By Sri. P. Raveendran, Member The complaint filed under section 12 of the Consumer Protection Act. The complaint in brief is as follows. The Complainant had been the Labourer in Malayalam Plantation since 01.8.1960 and the 2nd Opposite Party alloted the P.F. No.247/3487 to the Complainant. The Complainant was aware of the mistake in the entry of date of birth of the Opposite Party's records and an application was given on 17.12.1996 along with school admission register to correct the date Contd.......2) 2 of birth to the Opposite Party No.1. The date of birth written in the records was 01.07.1940. The 1st Opposite Party allowed the application of Complainant and the Complainant was permitted to continue service and superannuated from the service on 31.7.2003. Till the retirement period the complainant paid P.F contribution collected by the 1st Opposite Party. The pension sanctioned intimation date 29.11.2003 was received by the Complainant and only at that time the Complainant could realise that the 2nd Opposite Party had noted the date of birth mistakenly as 01.07.1940 and the cessation of membership to the P.F as 30.6.1998 is incorrect and is to be corrected. The 2nd Opposite Party sanctioned only Rs.292/- monthly pension to the Complainant and fixing arrears of pension from 1.07.1998. The Opposite Parties are liable to fix rate of pension as she superannuated from service on 31.7.2003. The application on the part of the 1st Opposite Party to furnish the details to the 2nd Opposite Party was not dealt properly. 2. The Complainant sent a lawyer notice in order to get rectified date of birth on the records and to fix the benefit of pension as per the correct date of birth. The deficiency in service of the Opposite Party caused loss and hardship to the Complainant and the Complainant is to be compensated with Rs.15,000/-. The Complainant had been paying the contribution of pensions and P.F Scheme regularly. There may be an order directing the Opposite Parties to fix proper pension at the rate applicable as on 31.7.2003 and to pay pension amount with arrears. The Complainant is also entitle for the compensation of Rs. 15,000/- along with cost. 3. The Opposite Party filed version. According to the 1st Opposite Party they are an unnecessary party in the proceedings. The benefit under family pension and Provident Fund Scheme are payable by the 2nd Opposite Party. If any remittance is to be avail it is to be granted by the 2nd Opposite Party. The complainant had given a declaration and nomination Contd......3) 3 format executed on 24.1.1961. As per which the year of birth is 1940. The 1st Opposite Party collected employees contribution from the Complainant insisted by law and duly remitted to the 2nd Opposite Party' Office. In the year of retirement of the Complainant had to be in 1998 as per the detail of age given originally. An extract of School admission register dated 17.12.1996 subsequently produced by the Complainant to correct her date of birth as on 01.07.1945. On receiving the application the 1st Opposite Party sent it to their head office for approval and the same was informed to the 2nd Opposite Party. Since then in pay rolls and other records the date of birth shown is 7/1945, the retirement of the Complainant was extended to July 2003. The 1st Opposite Party collected the employees P.F contribution even after the original date of retirement in July 1998 and the same was deposited in the 2nd Opposite Party's Office along with the contributions till July 2003. The 2nd Opposite Party received the contributions of Provident Fund and receipts were given along with yearly statements of account had been issued by the 2nd Opposite Party directly to the Complainant. The Complainant is in possession of the receipts and records and the details of contributions made by the employer is also known to the Complainant. The 1st Opposite Party discharged their functions till 31.7.2003. If anything adverse in their consideration or any impropriety the 2nd Opposite Party would have not received the contribution of the Complainant from the employer. It is left to the 2nd Opposite Party to decide to extent period of service with respect to the pension scheme if to be extended till 31.7.2003 or not. The 1st Opposite Party is unnecessarily dragged in to the proceedings. The Complainant is not paying any consideration of administration charges. The 1st Opposite Party, has the employer, is required under para 30(3) of the scheme to pay administration charges. The percentage at 1.1% of contribution which is to be paid out by the Opposite Parties fund in addition to the employees contribution is also remitted. There is no deficiency in service on the part of the 1st Opposite Party. More over the complaint does not come under the purview of Consumer Protection Act and the complaint itself is not maintainable. The acceptance of contribution Contd.......4) 4 after July 1998 till 2003 by the 2nd Opposite Party tantamount to admitting the change of the year of birth as applied by the Complainant. If the 2nd Opposite Party has any adverse inference and if it was informed to the employer the Complainant would have not been in the membership rolls and accept the contributions to the party. 