BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 26/07/2011

Date of Order : 28/02/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 392/2011

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are as follows :-

The complainants enrolled and paid the following amounts in the project of the 1^st opposite party :-

1. Beneficiary Certificate No. 56989 dt. 20-06-2007 for Rs. 10,000/-

2. Beneficiary Certificate No. 56988 dt. 20-06-2007 for Rs. 10,000/-

3. Beneficiary Certificate No. 51267 dt. 08-06-2007 for Rs. 40,000/-.

4. Beneficiary Certificate No. 51268 dt. 08-06-2007 for Rs. 40,000/-.

5. Beneficiary Certificate No. 51269 dt. 08-06-2007 for Rs. 24,000/-.

6. Beneficiary Certificate No. 59293 dt. 14-06-2007 for Rs. 10,000/-.

Under this project for every remittance of Rs 1,000/-, the complainants are entitled to get periodicals and lottery tickets worth Rs. 500/- each. After 50 weeks, if the beneficiary has not fetched the minimum of double the entrusted amount from the lottery prizes, the 1^st opposite party shall make good within a maximum period of 100 days. The opposite parties failed to issue lottery tickets as agreed. In August 2007, the Commissioner of Police, Kochi directed the opposite party not to enroll new members in the scheme. However, they managed to restart the business in October 2009 and started to enroll new members. The complainants are entitled to get double the amount in the case of 3^rd, 4^th and 5^th memberships and also entitled to get all the benefits in the 1^st and 2^nd memberships together with compensation and costs of the proceedings. This complaint hence.

2. The version of the opposite parties is as follows :-

The complaint is not maintainable, since there is an arbitration agreement. The complaint is not maintainable as it is barred by limitation. The opposite parties could not proceed with the scheme due to the intervention of the police. The complainant has approached the Hon'ble High Court of Kerala challenging the order of the police and as per the direction of the Hon'ble High Court of Kerala, the police permitted the opposite parties to continue with the project of the opposite parties vide order dated 19-10-2008. There is no stipulation in the contract to pay interest for the amount entrusted with the project. The reliefs prayed for in the complaint are unsustainable and the complaint is liable to be rejected.

3. No oral evidence was adduced by the parties. Exts. A1 to A18 were marked on the side of the complainants. Neither oral nor documentary evidence was adduced by the opposite parties. Heard both sides.

4. The points that came up for consideration are as follows :-

1. Whether the complaint is barred by limitation?

2. Whether the complaint is to be referred for arbitration?

3. Whether the complainants are entitled to get refund of the amounts deposited in the project?

4. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- The opposite parties in their version stated that at the intervention of the police, they had to stop their business on 03-07-2007 and they could proceed with the business only at the intervention of the Hon'ble High Court of Kerala with effect from 19-10-2008. It is also stated in the version that again they had to stop the business since the Government stopped issuance of lottery tickets to the opposite party. The above facts would show that the business has been closed due to the intervention of the police as well as the Government of Kerala. In that case, we cannot fasten the liability on the complainant, because the operation of the project was estopped by the Government that would not legally constitute a valid ground to invoke the provision of limitation as stated in the Consumer Protection Act. So the contention of the opposite parties is annulled. Moreover, the complainants managed to approach this Forum on 26-07-2011 which is well within the limitation period prescribed under Section 24 A of the Consumer Protection Act.

6. Point No. ii. :- By relying on the decision of the Hon'ble Apex Court in Sky Park Couriers Pvt. Ltd. Vs. Tata Chemicals Ltd. II (2000) CPJ 6 (SC) the Hon'ble Kerala State Consumer Disputes Redressal Commission in Acumen Capital Market (India) Ltd. Vs. K. Viswanathan III (2013) CPJ 4 A (CN) (Ker), held that existence of arbitration clause in the agreement is no bar to entertain the complaint by Redressal agency under the Consumer Protection Act. The finding of the Hon'ble State Commission squarely applies in the case at hand, whereby the same too finds no room for further proceedings on that ground.

7. Point No. iii. :- Admittedly, the complainant deposited the amounts as per Exts. A1 to A3, A5, A6 and A12 beneficiary certificates. The details of the deposits are as follows :-

According to the complainants, they are entitled to get the full benefit as per the terms and conditions of the scheme formulated by the opposite parties as per Exts. A4 and A14. We are not to accept the said contentions of the complainants fully, for the simple reason that the complainant has joined in the scheme fully knowing that it is a speculative business, neither the complainants nor the opposite parties can predict the result of the deposits and its future prospects. Admittedly, the opposite parties had to stop the project in the midway due to the intervention of the police as well as the Government of Kerala. So, there had been a necessary gap in the smooth running of the show. So, we are not in a position to direct the opposite parties to honour the scheme and pay the amount as claimed by the complainants.

8. The Hon'ble State Commission in Rose Kaniyampuram Vs. M/s. Devdhan Lottery Service (Appeal No. 224/2011 decided on 10-08-2011), held in paragraph 5 as follows :

“The case of the appellants is that the opposite parties should be directed to pay the amount in double. We find that the complainant has joined in a highly speculative scheme and it is also came out that the transaction of the opposite parties stands closed. We find that what has been ordered to be repaid is quite reasonable. We find that there is no patent illegality in the order of the Forum and there is no scope for admitting the appeal. The appeal is dismissed in-limine.”

The findings of the Hon'ble State Commission is binding on this Forum and cannot be deviated therefrom. In the above circumstances, we are only to hold that the complainants are entitled to get the deposited amounts with 12% interest p.a. from the date of deposit till realisation, certainly after deducting the amounts, if any received by the complainants. This point is answered accordingly.

9. Point No. iv. :- We do not think that this is a fit case to award compensation or costs of the proceedings, especially due to the considered conclusion come to on this aspect.

10. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally refund the amounts as per Exts. A1 and A12 to the 1^st complainant with interest at the rate of 12% p.a. from the date of deposit till realisation.

2. The opposite parties shall jointly and severally refund the amounts as per Ext. A2 to the 2^nd complainant with interest at the rate of 12% p.a. from the date of deposit till realisation.

3. The opposite parties shall jointly and severally refund the amounts as per Exts. A3, A5 and A6 to the 3^rd complainant with interest at the rate of 12% p.a. from the date of deposit till realisation.

4. It is made clear that the opposite parties are at liberty to deduct the amounts if any paid to the complainants from the deposits.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 28^th day of February 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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