National consumer disputes redressalcommission new delhi



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O R D E R 


JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The petitioner is a dealer in medicines, who had obtained some cash credit facility from the State Bank of India, Ranaghat Branch in District Nadia, to the extent of Rs. 6 lakhs, by hypothecating the business stock with the said bank.  He had also obtained an insurance policy with the respondent, National Insurance Co. Ltd.  for the period from 21.03.2005 to 20.03.2006 for a sum of Rs. 8 lakhs.  The case of the complainant/petitioner is that during the subsistence of the aforesaid policy, a dacoity took place in his business premises when the keys of the godown were snatched at gun point.  The matter was reported to the police vide GDD dated 29.07.2005 and later criminal case was also instituted before Ld. CJM, Krishnanagar, who has taken the congnizance and taken action against the accused persons namely Partha Mustafi, Benu Dutta and Sujit Sarkar.  The alleged loss was intimated to the Insurance Company on 18.08.2005.  As the Insurance Company failed to pay the claim, the complainant/petitioner approached the District Forum, by way of a complaint dated 07.07.2008, which was dismissed as not maintainable. 

(2)     Being aggrieved from the dismissal of his complaint, the petitioner preferred an appeal before the State Commission.  The said Commission, vide order dated 29.03.2010 set aside the order of the District Forum with a direction to the Insurance Company to appoint a surveyor and investigate the matter.  Pursuant to the said direction, a surveyor was appointed by the Insurance Company, who submitted his report to the Insurance Company on 25.06.2010.  The claim was repudiated by the Insurance Company vide its letter dated 15.07.2010, inter-alia, on the ground that the alleged theft/dacoity had not been established.  Being aggrieved from the dismissal of his complaint, the petitioner approached the State Commission by way of an appeal. The said appeal having been dismissed vide order dated 21.04.2013, the complainant/petitioner is before us, by way of this revision petition.

(3)     The contention of the learned counsel for the complainant/petitioner is that when the matter was remanded back to the District Forum by the State Commission, no presence was put in by the Insurance Company and despite that, the complaint came to be rejected by the District Forum.  He also submits even the report of the surveyor was not submitted by the Insurance Company to the District Forum. 

(4)     The first question which comes up for consideration is as to whether the complainant/petitioner has failed to prove the alleged theft.  Admittedly, no FIR was registered when the theft is alleged to have taken place on 29.07.2005, though an information was given to the police and recorded vide GDD No. 1685.  The copy of the aforesaid GDD has not been placed on record by the petitioner and therefore, we do not have the benefit of going through the said document.  However, it is not a dispute that the police did not register an FIR on the complaint alleged to have been made by the petitioner.

(5)     A perusal of the letter dated 15.07.2010, whereby the claim was repudiated by the Insurance Company would show that when the first surveyor appointed by the Insurance Company namely Mr. S. N. Ghosh visited the spot on 20.08.2005, he was given to understand by the local residents that there was some dispute between the partners of the shop where the dacoity/burglary was alleged to have taken place.  It, further, shows that in a minute inspection of the site from outside, the surveyor, Mr. S. N. Ghosh did not find any trace of broken doors, windows or walls all around the shop to prove a forceful entry by burglars.  On local inquiry from the neighbours, it was revealed that no such burglary or theft had occurred in the premises of the petitioner.  On the basis of the report submitted by second surveyor Mr. Saradindu Patranabis, who was appointed pursuant to the order of the State Commission, the claim was repudiated on the following grounds:-

1.   Neither any burglary took place on 29/07/2005 nor there was any stock loss as alleged.

 


2.      It was a family dispute where one of the two partners (brothers) wanted to have complete control over the family business.

 

3.      The insured remained doubtful if there was any material loss or not.  The Police could not recover the keys which was allegedly snatched by the co-partner and as such it could not be verified whether there was any material loss at all.  Ranaghat ACJM had disposed of the criminal proceedings u/s 379 IPC in case no. 195 of 2005 with the observation that the dispute was civil in nature.  Later under the direction of Hon’ble High Court, Ld. ACJM Ranaghat got the locks broken and the articles were finally seized by the police.”

 

(6)     It is thus quite obvious that though the report of the surveyor was not before the District Forum, the gist of the report of the previous surveyor Mr. S. N. Ghosh as well as the second surveyor Mr. Saradindu Patranabis were available to it from the repudiation letter dated 15.07.2010.