4. The 2nd Opposite Party if took cessation of membership 30.6.1998 it was not good on their part to collect the P.F contribution sent by the 1st Opposite Party. If any latches or anything derogatory to the provisions according to the 2nd Opposite Party, the 1st Opposite Party is not responsible for any compensation to the Complainant and not having an authority to fix rate of pension. As per the statutes it is the 2nd Opposite Party to fix rate and pay the correct amount. The allegation in the complaint itself shows that the 1st Opposite Party requested the Regional Provident Fund Commissioner to look in to the matter and to pay the correct pension amount to the Complainant. The photo copy of the School admission register given to the 1st Opposite Party was also sent to the Provident Fund Commissioner for verification. There is no deficiency or any negligence on the part of the 1st Opposite Party if any liable is burdened it is to be absolutely upon the 2nd Opposite Party. The complaint may be dismissed accordingly. 5. The 2nd Opposite Party filed version on their appearance. The Provident Fund account number of the Complainant KR/247/3487 and drawing monthly member pension from 1.7.1998 and date of superannuation with TPO No.20628 is admitted by the 2nd Opposite Party. The Complainant was not a member of Employers Family Pension Scheme 1971 there was no contribution from the Complainant towards the pension scheme. The option of the Complainant for family pension scheme 1971 was considered and the consideration towards the family pension scheme 1971 up to 15.11.1995 and pension fund contribution from 16.11.1995 to 30.6.1998 have been diverted from the P.F accumulation by accepting her Contd...5) 5 option there she became eligible under the Employees Pension Scheme 1995. The date of birth recorded in her declaration is 01.07.1940. The 2nd Opposite Party maintained Complainants records basing on the declaration given by her. The contention of the employer that they are an unnecessary party cannot be considered. The 1st Opposite Party is bound by duty to assist the Provident Fund Authority. The 2nd Opposite Party has not received any complaint either from the Complainant or from the 1st Opposite Party regarding the change of the date of birth till the payments were settled, by the 2nd Opposite Party. 6. The 2nd opposite Party filed additional version. In the version contented that the Provident Fund account number of the Complainant KR/247/3487 and drawing monthly member pension from 1.7.1998 and date of superannuation with TPO No..20628 is admitted by the 2nd opposite party. The complainant was not a member of Employers Family pension Scheme 1971 there was no contribution from the Complainant towards the pension scheme. The option of the Complainant for family pension scheme 1971 was considered and the consideration towards the family pension scheme 1971 up to 15.11.1995 and pension fund contribution from 16.11. 1995 to 30.6.1998 have been diverted from the PF accumulation by accepting her option there she became eligible under the Employees Pension Scheme 1995. The date of birth recorded in her declaration is 1.7.1940. The 2nd Opposite Party maintained Complainants records basing on the declaration given by her. The contention of the employee that they are an unnecessary party cannot be considered. The 1st opposite party is bound by duty to assist the Provident Fund Authority. The 2nd opposite party has not received any complaint either from the Complainant or from the 1st opposite party regarding the change of the date of birth till the payment, were settled. There is no age restriction for membership under the Employee's Provident Fund Scheme 1952 where prescribed under the pension scheme is 58 years. That is the reason the Provident Fund contributions were accepted till she actually left the service and credited both employees and employer share to the members account with out Contd...6) 6 any bifurcation to pension member only up to attaining 58 years of age. Her membership under the Employees Pension Scheme ceased on 30.6.1998 and there by eligible for pension with effect from 1.7.1998. 