BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.477 of 2015
Date of Instt. 04.11.2015
Date of Decision: 05.06.2018
Smt. Veena Rani W/o Late Gopal Chand of 56 years old, R/o NB-251, Laxmi Pura, Jalandhar-144004, Punjab, India (Mobile No.9781308282).
..........Complainant
Versus
1. M/s Spencer's Retail Ltd. through its Managing Director, Registered Office: Duncan House, 1st Floor, 31, Netaji Subhas Road, Kolkata-700 001.
2. The Regional Provident Fund Commissioner West Bengal, Employees Provident Fund Organization, DK-Block, Sector-II, Sait Lake, Kolkata-700 091.
3. The Employees Provident Fund Organization through its Assistant Provident Fund Commissioner, Sub Regional Office, Sahota Complex, 171, Green Park, Near Bus Stand, Jalandhar 144 001.
4. The Regional ESI Commissioner, The Employees State Insurance Corporation, Panchdeep Bhawan, Comrade Inderjeet Gupta (CIG) Marg, New Delhi-110 002.
5. The Medical Superintendent, ESI Hospital, Back Side Civil Hospital, Shaheed Udham Singh Nagar, Jalandhar-144 001.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. AK Walia, Adv Counsel for the Complainant.
Sh. Vikas Sood, Adv Counsel for the OP No.1.
Sh. Sandeep Singh, Adv Counsel for the OP No.2 and 3.
OP No.4 exparte.
Dr. Asaf Ghulam Qader, Medical Officer on behalf of OP No.5.
Order
Karnail Singh (President)
1. The instant complaint is filed by the complainant, wherein alleged that the OPs are providing services to the general public for consideration with regard to the deposit to the provident fund of employees of private companies through out India, more particularly at Jalandhar. The OPs are having their branch offices at Jalandhar.
2. That Mr. Nitin Kumar son of Sh. Gopal Chand was appointed as “CSA-Warehouse” for Punjab based out of Jalandhar DC in May 2008 and he remained on the role of the OP No.1 at Jalandhar upto 08.02.2009 till death. The date of birth of said Mr. Nitin Kumar was 03.11.1985. The said Mr. Nitin Kumar was insured under The Employees State Insurance Act, 1948. The said Mr. Nitin Kumar son of the complainant unfortunately died in hospital on 08.02.2009 due to his kidney problem. Sh. Gopal Chand son of Sh. Ram Nath, husband of the complainant and father of the said Mr. Nitin Kumar had already expired on 12.12.2014. That the complainant was fully dependent on the said Mr. Nitin Kumar being her natural mother.
3. That during the employment of said Mr. Nitin Kumar with OP No.1 at Jalandhar, Provident Fund etc. was deducted from his salary by the OP No.1, as such the complainant is entitled to the amount of provident fund deposited after deduction from the salary of Nitin Kumar with the OP No.3 by the OP No.1 and the complainant is also entitled to the benefit of Family Pension as the said Mr. Nitin Kumar died at the young age of 24 years of his young age and he was not married and the complainant is entitled to the benefit of Family Pension under the Provident Fund Scheme, Link Deposit Insurance amount, Benefits under the The Employees State Insurance Act, 1948 etc. payable on the death of said Mr. Nitin Kumar. After coming into stable condition and after consultation, the complainant applied for the grant/release of all he benefits of said Nitin Kumar to the OP No.1 through its Mohali Office, to the complainant. Thereafter, the complainant attempted to pursue the matter through email, but of no use. The OP No.2 and 3 must have the deposits the aforesaid amount of the deceased as he was posted at Jalandhar and the said Mr. Nitin Kumar received a salary at Jalandhar. The complainant is entitled to the benefits of Family Pension under the Provident Fund Scheme, Benefits under The Employees State Insurance Act, 1948 and along with other dues of the said Mr. Nitin Kumar. The complainant and the husband of the complainant in the month of February, 2009 had received only Rs.3000/- from the OP No.5 on the death of the said Mr. Nitin Kumar. The complainant served a legal notice dated 19.05.2015 through Sh. Arun Kumar Walia, Advocate to OPs No.1 to 3 through Speed Post and the same were served on the OP No.1 to 3. On receipt of the said legal notice dated 19.05.2015, the OP No.1 gave a reply on 15.06.2015. On receipt of letter dated 15.06.2015, the complainant immediately sent all the demanded documents to the OP No.1 through Speed Post letter dated 01.07.2015 and the same was delivered to the OP No.1 through Senior Manager-Legal Sh. Deepak Mohata. Thereafter, the OPs No.2 and 3 on 05.08.2015 deposited Rs.3400/- only in the account of the complainant with Punjab National Bank, at Jalandhar directly without any communication to the complainant. Till date the OPs are not paying the total amount of Provident Fund along with Family Pension, Link Deposit Insurance amount etc. to the complainant, whereby the OPs harassed the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.4,99,000/- in all in terms of money being the payment of provident fund, family pension, link deposit insurance amount, benefits under The Employees State Insurance Act, 1948 payable on the death of said Mr. Nitin Kumar and as compensation for mental tension, harassment, inconvenience, financial loss etc. caused due to the above said deficiency in service, negligence and unfair trade practice on the part of the OPs with regard to withholding the payment of Provident Fund etc. with cost and interest.
