Punjab

StateCommission

A/674/2016

Punjab National Bank - Complainant(s)

Versus

Dhurup Singh - Opp.Party(s)

Varun Chawla

07 Sep 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   First Appeal No.674 of 2016

 

 

                                                          Date of Institution: 07.09.2016

                                                          Order Reserved on : 06.09.2017

                                                          Date of Decision   : 07.09.2017

 

 

Punjab National Bank, Branch Seorahi (Code No. 1878), Seorahi, District Khushi Nagar 274406 (Uttar Pradesh) through its Branch Manager/Manager/Authorized Signatory  (through Sh. Kunal Kant, Senior Manager, Punjab National Bank, Branch Seorahi (Code No. 1878), Seorahi, District Khushi Nagar 274406 (Uttar Pradesh)

 

 

                                                            Appellant/Opposite party   no.3 

Versus

 

 

1. Dhurup Singh @ Dharoop Singh son of Sh. Muneshwar Singh r/o VPO Bagha Chour, District Khushi Nagar (Uttar Pradesh) at present Preet Nagar, Opposite Taj Palace, Fatehgarh Churian Road, Amritsar.

 

 

                                                               Respondent no.1/Complainant

 

2.      Employee Provident Fund Organization, Branch Office, Bhavishya Nidhi, Bhawan, 9 Basant Avenue, Amritsar through its Regional Commissioner/APFC.

 

3.      Employee Provident Fund Organization, Head Office, Bhavishya Nidhi Bhawan, 14, Bhikaji Cama Place, New Delhi through its Authorized Signatory/Principal Office/Manager.

 

 

                                           Respondents/Opposite parties no.2 and 3

 

 

First Appeal against order dated 11.07.2016 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

 

Present:-

 

          For appellant                   : Sh.Varun Chawla, Advocate

          For respondent no.1      : Dismissed vide order dated

                                                     27.07.2014

          For respondents no.2&3  : Sh. Sanjay Tangri, Advocate

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant has directed this appeal against order dated 11.07.2016 of District Consumer Forum Amritsar, directing respondent no.3 of this appeal to pay sum of Rs.30,103/- i.e. EPF dues of respondent no.1 of this appeal along with interest @ 9% p.a from 04.05.2010 until full and final recovery, besides Rs.2000/- as costs of litigation. However, complaint against respondents no.1 and 2 of this appeal has been  ordered to be dismissed. The appellant of this appeal is opposite party no.3 in the original complaint before District Forum Amritsar and respondent no.1 of this appeal is complainant and respondents no.2 and 3 of this appeal are opposite parties no.2 and 3 therein before District Forum and they be referred as such, hereinafter for the sake of convenience.

2.      The complainant has filed complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that he was working in the Establishment M/s Bawa Shoes Limited, Sri Goindwal Sahib, District Tarn Taran and during his employment, his employer used to deduct mandatory deduction of EPF @ 12% from  his basic pay. The said amount with equal share of contribution by the employer used to be deposited in the family pension scheme and provident fund, in PF account  no. PN/ 15106/2156 with OPs under EPF and MP Act, 1952. OP no.1 is the branch office of OP no.2. The complainant approached OP no.1 and demanded his provident fund dues and OP no.1 had settled the dues of the complainant amounting to Rs.30,103/-. In the month of November 2009, OP no.1 assured that complainant will get the payment through account payee's cheque very soon. But, after passage of time of one month, complainant had not received any payment from OP no.1 and after making enquiry, it transpired that cheque bearing no. 266971 of dated 06.11.2009 amounting to Rs.30,103/- has been issued by OP no.1 and cheque would directly be sent to OP no.3, in which the complainant was having his account no. 1878000101116060. Again after passage of time, he had not received any cheque nor his banker received any payment from OPs. The complainant again approached OP no.1 and enquired about status of his payments. At that time, officials of OP no.1 told him that his payments have been debited from bank account of OPs, and as such he should enquire the matter from his banker. It is further alleged that as per assurance of OPs, he approached OP no.3, his banker PNB on various occasions and it told him that it has not received the aforesaid payments as yet. In this regard,  banker of the complainant issued the undertaking/certificate to him. He again visited the office of OP no.1 and requested for payments, but the officials of OP no.1 told him that OPs has already sent the payment to OP no.3 in his bank account. Ultimately, in the month of February 2015, he again moved representation to the Commissioner of OP no.1 and requested him to release his hard earned EPF amount, but despite that, OP no.1 had not released the amount to him. The complainant again visited the office of OP no.1 in the month of March 2015, but no satisfactory reply was given to him. OP no.1 flatly refused the genuine request of the complainant. The aforesaid act on the part of OPs amounts to negligence, carelessness and deficiency in service, due to which he suffered great mental pain, agony and harassment at the hands of OPs no.1 and 2.  The complainant has, thus, filed complaint directing OPs to release the provident fund dues of Rs.30,103/- along with upto date interest @ 18% p.a, Rs.30,000/- as compensation and Rs.11,000/- as costs of litigation.

