National Consumer Disputes Redressal
Employees Provident Fund Organization vs Shri Ganesh Rao & Anr. on 27 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3137 OF 2014 (From the order dated 15-04-2014 in FA No.646 of 2009 of the Rajasthan State Consumer Disputes Redressal Commission at Jaipur) Employees Provident Fund Organization Udaipur, Through Assistant Provident Fund Commissioner (Legal) Delhi North Region 28, Community Centre, Wazirpur Delhi 110052 Through Raju, APFC (Legal) ..Petitioner Versus 1. Shri Ganesh Rao S/o Sh. Bhawnesh Lal Rao R/o Adarsh Nagar, Gulabpura District Bhilwara (Rajasthan) 2. M/s. Super Sincotex India Ltd. Khari Ka Lamba Gulabpura, District Bhilwara Rajasthan ..Respondents BEFORE: HONBLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HONBLE DR. B.C. GUPTA, MEMBER For the petitioner : Mr. Rajesh Manchanda, Advocate For the respondents : Mr. Vikramaditya Bhaskar, Advocate with Mr. Avinash Mishra, Advocate 27-01-2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The complainant/respondent No.1, Ganesh Rao was a permanent employee of respondent No.2, Super Sincotex India Ltd.. The contribution towards provident fund and family pension used to be deducted every month from his salary. The complainant met with an accident, as a result of which his one leg upto thigh level and the fingers of right hand also had to be amputated. According to the complainant, he suffered physical disablement to the extent of 80% on account of the aforesaid amputation. The grievance of the complainant is that despite his having suffered the aforesaid disability the disability pension was not paid to him. Being aggrieved he approached the concerned District Forum by way of a complaint seeking payment of disablement pension along with interest at the rate of 18% per annum, compensation amounting to Rs.50,000/- and cost of litigation.
2. The complaint was opposed by the petitioner on the ground that the complainant did not submit any claim and consequently it could not be settled. No reply was filed by the employer of the complainant.
3. Vide its order dated 12-03-2009 the District Forum directed as under:
(i) the opposite party No.1 will pay interest @ 9% per annum on provident fund amount of Rs.7,774/-
form notice dated 15-12-2005 to 03-11-2008 within one month,
(ii) opposite party No.1 will pay Rs.1,000/- to complainant for legal expenditure and advocate fee within one month form the date of the decision,
(iii) If the above amount is not paid by the respondent No.1 within the prescribed period, the complainant will be entitled to get interest @9% per annum from the date of judgment to the date of payment.
It would, thus, be seen that the claim in respect of the disability pension was denied by the District Forum.
4. Being aggrieved from the order of the District Forum the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 15-04-2014 the aforesaid appeal filed by the complainant was allowed and the petitioner was directed to pay Rs.22,358/- to the complainant being the balance amount in the provident fund along with interest at the rate of 9% per annum from the date of filing of the complaint and monthly pension from the date of filing of the complaint as admissible under the rules, on account of total disability. The petitioner was also directed to pay Rs.5,000/- as cost of litigation to the complainant. Being aggrieved the petitioner is before us by way of this revision petition.
5. The only question which arises for our consideration in this case is as to whether the complainant had suffered permanent disability within the meaning of the rules governing grant of disability pension. The relevant rule, as extracted in the revision petition reads as under:
15.
Benefits on permanent and total disablement during the service
1. A member, who is permanently and totally disabled during the employment shall be entitled to pension as admissible under sub-paragraph (2) to (5) of paragraph 12 as the case may be subject to a minimum of Rs. 250/- per month notwithstanding the fact that he/she has not rendered the pensionable service entitling him/her to pension under paragraph 12 provided that she/he has made at least one month's contribution to the Pension Fund.
2. The monthly member's pension in such cases shall be payable from the date following the date of permanent total disablement and shall be tenable for the life-time of the member.
3. A member applying for benefits under this paragraph shall be required to undergo such medical examination as may be prescribed by the Central Board to determine whether or not he or she is permanently and totally unfit for the employment which he or she was doing at the time of such disablement.
