BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                            Dated this the 15^th of October 2010

PRESENT

                                                           SMT. ASHA SHETTY           :   PRESIDENT

                                                                                 SMT.LAVANYA M. RAI       :   MEMBER

                                                                                 SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.108/2010

(Admitted on 27.03.2010)

Smt. Saramma,

Do. M.D.Hamed Beary,

Wo. T.Mohammed,

Aged about 65 years,

RA. Kadabettu Village,

Kavalakatte, Vogga Post,

Bantwal Taluk.                                 …….. COMPLAINANT

(Advocate for the Complainant: Sri.Naveen Banninthaya P.R.)

          VERSUS

The Assistant Provident Fund Commissioner,

Office of the Employees Provident Fund Organization,

Sub-Regional Office,

Bhavishyanidhi Bhavan,

P.B. No.572, Silva Road,

Hilghlands, Mangalore – 2.                  ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri.J.Ravindra Naik).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, she was a beedi roller and she was retired from service on 30.09.2002.  She has Employees Provident Fund Account No.KN/12100/B/777.  It is stated that, the Complainant’s correct date of birth as per the school records is 15.08.1944.

It is stated that, the Complainant has submitted the application for grant of pension, the Opposite Party rejected the application on the ground that, the Complainant has to submit the claim in Form No.10(D).  Thereafter it is informed by the Opposite Party that the Complainant’s date of birth is recorded as 01.09.1962 and therefore the request of the Complainant cannot be considered.  The Complainant has requested the Opposite Party by providing necessary documents proof to consider the correct date of birth.  Inspite of request made by the Complainant, the Opposite Party has failed to comply the same.  Finally, the Complainant issued a legal notice dated 09.02.2010 calling upon the Opposite Party to pay the pension but the Opposite Party failed to comply the demand made therein.  Hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Pension amount and all other benefits to the Complainant as per the correct date of birth i.e., 15.08.1944 and also claimed Rs.1,00,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version admitted the Provident Fund Account number is No.KN/12100/B/777.  The Opposite Party denied that, the correct date of birth is 15.08.1944.  The Complainant was advised to forward the representation to change the date of birth along with the age proof certificate.  No records were produced by the Complainant.  It is stated that, on 07.02.2007 the Complainant had issued lawyer’s notice but not sent any records.  It is further stated that, there is a discrepancy in the date of birth i.e., 15.08.1944 mentioned in the letter dated 28.09.2002 issued by the school authorities and contended that there is no deficiency on the part of the Opposite Party and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Smt.Saramma (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her.   Ex C1 to C4 were marked for the Complainant as listed in the annexure.   One Sri.H.Chandrakanth Gadiyar (RW1), Assistant Provident Fund Commissioner of the Employees Provident Fund Organization filed counter affidavit and answered the interrogatories served on him.  Ex R1 to R4 were marked for the Opposite Party as listed in the annexure.   The Complainant produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

The Complainant was doing beedi rolling work and a member of Employees Provident Fund, holding Provident Fund account No.KN/12100/B/777.  It is also not in dispute that, the Complainant retired from the service on 30.09.2002.

Now the point in dispute between the parties are that, the Complainant contended that, she was working as a beedi roller and retired from service on 30.09.2002.  The Complainant’s correct date of birth as per the School records is 15.08.1944.  The Complainant has submitted an application for grant of pension and the same was rejected on the ground that the Complainant has to resubmit the claim in Form No.10(D) and the date of birth is recorded as 01.09.1962 and therefore the request of the Complainant cannot be considered.  It is contended that, the Complainant is a villager and her date of birth was wrongly mentioned in the scheme certificate as 01.09.1962. The Complainant requested the Opposite Party by providing necessary documentary proof to consider her date of birth i.e., 15.08.1944 and to grant pension and other benefits is not considered by the Opposite Party, hence this complaint.

On the contrary, the Opposite Party contended that, the Opposite Party settled the PF account of the Complainant and issued scheme certificate considering the date of birth as 01.02.1962 furnished by her and she is not entitled for the pension amount.

From the outset of the records available on the file of this Forum, we find that, as per the provisions of the Employees Provident Fund Scheme 1995, the employee entitled for pension after attaining the age of 58 years.  But in the instant case, because of the dispute regarding the date of birth of the Complainant the payment of the pension was rejected. 

