BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 81/2007 Filed on 20.03.2007

Dated : 30.09.2010

Complainant:

K. Padmanabhan, Administrative Officer (D), Oriental Insurance Company, Thiruvananthapuram residing at Flat No. 6(A), Samarias Building, PMG, Thiruvananthapuram.

(Appeared in person)

Opposite party:

The Branch Manager, Kerala State Financial Enterprises Ltd., Kesavadasapuram Branch, Kesavadasapuram, Thiruvananthapuram.

(By adv. P.K. Venugopal)

This O.P having been taken as heard on 31.07.2010, the Forum on 30.09.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is having a chitty with opposite party KSFE for Rs. 1,00,000/-, that complainant has to repay the chitty amount with equal monthly installments, that complainant obtained the chitty amount and thereafter he has paid the monthly amount regularly and chitty was closed in 2003, that on 06.02.2007 opposite party issued a notice to the complainant for balance payment of Rs. 7,000/- with interest, and that complainant already paid the full amount and closed the chitty. It is submitted by the complainant that there is negligence and deficiency in service on the part of the opposite party. Hence this complaint to direct opposite party to correct the repayment records and pay compensation.

Opposite party filed version contending interalia that there is no deficiency of service or unfair trade practice on the part of the opposite party, that complainant is a subscriber of chitty No. 86/04 conducted by the opposite party vide chittal No. 34, that the sala of the chitty is Rs. 1,00,000/- and comprised of 40 monthly installments at the rate of Rs. 2,500/-, that the chitty was prized on 11.06.2001 and prize money was disbursed on 25.08.2001, that after receiving the prize money, complainant defaulted paying chitty installments on due date which led to forfeiture of veetha palisa and levying of default interest at the rate of 12% per annum from the due date of chitty installments till payment, that cheque issued by the complainant towards payment of 29^th installment on 11.11.2002 was dishonoured, the said installment amount was remitted only on 11.04.2003, that subsequent payments were also not on due dates. The last remittance was made on 11.07.2003 and there was no remittance thereafter. The amount remitted till 11.07.2003 was sufficient to cover 37 installments. 3 further installments is due with default interest and efforts were made to recover the defaulted amount then and there, and that this complaint is filed to obstruct the recovery proceedings. Hence opposite party prayed for dismissal of the complaint with costs.

The points that arise for consideration are:-

1. Whether the complainant had paid the chitty installment amount on due dates?

2. Whether there is deficiency in service on the part of the opposite parties?

3. Whether the complainant is entitled to compensation and costs?

In support of the complaint, complainant has filed affidavit and has marked Ext. P1. In rebuttal opposite party has filed affidavit and has marked Exts. D1 & D2.

