By Sri. K. Gheevarghese, President:<br /> <br /> <br /> The complaint filed under section 12 of the Consumer Protection Act.<br /> <br /> <br /> The complaint in brief is as given below.<br /> <br /> The Complainant had been working as an employee in the 1st Opposite Part's Estate meanwhile the Provident Fund was alloted to the Complainant and became a member with the Provident Fund No. 3552. The date of birth recorded in the nomination form was mistaken. The date of birth entry in the form concerned is 01.06.1947. The Complainant requested for correcting the date of birth and for the option under Family Pension Scheme 1995 Employees Provident Fund Act. The 1st Opposite Party took steps for the same but the 2nd Opposite Party rejected claim of the Complainant on the ground that the Complainant had completed the age of 58. <br /> - 2 -<br /> 2. The Complainant send a lawyer notice to the Opposite Party requesting them to rectify the mistake and to make the Complainant eligible for the option under the Family Pension Plan. The 2nd Opposite Party on receiving the notice replied that the eligibility of the Complainant to opt for 1995 scheme ceased to exist after 58 years. The application of the complainant was made beyond the time limit and it could not be considered. Where as the 1st Opposite Party had not sent any reply to the notice. The date of birth entry in the nomination form was mistakenly done for which the complainant is not responsible. The request on the part of the Complainant to correct the date of birth was not considered by the Opposite Parties and more over rejection on the right of the Complainant for option of 1995 scheme is a deficiency in service. There may be an order directing the Opposite Party to include the name of the Complainant in the Family Pension Scheme 1995 and to pay Rs.15,000/- as compensation with cost.<br /> <br /> 3. The Opposite Parties filed version on their appearance. The gist of the version filed are as follows. According to the 1st Opposite Party the complaint is not maintainable. It is admitted that the Complainant was a worker in the Estate of the 1st Opposite Party who was superannuated on 01.07.2005. The entry of the year of the birth in the record is 1947 which also recorded in the other documents as usual. The nomination form executed and filed in form 2 also carries the year of birth as 1947 and the Complainant has also singed the nomination form. The request of the complainant was made only after superannuation for the change in the date of birth. The date of birth furnished by the Complainant were entered in the relevant portion and which were done diligently. The lawyer notice was sent by the Complainant was not replied on the ground that the question of the change in date of birth does not arise after superannuation. The Complainant received all the benefit from the 1st Opposite party the extract of the school register to prove the date of birth produced by the Complainant whereas birth certificate was not however produced. There is no deficiency in service on the part of the 1st Opposite Party the complaint is to be dismissed with cost to the Opposite Parties. <br /> <br /> 4. The 2nd Opposite Party filed version. The sum up of the version filed by the 2nd Opposite Party is as follows. The membership of the Complainant under the scheme 1952 for employees Provident Fund is admitted and the account number of the Complainant is KR/235 A/3552 at the time of joining that was on 01.07.1967 and the year of birth mentioned is 1947. The complainant was an employee under the Chembra Peak Estate. The form 2 declaration duly filled up and signed was sent to the 2nd Opposite Party with a note that the contents were red over to the member and signed after. The Provident Fund account of the member were later transfered to the present account number on transfer of his employment to an another establishment. In the nomination form only the year of birth is mentioned which is 1947. As per the manual provisions the date of birth assigned as 01.07.1947 and nomination in form 2 accepted by the 2nd Opposite Party has been continued and so far no request were done to make any change in date of birth. The complainant was not a member in the Family Pension Scheme 1971 any how upon the commencement of 1995 scheme the members who were not in the 1971 were given the chance of option to become a member in the Pension Scheme 1995. The Complainant had not made use of his right to join in the 1995 scheme till the completion of 58 years. The Complainant in the instant case made no option to join in the pension scheme of 1995 in the relevant period and on completion of 58 years the request if any made for joining the scheme it cannot be considered. The provisions and existing laws and the interpretations of the same by the Hon'ble State Commission and Hon'ble High Court of Kerala are as such that the provision does not allow a member to join the scheme after retirement. <br /> <br /> 5. The Complainant has no plea as such that the entry of date of birth in form 2 entered wrongly and no reasons for doing such a mistake. The Complainant was not produced copy of the extract of school admission register for verification. The entry in the nomination form at the time of joining is treated undisputed and accepted by the 2nd Opposite Party. In the relevant time change in the date of birth for a genuine reason accompanied by authenticated report could have been considered. There is no negligence on the part of the 2nd Opposite Party. The complaint is devoid of any merit it is to be dismissed with cost to the Opposite Party. <br /> <br /> 6. The points in consideration are:<br /> 1.Whether the complaint is maintainable?.<br /> 2.Is there any deficiency in service?.<br /> 3.Relief and cost.<br /> <br /> 7. Point No.1:- The 1st Opposite Party contended maintainability of the dispute in Consumer Forum. It is the settled provisions that an employee who has joined in the Family <br /> Pension Scheme and the service rendered by the Provident Fund to the member can be disputed in the Consumer forum. Any in adequacy or short coming of the service rendered by the employer along with the Provident Fund Commissioner comes within the purview of the act the plea non maintainability is unsustainable.<br /> <br /> 8. Point No.2:- The case of the Complainant is that the year of birth in form 2 given at the time of joining was in correct. The year which was shown in the nomination form is 1947 which is to be corrected as per the extract of the school admission register produced by the Complainant and upon which the date of birth is to be corrected to 01.06.1949. The request of the complainant to rectify the mistake was not treated positively. The plea of the 1st Opposite Party is that the document produced by the Complainant at the time of joining continued unaltered. No request was made by the Complainant to correct the date of birth prior to the superannuation. The request for option to join the Pension Benefit Scheme 1995 cannot be considered after completion of 58 years. The Complainant completed the age of 58 on 01.07.2005. On the request for any correction in the form 2 cannot be considered since provision does not enable them. <br /> <br /> 9. The Complainant filed affidavit swearing the contention. Ext.A1 to A5 are marked on the side of the Complainant. The Complainant has not produced any document to establish that in order to rectify the mistake the Form No.2 application was given in time. The manager of the 1st Opposite Party is examined as OPW1. He has testimonied that prior to the date of superannuation of the Complainant no application was given to the employer for rectification of the mistake in the form No.2 nomination form. The copy of the declaration and nomination form No.2 <br /> is marked as Ext.B1. The attested copy of the labour register of the Chembra Estate where the Complainant worked in the beginning is the Ext.B3. Even in that document the date of birth of the Complainant having the register No. 3552 is 1947. The Complainant further deposed that the petition on his part for correcting mistake in the date of birth was given only after his retirement from service and after the all benefits of retirements were availed by him. The another contention of the Complainant that the employees concerned was in lock out for near about 3 years prior to 2006. The Complainant was not in use of the opportunity in the relevant time to make him member in 1995 scheme. The rejection of the request of the Complainant for the membership in 1995 scheme by the 2nd Opposite party and the stands of the employer cannot be interfered. The act of Opposite Parties cannot be considered as a deficiency in service and the point No.2 is found accordingly. <br /> <br /> 10. Point No.3:- The point No. 2 is not found in favour of the Complainant a detail discussion on point No.3 is not necessary.<br /> <br /> In the result, the complaint is dismissed no order upon costs.<br /> <br /> Pronounced in open Forum on this the 29th day of September 2008. <br />