SRI.K. VIJAYAKUMARAN, PRESIDENT.

            This is a complaint for seeking  compensation, deficiency in service of the opp.party

          The averments in the complaint can be briefly summarized as follows:

          The complainants joined the NSS  Karayogum  of their  kara in connection with the marriage of their daughter.  They met the secretary of N.S.S. Karayogam No.4240, Venga south , on 28.3.2004 and entrusted  the Vivaha Pathrika .  The marriage of their daughter was scheduled to be held on 5.5.2005.   The Vivahapathriks  was entrusted with the Secretary on 3.3.2005.   This karayogem was formed by 8 nair families on 2.4.1987 taking   contribution of  Rs.5,000/- each and after registration it is functioning from that date.   The  complainant was not  in the karayogem during that time but was employed  in the Army.  Therefore the complainant and his wife could not join the karayogem.   The complainant retired from service  on  1.10.97.  The secretary demanded that the complainants  shall  pay Rs.5,000/- as contribution for joining the karayogem in addition to Rs.200/- towards notice charges and Rs.100/- towards expenses.   The above sum was entrusted with the secretary at his residence in the presence of  one Kunjukrishnapilla, Karal Veedu, Venga.P.O., and one  K.K. Omanakuttan Pillai, Vazhappally Thekkathil Veedu, Venga.P.O. on 3.3.2005 .   The secretary informed them that the receipts for  the above sum will be issued along with the vivahapathrika. The issuance of vivahapathrika is one  the services rendered  by the Nair Service Society  to the members of the karayogem.  The vivhapathrika is mandatory for customary marriages.   But the secretary inspite of several demands did not give the vivahapathrika nor convened  the general body.   The vivahapathrika was not given despite the fact that the secretary is an immediate neighbour of the complainants.   If vivahapathriks is give the amount collected by the secretary will have to be credited in the account of Karayogem  and therefore with a view to keep the amount  for himself he did not issue the vivahapathrika.  The action of the Secretary caused mental agony and harassment to the family of the complainant.   The secretary committed deficiency in service.  Hence the complaint.

          The opp.party filed version contending that the complaint is not maintainable either in law or on facts.   Complainants are not  consumers within the purview of the Consumer Protection Act.   The averment that the complainant joined the NSS Karayogem of which the opp.party was the secretary is false.   The averments that application for vivajapathrika was entrusted with the secretary on 3.3.2005 is also false and hence denied.   One Kunjukrishnapill who was the president of N.S.S. Karayaogem No.4240 and a close friend of the first complainant manipulated receipts towards membership and  monthly contribution.   The said Kunjukrishnapillai told the opp.party when he explained the byelaw  that the application will be placed before the general body and necessary sanction obtained.   Accordingly the opp.party issued receipts .     On 2.4.2004 the Karayogem  No.2100 of Venga South  sent a letter to the Karyagem Registrar that the 2^nd complainant and her father are members of their Karayogem and a copy of the same was forwarded to the opp.party.   As per the  Byelaw a person who is a member of a Karayogem is not entitled to apply for membership in another Karayogem .   Therefore the complainants have not right to get membership in the Karayogem of the opp.party.  It was also known that  the complainants applied for membership in the NSS Karayogem No.3776 which  was also rejected.  The NSS union, Karunagappally  issued direction to the opp.party that the complainant was not to be given membership in their Karayogem in pursuant  to a  complainant dated 2.4.2004 .   During the tenure of  Karalil Kunjukrishna Pillai as Karayogem  President there was allegation regarding  misappropriation of  contributions given by the members. allegation against him.  He is  also issued letter forging the seal and the letter pad of the Karayogem informing that the Karayogem meeting will be held in the house of the complainant.   Their upon the opp.party sent a complaint to the NSS Union secretary, Karunagappally.   The averment that the opp.party demanded Rs.5,000/- for Vivahapathrika and Rs.200/- for expenses and Rs.100/- as contribution  is false and hence denied.   The opp.party has not received any amount from the complainants.  Since the complainants are not the members of the opp.party Karayogem the Vivahapathrika was not issued by the opp.party.   The complainant sustained no damages or mental agony due to the acts of the opp.party as NSS Karayogem Secretary or otherwise.   The account shown in the complaint are not correct.   The complainants are not  entitled to get any of the relief allowed.  Hence the opp.party prays to dismiss the complaint with their costs.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the party of the opp.party

2.     Reliefs and costs.

Points:

          The grievance of the complainants is that though they are members of NSS Karayogem Venga 4240 they were not given Vivahapathrika in connection  with the marriage of their daughter which is a deficiency in service on the part of the opp.party.  It is the further case that opp.party has collected Rs.5000/- from the 1^st complainant for this purpose but vivahapathrika was not issued as the opp.party has wanted the amount for himself and that if vivahapathrika is issued the amount will have to be deposited in the Karayogam.