Points (i) to (iii):- Admittedly, complainant is a subscriber of chitty No. 86/04 and sala of the chitty is Rs. 1,00,000/- and comprised 40 monthly installments at the rate of Rs. 2,500/-. There is no point in dispute that the chitty was prized and complainant obtained the said chitty amount. It has been the case of the complainant that from the date of receipt of the chitty amount he is paying the monthly installments regularly and opposite party collected the full amount from him and the chitty was closed in 2003, that on 06.02.2007 opposite party issued a notice to the complainant for balance payment of Rs. 7,000/- with interest. According to complainant, there is no balance in existence. He had already paid the full amount and closed the chitty. Ext. P1 is the notice dated 31.01.2007 addressed to complainant wherein the reference is chitty No. 86/04 and subject is default of repayment installments in prized chitty. As per Ext. P1 complainant was informed that the aforesaid chitty is under default for 3 installments at the rate of Rs. 2,500/- per installment from 11.08.2003 and thus an amount of Rs. 7,500/- + defaulted interest and other charges are due from him. Complainant was advised by Ext. P1 to settle all pending dues within 7 days from the date of receipt of Ext. P1 notice failing which opposite party will be constrained to take recovery steps for realising the entire amount outstanding with interest and other charges without further notice. It is also seen mentioned in Ext. P1 notice that if complainant has already remitted amount, ignore this notice and send the full particulars of remittance made immediately for correcting opposite party's records accordingly. Complainant has been cross examined by opposite party. In his cross examination complainant denied the suggestion that he had remitted 37 installments. He has deposed in box that he had remitted 3 installments jointly in the year 2005 and opposite party waived interest. He has also deposed that the then Manager of the opposite party waived interest on application by the complainant. According to him there is no arrears due from him to the opposite party. When a suggestion was made to him by opposite party, in his cross examination, that complainant could not produce the documents of remittance since he has not paid the due amount, complainant replied that he could not produce the documents since the notice received after a lapse of 2 years. Further complainant added that he did not get default notice prior to Ext. P1. Opposite party has furnished 2 pages of chitty personal ledger in connection with the complainant's chitty with opposite party. On perusal of the said document it is seen that complainant has remitted upto 17 installments on or before due dates, thereafter there was delay in payment of installments. It is further noted in Ext. D1 & D2 that after 37^th installment there is no material to show that complainant has remitted the remaining installments on due dates. It is pertinent to point out that as per Ext. D1 & D2, the 37^th installment is seen remitted on 13.10.2003. The very case of the complainant is that he has closed the chitty in 2003, whereas in his cross examination by the opposite party he has deposed that the last 3 installments were remitted in the year 2005 and the Manager concerned of the opposite party waived the interest. There is contradiction in his deposition and his plea in the complaint. It is further to be pointed out that though the 37^th installment was remitted on 13.10.2003 and the remaining 3 installments were not seen remitted by the complainant as alleged by opposite party in the version, opposite party could very well issue notice or inform the complainant regarding the default in payment within reasonable time. Opposite party never sent any letter prior to Ext. P1 dated 31.01.2007. Ext. P1 notice is seen issued on 31.01.2007, that is after a lapse of 3 years and 2 months. It is seen deposed by complainant that he could not keep the documents of remittance since the entire transaction was over in the year 2003. Non-issuance of any communication regarding the default of installment payment by opposite party in time will definitely amount to deficiency in service on the part of the opposite party. At the same time complainant has not furnished any document showing the payment of installments after 13.10.2003. There is contradiction in the plea in the complaint and deposition of the complainant in box. In the plea, complainant has pleaded that the entire chitty was closed in 2003 and opposite party directly collected the full amount from him. While he has deposed in box that he had remitted the entire amount in 2005, thereby there is reason to disbelieve the pleadings and deposition in the box. The issue herein is in regard to default for 3 installments. Even in Ext. P1 notice, opposite party claimed Rs. 7,500/- + defaulted interest. Opposite party has not stated the interest amount anywhere in Ext. P1. There is no evidence of closure of chitty in favour of the complainant. Opposite party failed to furnish any communication informing the complainant to remit the defaulted amount if any prior to Ext. P1 notice. Both the complainant and the opposite party are equally liable. Opposite party did not take any steps, immediately after the due date of installments, to inform the complainant about the non-payment of the remaining installments. Evidently by Ext. P1 notice is seen issued belatedly. Belated demand will definitely amount to deficiency in service. There is nothing to show that complainant has remitted the remaining three installments. When a suggestion was put to the complainant in his cross examination by the opposite party that complainant could not furnish any documents showing the remittance of balance installments since he never paid the said installments, complainant denied the suggestion and added that he had not kept the said document of remittance since it lapsed more than two years. The onus is on the part of the complainant to prove that he has paid the aforesaid installments. Complainant has not succeeded in establishing the same. At the same time opposite party had issued Ext. P1 notice belatedly, which will amount to deficiency of service for which opposite party has to pay a compensation of Rs. 2,000/- to complainant. To avoid further litigation complainant is directed to pay Rs. 5,500/- to opposite party.

In the result, complaint is partly allowed. Opposite party shall pay Rs. 2,000/- towards compensation for belated demand and same shall be adjusted in Ext. P1 demand notice and complainant shall pay an amount of Rs. 5,500/- in furtherance of Ext. P1 notice. Both parties shall bear and suffer their costs.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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C.C. No. 81/2007

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Padmanabhan. K

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of notice dated 31.01.2007

III OPPOSITE PARTY'S WITNESS :

DW1 - Sujith. M

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Chitty personal ledger

D2 - Copy of variyola regarding chitty.

PRESIDENT

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