By: Sri. Mohandasan K., President
Complaint in short is as follows:-
1. The complainant entered in service of the opposite party as Milk Tester on 01/06/1987 and she was made permanent under the opposite party on 01/01/1989/-. The opposite party collected provident fund contribution from the salary of the complainant from the date of entering in to the service and the opposite party continued the collection of contribution until she retires from the service. The complainant retired from the service on 31/05/2021. The complainant was entitled to receive an amount of Rs.3,49,386/- at the time of her retirement. But the opposite party issued only an amount of Rs.2,98,516/-. The complainant submitted that she is entitled Rs.50,870/-more from the opposite party towards the balance amount of provident Fund. The complainant submitted that she is entitled for earned leave surrender benefit of Rs.70,000/-. The opposite party has not issued the same. The complainant further submit that she received an amount less Rs. 14,000/-as insurance amount from the life insurance corporation due to non-remittance of the premium amount which was collected from the salary of the complainant by the opposite party. The policy number of the complainant was 792970-536.
2. The complainant approached the opposite party for the above said claims on various occasions through documents as well as directly, but the opposite party did not heed to the worlds of complainant rather insulted also. The complainant thereafter approached diary development officer at Nilambur and they directed the opposite party to consider the grievance of the complainant. Thereafter the complainant caused lawyer notice to the opposite party on 05/01/2022. But the opposite party did not care to send a reply notice to the lawyer notice. Hence the complainant filed complaint before the Consumer Disputes Redressal Commission. The complainant alleges the act of the opposite party as deficiency in service and so the complainant suffered a lot of hardships and inconveniences and also mental agony. The complainant prays for the redresssl of her grievance through appropriate orders. The complainant prayed for the payment of Rs.50,870/- towards PF benefit, earned leave surrender benefit Rs.70,000/-, insurance amount Rs.14,00/- along with compensation of Rs.1,00,000/- with cost.
3. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance and filed Vakkalath by Adv. Prajit on behalf of opposite party. But the opposite parties did not file version within statutory period and so no version recorded. But the opposite party filed application IA.No.531/22 on 19/07/2022 challenging the maintainability of the complaint. The complainant filed detailed counter in IA 531/22 and also filed affidavit in lieu of evidence. The documents on the side of complainant marked as Ext. A1 to A14. Ext. A1 is copy of letter issued by the complainant to the opposite party dated 21/06/2021. Ext. A2 is copy of application submitted by the complainant. Before the director board of opposite party. Ext. A3 is copy of complaint filed by the complainant before the diary extension officer, Nilambur dated 12/08/2021. Ext. A4 is copy of complaint submitted by complainant before the deputy director, diary development office, Malappuram, Nil dated Ext. A5 is copy of direction issued by the diary development officer Nilambur, to the opposite party dated 08/11/2022. Ext. A6 is copy of letter issued by the opposite party to the diary development officer, Nilambur dated 12/11/2021. Ext. A7 is copy of reply issued by the opposite party to the complaint dated 22/09/2021. Ext A8 is copy of letter issued by the opposite party to the complainant dated 04/10/2. Ext. A9 copy of lawyer notice issued by Adv. C. Babu Mohanakurup to the president of opposite party, dated 05/01/2022. Ext. A10 is copy of lawyer notice issued by Adv. C. BAbu Mohanakurup to the secretary of opposite party dated 05/01/2022. Ext. A11. Postal receipt dated 06/01/2022. Ext. A12.is Postal receipt dated 06/01/2022. Ext A13 is acknowledgement card dated 10/01/2022. Ext A14 postal receipt dated 08/01/2022. Thereafter the opposite party filed IA 596/2022 seeking permission to cross examine the complainant. But it was not allowed since the opposite party did not file version or affidavit in the matter. Since the complaint is being considered under Consumer Protection Act, the procedure prescribed is summary one and the cross examination of a witness is not a rule but an exception. Hence IA 596/2022 dismissed permitting the petitioner to file questioner instead of cross examining the complainant. Thereafter the opposite party filed questioner and the complainant filed answers to the questioner. Heard complainant and opposite party, perused affidavit and documents.
The following points arise for consideration.
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost.
4. Point No.1
Though the opposite party did not file version, filed IA 531/2022 challenging the maintainability of the complaint. The contention of the opposite party is that the complainant is working under the opposite party and so the relation between the complainant and opposite party is employer – employee and so the complainant does not fall under the definition of “Consumer “under Consumer Protection Act. The opposite party further contended that the entire disputes related to provident fund and so to be dealt with Employees Provident Fund and Miscellaneous Provisions Act 1952 section 7(A) and for that the complainant has to approach provident fund commissioner. The opposite party further submitted that as per the decision of apex court in 2018 civil appeal No.1987/2018, K A Annama Vs the secretary, Cochin co- operative society Limited that dispute related to service, the complainants can seek remedy under Kerala Co-operative societies act 1969 or under industrial dispute act 1947. The submission of the opposite party is that the opposite party is registered co-operative society under Kerala Co-operative societies act 1969 and so the complainant can approach as per 69 of the co-operative societies Act 1969 under section 69 before the arbitration court or before co-operative registrar or under section 69A before cooperative ombudsman. Hence, the complaint before the Consumer Disputes Redressal Commission is not maintainable. The complainant filed detailed counter in IA 531/2022 contenting as follows: - The complainant submitted that it is a settled position that a complainant regarding provident fund is maintainable before the Consumer Dispute Redressal Commission. The complainant submitted that the decision cited by the opposite party in Annma Vs the Secretary Cochin co-operative society limited in civil appeal number 1987/2018 is not applicable in this case. The case cited is not related with Consumer Protection Act. As per the above decision also a complaint before Consumer Dispute Redressal Commission is not barred and the complainant is possible to seek Redressal through Kerala Co-operative societies Act or through industrial disputes act. The contention that complainant can seek remedy under section 69 of the Kerala co-operative societies act or under 69A of the said act is not sustainable. According to the complainant, dispute between the service provider employer and beneficiary of service can seek remedy through approaching consumer dispute Redressal commission as per the apex court decision. The complainant placed reliance on decision rendered by National Consumer Disputes Redressal Commission in revision petition No.3317/2008 i.e., the deputy general manger CPF –FCI New Delhi Vs Kashmir Sing and others.
5. The Commission has gone through the submission of the parties and also the decisions cited by the parties. This complaint regarding the retirement benefit of an employee who was working under a co- operative society. It is a settled position that a retired employ of a co-operative society can approach Consumer Disputes Redressal Commission for the retirement benefit. The consumer protection Act itself reveals that the remedy available under the act is an additional remedy as per section 100 of the Act. Though the complainant has got right to move under the Industrial Dispute Act as well as Kerala Co-operative Societies Act, which does not bar the jurisdiction of the Consumer Disputes Redressal Commissions in entertaining a complaint with the content of the present complaint. Hence, we do not find merit in the contention of the opposite party and the District Commission has already taken a view in similar matter earlier also. Hence, we find that the complaint is maintainable before the Consumer Dispute Redressal Commission.
6. Pont NO.2 & 3
The complainant filed affidavit and documents in support of her claim. The opposite party did not care to file version. So as per Consumer Protection Act 2019 section 38(3)(b)(ii), the complaint is to be decided exparte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within in the time given by the commission. In this complaint the opposite party has not filed version and affidavit to defend the case of complainant. The documents submitted by the complainant substantiate the claim of complainant. So we find that the complainant was a permanent employee of the opposite party from 01/01/1989 till 31/05/2021. The complainant is entitled as claimed in the complaint and in affidavit. We find that there is deficiency in service on the part of the opposite party. There is no contra evidence against the claim of the complainant. Hence, we allow this complaint as follows:-
- The opposite parties are directed to pay Rs.50,870/- as the balance provident fund benefit of the complainant.
- The opposite parties are directed to pay Rs.70,000/- towards the surrender benefit of earned leave.
- The opposite parties directed to pay Rs.14,000/- towards the insurance benefit which was lost due to the deficient act of the opposite parties.
- The opposite parties are directed to pay Rs.50,000/- to the complainant on account of deficiency in service and thereby caused inconvenience and hardship and financial loss sustained to the complainant .
- The opposite parties directed to pay Rs.5,000/- as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite parties are liable to pay interest at the rate of 9% per annum from the date of order till date of payment
Dated this 31st day of January, 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A14.
Ext.A1: Copy of letter issued by the complainant to the opposite party dated 21/06/2021.
Ext.A2: Copy of application submitted by the complainant. Before the director board of opposite party.
Ext A3: Copy of complaint filed by the complainant before the diary extension officer Nilambur dated 12/08/2021.
Ext A4: Copy of complaint filed by the complainant before the diary extension officer Nilambur dated 12/08/2021.
Ext A5: Copy of complaint submitted by complainant before the deputy director, diary development office, Malappuram Nil dated
Ext.A6: copy of letter issued byte opposite party to the diary development officer Nilambur dated 12/11/2021.
Ext.A7: Copy of reply issued by the opposite party to the complaint dated 22/09/2021.
Ext.A8: Copy of letter issued by the opposite party to the complainant dated 04/10/2
Ext.A9: Copy of lawyer notice issued by Adv. C. Babu Mohanakurup to the president of opposite party dated 05/01/2022.
Ext.A10: copy of lawyer notice issued by Adv. C. BAbu mohanakuruup to the secretary of opposite party dated 05/01/2022.
Ext.A11: Postal receipt dated 06/01/2022
Ext.A12: Postal receipt dated 06/01/2022
Ext.A13: acknowledgement card dated 10/01/2022
Ext.A14: postal receipt dated 08/01/2022.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. Nil
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
