<br /> ORDER<br /> SRI. N. PREMKUMAR (MEMBER):<br /> <br /> This complaint filed by the complainant against the opposite parties for getting a relief from the Forum.<br /> The facts of the case is that opposite parties are conducting jewellery business in Thiruvalla and had launched a Gold Ornament Savings Scheme called ‘Swarnakkudukka’. The complainant joined the scheme on 8.10.2001 by taking 2 membership with No.C2606 and C2607. The monthly subscription was Rs.500/- for each membership. The scheme started on 8.10.2001 and completed on 10.5.2003. For both the membership put together the complainant is entitled to get gold ornaments worth Rs.22,000/- as per the offer of the opposite party.<br /> <br /> After the completion of the said scheme, the complainant approached the first opposite party on 10.6.2003 to obtain the gold ornaments. But the 1st opposite party promised to release the ornaments shortly and also promised the complainant to give additional gold ornaments towards interest on the first round of the scheme from 10.6.2003. The complainant was also persuaded to join in the next round up of the scheme from 10.6.2003. Accordingly, he joined in the subsequent round of the scheme by taking 2 membership which commenced on 10.6.2003 onwards. The monthly subscription was Rs.500/- each and membership number were C2661 and C2662. This was completed on 10.1.2005.<br /> <br /> By the completion of the 2nd round also, the complainant has not paid the principal amount and interest. Therefore, this complaint and complainant prays for an order from this Forum for realising the principal amount of Rs.44,000/- and its interest amounting to Rs.5,940/- and a compensation of Rs.5,000/- and a cost of Rs.2,000/- from the opposite parties.<br /> The first opposite party filed version stating the following: That the complaint is not maintainable either in law or on facts. This Forum has no territorial jurisdiction to entertain this complaint as per condition 7 mentioned in the palm let of the Swarnakkudukka Scheme. As per the above condition, jurisdiction to entertain this complaint is only with Alapuzha Forum. Moreover, the saving scheme encouraging the customers to obtain gold, undertaken by the opposite party is a service without getting any charges and customers are joining voluntarily. The default, if any, by the opposite party does not fall within the purview of deficiency of service as defined in the Consumer Protection Act. The complainant joined the first round scheme on 8.10.2001 in ‘C’ class and remitted the whole instalment and collected the ornaments of his choice in June, 2003. He has fully satisfied with the first round and found profitable and prosperous. After collecting the ornaments, complainant joined the second round scheme on 10.6.2003. It is not correct to say that he was persuaded and there was promise to give ornaments for interest etc., he joined the second scheme voluntarily reposing confidence with the opposite party. On completion of second round, in the month of February 2005, the complainant came to the shop of opposite party to collect the ornaments. Complainant wanted a particular design, which was not available. It was to be obtained from Mumbai and order was placed with the Mumbai suppliers. The suppliers sought time and assured to make it available during the Onam Season.<br /> The opposite party was prepared to give the ornaments of the choice in the month of August and in the mean time complaint was filed before this Forum. The complainant is entitled only for the ornaments worth Rs.22,000/- as stipulated in the condition. There is no deficiency on the part of the opposite party. Opposite party is not liable for interest and compensation for mental agony. Opposite party is entitled for compensation for filing frivolous complaint and for tarnishing the reputation and goodwill of the shop. <br /> <br /> The second opposite party also filed separate version stating that complaint is not maintainable either in law or on facts. They also state that this Forum has no territorial jurisdiction to entertain this complainant as per Condition 7 of the Scheme. The second opposite party never conducted any gold ornament savings scheme and never issued any publicity pamphlet. The allegation that complainant joined the scheme on 8.10.2001 with membership No.C2606 and C2607 and remitted Rs.22,000/- is stoutly denied. They never accepted any amount from the complainant. They have not persuaded the complainant to join in the next round of the scheme from 10.6.2003. They never collected any amount from the complainant and never given any promise to give any gold ornaments to the complainant. They further averred that there are several jewelleries by name Alankar Jewellers in various places such as Chengannoor, Alappuzha, Kottayam etc. Each jewellery belongs to independent persons. There is no need to launch any scheme by the second opposite party to attract customers. There is no relation between the complainant and second opposite party so as to attract any of the provisions of the Consumer Protection Act. They were unnecessarily impleaded in the case to tarnish the reputation and goodwill of them. There is no deficiency on the part of the second opposite party. They are no way liable to pay interest and compensation for mental agony. Second opposite party is entitled for compensation or filing frivolous complaint and for tarnishing reputation and goodwill. Hence, the complaint be dismissed with the cost of the second opposite party.<br /> <br /> <br /> On the above pleadings, the following points are raised for consideration.<br /> (1)Whether the O.P. is maintainable?<br /> (2)Whether the reliefs sought for in the complaint are allowable?<br /> (3)Compensation and Cost?<br /> The evidence in this case consists of the oral evidence of the complainant who has been examined as PW1 and Exts.A1 to A9 series marked on the basis of the proof affidavit filed by the complainant. After closure of the evidence, both sides heard.