Haryana

Yamunanagar

CC/687/2012

Ajay Kumar S/o Prem Chand - Complainant(s)

Versus

E.S.I.Corporation - Opp.Party(s)

V.K.Chaudhary

15 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                         Complaint No. 687  of  2012.

                                                                                         Date of institution: 03.07.2012.

                                                                                         Date of decision: 15.07.2016.

 

Ajay Kumar aged about 35 years son of Shri Prem Chand, resident of Village Nahar Taharpur, Post Office Baloli, Tehsil Chhachhrauli, District Yamuna Nagar. 

                                                                                                                                                                                                                                                                                                                                                                                      …Complainant.

                                                               Versus

1. E.S.I. Corporation, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar through its Incharge/ Authorized Signatory.
2. M/s Geeta Feb, through its Partner/Proprietor Shri Pankaj and Gaurav, No. 67, Industrial Area, Manakpur, District Yamuna Nagar.

                                                                                                                                                             … Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. V.K.Chaudhary, Advocate, counsel for complainant.   

              Sh. Ashok Kamboj, Advocate, counsel for respondent No.1.

              Sh.P.S.Khurdban, Advocate, counsel for respondent No.2.  

 

ORDER

 

1.                     Complainant Ajay Kumar has filed the present complaint under section 12 of the Consumer Protection Act 1986 praying therein that respondents (hereinafter referred as OPs) be directed to make the payment of Rs. 1,00,000/- on account of medical expenses and further to pay Rs. 1,00,000/- on account of permanent disability alongwith compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant had worked in the factory of OP No.2 since 01.08.2008 to 13.11.2010 and performed his duties as per wishes of OP No.2. The complainant was covered under the ESI Scheme of OP No.1 and as per that scheme, the OP No.2 used to deduct some amount from salary/charges of the complainant on account of ESI contribution and OP No.2 used to deposit the same in the ESI account, (though the OP No.2 never did so). The ESI Corporation used to provide medical facilities to the member/account holders and the complainant was also member of the OP No.1. ( Photo copy of identity card as Annexure C-2). On 16.11.2010, the complainant met with a road side accident and suffered multiple and grievous injuries on his person. The complainant was taken to the Civil Hospital, Jagadhri but due to critical condition he was referred to PGI Chandigarh where he remained for considerable period and also operated there. The complainant spent Rs. 1,00,000/- on his treatment, besides this complainant become permanent disabled. ( Photo copy of disability certificate Annexure C-1). Thereafter, the complainant approached the OP No.2 and requested to get the refund amount of his treatment from OP No.1 but he started putting off the matter on one pretext or the other and finally he refused to accede the genuine request. After that, complainant approached to OP No.1 and requested to refund his expenses being its member of the scheme but the OP No.1 also did not pay any heed and issued one frivolous letter dated 23.05.2011 (Annexure C-3), rejecting the claim of the complainant, without any right, title or authority to do so. As the OPs has flatly refused to make the payment of medical expenses as well as compensation on account of disability, hence, the act of the OPs constitute the deficiency in service. Hence, this complaint.

3.                     To prove the case, counsel for the complainant tendered into evidence affidavit of the complainant as Annexure CW/A, affidavit of Sh. Shiv Kumar as Annexure CW/B, Affidavit of Sonu as Annexure CW/C, Affidavit of Rakesh Sharma as Annexure CW/D and documents such as photo copy of disability certificate dated 21.11.2012 as Annexure C-1, Identity Card as Annexure C-2, Photo copy of letter dated 25.03.2011 as Annexure C-3, Photo copy of complaint against OP No.2 to Op No.1 as Annexure C-4, Photo copy of reply to the complaint as Annexure C-5, Photo copy of complaint as Annexure C-6, Photo copy of miscellaneous slip as Annexure C-7,Photo copy of identity card as Annexure C-8 and closed the evidence on behalf of complainant.

4.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable under section 75 of the ESI act that barred the jurisdiction. It is the EI Court that has only jurisdiction, which is senior most Civil Court as per Haryana Government Notification; the complainant has filed the present complaint on false ground which are self contradictory to the facts of the FIR lodged pertaining to the alleged accident. On application for medical benefits submitted by the complainant to the corporation, a detailed enquiry has been made and it was observed that the injury was suffered by the complainant while returning from village Salempur after attending a marriage of sister of their common friend, with his two friends namely Sunder Saini and Mukesh Kumar on motorbike bearing No. HR-02H-4184 which is duly evident from the contents of the FIR bearing No. 100 dated 16.11.2010 (Annexure R-4), registered in the police station, Jagadhri Sadar under section 279/337 IPC. It has been further mentioned that since there was no employment injury as such the complainant is not entitled to any benefits under ESI Act which itself is a complete Code. The complainant has only re-course of ESI Court for redressal, if any, i.e. the only proper Forum for him or he may go under Workman Compensation Act, if his claim is justified. Lastly, prayed for dismissal of the complaint being no deficiency in service on the part of OP No.1.

