BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT:1. SIDDEGOWDA, B.Sc., LLB., President, 2. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.109/2009 Order dated this the 4th day of March 2010 COMPLAINANT/S Sri.Lingegowda S/o Late Manchegowda, R/at No.KL-225, 12th Cross, K.H.Nagar (V.V.Nagara), Kallahalli South, Mandya City. (By Sri.M.B.Rajashekara., Advocate) -Vs- OPPOSITE PARTY/S 1.M/s Unit Trust of India, House 29, Rajaji Salai, Chennai 01, Tamil Nadu State. 2.M/s Central Processing Centre, P.B.No.18, C.B.D. Belapur, Navi Mumbai 14. Maharashtra State. (ABSENT) 3.Unit Trust of India, Financial Centre, No.26/27, Raheja Towers, 12th Floor, West Wing, Mahatma Gandhi Road, Bangalore 01. 4.Unit Trust of India, UTI Mutual Fund, UTI Asset Management Co. Ltd., 1st Main, Kantharaj Urs Road, Saraswathipuram, Mysore City. 5.Sri.V.L.Linga Devaru, Manager, UTI Collection Centre, D.No.1176, 1st Floor, Vijayalakshmi Building, 2nd Cross, Ashok Nagara, Mandya city. 6.The Manager, Blue Dot Courier Service, Ramaswamy Circle, Mysore City. 7.M/s French Franchise, Behind Nokia Showroom, V.V.Road, Mandya City. (By Sri.H.N.Sathish., Authorised Agent of 1, 3 to 5., Sri.G.K.Channakeshava., Advocate for 6th O.P., Sri.Boralingegowda., Advocate for 7th O.P.) Date of complaint 22.09.2009 Date of service of notice to Opposite parties 12.10.2009 Date of service of notice to Opposite parties 12.10.2009 Date of order 04.03.2010 Total Period 4 Months 20 Days Result The Complaint is dismissed. However, in the circumstances of the case, there is no order as to costs. Sri.Siddegowda, President 1.This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming deficit amount of Rs.14,441/- with interest at 18% and damages of Rs.10,000/- alleging deficiency in service. 2.The case of the Complainant is that he became a member of UTI under the unit linked insurance plan, the period of savings being 15 years with a target of Rs.60,000/- payable at the rate of Rs.4000/- per year and the said scheme started on 28.01.1994. The Complainant regularly deposited and the scheme ended on 28.01.2009 on which date maturity value was to be paid by Opposite parties 1 to 5 by means of cheque. As on 29.05.2009 the NAV value of unit rate was Rs.16,1935 and Rs.16.5579 being the sale price. The number of units purchased by the complainant are Rs.9345.685 and the amount payable on 29.05.2001 as per NAV value rate is Rs.1,51,339.35. After Completion of plan of 15 years, the Opposite party issued a cheque bearing number 527449 dated 23.04.2009 (valid upto 22.06.2009) for Rs.1,36,898.40 drawn on ING-Vysya Bank Limited through 6th Opposite party Courier Service, but the same was received by the Complainant. However, the said cheque was traced by the Complainant and there was short payment of Rs.14,441/-. Under protest the Complainant received the said cheque amount. Though, Opposite parties 1 to 5 are liable to pay Rs.1,51,339.35 but sent cheque for only Rs.1,36,898.40 leaving a deficit of Rs.14,441/-. Though, the Complainant is entitled to the said amount as per NAV value, in spite of legal notice, the 2nd Opposite party has not settled the claim and they sent untenable reply stating that the payment made by the Opposite parties under the said scheme is correct and there is no balance payable. But, under the scheme and features of the scheme, the Complainant is legally entitled for the maturity value of Rs.1,51,339.35 and thus, caused loss of Rs.14,441/- to the Complainant by the Opposite parties 1 to 5. Therefore, the present complaint is filed for the deficit amount with interest and damages. 3.Notices were served on the Opposite parties 1 to 6. But, 2nd Opposite party has remained absent and version of Opposite parties 1, 3 to 5 were filed, contending that there was no deficiency in service on the part of the Opposite parties, the Complainant has made an application for payment of redemption proceeds on 21.04.2009. Therefore, the claim of Complainant for payment of value of units as on the date of redemption request i.e., 29.05.2009 is unfounded and illegal. The Complainant made a distorted understanding of the plan and its provisions and no amount is due to be paid to the Complainant. The scheme has become NAV based and the redemption rate is calculated on a daily basis as per the scheme provisions, unit holders opting for redemption in full or part will be paid at redemption price prevailing on the date of acceptance of the redemption request. The Complainant had given the redemption request on 21.04.2009 and accordingly, the redemption amount was processed at the rate of Rs.14,6483 as per the unit being NAV prevailing as on 21.04.2009. Therefore, the complaint is to be dismissed. 