(7)     The District Forum, accepting the repudiation of claim by the Insurance Company returned a finding of fact that no dacoity/burglary actually took place on 29.07.2009, as was claimed by the petitioner/complainant.  The aforesaid finding of the District Forum has been accepted by the State Commission by dismissing the appeal filed against the said order.  The scope of a revision petition being extremely limited, we cannot go to the aforesaid concurrent finding of fact unless it is shown to be perverse in nature.  In the facts and circumstances of the case, it cannot be said that no reasonable person, acting on the material available to him could have taken the view, which the District Forum took in this case.  Therefore, the aforesaid finding of fact cannot be said to be perverse in nature.  During the course of arguments, the learned counsel for the petitioner conceded that one of the accused in criminal case namely Mr. Partha Mustafi, is the brother of the complainant.  We also take note of the fact that thought the alleged dacoity/burglary took place on 29.07.2005, the Insurance Company was intimated, after 20 days, on 18.08.2005 and there is absolutely no justification for not intimating the Insurance policy immediately after the alleged burglary/dacoity took place.  It was mandatory for the petitioner/complainant, under the terms of the policy to inform the Insurance Company immediately after the said burglary/dacoity took place.  That having not been done, the suspicion is created with respect to the authenticity of the claim alleged by the complainant/petitioner.  On verification by the  second surveyor, it has been found to be incorrect. 

(8)     For the reasons stated in above, we find no good reason to interfere with the views taken by the State Commission and the District Forum.  The revision petition is dismissed with cost assessed at Rs. 10,000/-, to be deposited in the Consumer Fund, within 4 weeks.

………………………………


V. K. JAIN J.

PRESIDING MEMBER

……………………………….

DR. B.C. GUPTA
MEMBER

PSM/6

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO.2864 OF 2014


(From the order dated 17-12-2013 in FA No.1430 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)

WITH I.A.No.4724 OF 2014 & I.A.No.4725 OF 2014 (For stay, condonation of delay)
Regional Provident Fund Commissioner, Bellary Through Asstt. P.F. Commissioner-Legal, Delhi 28-Bhavishya Nidhi Bhawan Wazirpur Industrial Area, Delhi-110052

                                                                               …..Petitioner

Versus

Shri Mohammad Khasim S/o-Hussain Sahab R/o- H. No. 212, Ward No. 22, Opp. Akshaya General Store J.P. Nagar, Hospet- 583103



                                                   …..Respondent

 

REVISION PETITION NO.2865 OF 2014


(From the order dated 17-12-2013 in FA No.1431 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)

WITH I.A.No.4726 OF 2014, I.A.No.4727 OF 2014 (For stay, condonation of delay)
Regional Provident Fund V/s Shri D. Daniel
REVISION PETITION NO.2866 OF 2014

(From the order dated 17-12-2013 in FA No.1432 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)


WITH I.A.No.4728 OF 2014, I.A.No.4729 OF 2014 (For stay, condonation of delay)
Regional Provident V/s Shri M. Muralidhar Rao
 

REVISION PETITION NO.2867 OF 2014
(From the order dated 17-12-2013 in FA No.1433 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)

WITH I.A.No.4730 OF 2014, I.A.No.4731 OF 2014 (For stay, condonation of delay)
Regional Provident Fund V/s Smt. R. Subhadra

REVISION PETITION NO.2868 OF 2014
(From the order dated 17-12-2013 in FA No.1434 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)

WITH I.A.No.4732 OF 2014, I.A.No.4733 OF 2014 (For stay, condonation of delay)
Regional Provident Fund V/s Shri Bheemalingappa
 

REVISION PETITION NO.2869 OF 2014
(From the order dated 17-12-2013 in FA No.1435 of 2013 of Karnataka State Consumer Disputes Redressal Commission at Bangalore)

WITH I.A.No.4734 OF 2014, I.A.No.4735 OF 2014 (For stay, condonation of delay)
Regional Provident Fund V/s Shri R. Subbaiah

 

BEFORE:



HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER

 

For the petitioner                   :         Mr. Shivanath Mahanta, Advocate                 



 

28-07-2014

ORDER

JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The respondents/complainants were employees of Tungabhadra Steel Products Ltd.. The complainants got enrolled under the Employees Provident Fund Scheme 1952 and consequently became members of the Employees Family Pension Scheme 1971. They had been making contribution under the aforesaid Scheme, till the time a new scheme called Employees Pension Scheme 1995 came into force. On coming into the force of the 1995 Scheme, the complainants opted for the said scheme. On their exercising the said option, the contributions which they had made under the Employees Family Pension Scheme 1971 were transferred to the 1995 Scheme. The complainants thereafter continued to make contributions to the Employees Pension Fund under the 1995 Scheme, till the date they superannuated.

2.      Para 10 of the Employees Pension Scheme, 1995, before it came to be amended with effect from 24-07-2009, read as under:

          “10. Determination of pensionable service. – (1) The pensionable service of the member shall be determined with reference to the contributions (received or receivable) on his behalf in the Employees’ Pension Fund.

          (2)     In the case of the member who superannuates on attaining the age of 58 years, and/or who has rendered 20 years pensionable service or more, his pensionable service shall be increased by adding a weightage of 2 years.”

