State Consumer Disputes Redressal Commission
The Director, Handloom & Textiles, ... vs Chandran And Others on 16 September, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.368/2005 (Against order in O.PNo.307/2003 on the file of the DCDRF, Madurai) DATED THIS THE 16th DAY OF SEPTEMBER 2009 1.
The Director Handloom and Textiles Kuralagam, 2nd Floor Chennai 600 108
2. The Assistant Director Handloom and Textiles Ramaia Street, Shenoy Nagar Madurai 625 020
3. The Special Officer Krishnapuram Silk and Cotton A-1880 Weavers Co operative Mr.K. Senthil Kumar Production and Sales Socirty Counsel for Madurai-
625014 Appellants / Opposite parties Vs.
1. Chandran
2. Sasikmar
3. Selvi Siamala Devi
4. Ramkumar All are residing at Mr. S. Ravi No.24, 5th Street, Krishnapuram Colony Counsel for Madurai Respondents/ Complainants M. THANIKACHALAM J, PRESIDENT
1. The opposite parties before the lower forum, having failed in their attempt to resist the claim of the respondents / complainants, successfully have come to this court as appellants.
2. The respondents / complainants approached the lower forum, for the recovery of a sum of Rs.1,20,000/- as compensation etc., on the grounds that the opposite parties/ appellants have committed deficiency in service alleging that the wife of the 1st complainant and the mother of complainants 2 to 4 was the active member of 3rd opposite party society, that she was covered under the Savings and Security Schemes, that due to some ill health for some time she was unable to attend the society as an active member and died on 24.5.2002, that after the death of the member when the legal heirs the nominees have requested the benefits under the Savings and Security Scheme, the same was refused by the respondents as if she was removed from the active membership and therefore the descendents the legal heirs are not entitled to any amount and that the refusal amounts to deficiency in service and therefore they should be directed to pay a sum of Rs.50000/- towards the Savings and Security Scheme amount and Rs.15000/- being the Co-optex grant amount with interest therein at 12% p.a., in addition to Rs.50000/- as compensation for mental agony.
3. This claim was opposed by the appellants jointly and severally contending that the deceased member Sagunthala was not regular from 1994 and therefore she was removed from the scheme on 15.6.95 under Rule 10/1, that thereafter she continued as an ordinary member doing business from 1997 to 2001 and this fact is also known to her husband viz. the 1st complainant, that the removal from the membership was not challenged and this being the position there is no cause of action as well as no deficiency in service, which should follow the complaint deserves to be dismissed.
4. On the above pleadings, taking the case for hearing, the lower forum enquired the matter, perusing Ex.A1to A22 exhibited on the side of the complainants, as well as perusing the affidavits filed on behalf of the parties as mandated by the provisions of the Consumer Protection Act, 1986 (hereinafter called the Act), came to a conclusion that the complaint deserves acceptance to some exent and passed an order on 13.6.2005.
5. The evaluation of the materials revealed to the lower forum that alleged removal of the active member of the society viz.
Shaguthala the wife of the 1st claimant is not established and therefore it should be presumed that she continued to be an active member of the society covered under Savings as well security scheme, that when the deceased member had the balance available in the handloom accounts as if she was removed, amounts to deficiency in service, that despite issuance of notice non-payment of the amounts covered under the above said schemes should be compensated by ordering the appellants / opposite parties to pay the same, thereby concluding, granted an order directing the opposite parties to pay a sum of Rs.50000/- towards the amount of Savings and Security Scheme, to pay a sum of Rs.15000/- being the co-optex grant amount with interest thereon at 12% p.a., and that a compensation of Rs.5000/- for mental agony in addition to directing a payment of Rs.1500/- as cost, which resulted grievance, resulting this appeal.
6. Heard the learned counsel for appellants as well as respondents. Perused the documents relied on as well as written submissions made by them.
7. The undisputed facts are that the 1st complainants wife, deceased Shanguthala, who is the mother of other complainants, was the active member of the 3rd opposite party society viz.
Krishnapuram Silk and Cotton A-1880 Weavers Cooperative Production and Sales Society, that she joined in the Cooperative Handloom Weavers Savings Security Scheme. It is also an admitted fact that even conceded by the opposite parties, she continued so till 15.6.1995. Under the scheme till the member is removed, as contemplated under Rules, they are entitled to certain benefits under the insurance scheme as well as grant by the co-optex. It is also an admitted fact that the said Shagunthala, was suffering from illness and she died on 24.5.2002 at about 2.50 p.m in the hospital, after her admission on 20.5.2002.
8. After the death of the active member, as contended, the complainants being the legal heirs of the deceased Shagunthala approached the authorities concerned, for the welfare measures as contemplated under the Handloom Weavers Savings and Security Scheme, for which there was repudiation by the society viz. the 3rd appellant/ opposite party, as if she was removed from the active membership on 15.6.1995 and thereafter she continued only as an ordinary member, who is not covered under the scheme, which should follow her heirs/complainants are not entitled to any benefit. This defense was negatived by the lower forum on the basis of the materials supplied, which is under challenge. Therefore, it is for the society to make out a case, to our satisfaction that she has been removed from the active member of the society on 15.6.1995. If that is made out, probably the legal heirs may not be entitled to any benefits since there would not have been any subscription or contribution by the deceased Shagunthala, admittedly also since she was suffering from illness and died on 24.5.2002.
