Regional Director, E.S.I. Corporation vs T.I. ULAHANNAN

THE 3rd opposite party in O.P. No. 131/91 on the file of the District Forum, Kottayam is the appellant.

THE complainant is an employee working under M/s. Marikar (Motors) Ltd., Thiruvananthapu ram and is eligible for the services of E.S.I. Department as he is a member of the ESI Scheme. THE premium was deducted from the salary by the employer and regularly remitted to the ESI Department. Earlier the complainant was working in the Trivandrum Office and he was getting services of the ESI Department. He was transferred to Kottayam and the 1st opposite party accorded his sanction for the transfer of the Medical Record Envelop. It is the case of the complainant that the relevant papers did not reach Kottayam as they were not despatched by the 2nd opposite party and he could not avail the ESI facility since 1988 which resulted in heavy expenditure to the complainant towards medical treatment. He also alleged even though facility was not provided, premium were deducted and paid to the Department regularly. It is in these circumstances the complainant filed this complaint claiming compensation. The 1st and 2nd opposite party filed objection contending that the complainant is not a consumer and the opposite parties were not rendering any service for consideration and it was the 3rd opposite party who collected contribution from the employees. The 3rd opposite party also filed objection contending that the authority to provide medical facility for the insured persons and their family members, in the State is the State Government and the Medical facilities under the ESI Scheme are administered by the 1st opposite party and the transfer of M.R.E. is to be effected by the 2nd opposite party. It is further stated that if any dispute arises on any matter, such dispute shall be decided by the Employees Insurance Court.

District Forum held that the complainant is a consumer since the premium were collected from the complainant. It was also held that the remedy available under Consumer Protection Act is available to the complainant. It also held that the provisions contained in Section 175(1) Gof the E.S.I. Act I does not stand in the way of granting relief under the Act as this is in addition to the provisions contained in any other enactments. The District Forum also found the 2nd opposite party committed deficiency in not sending the records to Kottayam and it was the reason for refusing the medical facility to the complainant at Kottayam. In that view the District Forum passed an order holding that the 3rd opposite party is liable to pay Rs. 2,000 /to the complainant towards compensation.

IN this appeal, the only point raised by the Learned Counsel for the appellant is that the District Forum having found that the 2nd opposite party committed deficiency in service is not transfering relevant records, there was no justification in fastening liabilities on the 3rd opposite party. At the First though the contention would appear to be attractive. On proper scrutiny, it can be seen that it is the 3rd opposite party who is liable'' to render service to the complainant as it was collecting the premiums from the complainant. It is the service of the 3rd opposite party that is hired by the complainant for rendering the service. As there is failure in rendering the service, the 3rd opposite party cannot be heard to say that he had no control over the 2nd and 1st opposite parties who are employees of the State Government. Viewed in that light, we do not find any error in the order passed by the District Forum fastening the liability on the 3rd opposite party. It is for the 3rd opposite party to see that the officers who are working in various Hospitals rendering Medical Services under the ESI Act promptly discharge their duties so as to enable the beneficiaries of the scheme to enjoy the service. If the rendering of service to the 3rd opposite party happens to be denied by reason of any commission or omission on the part of the officers working in the hospitals, opposite party 3 cannot put forward defence against the claim that he is not the person to render service. The appeal fails and it is accordingly dismissed. However, we direct the parties to bear their respective costs. Appeal dismissed.