opposite party had received DD for an amount of Rs.1,05,694/- and Rs.31,032/- respectively from opposite party No.1 and the same was re-credited to the petitioner’s EPF account.

03.    It is the further case of the complainant that, after leaving opposite party No.1 he had joined Wipro Limited and while he was at Wipro Limited he had applied to get his PF transferred to his Bank account by the email dated: 01.08.2011, and even after repeated follow-up for over an year the funds were not transferred to his account by opposite party No.1 and the complainant had intimated the same through email dated:02.01.2012 to opposite party No.1 and opposite party No.1 had replied through email dated: 05.01.2012 directing the complainant to lodge a complaint with Provident Fund Commissioner regarding the transfer status.  Since opposite party did not solve the grievance of the complainant, the complainant had issued legal notice dated: 18.02.2021 to opposite party requesting to deposit the provident fund amount to the complainant’s account and opposite party No.1 issued a reply notice dated: 09.03.2021 seeking time of 90 days for compliance.  Since the amount has not been credited to the account of the complainant the present complaint came to be filed.

04.    It is the contention of opposite party No.1 that, opposite party No.2 is the independent public officer entrusted to handle the provident fund related works.  Further since the grievance of the complainant was with regard to his alleged non-payment of provident fund, the relationship between the opposite party No.1 and the complainant is not that of a service provider and consumer.  Further opposite party No.1 had already settled the provident fund account of the complainant and the same was confirmed by opposite party No.2 through its letter dated: 05.01.2022 stating that, the amount related to provident fund account of the complainant was credited in to the member account relates to one Sathiyanarayanan (complainant).  Hence it is sought to dismiss the complaint.

05.    It is the further contention of opposite party No.2 that, it had received a letter dated: 04.03.2021 from opposite party No.1 requesting to clarify the provident fund account relates to the complainant and one Naganand Kolar and while verifying the office record it was found that, account details furnished by opposite party No.1 was corrected, but on verifying the provident fund settlement details it was found that, EPF account No.PY/KRP/35674/1437 was settled to one Naganand Kolar instead of the complainant.  Hence through the letter dated: 31.05.2021 opposite party No.1 informed that, the mistake was done due to oversight and opposite party No.1 was informed through mail dated: 22.10.2021 that, wrong settlement of amount recoverable from Sri. Nagananda Kolar is Rs.1,03,792/- and Rs.31,032/- including interest.  Hence the opposite party No.1 was directed to remit the same to EPF and EPS account of the complainant through separate DD in the name of “Regional PF Commissioner, KR Puram” through email dated: 26.10.2021.  Further since the amount has already been re-credited to the account of the complainant, it is sought to dismiss the complaint.

06.    To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and has produced the documents.   OP No.2 (RW.1) has filed affidavit in the form of his evidence in chief and has got marked EX.R.1 & EX.R.2 documents.  OP No.1 (RW.2) has filed affidavit in the form of his evidence in chief and has got marked EX.R.3 to EX.R.6 documents.

07     Counsels for the complainant, opposite party No.1 & 2 have filed their respective written arguments.

08.    Since there was delay in preferring the complaint the complainant has filed application Under Section 69(2) of Consumer Protection Act, 2019. 

09.    The points that would arise for consideration are as under:-

  (1) Whether the delay in preferring the complaint is to be condoned?

  (2)  Whether there is deficiency of service on the part of the opposite parties?

  (3) Whether the complainant is entitle for the 

      relief sought ?

       (4) What order ?

