Bangalore District Court
Smt.Shobha vs The Commissioner on 27 July, 2016
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41)
AT BENGALURU.
Dated this the 27th day of July 2016.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.5917/2015
PLAINTIFF: Smt.SHOBHA,
Aged about 48 years,
W/o. Sri.Radhakrishnan,
R/at House No.24/4,
7th Main, Wilson Garden,
Bengaluru-560 027.
(By Smt.Savitha and Smt.
P.S.Deeparani, Advocates.)
AND:
DEFENDANTS : 1. THE COMMISSIONER,
Employees Provident Fund
Organization,
(Ministry of Labour, Government of
India), Regional Office, Bhavishya
Nidhi Bhavan, P.B. No.572, Highlands,
Silva Road, Mangalore-575 002.
2. THE MANAGEMENT OF
MANDOVI MOTORS PRIVATE
LIMITED,
Double Road, Opp: to Shanthi Nagar
Bus Stand, Wilson Garden, Bengaluru-
560 027.
2 OS.5917/2015
(D1 By Sri.Pundikai Ishwar Bhat,
Adv.)
(D2 By Sri.H.C.Muni Reddy, Adv.)
*****
i) Date of Institution of the 06.07.2015
suit.
ii) Nature of the suit. Declaration & Injunction.
iii) Date of the
commencement of 01.04.2016
recording of evidence.
iv) Date on which the
judgment was pronounced. 27.07.2016
v) Total Duration Year/s Month/s Days
01 -- 01
***
JUDGMENT
The plaintiff has filed this suit against the defendants for declaration declaring her husband- Sri.Radhakrishnan who is missing for more than 7 years deemed to have been dead and she is entitled for all his service benefits, permanent injunction restraining the defendants from issuing service benefits of her husband to any other person other than her, etc. 3 OS.5917/2015 .2. The averments of the plaint in brief are that:
The plaintiff is the wife of Sri.Radhakrishnan and their marriage was solemnized on 20.12.1989 at Bengaluru. She herself, her husband and son late Narayana Pillai have been permanently residing at Bengaluru and they have a daughter namely Deepthi who is aged about 23 years.
The plaintiff's husband is missing on 08.03.2007 from Bengaluru and she herself and her family members enquired about her husband at work place, relatives' house, friends and native village at Kerala, but his whereabouts not found. The plaintiff has filed a missing complaint with Janodaya Women's Helpline, Koramangala during the month of June 2007. The plaintiff's husband Sri.Radhakrishnan was working as a Supervisor at Mandovi Motors, Anepalya, Hosur Road, Bengaluru for about 10 years. He was not attending the work from 23.01.2007 and the Company has issued a memo dated 25.07.2007 relieving him from the 2nd defendant Company with effect 4 OS.5917/2015 from 25.07.2007 for not attending the work from 23.01.2007. The plaintiff waited for some days that her husband would return and thereafter, lodged a missing complaint with the Adugodi Police Station and the complaint is registered in Crime No.251/2010 dated 09.09.2010. The plaintiff's husband is missing for more than 7 years and not traceable till date. As the plaintiff is in need of funds for education and marriage expenses of her daughter, approached the defendants to claim the Provident Fund amount of her husband and filed Form No.10 C (EPS) and Form No.19 and affidavit dated 01.05.2014 and Report dated 21.05.2014 issued by the Police Inspector, Adugodi Police Station. However, the defendant No.1 by a letter dated No.KN /MN/ RO/Accts.Sec.13/M-147/2014-15, dated 14.07.2014 have not considered the affidavit and sought for a Court decision to settle the claim of the Provident Fund amount.
