KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.685/09 JUDGMENT DATED 3.5.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER Geethadevi, Meravanchery House, -- APPELLANT Cheroor, Thrissur. (By Adv.G.S.Kalkura) Vs. Proprietor, Muraleegeetham Loans & Advances, Near Bharatiya Vidyabhavan, Poochatty, Thrissur. -- RESPONDENT (Narayan.R) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred against the order dated 27th July 2009 of the CDRF, Thrissur in CC.No.801/06. The complaint therein was filed by the appellant as complainant against the respondent/opposite party alleging deficiency in service on the part of the opposite party in disbursing the amount of Rs.49260/- due to the complainant from the opposite party. The opposite party entered appearance and filed written version contending that the complainant is only entitled to get Rs.12120/- from the opposite party as a sum of Rs.37140/- was adjusted from the aforesaid amount of Rs.49260/-. 2. Before the Forum below Exts.P1 to P3 and R1 and R2 documents were produced and marked on the side of the parties to the said complaint in CC.801/06. Based on the evidence on record, the Forum below passed the impugned order directing the opposite party to pay a sum of Rs.12120/- with interest at the rate of 12% per annum from 8/10/05 till realization and cost of Rs.1000/-. The complainant therein is aggrieved by disallowing her claim for the balance amount of Rs.37140/-. Hence, the present appeal. 3. We heard both sides. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below cannot be justified in disallowing the claim for Rs.37140/- and justifying the action of the opposite party in adjusting the said amount based on the endorsement in P1 pass book. Thus, the appellant prayed for allowing the claim for the balance amount of Rs.37140/-. On the other hand, the respondent/opposite party supported the impugned order passed by the Forum below. The learned counsel for the respondent much relied on the endorsement in P1pass book and the failure on the part of the complainant to challenge the aforesaid endorsement in P1 pass book. Thus the respondent requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1. Whether there was any deficiency in service on the part of the respondent /opposite party in adjusting Rs.37140/- from the total amount of Rs.49260/-? 2. Is there any sustainable ground to interfere with the impugned order dated 27.7.09 passed by CDRF, Thrissur in CC.801/06? 5. POINTS 1 & 2:- There is no dispute that the complainant joined in a kurry scheme introduced by the respondent/opposite party. P1 pass book would show that the opposite party Muraleegeetham Loans and Advances conducted a scheme and that the complainant Geethadevi was a subscriber to the said scheme. Admittedly, the appellant/complainant was entitled to get Rs.49260/- under the said scheme. It is the case of the respondent/opposite party that the sum of Rs.37140/- was deducted from the said sum of Rs.49260/- and only a balance of Rs.12120/- was due to the complainant. The Forum below has also accepted the aforesaid case of the respondent/opposite party and thereby awarded a sum of Rs.12120/- with interest at the rate of 12% per annum and cost of Rs.1000/-. 6. The aforesaid deduction or adjustment of Rs.37140/- was made by the respondent/opposite party based on an endorsement in P1 pass book. The aforesaid endorsement is dated 31.10.05 and the said endorsement is made by the respondent/opposite party who conducted the said scheme. It is to be noted that the aforesaid endorsement is not accepted by the complainant/ subscriber. No signature is seen affixed by the complainant to the said endorsement. There is also nothing on record to show that the complainant as subscriber agreed for the aforesaid deduction or adjustment of Rs.37140/-. On the other hand, the respondent/opposite party admitted the total amount of Rs.49260/- due to the complainant under the aforesaid scheme covered by P1 pass book. The aforesaid deduction or adjustment of Rs.37140/- was made without the consent of the complainant/subscriber. So, the aforesaid adjustment of Rs.37140/- cannot be justified. 7. The respondent/opposite party much relied on the aforesaid endorsement. But there is nothing on record to show that the complainant/subscriber agreed or consented for such endorsement. The mere fact that the complainant has not mentioned any thing about such an endorsement in the complaint or in the lawyer notice cannot be taken as a ground to hold that the aforesaid endorsement was admitted by the complainant/subscriber. On the other hand, in the complaint it is stated that the contentions adopted by the opposite party in their reply notice cannot be accepted and the same are to be rejected. Therefore, the case of the respondent/opposite party regarding the endorsement in P1 pass book cannot be accepted without any cogent evidence. 8. It is the case of the respondent/opposite party that the husband of the complainant stood as a guarantor for the Kurry amount due from one A.V.Daisy, wife of James. But there is nothing on record to show that the husband of the complainant stood as surety or guarantor for the kurry amount due from A.V.Daisy. On the other hand, R1 decree and R2 Judgment in OS2060/07 on the file of First Additional Munsiff, Thrissur would show that the respondent/opposite party herein obtained a decree against the aforesaid A.V.Daisy and her husband James for a sum of Rs.60611/. There is nothing in R1 and R2 decree and judgment that the complainant or her husband stood as sureties or guarantors for the amount due from A.V.Daisy or from her husband James. So, the opposite party cannot be justified in making a deduction of Rs.37140/- from the total amount of Rs.49260/- due to the complainant. The Forum below much relied on the omission on the part of the complainant in denying the endorsement in P1 pass book. But, a close scrutiny of the averments in the complaint would show that the complainant has denied the case of the opposite party regarding the endorsement. Thus, in all respects, the Forum below cannot be justified in accepting the case of the respondent/opposite party. The impugned order passed by the forum below is liable to be modified and thereby to make the respondent/opposite party liable to pay the balance amount of Rs.37140/- to the complainant with interest at the rate of 12% per annum. Thus, the respondent/opposite party is directed to pay a sum of Rs.49260/- with interest at the rate of 12% per annum from 8.10.05 till realization with cost of Rs.1000/-. These points are answered accordingly. In the result, the appeal is allowed. The impugned order passed by the Forum below is modified and thereby the respondent/opposite party is directed to pay a sum of Rs.49260/- with interest at the rate of 12% per annum from 8.10.05 till realization and cost of Rs.1000/-. M.V.VISWANATHAN -- JUDICIAL MEMBER s/L | 