          The contention of the opp.party is that the complainants are not members of the Karayogam where he is the Secretary.  It is argued that Ext. D1  series application would show that no decision has been taken on the application submitted by the complainants and only if the general body has  allowed the same they can become members of the karayogam.  In fact, Ext. D1 is not dated.   The same was in the possession of the opp.party is obvious from its production of the same  by opp.party.   Ext.P1 series  receipts shows  that it was issued on 28.3.2004 to the  complainants after collecting   admission fee from them so it is obvious that Ext. D1 series has been received by the opp.party on 28.3.2004 .  Opp.party has lno case that Ext.P1 series application were rejected due to any reason Ext.P1 series  was issued by the opp.party is admitted in cross examination .  But  his case is that the same was issued at the instance of PW.2 , the  then president.  But there is no material worth believable in support of that contention .  Opp.party as DW.1 has admitted that he is thorough with the Bylaws.   DW.1 has admitted in cross examination at page 2 Ext.P2 .   Ext. P1 gcJfkdX dgSulzA rHdjuflnk  Ext.P2 ikA dgSulzf\fjsRyflnk.  He would further admit in cross examination that he is the custodian of the receipts and that the receipts will not be issued as per  the direction if any one else.   To use his own words  aMxxigksm rjGp\SpC YedlgA  receipt rh\dlR elmjh\h\.  If so, it can safely be inferred that  it was issued by  opp.party at  his own free will  and not as per the direction of PW.2  and  the intention was for  giving membership to the complainants..

          PW.1 has stated that himself and his wife have attended 4 general body meetings after getting membership.  His version was corroborated by PW.2 .  However DW.2 has denied  the same.  DW.1 has stated that the minutes of the general body meetings are being maintained and this aspect could  be easily proved by producing  the minutes.   But the minutes were not produced .  The non production of the minutes leads to an irresistible conclusion that what is stated by PW.1 is true.

          Though opp.party would raise a contention that a member of one Karayogam cannot acquire membership in another Karayogam and that the complainants are members of Karayogam No.2100 of Venga West.  For establishing that aspect Ext.D6 and D7 were produced.   Ext. D6 is a letter alleged to have been issued by the secretary of the Karunagappally NSS Karayogam union.  But Ext. D6  was not properly proved . It was  proved through DW.1 and so its veracity cannot be safely accepted.   Ext.D7 is issued by DW.2  to the  Registrar of NSS  Changanassery.  There is absolutely  nothing in Ext. D7 to show  that the same was actually dispatched   DW.2 the author of Ext. D7 admitted  that it is the Secretary of the Karayogem who is doing the correspondence work.  clPgn scYd}yjulnk tqkfkr\rfk\;  Tfk BlR fr\srulnk tqkfjufk\”.  There is no  satisfactory explanation as to why he has done so DW.2 further admitted that no reply has been received for Ext. D7.   So  the argument of  the complaint that  it is a letter manipulated for  the purpose of this case cannot be ruled out.

          Ext. P7 Byelaw stipulates conditions for eligibility for membership in clause 6 [1] to [4] .  Even DW.1 has  no case that the complainant have violated any of those  condition.   All that it is stated is that the complainants are members of another Karayogam which is not a bar for membership in another Karayogam.  It is also worth pointing out in this context that DW.2 has admitted that the complainant is not a member of their Karayogam According to him the Father, Mother, Brother and  wife  of PW.1are members of his Karayogem,.  In cross examination DW.2 stated that  he will produce documents to show that the 2^nd complainant is a member of his Karayogam but  no such document was produced from which it is obvious that she is not a member of that Karayogam.   Even assuming that the father, mother, brother etc are   members of a particular Karayogam it is no reason to deny membership to the complainants in Karayogam No.4240 so long as they have not violated the conditions stipulated in Clause 6 [1] to [4] .  So if membership was not given so far  to the complainants it clearly establishes deficiency in service on the part of opp.party.  However on a perusal of the entire  evidence we have no hesitation to hold that the complainants are members of Karayogam No.4240.