<br /> <br /> Points 1 to 3: In support of the complaint, the complainant has filed proof affidavit. Based on the affidavit, the complainant is examined as PW1 and the documents produced by him have been marked as Exts. A1 to A9(a). Ext.A1 is the publicity pamphlet of Gold Ornaments Savings Scheme issued by opposite parties. Ext.A2 is the membership card No.C2606 and Ext.A3 is the membership card No.C2607 issued by the opposite parties. Ext.A4 is the receipt of first subscription of Rs.500/- for Ext.A2 membership No.2606 dated 8.10.2001. Ext.A5 is the receipt of subscription of Rs.500/- for Ext.A3 membership No.2607 dated 8.10.2001. Ext.A4(a) is the receipt of last subscription of Rs.500/- for Ext.A2 membership No.2606 dated 10.5.2003. Ext.A5(a) is the receipt of last subscription of Rs.500/- for Ext.A3 membership No.2607 dated 10.5.2003. Ext.A6 is the membership card No.C2661 dated 10.6.2003. Ext.A7 is the membership card No.C2662 dated 10.6.2003. Ext.A8 is the receipt of the first subscription of Rs.500/- of Ext.A6 membership No.2661 dated 10.6.2003. Ext.A9 is the receipt of first subscription of Rs.500/- of Ext.A7 membership No.2662 dated 10.6.2003. Ext.A8(a) is the receipt of last subscription of Rs.500/- of Ext.A6 membership No.2661 dated 10.1.2005. Ext.A9(a) is the receipt of last subscription of Ext.A7 membership No.2662 dated 10.1.2005. Exts.A1 to A9(a) are issued by the first opposite party to the complainant. On the basis of evidence, complainant canvassed for allowing the complaint.<br /> <br /> <br /> <br /> The opposite parties filed version, but failed to adduce evidence to disprove the complainant’s claim. But the opposite parties’ counsel cross-examined the complainant.<br /> The opposite parties have the allegation that this Forum has not having territorial jurisdiction to entertain this complaint. The opposite parties having branches functioning at Alappuzha, Thiruvalla and Chengannur. In support of their contention, they are relying the conditions mentioned in Ext.A1. As per Ext.A1, condition No.7 stipulates that if a dispute arises the jurisdiction would be at Alappuzha town Court. On perusing the evidence, it is clear that the opposite parties have been functioning at Thiruvalla within the jurisdiction of this Forum. Therefore, this Forum has jurisdiction to entertain this complaint as per Consumer Protection Act. Moreover, it is seen that the opposite parties accepted money by monthly subscription by promising gold ornaments. As per Ext.A1, they are service providers and having an implied responsibility. They have not adduced any evidence to rebut the points proved by the complainant in this regard. Therefore, the complainant is within the purview of consumer as defined in the Act and the point No.1 is found against the opposite parties.<br /> <br /> It is not disputed that the first opposite party had received Rs.44,000/- and had given receipt to the complainant. It is evidenced from Exts.A1 to A9(a). But their contention is that the complainant collected the gold ornaments on completion of the first round scheme and on completion of the second round, the complainant demanded a particular design which was not available and the design of his choice has to be obtained from Mumbai suppliers who sought time for the supply. The complainant agreed to wait till the supply. Thereafter, he had not approached the opposite party for collecting the ornaments. Instead of this, he had filed this complaint. But the opposite party had failed to adduce any evidence to substantiate their contentions.<br /> The second opposite party also denied the complainant’s case. But their version is not compatible with their denial. They are reluctant to adduce an iota of evidence to disprove the complainant’s case. But going through their version, it is seen that they are also involved and fully aware of the scheme. The said scheme was conducted jointly by the opposite parties. The opposite parties are bound to follow the promise as stipulated in Ext.A1. On going through the available evidence, it is clear that they have not delivered the gold ornaments to the complainant after accepting Rs.44,000/-. This is a grave deficiency of service on the part of the opposite parties. Hence, the complaint is allowable and he is entitled to get the reliefs sought for in the complaint.<br /> Due to the opposite parties’ deficiency of service, the complainant had lost the money paid to the scheme and had sufferings. Therefore, the opposite parties are liable to pay the whole amount of Rs.44,000/- and its interest of Rs.5,940/- claimed by the complainant with interest from the date of filing of this case along with compensation of Rs.2,500/- for his sufferings and Rs.1,000/- as cost.<br /> In the result, this O.P. is allowed and thereby the complainant is allowed to realise Rs.49,940/- with interest at the rate of 9% per annum from the date of this O.P. till this date and thereafter at 6% interest per annum till realisation of the amount from the from the opposite parties jointly and severally together with compensation of Rs.2,500/- (Rupees Two thousand five hundred only) and cost of to Rs.1,000/- (Rupees One thousand only). The opposite parties are directed to pay the amount so awarded in favour of the complainant within 2 months from the date of receipt of this order, failing which interest for the whole amount will follow at 9% per annum till the whole payment.<br /> Declared in the Open Forum on this the day of June, 2008.<br /> <br /> N. Premkumar,<br /> (Member)<br /> Sri. Jacob Stephen (President) :<br /> Smt. C. Lathika Bhai (Member) :<br /> Appendix:-<br /> Witness examined on the side of the complainant:<br /> PW1 : K.G. Gopinathan Nair<br /> Exhibits marked on the side of the complainant:<br /> A1 : Photocopy of the publicity pamphlet of Gold Ornaments Savings Scheme <br /> issued by opposite parties.<br /> A2 : Photocopy of the membership card No.C2606 issued by the opposite parties.<br /> A3 : Photocopy of the membership card No.C2607 issued by the opposite parties.<br /> A4 to A5(a)& A8 to A9(a) : Photocopy of the receipts (8 in number) issued by the opposite<br /> parties.<br /> A5 : Photocopy of the membership card No.C2661 issued by the opposite parties. <br /> A6 : Photocopy of the membership card No.C2662 issued by the opposite parties. <br /> Witness examined on the side of the opposite parties : Nil.<br /> Exhibits marked on the side of the opposite parties : Nil.<br /> <br /> <br /> <br /> <br /> <br />