D.O.F. 03.03.2009
D.O.O. 01.12.2010
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 1st day of December, 2010
C.C.No.62/2009
Rajesh K.C.
Kuniyil House,
Kottayam Poyil, Pathayakunnu, : Complainant
Kannur District.
(Rep. by Adv. N.P. Vijith Viju)
1. Kerala State Financial Enterprises,
Regd. Office Badrada,
P.B.No. 510, Museum Road,
Thrissur – 680 020 : Opposite parties
2. Manager,
Kerala State Financial Corporation,
Kutuparamba,
Kannur District.
(Rep. by Adv. K.P. Hareendran)
O R D E R
Sr. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to repay the remitted amount of ` 23,250 with 12% interest and ` 10,000 as compensation with cost.
The case of the complainant in brief as follows : Complainant, the subscriber of the chitty conducted by opposite party 2 remitted an amount of ` 23,250 as 31 equal installments of ` 750 each. Since he was not intending to continue he demanded for repayment of remitted amount. But opposite party 2 demanded security for repayment. It was only for to deprive the right of complainant to get back the amount. Notice was sent but opposite party replied with false allegation stating that a prized subscriber cannot claim the amount he has already remitted without furnishing sufficient security for the future liability in the chitty and he is liable to remit the entire installments in the chitty. It is a false statement. The complainant has not withdrawn any amount from the chitty as prized subscriber. Hence the demand for security for releasing the remitted amount is illegal. There is no provision of law disentitling the complainant from receiving back the remitted amount. His repeated demand to get back the amount was not heeded by the opposite party. Hence this complaint.
In pursuance of the notice opposite parties entered appearance and filed version jointly denying the allegation of the complainant.
The contentions raised by the opposite parties in brief are as follows : Complainant was a subscriber of chitty for a sala of ` 1 lakh with a duration of 100 months. (12.05.2000 to 08.08.2008) Complained auctioned the chitty on 09.09.2002 for an auction discount of ` 30,000 at the 29th installment. Auction was confirmed by lot. Petitioner took the chitty authorizing opposite party 2 as proxy. As per the terms and conditions of the chitty the subscriber has to produce sufficient security for future liability to release the price money. Complainant did not produce sufficient security to release the prize money. The averment that the petitioner was not intended to proceed the chitty and demanded for repayment is not correct. Non prized subscriber is entitled to get back the amount remitted after the termination of the chitty. A prized subscriber is not entitled to get the amount already remitted. If the prized subscriber fails to furnish security and fails to receive the prize money, the prize amount payable to the subscriber shall be adjusted to the future installment in the event of subscriber’s failure to pay the future installments. If the prize amount is not sufficient for releasing the future installment KSFE has every right to realize the balance amount from the subscriber.
After termination KSFE recovered ` 62,528 towards installments from 31 to 100, credited an amount of ` 1150 towards pass book loan account and ` 65 towards service tax. An amount of ` 6257 is due to the subscriber/complainant and the same is duly informed. The lawyer notice was replied in due course. There are specific provisions in the Kerala Chitties Act, 1975 in respect of prized subscribers. Part V of the Act deals with prized subscriber. There is no deficiency of service on the party of opposite party. This litigation ill motivated. Hence to dismiss the complaint.
Upon the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency in service on the part of opposite party?
2. Whether the complainant is entitled for the remedy as prayed in the complaint?
3. Relief and cost.
Issues 1 to 3 :
Admittedly complainant was a subscriber of chitty with the opposite party 2. It is also an admitted fact that the complainant has remitted ` 23,250 as 31 equal installment of ` 750 each.
The averment of the complainant is that he demanded for the repayment of remitted amount but it was illegally denied by the opposite party. Opposite party on the other hand contented that the averment of the complainant that he was not intended to proceed the chitty and demanded for repayment of remitted amount was not correct. He auctioned the chitty on 09.09.2002 for an auction discount of ` 30,000. Auction was confirmed by lot. Non prized subscriber is entitled to get back the amount remitted after the termination of the chitty. A prized subscriber is not entitled to get the amount already remitted if he fails to furnish sufficient security. If the subscriber thus failed to receive the price money the price amount payable to subscriber shall be adjusted to the future installment in the event of subscriber’s failure to pay the future installments. If the price amount is not sufficient for clearing the future installment KSFE has every right to realize the balance amount from the subscriber. Moreover opposite party also admitted that after termination KSFE recovered ` 62,528 towards installments from 31 to 100 and stated that an amount of ` 1150 credited towards pass book loan account and ` 65 towards service tax. It is also stated that an amount of ` 6257 is due to the complainant and the same was duly informed.
It can be seen that the complainant’s case is that he demanded for repayment of the remitted amount since he was not willing to continue with the chit. He has not stated anywhere in the complaint that he auctioned the chitty on 09.09.2002 for an auction discount of ` 30,000. It is an important fact which the complainant ought to have disclosed in the complaint. Anyhow, complainant/PW1 stated in his evidence affidavit that he auctioned the chitty but he did not receive the amount due to certain technical reasons. He adduced evidence that he was not in a position to remit the installments thereafter. So after termination of chitty he approached opposite party to get the remitted amount ` 23,250. But opposite party is not ready to give back the amount. Though approached again and again opposite party avoided the complainant.
