State Consumer Disputes Redressal Commission
Sh. D.R. Sood vs Standard Chartered Bank Ltd. & Anr. on 27 July, 2009
H
H.P. STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, SHIMLA.
Appeal No. 350/2007.
Date of Decision 27.07.2009.
In the matter of:
Shri D.R. Sood son of Shri
N.R. Sood resident of
Uma Niwas, Upper
Kaithu, Shimla.
Appellant.
Versus
1. Standard Chartered Bank
Limited through its Manager,
N.R. (Northern Region), Standard Charted
Bank, Cannought
Circus, New Delhi 110001.,
2. Standard Chartered Bank
Limited, 23-25 Mahatma
Gandhi
Road, Fort
Mumbai through its Area
Manager.
Respondents.
Honble Mr.
Justice Arun Kumar Goel (Retd.), President.
Honble
Mrs. Saroj Sharma, Member.
Honble
Mr. Chander Shekher Sharma, Member.
Whether approved for reporting? No.
For the
Appellant: Mr. Deepak Bhasin, Advocate.
For the Respondents: Mr.
Janesh Gupta, Advocate vice
Mr. Neeraj Gupta, Advocate.
O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
Heard learned counsel for the parties and with their assistance record of the complaint file has also been examined.
2. Admitted facts giving rise to this appeal are, that the appellant was originally an employee of ANZ Grindlays Bank plc. He retired from its Shimla Branch. This bank was taken over by respondent No.1.
Admissible claims of all the retired employees of ANZ Grindlays Bank plc are/were being paid by respondent No.1 including pension and medical reimbursement claims.
3. Now the dispute starts which have given rise to this appeal. As per appellant he was hospitalized at Amritsar and he lodged a claim of Rs. 7138.14 paise for being reimbursed by the respondents. His further case is, that he lodged the claim, and bills were submitted to one Mr. Karan Bhalla, General Manager of the Standard Chartered Grindlays Bank Ltd., at Bombay with a prayer to reimburse him at an early date. This stand of the appellant is reinforced from Annexure C-1, photostat copy of e-mail sent by Sharma, Brahm Prakash to [email protected], on the subject hospitalization claim. It was sent on 25.6.2002 at 2:10 PM.
Receipt of the claim of the appellant was acknowledged by the Standard Chartered Grindlays Bank, Shimla branch vide Annexure C-2 on 26.6.2002. In this document it is also mentioned that the same has been e-mailed and sent to Mr. Mahadeo Mudras at Mumbai when finally his claim was not settled, he filed complaint No. 566/2003.
4. When put to notice, respondents like cantankerous litigants took up all possible defences available to them under the sun, instead of acting and behaving like a model employer, to deny even the amount which according to them was legitimately due and outstanding due to paid by them.
5. This observation we are making keeping in view their stand that was taken up during the course of hearing of this appeal. In this behalf order passed on 23.4.2009 is extracted hereinbelow:-
It was pointed out by Mr. Bhasin, learned Counsel for the appellant that cheque No. 212069 dated 24.5.2008 in the sum of Rs. 6,458/- favouring the appellant was delivered to him on 17.11.2008, as such it could not be encashed. This cheque has been handed over before us to Mr. Neeraj Gupta, learned Counsel for the respondents.
Today another cheque of the same amount favouring the appellant bearing No. 126760 dated 23.2.2009 was produced by Mr. Neeraj Gupta. Learned Counsel for the appellant refused to accept the same on the plea that the claim made in Complaint No. 566/2003 was in respect of treatment that his client had undergone at Amritsar and not in the city of Agra from the hospital as well as for the disease mentioned on the back side of the cheque dated 23.2.2009. Further according to Mr. Bhasin, his client is entitled to more amount and would accept the amount in respect of the treatment that he had undergone at Amritsar. In these circumstances the cheque dated 23.2.2009 has also been returned to Mr. Gupta.
He has undertaken to get the cheque rectified so as to satisfy the claim of the appellant which is subject matter of Complaint No. 566/2003 which has been dismissed by the District Forum below.
