Andhra Pradesh

Chittoor-II at triputi

CC/74/2011

Smt. B.R. Latha,W/o. Late B. Raghavan, - Complainant(s)

Versus

The Chief Manager,Andhra Bank, - Opp.Party(s)

Sri N. Madhusudhana Reddy

25 Sep 2014

ORDER

Date of first filing:18.10.2011

Date of first disposal: 09.04.2012

Date of fresh filing:20.11.2013

Date of fresh disposal:25.09.2014

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

PRESENT: Sri.M.Anand, President (FAC),

        Smt. T.Anitha, Member

 

THURSDAY THE TWENTY FIFTH DAY OF SEPTEMBER, TWO THOUSAND AND FOURTEEN

 

C.C.No.74/2011

 

Between

 

Smt.B.R.Latha,

W/o. late. B.Raghavan,

Hindu, aged about 45 years,

D.No.15-32, Padmavathi Nagar (West),

Tirupati – 2,

Chittoor District.                                                                              … Complainant

 

And

 

1.         The Chief Manager,

            Andhra Bank,

            S.V.U. Engineering College Branch,

            S.V.University,

            Tirupati.

 

2.         The Zonal Manager,

            Andhra Bank,

            Zonal Office,

            S.V.University Campus,

            Tirupati.

 

3.         The Chairman-cum-Managing Director,

            Andrha Bank,

            Head Office and Registered Office,

            Koti,

            Hyderabad.                                                                            …  Opposite parties.

 

            This complaint coming on before us for final hearing on 13.08.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.K.Ramanarayana Reddy, Sri.B.J.Chandra Reddy, counsel for the complainant and Sri.T.M.Chayapathy, counsel for the opposite parties, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERED BY SRI. M.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

 

            This is a complaint filed under Sections-12 and 14 of C.P.Act 1986, for  deficiency of service on the part of the opposite parties.

2. The brief facts of the case are that:-  The husband of the complainant was worked as Assistant Manager in the branch of 1^st opposite party and died on 13.11.2006 and since then the complainant could not receive the death benefits of her late husband from the 1^st opposite party and therefore the complainant filed this complaint against the opposite parties 1 to 3 contending that there is deficiency of service on the part of the opposite parties 1 to 3. Hence the complaint.

3.  The 1^st opposite party filed written version and the 2^nd and 3^rd opposite parties filed memo adopting the written version of the 1^st opposite party on their behalf. The opposite party submitted that the husband of the complainant late. B.Raghavan, was worked as Assistant Manager, in the 1^st opposite party branch and died. It is further admitted that the death benefits of the said Raghavan was withhold as per the orders of the Principal Senior Civil Judge Court, Tirupati, in OEP No.246/2009 in OS No.215/2006 and the complainant is also having knowledge about the same. The opposite parties contended that it is for the complainant to challenge the order of the Senior Civil Judge, Tirupati, in a Civil Court and instead of doing so, the complainant filed this complaint before this Forum and this Forum has no jurisdiction to entertain the complaint and the complaint is barred by limitation and that the complaint is liable to be dismissed. So saying, the opposite parties prayed to dismiss the complaint with costs.

4.  On behalf of the complainant, the complainant herself filed affidavit on evidence as P.W.1 and got marked Exs.A1 to A7. On behalf of the opposite parties R.W.1 filed affidavit on evidence and no documents marked. Both parties filed written arguments. Heard both sides.

5.  The points for determination are:-

(i).  Whether the complaint is filed beyond the period of limitation and if so whether the complaint is liable to be dismissed on that ground?

(ii).  Whether there is any deficiency of service on the part of the opposite parties? If so, whether the complainant is entitled for the reliefs as prayed for?            

(iii).  To what result?

6.  Point No.(i):-  Previously this Forum dismissed the complaint on the ground that this Forum has no jurisdiction to entertain the complaint as it is a dispute between employer and employee. There upon the complainant preferred appeal before the Hon’ble State Commission, Hyderabad in F.A.No.667/2012 and the Hon’ble State Commission allowed the said appeal setting aside the order passed by this Forum and remanded the case to this Forum with a direction to dispose the matter as per Law.

