Sri. George Baby (President):
The complainant has filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite parties.
2. The case of the complainant is as follows:- That the complainant was working as a motor employee from 2005 to 2016 and she has worked as a cash clerk in different private stage carriers under the ownership of Swapana Travels. The 1st opposite party on 18/02/2011 advised the complainant to join Motor Transport worker’s welfare Fund and remit Rs. 150/- monthly as the contribution of employee and if so at the age of 60 the employee shall get the remitted amount along with employer’s monthly contribution of Rs.350/- with 9% interest. Accordingly the complainant had remitted Rs.10,050/- in lumsum which included the arrears from 2005 onwards for which the 1st opposite party had issued receipt also. The 1st opposite party had provided identify card to the complainant and its number was 03/SC/W000377. The complainant further stated that she had wrongly mentioned as “Manager” in the application form for joining Motor Transport Worker’s Welfare Fund instead of cash clerk. In order to notice of said defects or wrong entry the complainant on 20/02/2015 given a request to the 1st opposite party to rectify the said defect. The 1st opposite party had cured that defect and corrected her designation in the identify card as ‘cash clerk’. The complainant had paid her installments to the Motor Transport worker’s welfare fund up to 21/07/2016. The complainant had terminated her service in June 2016 and on 03/08/2016 she had given application to the 2nd opposite party though the 1st opposite party for getting her motor worker’s welfare fund and placed all necessary documents such as membership card, original receipts of payment etc. But the opposite parties were not properly processed the application of the complainant and because of that the complainant on 09/12/2016 directly placed a reminder to the 1st opposite party in this regard. Subsequently to that an order dated 08/12/2017 has been passed by the 2nd opposite party and as per the order the complainant is entitled to get only Rs.19,950/- on the reason that she was worked as manager. The complainant further stated that she was working as the cash clerk in her tenure and the designation, mentioned in the application form as ‘Manager’ is an error and the same has been duly ratified by the opposite parties. The complainant is entitled to get Rs.66,500/- with its interest as she was the employee come with in the preview of Kerala Motor Workers Welfare Fund. The non-releasing of the benefits caused much mental agony and distress to the complainant. The non-releasing of the amount within time is a deficiency in service of the opposite parties. Hence the complainant for releasing Rs.66,500/- along with compensation.
3. The Forum entertained the complainant and issued notice to the opposite parties for their appearance. The opposite parties appeared before the Forum and filed their version as follows.
4. That the complainant had given application in form No.1 on 19/02/2011 for joining as a member in Kerala Motor Transport Worker’s Welfare Fund bound. In the said application she had stated that she is working as the manager in a stage carriage bearing registration number KL 4M-9801 which is under the ownership of Mr.V.S.George, Valiplackkal, Kumbazha.P.O., who is none other than the husband of the complainant. In form No.III which is used for remitting the employer contribution to the fund also stated complainant’s designation as ‘Manager’. The complainant had remitted Rs.10,050/- on 19/02/2011 to the fund and the said amount is for the period from 06/2005 to 12/2010. The complainant had not given any application for correcting her designation as Manager to cash clerk. The opposite parties neither corrected nor issued an identify card with the effect that her designation as cash clerk as alleged. The complainant herself made corrections in the ID card. The complainant had placed her ID card along with refund application and that ID card dated 19/02/2011 was issued by the District Executive Officer. As per section 2(e) of Kerala motor Transport Workers Welfare Fund Act 1985 Manager is come within category of employer. The complainant daughter named Sanitha George also look membership in the Kerala Motor Transport Welfare Fund board and her designation also noted as Manager and after proper intimation from the opposite parties with the effect that the manager are fall within the category of employer, the above mentioned SanithaErorge had given application to correct her designation as cash clerk and accordingly on 08/08/2017 her designation has been corrected as cash clerk and issued ID Card with that effect. The complainant had remitted her contribution in the scheme from 06/2005 to 06/2016 and she had placed refund application on 29/07/2016 Manager is not considered to be an employee and the complainant is not entitled for the employees contribution. The complaint is barred before this Forum in view of section 23 of the Kerala Motor Transport Workers Welfare Fund Act 1985. Hence opposite parties pray for the dismissed of the complaint.
5. The Forum peruses the complaint, version and the records before us and we framed the following issues.
1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service
against the complainant ?
3. Regarding the relief and cost?
5. In order to prove the case of the complainant the complainant filed proof affidavit in lieu of her chief examination and examined her as PW1. Though PW1 Exhibit A1 to A7 and B1 to B3 weremarked.Exhibit A1 is the letter dated 20/02/2015. Exhibit A2 is the application form dated 03/08/2016. Exhibit A3 series are receipts of monthly remittance in Five No. Exhibit A4 is the copy of Identity card. Exhibit A5 is the employer Certificate. Exhibit A6 is the copy of application dated 09/12/2016. Exhibit A7 is the order issued by District Executive Officer.Exhibit B1 is the application form. Exhibit B2 is the application form. Exhibit B3 is the original Identity card. After the completion of the evidence we heard the complainant and opposite parties.