          The contention of the complainants is that the opp.party has not given vivaha pathrika to the marriage of their daughter after collecting necessary fee which  is deficiency in service on the part of opp.party.   According to PW.1 he paid Rs.5300/- to the opp.party on 3.3.2005 at the residence of DW.1  towards donation, notice charges and  Amsadayam in the presence of PW.2  for the vivaha pathrika of his daughter.  PW.2 has also stated that he was present when PW.1 paid   the above sum.  Both of them have also stated that one Omanakuttan Pillai was also present at that time.   The learned counsel for opp.party would argue that from non examination of the said Omanakuttan Pillai it can be inferred that the transaction alleged is not true.   That  argument  does not appeal to us .PW.1 has examined PW.2 to prove this aspect and thus discharged his burden and nothing has been brought out in the cross examination to discredit PWs.1. and 2 .   The opp.party could have examined the said Omankuttan Pillai  to disprove the evidence of PWs1 and 2  which they failed to discharge.  In our view the complainant has established beyond doubt that he has paid Rs.5300/- to the opp.party in connection with the vivaha pathrika of his daughter.  PW.2  has stated that lthe usual practice is that the receipt for such sums will be issued subsequently.   This aspect was not challenged in cross examination.

          It is an admitted fact that no vivahapathrika was issued to the complainant.   DW.2 has stated in cross examination page 2 and 3  that giving vivaha pathrika is a service rendered by Karayogams.  DW.2 has further admitted that the Karayogam will not recognize marriages  conducted  without vivahapathrika.   To use his own words “ ijil<eYfjd h.ju\]lsf ijil<A rmf\fjulH dgSulzA LAzJdlgA rHdkdujh\h;.”  So the mental agony and harassment suffered by the complainants can be easily  gathered due to the non-issuance of vivahapathrika..

          An argument was advanced by the learned counsel for the opp.party that no where in the byelaw it is mentioned that the Karayogam is bound to issue vivaha Pathrika and so the complaint has no right to proceed against the Karayogam or its Secretary.  It is to be noted that DW.2 the witness of the opp.party who is a President of another Karayogam has stated that giving vivahapathriks is one of the services rendered by Karayogams and that is not challenged by the opp.party.   Even if it is not there in Ext.P7 Bylaw it is a customary practice  is obvious from the evidence of PW.2  and DW.2  who are Presidents of two Karayogams.   Whether it is recognized by the Byelaw or not when the opp.party has accepted the amount for that purpose he has a duty to comply with that and failure to do so will amount to deficiency in service.  NSS Karayogem are rendering service to its member is obvious from the name ‘Nair Service Society.’   For all that has been discussed above we  hold  that the complaints are members of the NSS Karayogam  No.4240 and that there is deficiency in service on the side of the opp.party who is the secretary of that Karayogam.  Point found accordingly.

          In the result the complaint is allowed directing the opp.party to refund the complainants Rs.5300/- with interest @ 9% p.a. from 3.3.2005 .   The opp.party is also directed to pay the complainants Rs.5000/- towards compensation and Rs.2000/- towards costs.   The order is to be complied with within one month from the date of this order.

            Dated this the 28^TH        day of August, 2009.

                                                                                    I N D E X

List of witnesses for the complainant

PW.1. – G. Raghavan Pillai

PW.2. – Kunjukrishna Pillai

List of documents for the complainant

P1. – Receipts

P2. – Receipts

P3. – Weddomg ;etter

P4. – Application to Secretary dated 3.3.2005

P5. – Letter dated 20.12.2003

P6. – Certificate issued by President.

P7. – Karayogem Byelaw

List of witnesses for the opp.parties

DW.1 –Raveendran Pillai

DW.2. – Madhavan Unnithan

List of documents for the opp.parties

D1. – Member application

D2. – Letter sent by President NSS Karyogam No.4240 to the complainant

D3. – Letter dated 16.1.2005

D4. – Letter dated 12.3.2007

D5. – Letter dated 16.2.2005

D6. – Letter dated 10.11.2004

D7. – Letter dated 2.4.2004.