Between:

J.S.Siva Ram, Advocate, Plot No.132,

P.S.R. Colony, Vizianagaram.                                                                                                                                                                      ……Complainant

And

The Branch Manager, Kapil Chit Funds Pvt.Ltd.,

D.No.5-1-12, Opp.to S.B.I. Main Branch,

Vizianagaram.

                                                                                      ……Opposite party

          This complaint is coming on for final hearing before us in the presence of Sri Ch.Appa Rao, Advocate for the complainant And Sri K.Srinivasa Rao, and Sri D.Rama Rao, Advocates for O.P and having stood over for consideration, the Forum made the following:-

SRI T. SRIRAMA MURTHY,PRESIDENT

O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.P to pay a sum of Rs.2,76,000/- towards prize amount with interest @ 6% p.m., and also to pay an amount of Rs.50,000/- towards damages for causing mental agony and to pay costs of the complaint  on the following averments:

          The complainant joined in the chit group bearing No. KOSLTOIH/34 run by the O.P for the chit value of Rs.3,00,000/- to be subscribed @ Rs.6000/- per month for a period of 50 months.  The complainant paid 45 monthly installments regularly to the O.P and in the month of February, 2014 as the complainant was in need of money has approached the O.P and expressed his desire to participate in the auction upon which he was told by the men of O.P that he committed default in paying one installment and in case the said installment amount is not paid, he is not entitled to participate in the auction.  The complainant told the O.P that he did not commit any default in paying the installments and has shown the receipt dt.11-6-2012 for a sum of Rs.5,300/- towards the installment which he alleged to have committed default.  The O.P was not satisfied with the alleged payment upon which he was asked to pay Rs.9,500/- which includes the amount of default installment and fine amount.  The complainant having paid the said amount participated in the auction and became the highest bidder and to draw the prize amount he told the O.P to deduct future installments four in number from the amount payable to him but of no avail.

          The agent of the O.P by name Suresh, insisted on the complainant to join in another chit for the chit value of Rs.5 Lakhs to see that the bid amount would be paid to the complainant within 15 days upon which the complainant agreed and signed on some papers with a hope that he would get the prize amount.  Since the O.P did not pay the prize amount within 15 days as promised by Suresh the complainant addressed a letter dt.21-3-2014 to the O.P stating that he is not going to join in the new chit and requested them to pay the chit amount.  The complainant addressed another letter calling upon the O.P to return back the forms containing his signatures but to no effect.  The O.P insisted on the complainant to furnish sureties though he told them to adjust the amount of future 4 installments from the prize amount payable to him.  The complainant got issued a notice dated 21-3-2014 calling upon the O.P to pay the prize amount and also to pay a sum of Rs.50,000/- towards compensation but they did not respond to the said notice.  Hence the complaint.

          The O.P filed counter traversing the material allegations made in the complaint and has averred that the complainant joined in the new chit for the value of Rs.5 Lakhs and agreed to adjust Rs.50,000/- towards the new chit from out of the amount payable to the complainant as prize amount of earlier chit and has drawn a Demand Draft for the balance chit amount of Rs.2,23,892/- dt.19-4-2014 and sent the same to the address of the complainant on 20-4-2014 but to the surprise the said D.D was returned with an endorsement that no such addressee in the given address.  It is averred that there is no negligence and deficiency in service on the part of O.P and as there are no merits in the complaint the same is liable to be dismissed.

          In support of complainant’s case the affidavit evidence of complainant is filed and Ex.A.1 to A.11 are marked.   On behalf of O.P the affidavit evidence of R.W.1 is filed and Ex.B.1 to B.4 are marked.  Perused the material placed on record and heard the counsel for both the parties.

Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for ?

          Points:-  The learned counsel for complainant has contended that complainant did not commit any default in paying the installments and when he expressed his desire to participate in the auction, he was told that a sum of Rs.5,300/- towards installment dt.11-6-2012 is due and as the complainant was in dire need of money he was made to pay Rs.9,500/- towards the said installment as well as fine and participated in the auction and became the highest bidder and to draw the prize amount he told the O.P to deduct the balance amount for 4 installments which was due and payable and though the O.P has deducted the said amount they did not pay the prize amount to the complainant and as there is deficiency in service on the part of O.P the complainant has filed the complaint for the above said reliefs. 

As against the above said contention the learned counsel for O.P has contended that as the complainant committed default in paying the installment he was asked to pay the said amount as well as fine amount and as the complainant joined in another chit and committed default in paying the installments towards the said chit necessary amounts were deducted from the prize amount of complainant and the balance amount was sent to him through D.D and as there is no deficiency in service on the part of complainant the complaint is liable to be dismissed.  Though the O.P has taken a plea that the complainant committed default in paying one instalment in the year 2012 they did not give any explanation as to why they did not insist the complainant to pay the amount of said installment till the complainant expressed his desire to participate in the auction in the year 2014. 

In normal circumstances when the subscriber commits default in paying the instalments he would be asked to pay the said amount in the next month or in successive months but for the reasons best known they did not ask the complainant to pay the installment amount till 2014.  As per complainant when he expressed his desire to participate in the auction he was told to have committed default in paying one installment amount in the year 2012.  He told the O.P that he did not commit default and under receipt No.54499 dt.11-6-2012 he paid Rs.5,300/- towards the installment to the agent of O.P by name Suresh and as he was in need of money he paid 9,500/- in the year 2014 and participated in the auction.  Before institution of this case the complainant issued notices to the O.P calling upon them to pay the prize amount.  Ex.A.4, Ex.A.6 and A.8 are the notices issued to the O.P by the complainant and his advocate and the O.P has received the said notices under Ex.A.5 and A.7 acknowledgements.  The O.P did not give any reply to the above said notices in the said notices.   In the complainant has clearly stated that he did not commit default in paying the installment and under Ex.A.2 receipt he paid Rs.5,300/- on dt.11-6-2012 to the agent of O.P towards the said installment and they having received the said sum, again asked to pay the said sum together with fine amount. 