4. Notice of the complaint was given to the OPs, but despite service OP No.4 failed to appear and ultimately, OP No.4 was proceeded against exparte, whereas OP No.1 appeared and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and even there is no cause of action accrued to the complainant against OP No.1. It is further alleged that the complainant has not come before this Forum with clean hands, therefore, the complaint is liable to be dismissed. It is further alleged that the true facts are that the OP No.1 has already complied with all the mandatory provisions of law. The OP No.1 has already submitted claim forms and other documents to the respective department. Not only this the OP No.1 has already replied the queries of the other OPs. There is no deficiency in service whatsoever on the part of the OP No.1. On merits, Para No.2 to 4 admitted as a matter of record, but the remaining contents of the complaint are categorically denied and further stated that the provident fund of the deceased was deposited after the deduction from the salary and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed qua OP No.1.
5. OP No.2 and 3 appeared and filed their joint reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable as per law and even the complainant has not come before this Forum with clean hands and further averred that the complainant is estopped by her own act and conduct to file the present complaint and even this Forum does not have the jurisdiction to try and decide the present complaint and even the complaint is time barred. On merits, the allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
6. OP No.5 appeared and filed its separate reply, whereby contested the complaint by taking preliminary objections that the present complaint is not legally maintainable against the answering OP, it deserves to be dismissed with special cost. From the perusal of the complaint, it would be observed that the averments made therein, are vague, baseless and with malafide intention. The complainant is fully aware that he has filed the complaint with false averments against the answering OP and further alleged that the instant complaint is liable to be dismissed under Section 26 of the Consumer Protection Act, with costs for being false, frivolous, vexatious and mis-conceived. It is submitted that the complainant has filed the present complaint with ulterior motive and malafide intention to cause harassment and prejudice to the answering OP and just to extract money from the answering OP. Neither the complainant nor her son was having any relation with the answering OP. It is worthwhile to mention here that no alleged provident fund was ever deposited with the answering OP. It is further alleged that the complainant is not consumer qua to the OP and even the answering OP has been wrongly impleaded in this complaint and as such the complaint of the complainant deserves to be dismissed. On merits, it is submitted that the answering OP only deals in medical treatment, but the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
7. In order to prove her case, complainant Veena Rani tendered into evidence her duly sworn affidavit Ex.CA and supplementary affidavit Ex.CB along with some documents Ex.C-1 to Ex.C-12 and closed the evidence.
8. Similarly, counsel for the OP No.1 tendered into evidence some documents Ex.OP1/1 to Ex.OP1/7 and affidavit Ex.OP1/A and closed the evidence and then counsel for the OP No.2 and 3 tendered into evidence affidavit Ex.OP2/A and one document Ex.OP2/1 and closed the evidence and OP No.5 tendered into evidence duly sworn affidavit Ex.OP5/A and closed the evidence.
9. We have heard the learned counsel for the respective parties and also gone the case file very minutely.
10. Precisely, the claim of the complainant is that the son of the complainant namely Nitin Kumar was appointed as CSA-Warehouse and remained on the role of the OP No.1 at Jalandhar upto 08.02.2009 and he was also insured under 'The Employees State Insurance Act, 1948', but unfortunately, the son of the complainant Mr. Nitin Kumar expired on 08.02.2009 due to his kidney problem and husband of the complainant namely Gopal Chand also expired on 12.12.2014 and complainant being dependent upon his son Nitin Kumar, entitled to get the provident fund, which was deducted from the salary of the Nitin Kumar by OP No.1 and further complainant is also entitled for family pension under the Provident Fund Scheme, but despite repeated request, the OPs failed to pay the said provident fund amount as well as family pension and as such, she is entitled for lump sum amount of Rs.4,99,000/-.
11. The claim of the complainant is not admitted by all the OPs rather they categorically replied that it is a matter of record and whenever such a situation, then we think it is the duty of the complainant to establish on the file when his son Mr. Nitin Kumar joined the service and how many years he remained in service and what amount was contributed from his salary towards Provident Fund Scheme, but no such record is produced or proved on the file by the complainant. The complainant has very much liberty to collect the said record from the concerned department and proved on the file just to establish that how much amount was deducted from the salary of the deceased Nitin Kumar and also established that how many years service have been done by the deceased, but blindly claiming that she is entitled for the family pension, is not acceptable because there are some rule and regulation, which provide after how many years service the one employee or his LR become entitled for the pension/family pension. If the complainant herself is not aware that how much amount was deducted from the salary of the deceased Mr. Nitin Kumar, then what she is claiming and simply claiming a lump sum amount of Rs.4,99,000/-. We are astonished to see that how and under what circumstance, the said amount was calculated and demanded by the complainant. No doubt, the complainant brought on the file Attendance Sheets Ex.C-1 and Ex.C-2 of the deceased Mr. Nitin Kumar, but it is not clear from the said Attendance Sheets that which of the department has issued the said Attendance Sheets. So, these Attendance Sheets having no value in this case and further the complainant produced on the file copy of the legal notice and its reply has been given by the OP, but in reply, the OP has not denied to make the payment if there is any amount lying in the provident fund account of the deceased Mr. Nitin Kumar, but subject to furnishing some documents and further the complainant has not alleged or stated in her affidavit that the said document was ever supplied to the OP or not. So, from the over all circumstances, it has become clear that the claim of the complainant as made in the instant complaint seems to on the basis of surmises and conjectures, because there is no solid and perfect evidence brought on the file by the complainant where from this Forum can construe that the complainant is entitled for the relief and under these circumstances, we are of the considered opinion that the complaint of the complainant is without merits and the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
05.06.2018 Member President
