DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 14th day of November 2017 Present : Smt.Shiny.P.R. President : Smt.Suma.K.P. Member Date of filing: 26/12/2016 : Sri.V.P.Anantha Narayanan, Member (C.C.No.210/2016) Shameer, S/o Abdul Basheer, Manaliparmb, Veed, Chunangaad (PO), - Complainant Ottappalam. (T.V.Shaik Abdulla) V/s 1. General Manager PACL India Limited, 3rd Floor, DP Plaza, Near Hotel Kokkalai, Trichur – 21. 2. Preetha, W/o Kumaran, Kottakulangara House, Nilampathi, Chunangad (PO), Ottappalam, Palakkad. 3. Mymuna, W/o Sulaiman, Payamkulam House, - Opposite parties Chunangad (PO), Ottappalam, Palakkad. (Adv.K.Vijayaraghavan) O R D E R By Shri.V.P.Anantha Narayanan, Member, Gest of the case. 2nd and 3rd opposite parties who are the agents of PACL India Limited approached the complainant and represented to him that they are the agents of the said company and if the complainant deposits money in the said company many monetary benefits will accrue to the complainant and thereby they have convinced the complainant. Then as per persuasion of the above opposite parties, on 03.03.2011 Rs.1,000/- was deposited in the company and Rs.1,000/- was entrusted every month to the 2nd and 3rd opposite parties for depositing in the said company and according to the complainant, the 2nd and 3rd opposite parties received all the installments without any default up to 30.09.2016 for the said company. When the complainant contacted the 2nd and 3rd opposite parties to get the policy amount of Rs.1,00,000/- on the expiry of the period, they did not give the amount telling many excuses and hence the complainant contacted the 1st opposite party company and came to know that the said company was closed down and in the name of the said company opposite parties deceived many persons by receiving by fraud monies from them. According the complainant, the act of the opposite parties not to give the complainant the eligible amount is unlawful and unjust. Because of the above acts of the opposite parties the complainant has suffered a lot financially and mentally and their acts amount to unfair trade practice. Then the complainant contacted the opposite parties many times and lawyer notice was also sent by the complainant to the opposite parties demanding Rs.1,00,000/- plus interest but the opposite parties did not act to this notice. Hence complainant prays to the Hon’ble Forum to issue orders directing the opposite parties to pay Rs.1,00,000/- possessed from the complainant along with 18% interest. Also payment of compensation of Rs.2,00,000/- to the complainant by the opposite parties due to fraudulent activities of the opposite parties and the consequent mental difficulties and financial problems caused to the complainant and also to order for payment of litigation expenses to the complainant etc. The complaint was admitted and notices were issued to opposite parties to enter appearance. Notice to 1st opposite party was returned stating “door locked”. Hence notice was deemed to be served, 1st opposite party’s name called absent and he was set ex-parte. In the version jointly filed by 2nd and 3rd opposite parties, they contend that the above complaint is not legally maintainable. The matters raised in the complaint do not come within the perview of the Consumer Protection Act 1986. According to them, the complaint was filed experimentally and without good faith. These opposite parties do not know that the 1st opposite party is the General Manager of PACL India Limited and they are not agents of the 1st opposite party company, but their employees. According to 2nd and 3rd opposite parties, as employees of the 1st opposite party company they used to go to collect amounts from the customers of the company and after collection gave the company’s receipts to the customers including the complainant. They also contend that the complainant directly enquired about the 1st opposite party company and only after getting convinced amount was deposited in the said company. The complainant did not contact these opposite parties to get back the deposited amount on the expiry of the period of deposit. They also contend that they have not deceived anybody and collected money from anybody unauthorisedly and with fraud. If any amount is to be received by the complainant, it is to be received from the 1st opposite party. These opposite parties are not liable to pay the amount to the complainant. They also contend that they did not commit any unfair trade practice. These opposite parties agree that a notice demanding Rs.1,00,000/- plus lawful interest was sent to them by the complainant to which a reply notice was sent on 28.10.2016 through their advocate. They also contend that on enquiry by these opposite parties they understood that 1st opposite party had given a writ petition (Criminal) against the CBI and as per the consent order in 705/2014 all the deposit amounts of the 1st opposite party are with the Registrar General of the Hon’ble Delhi High Court as deposit. The above complaint matters are under consideration of the Hon’ble Delhi High Court of law and the matter is subjudice. These opposite parties also contend that, they have appealed to the Hon’ble Court to order for a certified copy of the proceedings of the Hon’ble Delhi High Court. Therefore, according to the 2nd and 3rd opposite parties complainant has no legal right to recover from them any amount and the 1st opposite party is the proceedings client of the Hon’ble Delhi High Court. Lastly, these opposite parties contend that along with them, one lady named as Amina, W/o Kulachalil Marakkar also collected amount from the clients paid the same to the 1st opposite party company and got receipts there for. It was “Amina” who brought these opposite parties to the 1st opposite party company and arranged a job for them. According to these opposite parties, this party was purposefully excluded by the complainant from the array of opposite parties in this case. She should be included as a party in the complaint for which Hon’ble Forum may give instructions to the complainant. They also contend that complainant has no right to recover Rs.2 lakhs from these opposite parties for the financial problem and mental difficulties suffered by him. They pray to the Hon’ble Fourm to direct the 1st opposite party to pay compensation for the mental agony and financial loss suffered by the complainant and hence the complaint may be dismissed. Notice to 1st opposite party served was returned stating “door locked”. Hence notice was deemed to be served on 1st opposite party. Hence their name called absent and they were set ex-parte. Complainant filed IA 112/17 to cause production of address of Smt.Amina by opposite parties 2 & 3 but her address was not produced by the opposite parties even after 3 sittings. Complainant filed Chief Affidavit but opposite parties did not. Exts.A1 to A5 were marked from the side of the complainant but no documents were marked from the side of 2nd and 3rd opposite parties. Both parties were also heard. The following issues were framed in this case. 1. Whether there is any deficiency in service and unfair trade practice on the part of opposite parties ? 