3.      Upon notice, OPs 1 and 2 appeared and filed joint written reply by raising preliminary objections that the complaint is not maintainable qua OPs no.1 and 2, as complainant has arrayed OPs no.1 and 2 unnecessarily as party. The amount claimed by him has already been sent to the banker of the complainant, vide cheque no. 266971 dated 05.11.2009. The account of the OP no.1 has been debited by its banker. The complainant has the grievance only against OP no.3 i.e. his banker, which had not credited the amount in his account for the reasons best known to it. The complaint is time hopelessly time barred, as the cause of action arose to the complainant when his banker had not credited the amount in his account in the year 2009, but complaint has been filed after a gap of more than five years. The District Forum Amritsar has no jurisdiction to try the present complaint, as amount was not credited in his bank account maintained at PNB District Khushi Nagar (Uttar Pradesh). On merits, it was pleaded that provident fund of the complainant had been settled for Rs.30,103/- at the end of the OP no.1 and sent to his saving bank account no. 111606 at PNB , Seorahi District Khushi Nagar, Uttar Pradesh, vide cheque no. 266971 dated 06.11.2009 by OP no.1. It was further averred that OP no.1 banker i.e. State Bank of India Putlighar Branch duly debited the account of OP no.1 on 04.05.2010. The complainant approached to OP no.1 on 20.02.2015 for first time after gap of more than five years and after making the enquiry, OP no.1 told him that amount has been debited in the account of OP no.1 on 04.05.2010. It was the duty of the complainant’s bank that it should enquire from the clearing house about the fate of the cheque. Rest of the averments have been denied by OPs no.1 and 2 and they prayed for dismissal of the complaint.

4.      OP no.3 was set exparte by District Forum, vide order dated 17.12.2015.

5.      The complainant tendered in evidence his affidavit Ex.CW1-A along with copies of documents Ex.C-1 to Ex.C-7. As against it; OPs no. 1 and 2 tendered in evidence the affidavit of Sh. Jagtar Singh, SSSA Account Branch Employee Provident Fund Organization Amritsar Ex.OP1-2/1 along with copies of documents Ex.OP1-2/1 to Ex.OP1-2/3 and closed evidence. On conclusion of evidence and arguments, the District Forum Amritsar accepted the complaint of the complainant by virtue of order dated 11.07.2016. Dissatisfied with the order of the District Forum Amritsar dated 11.07.2016, opposite party no.3 now appellant, carried this appeal against the same.

6.      We have heard learned counsel for appellant and  respondents no.2 and 3 of this appeal, as the case against respondent no.1 of the appeal was dismissed, vide order dated 27.07.2017.

7.      Firstly, we have to decide this point, as to whether complainant is consumer of OPs or not? This point has been seriously raised before us during the arguments, that complainant is not ‘consumer’ as defined under Section 2(i)(d) of Consumer Protection Act, 1986. We find that controversy in this case pertains to the deduction of amount of provident fund in the account of complainant with his banker by OPs no.1 and 2. The plea of OPs no.1 and 2 is that the amount of Rs.30,103/- was sent to OP no.3 banker of the complainant. The mater has been examined by Apex Court in Regional Provident Fund Commissioner versus Bhavani (2008-II-LLJ-1079 (SC) holding that “employee's pension scheme, 1995-pesnion scheme-consumer-by-becoming a member of the employees family pension scheme, 1971 and contributing to the same respondent was availing of the services rendered by the appellant for implementation of scheme-the respondent comes squarely within the definition of ‘consumer’ within the meaning of section 2(i)(d) of the Act.” The complainant is, thus, held to be a consumer by us on the basis of law laid down by Apex Court in the above authority.

8.      Evidence on the record has been examined by us with the aid of counsel for the parties in this case. Dhurup Singh complainant filed his affidavit Ex.C-1 on the record stating that his employer used to deduct mandatory deductions of EPF @ 12% from his basic pay. The said amount with the equal share of contribution by his employer in the family pension scheme and provident fund used to be deposited in the PF account no. PN/15106/2156 with OPs under the Act. Complainant demanded his provident fund dues and OP no.1 had settled the dues of the complainant amounting to Rs.30,103/- and in the month of November 2009, OP no.1 assured to release the amount very soon through account payee cheque, when he enquired from OP no.1, it was informed that cheque bearing no. 266971 dated 06.11.2009 amounting to Rs.30,103/- has been issued by OP no.1, which would be directly sent to OP no.3 the banker of the complainant in his account no. 1878000101116060. OP no.1 stated to complainant that the above amount has been debited from bank account of OPs and hence he should contact  his banker OP no.3 only. This witness further stated that when he contacted OP no.3 on many occasions, he was given reply that it has not received above said amount by them. He moved representation to the Commissioner of OP no.1  and OP no.1 had not released the amount. Ex.C-2 is the employee provident fund insurance scheme document showing the amount of Rs.30,103/- due to the complainant. Ex.C-3 is letter dated 04.05.2010 to the effect that amount has not been deposited in the account no.1878000101116060. Ex.C-4 is account statement on the record showing that amount of Rs.30,103/- was not credited in the saving bank account of the complainant. Ex.C-5 is passbook showing that amount in dispute was not credited to the account of the complainant. Ex.C-6 and Ex.C-7 are correspondence followed in this regard.

9.      To refute this evidence, OPs tendered in evidence affidavit of Sh. Jagtar Singh, SSSA Ex.OP-1-2/1, wherein he stated that the amount of Rs.30,103/- was released to the complainant by OP no.1, vide cheque no. 266971 dated 06.11.2009 in the account of the complainant maintained in OP no.3/Bank. This witness stated that cheque of Rs.266971/- dated 06.11.2009 of OP no.1 has been duly debited by the banker of OP no.1. He further deposed that it is entire fault of OP no.3 /banker of the complainant only, if it has not credited the amount. Ex.OP-2/2 is letter sent by Branch Manager to the Manager CCPC Town Hall Amritsar for giving information  of the bank branch, which collected the proceeds of the cheque no.  266971 dated 06.11.2009 for Rs.30,103/- .Ex.OP-1-2/3 is account statement for the period 03.05.2010 to 05.05.2010  and it has shown the presentation of cheque of Rs.30,103/-, which was debited from the account of OP no.1. OP no.3 banker was set exparte before District Forum in this case.

10.    The submission of counsel for the appellant/bank before us is that cheque was dishonoured on 02.06.2010 and the complainant was charged Rs.150/- as dishonoured charges. A copy of scan document is Annexure A-2. A copy of account ledger inquiry is Ex.A-3 of appellant/OP no.3, which has not been recorded the transaction amount of Rs.30,103/- in this case. The version of OP no.3 now appellant before us is that cheque was dishonoured and this amount was not credited by it to the account of the complainant due to bouncing of cheque. OP no.3 now appellant was proceeded against exparte on the basis of presumptive service by District Forum on 17.12.2015, which is legally permissible service.  We think that it is prominent duty of the Forum to decide the case, so that the interest of justice should prevail. OP no.3/Banker now appellant took up the ground in the appeal that it was set exparte and cheque in dispute payable to complainant was dishonouerd and hence it could not be credited to the account of the complainant. Version of OP no.1 is that it was debited from their account, whereas the banker/OP no.3 stated that cheque was dishonored due to some reasons and hence the complainant remained deprived of this money. Since OP no.3 could not lead any evidence before District Forum being exparte and hence this controversy could not be settled for good. There is no evidence on the file as to how the cheque was bounced and whether the amount was actually received by the appellant from the source wherefrom it was remitted to it. We deem it appropriate that the case be remanded to District Forum, Amritsar by setting aside the exparte order against OP no.3 and permitting it to join the proceedings by filing written version and then to lead evidence and thereafter the District Forum to decide the case in accordance with law on its merits, so that no injustice is done in this case.

11.    The parties are directed to appear before District Forum, Amritsar on 11.10.2017 through their counsels. Record of District Forum be sent back forthwith, so, as to reach there well before the date fixed.

12.    As a result of our above discussion, we accept the appeal of the appellant and set aside the order of District Forum Amritsar dated 11.07.2016 and remand the case to District Forum by directing it to permit OP no.3 now appellant to join the proceedings by filing written version and to lead evidence then to decide the case on its merits in accordance with law.

13.    The appellant no.3 had deposited the amount of Rs.24,182/-with this Commission at the time of filing of the appeal.  This amount with interest, which accrued thereon, if any, be  remitted by the registry to the   appellant by  way  of a crossed   cheque /  demand draft   after  the expiry of 45 days under intimation to the learned District Forum and to the appellant, subject to stay order.

14.    Arguments in this appeal were heard on 06.09.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

15.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

September 7, 2017                                                             

(ravi)