D.o.F:30/1/2009
D.o.O:3/03/2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.28/09 &CC.29/09
Dated this, the 3rd day of March 2010.
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.P.P.SYAMALADEVI : MEMBER
T.V.Sudhakaran,
Near Palai Road, : Complainant.
Puthariyadukkam.P.O,Nileshwar .
(in person)
1. C.V.KrishnanS/o Koman,
Vainingal House,Puthukkai,Nileshwar.
2. V.Subramanyan, S/o Kunhundan,
Near Manthampurathu kavu,Nileshwar.
(Adv.Anantharaman,Kasaragod)
3. C.V.Ranjith S/o C. V.Krishnan : Opposite parties
Vainingal House,Puthukkai,Nileshwar
(.E.Sukumaran, Adv for Ops 1&3)
4. President, Vainingal Vairajathan
Eshwarante Madam vaka kshethra-
Committee, Vainingal,Puthukkai Po.(exparte)
COMMON ORDER
SRI.K.T.SIDHIQ : PRESIDENT
In both cases, the complainant and opposite parties are same and the amount/issue involved is also similar. Hence a common order is passed .
The case of the complaint in brief is that he joined in the chitty conducted by opposite parties 1 to 4. But they appropriated the installments paid in the chitty. The total chitty amount on maturity to be received was Rs.105000/-. He joined in the chitty on June 2006 and paid 10 monthly installments of Rs.5000/- each totaling Rs.50,000/-each in CC.28/09 & CC.29/09. During the currency of chitty complainant came to read in an evening daily that the chitty is under collapse and therefore he contacted 2nd opposite party who is working as the Manager cum kuri committee member to know about the veracity of the said news. At that time 2nd opposite party told that those news are spread by their enemies and such news would not have published if they paid some amount to the said newspaper. Later after the shattering of kuri/chitty he approached opposite parties 1&2 for the amount he paid in the chitty then they told him that the amount will be paid in May 2007. Subsequently they extended the date to 3/7/2007. Thereafter opposite parties 1&2 absconded closing the chitty office. Later the police arrested them. Now the opposite parties 2&3 are working as govt. servants. Exhausting all the remedies to get the amount back, the complainant filed this complaint for necessary reliefs.
2. Opposite parties 1&3 filed version jointly denying the case of the complainant. According to them they have not conducted any chitty business. The amounts collected from them are not credited in the committee accounts. The committee has not authorized any person to collect the amounts on behalf of the committee in chitty transaction. The entries made in the passbooks are not true, valid or genuine and it is a concocted document. The Vairajathan Easwaran Kshethra Committee is a registered committee having its own by-law and as per the bylaw the President alone having the right to represent the committee. 3rd opposite party is not a member or the office bearer of the Vairajathan Easwaran Kshethra Committee . He is not liable to pay any amount to the complainant. The opposite parties Pudukai Vainingat Sree Vairajathan Easwaran Kshethra Committee is a registered society under the Societies Registration Act and 3rd opposite party is the treasurer of the committee. The said committee decided to construct a Maha kshetram of the deity Shri Vairajathan Easwaran along with a Kalyana Mandapam, old age home and school building . The cost estimated for the said construction was Rs. Ten crores/- . It is decided by the opposite parties committee to raise the said amount by way of donations and collections from devotees and public. For the convenience of the devotees and public the committee opened day deposit and SB account in various financial institutions. Accordingly they made deposits. In the meanwhile the committee faced some financial straits due to the payment of income tax. Some donators demanded return of donations given for constructions and adopted dubious methods to get back the said amount lying in various banks in the name of opposite parties committee. The opposite parties committee being a donatory is not liable to return the donations. The relief sought is against opposite parties is opposed to the provisions of societies registration Act and the rules and regulations of the opposite parties committee. As per the registered bye law opposite parties committee President alone is having power to represent the committee. The secretary has no right to represent the committee. There is no privity of contract between the parties which could be enforced in law as per the provisions of the prize chits and money circulation (Banning) Act 1978 on the one hand and on the other hand it is opposed to public policy. The opposite parties being the treasurer of the society is not liable to be sued for recovery of the amount. They are unnecessary parties to the proceedings and the complaint is liable to be dismissed.