7. The contention of the 1st opposite party that he has informed about the change of date of Birth is false and denied. If 1st opposite party has changed her date of Birth during 1996 he would not have certified the revised Form 2 in 1998 certifying her year of birth as 1940. It is only after the issue of pension payment order during October 2003 that the complainant comes forward to alter the date of Birth with copy of abstract of admission register of Malathi. This itself shows that they have not informed the matter earlier. The other two documents forwarded by 1st opposite party ie. Form 5 on initial entry in to service and a certificate issued from Village Officer, Kottapady shows that her date of Birth is in 1942. This Opposite party has strict directions from the Head quarters office that the age of the members should be taken on the valid nomination Form-2 signed by the member. Opposite party is not in a position to alter the date of Birth after the member leaves service. Hence there is no merit in the complainant and the version filed by 1st opposite party. Hence the complaint is liable to be dismissed. 7. The points that would arise for consideration are: 1) Whether there is any deficiency in service on the part of the opposite parties? 2) Relief and cost. 8. For the complainant: The complainant is examined as PW1 and Ext. A1 to A9 are marked. For the opposite parties OPW1 to OPW2 are examined and Ext. B1 to B18 are marked. (Ext. B1 to B14 by 1st opposite party and Ext, B15 to B18 by 2nd opposite party. Contd.....7) 7 9. Point No.1: Complainant has produced 9 documents to prove her case. Here the first thing to consider which is the actual date of birth of the complainant. There are three date of births according to the documents before us. Ext, A3 and B17 are one and the same. According to it her date of Birth is 1.1.1940/ 1.12.1939. According to Ext. B16 the age of the complainant on 2.4.1976 is 36. According to Ext. B1 and B15 the date of birth is 1940 approximately. As per Ext. B14 the date of birth is 1.1.1940 and her husband's date of birth is 11.1.46. As per Ext. A2 and B11 the date of Birth of the applicant is 1.7.1945. No believable document is produced to prove Exts. A3, B1, B14, B15, B16 and B17. Ext. A2 and Ext. B11 are one and the same. It is the extract of the admission Register of the complainant. The same is issued by the Head Master R.C. High School, Chundale. As per the above documents her date of birth is on 1.7.1945. The authenticity of the above certificate is verified by 1st opposite party. Ext. B2, B3, B4, B5, B6, B7, B8 shows that only after due verification 1st opposite party accepted Exts. A2 and Ext. B11. Ext. A2 and Ext. B11 are the documents to show her date of Birth in Black and white. We found that there is no other documents to show that her date of birth is other than 1.7.1945 in black and white. 10. The other point to be considered is whether the applicant has submitted her application to 2nd opposite party through 1st opposite party in time. In Form-2 the date of birth is in 1940. So she has to retire from service on 1.7.1998. Ext. A2 shows that the applicant has obtained the Extract of the admission Register on 17.12.96. Ext. B1 shows that 1st opposite party send a letter to Head Master RC High School Chundale on 17.2.1997 requesting to permit his welfare officer to verify the date of Birth of the complainant. As per Ext. B3 on 18.2.1997, the Welfare Officer filed a report before 1st opposite party stating that the Head Master has not permitted him to verify the date of Birth. As per Ext. B4 on 20.2.1997, 1st opposite party send a letter to District Educational Officer, Kalpetta requesting him to advise the Head Master to verify the certificate by his representative. As per Ext. B5 on 28.2.1997 the Contd.......8) 8 District Educational Officer directed the HM RC High School Chundale to issue a certificate showing the date of birth of the complainant to the concerned party. As per Ext. B6, On 24.4.1997 1st opposite party send a letter to the Head Master, RC High School, Chundale to issue a date of birth certificate pertaining to the complainant. Ext. B8 is the certificate issued by the Head Master, RC High School Chudale to 1st opposite party on 30.4.1997. As per the above certificate it is stated that the Head Master verified the date of birth of the complainant and found correct. As per Ext. B9, on 13.5.1997, 1st opposite party wrote a letter to the G.M. Plantations (Tea) Cochin, requesting him to advise whether necessary alteration can be made in her masrole history as per Ext.A2 and Ext. B8. As per Ext. B10 on 22.5.1997, Personnel Department, Harisons Malayalam Limited, Cochin issued a memorandum permitting 1st opposite party to correct the date of birth of the complainant as 1.7.1945. It shows that he has done it after proper verification. He has advised DPC to change her date of birth in their records also. Ext. B11 series shows that on 30.5.97 1st opposite party wrote a letter along with a copy of Ext. A2 to Opposite party 2 requesting him to correct the date of Birth of the complainant as 1.7.1945 instead of 1.1. 1940. 