      The O.Ps did not dispute about the correctness of Ex.A.2.  It is not their case that the said receipt was not originated from their office and is created for the purpose of this case.  One Chandhu has issued the said receipt acknowledging the receipt of Rs.5,300/- towards chit group FVZTO5H ticket No.34.  Chandhu is a material witness to the O.P to speak about the contents of Ex.A.2 receipt but for the reasons best known the O.P did not examine the said witness.  In this case the complainant has taken a plea that one Suresh who is the agent of O.P insisted upon him to join in another chit to enable him to receive the prize amount within 15 days and though he joined in the 2^nd chit he was not paid the prize amount and as such he got issued Ex.A.4 notice stating that he is not willing to join in the 2^nd chit.  The O.P deducted Rs.23,995/- towards the 2^nd chit from the prize amount.  Suresh is also a  material witness to the O.P but for the reasons best known he too was not examined as a witness on their behalf. 

It is well settled that when a material witness is not examined by a party in a lis, an adverse inference is to be drawn to the fact that in case he is examined he would go against him.  If it is believed that the amount under Ex.A.2 collected by their agent Chandhu was not adjusted towards the chit installment of the complainant, the complainant cannot be punished under the principle that for all the acts of an agent the principal is liable.   Since the complainant has paid the installment amount of Rs.5,300/- under Ex.A.2 he cannot be penalized and the O.P is bound to pay refund Rs.9,500/- which was collected from him towards the instalment and fine amount.  Coming to the act of O.P in deduction of Rs.25,150/- towards damages for breach of contract and incidental charges as mentioned in Ex.B.2 towards another chit, the O.P is wrong in collecting the said amount.  The O.P has alleged that the complainant joined in another chit.  But under Ex.A.4 notice dt.21-3-2014, the complainant told the O.P that he is not willing to join in the chit and to return back the forms containing his signatures.  Since the O.P did not dispute the contents of Ex.A.4 notice, the deduction of amount for the alleged breach of contract is unwarranted.   As there is ample evidence to believe that the complainant having participated in the auction became the highest bidder and to receive the prize amount he told the O.Ps to deduct the balance 4 installments amount the O.P is bound to deduct the said amount and to repay the balance amount to the complainant, but they did not do so.

In the counter filed by the O.P it is clearly averred that they have taken D.D for Rs.2,23,892/- on dt.19-4-2014 and sent the same to the complainant to the addressee given by him and the said D.D was returned with an endorsement that no such addressee upon which the O.P has deposited the said D.D into the account of complainant.  To prove the above said facts the O.P filed Xerox copy of D.D and got the same marked as Ex.B.3 and the voucher given by the bank which is marked as Ex.B.4.  The complainant did not file any rejoinder disputing the above said facts.  Once the O.P deposited Rs.2,23,892/- to the account of the complainant towards the prize amount the same is to be deducted from the total amount payable to him towards prize amount.  The complainant in this case has claimed Rs.2,76,000/- to be the prize amount and out of the same a sum of Rs.2,23,892/- is to be deducted and the remaining amount is to be payable by the O.P to the complainant.

The evidence on record clearly reveals that there is deficiency in service on the part of O.P and as the complainant was not paid the prize amount in time he must have suffered mental agony.

          IN THE RESULT, THE COMPLAINT IS PARTLY ALLOWED DIRECTING THE O.P TO PAY  RS.52,108/- (RUPEES FIFTY TWO THOUSAND ONE HUNDRED AND EIGHT ONLY) WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF COMPLAINT TILL THE PAYMENT IS MADE AND ALSO TO PAY A SUM OF RS.10,000/- TOWARDS COMPENSATION FOR CAUSING MENTAL AGONY TO THE COMPLAINT AND TO PAY RS.2,000/- TOWARDS COSTS WHICH INCLUDES ADVOCATE FEE OF RS.500/- (RUPEES FIVE HUNDRED ONLY). THE O.P IS DIRECTED TO COMPLY THE ORDER WITHIN ONE MONTH FROM TODAY.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the  22^nd  day of April, 2015.

Member                                                           President.

CC. 39 of 2014

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1                                                                               

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Pass Book supplied by O.P dt.1-5-2010
2. Ex.A.2 Receipt No.54499 for Rs.5,300/- dt.11-6-2012
3. Ex.A.3 Receipt for Rs.16,600/- dt.24-2-2014
4. Ex.A.4 Regd.Letter dt.21-3-2014
5. Ex.A.5 Postal acknowledgement dt.22-3-14
6. Ex.A.6 O/c of Regd.Lawyer’s notice 21-4-2014
7. Ex.A.7 Postal Ack., dt.22-4-2014
8. Ex.A.8 O/c of complaint to police dt.18-4-2014
9. Ex.A.9 copy of letter addressed to S.P Vzm., dt.12-5-2014.

10.  Ex.A.10 letter of kapil chits

          11. Ex.A.11 postal cover

For O.Ps:-   

     1. Ex.B.1 Removal Notice dt.4-8-2014 of Kapil Chits Kosta

     2.  Ex.B.2 Removal letter dt.1-9-2014

3. Ex.B.3 Demand Draft Xerox copy dt.19-4-2014
4. Ex.B.4 Counter foil of SBI.                                

                                                                                                                                                                                                  President.