3. Version of 2nd opposite party.
Opposite party No.2 filed version . According to him he neither conducting any chit fund nor joined the complainant in the chitty. He was never a manager or member of the committee of chit fund run by 1st opposite party and one Balachandran. Opposite party No.1 was the President and Balachandran was Secretary of the Chit Fund and entire assets and records of the chit were having maintained and utilized by them. The complaint is bad for non joinder of necessary parties since Balachandran is not made a party. 2nd opposite party was working as a clerk for a temporary period on daily wages under Ist opposite party and Balachandran. 2nd opposite party had no control over the day to day affairs of the office run by them. Only on some occasions alone 2nd opposite party had to sit in the office. The complainant did not approach him on seeing the news in the daily. There was no privity of contract as creditor and debtor between the complainant and 2nd opposite party. He never absconded from the village as alleged by the complainant and there was no necessity for him for the same. Similar complaints filed by 3rd parties against the opposite party were entered in dismissal earlier exonerating him. The complainant is not a consumer and there is no contract, service or relationship between him and the opposite party. Complainant has not paid any amount to him as to pay it to opposite parties 1&2. The claim of the complainant is without any basis and it is highly excessive. 2nd opposite party has not caused any damages , mental pain or agony to the complainant. The alleged amounts claimed as deposit and interest are also without any basis and not correct. 2nd opposite party has not done any thing detrimental to the interest of the complainant. Nobody contacted or visited his house and he has not promised anything to anybody. Hence the complaint deserves to be dismissed.
4. . Complainant filed affidavits in support of his claim reiterating what is stated in the complaint. The passbooks issued bearing the seal of opposite parties committee is produced and marked as Ext.A1. in CC.28/09 and Ext.A1 in CC29/09. On the side of opposite parties, OP.NO.3 produced registered by-law marked as Ext.B1 in CC.28/09. Both sides heard and the documents produced.
5. Now the points arises for consideration are that whether there is any deficiency in service on the part of the opposite parties in not refunding the chitty instalments to the complainant and what is the relief and cost?
6. The case of the complainant is that he had deposited 10 instalments of Rs.5000/- each in the chitty conducted by opposite parties 1 to 4. Ext.A1& Ext.A1 are the pass books issued by opposite party NO.4 committee evidencing the payments of chitty instalments. The passbooks of both cases show that the complainant deposited Rs.50000/- each in the chitty No.49® &. Chitty No.47(m)
7. Opposite parties 1&3 filed separate counter affidavits. However both of them said in their affidavits that the complainant paid Rs.5000/- monthly from June 2006 onwards and the total sala of the chitty was Rs.1,05,000/- for 21 months as per book Nos. 49 ® & 47(M) in both cases. They also added in their affidavits that from 6/6/06 to 6/3/3007 complainant paid an amount of Rs.50,000/- to the kuri and the 3rd opposite party further said in his affidavits that he is not a member or office bearer of the Sree Vairajathan Easwaran Kshethra Committee and the complainant impleaded him only to harass him. According to him, he is not liable to pay any amount to the complainant and he has not received any chitty amount from the complainant.
8. 2nd opposite party in his counter affidavits has stated that he was not doing any chit fund and he has not joined them as chittalan. 2nd opposite party was working as a daily wage employee for a short period with Ist opposite party. Apart from him other employees were also working in the said office and they were also collecting the amount from the subscribers. Except working for some period as daily wage employee he has no other connection with 1st opposite party and opposite party No.4 or with the chit fund run by them or with the complainant. Hence he is an unnecessary party to the above case.
