BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 261/2002 Filed on 25.06.2002 <br /> Dated : 29.08.2008<br /> Complainant:<br /> <br /> Shibu, Power of Attorney Holder of Baburajan, Kadayil Veedu, Chathampara, Karavaram, Chirayinkil, Thiruvananthapuram. <br /> <br /> Additional complainants:<br /> <br /> 1.Shibu, S/o Baburajan, Kadayil Veedu, Chathampara, Karavaram, Chirayinkil, Thiruvananthapuram.<br /> <br /> 2.Sheeba, D/o Baburajan, Kadayil Veedu, Chathampara, Karavaram, Chirayinkil, Thiruvananthapuram.<br /> <br /> 3.Sushama, W/o Baburajan, Kadayil Veedu, Chathampara, Karavaram, Chirayinkil, Thiruvananthapuram. <br /> <br /> (By adv. M. Indranathan)<br /> Opposite party:<br /> <br /> The Branch Manager, Kerala State Financial Enterprises, Attingal.<br /> <br /> (By adv. P.K. Venugopal)<br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 14.03.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.07.2008, the Forum on 29.08.2008 delivered the following:<br /> ORDER <br /> <br /> SRI. G. SIVAPRASAD: PRESIDENT<br /> <br /> The facts leading to the filing of the complaint are that complainant was a subscriber of Chitty No. 1/99 with Chittal No. 8 for a sala of Rs. 100000/- conducted by the opposite party. The 1st complainant bid the said chitty at an auction held on 05.11.2001. The prize money payable was Rs. 70000/-. The 1st complainant had remitted 42 instalments without any default. To get the prize money of Rs. 70000/- the 1st complainant had executed bond and produced sureties. Even after the execution of bond and production of sureties the opposite party refused to release prize money due to the 1st complainant. 1st complainant had also availed a loan under hire purchase scheme NFDC 138/98 and remitted instalments till 02.05.2000 and opposite party refused to accept instalments from the 1st complainant, but recovered arrears of Rs. 30000/- from the salary of the 1st complainant under NCL 221/99. 1st complainant was an employee of KSRTC at Attingal Depot. 1st complainant sent an advocate notice on 04.05.2000 to the opposite party demanding the prize money of Rs. 70000/- from the opposite party. Opposite party sent latter on 15.05.2002 to the complainant wherein, some liability of the 1st complainant has been mentioned by the opposite party. Prize money will be released only after clearing the liability of the 1st complainant towards the opposite party. `1st complainant died and his legal heirs were impleaded as additional complainants in this complaint. Hence this complaint claiming refund of Rs. 70000/- from the opposite party in Chitty No. 1/99 and Rs. 30000/- towards compensation. <br /> Opposite party entered appearance and filed version contending that complainant is not a consumer. 1st complainant was a subscriber of chitty conducted by the opposite party. He bid the chit at the auction on 05.11.2001 and produced sureties for withdrawal of the prize money. However it was found that 1st complainant was a chronic defaulter to the opposite party in loan No. NFDL 138/98(where 1st complainant was a subscriber), surety in NCL No. 221/97(loan of Smt. O. Remani), surety in NCL 400/98 (loan of Smt. P.N. Leela) and surety in Chitty No. 7/97/32 subscribed by Sri. R. Shibu. Prize money payable was only Rs. 70000/- which can be disbursed only after closing the above said liabilities. Since the complainant was not amenable for the same the prize money was withheld. Opposite party cannot disburse the prize money without adjusting the amount due by the 1st complainant. The opposite party has a charge over the prize money due to the 1st complainant in view of his liability. It is true that complainant remitted instalments upto 02.05.2000. The allegation that further amounts were offered to be remitted was not accepted is absolutely incorrect. It is true that salary recovery was effected from the salary of the 1st complainant, but the same is in respect of NCL 221/99 to which the complainant is a surety. Some amount (Rs. 30000/-) was recovered from the salary of the complainant. Payment of prize money is not made in view of huge outstanding of the complainant. Opposite party had issued notice to the complainant and complainant is not entitled to recover any amount from the opposite party. Hence opposite party prayed for dismissal of the complaint with costs. <br /> The points that would arise for consideration are:-<br /> (i)Whether complainants are entitled for refund of Rs. 70000 from the opposite party?