BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 265/2009 Filed on 06/10/2009

Dated: 15..10..2012

Complainant:

Philips Varghese, Parolil Moby Cottage, Rajagiri – P.O., Kalamassery, Ernakulam – 683 104.

(By Adv. S. Reghu Kumar)

Opposite parties:

1. Sree Uthradom Thirunal Hospital, Pattom, Thiruvananthapuram, represented by its C.E.O.

2. Dr. Bharath Chandran, Managing Director, Sree Uthradom Thirunal Hospital, Pattom, Thiruvananthapuram.

(By Adv. Narayan. R)

This O.P having been heard on 05..10..2012, the Forum on 15..10..2012 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant prompted by a newspaper advertisement made by opposite parties, Sree Uthradom Thirunal Hospital, represented by its C.E.O and Dr. Bharath Chandran, Managing Director, SUT Hospital, deposited an amont of Rs. 1,00,000/- with opposite parties for a period of 10 years vide certificate serial No. E-108 dated 1^st November 1996 with maturity date as 2/11/2006, that opposite party promised a return of Rs. 55/- per day and commitment for future treatment expenses at opposite parties' hospital amounting to equivalent of the maturity value at the assured rate, that as per the certificate issued by opposite party the membership fee of Rs. 1,00,000/- would be returned to the complainant on 2^nd day of November, 2006, if the membership is not renewed after 10 years, that as per the condition 12 and 7 of the membership certificate the rent is bound to be remitted @ Rs. 55/- per day for 10 years, opposite party had deposited the said amount in the account of the complainant with State Bank of Travancore till April 2002 though they were not regular in the payment, that from April 2002 to March 2003 SUT have unilaterally reduced the said rental amount to Rs. 1,000/- per month from their promised return of Rs. 1,705/- thereby there is a short payment of Rs. 705/- per month, that opposite party sent a letter regarding the reduction of rate of rent by its letter dated 11/7/2002 for which complainant had sent a reply letter dated 29/08/2002 objecting the same and requested to make immediate payments as agreed upon without any further delay, that again from April 2003 onwards opposite party had revised the rent per month and reduced the same to Rs.1,075/- without any explanations / clarifications and deposited to the bank till December 2003 thereby there is a short payment of Rs. 630/- per month, that opposite parties made two payments towards rent without giving any split up details, the first payment of Rs. 30,100/- was on 18/3/2005 and Rs. 60,735/- on 14/2/2007 and finally opposite party paid a payment of Rs. 1,05,375/- by letter dated 2/3/2009, that complainant sustained a loss of Rs. 31,885/- towards rental charges till the date of effecting the partial payment on 2/3/2009, that further complainant lost an amount of Rs. 71,137/- towards interest as a conseqence of the delay in payment of the rental charges to the bank account at Rs. 55/- daily at various months, that opposite parties committed deficiency in service and unfair trade practice thereby complainant suffered substantial monitory loss and mental agony. Hence this complaint to direct opposite paties to pay a sum of Rs. 31,885/- towards balance of rental charges, Rs. 71,137/- being the interest as conseqence of delay in payment of rental charges of Rs. 55/- daily at various months at 20.75% as per agreement and a sum of Rs. 1,00,000/- towards compensation along with Rs. 10,000/- as cost of the proceedings.

2. Opposite parties filed version contending inter alia that the complaint is barred by limitation, that the membership benefits expired by 2006, that complaint is filed only in 2009, that the terms and conditions strictly and unambiguously states that the member of the scheme is entitled to rent, that the members are entitled to get a portion of the rent from the same, as per the share deposited, that they can use the room facility if so required, that payment of rent is an issue which cannot be dealt with by this Forum, that complainant never made any protest regarding the revisal in the rate of rent in the year 2002 – 03, that all rent amounts legally due to the complainant has been paid by the opposite parties, that the statement of account produced by the complainant is mischievously made and is devoid of any truth whatsoever, that the period of membership was till 2006, that opposite parties are bound to pay the rent only till that period, though there was some delay to refund the membership fee, all arrears of rent and the principal amount due to the complainant was paid by March 2009 inclusive of arrears of rent as per the period mentioned in the membership scheme, that there has been no unfair trade practice and deficiency in service on the part of the opposite parties, that even by the complainant's own statement of accounts the actual rent due till November 2006 was Rs. 92,235/- only, of which, he had received Rs. 51,775/- only, that so the difference in arrears of rent was Rs. 40,460/-, that for the same including the principal interest was paying and an amount of Rs. 60,735/- was paid on 14/2/2007, that thereafter there arises no question of rent, that in March 2009 the principal amount of Rs. 1,00,000/- was repaid with interest, thus there arises no question of repayment whatsoever, that none of the prayers in the complaint are allowable, complaint is only to be dismissed with cost to the proceedings.

