BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 204/2007 Filed on 27.09.2007

Dated : 31.05.2010

Complainant:

Leelamma, Melevila Veedu, Paiveli, Pallickal, Chirayinkil, Thiruvananthapuram.

Opposite parties :

1. Nandakumar, Proprietor, Sastha Enterprises, Lekshmi Nivas, Thamarakkulam, Kollam.

    

Addl. Opposite party:

2. The Branch Manager, ESI Corporation, Kallambalam.

(By adv. S. Sreekumar)

This O.P having been heard on 30.04.2010, the Forum on 31.05.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Complainant is an employee of the 1^st opposite party. 2^nd additional opposite party is the Manager, E.S.I Corporation, Kallambalam. Due to serious illness the complainant was on leave for a long period of time. On that period she was getting E.S.I benefits. But from the period 18.09.2003 to 30.06.2004 when she was undergoing hospitalization, the 1^st opposite party submitted the records before the 2^nd opposite party that complainant was on duty. For that reason the E.S.I authorities cancelled the benefit on that period. The actual fact is that from 18.09.2003 to 30.06.2004 she was not working and she was in the hospital. The complainant states that due to the negligent and incorrect returns of the 1^st opposite party, the 2^nd opposite party disallowed her E.S.I sick leave benefits. Hence this petition.

1^st and 2^nd opposite parties filed their version contending the case of the complainant. The 1^st opposite party, the employer admits that the complainant was his employee and was a member of Employees State Insurance Scheme. Her E.S.I No. is 1061461. The main contention of the 1^st opposite party is that the complainant is not a consumer within the meaning of the Consumer Protection Act. The complainant is only a workman under the Industrial Disputes Act and there is no deficiency in service. They submit that the Employees Insurance Court alone have jurisdiction to decide the benefit of the employee under the Employees State Insurance Act. The 1^st opposite party further submits that the complainant did not attend work during the period from 18.09.2003 to 30.06.2004. No leave application with medical certificate submitted by the complainant to the opposite party. The 1^st opposite party is not aware of the whereabouts of the complainant during the period and it was an unauthorized absence from duty. No payment was made during the period of her absence. The 2^nd opposite party E.S.I Corporation submits that she was on certified leave for the period from 18.09.2003 for illness 'IVDP' and was paid cash benefit for sickness for 287 days for the period from 18.09.2003 to 30.06.2004. Later the employer of the complainant submitted the return of contribution for the period ended on 31.03.2004 as per which the complainant had worked for 68 days for the period from 01.10.2003 to 31.03.2004 and received wages for these days. She availed cash benefits from this opposite party declaring that she had not received wages for the period of leave for which case benefits for sickness was claimed and received. As per Sec. 63 of E.S.I Act, no person shall be entitled to sickness benefit or disablement benefit on temporary disablement on any day on which he receives wages or on any day as which he remains on strike. Thus it is evident that the complainant availed benefits for which she worked in factory and received wages. When these facts were realized, this opposite party stopped the cash benefits payment to the applicant. The opposite party further submits that as per office records the applicant is in receipt of Rs. 3,428/- in excess which is to be recovered from her. They further stated that under Sec. 84 of the E.S.I Act it is an offence obtaining cash benefits by furnishing false declaration. Hence they prayed for the dismissal of the complaint.

To prove her contentions the complainant has filed proof affidavit and she has produced 6 documents. She was examined as PW1 and the 2^nd opposite party cross examined the complainant.

The points that would arise for consideration are:-

1. Whether this Forum has jurisdiction to entertain this complaint?

2. Whether there has been deficiency in service occurred from the side of opposite parties?

3. Whether the complainant is entitled to get the reliefs and costs?

Point (i):- The 1^st opposite party has raised an objection that the Employees Insurance Court alone has jurisdiction to decide the benefit of the employees in the Employees State Insurance Act. This is a case wherein the complainant has been conducting the case in person. It has been held in numerous cases of the Court that the jurisdiction of a consumer forum has to be construed liberally so as to bring many cases under it for their speedy disposal. The Act being a beneficial legislation should receive a liberal construction. The Hon'ble Supreme Court speaking on the jurisdiction of the consumer Fora in State of Karnataka Vs. Vishwabarathi House Building Co-operative Society and Others, AIR 2003 SC 1043 held that the provisions of the said Act are required to be interpreted as broadly as possible and the Fora under the Consumer Protection Act have jurisdiction to entertain a complaint despite the fact that other Fora /courts would also have jurisdiction to adjudicate upon the lis. The court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.