It would, thus, be seen that the disability pension is payable to a person who is permanently and totally unfit for the employment which he or she was doing at the time of such disablement.
6. When this matter came up for hearing on 14-11-2014, noticing the requirement of the rule that before a person can claim disability pension he should have become permanently and totally unable for employment which he was doing at the time of such disablement, we requested the medical board of the aforesaid hospital to determine whether or not the complainant was permanently and totally unfit for the employment in which he was engaged at the time he got disabled. Pursuant to the aforesaid direction given by us, the complainant was again examined at the aforesaid hospital and a certificate was issued.
7. Vide certificate dated 10-05-2004, the medical board opined that the percentage of permanent disability and loss of physical function to the extremities was 80% in the case of the complainant. Vide certificate dated 10-12-2014, the Mahatma Gandhi Hospital, Bhilwara certified that the complainant suffered from AK Amputation and had 80% disability. It was further certified that he was unable to do standing (continuous) work. It was opined that the percentage of permanent disability and loss of physical functions in the case of the complainant was 80%.
8. Noticing the aforesaid certificate, the complainant/petitioner was permitted to file an affidavit disclosing therein the job he was engaged at the time the disability was incurred by him. Accordingly, the complainant filed an affidavit disclosing the nature of his employment as under:
That I was employed as Doffer Man at M/s.
Super Sincotex India Ltd. (respondent No.2) at the time of my disablement. I state that during the course of my employment I was to clear full bobbins, pirns or spindles holding spun fiber such as cotton or wool form a spinning frame and replace them with empty ones by continuously monitoring the machine from all sides by taking rounds of the machine constantly for 7-8 hours. That the employment (labour work) requires a labour to stand on their foot continuously for 7-8 hours and perform their duty.
9. The learned counsel for the petitioner was given an opportunity to verify the averment made in the aforesaid affidavit of the complainant. Today, a report has been filed by the learned counsel for the petitioner stating therein that the contents of the affidavit filed by the complainant could not be verified by them as the establishment in which he was working had closed down way back in 2005 and was thereafter purchased by Suzuki Spinners Ltd. which later sold it to another company, Wearitt Global Ltd., Bhilwara in the year 2014. No record of employment of the complainant and his disablement is available with the aforesaid companies.
10. In these circumstances, we have no reason to disbelieve the averment made in the affidavit of the complainant which remains practically unrebutted. It can hardly be disputed that considering the nature of the job which the complainant was engaged at the time he suffered disablement, he cannot perform the aforesaid job on account of disablement suffered by him. A person whose leg is amputated upto thigh level and whose right hand fingers are also amputated, cannot clear full bobbins, prins or spindles holding spun fiber such as cotton or wool form a spinning frame and replace them with empty ones by continuously monitoring the machine from all sides, taking rounds of the machine constantly for 7-8 hours. Such a job would certainly require the concerned labourer to remain on his feet for about 7-8 hours in a day which the complainant cannot do considering that one of his leg and right hand fingers have been amputated.
11. For the reasons stated hereinabove, we find no ground to interfere with the order of the State Commission as far as the payment of disability pension is concerned. However, as regards payment of provident fund accumulation, as rightly pointed by the learned counsel for the petitioner no prayer was made by the complainant for payment of such accumulation. Therefore, there was no justification for directing payment of the said accumulations. In any case, the case of the petitioner is that only a sum of Rs.7,774/- had accumulated in the provident fund account of the complainant and that amount had already been paid to him as would be seen from the documents available on page 76 of the paper book. Therefore, the direction for payment of EPF accumulations is set aside. If under rules, the complainant is required to refund the amount lying in pension fund, which he had received from the petitioner on account of denial of the disability pension, the complainant shall refund that amount to the petitioner without payment of any interest on that amount.
The revision petition stands disposed of.
....
(V.K. JAIN, J.) PRESIDING MEMBER ....
(DR.B.C. GUPTA) MEMBER rk.25