DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  12^th  day of  July, 2023 

Present      :    Sri. Vinay Menon V., President

                  :   Sri. Krishnankutty N.K., Member                               Date of Filing:  03/12/2021     

                                                                                  CC/222/2021

Geetha A.S.,

Nandanam, 9/380, 1^st Street,

Vidya Nagar West, Akathethara,

Palakkad – 678 008                                          -                      Complainant

(Party in Person)

                                                                                                Vs

            The ESIC Regional Office,

Panchadeep Bhavan,143 Sterling Road,

Nungampakkam,  Chennai – 600 034            -                       Opposite party  

(By Adv.K.Lakshminarayanan)

O R D E R

By  Sri. Vinay Menon V., President

1. Facts are undisputed insofar as the death of the husband of the complainant is concerned and the fact that he was covered under the insurance coverage provided by the opposite party. The sole dispute is with regard to the amount payable under two claims filed by the complainant before the O.P.
2. Post death of her husband, the complainant filed two claims before the opposite party  for Rs.2,29,831/- and Rs.1,27,511/-. In the said claims, the opposite party credited sanctioned amounts to the tune of Rs. 1,04,101/- and Rs.53,680/-. This complaint has arisen as complainant disputes the non-sanction of the entire claim amount and the opposite party supporting their calculations as being the amounts approved for payment based on Rules & Regulations.
3. The following issues were raised.

1. Whether this Commission is having jurisdiction to entertain the complaint considering the bar under Section 75 of ESI Act?
2. Whether there is any deficiency in service on the part of opposite party in not permitting cashless treatment or not reimbursing the full amount of the claim submitted by the party? 
3. Whether the complainant is eligible for any relief sought for?
4. Reliefs if any the parties are entitled to ?

5.        (i)    Complainant filed  proof affidavit and marked Exts. A1 to A4. Marking of Ext. A2  was objected to on the ground that it is a copy of a photograph taken using mobile phone.  The opposite party has no case that it is a forgery.  Since this Commission is not bound by Indian Evidence Act   this objection is over ruled.   

(ii)  Opposite party filed proof affidavit and marked Exts. B1(a) & B1(b).  

Issue Nos. 1&2

6.         Subsequent to entering appearance, the opposite party has sought for dismissal of the complaint based on Section 75 of ESI Act wherein any disputes arising under the provisions of ESI Act will have to be adjudicated before the statutory authorities constituted under the Act and barring the Civil courts from assuming authority. We held by our Order dated 12/08/2022 that this Commission had the authority to see whether there is any deficiency of service on the part of opposite parties in any surrounding circumstances in arriving at the said amounts, but not the calculations per-se or the legality of calculations thereof. The differentiation is narrow and has to be treaded with caution lest we stray into the realm of ESI Act.

7.         Since an authority under ESI Act has already arrived at a conclusion regarding the amounts payable we refrain from considering the calculations of the O.P. in arriving at the amounts sanctioned.  The complainant is at liberty to approach the appropriate authority under ESI Act. We are refraining from sitting in appeal over the order passed by the Authority under the ESI Act.

Issue No.3

8.         Be as it may, we have come to note that the opposite party has filed Ext.B1(a) & B1(b) in support of their case. These documents are Sanction Orders pertaining to the claims submitted by the complainant, which the opposite parties state to have arrived in accordance with the  provisions of R. 96-B of ESI General Regulations. No other documents are produced by  the opposite party. Description in proof affidavit (page 2 paragraph 3) of the O.P. shows that Exts. B1(a) and B1(b) are the calculation statement showing the payments arrived at as per ESI Scheme.  On the rear part of both these documents are some causal calculations jotted down by some  person.

9.         It goes without saying that the opposite party, a Statutory Body, stands in a fiduciary relationship with the complainant. Being in a fiduciary capacity, they are bound to give clear, transparent and accurate calculations to their beneficiaries as to how they have arrived at the amounts they have paid by way of indemnification to the claimants/beneficiaries under the Act. The beneficiaries have an inherent right to understand how the amounts paid to them have been arrived at. The authorities are not expected to flash bread crumbs at the beneficiaries and expect them to be satisfied with it.  Mere jotting behind the back of a Sanctioning Order is not the proper and correct manner to communicate a statement of account or finalization of an account.

10.       Exts.B1(a) & B1(b) being the sole documents produced  before us, we are presuming that the opposite party has only this document to prove their calculations. Such casual jottings behind the back of a Sanction Order is highly arbitrary, irregular, improper and uncalled for considering the statutory nature of the opposite party.

11.       We therefore hold that there is deficiency in service on the part of opposite party.

Issue No.4

12.       Based on the findings in issue No.3, we hold that

(a)        The complainant is entitled to a compensation of Rs.75,000/- for deficiency in  service on the part of opposite party.

(b)        The complainant is entitled to a cost of Rs.25,000/- for deficiency in  service on the part of opposite party.

(c)        If the orders above are not complied within 45 days of receipt of this Order, the complainant shall be entitled to a solatium of Rs.500/- per month or part thereof from the date of this Order till the date of final payment of the amounts ordered above, payable by the O.P.

                  Pronounced in open court on this the  12^th day of July, 2023.         

                                                                                                                                Sd/-

                                                                                                            Vinay Menon V

                                                                President

                       Sd/-

Krishnankutty N.K.

                                                                                                                     Member

APPENDIX

Exhibits marked on the side of the complainant :

Ext.A1 – Attested copy of registration details of insurance.

Ext.A2 –  Printout of a photograph of communication bearing reference No.160/08/2020

                dated 24/8/2020

Ext.A3  – Copy of communication dated 10/09/2021 alongwith attachments.

Ext.A4 –  Copy   of communication dated 12/10/2021

Exhibits marked on the side of the opposite party:

Ext.B1(a) – Copy of sanction order bearing No.51-SMC/D-358/2020-21

Ext.B1(b) -  Copy of sanction order bearing No.51-SMC/D-279/2020-21

Court Exhibit: 

Nil

Third party documents:  Nil

Witness examined on the side of the complainant:

Nil

Witness examined on the side of the opposite party: 

Nil

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.