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O R D E R

Sri. P. Satheesh Chandran Nair (President):

                    The complainant filed this complaint u/s.12 of the C.P. Act for getting reliefs against the opposite party.

                    2. The case of the complaint is stated as follows:  The case of the complaint is stated as follows:  The complainant is a subscriber of 2 chitties run by the opposite party for Rs. 1 lakh each for an instalment of 40 months.  The complainant is 15^th and 16^th number of subscriber in the said chitty.  He remitted 13 instalment from 15.09.2010 to 05.08.2011 for this chitties.  The remaining instalment is not been paid by the complainant and the complainant asked to return the remitted amount to the petitioner.  At that time, the opposite party replied that only after the completion of the instalment the subscribed amount would be returned.  Even after the completion of the instalment, the opposite party did not returned the subscribed amount.  So many times the complainant asked the opposite party to return the subscribed amount but he evaded the repayment.  The act of the opposite party is a purposeful diligence of his responsibility and it was only to cheat the complainant.  According to the complainant, the opposite party is liable to return Rs. 65,000/- as the 13 total instalment after deducting 5% of the ‘Veethapalisa’.  Then the amount comes to Rs.60,000/-.  The opposite party is liable to pay an interest from 15.02.2014 which was the date of maturity of the chitty.  The opposite party is liable to pay an amount of Rs.10,000/- as the suffering and mental agony caused by the complainant.  When the complainant functioned as the Principal, St. George Vocational Higher Secondary School, Attachakkal, the opposite party approached him and as a result of his assurance of the reliability of the firm, he joined in the chitty.  The cause of action of the complaint raised on 15.09.2010, 5.08.2011, 15.12.2013 and 17.12.2013 onwards.  The reliefs sought for by the complainant are for realizing Rs.50,000/- from the opposite party and Rs.10,000/- as compensation and cost of this case against the opposite party.

                    3. The complainant filed this case along with 2 documents.  The document No.1 is 13^th instalment receipt of the chitty dated 05.08.2011 of chital No.15 and document No. 2 is 13^th instalment receipt of the chitty dated 05.08.2011of chital No.16.  The complainant filed before this Forum and after hearing the complainant and perusal of the records stated above this Forum issued notice to the opposite party and the opposite party appeared before the Forum and filed version as stated below:  The petition against this opposite party is against law, facts and circumstances of this case, because this appearing opposite party is not a managing partner of D.P.M. Chitty & Kuries, Venmeli Building, Konni.  According to this opposite party, the managing partner of the Forum is totally responsible for the day to day affairs and responsibility of the said firm.  He was the managing partner of the said firm only up to 18.10.2008 and he left from the post from that day onwards.  According to him, on 18.10.2008 onwards one V.D. Ajayakumar, Vilavinal Thundil House, V-Kottayam is the managing partner of the said firm.  He was not the managing partner on 15.09.2010 when this complainant started the chitty No.D2/9/2010.  He did not asked the complainant to join this chitty or not given any assurance of the reliability of the said firm.  He has no knowledge about the arrears of the complainant in the chitty or the demand of the return of the subscribed amount to the complainant.  The complainant never asked any of these matters to him.  He never cheated or mislead the complainant.  The complainant has no right to get any amount from this opposite party.  The complainant has no cause of action against this contesting opposite party.  The complainant filed this complaint without any bonafide and he has no right to get any amount as compensation or any cost from this opposite party.  Hence this Forum has to dismiss this complaint.

                    4. The following points are to be considered in this petition:

1. Whether petition is maintainable?
2. If the petition is maintainable regarding the relief and cost?

         5. For the sake of convenience we consider both the points together.

          6. Point Nos.1 & 2:-  The complainant filed chief affidavit in lieu of chief examination and marked Ext.A1 to A4.  Though the opposite party in this case filed version before the Forum he did not cross-examined the complainant.  Hence, the version of the complainant is unchallengeable before us.  When we peruse the pleading of the complainant and opposite party it reveals that the complainant is one of the subscriber of the chitty and the main contention of the opposite party is that at present he is not the managing director and some other person is looking after the affairs of the opposite party.  From this point we can come to a conclusion that complainant is a customer of opposite party and the 1^st point found in favour of the complainant.