<br /> (ii)Whether there has been deficiency in service on the part of opposite party?<br /> (iii)Other reliefs and costs.<br /> To support the contention in the complaint additional 2nd complainant has filed an affidavit of himself as PW1 and witness has been examined as PW2 and marked 12 documents as Exts. P1 to P12. Opposite party filed 16 documents which are on record, but did not file affidavit in time and opposite party's evidence closed on 12.09.2005. After closing the opposite party's evidence, opposite party filed counter affidavit without a petition to re-open evidence. <br /> Points (i) to (iii):- It has been the case of the complainants that the 1st complainant was a subscriber of chitty No. 1/99 with chittal No. 8 conducted by the opposite party. 1st complainant bid the chit at the auction held on 05.11.2001. The prize money payable by the opposite party was Rs. 70000/-. 1st complainant had remitted 42 chitty instalments without any default. To get the prize money of Rs. 70000/-, 1st complainant had executed bond and produced sureties. Even after the execution of bond and production of sureties, opposite party refused to release the prize money due to the 1st complainant. It has also been the case of the complainants that prior to the above chitty 1st complainant had availed a loan under hire purchase scheme by NFDC No. 138/98 from the opposite party and remitted instalments till 02.05.2000, and thereafter opposite party refused to accept instalments from the 1st complainant but recovered the arrear amount of Rs. 30000/- from the salary of the 1st complainant under NCL 221/99. The 1st complainant was an employee of KSRTC Attingal Depot. It has been contended by the opposite party that 1st complainant was a chronic defaulter to opposite party in the following transaction. <br /> 1.Loan No. NFDL 138/98 <br /> subscribed by the 1st complainant : Rs. 32912/- with interest @ 24% from 20.07.2002.<br /> 2.Surety in NCL No. 221/97<br /> (loan of Smt. O. Remani) : Rs. 112361/- with compound interest from 24.07.2002.<br /> 3.Surety in NCL 400/98 <br /> (loan of Smt. P.N. Leela) : Rs. 53816/- with interest from 24.07.2002.<br /> 4.Surety in Chitty No. 7/97/32 <br /> subscribed by Sri. R. Shibu : Rs. 18448 with interest from 24.07.2002.<br /> Submission by the opposite party is that as per law the prize money is to be disbursed only after closing NFDL 138/98 availed by complainant and updating other transactions. Since complainant was not amenable for the same, prize money was withheld and opposite party cannot disburse the prize money without adjusting the amount due by the complainant. Ext. P1 is the copy of the pass book of Chitty No. 1/99. As per Ext. P1 date of commencement of chitty is 23.01.1999 and date of termination is 05.04.2007. Instalment amount is Rs. 1000/-. Number of instalments 100, chitty amount is Rs. 100000/-, foreman commission is Rs. 5000/-. A perusal of Ext. P1 chitty pass book would reveal that complainant had remitted 42 instalments to opposite party. Exts. P2 and P3 are copies of chalan remittance dated 04.05.2002 and 03.06.2002. Exts. P4 and P5 are the postal receipt and copy of the letter addressed to the opposite party by the complainant. Ext. P6 is the original chitty passbook No. 1/99. Ext. P7 is the original of chalan for remittance. Ext. P8 is the original of hire rent payment book in NFDL 138/98 for advance of Rs. 49000/- given by the opposite party. Ext. P9 is the acknowledgement card. Ext. P10 is the copy of Ext. P8. Ext. P11 is the recovery particulars to opposite party from the salary of the complainant issued by District Transport Officer dated 15.09.2004. As per Ext. P11 complainant is a surety to the dues defaulted by Smt. Remani. As per