The plaintiff left with no other option, approached the Court seeking for a direction to the 1st defendant to settle the Provident Fund amount / service benefits of her 5 OS.5917/2015 husband in her favour as her husband is missing for more than 7 years and not traceable. If the claim of Provident Fund not settled by the defendants No.1 and 2, the plaintiff and her daughter would be put to great hardship and injury. Hence, the plaintiff has filed this present suit. .3. In pursuance of suit summons, the defendants No.1 and 2 appeared through their respective counsels. The defendant No.1 has filed written statement. The defendant No.2 has filed reply (written statement). .4. The defendant No.1 in the written statement admitted about informing the plaintiff that the Court order is required to settle the claim and issuance of Letter No.KN/MN/RO ACCTS. SEC.13/M-147/2014-15 dated 14.07.2014 to the plaintiff. Further contended that unless a Court Order regarding death of Provident Fund subscriber is produced, it is not possible to settle the claim in favour of legal heirs of subscriber in a situation where the subscriber has gone missing. This defendant has 6 OS.5917/2015 nothing to say regarding plaint averments and plaintiff has to prove her case in accordance with law. If a decision is rendered in favour of the plaintiff, this defendant has no objection to release the claim made by the plaintiff in accordance with law subject to furnishing the requisite applications in Form 20 for Provident Fund and Form 10D for pension and prays to pass appropriate judgment. .5. The defendant No.2 has filed reply / written statement stating that Sri.Radhakrishnan was an employee and working as a Supervisor at their workshop. He was appointed on 01.05.1995 and they have covered him under Employees Provident Fund under P.F.A/C No.KN/3750/628. Every month, this defendant was recovering P.F., from his monthly salary as per the provisions of Employees Provident Fund Act. He remained absent from the work from 23.01.2007 and since he did not turn up. This defendant has issued notice on 25.07.2007 and terminated his service for long absence as per Standing Order No.20(B) removing his lien on his 7 OS.5917/2015 appointment and he was relieved with effect from 25.07.2007. The service particulars of Sri.Radhakrishnan are as follows:
1. Name Radhakrishna.
2. Date of appointment. 01.05.1995
3. Last working Day 23.01.2007
4. Total years of service 11 years 8 months 23 days.
5. Last salary drawn on Rs.12,930/-.
the date of absence.
6. Advance due if any. Nil.
7. Total amount of Rs.64,246/-
gratuity payable as per the Gratuity Act.
8. P.F. A/c Number KN/3750/628
9. Bonus amount if any Rs.5,672/-
to be paid.
They have no objection to pay Rs.64,246/- being Gratuity amount to the plaintiff and also annual profit sharing bonus account that come to Rs.5,672/- based on his earnings till he remained absent during the financial year 01.04.2006 to 23.01.2007. Regarding her prayer direction to the defendant No.1, this defendant has no comments and has no objections to settle the Provident Fund in favour of the plaintiff. Sri.Radhakrishnan-husband of the plaintiff was a dedicated worker, discharging his duties honestly and efficiently to the satisfaction of the 8 OS.5917/2015 management during his tenure of 12 years till the date of absence. This defendant has no objection whatsoever to settle the gratuity amount and bonus amount due to him and also P.F., amount paid to the Commissioner, Employees Provident Fund's Organization, Mangalore to settle the P.F., amount in favour of the plaintiff. .6. On the basis of above pleadings, the following issues framed:
1. Whether the plaintiff proves that her husband Sri.Radhakrishnan is missing for more than 7 years and not traceable and he deemed to have been died as alleged?
2. Whether the plaintiff is entitled for the reliefs sought for?
3. What Order or Decree?
.7. In support of the case, the plaintiff herself examined as PW.1, got marked documents at Ex.P.1 to Ex.P.8 and closed the side. The defendants have not adduced evidence on their behalf.
9 OS.5917/2015.8. Heard arguments.
.9. My answers to the above Issues are:
Issue No.1 - Affirmative.
Issue No.2 - Affirmative.