2. If so whether the complainant is eligible for any relief and cost ? Issues 1 &2 The complainant has the case that the 2nd and 3rd opposite parties who were the agents of the 1st opposite party company canvassed the complainant for deposit in the 1st opposite party company. Accordingly complainant deposited Rs.1,000/- on 03.03.2011 in the 1st opposite party company and Rs.1,000/- was entrusted every month to the 2nd and 3rd opposite parties for depositing in the afore said company. According to the complainant the 2nd and 3rd opposite parties received all installments without any default up to 30.09.2016. When the complainant contacted the 2nd and 3rd opposite parties to get the policy amount of Rs.1,00,000/- on the expiry of the period of deposit, the opposite party did not give him the amount telling many excuses and on enquiry he came to know that the said company was closed down. Ext.A4 which was marked is the bond given by the 1st opposite party company to the complainant which indicates name and address of the 1st opposite party company who issued the bond, the date of issue of the bond, to whom it was issued, expiry date etc. The complainant also caused to send a lawyer notice to opposite parties 1,2 & 3 which demanded payment of the deposit amount of Rs.1,00,000/- within 15 days. The photo copy of the lawyer notice and postal receipts are marked as Ext.A1 series. But 1st opposite party did not received the notice and the cover containing the notice sent to 1st opposite party was return. The cover returned was marked as Ext.A2 series which indicated that 1st & 3rd opposite party did not possess the notice sent to them. The 2nd opposite party received the notice and also sent acknowledgement receipt which were marked as Ext.A3. Special Power of Attorney marked as Ext.A5 is executed by the complainant in favour of his brother-in-law named as Muhammed Asif. Hence the complainant prays to the Hon’ble Forum to direct the opposite parties to pay Rs.1,00,000/- along with 18% percent interest plus Rs. 2 lakhs as compensation for mental agony suffered plus litigation expenses incurred by the complainant. The 1st opposite party did not enter appearance, file version, their name called absent and were set ex-parte. The 2nd & 3rd opposite parties jointly filed their version in which they contend that the complaint is not legally maintainable. According to them they did not know the 1st opposite party as the General Manager of PACL India Limited and they are not the company’s agents but the company’s employees. They also contend that the complainant did not contact the 2nd and 3rd opposite parties after completing all remittances and expiry of the period of deposit and if any amount is to be received by the complainant, the same is to be received from the 1st opposite party. They also contend that they are not liable to pay Rs. 1 lakh plus interest at 18% to the complainant. According to them one Smt.Amina was not made a party in the array of opposite parties in this case because according to them Smt.Amina got receipts when collected amounts are paid to the 1st opposite party company and she also arranged jobs for the 2nd and 3rd opposite parties. Hence this case suffers from “non jointer of necessary parties”. Hence 2nd & 3rd opposite parties pray to the Hon’ble Forum to dismiss the complaint and to order the 1st opposite party to pay compensation for the lose suffered by the complainant. From the above, we observe that opposite parties 1, 2 & 3 have not taken any steps to give back the maturity value of Rs.1,00,000/- of the deposited amount along with interest on the completion of the period of deposit to the complainant, inspite of several times contact by the complainant with them and lawyer notice sent to them. Further we also observe that 2nd and 3rd opposite parties have not furnished the address of Smt.Amina before this Forum inspite of direction from this Forum to furnish the same. On the above grounds we view that opposite parties 1, 2 & 3 are jointly and severally liable for deficiency in service and unfair trade practice committed. The result is that the complaint is allowed. We order the opposite parties 1, 2 & 3 to be jointly and severally liable to pay to the complainant Rs. 1,00,000/- (Rupees One lakh only) along with interest @ 9% p.a from 30.09.2016 to date of realization. We also order the opposite parties 1, 2, & 3 to jointly and severally pay to the complainant a sum Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony suffered and litigation expenses incurred by the complainant. This order shall be executed within one month from the date of receipt of this order; otherwise the complainant can also realize from the opposite party’s interest at 9% p.a on the total amount due to him from the date of this order till realization. Pronounced in the open court on this the 14th day of November 2017. Sd/- Shiny.P.R. President Sd/- Suma.K.P. Member Sd/- V.P.Anantha Narayanan Member Appendix Exhibits marked on the side of complainant Ext.A1 series - Photo copy of the lawyer notice and postal receipts sent by the complainant’s Advocate to opposite parties dated.10.10.2016 Ext.A2 series - covers returned by 1st opposite party & 3rd opposite party containing the notices sent to the them by the complainant Ext.A3 - Acknowledgement card duly signed by the 2nd opposite party Ext.A4 - Original bond issued by the 1st opposite party to the complainant Ext.A5 - Special Power of Attorney executed by the complainant in favour of his brother in law Exhibits marked on the side of Opposite parties Nil Witness examined on the side of complainant Nil Witness examined on the side of opposite party Nil Compensation for mental agony and cost Rs.10,000/-