BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 18th of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.219/2010
(Admitted on 21.08.2010)
Smt. Rita Lobo,
Wo Thomas Lobo,
Aged about 52 years,
Ro Badagu Ulipadi Village,
Malali P.O.,
Kaikamba,
Mangalore Taluk,
D.K. District. …….. COMPLAINANT
(Advocate for the Complainant: Sri K.B. Arasa)
VERSUS
1. The Managing Director,
City Hospital Research and
Diagnostic Centre,
Pound Garden, Kadri,
Mangalore 575 002.
2. The Regional P.F. Commissioner,
EPF Organisation,
P.B. No.572, Silva Road,
High Lands,
Mangalore – 575 002.
3. The Chief Manager,
Life Insurance Corporation of India,
Popular Building,
K.S.R. Road,
Mangalore – 575 001. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri. Keshav Nandodi)
Advocate for the Opposite Party No.2: Sri. J. Ravindra Naik)
Advocate for the Opposite Party No.3: Sri. Krishna Prasad M.S.)
***************
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 Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant submits that, her daughter Thelma Theresa Lobo was appointed as a Lab Technician in 1st Opposite Party institution. She died on 25.01.2009 at Opposite Party No.1 hospital. The deceased had worked at City Hospital and Diagnostic Centre i.e., Opposite Party No.1 for 4 years and her last drawn salary was Rs.5,500/- per month. It is stated that, the Complainant written a letter to Opposite Party No.1 and asked about EDLI remittance. The Opposite Party No.1 issued a reply and enclosed the statement of premium paid to Opposite Party No.2 and 3. Thereafter the Complainant submitted the claim form to Opposite Party No.2. The Opposite Party No.2 while considering the EDLI taken only one year of service rendered by the deceased was taken into account. The Complainant submits that, the Complainant is entitled to claim EDLI benefit to the sum of Rs.62,000/-. Instead of paying Rs.62,000/- the Opposite Party No.2 paid only Rs.1,717/- which is not correct. Her daughter deceased Thelma worked under Opposite Party No.1 from 13.12.2004 to 25.01.2009, the Opposite Party No.2 ought to have taken into account the service of the deceased from 2004 to 2009 while computing the EDLI claim. Without considering the above, the Opposite Parties committed deficiency and hence the above complaint filed under Section 12 of the C.P. Act seeking direction from this Forum to the Opposite Parties to pay the balance EDLI amount of Rs.61,283/- with 10% interest p.a. from 25.01.2009 and also claimed Rs.25,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties. The Opposite Parties appeared through their counsel filed separate versions.
The Opposite Party No.1 submitted that, Thelma Theresa Lobo was employee of Opposite Party No.1 and the EPF contributions from the salary of the said Thelma Theresa Lobo was deducted statutorily and promptly has been remitted with EPF authorities. All contributions and administrative charges (EDLI) payable to EPF department has been paid by this Opposite Party up to date. The EDLI Charges are not with this Opposite Party and this Opposite Party is not liable to pay any such amount.
The Opposite Party No.2 i.e., the Regional Provident Commissioner filed a version submitted that, they have remitted Rs.1,717/- on 19.03.2009. Deceased Thelma Theresa Lobo became member of the Provident Fund under A/c No.KN/12594/907 with effect from 12.12.2004 and expired on 25.01.2009. It is stated that, soon after the death, the nominee i.e., the complainant claimed the provident fund, the same was settled and Rs.32,581/- was paid to the complainant. It is stated that, Rs.1,717/- was paid as the Employees Deposits Linked Insurance benefits under wrong notion because of the exemption for EDLI up to 30.09.2008. After collecting all the details, the actual benefit was calculated and the balance amount of Rs.20,427/- was paid. It is stated that, in view of the payment of the EDLI, the amount has been paid to the complainant and prayed for dismissal of the complaint.
The Opposite Party No.3 i.e., the LIC of India filed version and submitted that, Opposite Party No.3 is not connected with the deductions of the salary of the employees or any other matter pertaining to the employment Thelma Theresa Lobo. It is stated that, Opposite Party No.3 has received the premium towards EDLI (Employees Deposit Linked Insurance) Master Policy No.508429 till 01.10.2007 and the policy was kept in force till 30.09.2008. The Opposite Party No.3 further submitted that, the Master Policy in compliance with the statutory requirements under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the Opposite Party No.1 taken the above policy and it was paying the premiums yearly. It is stated that, the Opposite Party No.1 had paid the premium for the period from 01.10.2007 to 30.09.2008 and thereafter no premium was received. According to this Opposite Party, the Master Policy was discontinued and stood lapsed with effect from 01.10.2008 and it does not carry any obligation of Opposite Party No.3 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:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs. Rita Lobo (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C13 were marked for the Complainant as listed in the annexure in detail. One Volly Muktar Ahamed (RW1), Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him and one Mr.Sripathi Upadhya (RW2), Opposite Party No.3 has also filed counter affidavit and answered the interrogatories served on him. Ex R1 to R13 were marked for the Opposite Parties as listed in the annexure in detail. The complainant produced notes of arguments and the Opposite Parties 1 to 3 have also filed separate 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) & (ii): Affirmative.
