KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 593/2016
JUDGMENT DATED: 08.01.2024
(Against the Order in C.C. 398/2014 of CDRC, Malappuram)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANTS:
- Secretary, Ernad Pradhamika Sahakarana Karshika Vikasana Bank, Kondotty P.O., Malappuram.
- Secretary, Ernad Pradhamika Sahakarana Karshika Vikasana Bank, Karuvambaram P.O., Manjeri, Malappuram.
(By Adv. Narayan R.)
Vs.
RESPONDENT:
N.P. Muhammed Kutty Haji, S/o Muhammed, Nadakasserry Putuvakara House, Pulliparambu P.O., Chelambra, Malappuram-673 634.
(By Adv. N. Satheesh Kumar)
JUDGMENT
SRI. AJITH KUMAR D.: JUDICIAL MEMBER
This is an appeal filed by the opposite parties in C.C. No. 398/2014 on the file of the Consumer Disputes Redressal Commission, Malappuram (will be referred to as District Commission for brevity).
2. The District Commission had allowed the complaint as per the order dated 30.06.2016 and directed the opposite parties to pay Rs. 2,00,000/- as compensation and Rs. 10,000/- as costs to the complainant with a default clause to pay interest @ 12% interest per annum from the date of pronouncement of the order.
3. The averments contained in the complaint in brief are as follows:
The complainant and his mother had availed a loan from the 1st opposite party in 1995-96. On 21.03.2003 the entire amount covered by the loan was repaid by the complainant. When the title deed pledged with the opposite party was sought to be returned the opposite parties had declined to return the same. The complainant, on account of his financial crisis had proposed to sell out the property and for that purpose the loan was repaid by utilizing the amount received in advance. Due to the non-availability of title deed the sale could not be materialized. So the complainant had to face much mental agony and financial loss. The loan was availed by the complainant and his mother and on account of this trauma the mother of the complainant had succumbed to death. The complainant had sought for compensation of Rs. 20,00,000/- from the opposite parties.
4. On receipt of notice issued by the District Commission the opposite parties entered appearance and filed a joint version with the following contentions:
The opposite parties conceded the fact that the complainant and his mother had pledged the title deed and availed a loan from the bank. There was default in repaying the loan amount. So the Bank had initiated sale of the property. The complainant had filed an O.P. before the Hon’ble High Court as O.P. No. 35746/2000 and for the purpose of drafting statement of facts the file pertaining to the loan along with the title deed was entrusted with the lawyer who was appearing on behalf of the opposite parties before the Hon’ble High Court. But later the above lawyer was elevated as the Judge of the Hon’ble High Court and subsequently two other lawyers were attending the matter. The title deed was found missing from the office of the lawyer. The above fact was conveyed to the complainant and the Bank had assured that they will issue a certificate and certified copy of the title deed. But the complainant had insisted for getting the original title deed and he had filed a petition before the Assistant Registrar and as per the direction of the Assistant Registrar another attempt was also made to trace out the original document. But the title deed could not be traced out. So the Bank was directed by the Assistant Registrar to issue a certified copy of title deed to the complainant, but the complainant was not amenable to the above suggestion and he filed a petition before the Taluk Legal Services Committee, Thirurangadi. The complainant and the Secretary of the Bank had appeared before the Legal Services Committee and informed that the original document could not be traced out. An oral direction was issued to the opposite parties to issue a certified copy of the title deed and to effect a publication in a daily at the expense of the Bank regarding the missing of the title deeds. The complainant as well as the opposite parties were directed to appear before the Taluk Legal Services Committee on 26.03.2014, but on that day complainant did not appear and accordingly his petition was dismissed. Thereafter, the opposite parties had issued a letter to the complainant seeking his consent for resorting to the oral suggestion made by the Legal Services Committee. There was no response from the side of the complainant and subsequently he filed the complaint before the District Commission.
5. The compensation claimed is excessive. There was no willful negligence or deficiency in service on the part of the opposite parties. The opposite parties are ready to return the original title deed if it is traced out. They would seek for dismissal of the complaint.
6. The complainant had sworn an affidavit in lieu of chief examination before the District Commission. Exts. A1 series and A2 to A10 were marked on the side of the complainant. Ext. A1 series are the receipts. Ext. A2 is the letter issued by Assistant Registrar in favour of 1st opposite party. Ext. A3 is the complaint filed before the Tirurangadi Legal Services Authority. Ext. A4 is the letter issued by 2nd opposite party in favour of the complainant. Ext. A5 is the Diary extract of the Tirurangadi Taluk Legal Service Committee, Ext. A6 is the letter submitted by the complainant before opposite parties, Ext. A7 is the notice published by the opposite parties, Exts. A8 and A9 are the copies of loan applications and Ext. A10 is the statement in respect of the land in possession. The Secretary of the opposite party had sworn an affidavit in lieu of examination. Ext. B1 was also marked. Ext. B1 is the Certificate of Encumbrance on Property.
