KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 678/2010
JUDGMENT DATED: 8.9.2010
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
The Regional Provident Fund Commissioner, : APPELLANT
Employees Provident Fund Organisation,
Bhavishiya Nidhi Bhavan, Pattom,
Thiruvananthapuram.
(By Adv.K.Ramachandran Nair)
Vs.
1. Mariyamma, : RESPONDENTS
Thettimukal Thekkathil Veedu,
Eringoor, Mylom,
Kizhakketheruvu.P.O.,
Kottarakara.
(By Adv.Jayachandra Babu)
2. The Manager,
Fathima Cashew Company,
Kizhakketheruvu,
Chengamanadu-P.O.,
Kottarakara.
JUDGMENT
SRI.M.K.ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Kollam in the file of OP.No.391/05. The appellant is the 2nd opposite party and the respondents are the complainant and 1st opposite party respectively. It filed for setting aside the impugned order passed by the forum below, directed the 2nd opposite party to fix a pension to the complainant on the basis of the discussion above she has completed 58 years on 31.12.2000 and that she has not non contributory period. The 2nd opposite party is also directed to pay Rs.25000/- as compensation and Rs.1000/- as costs to the proceedings.
2. As per the complaint she was an employee in the peeling section by number 147 of the 1st opposite party factory and she retired from service on 31.12.2000 when she attained the age of 58. She was a member of EPF and she had regularly remitted her contribution to the Provident Fund Organisation. After deducting the monthly share of commuted pension of Rs.102/- the complainant is getting Rs.204/- was actual monthly pension. The complainant is eligible for getting Rs.204/- as monthly pension, she rendered more than 21 years of continuous service in the 1st opposite party factory till her retirement. Therefore she made complaint to the opposite parties about pension amount. But the 2nd opposite party replied that though she has 21 years as past service there was service break for 14 years and 7 months and had break in reckonable service of 2 years and 11 months. The 2nd opposite party calculated only 2 years for pensionable service. The complainant is entitled to get an amount of Rs.700/- as monthly pension. There is deficiency in service on the part of the opposite parties hence the complaint.
3. The 1st opposite party filed a separated version contending that the averments contained in the paragraphs 1 to4 are not true and they are denied by the opposite parties. They purchased the factory with its license from on 17.6.91. It is respectfully submitted that 1st opposite party has not committed any deficiency in service towards the complainant hence 1st opposite party prayed to dismiss the complaint. But the 2nd opposite party contended that the complaint itself is barred by period of limitation under Section 24-A of the Consumer Protection Act. The complainant joined the Employees Family Pension Scheme 1971 on 1.3.1975. Her date of birth as per statutory declaration in form No.2 stands 23.6.44. She completed 58 years of age on 23.6.02. She opted for pension vide her application dated 20.4.01. As per the complainant’s arguments, she retired on 31.12.2000 on completion of 58 years is not correct and hence denied. The complainant preferred an application for pension dated 20.4.2001 the application was processed as per the EPS 1995 under para 12. In this case of an employee and has attained the age of 48 years but less than 53 years on the 16th November, 1995. The superannuation pension shall be equal to the aggregate. There is no deficiency in service on the part of the 2nd opposite party. Hence 2nd opposite party prays to dismiss the complaint.
4. The evidence adduced consisted of Ext.P1 to P5 marked for complainant and examined the complainant as PW1. The opposite parties produced and marked Exts.D1 to D6 and examined DW1 K.A.Purushothaman. The Forum below raised 3 points for consideration. They are 1) Whether the complainant is entitled to get the enhanced pension as per EPS 1995? 2) Whether there is any deficiency in service on the part of the opposite parties? 3) Reliefs and costs?
5. The Forum below passed the detailed order and taken a view that total pension eligible to the complainant is Rs.91/- which has been enhanced to Rs.325/- in accordance with para 12 4(b). According to the 2nd opposite party the complainant is entitled to get only short service produced pension as per para 12(a). Since she applying for pension on 20.4.2001 attaining completion of 58 years. As per Ext.P2 issued by 1st opposite party the complainant has completed 58 years on 31.1.2000. Here the complainant produced contribution card if every year which are marked as P3 series and Ext.P5 series. Though Ext.P3 series and Ext.P5 series the complainant proved that she has not non contributory period during her service period in 1st opposite party factory. Thus as per Ext.P2, Ext.P3 series and Ext.P5 series the complainant is eligible to get actual pension and the Forum below allowed the complaint and directed the 2nd opposite party to fix the pension to the complainant on the basis of the above discussion, she has completed 58 years on 31.12.2000 and that she has not non contributory period. The 2nd opposite party has also directed to pay Rs.2500/- as compensation and Rs.1000/- as costs to the proceedings. The order is to be complied within one month from the date of receipt of the order. This order was challenged by the appellant in this appeal.
6. On this day this appeal came before this commission for final hearing; both the counsel for the appellants and respondent/complainant is present and both are argued their own cases in detail. Appellant is having a case that the complainant itself is barred by limitation and Forum below has not having any jurisdiction to entertain this complaint after the expiry of the limitation period strictly prescribed by the Consumer Protection Act as two years and the complainant did not having any reasonable explanation or evidence to get over the expiry of limitation period. At the same time the counsel for the respondent/complainant argued vehemently that the manufacturer of the company given an assurance to the complainant that this grievances will be settled. This is the reason while the complainant was waiting for filing the complaint after the expiry of 2 years. But this Commission is seeing that no such manufacturer was examined as a witness from the part of the complainant. No steps taken by the complainant to get over the hit of the limitation of the ocmplaint. There is no petition is seeing along with complaint to condone the delay on a reasonable cause. It is seen that the complaint is barred by limitation according to the Section 24(a) of the Consumer Protection Act. Before filing the complaint the complainant did not sent any communication to the 2nd opposite party for a settlement of her claim. In the circumstance, it is revealed as per the evidence adduced by both sides the complainant is barred by period of limitation under Section 24(a) of the Consumer Protection Act. The complainant is not having any piece of evidence to defend that the delay was occurred due to the assurance of the manager of the company given to her. In another aspect we are seeing that Forum below did not raised this importance point as a question at the time of disposal of the complaint. The limitation is prescribed by the statute and it is mandatory to entertain a complaint within a stipulated time by the forum below. It is not seeing no where in the order of the Forum below that how they got over the legal hurdle like hit of the limitation of the complaint after settle this position of law then only necessary to proceed for further steps. It is the strict legal proceeding, which establish under the provisions of the Consumer Protection Act. But in this order, it is seeing that no such attempt taken by the Forum below. Forum below without considering this question of law and directly proceeded with the complaint and allowed the complaint on merit. We think that it is not fair the Forum below disobey the provision of the Consumer Protection Act. This order passed by the Forum below not accordance with the fundamental principle of the Consumer Proteciton Act. It is not legally sustainable . We decide to interfere in the impugned order passed by the Forum below. We know the sympathetic attitude of the Forum below taken towards the complainant. Eventhough she is a aged lady but the sympathy is not a criteria to dispose a complaint accordance with the provisions of the Consumer Protection Act. It is a fact finding body.
In the result the above appeal is allowed and the order passed by the Forum Below is set aside. Both parties are directed to suffer their own respective costs. The points of this appeal is already discussed and answered accordingly.
SRI.M.K.ABDULLA SONA : MEMBER
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
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