Under Sec. 38 of the ESI Act, all employees in a factory or establishment where the Act applied are required to be insured under the insurance scheme. Sec. 39 speaks of the contribution which is required to be paid to the corporation for the insurance scheme which shall comprise the contribution payable by the employer and the contribution payable by the employee. The contribution is required to be paid at such rates as may be prescribed by the Central Government. By virtue of Sec. 40, the principal employer is liable to pay the contributions, both the employer's contribution and the employee's contribution, in the first instance of the employees directly employed by him or by or through an immediate employer. Sub-section (2) of Sec. 40 authorizes the principal employer to recover the contribution made for the employee by deducting the same from the wages of the employee. The expense incurred for the service rendered in the hospital would be borne from the contributions made to the insurance scheme by the employer and the employee. The person availing of such service under an insurance scheme of medical care, whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of 'service' as defined in Sec. 2(1)(o) of the C.P. Act.

Points (ii) & (iii):- The case of the complainant is that from 18.09.2003 to 30.06.2004 she was on sick leave due to illness. But the 1^st opposite party the employer submitted false returns to the ESI Corporation that from 01.10.2003 to 31.03.2004 she was working in the factory and received wages for that period. On the basis of that record the 2^nd opposite party terminated her E.S.I cash benefits. To prove her contentions the complainant has produced 6 documents which were marked as Exts. P1 to P6. Ext. P1 is the referral O.P card issued by Medical College hospital regarding her sickness. Ext. P2 is the discharge card. As per this card date of admission is 03.11.2004, discharge date 08.12.2004. Ext. P3 is the copy of report of the Insurance Medical Officer for extension of ESB beyond 309 days. Ext. P4 is the copy of letter dated 22.08.2005 issued by the E.S.I Corporation to the complainant informing her that as per the return of contribution submitted by her employer for the contribution period from 01.10.2003 to 31.03.2004, she had worked for 68 days and hence an amount of Rs. 3,428/- is excess and hence the payment was stopped with effect from 01.07.2004. Ext. P5 is the copy of E.S.I card of the complainant. Ext. P6 is the copy of medical report issued by Insurance Medical Services, Kerala. As per this document the date of admission was 18.09.2003 and date of discharge was 26.09.2004. From this document and other documents submitted by the complainant it is clear that the complainant was undergoing hospitalization from 18.09.2003 to 26.09.2004. And moreover the 1^st opposite party, the employer admitted in his version that the complainant did not attend work during the period from 18.09.2003 to 30.06.2004. Through the documents and evidences adduced by the complainant, she has established her case beyond doubt. From the available materials on record we can find that there is negligence and deficiency in service from the side of the 1^st opposite party. As an employer his duty is to furnish clear and correct documents to the 2^nd opposite party regarding the return of contribution. On the basis of false return of contribution the 2^nd opposite party terminated the complainant's cash benefits for sickness. Due to the negligent and incorrect return of contribution submitted by the 1^st opposite party the complainant had suffered so much mental agony and financial loss. Hence the 1^st opposite party is liable to compensate the same. Hence the complaint is allowed.

In the result, the 2^nd opposite party is directed to provide all the benefits to the complainant as per the E.S.I Act to the complainant as the complainant was on leave from 18.09.2003 to 30.06.2004. The 1^st opposite party admitted that for the period the complainant did not attend factory for work. The 1^st opposite party is directed to pay Rs. 5,000/- as compensation and Rs. 2,000/- as costs. Time for compliance one month from the date of receipt of the order. Thereafter 12% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of May 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 204/2007

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of referral O.P card dated 28.06.2004.

P2 - Photocopy of discharge card dated 10.12.2004.

P3 - Photocopy of report of the Insurance Medical Officer for

extension of ESB beyond 309 days.

P4 - Photocopy of letter dated 22.08.2005 addressed to

complainant.

P5 - Photocopy of ESI card of the complainant.

P6 - Photocopy of medical report.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT