O R D E R

Sri. Santhosh Kesavanath P., President.

Case of the petitioner’s is as follows:

Petitioner stood as surety to the 3^rd opposite party for the chitty conducted by the first opposite party. The petitioner wais the surety for the chitty No. 71/95 and 57/99. The property owned to the petitioner had given as the security for the chitty transactions second opposite party initiated revenue recovery proceedings for the first opposite party on the property belongs to the petitioner. Petitioner states that entire amount of the chitty prized by the 3^rd opposite party was used by 3^rd opposite party for his own personal purpose. Since instalment of the chitty was due Revenue Recovery proceedings were initiated against the property of the petitioner on several times. Whenever the

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proceedings are initiated, in order to avoid the RR proceedings, petitioner remitted some amounts. On October 2003, in order to avoid RR proceedings on her property, petitioner remitted an amount of Rs. 65,000/- by cheque, for the dues of the chitty No. 57/99. The first opposite party without crediting the amount in chitty No. 57/99 opposite party credited the said amount in chitty No. 53/2000. Later when the petitioner complained about the same the opposite party adjusted the said amount in chitty No. 57/99. There after for the dues in chitty No. 57/99 the opposite party initiated RR Proceedings against the property belongs to the petitioner. On enquiry by the petitioner it is learned that the opposite parties has not credited the amounts of Rs. 55,000/- in chitty No. 57/99 instead the opposite party adjusted the amount in chitty No. 53/2000. The petitioner states that act of the opposite party in not act according to the direction of the petitioner is a clear deficiency of service. So, she prays for a direction of the Fora to the opposite party to adjust the amount of Rs. 65,000/- in chitty No. 57/99 and also for a direction to stop RR proceedings. She also claims Rs. 25,000/- as compensation and cost of the proceedings.

Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party complainant is not a consumer she is only surety to the 3^rd opposite party and she has not hired any service from the opposite party. According to the first and second opposite party 3^rd opposite party joined chitties vide No. 75/05, 43 and 52 and 57/99 17, 18, 19 20 conducted by the first opposite party. He released price money of the chitties by offering the landed property admeasuring 1.06 hector comprised in survey No. 677/1 of Karunapuram village owned and

possessed by the petitioner as security. The subscriber remitted up to 32^nd instalment due

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on 18..2..2002 in chitty No. 57/99 17, 18, 19 20 and 77^th instalment due on 14..2..2002 in 71/95/45 and 75^th instalment due on 14..1..2002 in 71/95/52. There after no remittance were made in the chitty. So, RR was initiated by first opposite party for realisation of amount in those chitties. The 3^rd opposite party accepted the prize money of chitty No. 53/00/31 offering property owned and possessed by Sri. Chellappan and Smt. Sulochana as security. He has remitted up to 22^nd instalment due on 14..2..2002. Hence RR was initiated for realisation of due amounts in the said chitty the petitioner remitted an amount of Rs. 65,000/- in chitty No. 57/99 but the said remittance made by the petitioner was mistakenly entered in the file of the chitty No. 53/00-31 A. Later as per the request of the petitioner it was transferred to chitty No. 57/99. While being so 3^rd opposite party preferred a complaint before the CDRF, Idukki as CC No. 170/05 alleging deficiency in service in not crediting the amount of Rs. 65,000/- remittance by the petitioner in chitty No. 53/2000. The CDRF, Idukki. Find that the procedure adopted by the opposite parties is illegal, improper and would amounts to deficiency in service. As per the order of the Fora amount is credited in chitty No. 53/200. So, first and second opposite party contented that there is no deficiency of service on their part and they pray for dismissal of the petition with their costs.

Points for determinations are:

i) Whether there is deficiency in service on the part of the opposite party?

ii) Reliefs and costs.

Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A14

documents on the side of the petitioner and Ext. B1 document on the side of the opposite party.

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Point No. 1

Even though the opposite party has not filed any seperate petition raising the maintainability. Since the opposite party has a contension that petition is not maintainable, that question is to be decided first. Opposite party contented that since the petitioner has not hired any service from the opposite party the petitioner is not a consumer. But we are of the opinion that as per section 2 (d) ii the consumer includes any beneficiary of such service other than the person who hires or avails service for consideration. So in our opinion petition is maintainable. The crux of the complaint is that the opposite party had not credited the amount of Rs. 65,000/- in chitty No. 57/99 even though the petitioner requested to remit the amount in said chitty. The opposite party contented that the amount credited in chitty No. 53/2000 wasas per the direction of the CDRF Idukki in CC No. 170/2005. The opposite party produced a copy of order of the Hon’ble CDRF in CC No. 170/2005. The said document is marked as Ext. B1. In Ext. B1 CDRF Idukki ordered the opposite party to adjust the said amount of Rs. 65,000/- in chitty No. 53/2000. So, in our opinion we cannot attribute any deficiency in service against the opposite parties in adjusting the amount. Further more, opposite parties are only complied the order of the Hon’ble CDRF Idukki. Since there is an order with regard to the matter the only remady available to the petitioner is to file an appeal against the order passed by the CDRF Idukki in CC No. 170/05. As per section 15 of the Consumer Protection Act 1986 any person aggrived by an order made by the District

Forum may prefer an appeal against such order to the state commission. So, as the aggrived person the petitioner can very well opt for that remady . Point No. 1 is found accordingly.

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Point No. 2

In view of finding in point No. 1, petition is to be dismissed. In the result the petition is dismissed. Considering the facts and circumstances of the case no cost is ordered.

Dictated by me transcribed by the Confidential Assistant, corrected by me and pronounced in the Open Forum on this the 15^th day of December, 2008.

Sri. Santhosh Kesavanath P., President Sd/-

Smt. Bindhu M. Thomas, Member Sd/-

Sri. K.N. Radhakrishnan, Member Sd/-