4.The 6th Opposite party has filed version and contended it is absolutely false that 6th Opposite party has delivered the cover sent through courier by 2nd Opposite party to the Complainant. The 6th Opposite party is not aware of the contents of the cover or the transaction. The 6th Opposite party is not at all a necessary party to the complaint. There is no deficiency in service and the complaint against 6th Opposite party is not maintainable and is liable to be dismissed. 5.After the evidence at the instance of the Complainant, 7th Opposite party has been made a party and 7th Opposite party has filed version contending that 7th Opposite party does not have any direct connection either with Opposite parties 1 to 5 or with the Complainant, he is only the franchisee of the Franch Express Office at Mysore. There is no relationship of service provider between the Complainant and 7th Opposite party. One letter was sent by UTI Karvy to the office of the Franch Express, Mysore on 27.04.2009 and the said Franch Express sent the same to its franchisee at Mandya (7th Opposite party) for delivered and it was received on 28.04.2009. The same was sent for delivery on 28.04.2009. The same was not delivered, because of non-availability of the addressee/ complainant. Again, the said cover was sent for delivery two or three times and finally on 08.05.2009, but could not be delivered due to the non-availability of the Complainant. Hence, the said cover was returned back to Mysore after 10 days. So, the question of deficiency in service on the part of 7th Opposite party does not arise at all. Even, if there is deficiency in service, it is certainly not on the part of the 7th Opposite party and 7th Opposite party is not a necessary party and hence, the complaint should be dismissed. 6.During trial, the Complainant is examined and has produced the documents Ex.C.1 to C.15. On behalf of the Opposite parties 1 to 5 one witness is examined as R.W.1 and he has produced the documents Ex.R.1 to R.7 and they have examined two witnesses R.W.2 & 3. On behalf of 7th Opposite party one witness is examined as R.W.4 and has produced the documents Ex.R.8 to R.10. 7.We have heard both the sides. 8.Now the points that arise for our considerations are:- 1.Whether the Opposite parties 1 to 5 have committed deficiency in service in calculating the unit rate as on 21.04.2009 not the value as on 28.05.2009? 2.Whether the Opposite parties 1 to 5 are due of Rs.14,441/-? 3.Whether the Opposite parties 1 to 7 have committed deficiency in service in delivering the cheque to the Complainant? 4.Whether the Complainant is entitled to the deficit amount of Rs.14,441/- with interest and damages of Rs.10,000/-? 9.Our findings and reasons are as here under:- 10.POINTS NO.1:-The undisputed facts are that the Complainant became a member of the UTI under the Unit Linked Insurance Plan and invested Rs.60,000/- during the period of 15 years and the scheme started on 28.01.1994 and ended on 28.01.2009 and the scheme could be ended by the investor or continue. Ex.C.1 is the brochure of the scheme and Ex.C.2 is the membership certificate. 11.According to the Complainant, after the period of 15 years when the scheme was matured, he was entitled to maturity value and he was the holder of Rs.9345.685 units and the unit rate was Rs.16,5579 as on 29.05.2009 as per the NAV value and he is entitled to Rs.1,54,339-35. But, the 2nd Opposite party issued cheque for Rs.1,36,898-40 through 6th Opposite party Courier Service and received the cheque under protest and therefore, there was deficit of Rs.14,441/-. 12.But, the contention of the Opposite parties 1 to 5 is that the Complainant opted for redemption of the Scheme on 21.04.2009 and the alleged date of redemption request i.e., 29.05.2009 is unfounded and illegal and speculative. The Opposite parties 1 to 5 have produced the offered document of unit linked insurance plan of the UTI as per Ex.R.1 and R.2 is the copy of the redemption letter by the Complainant, it is dated 18.04.2009 and on 21.04.2009, the account was closed by Opposite parties 1 to 5 and Ex.R.7 is the rate of units of UTI and as per the rate of UTI on 21.04.2009 was Rs.14.6483 (NAV). As per the unit plan Ex.R.1, the scheme has become NAV basis and the redemption is calculated on daily basis as per the scheme provisions, unit holder opting for redemption in full or part will be paid at redemption prevailing rate of acceptance of the redemption request at the office of UTI AMC, the redemption request is processed. The Complainant in his evidence has admitted that on 18.04.2009 he sought for redemption of the UTI fund in the prescribed form through Mandya Agent and according to the evidence of R.W.1, it was sent and it was processed on 21.04.2009 and therefore, the NAV rate as on that date was applied and cheque was issued. 13.The Complainant has not whispered in his pleading that on what date he opted for the maturity amount. But, simply claimed the rate on 29.05.2009, though the cheque received by him is dated 23.04.2009. So, the Complainant has not come to Court with clean hands. So, in view of the evidence of the Complainant himself and Ex.R.2 the redemption option letter of all the units on 18.04.2009 accepted by Opposite party on 21.04.2009, the Opposite parties 1 to 5 have to pay the amount as per the NAV rate prevailing on that date and Ex.R.7 proves the rate as on 21.04.2009 i.e., Rs.14.6483. Therefore, the Complainant is not justified in claiming the NAV value rate as on 29.05.2009 at the rate of Rs.16.1935 and therefore, Opposite parties 1 to 5 have not committed any negligence or deficiency in service with regard to the cheque amount issued for the UTI units held by the Complainant and the Complainant is not entitled the rate prevailing as on 29.05.2009. 14.POINT NO.2 & 3:-At the time of hearing, it is contended by the Complainant side that Opposite parties 1 to 7 have committed deficiency in service in delivering the cheque to the Complainant and thus, Opposite parties 1 to 5 are liable to pay the rate prevailing as on 29.05.2009 or interest from that date on the cheque amount. But, there is no pleading at all in the complaint, when the Complainant received the cheque sent by Opposite parties 1 to 5 and when he encashed it and what is the loss he has sustained. There are no allegations about delay in sending the cheque by the Opposite party UTI Company or the delay in delivering of the cheque sent through courier attributing negligence on the part of the Courier Service. Simply the Complainant stated that he has received the cheque sent by Opposite party UTI Company through 6th Opposite party Courier Service. But, the 6th Opposite party has denied the same stating that it has not received any courier from Opposite parties 1 to 5. Even, the Opposite parties 1 to 5 have denied the same stating that they are nor responsible for delay by the Courier Service. After the evidence by Opposite parties, the Complainant has made 7th Opposite party as a party, but no pleading is made as to what is the role played by the 7th Opposite party and what is the deficiency in service by 7th Opposite party. But, simply 7th Opposite party has been pleaded without any amendment of pleading. Further, Complainant stated that evidence of R.W.1 discloses that cheque was sent through 7th Opposite party and further R.W.2 & 3 who have stated that 1st Opposite party sent the cheque through 7th Opposite party. But, there is no evidence by the Complainant that 7th Opposite party did not visit his house for service at all and on account of delay by 7th Opposite party, 1st Opposite party has sent the cheque later. The Complainant has not adduced any evidence to prove that the cheque by Opposite party UTI Company was sent through 6th Opposite party as pleaded in the complaint. There is no substance, on what basis the Complainant has made 6th Opposite party as a party to this proceedings. Further according to the Complainant evidence, the UTI Company sent by post the maturity warrant and he received on 19.06.2009 and according to him, his daughter received the same. According to the Complainant, when he came to know that redemption warrant (cheque) was sent through courier, he went to Mysore and enquired in Blue Dot Couriers (6th Opposite party) and there were not available. But, according to him, on 01.06.2009 the persons of Blue Dot Couriers came with UTI Agent of Mandya and informed that the cheque sent by the UTI Company was lost, but no evidence is produced in this regard. 