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.105/2010

(Admitted on 27.03.2010)

Smt.Seethu,

Do. Monappa Poojary,

Wo. Mr.Bogra Poojary,

Aged about 59 years,

RA. Gurumpe 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 and she was retired from service on 01.02.2003.  She has Employees Provident Fund Account No.KN-12100-B/773.  It is sated that, as per the certificate issued by the Registrar of Birth and Death, Government of Karnataka is 02.01.1950.

It is stated that, the Complainant has submitted the application for grant of pension, the Opposite Party rejected the application on the ground that, date of birth in the scheme certificate and other relevant records is 02.01.1962 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., 02.01.1950 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-12100-B/773.  It is stated that, this Opposite Party had issued a scheme certificate considering the date of birth as recorded in the basic return in Form No.9 submitted by the employer during the time of enrollment for Provident Fund membership i.e., 01.09.1962 as per Form No.9.  On 08.09.2005, this Opposite Party had issued a notice to the Complainant that she shall forward representation to change the date of birth along with proof but no records were produced by the Complainant.  Subsequently, the Complainant issued a Lawyer’s notice by enclosing the copy of birth certificate issued by the Registrar of Birth and Death, Bantwal Taluk.  The date of registration was done on 13.01.2006.  In the said certificate, date of birth was shown as 02.01.1950.  It is stated that, the Complainant has not complied with the direction given by the Opposite Party, she submitted the birth certificate belatedly and issued a scheme certificate as per Form No.9 given by her and contended that there is no deficiency 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.  
3. What order?

4.         In support of the complaint, Smt.Seethu (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 R5 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/773.  It is also not in dispute that, the Complainant has retired from the service on 01.02.2003.

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 01.02.2003 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 02.01.1962 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 02.01.1962.  But as per the certificate issued by the Registrar of Births and Deaths, Government of Karnataka is 02.01.1950.  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 had issued scheme certificate considering the date of birth as recorded in the basic return in Form No.9 submitted by the employer during the enrollment for provident fund membership i.e., 01.09.1962.  On 08.09.2005, this Opposite Party had issued a notice to the Complainant calling upon the Complainant to furnish a proof of age but no records were submitted by the Complainant and contended that they could not settle the claim. 

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 01.02.2003.  The correct date of birth of the Complainant as per the certificate issued by the Registrar of Births and Deaths, Government of Karnataka is 02.01.1950 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 employer at the time of enrollment to the Provident Fund 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 C4 is the original birth certificate issued by the Registrar of Births and Deaths, Government of Karnataka shows that, the correct date of birth of the Complainant is 02.01.1950.  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 02.01.1950.  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., 02.01.1950.  And also 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., 02.01.1950.  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 15^th day of October 2010.)

                                 PRESIDENT

         MEMBER                                                       MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Smt.Seethu – 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 – 31.03.2010: Reply by the Opposite Party.

Ex C4 – 13.01.2006: The original birth certificate.

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 – 21.11.2003: Copy of Form No.10-C submitted by the Complainant before the Opposite Party.

Ex R2 – 01.04.1992: Copy of the identity card of the Complainant issued by the employer.

Ex R3 – 08.09.2005: Copy of the letter issued to the Complainant.

Ex R4 -                 : Copy of nomination and declaration form submitted by the Complainant duly attested by the employer.

Ex R5 – 07.02.2007: Copy of the Lawyer’s notice.

Dated:15.10.2010                            PRESIDENT