The Complainant filed an affidavit in lieu of chief examination stated that, she was working as a beedi roller and retired from the service on 30.09.2002.  The correct date of birth of the Complainant as per the school records is 15.08.1944.  Despite of requesting the Opposite Party by providing necessary documentary proof to consider her correct date of birth i.e., 15.08.1944 and to grant the pension and other benefits was rejected.  The Complainant produced Ex C1 to C4.  On scrutiny of the documents produced by the Complainant i.e., Ex C3 the copy of the school certificate, wherein, her date of birth shown as 15.08.1944.  We have perused the circular dated 12.12.2006 issued by the Employees’ Provident Fund Organization (Ministry of Labour, Govt. of India) to all the Regional Provident Fund Commissioners, all officers in-charge of SROs to issue a comprehensive guideline, wherein it is stated that, a member who has been issued with a social security number, disputes the date of birth, the same can be entertained by a valid documentary proof such as certificate issued by the Registrar of Births and Deaths, any school/education related certificate, certificate based on the service records of the Central/State Government Organization.  And further, the one more circular dated 27.07.2007 issued by the Employees’ Provident Fund Organization (Ministry of Labour, Government of India), wherein, it has been clearly stated that, the request for change of date of birth can be preferred any time when the wrong date of birth comes to the notice of the employee/employer.  When that being the case, the Opposite Party should have entertained the claim of the Complainant by considering school records atleast after filing this complaint.  The Ex R4 i.e., letter dated 7.9.2010 issued by the Opposite Party reveals that, the sanctioning authority is agreed for change of date of birth and payment of appropriate benefits as per the EPS scheme but the same is not settled till this date and the parties are forced to pass an order in this case despite of undertaking to settle the claim, which shows their responsibility.  The non-considering the claim of the Complainant till this date amounts to deficiency in service. 

We further noticed that, the Complainant is a beedi roller, to do the beedi rolling work no qualification or age is required.  Under that circumstances, the age mentioned in the Form No.9 or any records submitted by the employer without there being any age proof cannot be considered or by relying on such records one cannot reject the genuine claim of the member herein the Complainant.  However, the Complainant produced the correct date of birth issued by the School Authority clearly shows that the Complainant’s date of birth is 15.08.1944, which requires no further proof. 

In view of the above discussion, we hold that the Opposite Party ought to have considered the claim of the Complainant atleast after producing the date of birth certificate.  In this case, the Opposite Party failed to consider the claim of the Complainant till this date which amounts to deficiency.  Therefore, we direct the Opposite Party to pay the pension amount and all other benefits to the Complainant by considering the date of birth i.e., 15.08.1944.  And further we direct the Opposite Party to pay compensation of Rs.5,000/- towards the harassment and personal inconvenience caused to the Complainant and Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.  

6.       In the result, we pass the following:                          

ORDER

The complaint is allowed.  Opposite Party is directed to pay the pension amount and all other benefits to the Complainant by considering the date of birth i.e., 15.08.1944.  And further direct the Opposite Party to pay Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.  

  On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.

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

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15^th day of October 2010.)       

        PRESIDENT

         MEMBER                                                       MEMBER

       ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Smt.Saramma – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 09.02.2010: Copy of the Lawyer’s notice issued to the Opposite Party.

Ex C2 –                 : Postal acknowledgement.

Ex C3 –                 : Copy of the school certificate.

Ex C4 – 31.03.2010: Reply of the Opposite Party.

Witnesses examined on behalf of the Opposite Party:

RW1 – Sri.H.Chandrakanth Gadiyar, Assistant Provident Fund Commissioner of the Employees Provident Fund Organization.

Documents produced on behalf of the Opposite Party:   

Ex R1 – 23.08.2001: Copy of nomination and declaration form.

Ex R2 – 22.07.2003: Copy of Form No.10-C.

Ex R3 – 08.09.2004: Copy of the letter sent to the Complainant.

Ex R4 – 07.09.2010: Letter of the Opposite Party to the Assistant P.F. Commissioner, Legal cell.

Dated:15.10.2010                            PRESIDENT