10.    Our findings on the aforesaid points are as follows:-

Point No.1 :  In affirmative

Point No.2 :  In affirmative

Point No.3 :  Partly in affirmative

Point No.4 :  As per the final order for the following;

REASONS

11.    POINT NO.1:-  PW.1, RW.1 & RW.2 have reiterated the fact stated in their pleadings, in the affidavits filed in the form of their evidence in chief.  It is stated in the application to condone the delay that, while the complainant was working in opposite party No.1 during the year 10.01.2008 to 20.08.2010, he was assigned an incorrect provident fund account number on which the money was deposited as per law.  The complainant was not aware of the same and recently he came to know from the Office of the opposite party No.2 and opposite party No.1.  It is stated in the complaint that, the complainant had sent several emails requesting both the opposite parties to transfer the amount to his Bank account.  Further after repeated request by the complainant and the follow-up opposite party No.1 had sent the money payable to the complainant to opposite party No.2 and in-turn opposite party no.2 re-credited the same to the petitioner’s EPF account and it was informed to opposite party No.1 through the letter dated: 05.01.2022.  This complaint was filed on 09.12.2021.  Hence we feel in fact there is no delay.  Since, on an abundant caution the complainant had filed the application to condone the delay.  Hence the complainant is entitle for condonation of delay.  Accordingly we answer this point in affirmative.

12.    POINT NO.2:-    According to the complainant (PW1) he went to the Office of opposite party No.2 and it was informed that, the provident fund transfer request was rejected on 22.03.2012 stating the reason that, it was already settled to someone in the name of Mr. Naganand Kolar and it has been intimated to opposite party No.1.  It is the contention of the learned counsel for the complainant that, in-spite of legal notice dated: 18.02.2021 sent to opposite party No.1 to deposit the provident fund amount to the complainant’s account, opposite party did not comply the same and opposite party No.1 issued a reply dated: 19.03.2021 seeking 90 days time, even then the amount was not paid.  Further after repeated follow-up for the past 10 years opposite party No.1 has deposited the provident fund without any interest. 

13.   It is the contention of learned counsel for opposite party No.1 that, since the complainant being an ex-employee of opposite party No.1 Company there is a relationship of employer and ex-employee as on the date of the complaint.  Hence the complainant cannot be a Consumer.  We feel since the complainant was an ex-employee of opposite party No.1 and opposite party No.2 being the EPF account holder relates to the complainant and there was contribution from the complainant to the EPF account indirectly through opposite party No.1, the opposite parties could be a service provider and the complainant will be a beneficiary.  Hence the complainant will be a Consumer within the meaning of Section 2(7) of Consumer Protection Act, 2019.  Therefore there is no merit in the said contention.

13.    It is the contention of learned counsel for opposite party No.1 that, opposite party No.1 has already settled the provident fund amount of the complainant and the same was confirmed by the opposite party No.2 by letter posted to opposite party No.1 on 05.01.2022.  It is the contention of learned counsel for opposite party No.2 that, with regard to the settlement of EPF a letter dated: 22.05.2021 was sent to opposite party No.1 seeking clarification as to why the claim application of Sri. Naganand Kolar was submitted with provident fund account No.1326 instead of 1437 and it was settled during 2009-2010.  Further opposite party No.1 by its letter dated: 31.05.2021 informed the mistake said to have been done due to oversight.  Further opposite party No.2 had directed opposite party No.1 to remit the amount credited to the account of Naganand Kolar through a separate DD in the name of Regional of Commissioner, KR Puram, through email on 26.10.2021.  Thereafter opposite party No.1 had forwarded DD for the claim amount to the Office of the opposite party No.2 and the same was re-credited to the Petitioner’s EPF account.  Hence it appears that, there was mistake on the part of opposite party.  Further opposite party No.2 was also not in diligent in solving the grievance of the complainant.  It is further contended that, since the amount has already been paid, question of deficiency of service does not arise and liability cannot be fixed on opposite party No.1.  We feel for the reasons stated above, there is no merit in the contention since there was delay in the amount been settled.  Further even though the complainant had resigned on 20.08.2010 it appears that his EPF account was settled in the year 2022.  According to opposite party No.2 (RW.1) on receipt of transfer claim Form-13 from the member the opposite parties, had transferred the provident fund account on 07.07.2022, hence since the EPF amount has not been settled forthwith by the opposite party No.1 & 2 there is deficiency of service on the part of opposite party No.1 & 2.  Accordingly we answer point No.2 in affirmative.

