CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present

Sri. Santhosh Kesavanath  P. President

Smt. Bindhu M. Thomas, Member

K.N. Radhakrishnan, Member

CC No. 359/2009

Friday, 29^th  day,  of October , 2010

Petitioner                                              :           T.S Vinod,

Madathilparambil

Kooroppada P.O

Kottayam.

(By Adv. S. Pradeepkumar)

Opposite parties                                   :   1)     Kosamattam Chitty Fund,

                                                                        reptd. by its Manager,

                                                                        Pampady Branch,

Vadakara Buildings,

Pampady P.O, Kottayam.

(By Adv. C. Jose Philip)

2)        Mini, W/o Unnikrishnan

Palakkattu House,

Madappally Kara,

Kooroppada P.O

Kottayam – 686502.

(By Adv. Archana K.K.)

O  R  D  E  R

Case of the petitioner on 21..11..2009, is as follows:

            Petitioner was a subscriber of chitty conducted by first opposite party.  Second opposite party is the authorized agent of the first opposite party.  Second opposite party approached  the petitioner to join in a a chitty which was commenced in April 2007.  Petitioner joined as a “chittal” to the chitty No. KC 303/4 conducted by the first opposite party.  The amount of the chitty was Rs. 50,000/- and period of the chitty was 25 monthly installment.  Petitioner paid Rs. 2,000/- towards first installment.  According to the petitioner he altogether paid Rs. 30,190/- in addition to the said amount  second opposite party collected

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Rs. 10,000/-.  Petitioner claims Rs. 5310/- as  veethapalisa .  The chitty was closed in May, 2009. Up to the  month of May   2^nd opposite party collected 23   installments from the petitioner.  After May 2009 she stopped collection.    Petitioner  enquired to the opposite party about details during July, 2009.  First opposite party informed the petitioner that he defaulted   payment from July, 2008.  Petitioner filed a complaint before General Manager of opposite party at Kottayam.  But no  reply was received till date.  Subsequent to the above complaint the 2^nd opposite party reached the house of  petitioner and returned an amount of  Rs. 5,300/- to the wife of the petitioner.  According to the petitioner act of the opposite party in  detaining  the chitty amount of the petitioner amounts to deficiency in service.  So, petitioner prays for a direction to the first opposite party to pay an amount of Rs.  40,700/- with 12% interest   petitioner claims Rs. 10,000/- as compensation and cost of the proceedings. 

            First opposite party entered appearance and filed version contenting that   petition is not maintainable.  According to the first opposite party petitioner is  not a consumer as defined in the act.     Petitioner had remitted the subscription till 18^th installment of the chitty .  Petitioner   committed  willful default  of  installments No. 19 to 25 .  The allegation of the petitioner with regard to the payment of Rs. 10,000/- is denied.    The allegation of the petitioner with regard to the complaint filed before the General Manager of the first opposite party is denied by the opposite party  . Opposite party admitted the remittance of Rs. 30,190/- to the first opposite party.   But out of this consolidated payment as per

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the agreement opposite party is entitled to deduct Rs. 2500/- towards thalayal commission.  The petitioner is malafide attempting to allege and prove that he has  tendered the subscription amounts from 18^th to 23^rd installments by entrusting rupees ten thousand to the 2^nd opposite party such allegation  is only a pretext to claim  that he has not a defaulty  chittal so as to illegally grab  an amount of Rs. 5810/- by way of veethapalisa.    Opposite party one  admitted the entrustment of  Rs. 5,700/- by  the petitioner. According to the opposite party there is no deficiency in service on their part.  So, they pray for dismissal of the petition with their costs. 

            Second opposite party entered appearance and filed version  interalia  contenting the same averment of the  first opposite party and second opposite party also pray for dismissal of the petition with their costs.

Points for determinations are:

i)                    Whether the petition is maintainable or not?

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

iii)                 Relief and costs?

            Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A3 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

            According to the opposite party dispute is with regard to a  legal contract in respect of subscription   default and refund of tendered installments and violation of contract with regard to a chitty it  is to be determined by a competent Civil Court and Consumer Fora has no jurisdiction.  Petitioner  on the other hand contented that the petition is maintainable.  In our view if there is any ‘deficiency’ in service rendered by a person for consideration then the fora has jurisdiction to try the dispute. Deficiency is defined in Consumer Protection Act as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by any law for the time being in

force or has been undertaken to be performed by a person in  persuance of a contract  or in relation to any service.  Here admittedly   dispute is with regard to refund of the amount  which is legally entitled for the petitioner from the service provider in relation  to a contract so,    petition is maintainable.  It is true that the petitioner  can approach the Civil Court,  for determining the liability as per the contract entered  between the parties. Consumer Protection Act is a welfare legislation intended to provide  better protection of the interest of consumers and is not in  derogation to any other law for the time being in force.  So, the consumer can choose either to file a petition before the fora or  to approach  Civil Court.  We find that the petition is maintainable. So,  Point No. 1 is found accordingly.

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Point No. 2

            The crux of the case of the petitioner is that he is entitled for the amount remitted including the veethapalisa.  According to the opposite party since the petitioner  is a defaulter he is only entitled for the amount remitted including the thalayal commission at the rate of 5% of the subscription. Opposite party admits   payment of the petitioner of Rs. 30190/- to the first opposite party.  According to the  petitioner he had remitted Rs. 30190/- and along with the veethapalisa of Rs. 5810/-he  is entitled to receive 36,000/-  According to the petitioner in addition to the 18 installments the petitioner paid Rs. 10,000/- for the installment up to 23^rd. Remaining 2 installments were not collected by second opposite party.  Petitioner has a definite case that after giving   complaint to the General Manager of the opposite party second opposite party came to the house of the petitioner and returned an amount of Rs. 5300/- to the petitioner’s wife.  Here both parties admits the remittance of Rs. 30190/- by the petitioner the question to be decided is whether the petitioner  is entitled for the veethapalisa and whether  opposite party is entitled for the thalayal commission.  According to the petitioner he had  given  a complaint to the General Manager of the opposite party alleging that she had remitted the entire amount and demanding the entire chitty amount.  Copy of the complaint alleged to be given to the G.M of opposite party is produced.   Counsel for the opposite party objected the marking of the document on the  ground that there is  nothing to prove that such a notice was given / sent to the General Manager of the opposite party.  Subject to its  evidentiary  value document is marked as Ext. A3.  In our view without any   evidence to prove such a complaint was given/ sent  we cannot believe that such a letter was submitted  to the opposite party.  Here both sides has not adduced any evidence to prove that due to  whose fault  the petitioner  become a  defaulter in remitting the  balance installment of the chitty amount.  Petitioner had a definite case that he had remitted an amount of Rs. 10,000/- to the opposite party.  According to the opposite party no such amount of Rs. 10,000/- was received to the opposite party.

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 Since  there is no evidence with regard to the remittance of Rs. 10,000/- ie. not believable.  In our view the act of the opposite party in non- refund of the admitted amount remitted by the petitioner is a clear deficiency in service.  So, point No. 2 is found accordingly.

Point No. 3

            In view of the finding in point  No. 1 and 2, petition is allowed in part.  Opposite party is ordered to pay the petitioner an amount of Rs. 30,190/- with 9% interest from September 2009 till realization.  Since there is no evidence with regard to loss and sufferings no compensation is ordered .  Both  party shall suffer their  respective cost.   Order shall be complied with within one month of  receipt of a copy of this order.  If the order is not complied, as directed, petitioner is entitled for 12% interest for the award amount from date of filing of the petition till realization.

Dictated by me transcribed by the Confidential Assistant corrected by me and

pronounced in the Open Forum on this the  29th  day of October, 2010.

Sri. Santhosh Kesavanath P. President  Sd/-    

  Smt. Bindhu M. Thomas, Member                  Sd/-

  Sri. K.N Radhakrishnan, Member                    Sd/-

APPENDIX

Document for the Petitioner

Ext. A1:            Copy of receipt No. 166543.

Ext. A2:            Copy of receipt 202833

Ext. A3:            Copy of letter dtd: 3..7..2009 from the petitioner to the General

Manager, Kosamattom Chitty Fund.

Documents for the Opposite party:

Ext. B1: Chitty agreement between the petitioner and opposite party.

By Order,

Senior Superintendent

amp/5cs