7.  It is undisputed that the husband of the complainant B.Raghavan, worked as Assistant Manager in the 1^st opposite party branch and died on 13.11.2006 and the terminal benefits of the said Raghavan were settled by the 3^rd opposite party and remitted to the 1^st opposite party and as per the orders of the Senior Civil Judge, Tirupati, the said benefits were withhold by the 1^st opposite party in the year 2008.

8.  At this juncture, the main contention of the opposite party is that the complaint is filed beyond the period of limitation and that the complaint is liable to be dismissed. Now, it has to be seen whether the complaint is filed beyond the period of limitation as contended by the opposite party. When the opposite party specifically taken plea in the written version as well as in the evidence of affidavit, that the complaint is filed beyond the period of limitation, it is for the complainant to prove that the complaint is filed within the period of limitation of two years from the date of cause of action from a particular day. Either in the affidavit on evidence of P.W.1 or in the written arguments filed by the complainant, there is no whisper about the limitation and the complainant never challenged that the complaint is filed within the period of limitation of two years. Further the date of cause of action is also not specifically stated in the complaint, evidence of P.W.1 or in the written arguments of the complainant. Admittedly, late.B.Raghavan, the husband of the complainant died on 13.11.2006 and since then the terminal benefits of the deceased were not paid to the complainant, who is the legal heir of the deceased. Absolutely, there is no even a scrap of paper to show that steps have been taken by the complainant to get the terminal benefits of her husband till Ex.A3 legal notice dt:18.08.2011 issued to the opposite parties by the complainant. Since the date of death of the husband of the complainant i.e. 13.11.2006, till the date of issuance of Ex.A3 legal notice, the complainant could not take any steps to get the terminal benefits of her deceased husband. Under these circumstances, the date of death of the husband of the complainant i.e. 13.11.2006 could be taken into consideration as cause of action took place on that day. If the date of death of the husband of the complainant is taken into consideration as cause of action took place on that day, the complaint is barred by limitation.

9.  The complainant also got marked Exs.A1 and A2 dt:01.03.2008 and 17.08.2009 respectively, to show that Ex.A1 was issued by the 1^st opposite party to the Principal Senior Civil Judge, Tirupati, seeking direction, so as to enable the 1^st opposite party to deposit the amount as directed in O.S.No.215/2006 and Ex.A2 was issued by Andhra Bank, Human Resource Department, Head Office, Hyderabad, to the 1^st opposite party. Even if those two documents are taken into consideration, the complainant ought to have filed this complaint within two years i.e. on or before 17.08.2011. But the complainant filed this complaint on 18.10.2011 i.e. two months after the limitation period is completed. No petition has been filed by the complainant to condone the delay of two months. Objection was also taken by the office regarding the limitation. It is therefore the complainant miserably failed to prove that the complaint is within the period of limitation. In view of the above reasons, it could be said that the complainant filed this complaint beyond the period of limitation and that the complaint is liable to dismissed on this ground alone.

10.  Hence, this point is answered against the complainant.          

11. Point No.(ii):- According to P.W.1 i.e. the complainant after the death of her husband B.Raghavan, the 3^rd opposite party issued proceedings Ex.A5 dt:27.05.2008 directing the 1^st opposite party to credit gratuity amount of Rs.3,50,000/-, leave salary amount of Rs.1,67,733/- and Exgratia of Rs.8,00,000/- into the S.B.Account of the complainant and accordingly the complainant presented advance stamped receipt and acknowledgement to the 1^st opposite party, but till today the 1^st opposite party could not credit the said amount and that there is deficiency of service on the part of the opposite parties. Apart from that, the complainant got it mentioned in  Para.2 of the affidavit on evidence as extracted hereunder

“some of the creditors have filed suits in the Courts i.e. O.S.No.595/2006 on the file of Principle Senior Civil Judge, Tirupati and filed I.A.No.1394/2006 sought for attachment over the death benefits and etc”.

