F.A.No.255 OF 2011 AGAINST C.C.NO.19 OF 2010 DISTRICT FORUM-I VISAKHAPATNAM

Between:

Vooda aged 49 years, Prop. Sri Cement and Fertilizers, Visakhapatnam District R/o D.No.36-32

                                                                Appellant/complainant                                            

M/s rep. by is Branch Manager
d.No.16-248/2, Main Road
 

                                                                Respondent/opposite party

Counsel for the Appellant                      M/s Counsel for the Respondent                   M/s KRR        

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

 MONDAY THE TWENTY FIRST DAY OF JANUARY

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             The complainant is the appellant. He has filed the appeal challenging the order of the District Forum whereby the complaint was partly allowed against the respondent directing it to pay interest  @9% p.a. on the amount of `2,01,950/-from 20.12.2009 to 28.02.2009 within three months failing which with 12% interest and costs of `7,000/-.

2.             The parties are referred to as they have been arrayed in the complaint.  The complainant was a member chit No.3385/82002/ of which the value of the chit is `25 lakh and monthly subscription payable is `50,000/- over a period of 50 months.  The complainant is also subscriber of another chit of `5 lakhs payable in 50 monthly     The complainant paid nine `3`32,500/- and Rs.65,000/- towards the installments due, to the agent of the opposite party.  On 2.12.2009 the opposite party returned the   On 7.7.2009 the opposite party had sent notice through his advocate wherein it was mentioned that the membership of the complainant was removed in respect of chit No.3385/82002/40 and the amount of `1,69,980/- would be paid back after deducting `1,25,020/- out of `2,95,000/- towards different charges.

3.                Thereafter the opposite party issued another notice dated 11.08.2009 to the complainant wherein the complainant is shown to get an amount of `2,01,950/- after deduction of `1,25,020/- towards damages and  the said amount of `2,01,950/- was appropriated towards further damages.  As per Account extract dated 8.6.2009 issued by the opposite party an amount of `1`16,880/- is due to the complainant.  There are lot of variances and discrepancies in the accounts.  The complainant got issued notice dated   through his Advocate to the opposite party and filed the complaint before the District Forum.

4.             The opposite party has resisted the claim on the premise that the complaint is not maintainable in terms of the provisions A.P. Chit Fund Act which provides for appeal for any grievance in respect of transactions under chit agreement to the Registrar of Chits.  It is contended that the complainant joined as a member in chit series JPF02 and he was allotted ticket no.40.  The monthly subscription payable is `50,000/- over a period of 50 months.  The chit series was commenced on 27.6.2008 and it is terminable by 26.7.2012.  The complainant paid the second   To maintain good relations with the customers the opposite party accepted the payment made by the complainant without charging any penalty. 

5.             The complainant committed default for seven months and the opposite party issued notice dated 11.8.2009 removing the membership of the complainant.  As per clause 16 of Chit Agreement any chit subscriber’s name is liable to be removed in case he fails to pay the subscription for three consecutive   The complainant paid eight   The opposite party had not authorized any agent to collect money from the subscribers and it had appointed authorized collection assistant who will pass receipts for the payments received by them.  The complainant is non-prized subscriber and he is entitled for refund of money of `2`1,25,000/-.  A sum of `1  The complainant committed breach of terms of the agreement.  There was no deficiency in service on the part of the opposite party.  Hence, prayed for dismissal of the complaint.

6.             The complainant has filed his affidavit and the documents Exs.A1 to A8.  On behalf of the opposite party, the Branch Manager of the opposite party chit fund company filed his affidavit and the documents Exs.B1 to B4. 

7.             The District Forum has allowed the complaint on the premise that the complainant is entitled to the amount less 5% of the chit value towards damages for breach of contract. 

