KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 112/01

JUDGMENT DATED: 18.12.2009

PRESENT

SRI.M.V.VISWANATHAN              : JUDICIAL MEMBER

K.M.Abdu,                                         : APPELLANT

S/o Marakkar, Arafa Manzil,

Vengara.P.O.

(By Adv.M/s Khalid)

      vs.

1. A.P.Venugopalan,                    : RESPONDENTS

    S/o Velayudhan,

    Appedaparambil House,

    Iringalloor, P.O.Vengara,

    Malappuram District.

(By Adv.S.S.Kalkura, counsel for R1)

2. K.T.Abdul Majeed,

    Kunnathodi House,

    Oorakam Nizhmuri,

     O.K.M.Nagar, Malappuram District.

JUDGMENT

SRI.M.V.VISWANATHAN    : JUDICIAL MEMBER

          The  appellant herein was the 2^nd opposite  party in OP.331/99 on the file of CDRF, Malappuram.  The 1^st respondent was the complainant and 2^nd respondent was the 1^st opposite party  in the said OP 331/99 which was filed alleging deficiency in service on the part of the opposite parties 1 and 2 in  giving effect to the scheme which was introduced and started by the opposite parties.  The  complainant alleged  payment of total Rs.50000/- under the  said scheme by way of  monthly subscriptions and on termination of the said scheme the opposite parties had agreed to deliver an autorikshaw.  But the opposite parties failed to  supply the autorikshaw as assured and that they also failed to refund the amount  of Rs.50000/- collected from the complainant.  Notice in the said OP.331/99 was served  on the opposite parties 1 and 2.  1^st opposite party remained absent and he was declared ex parte.  The 2^nd opposite party entered appearance and contended that he happened to be the  Secretary of the Trust by name Al-Ameen National  Trust(Vengara) and that the 1^st opposite party being the President  of the said trust misused his name and collected amounts from the complainant.  It is further contended that 2^nd opposite party had no connection with the aforesaid scheme and he did not collect any amount from the complainant.  Thus, the 2^nd opposite party prayed for dismissal of the complaint filed against him.

          2. Before the Forum below the complainant produced Ext.P1 passbook issued by the aforesaid Al-Ameen National  Trust(Vengara) to the complainant.  The 2^nd opposite party produced the rules and Regulations of the Al-Ameen National  Trust(Vengara).  On an appreciation of the facts, circumstance and the evidence on record, the Forum below allowed the complaint and thereby passed the impugned order dated 20.11.2000 in OP.331/99 directing the opposite parties to pay the sum of Rs.50000/- to the complainant with interest at the rate of 12% per annum from 20.7.99 till realization and cost of Rs.3000/-.  The opposite parties 1 and 2 were made jointly and severally liable to be pay the decree debt.  Aggrieved by the  said order the present appeal is filed by the 2^nd opposite party in OP.331/99.

          3. When this appeal taken for final hearing, there was no representation for the 2^nd respondent.  The counsel for the appellant/2^nd  opposite party and 1^st  respondent /complainant were present.  The learned counsel for the appellant/2^nd  opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He also relied on copy of the deed of Trust of Al-Ameen National  Trust(Vengara) and submitted that as per the bylaw there is no provision for conducting a chitty or a scheme  by the said Trust.  Thus, the appellant prayed for exonerating the 2^nd opposite party from the liability to pay the amount to the complainant.  On the other hand, the learned counsel for the 1^st respondent/complainant supported the impugned order passed by the Forum below and prayed  for dismissal of the present appeal.

4.     The points that arise for consideration are:-

1)     Whether there occurred any deficiency in service on the part of the opposite parties 1 and 2 as alleged by the complainant in OP 331/99 on the file of CDRF, Malappuram?

2)     Whether the complainant has succeeded in establishing  his case that he joined the scheme introduced and started by opposite parties as the President and Secretary of Al-Ameen National  Trust(Vengara)?

3)      Is there any sustainable ground to interfere with the impugned order dated 20.11.2000 passed by CDRF, Malappuram in OP.331/99?

5.      Points 1 to 3:-

Ext.P1 passbook issued in the name of the complainant would establish the fact that Al-Ameen National  Trust(Vengara) introduced a  scheme/kuri and the complainant joined in the said scheme as a subscriber and he remitted  Rs.50000/- towards the said scheme/kuri.  Admittedly the said scheme was introduced by the aforesaid trust with the 1^st opposite  party as its President and 2^nd opposite party as the Secretary.  It is the case of the 2^nd opposite party(appellant) that he  had nothing to do  with the aforesaid scheme and he did not collect any amount from the complainant.  Ext.P1 passbook would establish the fact that such a scheme was introduced and conducted by the opposite parties being the President and Secretary of Al-Ameen National  Trust(Vengara) and that the complainant as the subscriber remitted Rs.50000/-.  Forum below  has rightly relied on the admission made by the 2^nd opposite party in his written version.  A mere reading of the aforesaid written version  would establish the fact that the complainant was a subscriber of the said scheme and that the P1 passbook was issued under the said scheme.  Even if the case of the 2^nd opposite party that his name was misused by the 1^st opposite party is true, then it is  for the 2^nd opposite party  to proceed against the 1^st opposite party for the alleged misuse of his name.  But as far as complainant (1^st respondent), is concerned the opposite parties 1 and 2 are liable to refund the amount collected from the complainant.  The forum below has rightly directed the opposite parties 1 and 2 to refund the sum of Rs.50000/- collected  from the complainant.   P1 passbook was issued to the complainant under the aforesaid scheme.   Opposite parties 1 and 2 are jointly and severally liable  to refund the aforesaid sum of Rs.50000/- to the complainant.

6.The Forum below has also awarded interest at the rate 12% per annum from 2o.7.99 till the date of realization with cost of Rs.3000/-.  This Commission is of the view that the interest at the rate 12% ordered by the Forum below is on the higher side.  So, the rate of interest awarded by the Forum below is reduced to 9% per annum.  Considering the volume of  evidence adduced by the complainant, the cost of Rs.3000/- ordered by the Forum  below  is reduced  is to Rs.1000/-.  Thus, the impugned order is modified to the extent as indicated above.  These points are answered accordingly.

In the result the appeal is allowed partly.  The impugned order dated 20.11.2000 passed by CDRF, Malappuram in OP.331/99 is modified and thereby the rate of interest awarded by the Forum below is reduced from 12% to 9% per annum and the cost is also reduced to Rs.1000/- In all other  respects the impugned order passed by the Forum below is confirmed.  As far as the present appeal is concerned, parties are directed to suffer their respective costs.

SRI.M.V.VISWANATHAN           : JUDICIAL MEMBER

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