State Consumer Disputes Redressal Commission
Punjab National Bank vs Rohit Malhotra on 4 September, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
First Appeal No.79 of 2017
Date of Institution: 03.02.2017
Date of Reserve : 29.08.2017
Date of Decision : 04.09.2017
1. Punjab National Bank, 7 Bhikaji Cama Place, New Delhi-
110066, through its Chairman/MD
2. The General Manager, Punjab National Bank, PF & Pension
Fund Department, Rajendra Bhawan, III Floor, Rajendra Place,
New Delhi-110008.
3. Branch Manager, Punjab National Bank, Ferozepur Cantt.
.....Appellants/opposite parties
Versus
Rohit Malhotra son of Sh.Om Parkash Malhotra, resident of House
No.37, Bazar Bansan Wala, Ferozepur City (Mobile No.95695-37607)
......Respondent/complainant
First Appeal against the order dated
16.12.2016 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellants : Sh.Amandeep Kakkar, Advocate
For the respondent : Sh.Sandeep Bhardwaj, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellants/opposite parties (hereinafter referred to as 'opposite parties') has filed the present appeal against the order dated 16.12.2016 passed by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred to as 'District Forum') in First Appeal No.79 of 2017 2 Consumer Complaint No.315 of 2016, dated 24.06.2016, vide which the complaint filed by the complainant was allowed and opposite parties were directed to pay interest on the amount of pension at the rate of 8.5% from 25.11.2010 to 31.03.2013 and at the rate of 8.75% from 01.04.2013 till payment. The rate of interest as charged on the amount paid by the complainant to the opposite parties and Rs.2,000/- as consolidated compensation including litigation expenses.
2. Complaint was filed by the complainant against the opposite parties under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') on the averments that father of the complainant namely Om Parkash Malhotra was working as Clerk / Cashier with the opposite parties and after attaining the age of 60 years he retired from the services on 30.11.2007. He died on 05.08.2014. Thereafter, a letter bearing No. Pension 17325 dated 28.08.2015 was received from the opposite parties that pension case of the complainant's father has been allowed in Board meeting and consequently opposite parties directed to deposit a sum of Rs.8,40,705.86p + interest at the rate of 8.5% from 25.11.2010 to 31.03.2013 and at the rate of 8.75% from 01.04.2013 till the date of payment in account and Smt. Asha Malhotra, mother of the complainant could become eligible for the family pension, therefore the complainant arranged the amount of Rs.8,40,705.86p + interest which came to Rs.11,89,620/- and deposited in the account of the opposite parties on 17.09.2015. Thereafter, a telephone message was received from the opposite parties that interest deposited by them was less and they be deposited further amount of Rs.72,500/- on 04.11.2015. In this way, they deposited a sum of Rs.12,62,120/-. On First Appeal No.79 of 2017 3 receipt of the said amount, complainant's mother became eligible to receive the pension benefits from the opposite parties on account of services rendered by complainant's father. Consequently, a sum of Rs.9,43,882/- was sanctioned on 01.01.2016 by the opposite parties as full pension of the complainant's father and another amount of Rs.1,28,176/- was sanctioned by the opposite parties as family pension vide PPO No.17325/8671 upto 31.01.2016. In this way, Rs.10,72,058/- was received from the opposite parties. However, complainant's mother Asha Malhotra, expired on 11.02.2016 and after that the family pension was stopped. When the pension was sanctioned to the complainant's father and mother the interest was not sanctioned which amounted to unfair trade practice on the part of the opposite parties. Complainant's mother having joint account No.0171000309429497 with his father with the operation mode "Either or Survivor". During the life time, complainant's mother executed a WILL in favour of the complainant. Therefore, the complainant is entitled to inherit the movable and immovable assets of his mother. Alleging deficiency in service on the part of the opposite parties, complaint was filed against the opposite parties seeking directions against them to pay interest at the rate of 18% per annum on the amount of Rs.9,43,882/- and Rs.1,28,176/- alongwith compensation of Rs.1,00,000/- and litigation expenses of Rs.20,000/-.
3. Complaint was contested by the opposite parties by filing joint reply and took the preliminary submissions that the complainant is not a consumer, as such, provisions of Consumer Protection Act are not applicable. In the complaint, complicated questions of fact and law are involved, therefore, the matter be relegated to the Civil Court. First Appeal No.79 of 2017 4 On merits, it is admitted that father of the complainant was working as Clerk-cum-Cashier and he retired from the service on 30.11.2007. The pension case of complainant's father was considered by the Board and they directed the complainant's mother to deposit Rs.8,40,705.86p plus interest at the rate of 8.5% from 25.11.2010 to 31.03.2013 and 8.75% from 01.04.2013 till the date of payment. It was allowed and the complainant had deposited the amount with Punjab National Bank as referred in the complaint. It is correct that the opposite parties had received the amount of interest from Smt. Asha Malhotra. It was denied that there was no unfair trade practice and deficiency in service on the part of the opposite parties. It was denied that complainant / his mother was entitled to interest on the pension amount disbursed to her as there is no provision to pay interest to retired employee on the amount of pension payable to the said employee. Therefore, there was no unfair trade practice or deficiency in service on the part of the opposite parties. Complaint is without any merit and it be dismissed with costs. In addition to that a plea has been taken that opposite parties appointed Sh.Ashok Kumar Babbar as General Power of Attorney vide Deed of Attorney dated 23.10.2013 who is competent to file the written statement and to do all other necessary acts on behalf of the opposite parties.
4. Before the District Forum, the parties led their respective evidence.
5. In support of his allegations, the complainant had tendered his affidavits alongwith the documents as Ex.C-1 & Ex.C-16. On the other hand, opposite parties tendered the affidavit and documents as Ex.OP-1 to Ex.OP-4.
First Appeal No.79 of 2017 5
6. After going through the allegations as alleged in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/opposite parties have filed the present appeal.
8. We have heard the learned counsel for the appellants / opposite parties & respondent / complainant and perused the record carefully.
9. It was argued by the counsel for the appellants/opposite parties that the order passed by the District Forum is illegal, null and void and is liable to be set aside on the ground that the complainant is not a consumer. He has referred to the Judgment reported in 2016(4) CLT 115 titled as (Savita Tiwari Vs. Bharat Heavy Electricals Limited & Anr.) and 2016(3) CLT 54 titled as (Kunjithomman E.T. Vs. United India Insurance Ltd.) that for retiral benefits the complainant is not a consumer, therefore, the complaint by the retired employee is not maintainable. However, counsel for the respondent / complainant argued that the judgments relied upon by the counsel for the opposite parties are not applicable to the facts of the present case. In the present case, the complainant as employee was required to deposit the employer's contribution. As per their letter dated 28.08.2015, Ex.OP-2 and in view of that the mother of the complainant had deposited a sum of Rs.8,40,705.86p plus Rs.4,21,414/- as interest i.e. total Rs.12,62,120/-, where the employees in paying his contribution towards pension it can be treated as consideration and accordingly the employee at any stage can be First Appeal No.79 of 2017 6 considered as consumer. A reference can be made from the judgment reported in IV (2012) CPJ 174 (NC) titled as (State Bank of Mysore vs. S.K.Vidya & Anr.). This matter relates to the Pension Scheme, it clearly indicates that there is element of contribution by employee and hence any action of administering authority, be it separately designated or employer itself can be challenged with reference to criteria of deficiency in service or unfair trade practice since contribution by employee would constitute requisite consideration and same makes disputes pertaining to operation of such scheme as maintainable before the District Forum. The complaint was allowed by the District Forum upheld by the State Commission and its revision petition was dismissed by the Hon'ble National Commission.