8.             Feeling dissatisfied with the order of the District Forum, the complainant has filed appeal contending that he paid a total amount of `4,50,000/- which included dividend and that the District Forum failed to appreciate that the opposite party accepted the   It is contended that the agent of the opposite party withheld the amount and he admitted through his letter dated 2.12.2009 marked as Ex.A6 which was not considered by the District Forum.  The District Forum, it is contended ought to have directed for refund of entire amount of `4,50,000/- to the complainant.  Further, it is contended that the opposite party has not stated whether any fresh member was admitted against the membership of the

9.             The point for consideration is that whether the complainant is entitled to enhancement of the amount awarded by the District Forum?

10.            The facts beyond any dispute are that the complainant joined as subscriber in the chit series JPF02 and the opposite party allotted him ticket no.40.  As per the terms and conditions of the chit agreement the complainant has to pay monthly subscription at `50,000/- over a period for 50 months and the amount is payable on or before 10^th day of every month.  The chit series was commenced on 27.6.2008. 

11.            The complainant states that he paid an amount of `3,26,070/- towards nine monthly `1,23,030/-.  The complainant has stated that he issued cheque for `32,500/- on 18.7.2009 and another cheque for `65,000/- in favour of the opposite party and handed over the  

12.            The complainant in his affidavit has stated that “I submit that to my shock and dismay on 2.12.2009 the opposite party returned the cheque for `32,500/- issued by me on 18.7.2009 and the cheque for `65,000/- issued by me on 31.10.2009 without tendering them for encashment received through the said   When I questioned the said  

13.            The opposite party has denied that it had appointed   The complainant has filed letter dated 2.12.2009 stated to have been written by   He has expressed ignorance as to why the   The complainant has brought on record the cheque for `65,000/- issued in favour of the opposite party on 312.10.2009.  The opposite party through its letter dated 11.8.2009 informed the complainant that on his failure to clear the arrears his membership was removed on the same on 11.8.2009.

14.            The opposite party issued two letters on 7.7.2009 and 11.8.2009.  In the letter dated 7.7.2009 it is mentioned that the complainant’s membership was removed and a sum of `,25,000/- was deducted towards 5% of the chit value for damages for breach of contract from the amount paid by the complainant i.e., `2,95,000/- and the balance amount payable to him is shown as `1,69,980/-.  The other letter dated 11.8.2009 goes to show that the amount paid by the complainant is `3,26,970/- and after deducting 5% of the chit amount towards damages for breach of contract a sum of `2,01,950/- was shown as the amount payable to the complainant. 

15.            The learned counsel appellant has submitted that the District Forum has not considered the discrepancy in the amount mentioned in the two letters dated 7.7.2009 and 11.8.2009 as also the letter dated 2.12.2009 addressed to him by the agent of the opposite party chit fund company.  The opposite party has stated that it did not appoint any agents to collect the subscription amount from the subscribers.  The statement of the opposite party does not inspire confidence for the reason that it had not brought on record the particulars of the collection assistants stated to have been appointed by it for collection of the subscription amounts.

16.            It is pertinent to note that the   In addition to two   All these facts would cumulatively show that the District Forum has not considered the documents placed on record. 

17.            It is true that there are variance and discrepancies in the amount mentioned by the opposite party in its correspondence made with the complainant.  The opposite party has not denied that   In   All these facts would lead us to the   Thus there had been deficiency in  service on the part of the opposite party.

18.            The complainant cannot ignore the fact that since the commencement of chit series he had been irregular in payment of subscription.  The negligence on the part of the opposite party in retaining the amount covered under the   Thus for the lapse on the part of the opposite party chit company the complainant is entitled to claim certain amount as compensation and not the entire chit amount.  The District Forum has awarded interest on the amount refundable to the complainant and taking into consideration of the

19.            In the result the appeal is partly allowed.  The order of the District Forum is modified.  The opposite party is directed to refund the amount of `2`30,000/- towards compensation and costs of `5000/-.  The costs of the appeal proceedings quantified at `3,000/-.

                                                                                MEMBER

                                                                                MEMBER

                                                                           Dt.21.01.2013

KMK*