9. Opposite party No.4 , Sree Vairajathan Easwaran Kshethra Committee, was exparte in the proceedings.
10. 3rd opposite party .Ranjith produced the registered by-law of the Vairajathan Easwaran Kshethra Committee to show that he is not related to the affairs of the committee. On perusal of the said by-law it is seen that he is only a witness to the registration of the society. Complainant also not produced any document to connect 3rd opposite party with the society. But as against the contention of 2nd opposite party that he is only an employee of the 4th opposite party committee and not a member to the opposite party No.4 committee . It is proved from Ext.B1 that opposite party No.2 is not only a member but he is an executive committee member of the committee. The executive committee of the society was having wide powers as per the by-law. Therefore 2nd opposite party cannot be treated only as an employee or collection agent of the chitty run by opposite parties 1&4 but he was actively engaged in the conducting of the chitty on behalf of opposite party No.4 committee to which he was an executive member. Therefore he is personally also liable to compensate the complainant for the loss hardships caused to him. The opposite parties admit that the chitty conducted by them does not have any required license from the authorities. Moreover, the Ext.B1 also confers no authority on the Society to conduct any chitty. Hence what the Society done by conducting the chitty was beyond their powers and therefore they can in no way get the protective cover of the society if any they have any such shield. Therefore, the deficiency is more grave and in no way opposite parties can escape from paying compensation to the complainant.
11. The Hon’ble National Consumer Disputes Redressal Commission in the case of Ashish Ramesh Chandra Birla & ors. Vs. Muralidharar Rajdhar Patil & ors reported in 2009 CTJ 20 (CP) (NCDRC) has held that in certain case the directors of corporate body can be personally liable for the deficiency in service of the corporate body. In that case the society involved was one registered under Co-operative societies Act. There the Hon’ble Commission has observed
We are also aware that a large number of Cooperative Societies have been superseded because of the mismanagement and misappropriation of funds by the Chairman and the Directors of the Society. They even run the society as if it is their personal fiefdom. We would like to remove the Corporate/Co-operative veil and hold that Directors are responsible for the deficiency in service by the society.
Applying the principle enunciated in the above order we have no hesitation to hold that 2nd opposite party is also personally liable to compensate the complainant. In these cases the further contention of 2nd opposite party is that the complaint is bad for non-joinder of necessary parties. That is also not sustainable since no complaint can be dismissed for such technicalities and justice cannot be denied basing on the rules of technicalities. 2nd opposite party also taken a defense that formerly in some cases he was exonerated from the liabilities. But we make it clear that in those cases 2nd opposite party was impleaded only as an agent of the chitty conducted by opposite parties 1 & 4 and one Balachandran and in those cases his status is different. However there are no documents produced by the complainant to impose liability on 3rd opposite party. Hence we exonerate 3rd opposite party from the liabilities.
In the result, complaints are allowed and opposite parties Nos 1,2 and 4 jointly and severally directed to refund Rs.50, 000/- in CC.28/09 and Rs.50,000/- in CC.29/09 with interest @9% per annum from the date of complaint till payment with a cost of Rs.3000/-each to the complainant. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Opposite party No.3 is exonerated from the liabilities.
MEMBER MEMBER PRESIDENT
Ext.A1s- chitty pass books
eva/
D.o.F:30/1/2009
D.o.Remand Order:19/12/2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.28/09 &CC.29/09
Dated this, the 19th day of December 2012.
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
T.V.Sudhakaran,
Near Palai Road, : Complainant.
Puthariyadukkam.P.O,Nileshwar .
(in person)
1. C.V.KrishnanS/o Koman,
Vainingal House,Puthukkai,Nileshwar.
2. V.Subramanyan, S/o Kunhundan,
Near Manthampurathu kavu,Nileshwar.
(Adv.Anantharaman,Kasaragod)
3. C.V.Ranjith S/o C. V.Krishnan : Opposite parties
Vainingal House,Puthukkai,Nileshwar
(.E.Sukumaran, Adv for Ops 1&3)
4. President, Vainingal Vairajathan
Eshwarante Madam vaka kshethra-
Committee, Vainingal,Puthukkai Po.(exparte)
5. V.Kunhikrishnan,
S/o Krishnan Nair, Po. Haripuram,
Anandheshawaram, Kasaragod Dt.
