DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 17th day of February 2009 .

Present : Smt. H. Seena, President

: Smt. Preetha G. Nair, Member

: Smt. Bhanumathi.A.K, Member

C.C.No.79/2007

Bhakthavalsalan

S/o. Kunjuachan

Kovil House

Akathethara

Palakkad. - Complainant

(Adv. M. Krishnanunni

V/s

1. Manuelsons Financial Enterprises Limited

M.O. Road

Thrissur.

(Adv. Joy Kanhirathinchalil)

2. The Managing Director

Manuelsons Financial Enterprises Limited

P M Manuel

S/o. P.P. Manuel

Aristo Road

Mission Quarter

Thrissur

(Adv. Joy Kanhirathinchalil)

3. The Branch Manager

Manuelsons Financial Enterprises Limited

Palakkad Branch

Palakkad. - Opposite parties

O R D E R

By Smt. H. Seena, President

1. The facts leading to the filing of this complaint is that, complainant was a subscriber of Chitties 371/A & 372/B with the Ist Opposite Party. 372/B was auctioned earlier. 371/A was the chitti with sala of Rs.80,000/-. Complainant paid subscription amount regularly without default up to 65 instalments. The agent of the 1^st Opposite party collected the amount from the complainant. After that the complainant could not pay the amount as the Palakkad Branch of the Opposite party is not functioning properly. Chitty is over by 9^th July 2006.

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According to the complainant, as he has paid upto 65 instalments, he is entitled to get the actual amount he had paid together with dividents and interest therein. Even though lawyer notice was issued, opposIte parties neither replied nor tried to settle the amount. Hence the complaint.

2. Opposite parties filed version with the following contentions. According to the Opposite parties, Chitty payments were not collected from the house of the complainant as stated by him. Clause No. 10 in page 16 of the pass book clearly states when and where the payment is to be made. Complainant has not paid Rs.65,000/- towards the Chitty No.371/A. The actual payment made was only 39,524/-. Complainant failed in making the monthly instalments regularly and hence the chitty has been forfeited by the company for the default of the complainant. In this case complainant himself admits that he has defaulted in making payments after 65^th instalment and so he is not entitled for dividents. Opposite party has sent notice informing him of the forfeiture of the chitty. Further complainant has pledged Chitty No.371/A as a security for availing the amount in the chitty bearing No.372/B. The complainant also defaulted monthly instalments towards the Chitty No.372/B & there is a total amount of Rs.7,500/- due from the complainant. Opposite party is also entitled to get Rs.6,000/- as commission in Chitty 371/A as stipulated in clause 9 in page 16 of Chitty Pass book. So according to the Opposite party after deducting the above stated amounts company is liable to pay only 26,025/- to the complainant. Opposite party has sent notice to the complainant asking him to receive payment on 20/01/2006 by returning the original pass book. So far the complainant has not returned the original pass book and received the amount he is entitled to. Hence there is no deficiency of service on the part of the opposite party.

3. Now the issues for consideration are

1. Whether there is deficiency of service on the part of the Opposite party?

2. If so, what is the reliefs and costs?

Points 1 & 2

It is an admitted fact that complainant is the subscriber of Chitty 371/A with the Opposite party and it is also admitted that the complainant has paid up to 65^th instalments

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and there after defaulted. The say of the complainant that as the agent of the 1^st Opposite party has not approached him, he could not pay further instalments is unacceptable. Complainant is duty bound to make arrangement in whatever manner stated in clause10 of the agreement to make payments. Now the question to be decided is whether the complainant is entitled for the actual amount paid together with dividents for 65 instalments. According to the Opposite party only a subscriber who is making prompt payments towards monthly instalments is entitled to get dividents. Complainant herein being defaulter is only entitled for the actual amount paid by him deducting commission of foreman. Clause 12 & 13 of Exhibit A1 clearly lays down the rules for forfeiture in case of default. As a result of forfeiture the subscriber lose all benefits of dividents accured and all other privileges attached to the ticket. In view of the above said circumstances, complainant here in is entitled only for the actual amount paid by him deducting commission of foremen.

The contention of the Opposite party that an amount of Rs.7,500/- is due in chitty 372/B seems to be unacceptable in the absence of evidence. According to Opposite party, the actual amount paid by the complainant is Rs.39,524/- No document produced by the complainant reveals the actual amount paid by him. Hence we are of the view that Opposite party is liable to pay Rs. 33,524/- deducting commission of Rs.6,000/-.

Opposite party has raised a contention that as they have sent a letter (marked as Exhibit B2 informing the complainant of forfeiture and asking him to receive the amount, there is no deficiency of service on the part of the Opposite party.

As per Section 25 Clause (2) of The Kerala Chitties Act 1975 if the defaulting subscriber fails to furnish the acknowledgement in writing, foremen should deposit what ever amount due to the defaulting subscriber in an approved Bank. That has not been done in this case. Opposite party mas made an unjust enrichment. Opposite party also has not replied to the lawyer notice issued by the complainant. So there is deficiency of service on the part of the Opposite party.

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In the result complaint partly allowed. Opposite party is directed to pay an amount

of Rs.33,524/- together with nominal interest of 6% per annum from 09/07/2006 to the date of complaint and Rs.1,000/- as cost of the proceedings. Order to be complied within one month from the date of communication of order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realization.

Pronounced in the open court on this the 17^th day of February 2009.

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Exhibits marked on the side of the complainant

1. Ext. A1 – Pass Book

2. Ext. A2 – Pass Book

Exhibits marked on the side of the Opposite party

1. Ext. B1 - Application form dated 23/11/99

2. Ext. B2 – Letter sent on 24/11/2005

3. Ext. B3 - Letter sent by certificate of posting.

Forwarded/By Order

Senior Superintendent