BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 15^th July 2010

COMPLAINT NO.152/2010

(Admitted on 15.5.2010)

PRESENT:    1. Smt. Asha Shetty, President.                                                                                                                                                                                                                                                                                                          

                                 2.  Smt. Lavanya M. Rai, Member.

BETWEEN:

K.Kanthappa Gowda,

S0 Honnappa Gowda,

Aged about 62 years,

Sri Deepa Nilaya,

Jalsoor,

Sullia Taluk, D.K.                                        …….. COMPLAINANT

(Advocate for the Complainant: Sri.D.Sanjay)      

          VERSUS

Manipal Sowbhagya Nidhi Ltd.,

Regd. Office:  Manipal House,

Manipal 576119.

Udupi Dist. Represented by:

1. Sri T.Narayana Pai,

The Managing Director,

2. Shri. Chandappa Sherigar,

R.at.Mahalasa, Kundal Post,

Kundibettu, Udupi-02.

3. Raghavendra Nayak,

R/at.D.No.4-75-1,

Kotathattu Village,

Post Kota, Udupi Dist.-21,

No.2 and 3 are directors.              ……. OPPOSITE PARTIES

(Opposite Party No.1 : Appeared in person)

(Opposite Party No.2 & 3: Exparte)

          ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.

The Complainant submits that, the Opposite Party has been running a financial institution having its head office at Manipal and had various branches at different places.  The Complainant submits that, he had deposited Rs.15,000/- on 27.3.1998 with the Opposite Party at Sullia Branch.  The Opposite Parties agreed to pay interest at 14% per annum and also agreed to pay Rs.30,084/- on 27.3.2003 i.e. maturity date.  After the date of maturity, the Complainant approached the Opposite Parties, in turn Opposite Parties sought some time stating that, the Opposite Party Company is in financial difficulty.  The Complainant waited for some time, thereafter, approached the Opposite Party and all amicable sorts of settlement of the dispute have gone in vain.  On failure to pay the amount by the Opposite Party Company amounts to deficiency in service.  Hence, the Complainant filed above Complaint before this  Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.30,084/- with interest at 14% per annum from 27.3.2003 till payment and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 not appeared in person before this Forum nor filed any vakalath but sent a letter by post. 

Opposite Party No.2 and 3 refused and not claimed the version notice returned before this Forum.  Since the version notice was refused and not claimed, it is deemed to be served.  Therefore, we have proceeded exparte as against Opposite Party No.2 and 3 in this case. The ‘refused’ and not claimed version notices along with postal acknowledgements available on record marked as court document No.1 and 2.

Opposite Party No.1 not appeared before this Forum but sent a letter without enclosing any copies to the other side before this Forum, the same has been treated as a version of the Opposite Party No.1 in this case. 

The Opposite Party No.1 submitted that, the complaint is barred by limitation, the Complainant is not a consumer and this Forum has no territorial jurisdiction and denied the assertion of the Complainant stated in his complaint and prayed for dismissal of the complaint.

3.       On the basis of pleadings, the points that arise for our consideration are as follows:  

1. Whether the Complainant is a consumer and this Forum has territorial jurisdiction to entertain the complaint?

2. Whether the complaint is barred by limitation? 

3. Whether the Complainant prove that the Opposite Parties committed deficiency in service?

4. If so, whether the complainant is entitled for the reliefs claimed?

5. What order?

4.       In support of the complaint, the Complainant – Sri.K.Kanthappa Gowda (CW1) filed affidavit reiterating what has been stated in the complaint and Ex C1 is produced as listed in the annexure. The Opposite Party No.1 filed version and not filed their counter affidavit nor led any evidence.

We have heard and perused the pleadings, documents and evidence placed on record by the respective parties and answer the points are as follows:

                   Point No.(i) & (ii): Affirmative

Point No.(iii) to (v): As per the final order.

REASONS

5.      POINTS NO. (i) & (ii):

In the instant case, the Sowbhagya Lakshmi Cash Certificate produced by the Complainant revealed that, the investment was made in the name of the Complainant with the Opposite Party Company as evidenced from the Cash Certificate produced by the Complainant (i.e. Ex C1) bearing certificate No.202019. 

The financial service is one of the services specifically mentioned in clause (o) of Section 2(1) of the Act.  It is settled preposition of law that, when the company transacting non-banking financial business accept deposits from the persons for particular period, the person who has deposited the money with such company hires the service of that company.  We have therefore, no hesitation to hold the service undertaken to be rendered by the Opposite Party Company is a service within the purview of the Act.  Therefore, the Complainant is a consumer.

As far a jurisdiction is concerned, the Complainant filed a affidavit before the FORA and stated that he had deposited the above amount before the branch office of the Opposite Party Company situated at Sullia which is within the jurisdiction of this FORA, the above evidence is not contradicted by the Opposite Party Company.  In the absence of the same, we hold that this FORA has territorial jurisdiction to entertain the complaint. Hence, the point No.(i) held in favour of the Complainant.

Further Sub Section (2) of Section 24A of the Consumer Protection Act states that not withstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.  Now it is a well established proposition that when the person who received the fixed deposit in whatever name has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit.  The Opposite Party has no case that he has denied the Complainant right to recover the deposit until he filed his version before this Forum.  The Complainant right is denied for the first time in the version.  Therefore, we are of the view that the Complainant had a recurring cause of action.  In this connection, we have been referred to a decision of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Gurumeeth Singh And Others V/S Rakesh Kumar Sharma And Another in II (2002) CPJ 209 wherein:- “it is held that the cause action will continue till such time the payment along with interest is made”.  We therefore, overrule the objection of limitation and we hold that the complaint is maintainable not barred by limitation.   The point No.(ii) held in favour of the Complainant.

POINTS NO. (iii) to (v):

As far as deficiency is concerned, the Complainant filed affidavit in order to substantiate his case and produced Ex.C1 i.e.  the original fixed deposit receipt bearing No.202019. The Opposite Parties though served with the version notice not appeared before this Forum and not bothered to contest the case on hand.  The entire evidence filed by the Complainant is not controverted nor contradicted by the Opposite Parties.  Where a party to the proceedings, not entered the witness box and does not offer themselves to be cross-examined by the other side, a presumption would arise that the case set up by them is not correct.  Similarly, in the given case, the Opposite Parties though filed version not rebutted the evidence of the Complainant as stated supra, which requires no further proof. 

However, we have perused the Ex.C1 i.e. Sowbhagya Lakshmi Cash Certificate, wherein, the Complainant deposited Rs.15,000/- on 27.3.1998 for the period of 60 months.  The Opposite Parties agreed to pay interest thereon at 14% per annum on the above said amount and the date of maturity shown as 27.3.2003.  On receipt of the above said amount from the Complainant, the Opposite Parties issued a cash certificate i.e., Ex.C1 by acknowledging the above said amount.  There is no evidence to show that the Opposite Parties paid the amount to the Complainant till this date.  Non payment of the fixed deposit amount by the Opposite Party Company till this date amounts to deficiency. 

In view of the above discussions, we hold that, the Opposite Parties inspite of receiving the Fixed Deposit amount from the Complainant not paid the said amount till this date amounts to deficiency and unfair trade practice.  Therefore, we hold that, the Opposite Party No.1 i.e. Manipal Sowbhagya Nidhi Limited, Represented by its Managing Director and directors i.e. Opposite Party No.2 and 3 are jointly and severely hereby directed to pay a sum of Rs.30,084/- to the Complainant along with interest thereon at 12% per annum from the date of maturity till the date of payment. 

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  The Opposite Party No.1 to 3 are jointly and severally are hereby directed to pay a sum of Rs.30,084/- (Rupees Thirty thousand Eighty four only)  to the Complainant along with interest thereon at 12% per annum from the date of maturity till the date of payment and Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 15^th day of July 2010.)

           PRESIDENT                                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri. K.Kanthappa Gowda

Documents produced on behalf of the Complainant:

Ex C1 – 30.3.1998: Original Fixed Deposit Receipt No.202019 issued by the Opposite Parties.

COURT DOCUMENTS:

Doc No.1: Postal Acknowledgement.

Doc No.2: Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Parties:

- Nil -

Documents produced on behalf of the Opposite Parties: 

- Nil -

Dated:15.7.2010                                                 PRESIDENT