6. Pradeep Kumar, S/o V.Appukuttan,
Po.Chayyom, Via.Nileshwar.
7. Unnikrishnan C.V, S/o T.V.Krishnan,
Thayannur, Anandashram Via.
8. V.Kubumundhan, S/o Muruchi,
Nileshwar,Kasaragod Dt.
9. P.V.Prabhakaran, S/o V. Kunhiraman,
S/o V.Kunhikoman, Po. Chayyom. Kasaragod.
(Op.6&9 Adv.M.C.Jose,Hosdurg)
10. T.V.Krishnan , S/o Kunhambu,
Po.Thayannur,Kasaragod.
11. C.V.Rajan, S/o Karthambu,
Po.Thayannur,Kasaragod.
12. M.K.Anilkumar, S/o Kunhikrishnan,
Po.Haripuram, Kasaragod.
13. C.V.Balakrishnan, S/o Karthambu,
Po.Karindalam, Kasaragod.
14. V.Balachandran, S/o V.Kunhikrishnan,
Po.Haripuram, Kasaragod.
15. kshethra Committee, Vainingal Vairajathan
Easwarante Madam vaka, Kshethra Committee.
16. Smt. Lakshmi,W/o Late V.KunhiKrishnan ,
Po. Haripuram,Anandheshawaram, Kasaragod Dt.
17. Aravindan,S /o Late V.KunhiKrishnan ,
Po. Haripuram,Anandheshawaram, Kasaragod Dt.
18. Padmanabhan, S /o Late V.KunhiKrishnan ,
Po. Haripuram,Anandheshawaram, Kasaragod Dt.
(Ops 16 to 18 Adv.Kumaran Nair, Kasaragod)
COMMON ORDER
SRI.K.T.SIDHIQ : PRESIDENT
This complaint is again came up for our consideration in view of the judgment of the Hon’ble State Consumer Disputes Redressal Commission dtd.12/10/2010 in Appeal No.198/10 & 202/2010.
Hon’ble State Commission in Para .6 of their judgment has observed as below:
‘’ On hearing both sides and on perusing the records we find that the President is authorized to represent the committee as per by-law and as per by-law the documents relating to the administration of the committee are to be signed by the President, Secretary and Treasurer. Admittedly the chitty was conducted by the committee as Foreman so that the committee is to be made a party represented by the President because the President is empowered to represent the committee. Secretary is a necessary party because he is also empowered to sign the documents on behalf of the committee along with the President and Treasurer. As per the by-law the Secretary is the sole person to maintain all the records and registers of the committee and he is also responsible to maintain the day to day affairs of the committee. As admitted by the 1st and 3rd opposite parties the committee is a registered one and the committee as such is not made a party to the complainant. Only the President of the committee is impleaded, at the same time the Secretary who is authorized to execute the documents for and on behalf of the committee is not made as a party. So for a proper and effective disposal of the issues involved in the case the committee and its office bearers are to be made parties to the complaint. Moreover as per the by-law the general council is the body to represent the committee and it is to be arrayed as party to the complaint. The mere fact that the appellant was exonerated from the liability by the Forum below in some other complaints can not be taken as a ground to hold that the appellant in this complaint is also entitled for exoneration. The materials on record especially the by-law of the committee would make it clear that the appellant being the executive member is a necessary party and answerable and responsible for the amounts due to the consumers like the complainants. So a remand is made for the limited purpose of making tort feasers (the members of the committee) as parties to the complaint and get the liability apportioned among the members and also on the properties of the society viz Vairajathan Easwaran Kshethra Committee. It is made clear that the finding regarding the entitlement of the complainant to get refund of the amounts with interest accrued there on will remain sustained. It is true that all the tort feasers are not necessary parties in a proceeding like the complaint herein. But for an effective disposal of the matter and for doing substantial justice to the parties, the matter is to be remanded. Hence we do so.