At this stage Mr. Gupta also submitted that though appellant is claiming a sum of Rs. 7,138/-, however, his client is only liable to pay Rs. 6,458/-. We say nothing in this behalf and this question will be adjudicated after the cheque of the amount which the respondents admit is paid to the appellant.
Let needful be done and case is ordered to be listed on 15.5.2009 when this appeal will be taken for final hearing as well.
6. A perusal of the aforesaid order clearly shows that against the claim of Rs. 7,138/-, respondent unequivocally admitted that the appellant is entitled to Rs. 6,458/- only. Since cheque dated 23.2.2009 tendered was not in respect of treatment that the appellant had gone at Amritsar, as such the cheque offered on behalf of the respondent was returned and it was undertaken to get the cheque rectified so far as claim of the appellant which was subject matter of the complaint No. 566/2003 out of which this appeal has arisen.
7. It is necessary as well as appropriate to notice that the stand of the respondents taken up today by their learned counsel that though they had written detailed letter in this behalf to the respondents, however cheque is not sent till date as is clear from the letter dated 3.6.2009.
For ready reference this letter is taken up and is extracted hereinbelow:-
Mr. K Kalyan Raman, Officer, Human Resources Benefits & Fund Administration Standard Chartered Bank 19,N S Road Kolkata 700 001 Dear Sir, This is to inform you that as discussed with you regarding the details of Mr. Des Raj Sood GBSMS010157A illness, please be informed that upon receipt of the claim documents from the member we forwarded the said claim file to the underwriting insurance company being NIC DO IX, Mumbai, since at the relevant time the claims were directly settled by the insurance companies and the said claim file is still lying with them.
Upon receipt of your intimation we have investigated and found that the file is not with us as it has been sent to NIC DO IX and are thus unable to make any comment on this issue.
Thank you, Yours truly, Sd/-
Sunita Banerjee Manager Relationship
8. When hearing in this appeal commenced, learned counsel for the respondents raised a preliminary objections regarding maintainability of the complaint, as well as the present appeal. Per him there was no consumer dispute between the parties, because neither the appellant is a consumer within the meaning of Section 2(1)(d) nor his clients were rendering any service within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. Further according to learned counsel for the respondents only course open to the appellant, if any for settlement of his claim as per law is to approach the ordinary civil court. With a view to support this submission, learned counsel referred to the decisions set out in the reply while contesting the claim. Thus according to him impugned order is perfectly legal being in consonance with the provisions of the Consumer Protection Act, 1986 and the same deserves to be upheld. He prayed for accordingly.
9. While praying to set aside the impugned order and allowing the complaint, Mr. Bhasin learned counsel for the appellant submitted that appellant was employee of the erstwhile ANZ Grindlays Plc at its Branch at Shimla from where he retired as far back as in 1992. Further according to him, appellant was receiving all his pensionery/retiral benefits at Shimla. In these circumstances, medical reimbursement being a part of his retiral benefits, which he was getting at Shimla from the respondents, Fora at Shimla under the Consumer Protection Act, 1986 had the jurisdiction. With a view to strengthen this submission, Mr. Bhasin laid great emphasis on Annexure C-1 and C-2. Thus according to him the impugned order deserves to be set aside and complaint allowed.
10. We shall first take up the plea of jurisdiction raised on behalf of the respondents. As already observed appellant retired from Shimla where he was getting all his retiral benefits. That being the position, we are of the view that the appellant could maintain the complaint before the District Forum below. Now comes the question whether the relationship of consumer and service provider is there between the parties or not. Appellant had submitted the medical bills for reimbursement. Liability to reimburse those is not under challenge. To the contrary as per order extracted hereinabove, it was conceded on behalf of the respondents, but not for the full amount claimed. In the ordinary course of things, as well as with a view to minimize the litigation and above all as a model employer respondents were supposed, as well as expected to act in a fair, reasonable and just manner, whereas they have chosen to take all technical pleas to thwart even the admitted claim of the appellant. It is by now well settled when technicalities are pitted against grant of substantial justice as well as for doing complete justice between the parties, former will give way to the latter. Following this dictate of law, as well as looking to the beneficial purpose of the Consumer Protection Act, 1986, we hold that Forum had the jurisdiction and relationship of consumer and service provider is there, as such plea urged to the contrary on behalf of the respondents is hereby rejected.