 

3.      The complainants, on their retirement from service were not given weightage of two years in terms of Sub-Para (2) above, for the purpose of calculating the pensionable service. Being aggrieved from the failure of the petitioner to give the aforesaid weightage and consequently fixing lesser pension, the complainants approached the Bellary District Consumer Disputes Redressal Forum (for short, the District Forum) for redressal of their grievance.



4.      The complaints were resisted by the petitioner primarily on the ground that Para 10 of the Scheme covers only the membership rendered under the 1995 Scheme and does not include the membership under the  1971 Scheme, for the purpose of giving weightage of two years, while calculating the pensionable service.

5.      The District Forum vide its order dated 23-07-2013 ruled in favour of the complainants and directed the petitioner to refix their pension as per Para 12(3) read with Para 10 (2) of the Employees Pension Scheme 1995 by giving weightage of two years to each of the complainants and pay the pension accordingly from the date as applicable to each case. It was further directed that the arrears will carry interest at the rate of 6% p.a. from the date of the order till the payment was made. The petitioner was also directed to pay Rs.1,000/- each as cost of proceedings to each of the complainants.

6.      Being aggrieved from the order of the District Forum, the petitioner approached the Karnataka State Consumer Disputes Redressal Commission (for short, the State Commission) by way of separate appeals. The appeals having been dismissed, the petitioner is before us by way of these revision petitions.

7.      A bare perusal of the Sub Para (2) of Para 10 of the 1995 Scheme would show that it applies to every member who had rendered 20 years or more of pensionable service. Sub Para (1) of Para 10 leaves no doubt that the pensionable service is to be determined with reference to the contributions received or receivable on behalf of the concerned employee in the ‘Employees Pension Fund’. Therefore, the answer to the question as to whether the services rendered by the complainants, before they were enrolled as the members of the 1995 Scheme would be counted for the purpose of determining their pensionable service or not would depend upon whether they had made contributions to Employees Pension Fund, for 20 years or more, before their superannuation or not.

8.      The complainants in these matters namely Mr. Mohammad Khasim, Mr. D. Daniel, Mr. Muralidhar Rao, Mrs. R. Subhadra, Mr. Bheemalingappa and Mr. R. Subbaiah retired on 30-11-2006, 03-04-2003, 16-02-2002,     30-11-2006, 07-05-2004 and 23-02-2002 respectively. They had joined the service in the year 1977, 1973, 1978, 1986, 1975 and 1974 respectively. At the time of superannuation they were 53 years old, 53 years old, 51 years old, 51 years old, 54 years old and 52 years old respectively. Admittedly, they had not made contribution under the 1995 Scheme for 20 years or more, by the time they superannuated. But, it is not in dispute that if the contributions which they had made under the 1971 Scheme are considered, they had made contributions for 20 years or more. Therefore, the real question which arises for our consideration is whether the contributions made by them under the 1971 Scheme can be said to be contributions received or receivable on their behalf in the Employees Pension Fund or not. Para 2 (xiv) of the 1995 Scheme defines ‘Pension Fund’ to mean to Employees’ Pension Fund set up under Sub Section (2) of Section 6(A) of the Employees’ Provident Funds & Miscellaneous Provisions Act, 1952. The Scheme does not define the pension fund to mean a fund set up under the provisions of the 1995 Scheme. Therefore, the contributions made to every pension fund which had been set up under the provision of Sub-Section (2) of Section 6(A) of the Act, would qualify for the purpose of determining the pensionable service in terms of Sub Para (1) of Para 10. It can hardly be disputed and has not been disputed that the fund to which the complainants were contributing before they opted for the 1995 Scheme was also a fund set up under the provisions of Sub-Section (2) of Section 6(A) of the Act. It is also an admitted case of the parties that the contributions, which the complainants had made to the said fund under the 1971 Scheme were transferred to the fund which was set up under the 1995 Scheme. Therefore, considering the provisions of the scheme, it is evident that the contributions which the complainants had made under the 1971 Scheme will have to be taken into consideration for the purpose of determining their pensionable service in terms of Para 10 of the scheme. As a necessary corollary they would also be entitled to the weightage of two years, in terms of Sub Para (2) of Para 10, provided they had either put in 20 years of service or they had turned 58 years of age at the relevant time. Therefore, we cannot find any fault with the order of the District Forum which has been maintained by the State Commission, in directing the petitioner to give weightage of two years to the complainants, while determining their pensionable service in terms of the Para 10 of the 1995 Scheme.