Issue No.3 - As per final order for the following:
REASONS .10. ISSUE No.1: The plaintiff contended that her husband-Sri.Radhakrishnan was working as Supervisor at Mandovi Motors, Anepalya, Hosur Road, Bengaluru for about 10 years and he is missing from 08.03.2007 from Bengaluru and inspite of enquiry, his whereabouts not known and he is missing for more than 7 years and he deemed to have been died, etc. In support of the case, the plaintiff herself examined as PW.1 who in her affidavit evidence stated regarding her marriage with Sri.Radhakrishnan, they residing at Bengaluru, her husband working as Supervisor in Mandovi Motors, his missing from 08.03.2007 from Bengaluru, inspite of enquiry not knowing his whereabouts, memo issued by the 2nd defendant Company stating her husband not attending 10 OS.5917/2015 the work, lodging missing complaint with Adugodi Police Station, non-trace out of his whereabouts for more than 7 years, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.8. .11. The plaintiff has produced Election ID Card of her husband at Ex.P.1, Ration Card at Ex.P.2, Election ID Card of herself at Ex.P.3 and these documents supports her contention that Sri.Radhakrishnan was her husband and they residing at Bengaluru. Further the plaintiff has produced Copy of FIR with complaint at Ex.P.4, intimation dated 21.05.2014 by the Police at Ex.P.7 and these documents support her contention regarding lodging missing complaint to Police, Registration of the case and the concerned Police Authority issuing intimation stating about not trace-out of whereabouts of missing person- Radhakrishnan inspite of efforts. From the evidence of plaintiff/PW.1 and above referred documentary evidence go to show that the plaintiff's husband Sri.Radhakarishnan is missing from 08.03.2007 and his whereabouts are not 11 OS.5917/2015 traced out and he is missing for more than 7 years and he deemed to have been died. Hence, the plaintiff has proved that her husband Sri.Radhakrishnan is missing for more than 7 years and not traceable and he deemed to have been died, accordingly, I answered Issue No.1 in the affirmative.
.12. ISSUE NO.2: The plaintiff has filed this suit against the defendants for declaration declaring her husband- Sri.Radhakrishnan who is missing for more than 7 years deemed to have been dead and she is entitled for all his service benefits, permanent injunction restraining the defendants from issuing service benefits of her husband to any other person other than her, etc. The plaintiff has contended regarding approaching the defendants to claim Provident Fund of her husband, the defendant No.1 not considering the same and asking for Court decision to settle the claim, etc. The plaintiff / PW.1 in her affidavit evidence also stated regarding 12 OS.5917/2015 approaching the defendants to claim Provident Fund of her husband, filing Form No.10C and Form 19 for the claim of PF along with affidavit dated 01.05.2014, non-considering the same by the 1st defendant and asking Court decision to settle the claim, etc. It is not in dispute that Sri.Radhakrishnan was working as a Supervisor at Mandovi Motors, Anepalya, Hosur Road, Bengaluru and recovery of P.F. from his monthly salary. The plaintiff has produced Employees Pension Scheme Form at Ex.P.5, Employees Provident Fund Scheme Form at Ex.P.6 and these documents show that she has approached the 1st defendant for P.F. settlement. The plaintiff also produced Letter dated 14.07.2014 of Accounts officer at Ex.P.8, which shows the defendant No.1 has asked latest report from the Police Authority and the Court decision in the matter of final settlement of P.F. and F.P.F. in respect of Sri.Radhakrishnan. The defendant No.1 in his written statement also contended that he has no objection to release the claim made by the plaintiff in accordance with law subject to furnishing applications in Form No.10 & 13 OS.5917/2015 Form No.10D. The plaintiff having proved that her husband Sri.Radhakrishnan is missing for more than 7 years and not traceable and he deemed to have been dead, she is entitled for service benefits-P.F. & F.P.F. claim amount of her husband on production of required documents before the defendants in accordance with law. Hence, the plaintiff is entitled for the reliefs sought for, accordingly, I answered Issue No.2 in the affirmative. .13. ISSUE NO.3: In view of the reasons and discussion on the above Issues No.1 and 2, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed as under:
It is declared that husband of the plaintiff namely Sri.Radhakrishnan is presumed to be legally dead, since he is missing for more than 7 years.14 OS.5917/2015
The plaintiff is entitled for service benefits-P.F. & F.P.F. claim amount of her husband Sri.Radhakrishnan on production of required documents before the defendants in accordance with law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 27th day of July 2016).
(JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF: PW.1 -Shoba W/o. Sri.Radhakrishnan.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF: Ex.P.1 Election ID Card of plaintiff's husband.
Ex.P.2 Ration Card.
Ex.P.3 Election ID Card of the plaintiff.
Ex.P.4 Copy of FIR with complaint.
Ex.P.5 Employees Pension Scheme Form.
Ex.P.6 Employees Provident Fund Scheme Form.
Ex.P.7 Intimation dated 21.05.2014 by the Police.
Ex.P.8 Letter dated 14.07.2014 of Accounts
Officer.
15 OS.5917/2015
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
-NIL-
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
-NIL-
(JINARALAKAR. B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.
16 OS.5917/2015