the request of the opposite party an amount of Rs. 37500/- has been recovered by DTO, Attingal and remitted to the opposite party as per the letter reference dated 23.05.2001 from the KSFE. According to DTO, the balance amount with interest as intimated from the opposite party would be noted as liability to be recovered from pensionary benefits. Ext. P12 is the request letter for recovery from salary of the complainant issued by the opposite party. As per Ext. P12 a sum of Rs. 115364/- plus interest from 25.04.1997 plus default interest etc. is due to be recovered from the salary of the complainant to regularise the account. In his cross examination PW2 deposed that in pursuance of Ext. P12 request letter, DTO, KSRTC had recovered an amount of Rs. 37500/- from the salary of the complainant and the same had sent to the opposite party. Opposite party had produced 16 documents which are on the record but not seen marked as Exts. As per the document No. 1, the copy of the subscribers ledger relating to chitty No. 07/97 in the name of R. Shibu, the said chitty is seen prized on 12.01.1998 at 9th instalment wherein the complainant was out of the sureties against whom opposite party is seen initiated RR Proceedings. The amount for which recovery is to be sought, the amount already recovered and the amount still to be recovered etc. are not dexxxxx in it. Document No. 2 is the copy of application form wherein the complainant is mentioned as surety to Sri. Shibu in chitty No. 7/97. Document No. 3 is the copy of chitty security bond executed by the complainant as surety in chitty No. 7/97. Document No. 4 is the copy of application form wherein the complainant is the debtor in NFDL 138/98. Document No. 5 is the copy of application for new fixed deposit loan, wherein the complainant is the applicant for a loan of Rs. 49000/-. Document No. 6 is the copy of the agreement between the opposite party and the complainant made on 2nd February 1998. Document No. 7 is the copy of personal ledger in NFDL 138/98. Document No. 8 is the copy of application form wherein complainant is the surety to O. Remani in NCL 221/97. Document No. 9 is the copy of the application for loan under NCL Scheme of Rs. 50000/- wherein the applicant is Remani and the complainant is one of the sureties. Document No. 10 is the copy of chitty loan agreement entered into by the complainant and others in chitty No. 14/96 having a sala of Rs. 100000/-. Document No. 11 is the copy of new chitty loan ledger of Loan Account No. 221/97 having a sala of Rs. 100000/- wherein the name of loanee ie; O. Remani and co-obligant is Baburajan and it is seen recorded R/R on 14.03.2003. Document No. 12 is the copy of application form, wherein agreement for recovery from salary is seen executed by the complainant. Document No. 13 is the copy of application for loan wherein the loanee has offered two personal sureties, complainant is one of the sureties. Document No. 14 is the copy of NCL Agreement No. 400/98 executed by the complainant and others. Document No. 15 is the copy of new chitty loan ledger of Loan NCL 400/98. A perusal of Document No. 14 would disclose that A/c No. NCL 400/98 and NCL 132/99 closed on 07.09.2004. Document No. 16 is the copy of subscriber's ledger in chitty No. 1/99. It is pertinent to note that as per Ext. P1 the 1st complainant has remitted 42 instalments in chitty No. 1/99 and 1st complainant bid the chitty at the auction held on 05.11.2001. The prize money payable to the complainant was Rs. 70000/-. The said prize money was not given to the 1st complainant. Opposite party's submission was that 1st complainant was a chronic defaulter to the opposite party in several transactions. Submission by opposite party is that as per loan No. NFDL 138/98. Opposite party is entitled to get Rs. 32912/- with interest from 20.07.2002 from the 1st complainant. As per document No. 7 submitted by the opposite party on the record it is seen that DCRG had sent on 15.05.2003, on 21.07.2003. 