KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.426/2016& APPEAL No.473/2016

JUDGEMENT DATED: 01.12.2022

(Against the Order in C.C.No.740/2015 of CDRF, Ernakulam)

PRESENT:

APPEAL No.426/2016

APPELLANT:

(by Adv. Narayan R.)

Vs.

RESPONDENT:

APPEAL No.473/2016

APPELLANT:

Vs.

RESPONDENT:

(by Adv. Narayan R.)

COMMON JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          Appeal 426/2016 is filed by the complainant and Appeal 473/2016 is filed by the opposite party in C.C.No.740/2015 of the Consumer Disputes Redressal Forum, Ernakulam (in short the District Forum) against the order passed by the District Forum dated 29/02/2016.  By the said order the District Forum directed the opposite party to issue the birth certificate of Simi M. Samuel, daughter of Samuel Mathai, the complainant and his wife Sarakutty Samuel after effecting the necessary corrections with respect to the name of the mother of the beneficiary, Smt. Simi M. Samuel within a period of one month from the date of receipt of the order and the opposite party was directed to pay a compensation of Rs.10,000/-(Rupees Ten Thousand), which is inclusive of the costs of the proceedings to the complainant within a period of one month from the date of receipt of the order.  It was made clear that the opposite party was entitled to recover the said amount as compensation from the officer concerned who was working as Registrar of Births and Deaths in Kothamangalam Municipal Office during the relevant period.

          2.       The averments contained in the complaint are in brief as follows:The elder daughter of the complainant was born in a hospital within the jurisdiction of Kothamangalam Municipal Council in the year 1981.  At the time of her birth, and even thereafter, the name of the mother of the complainant’s daughter was “Sarakutty Samuel”.  That name remains unchanged even now.  In 2004 the complainant filed an affidavit in the prescribed form duly signed by the parents, under the Kerala Registration of Births and Deaths Rules 1999, for the issue of a birth certificate of his daughter with the opposite party Municipal Council.  In the birth certificate issued to him by the opposite party, the complete name/official name of the mother of his daughter was not recorded.  Instead of the full name, the pet name/domestic name was recorded as “Sarakutty”.  This is a violation of the rules concerned.  On 18.11.2013 the complainant approached the Registrar of Births and Deaths Municipal Council, Kothamangalam with an application for the re-issue of birth certificate of his daughter incorporating the complete/official name of her mother recorded in the certificate, same as written and submitted in legal part form No.1 which was submitted by him.  It was informed by the opposite party that it was lost/destroyed.  The destruction of the said document is a serious misconduct and deficiency in service.  The Secretary concerned (the opposite party) advised the complainant to submit two certificates of two Gazetted Officers to carry out the request of the complainant.  The complainant’s elder daughter who had migrated to USA wanted to file a sponsorship application in favour of the younger sister for the purpose of migration to USA under the category of “siblings of the same mother” for which the birth certificate of both should mention the name of mother as same, which is a mandatory requirement.  Since the processing was software administered one, even a single spelling mistake would entail automatic rejection.  Since the mother’s name given in complainant’s second daughter’s birth certificate contained only the pet name, the complainant’s daughter was in dire necessity to get the certificate after correcting the mother’s name in it.  The complainant prays for a direction to be issued to the opposite party to issue the certificate with the required correction and to direct the opposite party to pay the compensation and costs incurred in filing this complaint.

          3.       The opposite party filed version raising the following contentions:  The Municipal Secretary, Kothamangalam is not the Registrar of Births and Deaths.  Sri. K.P. Varghese, first Grade Health Inspector is the present Registrar of Births and Deaths.  Smt. Sarakutty the Wife of the complainant Sri. Samuel K. Mathai delivered a baby girl at MBMM Hospital, Kothamangalam and that birth was registered as No.3270/1987 on 21.11.2004 noting the name of the child as Simi M. Samuel, from the Municipality.  The complainant had filed an application on 28.11.2013, by post to correct the name of the mother from “Sarakutty” with “Sarakutty Samuel” along with a copy of the Ration Card, Aadhar Card, Certificate of Village Officer and an affidavit attested by the notary.  As per the order of the Principal Secretary, Local Self Government, dated 31.05.2013 having no.50817/RD3/12, there was direction to submit the above said documents and the certificate issued by two Gazetted Officers along with the application for incorporating the name of the husband to suffix the name of the name of the wife.  However, the application submitted by the complainant did not contain the certificate issued by the Gazetted Officers.  The complainant was issued with a notice on 24.12.2013 with No.B&D/11643/13, informing the defect.  The complainant had filed a complaint before the Ombudsman on 28.11.2014 and as per the order of the Ombudsman, dated 24.04.2015, having No.1719/2014 the complainant was directed to submit two certificates issued by Gazetted Officers, before the Municipal Secretary and on production of the same the Municipal Secretary was directed to issue the birth certificate.  However, the complainant did not produce such certificates from the Gazetted Officers and therefore the certificate was not issued by the Municipality.  As per the Government circular dated B1-20741/2009 dated 08.12.2010, either the certificate of two Gazetted Officers or the affidavits of two credible persons could be produced to get the certificate required by the complainants.

          4.       No oral evidence was adduced by both parties.  Exhibits A1 to A6 were marked on the side of the complainant.  Exhibits B1 to B3 were marked on the side of the opposite party.

          5.       Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.

          6.       Aggrieved by the order passed by the District Forum complainant has filed Appeal 426/2016 and the opposite party has filed Appeal 473/2016.

          7.       It is informed that the appellant in A 473/2016 who is the respondent in A 426/2016, the Secretary, Kothamangalam Municipality was represented by its Standing Council, Advocate Cherunniyoor P. Sasidharan Nair and he is no more.  Hence notices were issued to the appellant in A 473/2016 and the respondent in A 426/2016, but despite service of notice they did not appear.

          8.       Since both appeals were filed against the same order passed by the District Forum both appeals were heard and considered together.

          9.       Heard.  Perused the records.

          10.     In 2004 complainant had filed an affidavit in the prescribed form duly signed by him and his wife, under the Kerala Registration of Births and Deaths Rules, 1999 for the issue of a birth certificate of his daughter, with the opposite party.  A birth certificate was issued by the opposite party noting the name of the child as Simi M. Manuel.  In that birth certificate the name of the mother of the child is stated as Sarakutty.  On 18.11.2013 the complainant and his wife filed an application before the opposite party for the re-issue of the birth certificate of his daughter incorporating the complete/official name of the mother of the child as Sarakutty Samuel, along with the copy of the Ration Card.  The request of the complainant was to change the pet name of the mother of the child (Sarakutty) and to substitute the name with her full name (Sarakutty Samuel) as shown in the official records.  Exhibit A1 is the copy of the application submitted by the complainant before the opposite party.  There is no dispute to these facts.

          11.     According to the opposite party Exhibit A2 circular dated 31.05.2013 issued by the Principal Secretary, Local Self Government Department is the relevant circular governing the matter and according to that circular it was necessary to support the application with the affidavit affirmed before a notary, certificate of two Gazetted Officers and the Village Officer.  According to the opposite party the enquiry to be conducted as per the circular is to be done on the basis of all such records and in the absence of such records the opposite party was justified in refusing the issuance of a certificate as requested by the complainant.

          12.     On 20.12.2013 as per Exhibit A3 the complainant was informed by the Information Officer attached to the Kothamangalam Municipality that since the application submitted by the complainant was about nine years back the application and the documents appended with that were not found in the Municipal Office and that would provided as and when retrieved.  On 24.12.2013 the Registrar of Births and Deaths had intimated the complainant through Exhibit A4/Exhibit B1 that the complainant was required to produce the certificates of two Gazetted Officers, affidavit before the notary and the certificate of the Village Officer.  The application of the complainant was not supported by the certificates of two Gazetted Officers and therefore such omission was to be supplemented and the required fee for the certificate was to be remitted.  Exhibit A4 intimation was not complied with by the complainant.  The aggrieved complainant approached the Information Officer, Kothamangalam Municipality with an application to provide the reason for denying the birth certificate.  As per Exhibit A5 letter dated 07.05.2014 the Information Officer also insisted the production of certificates from two Gazetted Officers for getting the required certificate.  The application submitted by the complainant was found missing in the Municipal records.  Exhibit A6 is the copy of the news item published in Malayala Manorama daily dated 31.01.2014 stating that Babu Paul, the then Registrar of Births and Deaths, Kothamangalam Municipality was arrested by the Vigilance and Anti Corruption led by the Dy.Sp. for having accepted a bribe of Rs.1,000/-(Rupees One Thousand) for issuance of a birth certificate to one Jibin Jose from Thodupuzha.  According to the complainant he was made to run from pillar to post by the said officer with ulterior motive of extracting money from him by exercising corrupt practices. 

          13.     According to the complainant Exhibit A2 circular is not applicable regarding the application filed by him and circular dated 08.12.2010 issued by the Directorate of Panchayat, Thiruvananthapuram having no.B1-20741/2009 is applicable to the application submitted by him, in respect of corrections in the birth register.  It is seen that the complainant has produced the said circular before the District Forum and it is incorporated with the records of the District Forum but it was not seen marked.

          14.     The District Forum found that on going through Exhibit A2 circular dated 31.05.2013 it is clear that the circular pertains only to the matters regarding expansion of initials and addition of husband’s name after marriage and spelling mistakes occur in respect of address and Exhibit A2 circular is not intended to cover the requirements of the complainants application.  The request of the complainant to the Registrar of Births and Deaths, Kothamangalam Municipality was only to substitute the pet name of the mother of the child with her official name shown in the Ration Card, Aadhar Card and Passport.  The District Forum found that the circular dated 08.12.2010 issued by the Directorate of Panchayat, Thiruvananthapuram is applicable to the application submitted by the complainant, to make corrections in the Birth Register.  Paragraph 7.6 of that circular refers to the corrections in the Birth Register.  As per the said circular, if the pet name of the parents were shown in the Birth Register such pet name could be corrected in par with the name shown in the school records and also on the basis of the enquiry conducted by the officer concerned.  If such school records were not available, any one of the documents such as Land Register Deed, Pension Payment Order, certificates issued by Government Officers, Voter’s List, Electoral ID card or Ration Card would be sufficient to effect the correction to that extent.  Paragraph 7.6 in the said circular is very specific with regard to the action to be taken by the officer concerned to issue a fresh birth certificate after effecting the required corrections.  On going through Exhibit A2 circular and the circular dated 08.12.2020 it can be seen that the finding of the District Forum that Exhibit A2 circular is not applicable to the application made by the complainant and the circular dated 08.12.2020 is applicable is correct.

          15.     The main contention raised by the appellant in A 473/2016 (the opposite party) is that the opposite party is a statutory body and its officers are discharging/doing statutory functions and hence they are not coming within the purview of the Consumer Protection Act.  The counsel for the respondent has produced the copy of the judgement of the Hon’ble Supreme Court dated 16.0.2019 in SLP (C)No.4272/2015 and SLP (C)No.5237/2015 (Punjab Urban Development Authority & Another Vs. Ramsingh) wherein it was held that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in case of services rendered by statutory and public authorities.  Such authorities become liable to compensate for misfeasance in Public Office, an act which is oppressive, capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.  If a Commission/Forum is satisfied that the complainant is entitled to compensation for loss or injury or for enhancement or mental agony or oppression then, after recording a finding, it must direct the authority to pay compensation and then also direct to recover from those found responsible for such unpardonable behaviour.  As rightly found by the District Forum the official concerned in the office of the opposite party did not act in good faith and procedural fairness and the action of the Registrar of Births and Deaths is arbitrary, unfair and unreasonable.  Hence the contention raised by the opposite party/appellant regarding the maintainability of the complaint will not stand and the District Forum/Commission has jurisdiction to consider the matter.

