BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of August 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.82/2010
(Admitted on 9.3.2010)
Mrs.Jeanne Pinto,
Aged about 62 years,
Wife of Late Mr.Wilfred Pinto,
Residing at Excelsior,
Opp. S.C.S. Hospital, Bendore,
Mangalore 575 002. …….. COMPLAINANT
(Advocate for the Complainant: Sri G.Sanjay Rao)
VERSUS
Fr.Theophil Pereira,
Chief Trustee,
Emmanual Charitable Trust,
St.Anns Friary,
Kodialbail,
Mangalore 3. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri Vinay Kumar)
* * * * * * *
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, the Opposite Party is running a ‘Ashram’ under the name and style ‘Emmanuel Ashram’ at Merlapadavu, Mangalore, wherein, aged persons are being looked after. The Complainant approached in order to admit her brother to the above ashram. It is stated that, the Opposite Party had promised and agreed to look after Complainant’s brother and assured her that he would take care of him. At the same time, the Opposite Party had demanded a security deposit of Rs.2,00,000/- apart from paying monthly maintenance charge of Rs.6,000/-.
The Complainant submits that, she had requested the Opposite Party to give her one month’s trial and if her brother found himself comfortable, she would give the deposit and continue her brother there. But the Opposite Party insisted that the security deposit should be paid immediately and accordingly the Complainant paid Rs.2,00,000/- and issued a cheque bearing No.955434 on 10.12.2008 drawn on State Bank of India, Mangalore that was encashed by the Opposite Party trust on 12.12.2008. It is stated that, the Complainant visited the ashram to greet her brother on Christmas day, her brother had consumed alcohol and he was not in a position even to stand and talk properly. On seeing the state of affairs, the Complainant withdrew her brother from the ashram on 14.01.2009 and put him in some other ashram and demanded security deposit that was promised to be returned if the Complainant’s brother did not feel comfortable to reside in the ashram but the Opposite Party postponing the payment on the one or the other pretext and he had promised to repay the same through his undated letter written in June 2009 but till now the Opposite Party not paid the amount inspite of lawyer’s registered notice dated 21.12.2009.
It is stated that, non-refund of the security deposit on discontinuance of Complainant’s brother from the ashram amounts to deficiency and filed the above Complaint before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.2,00,000/- received by way of security deposit along with interest at 11% p.a. from 10.12.2008 and also claimed Rs.10,500/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by R.P.A.D. Opposite Party appeared through their counsel filed version, it is admitted that the Complainant had admitted her brother in the above said ashram. It is stated that, the Complainant’s brother on the Christmas day had gone to Mangalore city to visit his doctor for treatment. When he returned to the ashram from Mangalore city the Opposite Party noticed that he had consumed alcohol and contended that the alcohol is not consumed inside the Ashram.
It is further stated that, the Complainant had paid Rs.2,00,000/- towards donation as per receipt dated 12.12.2008. The amount received towards donation is non-refundable amount and the same is not security/caution deposit. It is contended that, as per Trust Rules and Regulations, there is no scope to refund or return donations. The Complainant is a donor has no right to claim return of donation.
It is further submitted that, the Complainant was repeatedly requesting for refund of donations, the Opposite Party has undertaken to repay the donation only after completion of Emmanuel Home Building and stated that there is no deficiency and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the complaint filed by the Complainant is maintainable and the Opposite Party has committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Jeanne Pinto (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex.C1 to C6 were marked for the Complainant as listed in the annexure. One Fr.Theophil Pereira, Chief trustee of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex.R1 was marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answered the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
REASONS
5. POINT NO. (i) to (iii):
From the outset of the records available on the file before this Forum, it is admitted that, the Opposite Party has been running an ‘Ashram’ under the name and style ”Emmanuel Ashram” at Merlapadavu, Mangalore Taluk, wherein, aged persons are being looked after. It is also admitted that, the Complainant had admitted her brother Mr. Hugh Rasquinha in the above said Ashram on 10.12.2008. The Opposite Party received Rs.2,00,000/- by way of Cheque bearing No.955434 on 10.12.2008 drawn on State Bank of India, Mallikatta Branch, Mangalore and that was encashed by the Opposite Party trust on 12.12.2008. Apart from the above, the Complainant paying the monthly maintenance charge of Rs.6,000/-.