9.      The learned counsel for the petitioner has drawn our attention to the Para 12 (3) & (4) of the Scheme, which read as under:

(3)    In the case of an existing member in respect of whom the date of  commencement of pension is after the 16th November, 2005,-

          (i)    superannuation or early pension shall be equal to the aggregate  

                of –


(a)  pension as determined under sub-paragraph (2) for the period of pensionable service rendered from the 16th November, 1995 or Rs.635 per month whichever is more;

(b) past service pension shall be as given below:

          The past service pension payable on completion of 58 years of age on the 16th November, 1995.



S. No.        

Years of past service

Salary upto

Rs.2,500/- per

month 

 


Salary more

than Rs.2,500/-

per month

 


 

(1)

(2)

(3)

(i)

Upto 11 years

80

85

(ii)

More than 11 years but upto 15 years

95

105

(iii)

More than 15 years but less than 20 years


120

135

(iv)

Beyond 20 years

150

170

         

          The amount under column (2) or column (3) above, as the case may be, shall be multiplied by the factor given in Table ‘B’ corresponding to the period between the 16th November, 1995 and the date of exit to arrive at past service pension payable.

          (ii) The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.800/- per month, provided the eligible service is 24 years.

          Provided further, if it is less than 24 years, the pension as computed above shall be reduced proportionately subject to a minimum of Rs.450/- per month.

 

          (4)     In the case of an existing member and in respect of whom the date of commencement of pension is between the 16th November, 2000 and the 16thNovember, 2005, -


          (i)      superannuation or early pension shall be equal to the aggregate of –

          (a)     pension as determined under sub-paragraph (2) for the period of service rendered from the 16th November, 1995 or Rs.438 per month whichever is more;

          (b)     past service pension is provided in sub-paragraph (3).

          (ii)      The aggregate of (a) and (b) calculated as above shall be subject to a minimum of Rs.600 per month, provided the eligible service is 24 years:

          Provided further, if it is less than 24 years the pension shall be proportionately less subject to the minimum of Rs.325 per month.”                                                

10.    The contention of the learned counsel is that since they are also required to give pension for the past service, it would amount to giving double benefit to the employees in case weightage of two years in computing the pensionable service is also given to them. We, however, find no merit in this contention. In terms of the Sub-Para (2) of Para 12, the pension is to be calculated by multiplying the pensionable salary with pensionable service and dividing it by 70. Since the pensionable service would be calculated in terms of Para 10, the weightage of two years would have to be given to the complainants for the purpose of calculating the pension in terms of Sub Para (2) of Para 12. The provisions of the Scheme being such, we are unable to take a contrary view of the matter. Even otherwise if two interpretations of the provisions of the Scheme are possible, we must necessarily lean in favour of the interpretation which is favourable to a pensioner, though, in the case before us we are quite clear that Para 10 of the Scheme is not capable of more than one interpretations.

11.    Sub Para (3) of Para 12 which deals with the case of the employees who exit after 16-11-2005 provides for payment of superannuation or early pension which is to be calculated in terms of clause i (a) of the said Sub-Paragraph and past service pension which is to be calculated as per table given in the said Paragraph. The aforesaid table deals only with those cases where the past service pension is payable on completion of 50 years of age on 16-11-1995. None of the complainants before us had completed 50 years of age on 16-11-1995.

          Sub Para (4) of Para 12 of the 1995 Scheme deals with the case of those employees in respect of whom the date of commencement of pension is between the 16-11-2000 and 16-11-2005. In their case also pension has to be determined in terms of Sub Para (2) of Para 12 and their past service pension has to be determined in terms of Sub-Paragraph (3). As noted earlier, the table given in Sub-Para (3) of Para 12 refers to those cases where past service pension became payable on completion of 50 years of age on 16-11-1995. Therefore, reliance upon the aforesaid Sub-Paragraphs is misplaced.

12.    For the reasons stated hereinabove, we find no merit in the aforesaid revision petitions and the same are hereby dismissed.

 

..…………………………..

(V.K. JAIN, J.)
PRESIDING MEMBER

 

……………………………..


(DR. B.C. GUPTA)
MEMBER

rk


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 1308 OF 2013

(From the order dated 21.1.2013 in First Appeal No.1366/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

 



Smt. Paramjit Kaur Widow of Shri Hardev Singh R/o Ward No.18 Jawahar Nagar, Behind Dera Mansa Dass Mandi Dabwali, Distt. Sirsa (Haryana)

… Petitioner

                                                 Versus

1. Life Insurance Corporation of India Chautala Road Mandi Dabwali Distt. Sirsa (Haryana) 

2. Life Insurance Corporation of India Jeevan Parkash Building Unit-II, Sector 17-B Chandigarh.

 ...  Respondents

 BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON'BLE MR. SURESH CHANDRA, MEMBER


 

For the Petitioners                : Mr. Rohit Kataria, Advocate                                                

For the Respondents           : Mr. Neeraj Gupta, Advocate 

Pronounced on :  28th July, 2014 




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