State Consumer Disputes Redressal Commission
Coal Mines Provident Fund Organisation vs Avinash Kumar Dubey And Another on 1 July, 2008
JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI JHARKHAND STATE CONSUMER DISPUTES REDRESSAL COMMISSION, RANCHI First Appeal no.117 of 2008 Against order dated 15.1.08, passed by District Consumer Disputes Redressal Forum, Dhanbad, in Consumer Complaint no.426 of 2006. Coal Mines Provident Fund Organisation - Appellant Vrs. Avinash Kumar Dubey and another - Respondents For Appellant : Mr.Deepak Roshan, Advocate For Respondent no.1 : Mr. Arvind Pathak, Advocate For Respondent no.2 : Mr.Rajan Raj, Advocate Before: Justice Gurusharan Sharma- President Mrs. Kalyani Kar Roy- Member
And Mr. Satyendra Kumar Gupta-Member Judgment Justice Sharma: This appeal is directed against order dated 15.1.2008, passed by District Consumer Disputes Redressal Forum, Dhanbad, in Consumer Complaint no.426 of 2006, whereby appellant was directed to pay one third of the Coal Mines Provident Fund amount of Late Kamlesh Dubey to minor Chhotu Dubey and submit receipt of the same before the Forum by 12.2.08.
2. On 12.2.08 the Forum extended the period of compliance of the order up to 27.2.2008. Again on 27.2.2008 the District Consumer Forum directed the appellant to comply with the said order dated 15.1.2008 and to submit compliance report on 14.3.2008, by way of execution of the order dated 15.1.2008. It was observed by the Forum in the order dated 27.2.2008 that order dated 15.1.2008 was the final order passed in complaint, although final result of the case was not mentioned in the order dated 15.1.2008, nor it was disposed of, rather next date was fixed for compliance of the direction given and again on 27.2.2008 another date was fixed for compliance of the direction.
3. We do not appreciate the method applied by the President of the District Forum in the complaint in question. Against final order passed by District Forum the aggrieved party has a right to go in appeal under Section 15 of the Consumer Protection Act, 1986 before the State Commission. In the impugned order dated 15.1.2008 it was compulsorily required to be stated whether the complaint was allowed or dismissed or disposed of and while disposing of the complaint a direction could have been given to comply with the order within a fixed time. Here the District Forum is going on fixing one date and another for compliance of order, as if the complaint was still pending. It created confusion in the mind of the party aggrieved and a clarification came only when in the third order dated 27.2.2008 the Forum described the order dated 15.1.2008 as the order in nature of final order and was appellable.
4. Not only this, a perusal of the impugned order dated 15.1.2008 reveals that it has been passed without applying mind to the facts and circumstances of the case, simply on the basis of some concession made by other Cosharers Puja Kumari and Avinash Kumar Dubey, the complainant. Even the complainants case and claim as well as the opposite parties defence version were not mentioned therein to facilitate the appellate Court to atleast prima-facie appreciate the matter in issue. The District Consumer Forums are not supposed to pass such scanty orders to put unnecessary burden on the appellate authority to go through the entire pleadings and evidence in order to understand the case of and decide the appeal as if a Consumer Complaint is being decided by them. Such act of the District Consumer Forum consumes much time and energy of the appellate authority. The President of Dhanbad District Consumer Forum is warned to be cautious in future and not to pass such orders. The District Consumer Forums are not meant to decide complaint in such manner and put all the burden on the appellate authority to go into the merit and decide the said complaint afresh in accordance with law.
5. According to the office report this appeal is barred by time. Limitation for filing the appeal from the date of impugned order expired on 14.2.2008, whereas it was filed on 1.4.08. The appellant has filed an application under Rule 8(4) of the State Rules for condonation of the said delay. It is stated that there was a confusion as to whether the order dated 15.1.2008 was the final order. It was more aggrevated when order dated 12.2.2008 was passed. The confusion was cleared on 27.2.2008 when it was observed by the District Forum that order dated 15.1.2008 was in the nature of final order and thereafter on 12.3.08 true copy of the entire order sheet, including impugned order was obtained and appeal has been filed within thirty days therefrom. The aforesaid statements are uncontroverted. Hence, we condone the delay in filing the appeal.
6. Admittedly, Kamlesh Dubey was a Colliery employee and was working as Dealing Clerk in Block II Area. He was a member of Coal Mines Provident Fund, having account no. D1525656. He died in harness on 16.1.2000 leaving behind his widow, two sons and two daughters. One of his sons, Avinash Kumar Dubey, the complainant, was matured/major aged about 22 years and one of his daughters was duly married at the time of his death. One son, namely, Chhotu Dubey and one daughter, namely, Puja Kumari were minors and were dependent on their deceased father. Saraswati Devi, widow of Kamlesh Dubey also died on 18.10.2002. The complainant, upon death of his father got employment on compassionate ground in B.C.C.L. and is working as Fitter Helper w.e.f. 27.3.2001 at Benedih Section.
