BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 16.12.2014

Date of Order : 07.07.2016

Present :-

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 927/2014

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. A brief statement of this complaint is as follows:

The complainant Sri.S.P.Crystal is a salesman cum business man in a shop which is run for his livelihood. He was a subscriber to a chitty run by the opposite party Coastal Kuries and Loans at Njarakkal in Ernakulam District. The chitty number was 52/2013 and the chitty amount was 10 Lakh Rupees with a monthly instalment of Rs.25,000/- for 40 months. It is submitted that the chitty was being operated from the head office of the opposite parties at Jammu Thavi. The complaint joined the above chitty on 28.09.2010 and when the 2^nd draw of the chitty was conducted the complainant auctioned the chitty amount of Rs.750,000/- after having agreed to 25% discount. But the chitty amount was not received by the complainant in time. He received the auctioned amount only after 10 months after the 2^nd draw of the chitty, which caused severe mental agony to the complainant and toppled the business plan of the complainant. The offer of 4 cents of land as security for the chitty amount was refused by the opposite parties. The complainant further offered LIC Policy of the complainant's wife and gold ornaments weighing 172 grams 300 mg towards security. Even when the required securities were furnished on 17.07.2011, the 7.5 lakh rupees of the chitty amount was received after the elapse of 10 months which is in violation of the terms and offers agreed between the complainant and the opposite parties. Therefore vide letter dated 31.12.2013 the opposite parties demanded Rs.2,23,700/- towards pending chitty instalments. The complainant gave written consent to the opposite parties to adjust the interest on Rs.750,000/- and on LIC money back policy amount of Rs.80,000/- and after that he would clear the pending dues. It is contended by the complainant that the opposite parties surrendered on 06.02.2014 the LIC money back policy in the name of Shiby the wife of the complainant without her knowledge and consent and received Rs.141,934/- in their favour illegally. The opposite parties also closed the deposit amount of Rs.80,000/- and commuted to their favour. However the opposite parties returned the documents of 4 cents and the gold ornaments. It is contended that the delay of 10 months in granting the chitty amount of Rs.750,000 amounted to deficiency in service and unfair trade practice on the part of the opposite parties. Therefore the complainant filed this complaint seeking orders of this Forum directing the opposite parties to pay 18% interest on the chitty amount of Rs.750,000 from the date of 2^nd draw till the date of receipt of the chitty amount, to pay 18% interest for the amount of Rs. 80,000/- which the opposite parties took from the money back policy, to compensate the loss occurred to the complainant and his wife, to pay Rs.200,000/- towards compensation for the delay occurred in disbursing the chitty amount to the complainant, to pay Rs.1,60,000/- towards compensation for the business loss and Rs.25,000/- for serious lapse committed by the opposite parties in addition of Rs.5,000/- towards costs.

2. Notices were issued to both the opposite parties and the opposite parties filed their version resisting the complaint filed by the complainant as stated below:

The complaint filed by the complainant is not maintainable and is barred by limitation. The alleged cause of action for the complaint arose on 28.10.2010 when the complainant auctioned the chitty and on 04.07.2011 when the complainant furnished sufficient security to release the chitty amount and on 17.07.2011 when the complainant received the chitty amount and the complaint ought to have been filed within 2 years from the date of cause of action. The complainant is a subscriber of a chitty run by the opposite parties. The complainant does not fall within the definition of 'consumer', since the chitty transaction is a commercial transaction with the object of making profit. The complainant is the single owner and proprietor of a jewellery shop named “wedding jewelers” at Njarakkal bus stop junction in his own building and the averment that his daily income is very less is not correct. The complainant had joined the chitty at his will . The averment of the complainant that the chitty was being operated from the head office of the opposite parties at Jammuthavi is denied by the opposite parties. It is true that the complainant had provided the original document of 4 cents and supporting papers but the chitty amount of 10 Lakh rupees was not disbursed on the ground that the said property valued Rs.2,31,300/- only. Thereafter the complainant furnished the required security on 04.07.2011 and the chitty amount was released on 17.07.2011 and there was no delay of 10 months in releasing the chitty amount as alleged by the complainant. The opposite parties are always ready and willing to release the chitty money on furnishing adequate security for the chitty amount and when the complainant furnished sufficient security the chitty amount was released and the deposited amount was returned to the complainant. The opposite party had not denied chitty amount as alleged by the complainant. In fact the complainant had committed default in instalment payments. Notice was issued to the complainant on 31.12.2013 informing him that if the defaulted instalments are not cleared, the assigned policy will be submitted to recover the chitty dues but in reply the complainant vide lawyer notice dated 10.01.2014 demanded return of LIC certificate and fixed deposit amount. The 32^nd to 40^th chitty instalments were adjusted from the money received by surrender of LIC. The averment of the complainant that the opposite parties surrendered the LIC Policy of his wife on 06.02.2014 by creating false signature of his wife without her knowledge and consent and received Rs. 1,41,934/- in favour of the opposite parties is false and defamatory. The LIC policy was assigned to the opposite parties by registration and it was later re-assigned to the complainants In fact the complainant's wife had already accepted Rs.23,800 as interest for the deposit amount of Rs. 80,000/-. it is submitted that the complainant is not entitled to get any of the reliefs prayed for since there was no deficiency in service or unfair trade practice on the side of the opposite parties. The complaint is therefore sought to be dismissed.

3. On the pleadings the following issues came up for the consideration of this Forum.

Issue No.(i) Whether the complaint is barred by limitation or whether the complainant is maintainable before this Forum.

Issue No.(ii) Whether the complainant has proved deficiency in service or unfair trade practice on the part of the opposite parties.

Issue No.(iii) Whether opposite parties are liable to pay compensation prayed for by the complainant or to pay costs to the complainant.

4. The evidence in this case consisted of the documentary evidences marked as Exhibit A1 to A16 on the side of the complainant and Exhibit B1 to B11 on the side of the opposite parties. The complainant tendered for cross examination. But the opposite parties did not cross examine him.

5. Heard the counsel for the complainant and perused the argument notes furnished by the opposite parties.

6. Issue No(i)

There is no dispute regarding the fact that the complainant Sri.S.P.Crystal was a subscriber to chitty No.52/2013 run by the opposite parties Coastal Kuries and Loans therefore the complainant is a consumer and the chitty sala was 10 Lakh Rupees and the chitty instalments were to be paid in 40 monthly instalments of Rs.25,000/- each and that the 2^nd draw of the chitty was auctioned in favour of the complainant on 28.10.2010 for an amount of Rs.750,000/- as evidenced by Exbt.A1 and A2 endorsements on chitty Kaippadu or Thalavariola or chitty passbook and the amount was paid on 17.07.2011 as evidenced by Exbt.A2 endorsement on the 1^st page of the chitty passbook. The case of the complainant is that there was delay of 10 months in disbursing the chitty amount to the complainant and it amounted to deficiency in service or unfair trade practice on the part of the opposite parties. Here the cause of action arose on 28.10.2010 the date of 2^nd draw of the chitty and on 17.07.2011, the date of disbursal of the chitty amount and the complaint is filed before this Forum on 16.12.2014 ie after 2 years from the date of disbursal of chitty amount on 17.07.2011. Thus the complaint is barred by limitation of 2 years as envisaged Under Section 24 A of the Consumer Protection Act, 1986. Therefore this complaint is time barred and is found not maintainable before this Forum and is liable to be dismissed. Hence dismissed. The issue No.(i) is decided against the complainant.

7. Issue No.ii and iii

Having found the issue No(i) against the complainant, we are not inclined to consider the issues No.(ii) and (iii)

8. In the result the complainant stands dismissed.

Pronounced in the open Forum on this the 7^th day of July, 2016.

Forwarded/By Order, Sd/- Beenakumari V.K., Member.

Sd/- Cherian K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Senior Superintendent.

Date of Despatch of this Order ::

By Post ::

By Hand ::

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits ::

Deposition ::

PW1 :S.P.Crystal

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