BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 15th of October 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.109/2010
(Admitted on 27.03.2010)
Smt.Bommi,
Wo. Mr.Koosappa Poojary alias
Veerappa Poojary,
Aged about 63 years,
RA. Bogrukume House,
Kadabettu Village and 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 in Southern India Works Ltd as per Employees Provident Fund Account No.KN/MNG/12100/B/749. She retired from service on 01.09.2005 due to her ill health. The Complainant’s correct date of birth as per the certificate issued by the Chief Registrar of Birth and Death issued by the Government of Karnataka is 01.10.1947.
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 date of birth as per the Scheme Certificate and other relevant records is 01.03.1961 and hence she is not entitled to pension as claimed by her. The Complainant has requested the Opposite Party by providing necessary documents proof to consider the 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., 01.10.1947 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 KN/MNG/12100/B/749 but denied the correct date of birth is 01.10.1947. It is stated that, the Opposite Party settled the P.F. account of the Complainant and issued scheme certificate considering the date of birth as 01.03.1961 forwarded by her through her ex-employer in the basic returns Form No.9/5. Since she had failed to furnish the correct date of birth through her ex-employer at the time of encashment of the P.F. membership and 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:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Smt.Bommi (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 R6 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/MNG/12100/B/749. It is also not in dispute that, the Complainant retired from the service on 01.09.2005.
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 01.09.2005 and after the retirement, submitted an application for grant of pension and the same is rejected on the ground that the date of birth in the scheme certificate and other relevant records was shown as 01.03.1961 and hence her application was rejected. It is contended that, the Complainant is a villager and her date of birth was wrongly mentioned in the scheme certificate as 01.03.1961. But as per the certificate issued by the Registrar of Births and Deaths, Government of Karnataka is 01.10.1947. The Opposite Party despite of furnishing the date of birth issued by the Registrar of Births and Deaths, Government of Karnataka not considered the pension hence this complaint.
On the contrary, the Opposite Party contended that, the Opposite Party settled the Provident Fund account of the Complainant and issued scheme certificate considering the date of birth as 01.03.1961 furnished by her through her ex-employer in the basic returns in Form No.9/5. On 22.09.2006 the request of the Complainant was rejected by the Opposite Party since she had failed to furnish the correct date of birth through her ex-employer at the time of enrollment to the Provident Fund membership and hence she is not entitled for the pension.
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 01.09.2005. The correct date of birth of the Complainant as per the certificate issued by the Registrar of Births and Deaths, Government of Karnataka is 01.10.1947 but the Opposite Party not considered the pension of the Complainant stating that the Complainant failed to furnish the correct date of birth through her ex-employer at the time of enrollment to the PF membership. In order to substantiate the case of the Complainant, the Complainant produced Ex C1 to C4. On scrutiny of the documents produced by the Complainant i.e., Ex C3 is the copy of the birth certificate issued by the Registrar of Births and Deaths, Government of Karnataka shows that, the correct date of birth of the Complainant is 01.10.1947. 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 the original date of birth proof produced by the Complainant atleast after filing this complaint. 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 nomination and declaration form or any records submitted by the employer without there being any age proof cannot be considered. However, the Complainant produced the correct date of birth issued by the Registrar of Births and Deaths is clearly shows that, the Complainant’s date of birth is 01.10.1947. Hence the service rendered by the Opposite Party in the present case amounts to deficiency as stated supra.
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. 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., 01.10.1947. 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., 01.10.1947. 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 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 15th day of October 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Bommi – 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 – 04.07.2006: Copy of the birth certificate.
Ex C4 – 31.03.2010: Reply by 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 – 09.12.2005: Copy of the Form No.10-C.
Ex R3 – 07.02.2007: Copy of the Lawyer’s notice.
Ex R4 – 27.02.2007: Reply sent to the advocate.
Ex R5 – 22.09.2006: Letter issued to the Complainant.
Ex R6 – 07.09.2010: Letter of the Opposite Party to the Assistant P.F. Commissioner, Legal cell.
Dated:15.10.2010 PRESIDENT