7. Clause 64 of the Coal Mines Provident Fund Scheme provides as under:
64. Accumulation of a Deceased Member- to whom payable :- On the death of a member before the amount standing to his credit has become payable, or where the amount has become payable, before payment has been made
(i) if a nomination made by the member in accordance with paragraph 62 subsists, the amount standing to his credit in the fund or that part thereof to which the nomination relates, shall become payable to his nominee or nominees in accordance with such nomination;
(ii) if no nomination subsists or if the nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be , shall become payable to the members of his family in equal shares.
Provided that no share shall be payable to
(a) sons who have attained majority ;
(b) sons of deceased son who have attained majority ;
(c) married daughters whose husbands are alive ;
(d) married daughters of a deceased son whose husbands are alive; if there is any members of the family other than those specified in clauses (a), (b), (c) and (d) :
Provided further that the widow or widows, and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived the member and had not attained the age of majority at the time of the members death.
(iii) In any case to which the provisions of clause (i) and (ii) do not apply the whole amount (that would have been otherwise payable in his case) shall be payable to the person legally entitled to it ;
Provided that (i) where such payment does not exceed rupees seven hundred and fifty, the Assistant Commissioner or (ii) where it exceeds rupees seven hundred and fifty but does not exceed rupees three thousand, the Regional Commissioner or (iii) where it exceeds rupees three thousand but does not exceed rupees five thousand, the Joint Commissioner or (iv) where it exceeds rupees five thousand the Commissioner, may after giving notices to such person and making such summary enquiry as he thinks fit, make payment of the amount to the person who appears to him to be legally entitled thereto, after getting from such person such security as he considers necessary, and any payment so made shall be a full discharge from all liabilities in respect of the amount so paid.
Provided further that where the amount exceeds rupees twenty five thousand, no payment shall be made to a person unless he is in possession of a succession certificate issued in his name by a competent court.
Note :- For the purpose of this paragraph a members posthumous child, if born alive, shall be treated in the same way as a surviving child born before the members death.
8. According to the B.C.C.L. and C.M.P.F. Organisation, the deceased employee had not furnished Form A (Declaration of Nominee), but according to the complainant he had furnished nomination form and nominated his wife, Saraswati Devi for the CMPF amount in the event of his death. We need not go into this controversy in this appeal simply for the reason that the alleged nominee also died before payment of CMPF amount. In such circumstance, even if there was nomination by the deceased member, the same became infructuous on the death of nominee before payment of CMPF amount and thereafter, payment was rightly made in accordance with Clause 64(ii) of the Scheme to the members of his family, who were alive and were entitled to get.
9. In the meantime one son and one daughter, who were dependent and minors at the time of death of their father Kamlesh Dubey were paid 2/3rd (1/3rd each) of the CMPF amount on 1.12.2003 according the aforesaid provisions of Clause 64(ii) of the Scheme . Since widow of the deceased member expired in October, 2002 1/3rd amount of her share was retained by CMPF Organisation for being paid in accordance with Clause 64(iii) of the Scheme. In the present case, since the said 1/3rd amount was more than Rs.25,000.00, the Regional Commissioner, CMPF Organisation by letter dated 2.12.2003 rightly informed the Personal Manager, Block II Area Office, Nawagarh, Dhanbad to advise the claimant to submit Succession Certificate for Rs.1,41,310.00 from competent Court of law in the matter of estate of Late Saraswati Devi, widow of the deceased member, as required by Clause 64(iii).
10. The District Consumer Forum passed the impugned order without taking into consideration the provisions of Clause 64 and applying the same to the facts and circumstances of the present case. The District Forum was misguided by so called concession of the complainant and one Puja Kumari, who was not even a party in the complaint that the 1/3rd amount of CMPF in question be paid to their minor brother, Chhotu Dubey. In this manner, the other heirs and legal representatives, if any, of deceased Saraswati Devi cant be deprived of their right and entitlement to receive amount of their share.
11. We have, therefore, no option, but to set aside the impugned order dated 15.1.2008 and allow the appeal. Accordingly, the said order is set aside. Order dated 12.2.2008 and 27.2.2008 or any other order passed pursuant to the order dated 15.1.2008 automatically became infructuous .
12. In the result, the appeal is allowed and the complaint (Consumer Complaint no.426 of 2006) is dismissed with liberty to the complainant respondent to approach the competent Court for redressal of his grievance, in accordance with law. However, there will be no order as to costs.
The 1st July, 2008.
Ranchi.
Member Member President