 

The complainant also got marked Ex.A1 copy of letter dt:01.03.2008 written by 1^st opposite party to the Principal Senior Civil Judge Court, Tirupati, seeking direction, so as to enable the 1^st opposite party to deposit the amount as directed in O.S.No.215/2006 as per the pro order served on 13.11.2007 as per the reference 1^st cited in Ex.A1. Ex.A1 supports evidence of P.W.1 that the husband of the complainant was indebted to some body and civil cases were pending against him before various Courts. The complainant also got marked Ex.A2 a letter addressed to 1^st opposite party. In Para.1 of Ex.A1 it is got it mentioned as hereunder:

“In case any direction is received from any Court for remittance of the amount pursuant to its orders of attachment passed earlier, the same should be complied that on first come first served basis i.e. the date of receipt of the original order of attachment by branch should be taken as criteria”.

 

In Para.3, it is got it mentioned as “as such it is not desirable to pay the amount to the family of the deceased at this juncture ...... if the spouse of the deceased is not agreeable, she may be advised to obtain orders from competent Court for payment of the same”. The complainant also got marked Ex.A7 copy of explanation submitted by the 1^st opposite party to the Principle Senior Civil Judge Court, Tirupati, in E.P.No.54/2008 in O.S.No.215/2006.  Ex.A7 discloses that some other cases were also pending against the husband of the complainant and the terminal benefits of the deceased were attached by the Court and some amount was withhold by the 1^st opposite party as per the directions of the Court. Under these circumstances, the 3^rd opposite party advised the 1^st opposite party through Ex.A2 that it is not desirable to pay the amount to the family of the deceased and the said amount could be kept in term deposit till the matters attains finality and if the complainant is not agreed for this, she was directed to obtain orders from competent Court for payment of the said amount. It is therefore Exs.A1 to A3 and Ex.A7 clearly indicates that as per the directions of the Court and 3^rd opposite party, it is for the 1^st opposite party to withhold the terminal benefits of the deceased B.Raghavan and also waiting for appropriate orders to dispose of the amount.

12.  It is significant to note that the complainant has knowledge that some of the creditors of her husband filed suits against him and those suits were pending as on the date of his death and in the said suits, the terminal benefits of the deceased were attached and EPS were also pending therefore the Court of Principal Senior Civil Judge, Tirupati, issued pro orders to the 1^st opposite party in the year 2007 itself directing him to withhold the terminal benefits of the deceased B.Raghavan. When the civil suits and EPS are pending against the husband of the complainant and his legal heirs, it is for the complainant to get appropriate orders from the concerned Courts for the payment of the terminal benefits of the deceased to the complainant. The learned counsel for the complainant contended that the 1^st opposite party acted adverse to the interest of the complainant and against the directions of the 3^rd opposite party and not follow the procedure under Section-60 of CPC. There is no substance in the contention of the learned counsel of the complainant because in Para.4 of Ex.A7 explanation submitted by the 1^st opposite party to the Principle Senior Civil Judge Court, Tirupati, it is clearly mentioned that under Section-60 CPC, an amount of Rs.1,64,357.71/- was exempted and the same is lying with the 1^st opposite party. The learned counsel of the opposite parties contended that instead of taking steps before the Principle Senior Civil Judge Court, to vacate the attachment of the terminal benefits of the husband of the complainant in EPS, the complainant filed this complaint unnecessarily against the opposite party and that the complaint is liable to be dismissed. The own documents filed by the complainant itself shows that as per the directions of Civil Courts, the 1^st opposite party withhold the amount, otherwise absolutely there is no any personal interest to withhold the terminal benefits of the husband of the complainant by violating the proceedings as stated in Ex.A5 dt:27.05.2008. Further it is not the case of the complainant that she had taken steps to vacate the attachment of the terminal benefits of the husband of the complainant as stated in Ex.A1. Instead of taking steps before the concerned Civil Courts, the complainant got it filed this complaint against the opposite party by stating that there is deficiency of service on the part of the opposite parties.