7. Point No.1: The complainant’s case is that she was a member of Kerala Motor Worker’s Welfare Fund and remitted her share in the scheme from 06/2005 to 06/2016. The employer also remitted his due share for and on behalf of the complainant in the particular fund. The complainant had submitted her refund application on 29/07/2016. There is no such serious dispute in the above said matter. The opposite parties contention is that the complainant has working under the category of Manager and the term “Manager” has not fall within the ambit of employee and in the said circumstances the complainant is not eligible for the entire amount as she claimed, instead she is entitled only for 19,950/- the amount which she remitted as her contribution to the scheme. The complainant’s contention is that at the time of filing the application she has wrongly filled her job as Manager and in order to realize that defect complainant had given an application to the opposite parties for rectifying the same and the opposite parties were properly ratified the said defect and corrected her ID card with the designation of cash clerk. These aspects were proved through Exhibit A1 and A4. Even though the opposite parties were taken the contention that they never corrected the complainant ID card and issued the same with the designation of “ Cash Clerk”. The opposite parties never look any steps to prove the same. They have not adduced any evidence in that regard. Mere denial alone is not sufficient to discredit the contention of the complainant. In the said circumstances we found that the complainant’s designation as cash clerk is properly corrected and entered by the concerned authority. The manipulation alleged by the opposite parties has not been proved.
8. The complainant’s contention is that her employer has remitted Rs.46,550/- in to the welfare fund for and on behalf of her. The opposite parties never raised a contention that such amount has not been received by them. Their main and foremost contention is that the complainant was worked as a Manger and hence she is not entitled for the entire benefit as she claimed.
9. The opposite parties raised another contention is that the petition is not maintainable in view of section 23 of Kerala Motor Transport Workers Welfare Fund Act. In this contest the learned Counsel appearing for the complainant produced the Judgment cited in 2011 (1)KLT 573. In that Judgment the Hon’ble High Court of Kerala observed that “The Consumer Protection Act is not in derogation of those provided under other laws and supplements and not suppliant jurisdiction of civilcourts or other statutory authorities”. The said judgment is pronounced considering S.3 of Consumer Protection Act. The said judgment has much relevant considering the nature of this case more over it is a Forum and not a civil court. In the said circumstances the complaint is perfectly maintainable before this Forum and Point No.1 is found in favour of complainant.
10. Point No.2&3:-For convenience we would consider point No.2&3 together. The complainant’s contention is that as a member Kerala Motor Transport Worker’s Welfare Funds she along with the employer remitted Rs.66,500/- to the scheme. The complainant stated that for getting the benefit and the amount, she had given application on 03/08/2016 to the opposite parties and after that she had placed exhibit A6 to the 1st opposite party on the reason that there was no proper communication to her application dated 03/08/2016. It is evident from exhibit A7 that the complainant’s application was finalized only on 08/12/2017 that too with the finding that the complainant is entitled for her remitted amount of Rs.19,950/-. This is a clear deficiency in service of the opposite parties. As the opposite parties committed deficiency in service the complainant is entitled to the compensation and cost. Hence we decided Point No.2&3 in favour of complainant.
11. In the result we pass the following order.
1. The opposite parties are directed to pay Rs.66,500/- (Rupees Sixty Six Thousand Five Hundred Only) to the complainant within one month of receipt of this order. If fails, the opposite parties are liable to pay 10% interest to the said amount from the date of this order.
2. The opposite parties are directed to pay a compensation of Rs.10,000/- (Rupees Ten Thousand Only) to the complainant within one month of receipt of this order falling which the said amount also carries the interest at 10% from the date of Order onwards.
3. The opposite parties are directed to pay cost of Rs.2,500/- (Two Thousand Five Hundred Only) to the complainant within one month of receipt of this order.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29thday of November, 2019.
(Sd/-)
George Baby,
(President)
Smt. N. ShajithaBeevi (Member-I) : (Sd/-)
Sri.NishadThankappan (Member-II) :(Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1:Muncy George
Exhibits marked on the side of the complainant:
A1:Letter dated 20/02/2015.
A2: Application form dated 03/08/2016.
A3 Series :Receipts of monthly remittance in Five No.
A4: Copy of Identity card.
A5: Employer Certificate.
A6: Copy of applicationdated 09/12/2016.
A7: Order issued by District Executive Officer.
Witness examined on the side of the opposite parties:Nil.
Exhibits marked on the side of the opposite parties:
B1:Application form.
B2: Application form.
B3: Original Identity card.
Copy to:-
1. Mumcy George,
W/o.George,ValiplackalVeedu,Pathanamthitta.
2. The Executive Officer,
Kerala Motor ThozhilaliKshemanidhi Board,
Pathanamthitta District Officer,Near Karikkinethu,
Pathanamthitta.
3. The Chief Executive Officer,
Kerala Motor ThozhilaliKshemanidhi Board,Harishri Building,
Kochupilammoodu,Mudakkal West, Kollam – 691 001.
4. The Stock File.