In the result the appeal is allowed to the extent that the matter is remanded to the Forum below for the limited purpose of getting the committee and its members as parties to the complaint and to have a proper and effective disposal of the same on merits after permitting all the parties including the parties to be impleaded to adduce evidence in support of their contentions. The impugned order is set aside for the limited purpose as indicated above. It is made clear that the complainant should take necessary steps to get the committee and its members impleaded. The parties are directed to appear before the Forum on 30-11-2010. As far as the present appeal is concerned there shall be no order as to costs.’’
2. In view of the above judgment complainant impleaded opposite parties 5 to 15 as the supplemental opposite parties. Opposite parties 5 to 14 were impleaded as they are the members of the Executive Committee of Vairajathan Easwaran Kshethra Committee Society which is registered under the societies Registration Act. The Vairajathan Easwaran Kshethra Committee is impleaded as supplemental opposite party No.15.
3. After impleading the supplemental opposite parties 5 to 15 notices were issued to all of them . Opposite parties Nos.1 to 4 and 6,7, 9to 13 appeared in response to the notice. Opposite parties 1,2,3,6,7,9,10,11,12 filed their version. Notices to Opposite parties 4,8, 14 & 15 are made through substituted service ie, publication in news paper daily. Even after publication of notice Opposite parties 4,8,14,15 remained absent. Hence they had to be set exparte. Notice to OP.No.5 returned unserved since he is expired. Subsequently complainant impleaded the legal heirs of OP.NO.5 as supplemental opposite parties No.16 to 18.and all of them filed their versions.
4. The case of the complaint in brief is that he joined in the chitty conducted by opposite parties 1 to 15. But they appropriated the installments paid in the chitty. The total chitty amount on maturity to be received was `105000/-. He joined in the chitty on June 2006 and paid 10 monthly installments of ` 5000/- each totaling `50,000/-each as per the passbooks produced in CC.28/09 & CC.29/09. During the currency of chitty complainant came to read in an evening daily that the chitty is going to collapse and therefore he contacted 2nd opposite party who is working as the Manager cum kuri committee member to know about the veracity of the said news. At that time 2nd opposite party told that those news are spread by their enemies and such news would not have published if they paid some amount to the said newspaper. Later after the shattering of kuri/chitty he approached opposite parties 1&2 for the amount he paid in the chitty then they told him that the amount will be paid in May 2007. Subsequently they extended the date to 3/7/2007. Thereafter opposite parties 1&2 absconded closing the chitty office. Later the police arrested them. Now the opposite parties 2&3 are working as govt. servants. Exhausting all the remedies to get the amount back, the complainant filed this complaint for necessary reliefs.
5. Version of Opposite parties 1&3
According t Opposite parties 1&3 they have not conducted any chitty business. The amounts collected from them are not credited in the committee accounts. The committee has not authorized any person to collect the amounts on behalf of the committee in chitty transaction. The entries made in the passbooks are not true, valid or genuine and it is a concocted document. The Vairajathan Easwaran Kshethra Committee is a registered committee having its own by-law and as per the bylaw the President alone having the right to represent the committee. 3rd opposite party is not a member or the office bearer of the Vairajathan Easwaran Kshethra Committee . He is not liable to pay any amount to the complainant. The opposite parties Pudukai Vainingat Sree Vairajathan Easwaran Kshethra Committee is a registered society under the Societies Registration Act and 3rd opposite party is the treasurer of the committee. The said committee decided to construct a Maha kshetram of the deity Shri Vairajathan Easwaran along with a Kalyana Mandapam, old age home and school building . The cost estimated for the said construction was Rs. Ten crores/- . It is decided by the opposite parties committee to raise the said amount by way of donations and collections from devotees and public. For the convenience of the devotees and public the committee opened day deposit and SB account in various financial institutions. Accordingly they made deposits. In the meanwhile the committee faced some financial straits due to the payment of income tax. Some donators demanded return of donations given for constructions and adopted dubious methods to get back the said amount lying in various banks in the name of opposite parties committee. The opposite parties committee being a donatory is not liable to return the donations. The relief sought is against opposite parties is opposed to the provisions of societies registration Act and the rules and regulations of the opposite parties committee. As per the registered bye law opposite parties committee President alone is having power to represent the committee. The secretary has no right to represent the committee. There is no privity of contract between the parties which could be enforced in law as per the provisions of the prize chits and money circulation (Banning) Act 1978 on the one hand and on the other hand it is opposed to public policy. The opposite parties being the treasurer of the society is not liable to be sued for recovery of the amount. They are unnecessary parties to the proceedings and the complaint is liable to be dismissed.