3. The points that arise for consideration are:

1. Whether complaint is barred by limitation?

2. Whether complainant is a consumer as defined in the Consumer Protection Act?

3. Whether there is unfair trade practice and deficiency in service on he part of opposite parties?

    

4. Whether complainant is entitled to any reliefs as prayed in the complaint?

    

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P8. In rebuttal, opposite party's Administrative Legal Officer, has filed proof affidavit in lieu of chief examination.

4. Points (i) to (iv): There is no dispute on the point that complainant had deposited an amount of Rs. 1,00,000/- with opposite paties vide membership certificate dated 1/11/1996 issued by opposite paty. Ext. P1 is the copy of the membership certificate issued by opposite party. As per Ext. P1, membership fee to Rs. 1,00,000/- will be returned to the head of the family or successor if the membership is not renewed after 10 years ie. 2^nd day of November 2006. According to complainant, opposite party assured a return of Rs. 55/- per day and commitment for future treatment expenses at the opposite parties hospital amounting to equivalent of the maturity value at the assured rate. It has been contended by the complainant that initially opposite paty made payment of Rs. 55/- per day but there was delay in the remittance of Rs. 55/- towards rent. According to complainant, opposite parties had deposited the monthly payment in the account of the complainant with State Bank of Travancore till April 2002 even though they were not regular in the payment. The very case of the complainant is that from April 2002 to March 2003 SUT have unilaterally reduced the rental amount to Rs. 1,000/- per month from their promised return of Rs. 1,705/-, opposite party had informed the unilateral reduction in the agreed rate of rent by its letter dated 11/7/2002 by Ext. P2. Though opposite party raised the marking of Ext. P2 on the ground that it was not addressed to complainant, the same was marked subject to objection. In response to Ext. P2 complainant sent a reply vide Ext. P3 by which opposite party was informed by the complainant that a letter was sent by opposite party in the name of complainant's wife Mrs. Molly Philips on 11^th July 2002 stating that opposite parties are constrained to revise the rent and paid all dues. According to complainant he is not clear from the letter how opposite party is going to pay him Rs. 2,000/- per month and on what basis his figure was arrived. Hence complainant sought to give full details of payment as promised by opposite parties. It should be noted that Ext. P2 & Ext. P3 are dated 11/07/2002 and 29/08/2002 respectively even in 2003 opposite party revised the rental per month. It has been contended by the complainant that monthly amount was received at revised rate till December 2003 thereafter two payments towards rent were made:

1. Rs. 30,100/- on 18/3/2005

2. Rs. 60,735/- on 14/2/2007

It should be noted that opposite party, as per the undertaking in the Ext. P1 membership certificate, ought to return the membership fee of Rs. 1,00,000/- to the complainant on 2^nd date of November 2006. It should be noted further that as per condition No. 11 of Ext. P1 “any member of the family would be eligible for a free treatment allowance of Rs. 55/- per day if any hospital treatment is needed and priority will be given for allotting room for inpatient treatment”. As per condition 12 in Ext. P1 “When no family member is on treatment, a rent of Rs. 55/- would be paid to the member daily. This would be remitted daily to the account opened by the member or his nominee in SBT / Canara Bank. This amount can be used for future treatment or collected lumpsum with interest for the amount at the end of 10 years”. As per condition No. 17 in Ext. P1 “The rent payable to the member is fixed at Rs. 55/- per day for 10 years irrespective of any revision in the hospital charges”. So from the above referred conditions it should be noted that either of the parties to Ext. P1 agreement are bound by the conditions in the agreement and cannot alter the same. Admittedly, there was delay in the payment towards rent as per the terms of the agreement and opposite party has no right to make unilateral reduction of the said agreed rental amount. Whenever the revision was informed by the opposite party to the complainant, complainant responded to the same and challenged it. Even after revision the revised rental rent was given till December 2003, thereafter two payments were made towards rent on 18/03/2005 and 14/02/2007. Further, even after the maturity date on 02/11/2006 the membership fee was not returned to the complainant as per the agreement. The amount was given to the complainant only on 15/03/2009 thereby we find there is continuing cause of action and hence the complaint is not barred by limitation. Another aspect to be considered is whether complainant is a consumer as stated in the Consumer Protection Act. In this case, complainant deposited of Rs. 1,00,000/- as per the newspaper advertisement in the year 1996 by opposite parties promissing a return of Rs. 55/- per day and commitment for future treatment expenses at the opposite parties hospital amounting to equivalent of the maturity value at the assured rate. Complainant availed the service of the opposite parties on the basis of the said assurance. The service provider violated the conditions of Ext. P1 membership certificate. Complainant filed this complaint against opposite parties for compensation towards unfair trade practice and deficiency in service committed by opposite parties. Since the services of the opposite parties were hired by the complainant and services liable to be provided are incorporated in the membership certificate itself we are of the view that complainant is a consumer as defined in the Consumer Protection Act. Ext. P4 is the copy of the Memorandum of cheque unpaid issued by Canara Bank. Ext. P5 is the copy of the letter dated 5^th February, 2007 sent by the complainant to the opposite party informing the latter that complainant is not to renew the membership further. Ext. P6 is the copy of the letter dated 12/4/2008 issued by Managing Director, SUT Hospital to the complainant stating that they are in the process of getting things cleared and assured the complainant that they would settle the matter within next two weeks. Ext. P7 is the copy of the letter dated 17/4/2008 from the 2^nd opposite party to the complainant stating that they would refund the amount within the next few weeks. Ext. P8 is a copy of the cheque dated 15/3/2009 for Rs. 1,05,375/- issued by opposite party to the complainant. Complainant has been cross examined by the opposite party. Opposite parties' evidence consisted of the oral testimony of the Administrative and Legal Officer, SUT Hospital. It should be noted that the certificate was matured on 2^nd November 2006. Admittedly, under conditions 12 & 7 of Ext. P1 opposite parties are bound to remit @ Rs. 55/- per day for 10 years. There is no dispute that opposite parties have calculated the monthly payment for 30 days 31 days or 28 days as the number of days in a month and used to deposit in the account of the complainant with State Bank of Travancore till April 2002. The very allegation of the complainant is that there was no remittance of Rs. 55/- per day towards rent and opposite parties were totally irregular in the remittance of rent. Violating the conditions 12 & 17 of Ext. P1 opposite party had unilaterally revised the rent. As a consequence of the revision there was short payment of rent. According to complainant from April 2002 onwards he is entitled to get @ Rs. 55/- per day. According to complainant from April 2002 to 2^nd November 2006 he is entitled to get Rs. 92,235/- towards rent. Complainant has also claimed @ Rs. 55/- per day till refund of the principal amount on March 2009. Admittedly, there was delay in refund of the principal amount with assured interest. As per Ext. P1 complainant is entitled to Rs. 55/- per day for 10 years( ie till 2/11/2006). Complainant has claimed the said interest / rent from April 2002 to 2/3/2009, the date on which the final payment was made by the opposite party. On perusal of Ext. P1 it is seen that complainant can claim daily Rs. 55/- till the date of maturity ie till 2/11/2006. On that day the principal amount with arrears of rent were not given by opposite parties, actually the principal amount was refunded only on 2/3/2009 till that day the principal amount Rs. 1,00,000/- with arrears of rent for interest was with the opposite party. Had opposite party returned the principal amount with arrears of rent on due date complainant could have utilised the said amount for other purposes from which income could be generated. Since the said amount was not given by opposite party on due date we find delay in the refund of the principal amount with arrears of rent is nothing but deficiency in service from the side of the opposite party by which complainant had suffered a loss for which complainant is entitled to get compensation which can be granted by way of interest. As per Ext. P1 complainant is entitled to get Rs. 55/- per day till 02/11/2006, thereafter the claim of the complainant for Rs. 55/- daily from the opposite party from 2/11/2006 to 2/3/2009 cannot be allowable. Rather we find justice will be well met if complainant is allowed a compensation by way of interest @ 12% on the principal amount of Rs. 1,00,000/- and arrears of rent promised by the opposite party. According to complainant he is entitled to get Rs. 92,235/- towards rent for the period April 2002 to 2/11/2006. As such as on 2/11/2006 complainant was entitled to get it Rs. 1,92,235/- ( Rs. 1,00,000 + Rs. 92,235). It has been contended by the complainant that he had received rent of Rs. 51,775/- till 2^nd November 2006. If we substract Rs. 51,775/- from the estimate rent of Rs. 92,235/-, the balance amount of arrears would come to Rs. 40,460/- thereby on due date of 2^nd November 2006 complainant was entitled to get the balance of rent of Rs. 40,460/- plus the principal amount Rs. 1,00,000/- together constitute Rs. 1,40,460/-. Complainant has claimed the interest @ 20.75% due to delay in payment of daily rent and principal amount of Rs. 1,00,000/-. Since the amount was not paid on due date on 2/11/2006 complainant is entitled to get reasonable interest @ 12% from 2^nd November 2006 to 2/3/2009. Admittedly, complainant received Rs. 60,735/- on 14/04/2007 and Rs. 1,05,375/- on 2/03/2009 thereby after 2/11/2006 complainant had received Rs. 1,66,110/-. If we add 12% for Rs. 1,40,460/- from 2/11/2006 to 2/3/2009 it would come around Rs. 37,990/- by adding the same to the amount of Rs. 1,40,460/- the total amount would come to Rs. 1,78,450/- thereby we find complainant is entitled to get Rs. 1,78,450/- as on 2/3/2009 out of which complainant had received Rs. 1,66,110/- (Rs. 60,735 + Rs. 1,05,375) the balance would come to Rs. 12,340/-. Complainant has claimed compensation in the form of interest as a consequence of delay in payment of Rs. 55/- daily at various months @ 20.75% the said claim cannot be considered. Complainant cannot claim cumulative interest. Of course there was delay in payment of Rs. 55/- per day from April 2002 to 2/3/2009 and in refund of the matured amount, to complainant which would definitely amount to deficiency in service from the side of the opposite party for which complainant is entitled to compensation which we fix at Rs. 5,000/-. Thus taking the overall situation we are of the view that justice will be well met if opposite party is directed to pay Rs. 12,340/- to complainant along with compensation of Rs. 5,000/- for deficiency in service on the part of opposite parties.