9. The only defense as seen from the written version appears to be that deceased Shagunthala was removed from the scheme on 15.6.1995 as per Rule 10 (1), and thereafter she is not coming under the coverage of the beneficial scheme and therefore there is no deficiency in service or cause of action and in this view the petition is liable to be dismissed. In this context we have to see what is Rule 10 (1) (a). Under this Rule, three grounds are contemplated for the removal of a member from participating the scheme. Rule 10 (1) reads as follows:
10. Removal of a member from participating in the scheme:
1) The Board may remove a member from participation in the scheme on any of the following grounds:-
a) If the subscriber stays away from work continuously for a exceeding six months; or
b) If the subscriber is in default in the payment of his subscription for a continuous period exceeding six months; or
c) If he becomes disqualified to continue as a member of the society.
10. Though there are three grounds as said above, it is not the case of the appellants, that the subscriber committed default in the payment of subscription or she was disqualified to continue as a member of the society. If a member/ subscriber stays away from work continuously for exceeding six months, certainly uner the above said Rule viz 10 (1)
(a), the subscriber is liable to be removed.
Here it is an admitted position that deceased Shagunthala was suffering from illness for some time and she could have abstained from the work continuously also, but we do not know what is the period, whether it attracts Rule 10 (1) (a) or not. As seen from Rule 10 (3) a subscriber aggrieved by an order of the board viz. removal, entitled to prefer an appeal to the Assistant Director, within two months from the date of the order, thereby indicating that order should be communicated to the subscriber or the subscriber who has been removed should have adequate knowledge about his or her removal. Then only within two months from the date of order, there is a possibility of appeal. As rightly pointed out by the lower forum, there is no specific provision in the rules contemplating notice to the member before initiating the proceedings under Rule 10. Natural justice requires that before removal, notice also should have been issued. Assuming that since the Rules does not contemplate any mandatory notice, certainly there should be an order removing the member, then intimating the same to the subscriber. If these two are not available, it should be presumed, because of the admitted position, in this case, that the deceased Shagunthala was an active member, she continued so till her death, despite the fact that she was admitted in the hospital and died later.
11. The opposite parties have not filed any documents in order to prove that actually deceased Shagunthala was removed from the membership. Prior to the filing of the case there was exchange of letters.
As seen from Ex.A8, when the 3rd opposite party had initiated proceedings for the removal of certain members for the non-payment of subscription, they have issued notice on 28.8.2002, wherein they have attached a list also indicating the members name against whom action is sought to be initiated. Similarly, if Shagunthala has been removed alongwith others as stated in the written version, they should have issued this kind of notice attaching the list also, which is not made available either for the perusal of the lower forum or for the perusal of ours. Only in the letter issued by the Assistant Director, dt.19.8.2002, there is a mention that as per the resolution passed by the 3rd respondent on 15.6.1995, the deceased Shagunthala was removed from the scheme and the same was also published by affixture in the notice board of 3rd opposite partys society. Here also it is not the case of the appellants, that notice was served to the deceased Shagunthala, when she was alive. If order has been passed as claimed in Ex.A7, nothing would have prevented the authorities concerned, to produce the same, which should be available with them. Similarly they also should have produced the affixture order or the actual communication to the individuals concerned as the case may be.
In the absence of such order, and in the absence of proof that deceased Shagunthalas name was also included in the alleged board resolution for the removal, of the members, it is very very difficult to accept the case of the appellant as if on 15.6.1995 the deceased Shagunthala was removed from the membership for staying away from work continuously for a period exceeding six months. For the non-production of the order of removal and for not serving the copy of removal notice to the members, an adverse inference has to be drawn as if no order has been passed and if any order has been passed that should be without the knowledge of the members concerned, thereby depriving their valuable right to appeal and in this view that order if any, the same should be labeled as ipso facto null and void. The lower forum has properly analysed the above facts, placing reliance upon the precedent also as seen from paragraph 10 of its judgement and has come to a correct conclusion that there was deficiency in service and Shagunthala was not removed from the membership and in this view being an active member, covered under the schemes, her heirs are entitled to claim the insurance amount of Rs.50000/- as well as cooperative welfare fund of Rs.15000/-, in which we are unable to see any irregularity warranting our interference.
10. The lower forum has ordered interest 12% p.a., which appears to be on higher side, that too when granted compensation for mental agony, quantifying the same at Rs.5000/-. Considering the prevailing rate of interest we are inclined to reduce the rate of interest from 12% to 9% in addition to reducing the compensation also from Rs.5000/- to Rs.2000/- that too in view of the fact that interest is granted for non-payment of the amount immediately. With these modifications the appeal has to be disposed.
11. In the result, the appeal is disposed with the following modifications, confirming the order of the district forum, directing the payment of Rs.50000/- and Rs.15000/-, with interest thereon only @ 9% p.a., and directing the 3rd opposite party to pay a sum of Rs.2000/- as compensation, confirming the cost as ordered by the lower forum and ordering no cost in this appeal.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Societies