13.  The learned counsel for the opposite party contended that that this Forum has no jurisdiction to entertain the complaint because the dispute is in between employer and employee and the appropriate Forum may be the State Administrative Tribunal if any  or Civil Court, but certainly not a Forum under the C.P.Act 1986. So saying, the learned counsel for the opposite party relied upon a decision in Dr.Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana & Ors reported in 2013(2) I.S 285 (SC) it was held “Government servant cannot approach any of the Forum under the Act for any retrial benefits”. The learned counsel for the complainant contended that the opposite party never preferred any appeal against the order passed by the Hon’ble State Commission on the point of jurisdiction and that the order of the Hon’ble State Commission in F.A.No.667/2012 is the final order and the opposite party could not challenge the said order at this stage and that the contention of the learned counsel for the opposite party could not be considered. It is true this Forum dismissed the complaint on 09.04.2012 deciding that this Forum has no jurisdiction to entertain the complaint as it is a dispute between the employee and employer and the complainant is at liberty to approach Civil Court or the Courts which passed orders on attachment. There upon the complainant preferred an appeal before the Hon’ble State Commission in F.A.No.667/2012 against the order of this Forum and the Hon’ble State Commission allowed the said appeal by setting aside the order of this Forum observing that this Forum having jurisdiction to entertain the complaint and directed this Forum to dispose of the matter according to Law. There after the opposite parties never preferred any appeal against the orders passed by the Hon’ble State Commission in F.A.No.667/2012 and that the said order became final. As the said order became final, the opposite parties have no locus standi to contend on the point of jurisdiction stating that this Forum has no jurisdiction to entertain the complaint by relying upon the above said decision. It is therefore at present it is not necessary for this Forum to decide about the jurisdiction of this Forum to entertain the complaint. The oral and documentary evidence on record clearly evidencing that due to civil cases pending against the deceased husband of the complainant and as per the pro orders issued by the concerned Civil Courts and EPS are pending against the husband of the complainant and as per the advise of the 3^rd opposite party the 1^st opposite party withhold the terminal benefits of B.Raghavan, the deceased husband of the complainant and absolutely there are no reasonable ground to come to the conclusion that the 1^st opposite party intentionally, arbitrarily and negligently withhold the terminal benefits of the deceased B.Raghavan without crediting the said amounts into the account of the complainant. In view of the above reasons, absolutely there is no deficiency of service on the part of the opposite parties. Further the point No.1 is decided against the complainant and this point is also could be decided against the complainant.

14.  Accordingly, this point is answered against the complainant.                 

15.  In view of the above reasons, we are of the opinion that the complaint is liable to be dismissed on the grounds that the complaint is barred by limitation and there is no deficiency of service on the part of the opposite parties.

16.  Point No.(iii):-  In the result, the complaint is dismissed. No costs.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 25^th day of September, 2014.

       Sd/-                                                                                                                      Sd/-                

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

                                                                                                                                   

PW-1: Smt. B.R.Latha (Chief Affidavit filed).

RW-1: M.Dwarakanadha Reddy (Evidence Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1	01.03.2008	Copy of letter by the opposite party No.1
2	17.08.2009	Copy of the letter by the Human Resource Dept. to the opposite party No.1.
3	18.08.2011	Office copy of legal notice issued by the complainant to the opposite parties.
4		Postal Acknowledgement from opposite parties.
5	27.05.2008	Copy of letter from 3rd opposite party to 1st opposite party.
6		Copy of receipt for Rs.1,00,000/-
7		Copy of explanation submitted by 1st opposite party in the Court of Principal Senior Civil Judge, Tirupati.

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

- Nil -

 

 

                                                                                                                                                                                                           Sd/-

President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

                                                                                  Dist. Consumer Forum-II, Tirupati. 

 

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.