The main point to be considered is whether the opposite party is liable to refund the remitted amount to complaint? Ext.B1 and B2 proves that complainant took the chitty in auction by authorizing opposite party 2 as proxy. In the cross examination he deposed “09.09.2002 \v 29mT XhW Ipdn ` 30000 Ipd¨v \dp¡p h¶p. Fsâ k½-X-t¯m-sS-bmWv Fsâ t]cv \dp-¡n-\n-«-Xv.” Hence it is proved beyond doubt that complainant took the chitty with his consent. Complainant admitted that he was not able to furnish the security to release the auctioned amount. Any way he has no complaint with respect to the non release of auctioned amount. His complaint is with respect to repayment of remitted amount after the termination of the chitty. The allegation of the complainant that opposite party demanded security for repayment of remitted amount is a twisted usage so as to obfuscate the fact that he is a person who has already took the chitty in auction. There are difference with respect to the status of a prized subscriber and non prized subscriber. It is quite clear that the prized amount will only be released to a prized subscriber after furnishing security. Herein no security furnished and amount has not been realized. In the complaint, complainant’s case was that since he was not intended to proceed as a subscriber of the chitty he demanded for repayment of the amount remitted by him and for that opposite party asked for security. In the affidavit evidence there is a little deviation. After 31st instalment he was not able to remit the amount so after termination he approached opposite party to get back the amount. It makes clear that complainant failed to give security and so also could not pay the instalment subsequent to the calling of chitty.
So now the question turned up to decide what is the position of a prized subscriber as far as his remitted amount is concerned in case of failure of security as well as non-payment of subsequent instalments.
Opposite party contended that in a case where prized subscriber failed to realize the prize money the prize amount payable to subscriber shall be adjusted to the future installment in the event of failure of subscriber to pay the future installments. The adjustment to the future installments cannot be said to be unjustifiable since it is an amount the subscriber bound to remit. Ext. B1 and B2 proves that the complainant took the chitty No.11/2000 of ` 1,00,000 in auction in its 29th installment for an auction discount of ` 30,000. It is pertinent to note that in the cross examination the complainant / PW1 deposed that “Rm³ Ipdn ` 30000 Ipd¨p hnfn-¨m FÃm Ipdn AT-K-§Ä¡pT dividend In«p-T.” It means complainant is aware that the amount of deduction has been shared from among the subscribers. He further deposed that “BZ-yamkT Bbn-cT cp]-bmWv AS-¨Xv. 100 Xh-W-bmWv sam¯T sht¡Xv. ]n¶o-Sp-ff amk-§-fn ` 750 BWv sh¨-Xv. Hmtcm amk-hpT ` 250 hoXT hoX-]-eni In«n-bn-cp-¶p.” Thus it is very clear the complainant has been enjoyed the benefit of ` 250 every month. The source of which is undoubtedly the share derived from the share of auction discount amount of ` 30,000 of complainant with adjustment of formal expense also has been shared by the subscribers as usual. Naturally that liability goes to the account of complainant. Hence the adjustment of amount does not amount to deficiency in service since the position of prized subscriber is only to get the auction amount. He is entitled only for the auction amount, since it is born out of the will of complainant which has been revealed from Ext.A1. But it does not mean the entire amount has been paid, though, adjustment towards installments in principle is justifiable.
The complainant took the chitty in auction for ` 70,000. In other words for an auction discount ` 30,000. So the amount for which the complainant is entitled for as a prized subscriber is based on auction amount only. Opposite party argued that the gross subscription payable by the complainant is ` 93,000. Complainant got an amount of ` 14,372 as auction veethapalisa. The actual amount paid by the complainant is ` 23,250. Hence actual amount paid by the complainant plus the veethapalisa comes to ` 23,250 + ` 14372 = ` 37622. Cross subscription payable by the complainant plus credited amount towards pass book loan account plus service tax come to ` 93,000 + ` 1150 + ` 65 = ` 94,215. The total liability of the complainant thus is ` 94,215. The total liability after deduction of actual amount paid as veethapalisa comes to ` 94,215 – ` 37,622 = ` 56593. Now this is the amount complainant need to be adjusted from the auction amount ` 70,000. Then the due amount opposite party liable to pay to complaint is ` 70,000 - ` 56,593 = ` 13,407. Therefore opposite party is liable to pay an amount of ` 13,407. Complainant is also entitled for a sum of ` 1000 as cost of this proceedings. Thus issue 1 to 3 are found partly in favour of complainant and order passed accordingly.
In the result, the complaint is allowed directing the opposite party to pay ` 13,407 (Rupees Thirteen thousand four hundred and seven only) as due amount along with ` 1000 (Rupees One thousand only) as cost this litigation, within one month from the date of receiving the order, failing which the complainant is entitled to execute the order as per the provisions of Consumer Protection Act.
Dated this the 1st day of December, 2010
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Copy of Lawyer Notice dated 03.01.2009.
A2. Reply Notice issued by O.P. No.2 dated 20.01.2009.
Exhibits for the opposite party
B1. Authorisation letter dated 08.11.2001.
B2. Copy of the letter issued to the complainant by KSFE dated
09.09.2002.
B3. Copy of the relevant page of despatch register of KSFE.
B4. Receipt for auction difference dated 17.09.2002.
B5. Copy of statement of account in respect of the Complainant dated
09.09.2002.
B6. Copy of Variyola signed by the complainant dated 08.03.2000.
B7. Specimen of the Variyola.
Witness examined for the complainant
PW1. Complainant.
Witness examined for opposite party
DW1. Sunny Joseph K.
/forwarded by order/
SENIOR SUPERINTENDENT