          7. In order to prove the case PW1 produced 2 pass books which were issued by the opposite party.  The Ext. A1 and Ext. A2 pass book with the signature and handwriting of the opposite party is a cogent and conclusive evidence in favour of the complainant.  The opposite party did not rebut this fact through his version.  The Ext.A3 and Ext.A4 are the receipts issued by the opposite party in favour of the complainant.  This also gives an inference of the monthly subscription of the complainant to the chitty.  A careful reading of the version of the opposite party reveals that no where there the opposite party challenged the instalment subscription of the complainant.  The opposite party has no case that they return the subscription amount to opposite party.  In the light of this evidence the next question to be considered is that the opposite party whether returned the subscription amount after the termination of the chitty.  There is no evidence to show that opposite party returned the amount after the completion of the chitty.  When we peruse the version of opposite party it is clear that the person who signed this version is evading from the responsibility.  He appeared before the Forum for and on behalf of the D.P.M. Chitty Kuries etc. who is the opposite party in this petition and on a representative capacity this person appearing before the firm.  Here the firm is the only opposite party and it got legal entity.  The petitioner filed chief affidavit and she was available for facing cross-examination in all the posting date.  It is true that the opposite party appearing before the Forum has case in the version to the effect that only upto 18.10.2008 he was the managing partner and subsequently one V.D. Ajayakumar, Vilavinal Thundiyil Veedu, V-Kottayam is the person who is handling the affairs of managing partner of the firm.  If the appeared opposite party has a definite case regarding the contention of change of managing partner of the opposite party what prevented him to appear before this Forum and dispute the status of the present opposite party’s representative capacity.  Moreover, it is seen that the address of the new managing partner which was stated by the appearing opposite party is also not clear.  The counsel for the petitioner argued that it is the duty of the appearing opposite party to shift his burden to others shoulder when a party raise this contention.  In this case, opposite party did not make an attempt to prove the said contention in favour of him.  We found a clear deficiency in service on the part of the opposite party.

          8. In the light of the above finding and observation we decided to pass the following orders:

1. The opposite party is directed to pay Rs.60,000/- (Rupees Sixty Thousand only) with 10% interest to the complainant from the date of order.

2. A compensation of Rs.5,000/- (Rupees Five Thousand only) and cost of Rs.2,000/- (Rupees Two Thousand only) is also allowed to the complainant from opposite party with 10% interest from the date of this order.

            Declared in the Open Forum on this the 28^th day of March, 2015.

                                                                                    (Sd/-)

                                                                  P. Satheesh Chandran Nair,

                                                                                        (President)

Smt. K.P. Padmasree (Member – I)          :     (Sd/-)

Smt. Sheela Jacob (Member – II)             :      (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Lizyamma Samuel

Exhibits marked on the side of the complainant:

A1   :  Chitty Pass book No.D2/9/10 in the name of the complainant.

A2  :   Chitty Pass book No.D2/9/10 in the name of the complainant.

A3  :   Receipt dated 05.08.2011 for Rs.2,000/- issued by opposite party to 

           the complainant.

A4  :   Receipt dated 05.08.2011 for Rs.2,000/- issued by opposite party to 

           the complainant.

Witness examined on the side of the opposite party:  Nil.

Exhibits marked on the side of the opposite party:  Nil.

                                                                                               (By Order)

                                                                                                      (Sd/-)

                                                                              Senior Superintendent.

Copy to:- (1) Lizyamma Samuel, Karippumannil Veedu, Payyanamon.P.O.,

                     Konni.

                (2) C.K. Vidhyadharan, Palamuriyil Veedu, Attachakkal.P.O.,

                     Konni – 689 692.

                (3) The Stock File.