Point No.(iii) : As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute is that, the daughter of the complainant i.e., Thelma Theresa Lobo was an employee of the 1st Opposite Party institution worked as a lab technician from 13.12.2004 till her death. It is also admitted that, on 25.01.2009 she died in 1st Opposite Party Hospital and her mother i.e., the complainant appointed as a nominee to receive all the monetary benefits from the Opposite Parties.
Now the point in dispute between the parties before this FORA are that, the complainant who is the nominee as well as the mother of the deceased Thelma Theresa Lobo came up with this complaint stating that the salary of the said Thelma Theresa Lobo was deducted towards the EPF and for other benefits. After the death of the above said Thelma Theresa Lobo, the complainant approached the Opposite Party No.1 and asked about the Employees Deposits Linked Insurance (hereinafter referred to as EDLI) remittance. The 1st Opposite Party in turn issued a reply and enclosed the statement of the premium paid to the 2nd and 3rd Opposite Parties and thereafter the complainant submitted the claim form to the 2nd Opposite Party, the 2nd Opposite Party remitted a sum of Rs.1,717/- to the account of the complainant. It is stated that, the complainant had written a letter to the 2nd Opposite Party informed them that her daughter worked under the 1st Opposite Party from 13.12.2004 to 25.01.2009 and asked the Opposite Party to pay Rs. 62,000/- but the Opposite Party has taken only one year of service rendered by the deceased into account but not considered the service of the deceased from 2004 to 2009. Subsequently, she issued a legal notice, despite of receiving legal notice, the Opposite Parties have not complied the same and hence this complaint.
On the contrary, the Opposite Parties i.e., 1st Opposite Party, who is an employer stated that, all the service benefits of the deceased was deducted statutorily and has been remitted with EPF Charges of contributions and administrative charges payable to EPF Department has been paid by this Opposite Party up to date.
The 2nd Opposite Party i.e., the Regional Provident Fund Commissioner stated that, the deceased Thelma Theresa Lobo became a member of the P.F. with effect from 12.12.2004 and expired on 25.01.2009. Soon after the death, the nominee i.e., the complainant claimed the P.F. The P.F. account of the member was settled and Rs.32,581/- was paid to the mother of the deceased and Rs.1,717/- was paid as the Employees Deposits Linked Insurance benefits under wrong notion because of the exemption for EDLI up to 30.09.2008. It is stated that, after collecting all the details regarding the EDLI, the actual benefit was calculated and the balance of Rs.20,427/- was paid by way cheque dated 21.09.2010 and stated that the Opposite Party has already paid the Provident Fund and there is no deficiency.
The another Opposite Party i.e., LIC of India took contention that, the 3rd Opposite Party has received the premium towards EDLI under the Master Policy No.508429 till 01.10.2007 and the policy was kept in force till 30.09.2008. According to this Opposite Party, the master policy was discontinued and stood lapsed with effect from 01.02.2008 and it does not carry any obligation of Opposite Party No.3.
The complainant has filed oral evidence by way of affidavit and produced documents Exs.C1 to C13. The 1st to 3rd Opposite Parties have also filed evidence by way of affidavit and produced Exs.R1 to R13.
On scrutiny of the oral as well as the documentary evidence and also the admitted facts, we find that, the complainant is the nominee as well as the mother of the deceased one Thelma Theresa Lobo. During the continuation of her employment under 1st Opposite Party, she died on 25.01.2009. The 3rd Opposite Party sworn to the fact that, they have collected the contributions towards the EDLI till 01.10.2007 and the policy was in force till 30.09.2008. The 1st Opposite Party, who is the employer sworn to the fact that, the EDLI up to 01.10.2007 paid to 3rd Opposite Party and thereafter to 2nd Opposite Party. However, the 2nd Opposite Party i.e., the Regional Provident Fund Commissioner sworn to the fact that, it was under the wrong notion that 1st Opposite Party was exempted under Employees Deposits Linked Insurance up to 30.08.2008 and paid Rs.1,717/- only and it is also admitted that after collecting all the details regarding the EDLI, the actual benefit was calculated for Rs.22,144/-, after deducting Rs.1,717/- the balance amount of Rs.20,427/- was paid by way of cheque dated 21-9-2010.