2nd opposite party contented that the same is not received by them. No document is produced by 2nd opposite party to show that the letter is not received by him. There are so many Register to show that whether he has received the letter or not. None of them is produced. Hence we come to the conclusion that 1st opposite party has taken all steps to verify the date of birth of the complainant and after due verification he send it for sanction to his Head Office. After getting sanction he has changed her date of Birth in the register kept by him and send a letter along with extract of admission register to 2nd opposite party with request to change the date of birth of the applicant on 30.5.1997 ie more than one year before her retirement from service. Hence it is clear that the complainant has applied for changing her date of birth in time. 11. Ext. B12 series to Ext. 13 series and Ext. A6 series and Ext.A8 shows necessary Contd....9) 9 entries made on the records of 1st opposite party and the 1st opposite party permitted her to work up to 31.7.2003. 1st Opposite party paid the salary and deducted the Employees provident Fund from the salaries of the complainant and remitted the same to 2nd opposite party along with their contribution. The second contention of the opposite party, that the contributions towards pension have been diverted from her only up to 30.6.1998, cannot be acceptable. It is the duty of 2nd opposite party to divert the amount from EPF to pension fund. The acceptence of contribution after July 1998 till 2003 by the opposite party tantamount to admitting the change of the year of birth as applied by the complainant. The second opposite party if took cessation of membership on 30.6.1998 it was not good on their part to collect the PF contribution sent by the 1st opposite party. Considering the above facts we come to the conclusion that 1st opposite party has taken all steps in time to verify the certificate produced by the complainant and made corrections on the records maintained by them and sent it to 2nd opposite party with request to correct the date of Birth of the complainant in the records maintained by them. The above report is seen sent on 30.5.1997. Hence there is no deficiency in service on the part of 1st opposite party. But 2nd opposite party has not corrected her date of Birth in the records and not paid the benefits according it. There is deficiency of service on the part of 2nd opposite party. 12. Point No.2: Considering the above points it is clear that the date of birth of the complainant is on 1.7.1945. It is accepted by the employer and allowed her to continue her service till 31.7.2003. 1st opposite party deducted her EPF contributions and pension Fund contribution from her salary and remitted it to 2nd opposite party. It is a fit case to apply the decision of the Appex court of our country decided in regional Provident Fund Commissioner Versus Bhavani reported in CTJ (VI) Page 563. The act is enacted for the welfare of the employees who had worked hard while they are young. At the fag end of the life when no body is there to look after them. They can live with the pensionery benefits which is intended by the legislature. Contd.....10) 10 Hence we direct 2nd opposite party to correct complainant's date of birth as on1.7.1945 instead of 1940 and treat she was superannuated from service on 31.7.2003. Sanction all pension benefit and other benefits if any on the basis of the same. If 2nd opposite party is not diverted the pension contribution to the account of the complainant he is entitled to collect it from the complainant. No order as to cost and compensation. Pronounced in the Open Forum on 10th day of July, 2008. PRESIDENT: Sd/- MEMBER: I Sd/- MEMBER: II Sd/- /True copy/ PRESIDENT, CDRF, WAYANAD. A P P E N D I X: Witness examined for complainant: PW1 Malathy Complainant's Witnesses examined for opposite parties: OPW1 Santhohkumar Crop Manager Harison Estate. OPW2 Sasidharan Employment Officer P.F. Office. Exhibits marked for complainant's A1 Series Notice with A.D Dt 27.3.2004 A2 Copy of Extract of admission registered Dt. 17.12.1996 A3 Copy of Declaration form A4 Copy of petition to by complainant to the P.F. Commissioner Dt 16.2.2004 A5 Copy of nomination and declaration form Contd....11) 11 A6 Series Subscribers annual subscription statements A7 Copy of super annuation notice Dt 1.7.2003 A8 Order of superannuation Dt. 28.7.2003 A9 Copy of letter Dt. 8.1.2004 Exhibits marked for opposite parties: B1 Declaration and nomination format B2 Copy of letter Dt.17.2.1997 B3 Letter Dt.18.2.1997 B4 Copy of letter Dt 20.2.1997 B5 Letter Dt, 28.2.1997 B6 Letter Dt. 24.4.1997 B7 Letter Dt. 28.4.1997 B8 Letter Dt. 30.4.1997 B9 Letter Dt. 13.5.1997 B10 Letter Dt. 22.5.1997 B11 series Letter Dt. 30.5.1997 and copy of School admission register. B12 series Copy of wage slip and acknowledgment B13 series Copy of PF contribution return lists B14 Copy of declaration and nomination form B15 Copy of declaration and nomination form B16 Copy of family members Certificate B17 Copy of nomination and declaration form B18 Copy of contribution card from 1st March to February B19 Authorisation PRESIDENT, CDRF, WAYANAD.
