D.O.F. 17.08.10

                                            D.O.O. 12.12.11

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                  :                President

                   Smt. K.P.Preethakumari   :               Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 12^th day of December,  2011.

C.C.No.201/2010

1.  Puthen Purakkal Rajamma,

     W/o. Gangadharan,

     Puthan Purakkal House, Poovathinchola,

     P.O. Kelakam, Thalassery Taluk.

     Kannur.

2.  Puthen Purakkal Ratheesh,

     S/o. Gangadharan, Textile Mill Worker,

     Puthan Purakkal House, Poovathinchola,                 : Complainants

     P.O. Kelakam, Thalassery Taluk.

     Kannur.

3.  Puthen Purakkal Remya,

     D/o. Gangadharan,

     Puthan Purakkal House, Poovathinchola,

     P.O. Kelakam, Thalassery Taluk.

     Kannur.

(All rep. by Adv. Joe George)

1.  The Chief Welfare Fund Inspector,

     Kerala State Toddy Workers Welfare Fund Board,

     Thiruvananthapuram.

2.  The Welfare Fund Inspector,                                     : Opposite Parties

     Kerala State Toddy Workers Welfare Fund Board,

     Circle Office, Thalikkavu Road, Kannur.

(Rep. By Adv. T.O. Mohanan)

O R D E R

Smt. K.P. Preethakumari, Member

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties to disburse the PF and gratuity benefits accrued in the credit of missing Gangadharan in the name of complainants along with upto date interest with cost.

          The complainant’s case is that 1^st complainant is the wife of Puthenpurakal Gangadharan, S/o. P.P. Bappu and the marriage between the was solemnized on 12.03.1983 as per the religions customs and ceremonies prevailing in Thiyya community and marriage was registered before SNDP Saka Yogum, Velluni, Malayampady and 2^nd and 3^rd complainants are children born in this wed-lock.  The said Gangadharan was toddy taper, but he was missing since 16.04.1989 from Aaralam Village and his whereabouts are not known now and all the efforts made by the complainants as well as family members of the Gangadharan to trace out whereabout is not become fruitful so far.  The first complainant had made a complaint before S.H.O, Aralam and a man missing crime was registered by them as Crime No.17/89 on 24.04.1989.  The police also made attempts to trace out him, but all were also not become fruitful and a final report as contemplated U/s 173 of Cr.P.C. was filed before JFCM, Mattannur on 31.08.2009 that the said Gangadharan is undetected.  So for the complainants herein or other close relatives or friends of the said Gangadharan is having any information regarding the whereabouts and other details of the said Gangadharan and therefore and he is deem to be dead in the eyes of law and the Forum is legally authorized to draw presumption, so as to the legal death of the Gangadharan.  The above said Gangadharan was a member of Kerala Toddy Worker’s Welfare Fund Scheme as per the Provisions of Kerala Toddy Workers Welfare Fund Act, 1969 and is entitled to get more than 80,000 towards benefit under gratuity.  In pursuance to the application filed by the 1^st complainant the opposite parties have sanctioned the benefit in favour of 1^st complainant subject to a condition that she shall produce a legal heirship certificate pertaining to the said Gangadhan.  Since the death of the Gangadharan is not confirmed so far, the complainants are not in a position to produce the legal heirship certificate as directed by opposite parties, because without producing a death certificate, it is not possible to obtain legal heirship certificate.  The father and mother of the Gangadharan was expired long back and hence now the complainants are the only legal heirs.  The said Gangadharan was one of the co-owner of the 1 Acre of landed property in R.S.No. 1-A of Padiyoor Amsom Desom and another 50 cents of landed properties in the same survey number and since one of the brother of the said Gangadharan has taken false claim and the complainant filed a suit and the suit was decreed on 26.06.09 declaring that the complainant are entitled for 1/6^th share of right over the said property in the capacity as legal heirs of Gangadharan.  The 1^st complainant contended that since the contributes are collected from the employee as well as employer the complainants are squarely coming within the ambit of consumers as per Consumer Protection Act.  After the decree in the above suit the complainant issued a letter along, with the copy of judgement to 2^nd opposite party requesting to disburse the said benefits.  But the opposite party intimated the 1^st complainant that without production of legal heirship certificate the said benefit could not be disbursed.  The 3^rd complainant is having marriageable age and is in dire need of money to meet the marriage expenses of 3^rd complainant.  The opposite parties are not entitled to withhold the benefits merely on the reasons that complainants are not producing the legal heirship certificate pertaining to the deceased Toddy Worker.  The cause of action for the complaint arose on 01.06.2010, the date on which the 1^st complainant received a letter from 2^nd opposite party to the effect that without production of the legal heirship certificate the P.F and gratuity benefits cannot be disbursed.  The complainants are entitled to receive the same.  Hence the complaint.

          In pursuance to the notice issued by the Forum all opposite parties appeared and filed their version contending that the complainants are not consumers as per Consumer Protection Act.  The opposite parties admits that the above said Gangadharan was a member of Kerala Toddy Worker’s Welfare Fund Scheme as per the provisions of Kerala Toddy Worker’s Welfare Fund Act, 1969 and is entitled to get ` 80,000 towards benefit under gratuity and provident fund contemplated under the said scheme and that in pursuance of the application filed by the 1<sup>st</sup> complainant, the opposite parties have sanctioned the said benefit in favour of the 1<sup>st</sup> complainant subject to the condition that she shall produce a legal heirship certificate pertaining to the said Gangadharan before 2<sup>nd</sup> opposite party.  But the opposite parties submits that they are not aware of the fact that the 1<sup>st</sup> complainant is the wife of above said Gangadharan as per the solemnization of marriage on 12.03.1983 as per the customs and ceremonies prevailing in Thiyya community and the marriage was registered and the 2<sup>nd</sup> and 3<sup>rd</sup> complainant’s are born out of these wed lock and the above said Gangadharan was toddy tapper and was missing and was not heard from 1989 etc are not directly aware to the opposite parties.  The averment that Gangadharan’s father and mother are expired and the complainants are only the legal heirs and the right of  Gangadharan on the undivided share of 1 ½ acres of property was alienated to the complainant’s etc are also not aware to the opposite parties.  Contributions are collected from the employee as well as employer and hence the complainant is a consumer etc are false and denied by opposite parties.  According to opposite parties without production of legal heirship certificate, the opposite parties cannot disburse the amount to the complainants.   The complainants are wife and children of above stated Gangadharan who is registered tapper and his account No. is C-90 and was registered on 15.10.1974 and as per records his father pappu as his nominee.  The employees of Aaralam Toddy shop remitted the welfare fund of Gangadharan from 1974-75 to 1988-89 continuously and after that it was not assessed on behalf of Gangadharan.  The Welfare fund and gratuity payable to legal heirs is below ` 2 lakhs, the legal heirship certificate can be availed from the Administrative General’s office at Cochin after remitting the dues with proper application.  The opposite parties are ready to disburse the welfare amount to the complainant if they are producing the legal heirship certificate and hence there is no deficiency of service on the part of opposite parties and hence the complaint is liable to be dismissed.

          Upon the above contention the following issues have been raised for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency of service on the part of opposite parties?

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consists of the oral testimony of PW1 and Ext.A1 to A6.

Issue No.1  :

          The complainant’s case is that the husband of the 1^st complainant and father of other complainants by name Gangadharan is not heard for the last 20 years and he was a subscriber of Toddy Welfare fund and hence the complainants are entitled to get the accrued amount in his account.  Admittedly the above said Gangadharan is a subscriber of Kerala Toddy Worker’s Welfare Fund Scheme and also admitted that the above Gangadharan is entitled to get ` 80,000 towards benefit under gratuity and Provident Fund as per the above scheme.  Admittedly the ermployers of the Aaralam Toddy Shop remitted the welfare fund of Gangadharan for the period from 1974-75 to 1988-89.  So from the above discussions it is seen that the employers had contributed for the welfare fund on behalf of above said Gangadharan.  It is seen that the welfare fund scheme is established as per the provisions of Kerala Toddy Workers Welfare fund Act, 1969 and the welfare fund employees are performing the statutory duty and not any of the sovereign duty and hence it is seen that the service rendered by them as per the above said Act will came under the purview of service as per the provisions of Consumer Protection Act.  The complainants are the beneficiaries of the above said Gangadharan and hence it is seen that the complainants are consumers, since the beneficiaries of a Consumer will come under the purview of Consumer Protection Act and hence it is seen that the complainants are consumers and the Forum has ample jurisdiction to try the case and issue No.1 is found in favour of the complainant.

          The further case of the complainant is that the opposite parties are not disbursing the accrued amount in the account of her husband Gangadharan who was missing for the last 20 years by saying that production of legal heirship is required for disbursing the amount.  In order to prove her case she was examined as PW1 and documents such as marriage certificate dated 23.11.07, notice dated 13.01.09 issued by 2^nd opposite party, certified copy of the decree and judgment in O.S.55/09, letter issued by 2^nd opposite party dated 01.06.2010 and family relation certificate issued from Padiyoor Village Office, dated 13.11.2008 etc are produced.  Admittedly Sri. Puthen Purakal Gangadharan, husband of 1^st complainant and father of 2^nd and 3^rd complainant is the subscriber of Toddy Welfare Fund Scheme from 1974 to 1989 continuously and is entitled to get more than ` 80,000 towards benefit under gratuity and Provident Fund.  But according to opposite parties, they have sanctioned the said benefit infavour of the 1^st complainant subject to a condition that she shall produce a legal heirship certificate pertaining to the above said Gangadharan before 2^nd opposite party.  But according to the complainants they are not sure about the death of Gangadharan and is not heard about him for more than 20 years.  Since the death of Gangadharan is not confirmed they can not approach a competent authority for obtaining legal heirship certificate.  According to complainant since it is not heard about the above said Gangadharan Section 108 of Indian Evidence Act is applicable and a presumption has to be drawn that he is dead.  But opposite parties contended that a declaration from a competent court is necessary to these effect.  But in Branch Manager, L.I.C. Vs Savithri Devi which was reported in III 2000 CPJ 357 UP, it was held that regarding section 107 and 108 of Indian Evidence Act, 1872,  a presumption of death is to be drawn that when a person is reported to be missing and the person who should have ordinarily heard about him have not heard about him for a period of 7 years, no declaration is required from the competent court.  In this case in hand the complainant has produced Ext.A3 and Ext.A4, the certified copy of the decree and judgment in O.S.55/09 before the Munsiff of Taliparamba.  The above suit is filed for declaration that the Plaintiffs who are the complainants in the above case, are entitled to succeed the plaint “A” schedule property and 1/6^th share of right over the plaint B schedule property in their capacity as the legal heirs of Puthenpurakal Gangadharan and the plaintiffs acquired title over the plaint ‘A’ schedule.  Property and 1/6^th share of right over plaint “B” schedule property jointly on account of the legal death of Gangadharan and also for consequential injunction and decreed for the same.  In the above judgment, the Hon’ble Munsiff held that the plaintiffs 1 to 3 who are the complainants No.1 to 3 herein are the wife and children of Gangadharan and the whereabouts of Gangadharan is not known since 16.04.1989.  Moreover it was also held by the Hon’ble Munsiff  that none of the close relatives of said Gangadharan has a case that he was heard after 16.04.1989.  So as per section 108 of Indian Evidence Act, the above said Gangadharan is presumed to be dead.  So from the documents A3 decree and judgment, A1 marriage certificate and A6 family relationship certificate, it is seen that the complainant is missing since 16.04.1989 and the complainants are the legal heirs of the above said Gangadharan.  So from the aove discussion we are of the opinion that it can be presumed that the above said Gangadharan is dead and the complainants are is legal heirs and  hence the complainants 1 to 3 are entitled to get the benefits from opposite parties as per the Toddy workers Welfare Fund Act, 1969 and the opposite parties are liable to pay the accrued benefit to other complainants No.1 to 3 and order passed accordingly.

          In the result, complaint is allowed, directing the opposite parties to disburse the PF and gratuity benefits accrued in the credit of the missing Gangadharan in the name of complainants with upto date interest within 30 days from receipt of this order, failing which complainant can execute the order as per the provisions of Consumer Protection Act.

                              Sd/-                   Sd/-                                                              

                        President              Member

APPENDIX

Exhibits for the Complainant

A1.  Marriage Certificate.

A2.  Letter from 2^nd opposite party.

A3.  Certified copy of decree of Munsiff, Taliparamba.

A4.  Judgment.

A5.  Letter from 2^nd opposite party.

A6.  Family relationship certificate from Village Officer.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1.  Complainant No.1

Witness examined for opposite party

Nil                     

/forwarded by order/

                                                                     SENIOR SUPERINTENDENT