However, it could be seen on record that, the employee deceased Thelma Theresa Lobo died on 25.01.2009 and submitted the claim form to the Opposite Party No.2 claiming EDLI benefits and as per Ex C7 the Opposite Party No.2 remitted a sum of Rs.1,717 as EDLI benefit to the account of the Complainant. On 25.11.2009 the Complainant issued a letter to Opposite Party No.2 and demanded the balance EDLI amount. After receipt of the letter dated 25.11.2009 i.e. Ex C8 the Opposite Party No.2 not paid the balance EDLI amount nor replied the said letter. The Complainant once again on 17.3.2010 got issued a lawyer’s notice i.e., as per Ex C11 and the Opposite Party No.2 received the above said notice, despite of that Opposite Parties not complied the same. Thereafter, without any other option, the Complainant filed the above complaint before this FORA on 18.08.2010. We further observed that, the several correspondences and postal acknowledgement i.e., Ex.C4 to C12 reveal that despite of several correspondences as discussed herein above between the Complainant and the 2nd Opposite Party and other Opposite Parties, the 2nd Opposite Party had not paid the EDLI amount to the complainant. But on the other hand, the 2nd Opposite Party filed a version, wherein, para No.4 stated that, under the wrong notion, the 1st Opposite Party was exempted under the Employees Deposits Linked Insurance up to 30.08.2008 and paid Rs.1,717/-. That itself shows that, due to the lapse on the part of the Opposite Party No.2, the above EDLI amount which is legally entitled by the Complainant not paid within reasonable time but the same was paid on 21.09.2010 by way of cheque i.e., during the pendency of this complaint. We noticed that, there is an inordinate delay on the part of the Opposite Party No.2 officials in this case.
Apart from that, we observed that, the correspondence dated 23.09.2010 i.e., Ex.R1 issued by the Regional Provident Fund Commissioner to the Manager, Syndicate Bank, Gurupura, Kaikamba Branch clearly reveals that, they have paid towards final/partly settlement of P.F accumulations and withdrawal benefit against member I.D KNMLR/0012594/000/0000907 in respect of Smt.Rita Lobo for crediting the cheque amount for Rs.20,427/-. But in version by mentioning the above cheque Number, they have contended that the same has been remitted towards the full and final settlement of the EDLI. But while sending the letter by the Regional Provident Fund Commissioner to the Bank, instead of mentioning regarding the EDLI actual benefit stated final/partly settlement of P.F. accumulation. At the same time, they stated that, a sum of Rs.32,581/- was paid to the nominee of the deceased as final settlement of the P.F. That itself shows that, how much they are neglect/careless while sending their correspondences to the customers/Complainant herein. The above attitude of the officer concerned who deal with the subject dispute, without applying his mind casually written a letter. Even while answering the interrogatories also the Opposite Party No.2 in one breath it is stated that, a sum of Rs.32,581/- was paid to the nominee of the deceased as final settlement of P.F. In another breath while answering question No.10 the Opposite Party No.2 stated that, Rs.20,427/- is pertaining to the final settlement of the P.F amount accrued in the account of the Complainant. The Opposite Party No.2 blindly answered the interrogatories served on them without applying their mind. The attitude of the Opposite Party itself shows that, they are very careless and being a public functionary body acted maliciously or oppressively and it is a abuse of power and no law provides protection against it.
However, from the above made discussions, we hold that, the Opposite Party No.2 has acted in an arbitrary and despotic manner, without any valid reason delayed the payment. Prima-facie it looks to be a case of misuse of power of the public servant herein the Opposite Party No.2. The use of the power must always by sub-ordinate their duty of service. The servants of the Government also servants of the people. In fact, in the instant case, the 2nd Opposite Party should not have allowed the Complainant to approach this authority. However, the 2nd Opposite Party being a statutory authority should not indulge in deliberate maladministration. The jurisdiction and power of this authority to identify a citizen for save, suffered due to abuse of power by a public authorities like Opposite Parties. The gross negligence and carelessness in rendering service by the Opposite Party No.2 amounts to deficiency.
