DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 7th day of September, 2023.
Filed on: 23/02/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 98/2019
COMPLAINANT
Sudhakaran P.T, S/o Thankappan, Perumuttathumpuzha (H), Valiyaparambinkari, P.O Koomathode, Iritty Taluk, Kanuur District. Kerala - 670 704
VS
OPPOSITE PARTY
- The EPF Officer, Bhavishya Nidhi Bhawan-28, Community Center Wazipur, Employees Provident Fund Organization, Industrial Area Delhi-110052, Delhi North.
(Rep. by Adv. S. Prasanth, M/s. Attorneys’ Alliance (Law Firm), 2nd Floor, Chundanal Monarch, K.K. Padmanabhan Road, Ernakulam 682018)
F I N A L O R D E R
D.B. Binu, President.
- A brief statement of facts of this complaint is as stated below:
The complaint was filed under section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint, are that the complainant is an Ex-serviceman and was working as a security supervisor at PETRONET LNG Puthuvypu, Ernakulam in Kerala State from 01.09.2015 to 15.05.2018 under the agency viz., Universal Quality Services. The complainant's member ID is DLCPM 00421450000000264, and their UAN (Universal Account Number) is 100652632509.
Upon completing the stipulated contract period, the complainant's employment was terminated. Throughout their employment tenure, the complainant contributed Rs. 39,734 as the employee's share, while the company paid Rs. 38,617 as the employer's share towards the Employees' Provident Fund (EPF) at the office of the opposite party.
In September 2018, the complainant submitted all the required documents, including the Composite Claim Form, a copy of their bank passbook, PAN card, and Aadhaar card, to the EPF Office in New Delhi. Although these documents were initially submitted, a correction was made and they were resubmitted within the same month. Despite these efforts, the EPF amount mentioned above has not been deposited into the complainant's account to date.
The complainant made multiple requests for resolution through letters to the opposing party but received no response. Subsequently, on November 28, 2018, the complainant sent a legal notice to the opposite party to notify them about the non-payment of the EPF amount. However, no reply or action was taken by the opposite party to address this matter or credit the EPF amount to the complainant's account.
The complainant asserts that these actions constitute a failure to provide proper service and an unfair business practice on the part of the opposite party. As a result, the complainant believes they are entitled to receive compensation of Rs. 50,000 from the opposite party, along with an interest rate of 12% per annum on the EPF amount, up to the present date. The complainant possesses sufficient evidence to support their case.
In light of these circumstances, the complainant requests that this commission summons the opposite party and instruct them to deposit the outstanding EPF amount along with accrued interest, award compensation of Rs. 50,000, and cover the expenses incurred in pursuing this case, all in accordance with the applicable legal provisions.
2) Notice
The Commission issued a notice to the opposite party, prompting them to respond. The opposite party duly submitted their version.
3) THE VERSION OF THE OPPOSITE PARTY
The complainant, who is a member, joined the establishment M/s. Universal Quality Services on September 1, 2015. Based on official records, the complainant's birth date is May 24, 1961, making him younger than 58 years when he joined the establishment. Consequently, he fulfills the eligibility criteria for EPS'95 membership. Given that the complainant's monthly wages are below Rs. 15,000/-, he qualifies for EPS'95 membership under paragraph 6(a) of the EPS'95 regulations.
The establishment's employer failed to allocate 8.33% of the monthly wages to A/c No. 10, which is the EPS Account of EPFO, thereby violating the guidelines outlined in paragraph 6 of the EPS'95. The member was informed about the grounds for claim rejection through an online rejection letter. The opposite party asserts that there were no shortcomings in their services or engagement in any unfair practices. The claim was declined due to the complainant's non-enrolment as an EPS'95 member by the employer.
The authority of EPFO is unable to transfer the PF (Provident Fund) amount to the EPS Account unless a written request accompanied by a revised Form 3A is submitted by the employer/establishment. Therefore, in light of the above circumstances, the opposite party requests that the complainant/member furnish a clarification letter through their employer/establishment explaining the non-remittance of EPS contribution. Alongside this, a revised Form 3A should be submitted to facilitate the processing of the claim when it is resubmitted.
4) Evidence
The complainant did not provide a proof affidavit; however, they did submit two documents.
1. Copy of Member Passbook issued by the Employee's Provident Fund Organization dated 05.05.2018.
2- Copy of Lawyer's notice with postal receipt dated 28.11.2018.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant.
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
In the present case, the complainant contends that the failure to disburse the EPF amount to them constitutes both a deficiency in service and unfair trade practices against the opposite parties.
Commencing from February 1st, 2020, the complainant has maintained a continuous absence. On the mentioned day, the opposing party presented their version, and subsequently, the case was scheduled for the complainant's evidence. Despite multiple chances, the complainant's persistent absence and inability to present any evidence are clearly noticeable.
To date, the complainant has not made an appearance, nor have they presented any evidence. Numerous chances for participation were extended to the complainant, all of which were not utilized. This consistent absence signals the complainant's lack of interest in pursuing the matter further.
Furthermore, the complainant has not provided an affidavit of evidence. In light of this, the commission's only course of action is to resolve the complaint based on the evidence that is available. Consequently, the commission proceeds to address the complaint on its merits.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite party.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent...” 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. 5, held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under: - “28. In our opinion, the approach of the Consumer Fora is in complete disregard the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
The legal maxim "vigilantibus non dormientibus jura subveniunt" (The law assists those who are vigilant, not those who sleep.) is highly significant in consumer cases. It stresses the importance of being proactive and diligent in protecting one's rights and interests in legal matters. By actively safeguarding their rights, individuals are more likely to receive legal support compared to those who neglect their responsibilities. In consumer cases, this maxim emphasizes the need for consumers to be vigilant and attentive when facing potential legal issues, ensuring they protect their rights as buyers. However, it is essential to mention that in this specific case, the complainant did not attend any hearings before the commission or submit an affidavit of evidence after filing the complaint.
After careful consideration, the above issues have been found to be unfavorable to the complainant. The case presented by the complainant is considered to be without merit. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 7th day of September, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 98/2019
Order Date: 07/09/2023