          16.     Another contention raised by the appellant in A 473/2016 is that the complainant had filed a complaint before the Ombudsman for Local Self Government Institutions and the Ombudsman had passed Exhibit B2 order.  Complainant has not complied with the direction made by the Ombudsman and instead of that he had filed the complaint before the District Forum.  That was not considered by the District Forum.  Exhibit B2 shows that the complainant had moved before the Ombudsman for Local Self Government Institutions and the Ombudsman had passed the order directing the complainant to produce documents before the opposite party/appellant.  As per Section 3 of the Consumer Protection Act, 1986 (corresponding Section 100 of Consumer Protection Act, 2019),the reliefs available to the consumer are in addition to and not in derogation of the provisions of any other law for the time being in force.  We do not find any illegality in filing the complaint before the District Forum by the complainant, even though he had approached the Ombudsman for local institutions.  Being a separate and independent proceedings, it was for the District Forum to decide whether to consider or accept any of the observations made in the order of the Ombudsman.  It is true that the District Forum has not stated anything regarding those aspects in the order.  But in view of the Section 3 of the Consumer Protection Act there is no legal bar for the complainant to file the complaint before the District Forum, alleging deficiency in service against the opposite party, even if he had earlier approached the Ombudsman for getting relief from the opposite party.

          17.     The District Forum observed that in the proved fact of the case it can be seen that the complainant, a senior citizen has been asked by the official concerned to run from pillar to post ignoring the fact that the official himself was culpable, in not meeting the requirements and requests of the complainant, especially when circular no.B1-20741/2009 is very clear on the point.  The District Forum observed that the officials concerned in the office of the opposite party did not act in good faith and with procedural fairness.  The action of the Registrar of Birth and Death is arbitrarily unfair and unreasonable.  The District Forum found that there was deficiency in service on the part of the opposite party and the complainant was entitled to get appropriate compensation.  We find that there is no reason/ground to interfere with the said finding of the District Forum.

          18.     The District Forum directed the opposite party to issue the birth certificate of Simi M. Samuel, daughter of the complainant and his wife Sarakutty Samuel after effecting the necessary corrections with respect to the name of the mother of the beneficiary within a period of one month from the date of receipt of the order.  The District Forum also directed the opposite party to pay compensation of Rs.10,000/-(Rupees Ten Thousand) which is inclusive of costs of the proceedings which cannot be considered as excessive.Considering the evidence, facts and circumstances of the case we consider that there is no reason/ground to interfere with the order passed by the District Forum.  So the appeal A473/2016 filed by the opposite party is liable to be dismissed.

          19.     The complainant has filed A 426/2016 with the prayer to enhance the compensation ordered by the District Forum.  It is submitted by the appellant that the compensation ordered by the District Forum is too low and it does not even cover the transportation cost incurred by the appellant to attend the hearing before the District Forum.It is stated by the appellant that he had sought correction of the birth certificate to enable his elder daughter who is a citizen of USA for migration of his younger daughter to USA under the “siblings of the same mother” category in the year 2013-2014.  The delay in issuing a certificate has resulted in delay in that opportunity by two years and causing huge loss.  In the order passed by the District Forum it is stated that the documents produced by the complainant would go to show that the beneficiary of the birth certificate wanted to get her sister migrated to USA under the category “siblings of the same mother”.  In order to prove that the siblings were daughters to the very same parents it was necessary to have the exact name of the parents in both passports of the siblings.  Despite expression of specific requirement to the opposite party, the opposite party was turning its face to the complainant on untenable grounds by refusing to grant rightful and legitimate services to the complainant, entitling him to get appropriate compensation.  The District Forum directed the opposite party to pay compensation of Rs.10,000/-(Rupees Ten Thousand) which is inclusive of costs, to the complainant.  Considering the evidence, facts and circumstances of the case we consider that the compensation ordered by the District Forum is too low and it has to be enhanced.  We consider that an amount of Rs.15,000/-(Rupees Fifteen Thousand) as compensation and Rs.5,000/-(Rupees Five Thousand) as costs to be paid by the opposite party to the complainant will be just and reasonable, which will meet the ends of justice.  Hence, the order passed by the District Forum regarding the compensation is to be modified to that effect.

          20.     In the result, Appeal 426/2016 is partly allowed and the order passed by the District Forum is modified as follows: 

          The opposite party shall pay compensation of Rs.15,000/-(Rupees Fifteen Thousand) and costs of Rs.5,000/-(Rupees Five Thousand) to the complainant within a period of one month from the date of receipt a copy of this order and if they fail to comply with the order the amount will carry interest @9% per annum from the date of this order (today) till realisation.  In all other aspects the order passed by the District Forum will stand/remain intact.  Parties are directed to suffer their respective costs.

          22.     Appeal 473/2016 is dismissed.           Parties are directed to suffer their respective costs.

SL