As far as relief of the Complainant is concerned, the Complainant is not entitled for Rs.62,000/- as claimed by her because there is no credible evidence available on record to consider the calculation made by the Complainant. On the other hand, the Opposite Parties filed version and produced Ex R2 i.e., EDLI calculation work sheet produced by the Opposite Party No.2, wherein, the calculation of EDLI was considered from 13.12.2004 till January 2009. After the calculation and less paid the balance amount payable considered as Rs.20,427/-. There is no contra evidence produced by the Complainant to contradict the above calculation. In the absence of the same, we hold that, the Complainant is entitled Rs.22,144/- less R.1,717/- and the balance amount payable Rs.20,427/- which has been already paid by the Opposite Party No.2 in this case. But we have noted that, there is an inordinate delay while making payment i.e., more than a year. By considering the above, the Complainant is entitled for reasonable compensation for the deficiency committed by the officials of the Opposite Party No.2. Because of the deficiency on the part of the Opposite Party No.2, we impose composite cost and damages to the tune of Rs.6,000/- payable by the Opposite Party No.2 and state jointly and severally to the Complainant. A public functionary if he acts maliciously or oppressively, it is an abuse of power. By keeping in view of the above, we direct the Opposite Party No.2 i.e., the Regional Provident Fund Commissioner to recover the amount of damages and cost from the concerned staff earnings because the State Government should not be unnecessarily burdened for the lapse committed by the particular staff especially in this case. Payment shall be made within 30 days from the date of this order.
There is no deficiency on the part of the Opposite Party No.1 and 3; hence the complaint against Opposite Party No.1 and 3 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is party allowed. The Opposite Party No.2 is hereby directed to pay Rs.6,000/- (Rupees six thousand only) to the Complainant as compensation and cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Opposite Party No.2 is hereby directed to recover the above said amount from the concerned staff’s earnings and report it to the Government.
On failure to pay the aforementioned amount within the stipulated time as mentioned above Opposite Party No.2 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.
Complaint against Opposite Party No.1 and 3 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 15 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 18th day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt. Rita Lobo – Complainant
Documents produced on behalf of the Complainant:
Ex C1 – 10-12-2004 – Appointment Order.
Ex C2 – 22-07-2008 – Salary Certificate issued by City Hospital
Ex C3 – 12-02-2009 – Death Certificate of Ms. Thelma Theresa
Lobo
Ex C4 – 20-09-2009 – Copy of the letter written to the 1st Opposite
Party
Ex C5 – 25-08-2009 – Reply Letter by the 1st Opposite Party
Ex C6 – – Copy of the Statement – EDLI Form.
Ex C7 – 20-03-2009 – Intimation for EDLI amount of Rs.1,717/-
sent to Bank.
Ex C8 – 25-11-2009 – Copy of the letter written to Opposite Party 2
Ex C9 - - Postal Acknowledgement
Ex C10 – 17-03-2010 – Office copy of the Lawyer Notice
Ex C11 – – Postal Acknowledgement
Ex C12 – – Postal Acknowledgement
Ex C13 – – Postal Acknowledgement
Witnesses examined on behalf of the Opposite Party:
RW1 – Volli Muktar Ahamed – Opposite Party No.2
RW2 – Sripathi Upadhya - Opposite Party No.3
Documents produced on behalf of the Opposite Party:
Ex R1 – 23-09-2010 – Letter written by the 2nd Opposite Party to
the Syndicate Bank, Gurupura Kaikamba
Branch
Ex R2 - - EDLI Calculation Work Sheet
Ex R3 - - Provident Fund Statement in 3A Form
Submitted by Opposite Party No.1
Ex R4 – 27-02-2009 - Provident Fund Accumulation Work Sheet
Ex R5 - - Copy of the E.P.F. Form 21-A
Ex R6 – 18-03-2009 – Note – EPF Organisation.
Ex R7 – 03-11-2008 – Letter written by LIC to the Opposite Party 3
Ex R8 – 02-11-2008 – Photostat copy of Letter of Opposite Party
No.3 to Opposite Party No.1
Ex R9 – 03-11-2008 – Photostat copy of the letter of Opposite
Party No.3 to Opposite Party No.2
Ex R10 – 04-11-2008 – Photostat copy of Letter of Opposite Party
No.3 to Opposite Party No.1
Ex R11 – 24-11-2008 - Photostat copy of Letter of Opposite Party
No.2 to Opposite Party No.1
Ex R12 – 06-12-2008 - Photostat copy of Letter of Opposite Party
No.1 to Opposite Party No.2
Ex R13 – 27-03-2009 - Photostat copy of Letter of Opposite Party
No.1 to Opposite Party No.3
Dated:18.03.2011 PRESIDENT