6. Version of 2nd opposite party.
Opposite party No.2 filed version . According to him he neither conducting any chit fund no prompted the complainant to join in the chitty. He was never a manager or member of the committee of chit fund run by 1st opposite party and one Balachandran. Opposite party No.1 was the President and Balachandran was Secretary of the Chit Fund and entire assets and records of the chit were having maintained and utilized by them. The complaint is bad for non joinder of necessary parties since Balachandran is not made a party. 2nd opposite party was working as a clerk for a temporary period on daily wages under Ist opposite party and Balachandran. 2nd opposite party had no control over the day to day affairs of the office run by them. Only on some occasions alone 2nd opposite party had to sit in the office. The complainant did not approach him on seeing the news in the daily. There was no privity of contract as creditor and debtor between the complainant and 2nd opposite party. He never absconded from the village as alleged by the complainant and there was no necessity for him for the same. Similar complaints filed by 3rd parties against the opposite party were entered in dismissal earlier exonerating him. The complainant is not a consumer and there is no contract, service or relationship between him and the opposite party. Complainant has not paid any amount to him as to pay it to opposite parties 1&2. The claim of the complainant is without any basis and it is highly excessive. 2nd opposite party has not caused any damages , mental pain or agony to the complainant. The alleged amounts claimed as deposit and interest are also without any basis and not correct. 2nd opposite party has not done any thing detrimental to the interest of the complainant. Nobody contacted or visited his house and he has not promised anything to anybody. Hence the complaint deserves to be dismissed.
7. Opposite party No.4 , Sree Vairajathan Easwaran Kshethra Committee, is exparte in the proceedings.
8. Version of Opposite parties 6 & 9:
According to Opposite parties 6 & 9 they are not the members of the Kshetra committee. It is only after receiving the notice from this Forum they found that their signatures were forged and included in the list of office bearers of opposite party No.15 Kshetra committee. They had not conducted any chitty at any time. Hence they are unnecessary parties to the proceedings.
9. Version of Opposite parties 7,10,11 &13:
According to the joint version filed by Opposite parties 7,10,11 &13 they have no connection with OP.NO.15 Sree Vairajathan Easwaran Kshethra Committee. They have not signed in the bye law of OP.NO.15. The bye-law submitted before the different commercial banks for opening accounts are different. The bye law registered with No.93/IV/06 before the Nileshwar Sub Registrar Office is a fake one and that is not used anywhere. The names of committee members mentioned in the said bye law are also different. Hence they are not liable to pay any amount to the complainant.
10. Version of opposite party No.12.:
According to 12th opposite party he has no knowledge about or any relation with the chitty mentioned in the complaint. Ist opposite party has forged the signature of 12th opposite party in some documents and also one of its bye –law. OP.NOP.15 had got more than one bye law and Articles of Association. The Ist opposite party had included the name of 12th opposite party in one of the bye law of the said committee. About 700 cases are filed against opposite parties 1&15 and in none of those cases Opposite party No.12 is a party. Complainant impleaded opposite party No.12 in order to coerce him knowing that he is a government servant.