In the result, complaint is partly allowed. Opposite parties shall jointly and severally pay the complainant a sum of Rs. 12,340/- to complainant along with Rs. 5,000/- as compensation and Rs. 2,000/- as cost within two months from the date of receipt of this order.

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 15^th day of October, 2012.

Sd/-

G. SIVAPRASAD,

PRESIDENT. Sd/-

BEENA KUMARI .A,

MEMBER.

Sd/-

S.K. SREELA,

ad. MEMBER.

C.C.No: 265/2009

APPENDIX

1. Complainant's documents:

P1 : Copy of the membership certificate issued by opposite party

P2 : " letter dated 11/07/2002 issued to Mrs. Molly Philip by SUT Hospital

P3 : " letter dated 29/08/2002 issued by the complainant to the SUT Hospital

P4 : " memorandum of cheques unpaid issued by Canara Bank

P5 : " letter dated 5/2/2007 sent by the complainant to the opposite party

P6 : " letter dated 12/04/2008 issued by MD., SUT Hospital to the complainant.

P7 : " letter dated 17/04/2008 from the 2^nd opposite party to the complainant.

P8 : " cheque dated 15/03/2009 for Rs. 1,05,375/- issued by opposite party to the complainant.

II. Complainant's witness:

PW1 : Philips Varghese

IV. Opposite parties' documents : NIL

V. Opposite parties' witness:

DW1 : K. Haridas

Sd/-

PRESIDENT