1st complainant died on 22.06.2003. Further submitted by opposite party that as per surety in NCL No. 221/97(loan of Smt. Remani) opposite party claimed an amount of Rs. 112361/- with compound interest from 24.07.2002 from the 1st complainant. (Document No. 11 on the record shows this). As per Ext. P12 Smt. Remani has defaulted payments in NCL 221/97 and the request for recovery from the salary of the 1st complainant was sent to DTO, Attingal K.S.R.T.C. The said request dated 23.05.2001 was for recovery of Rs. 115364/-. Ext. P11 letter from the DTO would disclose the fact that an amount of Rs. 37500/- had already been recovered and remitted to the KSFE as per Ext. P12. The balance amount with interest as intimated as per Ext. P12 would be treated as liability to be recovered. Opposite party further submitted that 1st complainant was a surety in NCL 400/98 to the loan of Smt. P.N. Leela, thereby there is a due from the 1st complainant to the tune of Rs. 55816/- with interest 20% from 24.07.2002. As per document No. 15 submitted by opposite party on the record, the said Account NCL 400/98 remained closed on 07.09.2004 vide circular No. 102/2004(PLG) dated 04.08.2004. Hence we would draw inference that there will be no due from the 1st complainant to opposite party in NCL 400/98. Opposite party's submission is that in another transaction in chitty No. 7/97, subscribed by Sri. R. Shibu, 1st complainant was the surety on that account, there is a due of Rs. 18448/- with interest 12% from 24.07.2002. As per document No. 1, submitted by the opposite party on the record to recover the said amount request for RR is seen sent on 23.07.2003. Opposite party has also submitted the copy of Variyola in chitty No. 1/99, which is on the record. Clause 23 of the said Variyola' reads as under: “ചിട്ടി സംബന്ധമായി എന്തെങ്കിലും ചിററാളനില്‍ നിന്ന് സ്വന്തം നിലയിലോ ജാമ്യനിലയിലോ മുന്‍പന്‍ കംപനിയിലേക്ക് ഏതെങ്കിലും സംഖ്യകള്‍ ഈടാക്കുവാന്‍ ഉണ്ടെങ്കില്‍ അതിനു പ്രസ്തുത ചിററാളന്‍ ചിട്ടിയില്‍ അടച്ചിട്ടുളള തവണ സംഖ്യകളിന്‍മേല്‍ മുന്‍പന്‍ കംപനിക്ക് ഒന്നാം ചാര്‍ജ് ഉണ്ടായിരിക്കുന്നതും അതു പോലെ തന്നെ ചിട്ടി സംബന്ധമായി മുന്‍പന്‍ കംപനി നിക്ഷേപിച്ചിട്ടുളള എല്ലാ സംഖ്യകളും ജാമ്യവും ചിററാളന്‍മാര്‍ക്ക് ചെല്ലേണ്ട സംഖ്യകള്‍ക്ക് ഉത്തരവാദപ്പെട്ടിരിക്കുന്നു.”<br /> In the light of clause 23 of the said variyola, and in the absence of documents evidencing payment of liability of the 1st complainant to opposite party in Loan No. NFDL 138/98, NCL No. 221/97 and Chitty No. 7/97, we are of the view that opposite party cannot disburse the prize money without adjusting other dues of 1st complainant in his capacity as borrower and surety thereon no deficiency in service can be attributed to the opposite party. Deficiency in service is not proved. Hence the complainants are not entitled for refund of Rs. 70000/- from the opposite party. Complaint has no merits at all which deserves to be dismissed. <br /> In the result, complaint is dismissed with no order as to costs. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 29th August 2008.<br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> S.K. SREELA : MEMBER <br /> O.P.No. 261/2002<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Paul Pereira <br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Photocopy of chitty pass book of chittal No.8.<br /> P2 - Photocopy of chalan for remittance No. 06922 dated 03.06.2002.<br /> P3 - Photocopy of chalan for remittance No. 03866 dated 04.05.2002.<br /> P4 - Photocopy of postal receipt dated 04.05.2002. <br /> P5 - Photocopy of advocate notice dated 04.05.2002.<br /> P6 - Original chitty pass book of chittal No. 8<br /> P7 - Original chalan for remittance No. 03866 dated 04.05.2002.<br /> P7(a) - Original chalan for remittance No. 06922 dated 03.06.2002.<br /> P8 - Original Hire Rent payment book.<br /> P9 - Original acknowledgement card No. 8426 dated 04/05.<br /> P10 - Photocopy of Hire Rent payment book NFDL/138/98.<br /> P11 - Original letter No. B1 3651/04/ATL dated 15.09.2004 of District Transport Officer, Attingal to the Sr. Supdt., CDRF, Tvpm. <br /> P12 - Photocopy of letter Ref. No. NCL 221/97, NPA 58/97 dated 23.05.2001.<br /> <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> NIL<br /> <br /> PRESIDENT