11. Version of opposite parties 16 to 18
As per the version of opposite parties 16 to 18 they are unnecessary parties to the proceedings. They have no relationship or involvement with the activities of the Puthukai Vairajathan Easwarante Madam Kshethra Committee . 5th opposite party also had any connection with the Vairajathan Kshethra Committee. 5th opposite party had not received any amount from the complainant either for the chitty or otherwise. The Ist opposite party had forged signature of the 5th opposite party and some others in some documents including bye-law of 15th opposite party committee. It is not binding on opposite party No.5.
12. After filing the versions the opposite parties Nos. 8,11,12,14, filed IA 228/11 for joint trial along with CC NOs..29/09 to CC.NO.37/09, CC.Nos.74/10, 75/10 and CC.117/10 since the issues involved in all these cases are substantially similar. The said interlocutory Application is allowed and joint trial is allowed in the above cases.
13. Subsequently complainant filed proof affidavit in support of his claim as PW1 and Exts.A1 to A3 marked in his side. He faced cross examination by the learned counsels for opposite parties. On the side of opposite parties Opposite party No.12, OP.NO.6, OP.NO.9 filed separate affidavits in lieu of evidence as DWs 1 to 3 and they are cross examined by the complainant. Opposite parties No.7,10,11,13 jointly filed affidavit and Ext.B2 is marked on their side. Exts B3 & B4 marked on the side of Opposite party No.12. Both sides are heard and documents perused. Ext.A1 is the chitty passbook. Ext.A2 is 18th page of Malayala Manoram daily dtd 2007 June 4 Monday. In Ext.A2 there is a report that the chitty subscribers are preparing to initiate legal proceedings against the committee members of the Vairajathan Easwaran Kshethra Committee also to recover the amount due to them. The names of committee members are also mentioned in the said report.
14. Now the points arises for consideration are that whether there is any deficiency in service on the part of the opposite parties in not refunding the chitty instalments to the complainant and what is the relief and cost?
15. The case of the complainant is that he had deposited 10 instalments of `5000/- each in the chitty conducted by opposite parties 1 to 4. Ext.A1in CC 28/98 & Ext.A1 in CC 29/09 are the pass books issued by opposite party NO.4 committee evidencing the payments of chitty instalments. The passbooks of both cases show that the complainant deposited ` 50000/- each in the chitty No.49® &. Chitty No.47(m)
16. Opposite parties 1&3 filed separate counter affidavits. However both of them said in their affidavits that the complainant paid `5000/- monthly from June 2006 onwards and the total sala of the chitty was `1,05,000/- for 21 months as per book Nos. 49 ® & 47(M) in both cases. They also added in their affidavits that from 6/6/06 to 6/3/2007 complainant paid an amount of ` 50,000/- to the kuri and the 3rd opposite party further said in his affidavits that he is not a member or office bearer of the Sree Vairajathan Easwaran Kshethra Committee and the complainant impleaded him only to harass him. According to him, he is not liable to pay any amount to the complainant and he has not received any chitty amount from the complainant.
17. 2nd opposite party in his counter affidavit has stated that he was not running any chit fund and he has not prompted the complainant to join as chittalan. 2nd opposite party was working as a daily wage employee for a short period with Ist opposite party. Apart from him other employees were also working in the said office and they were also collecting the amount from the subscribers. Except working for some period as daily wage employee he has no other connection with 1st opposite party and opposite party No.4 or with the chit fund run by them or with the complainant. Hence he is an unnecessary party to the above case.