10. After holding that in case of Employees Provident Fund Scheme and also Pension Schemes for which employees are required to contribute have been regarded as being covered by the definition of consumer dispute with reference to their maintainability under the Consumer Protection Act, 1986, in case of unfair trade practice or deficiency in service it can be challenged before the Consumer Forum. A reference has been made to the judgment of the Hon'ble Supreme Court reported in III (1999) CPJ 36 (SC) titled as (Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi), in which, it was observed that Employees Provident Fund Scheme amounts to Service and the Members under the Employees Provident Fund Scheme are consumers and comes under the definition of "service" under Section 2(1)(o) of the Act. It was further held that the complainant being the beneficiary will be consumer in view of the judgment of the Hon'ble Supreme Court reported in "M/s Spring First Appeal No.79 of 2017 7 Meadown Hospital & Anr. V. Harjol Ahluwalia through K.S.Ahluwalia & Anr." and another judgment reported in JT 1998 (2) SC 620.
11. We have also gone through the judgments referred by the counsel for the appellants / opposite parties as well as counsel for the respondent / complainant. In judgment 2016(4) CLT/115 (supra) The employee of the petitioner had been vacated the flat after retirement and a sum of Rs.1,60,059/- was wrongly deducted by the employer from the retiral benefits. In that context, it was stated that the question of retiral benefits cannot be considered. In that case, there was no consideration designating the complainant as a consumer and opposite parties as service provider. Similarly in another judgment 2016(3) CLT 54 (supra), the employees of the Insurance Company under the scheme namely Conveyance Scheme 2002 were to purchase the car and it was required to be transferred in the name of the employer and for a period of eight years the complainant was not required to pay the instalments. It was observed by the Hon'ble National Commission that benefit of the said scheme became available to him by virtue of being an employee of the respondent and not on account of his being a consumer qua the respondents. Therefore, the ratio of the judgments relied upon by the counsel for the opposite parties are not applicable to the facts of the present case. Relying upon the judgment of the Hon'ble National Commission and Hon'ble Supreme Court, we are of the opinion that the complainant is covered under the definition of the consumer.
12. The next question raised by the counsel for the appellants / opposite parties is that the findings of the District Forum that the First Appeal No.79 of 2017 8 opposite parties were not doing equity with the complainant by not giving the amount and the Forum also failed to specify the basic amount upon which the interest is to be calculated for depositing employee's contribution towards the pension scheme which was taken by the opposite parties after retirement of the employee alongwith interest. Similarly, in case the employee's contribution would have been submitted during service then immediately after retirement, the employee or after his death his wife would have been entitled to pension / family pension. In case, opposite parties have taken the employee's contribution alongwith interest in the similar manner, the opposite parties are also required to pay interest on the rates charged by them in view of the judgment passed by the District Forum. So far as the calculation of the amount is concerned, it has been specifically mentioned that the amount of pension from 25.11.2010 to 31.01.2013, it has been disbursed by the opposite parties to Smt. Asha Malhotra / complainant, with interest at the rate of 8.5% and on the balance payment for 01.11.2013 till date at the rate of 8.75%.
13. We are of the opinion that the order passed by the District Forum is justified as they have allowed the interest to the complainant as they charged the same from the widow of the employee.
14. It was further argued that the District Forum discussed about the alleged WILL executed by the mother of the complainant. It has been argued that the complainant has not disclosed about the details of the natural legal heirs and the complaint is liable to dismissed on account of non-joinder of the necessary parties. In case, the complaint is against the opposite parties for not awarding the interest and deficiency in service on the part of the opposite First Appeal No.79 of 2017 9 parties, therefore, the other legal heirs were not required to be made the party. However, it is made clear that the complainant is receiving this amount as legal heir of Smt. Asha Malhotra. In case, at any stage, this question is challenged by any other legal heir then the complainant will be liable to indemnify it in accordance with the judgment to be passed in that case.
15. Sequel to the above, we do not find any merit in the appeal and the same is hereby dismissed.
16. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This sum along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass an appropriate order in this regard.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER September 04, 2017 parmod