BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 14th December 2016
PRESENT
SRI.VISHWESHWARA BHAT D : HONBLE PRESIDENT
SRI. T.C. RAJASHEKAR : HONBLE MEMBER
ORDER IN
C.C.No.171/2014
(Admitted on 21.05.2014)
Mrs. Hemalatha Rai,
Aged about 55 years,
W/o Sathish Rai,
R/o Behind Poonja Building,
Ballal Bagh,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri AN)
VERSUS
Branch Manager,
Tulunadu Chits Pvt Ltd.,
1st Floor, Pinto Complex,
Bikkarnakatta,
Mangalore.
….......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. DS)
ORDER DELIVERED BY HON’BLE MEMBER
SRI. T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite party to return of Rs.42,000/ along with interest at the rate of 18% per annum from January 2013 till date of realization, to pay towards mental and physical agony Rs.1,00,000/ and towards the cost of the complaint Rs.10,000/.
2. In support of the above complainant Mrs. Hemalatha Rai affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C5 detailed in the annexure here below. On behalf of the opposite party Mr. Vishwas A.S (Rw1) Manager also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
We perused the complaint and the version averments. This case is of one where the complainant is the subscriber to the chit fund and defaults in payment of installments and the Opposite party denies refund of paid amount. The complainant alleges that he has become member of the chit fund of Rs 10,00,000/ with 50 monthly installment and had paid the two installments amounting to Rs 20000/ and 22000/ totaling Rs 42000/, but due to her financial difficulties could not able to pay further and requested the refund of the paid amount and the Opposite party refused to and hence there is deficiency of service. The Opposite party case is as per agreement and the Chit Fund Act 1982 they are entitled to forfeit the amount of 5% of chit total fund and incidental charges and the remaining will be paid. But in the case of the complainant she had paid only Rs 42000/ where the 5 % of the chit amount comes to 50000/ as such they are not liable to pay any amount to the complainant and there is no deficiency in service. These are being the facts of dispute we consider the following:
POINTS FOR ADJUDICATION
On examining the documents and the evidence produced, the admitted facts are, the complainant is the subscriber to the chit fund conducted by the Opposite party and entered into an agreement and had paid Rs 42000/ towards two installments and defaulted. The Opposite party served a notice of default and termination of membership, however with an offer to continue the chit if the balance of installments with penalty is paid. It is also admitted fact that the Opposite party refused to refund the amount already paid by the complainant. It is denied that the complainant had informed orally the Opposite party about her inability to pay the chit installments before serving notice of default by the Opposite party and denied the deficiency in service. It is not in dispute the complainant is a consumer and opposite party is the service provider. The dispute on concise, we consider the following point for adjudication in resolving this dispute.
- Whether the complaint proves that he is entitled to get refund of the paid chit installments paid and deficiency in service on the part of the Opposite party?
- Whether the complaint is entitled for the prayed relief?
- What order?
On considering the rival arguments and the produced documents and evidence on file we answered the above points as under:
- In the negative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1 & 2: The complaint’s allegation for deficiency in service against opposite party is, they have not refunded the two chit installment amounting to Rs 42000/ as she became defaulter because of her financial problem. In support of her claim she produced EX C1 to show the payment of installment, and EX C5 which the reply is given by opposite party with an agreement attached which is entered into by the complainant with opposite party. The Complainant has not drawn our attention to any of the terms of the agreement or the provision of the Chit Fund Act 1982 to show how she is entitled for the refund of installment paid after becoming defaulter. It is also seen from the record that the complainant had failed in paying the chit installment since March 2013 and no documents to show that she has informed the Opposite party about her financial difficulties in paying the further instalments till the notice of default is issued by the Opposite party on 05.10.2013.
2. However the Opposite party issued a notice dated 05.10.2013 (EX C3). The contents of the notice is clear to the effect that the Opposite party had issued notice of default and the supposed Action to be taken as per provision Section 6 of the Chit Fund Act 1982 in case of not paying the due instalments. It also specifically mentions the Opposite party’s entitlement for 5% of the chit fund in case of default and given an option/opportunity to continue the membership on paying all the dues. The Opposite party also quoted the terms of agreement clause 13 captioned as PROCEDURE TO BE ADOPTED FOR UN PRIZED DEFAULTING MEMBERS AT THE END OF PARTICULAR CHIT of the agreement agreed and signed by the complainant. It is agreed The non prized defaulting member will receive the amount paid by him at the end of termination of chit, after deducting Foreman’s commission of 5% and incidental expenses incurred by the foreman. We come across the provision in the Chit Fund Act 1982 section 21 which enumerates the rights of the Foreman under subsection 21 (b) gives the right to entitlement of 5 % of the chit amount for the foreman.We think it fit to engross the meaning of chit as per Chit fund Act 1982 (b) chit means a transaction whether called chit, chit fund, chilty, kuri or kuri or by any other name or under which a person entered into an agreement with a specified number of persons that every one of them shall subscribe a certain sum of money (or a certain quantity of grain instead) by way periodical instalments over a definite period and that each such subscriber shall, in his turn., as determined by a lot or by auction or by tender or in such other manner as may be specified in the chit agreement be entitled to prize amount. So the definition manifests that it is a sort of mutual help arrangements with agreed terms by few people for their benefit. There is also provision to replace the defaulting member to continue the chit. We consider there is an obligation on the part of the subscribing member to inform the inability or uninterested ness in the chit in advance so that the foreman can continue the chit after joining new member in the interest of the non-defaulting un prized members. The complainant has not fulfilled his part of obligation. The complainant had paid only Rs 42000/ which is less than the 5% of the chit amount for which the foreman entitled as agreed. With this observation we are of the view that the complainant not proved his case and the point no 1 in the negative and in the result the point no 2 also in the negative.
POINT NO 3: In the light of above discussions we pass the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by member revised and pronounced in the open court on this the 14th December 2016)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI.VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mrs. Hemalatha Rai
Documents marked on behalf of the Complainant:
Ex C1: : Xerox copy of pass book
Ex C2: 21.01.2013 : copy of the receipt
Ex C3: 05.10.2013 : Notice issued of opposite party
Ex.C4: 26.11.2013 : Reply by the complaint
Ex.C5: 02.12.2013 : Reply by the opposite party
Witnesses examined on behalf of the Opposite Party:
RW1: Vishwas A.S, Manager
Documents produced on behalf of the Opposite Party:
Nil
Dated: 14.12.2016 MEMBER