11. Faced with this situation learned counsel for the appellant submitted that in the face of the decisions mentioned in preliminary objections 3A to 3E of the reply to the complaint, Fora lacked jurisdiction to entertain muchless try the complaint.
12. First decision relied upon was of Indian Medical Association Vs. V.P. Shantha and others, AIR 1996 SC 550. On an overall examination of this decision, we are of the view that its ratio is not applicable to the facts of the appeal before us.
13. Next decision relied upon was in the case of Central Bank of India Vs. Dil Bahadur Singh, III (1993) CPJ 319 (NC). This decision is distinguishable as it related to non release of provident fund by the employer of its employees who had not vacated house despite assurance, as such no benefit can be derived by the appellant from it.
14. Likewise in the case of Haryana State Electricity Board Vs. Bhalle Ram, I (1994) CPJ 207 (NC). The dispute between the parties in this case related to the return of certain compulsory deposits, therefore on these facts National Commission held that there was no subsisting consumer dispute and rejected the claim of the employee.
15. Other case relied upon on behalf of the complainant is of Manorama Tiwari Vs. State Govt. of Rajasthan & Anr., II (1992) CPJ 500 (NC). In this case dispute was regarding payment of salary and allowance to the husband of the Manorama Tiwari, she was held not to be consumer.
16. We have not been able to persuade ourselves to follow the view taken by Rajasthan and Orrisa State Commission.
17. Assuming everything to be correct including the challenge to the jurisdiction of the Foras in the State of Himachal Pradesh to entertain and try the complaint, even then keeping in view the meagre sum involved in this case, should or should not the respondents be allowed to contest the claim more especially in the light of the above extracted order. In the circumstances of this case, in our opinion if the appellant is allowed to file a regular suit it will multiplying the litigation which would be not in consonance with the public policy. Thus we think that this appeal deserves to be allowed by rejecting all the pleas raised on behalf of the respondents while challenging the jurisdiction of the Fora under the Act to entertain the complaint.
18. National Commission in subsequent decisions to those relied upon on behalf of the respondents has held that non payment of provident fund tantamounts to deficiency in service. This was the view taken in the case of The Provident Fund Commissioner Vs. Sulekha 2002 NCJ 676 (NC). Similarly a four members bench of the National Commission in the case of Regional Provident Fund Commissioner Vs. Smt. Rahuma Beevi & Ors., 2003 NCJ 686 (NC) held that pensionary benefits, EPF contribution, pension not granted under EPF scheme tantamounts to service and thus its non grant on the plea that the complainant should have retired when pensionary benefits was not given. This is another reason not to follow the earlier decisions relied upon by the respondents. Regarding non payment of employees provident fund to an employee of provident fund scheme under the Employees Provident Fund and Miscellaneous Provisions Act, 1952 was held to be a service, as such a consumer dispute. This is what was held in its later decision by the Honble Supreme Court in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, AIR 2000 SC 331.
19. At this stage catching last straw, learned counsel for the respondents urged that his clients do not have any office within the territory of Himachal Pradesh, therefore the complaint was not maintainable. For the view that we have taken on the facts of this case as well as also keeping in view the meagre sum involved in this appeal, this plea is hereby rejected.
20. No other point is urged.
In view of the aforesaid discussion we are of the view that District Forum below was not justified in dismissing the complaint and the impugned order deserves to be set aside and as a result of it, the complaint is allowed and consequently appellant is held entitled in the sum of Rs. 7,138/- with 9% interest from the date of filing of the complaint till the date of realization of payment/deposit whichever is earlier, Rs. 5,000/- is levied as costs of this appeal as well as of complaint. This order is to comply with by the respondents by or before 31.8.2009, failing which the interest payable will be @ 12% per annum on Rs. 7138/-.
Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.
Shimla, July 27, 2009. ( Justice Arun Kumar Goel ) (Retd.) President.
(Saroj Sharma) Member.
( Chander Shekher Sharma ) /Karan/ Member.