BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th March 2014
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.173/2013
(Admitted on 22.6.2013)
1. Mrs. Anupama Naveen Shenoy,
Wo Naveen Shenoy,
Aged about 36 years,
2. Mr.Naveen Shenoy,
S/o Narasimha Shenoy,
Aged about 42 years,
Both Residing at HACIENADA,
Door 3 31 2557 1,
Behind Toyota Show Room,
Kadri Road, Mangalore.
Both are represented by their
GPA Holder, Mr.Vaman M Bhagath,
S/o M.P. Bhagath, Residing at,
“Hacienda”, Door# 3-31-2557/1,
Behind Toyota Show Room,
Kadri Road, Mangalore. …….. COMPLAINANTS
(Advocate for Complainant: Smt. B. Nayana Pai)
VERSUS
1. K.F. C. India One,
Reg. Partnership Firm,
Represented by its authorized Signatory
Having its office at 1 Floor,
Nalapad Building,
Kadri Temple Entrance,
Above Canara Bank, Mallikatte,
Mangalore.
2. Raj Kalyani @ R Shiva Shankar,
The Managing Partner,
K.F.C India One,
Reg. Partnership Firm,
Having its office at 1st Floor,
Nalapad Building,
Kadri Temple Entrance,
Above Canara Bank, Mallikatte,
Mangalore.
3. Mrs. Prathima M.K.,
The Managing Partner,
K.F.C. India One
Reg. Partnership Firm
C/o Shree Krishna Joisa,
Devi Kripa,
Vijayanagara Kumpla,
Mangalore. ……. OPPOSITE PARTIES
(Opposite Party No.1 and 2 :Exparte)
(Advocate for Opposite Party No.3: Sri.B.Shrikrishna Bhat)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainants stated that, the Opposite Party No.1 is a registered partnership firm and Opposite Party No.2 and 3 are the Managing Partners of the said firm and they were dealing with Diversified Investment Policies and promising to pay good returns to the investors on gold bonds. On believing opposite party’s assurances the complainants invested a sum of Rs.2,00,000/- under the Policy No.KFC/MLR/DDR-021 and date of commencement of the policy on 20.6.2010 and product name is Diversified Development Fund and date of maturity on 19.6.2011 and investment terms is for one year. The opposite party also issued a investment bond. After maturity the complainants approached the opposite parties and made repeated requests to pay the amount due, but Opposite parties have not bothered to pay amount due to the complainants and postponed the issue on one pretext or other. Thereafter the complainants issued legal notice dated 7.6.2013 and called upon the opposite parties to pay the said amount along with maturity value but opposite party failed to pay the same. Hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.2,00,000/- along with 18% interest till date of final payment along with compensation and costs of the proceedings.
II. 1. Version notice served to the Opposite Parties No.1 to 3 by R.P.A.D. Opposite Party No.1 and 2 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence, we have proceeded exparte as against the Opposite Party No.1 and 2. The acknowledgement marked as Court Doc. No.1 and 2.
Opposite party No.3 appeared through their counsel filed version stated that this Opposite party is not the Managing Partner of the Opposite Party No.1 and also denies that the Opposite Party No.1 is registered partnership firm. Even if it was a registered firm and this opposite party was shown as a partner in the said firm it was registered without the knowledge of this opposite party. This Opposite party never taken participation in the business of the Opposite Party No.1 and 2 and denied the deficiency and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr.Vaman M.Ghagath (CW1) – Power of Attorney holder of the Complainants filed affidavit reiterating what has been stated in the complaint. Ex C1 to C6 were exhibited for the Complainants as listed in the annexure in detail. Opposite parties not filed any affidavit nor filed any documents.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainants proved that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainants are entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, the complainants filed affidavit and also produced investment document dated 20.6.2010 issued by the K.F.C. India One i.e. Opposite Party No.1, whereunder the complainants were invested a sum of Rs.2,00,000/- under the investment bond and this investment was valid for one year and it was commenced from 20.6.2010 and date of maturity was on 19.6.2011 and the investment amount was of Rs.2,00,000/- and fund name mentioned i.e. Diversified Development Fund. Further the opposite parties acknowledged the receipt of payment towards the investment for the above plan as per the amount indicated in the above bond. However, as per the bond, the Opposite Party No.1 and 2 are liable to refund the amount after the date of maturity. The Opposite Party No.3 who appeared before this FORA contended that she is not the partner of the above said partnership firm, when that being so, the entire burden lies upon the complainant to establish that the opposite party No.3 also a partner of the Opposite Party No.1 firm by summoning the partnership deed from the concerned authority. But no such attempt was made by the complainants. Therefore, it is difficult to hold that the opposite party No.3 also a managing partner of the Opposite party No.1 firm.
However, the Opposite Party No.1 and 2 inspite of receiving version notice not appeared nor contested the case till this date and entire evidence placed by the complainants is not contradicted nor contraverted by the Opposite Party No.1 and 2 which requires no further proof. When the version notice served with the Opposite parties, it is the bounden duty of the opposite parties to appear and deny the averments made in the complaint. Since the Opposite Party No.1 and 2 not appeared and nor contested the case on hand. Hence it is deemed to be admitted that opposite party No.2 is a Managing Partner and Opposite Party No.1 is a partnership firm. Therefore, we are of the considered opinion that, the Opposite Party No.1 and 2 should have returned the amount after the date of maturity under the bond to the complainants. But till this date not returned the amount, which amounts to deficiency in service as well as unfair trade practice.
In view of the aforesaid reasons, we hold that, the Opposite Party No.1 and 2 are jointly and severally directed to pay Rs.2,00,000/- (Rupees Two lakhs only) to the complainants along with interest at 12% per annum from the date of investment till the date of payment. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order. Since the complainants failed to establish that the Opposite Party No.3 is also a partner of the Opposite Party No.1 firm, we hold that the complaint against Opposite Party No.3 deserves to be dismissed.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.1 and 2 are jointly and severally shall pay Rs.2,00,000/- (Rupees Two lakhs only) to the complainants along with interest at 12% per annum from the date of investment till the date of payment. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against Opposite Party No.3 is hereby dismissed.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of March 2014)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Mr.Vaman M.Ghagath – GPA holder of the Complainants.
Documents produced on behalf of the Complainants:
Ex C1 – 7.3.2013: Copy of the Power of Attorney.
Ex C2 – 20.6.2010: Investment Document.
Ex C3 – 7.6.2013: Copy of Lawyer’s notice.
Ex C4 – 7.6.2013: Lawyer’s notice with returned envelope of O.P.No.1.
Ex C5 – 7.6.2013: Lawyer’s notice with returned envelope of O.P.No.2.
Ex C6: Postal Acknowledgment.
Court documents:
Doc.No.1 & 2: Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil –
Dated:28.3.2014 PRESIDENT