18. 3rd opposite party .Ranjith produced the registered by-law of the Vairajathan Easwaran Kshethra Committee to show that he is not related to the affairs of the committee. On perusal of the said by-law it is seen that he is only a witness to the registration of the society. Complainant also not produced any document to connect 3rd opposite party with the society. But as against the contention of 2nd opposite party that he is only an employee of the 4th opposite party committee and not a member it is proved from Ext.B1 that opposite party No.2 is not only an employee but he is an executive committee member of the society. The executive committee of the society was having wide powers as per the by-law. Therefore 2nd opposite party cannot be treated only as an employee or collection agent of the chitty run by opposite parties 1&4 but he was actively engaged in conducting the chitty on behalf of opposite party No.4 committee to which he was an executive member. Therefore he is personally liable to compensate the complainant for the loss hardships caused to the complainant. The opposite parties admit that the chitty conducted by them does not have any required license from the authorities. Moreover, the Ext.B1 also confers no authority on the Society to conduct any chitty. Hence what the Society done by conducting the chitty was beyond their powers and therefore they can in no way get the protective cover of the society if any they have any such shield. Therefore, the deficiency is more grave and in no way opposite parties can escape from paying compensation to the complainant.
19. The case of all the committee members( i.e opposite parties No.5 to 14) is that Ist opposite party forged their signatures and concocted the bye law, a copy of which is produced by 3rd opposite party in the earlier proceedings and marked as Ext.B1. But it is very important to note that none of the committee members ie, Opposite parties No.5 to 14 ever attempted to initiate any criminal proceedings against Ist opposite party for the alleged forging of their signatures . Opposite party No.12 filed a criminal complaint only after he was cross examined by the complainant. No doubt it is only as a part of his vain attempt to escape from the liability that he may afraid to shoulder in future. The silence of the opposite parties No.5 to 14 to initiate any legal proceedings against Ist opposite party who alleged to have forged their signatures itself show that they were the active members of Vairajathan Easwaran Kshethra Committee and they were actually engaged in running the chitty. So they are also liable to redress the grievance of the complainant. Since 5th opposite party is deceased his estate is liable to compensate the complainant and opposite parties 16 to 18 being the legal heirs of deceased opposite party No.5 are liable to the limited extent of their share in the estate of 5th opposite party.
20. In this matter the Hon’ble State Commission has already observed that the finding of this Forum in the earlier proceedings regarding the entitlement of the complainant to get refund of the amount with interest accrued thereon will remain intact. But the matter is remanded back for the limited purpose of getting the Vairajathan Easwaran Kshethra committee and its members impleaded as parties to the complaint to have a proper and effective disposal of the same on merits after permitting all the parties including the parties to be impleaded to adduce evidence in support of their contentions.
21. Opposite parties Nos 1 to 18 were the opposite parties subsequently impleaded after the matter is remanded. Opposite parties No.5 to 14 are the executive committee members of the Vairajathan Easwaran Kshethra Committee registered under the societies Registration Act that conducted the chitty.
22. The Hon’ble State Commission further stated in their judgment that the remand is made for the limited purpose of making tort feasors (the members of the committee) as parties to the complaint and get to the liability apportioned among the members and also on the properties of the society viz Vairajathan Easwaran Kshethra Committee.
In the result complaint is allowed and the opposite parties 1,2,4,5,6,7,8,9,10,11,12,13, and 14 being the committee members of the Society and opposite party No.4 being the then President of the committee and opposite party No.15 being the committee itself are equally liable to pay `50,000/- in CC.28/09 and `.50,000/- in CC.29/09 to the complainant with interest @9% per annum from the date of complaint till payment along with a cost of ` 3000/- in each case. Since 5th opposite party is expired his estate is liable. Opposite parties No.3.16,17,& 18 are exonerated from the liabilities. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the amount of ` 50,000/- each will carry interest @12% from today till payment.
.
Ext.
A1- chitty pass books
A2-News paper
A3-copy of reply of right information
B1-photo copy of Bye-law
B2- certified copy of Bye-law
B3-copy of complaint before JFCM Ist class
B4-copy of FIR
PW1-T.V.Sudhakaran- complainant
DW1-Anilkumar.M.K- Op.No.12
DW2-PradeepKumar.P.V- OP.No.6
DW3-P.V.Prabhakaran-OP.NO.9
DW4-C.V.Balakrishnan- OP.NO.13
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