7. The appellants would assail the order of the District Commission on the following grounds:
The complaint is not maintainable either in law or on facts. The District Commission erred in allowing the complaint with an observation that once the matter has been settled the District commission ought to have found that the subject matter of the complaint is one between the member of the co-operative society and the society and hence it falls outside the jurisdiction of the District Commission. The District Commission had failed to appreciate the fact that the complaint is barred by res-judicata as the same was dismissed by the Taluk Legal Services Committee. The compensation, costs and interest awarded are excessive.
8. Heard both sides. The records from the District Commission were called for and perused. On going through the order of the District Commission it could be seen that the District Commission had approached the matter in a casual manner. Though a document was marked on the side of the opposite party as Ext. B1 the said document is not seen referred in the order of the District Commission and it is referred as “no documents marked on the side of the opposite parties”.
9. The preliminary objection raised by the appellant is that the District Commission has no jurisdiction in view of the bar contained in the Kerala Co-operative Societies Act. In this connection it is pertinent to note that Sec. 3 of the Consumer Protection Act, 1986 stipulates that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Sec. 3 is worded in the widest term that the provisions of Consumer Protection Act shall be in addition to the existing laws even if any other Act provides for any remedy to a litigant. For redressal such a litigant can approach the District Commission if he is a consumer under the Consumer Protection Act. The remedy exists in any other law which creates the right is not a bar for the District Commission assuming jurisdiction. So the contention raised by the appellants that the District Commission has no jurisdiction in view of the bar contained in Sec. 69 of the Kerala Co-operative Societies Act is found unsustainable. Now the crucial aspect to be looked into is as to whether there was any deficiency of service on the part of the opposite parties.
‘Deficiency’ is defined under Sec. 2 (g) as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
10. Admittedly the opposite parties had received the title deed of the property of the complainant and his mother. By receiving those documents loan amount was disbursed to them. The materials on record would convincingly prove that the complainant had repaid the entire amount and it was obligatory on the part of the opposite parties to return the title deed. It was the responsibility of the opposite parties to keep the title deeds safe in their custody. Even at this point of time the opposite parties are not in a position to state as to whether title deed had been irrecoverably lost or not. They allege that the title deeds were misplaced from the office of their lawyer. The opposite parties were not expected to hand over the title deed to a third party as those title deeds were pledged with them for availing the loan. The loss of the title deed would cause substantial hardship to the owner of the property. The case of the complainant is that he had availed an advance amount from the prospective buyer of the property and by utilizing the said amount the loan was closed. But the sale could not be materialized as the opposite parties did not return the title deeds. The original title deed is a cardinal document. Without the title deed the owner of the land cannot claim any privileges as the owner of it. The complainant may not be able to avail loan or to sell out the property as nobody will be ready to purchase the property without the original title deed. The hardships suffered by the complainant cannot be compensated by awarding any amount. But at the same time it was the duty of the Consumer Commission to compensate the aggrieved person to the extent possible.
11. The evidence on record would convincingly establish that there was deficiency of service on the part of the opposite parties and hence the complainant is entitled to get adequate compensation. Though the District Commission has awarded Rs. 2,00,000/- as compensation it did not offer any grounds in the order justifying the quantum of compensation awarded. There was an attempt on the part of the District Commission to resolve the dispute amicably. A lawyer was also appointed as the mediator to resolve the dispute. But the matter could not be amicably settled. So ultimately the District Commission was inclined to pass the impugned order. Though a settlement was suggested, the complainant was not ready to abide with the above proposal. As long as there is no consent from the part of the complainant for the proposed settlement it cannot be concluded that any settlement has been arrived at.
12. Another technical contention raised by the appellants is that since the petition filed by the complainant before the Tirurangadi Taluk Legal Service Committee was dismissed, the complaint is barred by resjudicata. The Tirurangadi Taluk Legal Service Committee had dismissed the petition filed by the complainant on account of the absence of the complainant and hence no adjudication was done there. As long as adjudication was not done the bar of resjudicata will never arise. So the contention advanced by the appellant is found unsustainable. Having due regard to the mental agony and hardship caused to the complainant in losing his title deed which was entrusted with the opposite parties and also the possibility of the title deeds being misused by anybody since the whereabouts of the title deed could not be gathered with precision, the agony of the complainant may perpetuate. On evaluating the entire facts and circumstances it is found that the complainant is entitled to get a sum of Rs. 2,00,000/- (Rupees Two Lakhs) as compensation. We find no reason to make any interference regarding the quantum of compensation, costs and interest awarded by the District Commission. There is no merit in the appeal filed by the appellants and hence the appeal fails.
In the result, the appeal is dismissed. Parties shall bear their respective costs.
AJITH KUMAR D. : JUDICIAL MEMBER
RADHAKRISHNAN K.R. : MEMBER
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