13.    POINT NO.3:-     The complainant has claimed for a direction to the opposite parties to pay an amount of Rs.1,04,934/- with interest at the rate of 8.5% per annum.  Since the said amount has been credited to the complainant’s EPF account, the question of returning the said amount does not arise.  It is the contention of the learned counsel for the complainant that, during the month of December-2010 the amount claimed by the complainant has been wrongly settled in the name of one Naganand Kolar.  If opposite party No.1 would have diligent, the said amount would not have been settled in favour of Naganand Kolar.  Hence from the date of rejection i.e., 22.03.2012 of the request of the complainant for transfer of provident fund the complainant is entitle for interest at the rate of 9% per annum till it was re-credited to the account of the complainant on the amount of Rs.1,04,934/-.  Further the complainant claimed a sum of Rs.15,00,000/- towards mental harassment caused.  Definitely the complainant had undergone mental harassment since the amount should have been settled in the year 2010 rather it was settled in the year 2022.  Hence we feel the complainant is entitle for a sum of Rs.20,000/- towards mental agony.  Further the act of opposite parties made the complainant to get issued legal notice through his counsel and to approach this Commission.  Hence the complainant is entitle for litigation cost of Rs.10,000/-.  Accordingly we answer this Point partly in affirmative.

14.    POINT NO.4:- In view of the discussion made above, we proceed to pass the following:-

ORDER

The complaint is allowed in part.

The opposite party No.1 & 2 are jointly and severally liable to pay interest at the rate of 9% per annum on Rs.1,04,934/- to the complainant from 22.03.2012 till it was re-credited to the account of the complainant on the amount of Rs.1,04,934/- and a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.

The opposite party No.1 & 2 shall comply the order within 30 days.   In case, they fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 31^st Day of March, 2023)                                             

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

Sri. Sathiyanarayanan, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.

Documents submitted by the complainant side:

1. Copy of Letter dt.21.10.2010 with payslip cum service card issued by OP No.1 to complainant – Annexure-A
2. Copy of email dt.13.10.2011, 12.10.2011, 01.08.2011 – Annexure-B
3. Copy of email dt:02.01.2012, 03.11.2011, 13.10.2011 – Annexure-C.
4. Copy of email dt.29.03.2012, 27.03.2012,20.04.2012, 13.04.2012, 10.04.2012 – Annexure-D
5. Copy of email dt.23.12.2013, 23.12.2013, 20.12.2013, 29.03.2013 – Annexure-E
6. Copy of email dt.20.02.2014, 21.01.2014 - Annexure-F
7. Copy of email dt:02.01.2021, 06.01.2021 07.01.2021 – Annexure-G
8. Copy of Grievance status – Annexure-H
9. Office copy of Demand notice – Annexure-J
10. Copy of reply letter dt.18.06.2021, 09.03.2021, 31.05.2021 – Annexure-K
11. Copy of Gmail letter dt:11.10.2021 – Annexure-L

Witness examined for the opposite party No.1 side: 

Sri. Phanindra H.A, Payroll Adviser of opposite party No.1 (RW-2) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party No.1 side:

1. Board resolution dt.09.02.2022 – EX.R.3

2. Letter of confirmation dt.05.01.2022 – EX.R.4

3. Copy of demand draft dt.07.12.2021 – EX.R.5

4. Copy of demand draft dt:07.12.2021 – EX.R.6

Witness examined for the opposite party No.2 side: 

Sri. Parasaram Ganesh, Enforcement officer of opposite party No.2 (RW-1) has filed affidavit in the form of his evidence in chief.

Documents marked for the Opposite Party No.2 side:

1. Letter of authorization dt.17.10.2022 – EX.R.1

2. Copy of the amount transfer details (Form No.19) – EX.R.2.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•