Now the point in dispute before this Forum is that, the Complainant visited the Ashram to greet her brother on Christmas day, to her utter surprise she found that her brother had consumed alcohol and he was not in a position to stand and talk properly. On seeing the condition of the Complainant’s brother, she withdrew her brother from the Ashram on 04.01.2009 i.e., after a month and put him in another Ashram. It is contended that, the Complainant paid security deposit i.e., Rs.2,00,000/- at the time of admission of her brother to the said ashram but the Opposite Party refused to pay the same. Hence she came up with this Complaint.
On the contrary, the Opposite Party took a contention that, the brother of the Complainant was admitted in their Ashram consumed alcohol not inside the ashram but outside the ashram. Rs.2,00,000/- deposited with them is not a security deposit, it is a donation and which cannot be refunded. Further took a contention that, since the Complainant repeatedly requested the above said amount, the Opposite Party undertaken to repay the same after completion of the Emmanuel Home Building that it will take few years to complete the project.
The Complainant examined himself as CW1 and produced Ex C1 to C6 and Opposite Party also examined as RW1 and produced Ex R1.
On careful scrutiny of the oral as well as documentary evidence available on record, we find that, the Opposite Party has running a ashram under the name and style ‘Emmanuel Ashram’ as stated herein above and the Complainant got admitted her brother one Mr.Hugh Rasquinha on 10.12.2008 and the same has been admitted by the Opposite Party as stated supra.
The main point for consideration is that, whether the complaint filed by the Complainant falls within the purview of Consumer dispute? The entire burden lies upon the Complainant to show before this Forum that, the complaint is maintainable within the purview of C.P. Act, 1986. The Ex R1 i.e., the original receipt book produced by the Opposite Party, which contains a receipt dated 12.12.2008 carbon copy indicates that, Rs.2,00,000 received towards donation, non-refundable to the building fund. The Complainant not produced the original receipt before this Forum. However, on scrutiny of the original receipt book and the letter heads of the Opposite Party reveals that, the Opposite Party is an Emmanuel Charitable is a registered trust. Receiving donations from the donors is not barred under law.
In the instant case, the Complainant miserably failed to show before this Forum that Rs.2,00,000/- paid towards security deposit/caution deposit as contended by her. The original receipt book produced by Opposite Party reveals that, the amount received was towards donation not the security deposit/caution deposit. When the subject dispute involved in this case is with regard to the donation paid by the Complainant to the Opposite Party, the above dispute not falls within the purview of Consumer Protection Act. The Complainant has to approach the Civil Court for the appropriate remedy not before this Forum.
In view of the above reasons, we hold that the complaint filed by the Complainant has no merits deserves to be dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The Complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2010.)
PRESIDENT MEMBER
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
CW1 – Mrs.Jeanne Pinto – Complainant.
DOCUMENTS PRODUCED ON BEHALF OF THE COMPLAINANT:
Ex C1 – : Postal envelope in which the Opposite Party had sent the letter.
Ex C2 - 10.12.2008: Copy of Bank Account pass book entry showing the payment made to the Opposite Party.
Ex C3 – : Letter written by Opposite Party to Complainant.
Ex C4 – 21.12.2009: Lawyers notice sent to Opposite Party.
Ex C5 – 20.9.2007: Postal acknowledgement.
Ex C6 – 10.1.2010: Reply notice sent on behalf of Opposite Party.
WITNESSES EXAMINED ON BEHALF OF THE OPPOSITE PARTY:
RW-1 : Fr.Theophil Pereira, Chief trustee of Opposite Party.
DOCUMENTS PRODUCED ON BEHALF OF THE OPPOSITE PARTY:
Ex R1 – The Receipt Book maintained by the Opposite Party.
Documents produced by the Opposite Party:
- 12.12.2008: Donation receipt issued by the Opposite Party.
- 10.01.2010: Reply by the Opposite Party to the Complainant.
- 13.06.2001: Notarized copy of the trust deed.
- 31.08.2009: Auditor’s report along with balance sheet.
Dated:31.08.2010 PRESIDENT
