DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB: PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Wednesday the 15th day of March 2023
CC No. 104/2022
Complainant
Anima Puthukudi,
W/o Dhiresh Narayan,
Samarpan, Mannam Parambath,
Karuvissery (P.O)
Kozhikode-673 010.
(By Adv. Sri. V.P Bimaldas)
Opposite Parties
1. Kenza Wellness Hospital LLP,
1205, Second floor,
Hilite Business Park,
Thondayad Bypass Road,
Kozhikode -673 014.
2. Eracham veetil Shahul Hameed,
Muhammed Shihab,
Designated Partner,
Kenza Wellness Hospital LLP,
Residing at Earacham veetil (H.O),
Venkitangu (P.O), Trissur – 680 510.
3. Nooritha Valiyakath Kader,
Designated Partner,
Kenza Wellness Hospital LLP,
Residing at Valiyakath (H.O),
Kannoth post Venkitangu,
Trissur – 680 510.
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT
This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.
- The case of the complainant, in brief, is as follows:
The complainant executed an investment agreement on 23-12-2019 with the opposite parties and invested an amount of Rs 6. Lakh in Kenza Wellness Hospital LLP. As per the agreement, the complainant will be entitled for a profit sharing from the project Kenza Wellness Hospital LLP and it was agreed that the net profit will be distributed on yearly basis. The opposite parties had agreed that they will be distributing 75% of the net profit among the investors and partners based on capital contribution. Further it was agreed that the complainant will be entitled for capital appreciation for her investment and that the distribution of profit shall commence from the beginning of second year onwards from the date of completing the investment commitment by the complainant. The investment of Rs.6 lakh was made on 23-12-2019 and as per the terms of the agreement, the opposite parties are liable to pay share of profit to her after 23-12-2021. The complainant was also entitled to receive a fixed income of Rs.40,000/- per year on capital contribution.
In the brochure given to the complainant, it is stated that the opposite parties will be opening a hospital named Kenza Wellness Hospital and Resort at Wayanad. But on enquiry, it was revealed that the opposite parties have not even purchased land for the proposed project. The complainant believes that the only intention of the opposite parties was to cheat and defraud her by making false promises and claims.
4. On realising that she was cheated by the opposite parties, she approached them and demanded return of Rs.6 lakh invested by her in the project. Then the opposite parties promised that they would pay profit on the invested amount from the first week of January 2022. But that also proved to be a false promise. They failed to pay the profit on investment even after two years. The complainant demanded refund of the invested amount along with the interest. But the opposite parties failed to do so. Hence she issued a lawyer notice to them. Despite receipt of notice, they neither repaid the invested amount nor did they send any reply. The complainant is entitled to get refund of Rs.6 lakh invested by her along with 18% interest from 23-12-2019. Further she is entitled to realise Rs.50,000/- as compensation for the loss of business, damages and mental agony suffered. She is also entitled to get Rs.40,000/- as compensation. Hence the complaint.
5. Despite receipt of notice issued from this Commission, the opposite parties failed to appear and hence they were set ex-parte.
6. The points that arise for determination in this complaint are:
- Whether there was any unfair trade practice or deficiency of
service on the part of the opposite parties, as alleged?
- Reliefs and costs.
7. The father and power of attorney holder of the complainant was examined as PW1 and Exts A1 to A3 were marked.
Heard. Brief argument note was filed by the complainant.
9. Point No.1– The complainant has approached this Commission seeking return of the amount of Rs.6 lakh invested by her as per the investment agreement dated 23-12-2019 executed between the second opposite party and herself, along with interest and compensation. The specific allegation is that by making false promises and claims about the proposed project, the opposite parties induced the complainant to invest a sum of Rs.6 lakh in the Kenza Wellness Hospital LLP and on making such investment, the opposite parties failed to act in accordance with the terms and conditions and thereby cheated and defrauded her and her request for the return of amount invested was also turned down by the opposite parties.
10. PW1 has filed proof affidavit in terms of the averments in the complaint and in support of the claim. It is averred in the proof affidavit that the opposite parties have violated the terms and conditions of the agreement and they also failed to return the invested amount of Rs.6 lakh in spite of repeated requests. Ext A1 is the investment agreement dated 23-12-2019, Ext A2 is the brochure and Ext A3 is the copy of the lawyer notice, postal receipts and postal acknowledgement cards.
The evidence of PW1 stands unchallenged. The opposite parties have not turned up to file version. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked by the complainant. The case of the complainant stands proved through the testimony of PW1 and Exts A1 to A3. Unfair trade practice and deficiency of service on the part of the opposite parties are established and proved. The complainant is entitled to get refund of the investment amount of Rs. 6 lakh. Due to the fraudulent act and conduct of the opposite parties, the complainant was put to mental agony and hardship, for which, she is entitled to be compensated adequately.Considering the entire facts and circumstances, we are of the view that a sum of Rs. 25,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs.5,000/- as cost of the proceedings.
12. Point No.2 :In the light of the finding on the above point, the complaint is disposed of as follows:
- CC 104/2022 is allowed in part.
- The opposite parties are hereby directed to repay the invested amount of Rs. 6 lakh (Rupees Six lakh only) to the complainant with interest @ 6% per annum from the date of the complaint ie, 19-04-2022 till actual payment.
c) The opposite parties are directed to pay a sum of Rs. 25,000/- (Rupees Twenty Five thousand only) as compensation to the complainant for the mental agony and hardship suffered.
- The opposite parties are directed to pay a sum of Rs.5000/- (Rupees Five Thousand only) as cost of the proceedings to the complainant.
- The order shall be complied with within 30 days of the receipt of copy of this order.
Pronounced in open Commission on this the 15thday of March 2023.
Date of Filing: 19/04/2022
Sd/-
PRESIDENT
Sd/-
MEMBER
Sd/-
MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Ext A1 is the investment agreement dated 23-12-2019.
Ext. A2 – Ext A2 is the brochure.
Ext. A3 – Ext A3 is the copy of the lawyer notice, postal receipts and postal acknowledgement cards.
Exhibits for the Opposite Party
Nil.
Witnesses for the Complainant
PW1 - Puthukudi Purushothaman
Witnesses for the opposite parties
NSd/-
Sd/- PRESIDENT
Sd/-
MEMBER
Sd/-
MEMBER
Forwarded/ By Order
Sd/-
Assistant Registrar
