order
THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Sri. K.N. Radhakrishnan, Member
CC No. 251/2010
Thursday, the 28th day of July , 2011
Petitioner : T.K. Kurian
Thannikkattu House,
Keezhoor P.O.,
Kottayam.
(By Adv. K.M. George)
Vs.
Opposite party : The Managing Partner,
Jyothis Project,
DLS 40/8942, C-2,CRH Complex,
M.G, Road, Ernakulam.
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 6..10..2010 is as follows:
Petitioner deposited an amount of Rs. 26,000/- and Rs. 30,000/- respectively in the financial institution named LIS. Due to the interference of the court functioning of the LIS become difficult. So, opposite party transferred the deposit amount from the LIS to the present new institution the opposite party. As per the agreement between the parties opposite party is bound to refund double the amount which is deposited on the date of maturity of the deposit. The date of maturity is on 20..5..2009. Petitioner on several time demanded refund of the amount and the opposite parties had not heed to the demand of the petitioner. On 9..6..2010 petitioner issued lawyers notice to the opposite party demanding refund of the amount. But the opposite party has not refunded the amount hence this petition.
Opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party since there is an arbitration agreement between the parties fora has no jurisdiction to entertain the complaint.
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Opposite party was not aware about the LIS. Jyothis is a project owned and operated by DLS, a partnership firm with separate legal entity and has no connection with LIS. Opposite party admitted that the petitioner joined project on 27..6..2007 petitioner entrusted the amount for availing service rendered by the opposite party by purchasing lottery tickets and issuing the college magazines to its members who join in the scheme out of deposited Rs. 56,000/- The allegation that the opposite party firm is liable to return double of the deposited amount on the completion of 100 weeks on 20..5..2009 is denied by the opposite party. In the rules of the scheme it is categorically stated that, as and when, to what extend, lottery purchase commission is available and that too strictly according to the seniority of the members joining in the scheme. The expiry date mentioned in the certificate is with regard to the last date of drawing of lottery tickets to the complainant in the scheme. As per the terms of the project if it cannot function smoothly, due to the government direction, legal orders substantial reduction of lottery commission or non availability of lottery tickets sole responsibility of the firm shall be restricted to refunding of the entrusted amount after deducting cost of lottery tickets purchased and magazines issued. The project was started on 12..3..2007. As a matter of fact working of the opposite party firm was stopped by the police on the order of commissioner of police, Cochin. The Hon’ble Munsiff Court, Ernakulam as per order Dtd: 23..7..2007 passed an interim injunction. Due to aforesaid intervention opposite party could not continue with the working of the scheme. According to the opposite party there is no deficiency in service on the part of opposite party. Opposite party prayed for dismissal of petition with their cost.
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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 cost?
Evidence in this case consists of affidavit filed by the petitioner and Ext. A1 to A4 document on the side of the petitioner.
Point No. 1
According to the opposite party since there is arbitration agreement between the parties this petition is not maintainable before this Fora. Opposite party has not produce any bilateral agreement to show that there is an arbitration agreement between the parties. Further more as per section 3 of the Consumer Protection Act 1986. Even if there is such an arbitration agreement the provisions of the Consumer Protection Act shall be in addition and in not in derogation of any other law. So, it is the option of the consumer either to approach the consumer fora or before arbitrator. So, we find that the petition is maintainable before this Fora.
Point No. 2
The petitioner alleges deficiency in service on the side that opposite party in not refunding double of the entrusted amount, as assured within a maximum period of 100 weeks. In order to prove that opposite party assured twice the amount petitioner produce the copy application document said document, subject to its evidentiary value, is marked as Ext. A5. Even though in Ext. A5 it is mentioned that subject to certain conditions referred their beneficiary will get twice the entrusted amount within a maximum period of 100 weeks. But in our view Ext. A5 cannot be considered as an agreement between the parties. In the absence of original agreement
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we cannot rely Ext. A5. Opposite party admitted entrustment of Rs. 30,000/- and Rs. 26,000/-. Opposite party has no case that opposite party refunded the money to the petitioner, as per his request. So act of the opposite party in retaining the amount entrusted by the petitioner amounts to deficiency in service. So, point No. 2 is found accordingly.
Point No. 3
In view of the finding in point No. 1 and 2 opposite party is ordered to refund the entrusted amount of Rs. 30,000/- with 9% interest from 27..6..2007 till realization. Opposite party is ordered to refund Rs. 26,000/- from with 9% interest from 27..6..2007 till realization. Since interest is allowed no separate compensation is ordered. Opposite party is ordered to pay an amount of Rs. 2,000/- as litigation cost to the petitioner. Order shall be complied with within one month of receipt of the copy of the order.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 28th day of July, 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner
Ext. A1: Copy of the acknowledgement for Rs. 26,000/-.
Ext. A2: Copy of the acknowledgement for Rs. 30,000/-
Ext. A3: Lawyers notice Dtd: 9..6..2010
Ext. A4: Postal Acknowledgement card.
Ext. A5: Copy of application
By Order,
Senior Superintendent