5.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is false, Employees Insurance Act itself a complete Code, hence this Forum have no jurisdiction; complainant has not come to the Court with clean hands and on merit it has been mentioned that at the time of accident complainant was not working with Op No.2 and no ESI was inexistence at the time of this accident. The story of the accident is totally false and concocted. FIR bearing No.100 dated 16.11.2010 is itself contradicted with the statement of the complainant and lastly prayed for dismissal of the complaint being no deficiency in service or unfair trade practice on the part of OP No.2.

6.                     In support of version, OP No.1 tendered into evidence photo copy of complaint Annexure R-1 and photo copy of reply of complaint sent by OP No.2 to OP No.1 as Annexure R-2, Statement of Sh. Sunder Saini recorded by Op No.1 during investigation as Annexure R-3, Copy of FIR bearing No.100 dated 16.11.2010 as Annexure R-4, Copy of reply of the complaint sent to the Joint Director ESI Ambala as Annexure R-5 and closed the evidence on behalf of OP No.1.

7.                     OP No.2 failed to adduce any evidence, hence their evidence was closed by court order dated 18.05.2016.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     Learned counsel for the complainant argued that when the complainant on dated 16.11.2010 was going alongwith his two friends on motorcycle bearing registration No. HR-02H-4184 he met with a road side accident and suffered multiple and grievous injuries and admitted at PGI Chandigarh being a referred case from Civil Hospital, Jagadhri. The complainant spent Rs. 1,00,000/- on his treatment, besides this he also suffered 70% disability which is evident from the copy of disability certificate (Annexure C-1) dated 21.11.2012. The complainant approached the OP No.2 and on refusal by him approached to Op No.1 and requested to reimburse the medical expenses as well as compensation on account of disability but both the OPs flatly refused to do so which is totally illegal, which constitute deficiency in service on the part of the OPs and the complainant is entitled to get the medical benefits being member of OP No.1 as contribution was deducted by Op No.2 from his salary. Lastly, prayed for acceptance of the complaint.

10.                   On the other hand, learned counsel for the OPs hotly argued at length that firstly, this Forum have no jurisdiction to entertain and decide the present complaint because as per the notification of the Haryana Government, the ESI Court at Yamuna Nagar/Jagadhri is the court of Senior Civil Judge., Further learned counsel for the OPs argued that the complainant suffered the injuries in a road side accident which is evident from the copy of FIR bearing No. 100 dated 16.11.2010 registered in the Police Station Sadar Jagadhri under section 279/337 IPC. Since there was no employment injury as such the complainant is not entitled to get any benefits under ESI Act. Learned counsel for the OPs further argued that neither any claim has been lodged by the complainant nor the original bills or documents/ treatment chart have been submitted by the complainant. Lastly, prayed for dismissal of complaint.

11.                   After hearing both the parties, we are of the considered view that the complaint of the complainant is without jurisdiction as per notification of the Haryana Government, the ESI Court is the court of senior most Senior Civil Judge, Jagadhri at Yamuna Nagar not this Forum. Even, on merit also the complainant suffered the injuries in a road side accident when he alongwith his two friends were coming after attending the marriage of sister of his friend which is duly evident from the copy of FIR (Annexure R-4) registered under section 279/337 IPC with P.S. Jagadhri. Further, learned counsel for the OPs argued that on the date of alleged accident i.e. 14.11.2010 there was holiday of Sunday, so, the version of the complainant mentioned in the complaint (Annexure C-6) that he was going to the factory is totally not believable. Even the complainant has neither filed any cogent evidence to prove that he suffered the injuries during employment and further he ever submitted any bills and treatment papers with the OPs nor photo copy of the same has been placed on court file. Learned counsel for the complainant totally failed to convince this Forum that when the complainant suffered the injuries in a road side accident which is not employment injury, then how he was entitled to get the benefits under ESI Act. Hence, we are of the considered view that complainant is not entitled to get any benefits and the complaint of the complainant is liable to be dismissed.

12.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 15.07.2016.

                                                                                                ( ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER