Final Order / Judgement | IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT:1. SRI. C.V. MARGOOR, B.Com.LLM,PRESIDENT 2. SRI.M.C.DEVAKUMAR,B.E.LLB.PG.DCLP,MEMBER | CC No.74/2016 ORDER DATED 04th DAY OF AUGUST, 2018 | | Dr.Shashikala .K.S, W/o. Poonacha K.S, Aged 56 years, P.B.No.43, A.S. Road, Virajpet,VirajpetHobli, VirajpetTaluk, Kodagu District. (Sri.B.E. Somalokanatha, Advocate) | -Complainant | V/s | The Commissioner, Employees Provident Fund Organization, Bhavishya Nidhi Bhavan, No.109 -128 2nd Stage, Gayathripuram, Mysore-19. (By Sri. G.R. Ravishankar, Advocate) | -Opponent | Nature of complaint | Miscellaneous claim | Date of filing of complaint | 01/12/2016 | Date of Issue notice | 30/12/2016 | Date of order | 04/08/2018 | Duration of proceeding | 1 year 8 months3 days |
SRI. C.V. MARGOOR,PRESIDENT O R D E R - This complaint under section 12 of the Consumer Protection Act,1986 filed by Dr. Shashikala K.S. w/o. Pooacha.K.S., Resident of Virajpet Taluk, Kodagu District seeking direction against the opponent to sanction the provident fund pension, damages of Rs.1,00,000/- for giving mental agony and rejecting her claim and Rs.10,000/- towards the cost of the proceedings.
- The opponent is Commissioner, Employees Provident Fund Organization, Mysore. The complainant while working as a Doctor at Tata Coffee Limited, Pollibetta got herself enrolled in the opponent organization under the pension scheme. The opponent has given membership bearing ID No.KN/MYS/0000708/00E/ 0001279. The complainant has resigned the job at M/s Tata Coffee Ltd., and claimed her provident fund amount vide claim application dated 23/06/2011. The complainant had not given the name of her husband as beneficiary since the complainant is residing separately from her husband for more than 10 years. The claim of complainant was rejected by the opponent by assigning reason for non-production of decree of divorce or separate order from the court.
- It is the contention of complainant that her claim is primary and she is herself is the member of the provident fund scheme for sanction of the pension under the provident fund scheme the requirement of husband is not at all necessary since his name has not mentioned in the beneficiary list. The rejection of the claim by the opponent is illegal. There after the complainant has got issued legal notice dated 02/10/2016 to sanction pension under the scheme but the opponent has given evasive reply dated 16/11/2016 stating that the spouse of the complainant is automatic beneficiary under the employees’ pension scheme. Hence, the complainant has approached this Forum.
- The opponent has put in appearance through its learned counsel and filed version admitting that the complainant is an ex-employee of M/s Tata Coffee Ltd., Pollibetta, Kodagu District and her EPS 95 account No.KN/708/E/1279. The claim form No.10D received by the opponent was rejected on 19/11/2011 with remarks that due to non production of the document pertaining to the divorce or separation from her husband. The complainant is required to furnish the family details in column No.12 of the claim application i.e. Form No.10D along with three joint passport size photo duly attested by the employer. In case the member is separated or divorced her spouse, she required to declare her marital status as on the date of submission of the claim. The complainant has not submitted the claim application with required document nor intimated notice in writing to the opponent expressing her desire to exclude her husband from the family along with documentary evidence. The opponent prays to advise the complainant to submit the Form No.10 D along with required documents and declaration if the complainant is separated or divorced her for sanction of pension under Employees’Pension Scheme, 1995.
- The complainant filed her affidavit by way of evidence and produced six documents with list. That one Sri.Sachin Saurav, Asst. Provident Fund Commissioner has filed his affidavit by way of evidence. The learned counsel for the complainant submitted written argument and the points that would arise for determination are as under;
- Whether the complainant proves that the act of opponent rejecting her claim for sanction of pension under provident fund scheme amounts to deficiency in service?
- To what order?
- Our findings on the above points is as under;
- Point No.1:- In the Affirmative
- Point No.2:- As per final order for the below
R E A S O N S - Point No.1& 2:- The complainant and opponent in their affidavit evidence reiterated the averments of complaint and version. The opponent in the version referred para 2(vii) of the Employees Pension Scheme, 1995 which says a Family means (i) wife in the case of male member of the Employees’ Pension Fund; (ii) husband in the case of female member of the Employees’ Pension Fund; and (iii) sons and daughters of a member of the Employees’ Pension Fund. Para 2(g)(i) says provided that if a member proves that her husband ceased under the personal law governing him or the customary law of the community to which the spouses belong to be entitled to maintenance he shall no longer be deemed to be a part of the member’s family for the purpose of the scheme, unless the member subsequently intimates by express notice in writing to the Commissioner that he shall continue to be so regarded. Para No.2(g)(ii) says provided that if a member by notice in writing to the Commissioner expresses her desire to exclude her husband from the family, the husband and his dependant parents shall no longer be deemed to be a part of the member’s family for the purpose of this Scheme, unless the member subsequently cancels in writing any such notice.
- The complainant has produced claim application submitted to the opponent for sanction of pension scheme where in column No.11 she mentioned her daughter as nominee for return of capital. Column No.13 provides for particulars of family. The complainant has mentioned her name, Nikitha, Nischitha daughters and Nischal son. The complainant produced declaration dated 02/06/2011 submitted to the opponent which is forwarded by the employer. The complainant in the declaration stated that she has been separated from her husband and as on date she is not living with him. The complainant requested the opponent to exclude her husband from her family and in future he not be considered as member of her family. The above undertaking will be in force unless it is cancelled by her. The complainant produced the rejection claim dated 19/12/2011 issued by the opponent where in it is stated that the EPS scheme has been rejected / returned for the reason that separation / divorce orders issued by the Court of law is required to sanction the pension.
- There is no provision in the scheme that the member shall get decree of divorce or separation order from the court of law. The declaration submitted by the member is sufficient as per para 2(g)(ii) of the Employs Pension Scheme, 1995 as contended in the version and affidavit evidence of Sri.Sachin Saurav, Asst. Provident Fund Commissioner. The opponent has rejected the claim of the complainant inspite of her declaration dated 02/06/2011 wherein she declared that her husband is excluded from her family and in future he will not be considered as member of the family. The declaration made by the complainant which forwarded by the employer of complainant is sufficient to sanction the pension to the complainant. The opponent instead of following the EPS scheme, 1995 has rejected the claim that the complainant shall produce divorce or separation order. The rejection made by the opponent is contrary to the provisions of Employees Pension Scheme, 1995.
- The complainant has produced the certified copy of judgement and decree passed in MC No.76/2016 by the Learned Senior Civil Judge Virajpet on 23/06/2018. The complainant has produced the certified copies of judgment and decree along with memo dated 28/04/2018. Complainant has filed MC No.76/2016 against her husband K.S. Poonacha seeking decree of divorce on the ground of cruelty and desertion since 2001. The said court considering the evidence on record allowed the petition on 23/03/2018 granting decree of divorce dissolving the marriage solemnized between the complainant Smt. Shashikala.K.S and her husband Poonacha K.S on 03/07/1998 at Ponnampet, Kodagu District. This decree of divorce is subsequent to the rejection of the claim by the opponent. The opponent without going through the declaration submitted by the complainant which forwarded by her Ex-employer has illegally rejected the claim of complainant. On account of this the complainant has unnecessarily suffered mental agony and monitory damages. Therefore, the opponent shall liable to pay compensation of Rs.50,000/- to the complainant. Further the opponent shall pay litigation cost of Rs.10,000/- to the complainant. Accordingly, we proceed to pass the following;
O R D E R - The complaint filed by Dr. Shashikala.K.S. w/o. Poonacha.K.S is allowed directing the opponent to sanction the Provident Pension Scheme to the complainant as she is member of said claim bearing No.No.KN/MYS/ 0000708/00E/0001279 within two months from the date of order. Further the opponent shall liable to pay compensation of Rs.50,000/- to the complainant as damages within two months from the date of order. In addition to that the opponent shall pay Rs.10,000/- as litigation cost to the complainant.
- In case opponent fails to pay the said amount it carries interest at the rate of 10% per annum from the date of order till its payment.
- Furnish copy of order to the complainant and opposite party at free of cost.
(Dictated to the Stenographer and got it transcribed and corrected and pronounced in the open Forum on this 04th day of AUGUST, 2018) (C.V. MARGOOR) PRESIDENT (M.C. DEVAKUMAR) MEMBER | |