15.Therefore, there is absolutely no evidence that 6th Opposite party has connection with the delivery of the cheque by courier. 16.The evidence discloses that R.W.3 was working in Franch Express Couriers at Mysore and on 27.04.2009 from the UTI Karvy Office a courier cover addressed to Mandya was entrusted for delivery as per Ex.R.3(a) and sent the said courier cover to Mandya Branch and on 11.05.2009, the said cover came back and the same was informed to Karvy Institution. Ex.R.6 proves that the courier as per Ex.R.3(a) was returned to Karvy Office, Mysore on 12.05.2009 and therefore, the cheque was sent to the Complainant by post. As per the evidence of R.W.2 working in Mandya Franch Express Courier Service that a cover addressed to Lingegowda, the Complainant came from Mysore Office on 28.04.2009 and he went to serve the same to the addressee and he was not available for 2, 3 days. Again on 09.05.2009, he went to the address and the addressee was not available, so he returned to the office. In this regard, they have produced Ex.R.8 and item no.25 relates to Complainant cover and we see the endorsement that party not in station, the date is put as 09.05.2009. As per Ex.R.9, the cover was entrusted and there is an endorsement that party was not in station on 29.04.2009, 01.05.2009 and 06.05.2009. The contention of the Complainant side is that the courier service man should have obtained the signature of the neighbourer, if the addressee was not available or a mahazar should have been drawn in that regard is out of context, because even the Central Government, Post Officials will not obtain the signature of the neighbourer, if the address is not available and there is no question of drawing the mahazar if the addressee is not available for service of the post or courier parcel. It cannot be said that Ex.R.8 & 9 are created for the purpose, because they are maintained in regular course of business. Therefore, it is established by evidence that the cheque sent by Opposite party UTI Company to Complainant by courier service (Courier Service at Mysore) having branch at Mandya, and for service, the Complainant was not available and naturally, the courier cover was sent back to the person who has sent and on 12.05.2009 Cargo Office has received back the courier sent to the Complainant as per Ex.R.6 and we cannot attribute any deficiency in service on the part of Opposite parties 1 to 5 or 6th Opposite party much-less 7th Opposite party and in fact, 6th Opposite party does not come in the picture of service at all. 17.Though, on the basis of evidence of R.W.2 & 3, the 7th Opposite party has been made a party to the complaint by the Complainant, but in spite of evidence of R.W.2 & 3 that the French Express Courier Service at Mysore received the courier from Opposite party Karvy Company addressed to the Complainant and it was sent through service to Mandya Branch i.e., 7th Opposite party, but no pleadings are made out in the complaint against the French Express Courier Service, Mysore and without making that courier service as a party its Branch at Mandya has been made a party, even though, there is no transaction between the Karvy Company and Mandya Branch Courier Service. 18.Therefore, the Complainant has failed to prove deficiency in service by Opposite parties 1 to 7 and the Complainant is not entitled to deficit amount of Rs.14,441/- or interest or any damages as claimed in the complaint and the Complainant has not come with clean hands and the complaint is liable to be dismissed. 19.In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, in the circumstances of the case, there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 4th day of March 2010). (PRESIDENT) (MEMBER)
