KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

FIRST APPEAL204/2010

JUDGMENT DATED: 12.10.2010

PRESENT

SMT.VALSALA SARANGADHARAN     : MEMBER

SRI.M.V.VISWANATHAN                        : JUDICIAL MEMBER

FIRST APPEAL 196/2010

V.Subramanyan,                                        : APPELLANT

S/o Kunhundan,

Near Manthampurath Kavu,

Nileshwar,

Kasargode District.

(By Adv.Narayan.R)

            Vs.

1. N.Muhammed Sakkir,                           : RESPONDENTS

    Aleema Manzil,

    Thangayam,

    P.O.Thrikaripur,

     Kasargode District.

2.  C.V.Krishnan,

     S/o Koman,

     Vainingat House,

     P.O. Puthukkai,

     (Via) Nileshwaram,

     Kasargode District.

3. C.V.Ranjith,

     S/o C.V.Krishnan,

             -do-do-

4. President,

     Vainingat Vairajathan Eshwarante Madam

    Vaka Kshethra  Committee,

    Vainingat,

     P.O. Puthukkai,

    (Via) Nileshwaram,

    Kasargode District.

JUDGMENT

  SMT.VALSALA SARANGADHARAN : MEMBER

          The above appeals is preferred from the common order dated 3.3.2010 passed by the CDRF, Kasargod in CC.37/09 whereby the Forum below directed the opposite parties 1,2 and 4 to refund Rs.11,500/- with 9% interest per annum from the date of complaint till payment with costs of Rs.3000/-.  It is aggrieved by these directions that the present appeals are preferred by the 2^nd opposite party.

          2. The case of  the complainant is that he joined in the  chitty conducted by the opposite parties 1 to 4.  But they appropriated the instalments paid in the chitty.  The chitty was started on 10.5.05 and he paid 23 monthly instalments at the rate of Rs.500/- totaling Rs.11,500/- in both chitties.   On getting information that the chitty is under collapse he contacted the 2^nd opposite party who was working as the manager cum kuri committee member and he informed that the news was not correct and spread by their enemies.  After shattering of the chitty the complainant approached the opposite parties 1 and 2 for the amounts he had paid in the chitty and they agreed to pay it in May 2007 which was subsequently extended.  There after the opposite parties 1 and 2 absconded and they were arrested by the police.  The complainant stated that now the opposite parties 2 and 3 are Government servants.  For getting refund of the amounts he had paid along with other reliefs  he filed complaint before the Forum.

          3. The opposite parties 1 and 3 filed joint version and denied the allegation that they have conducted the chitty business.  They contended that Vairajathan Easwaran Kshethra Committee is a  registered committee having its own by-laws and as per the by-law the President alone is having the right to represent the committee and the 3^rd opposite party is not a member or office bearer of the said committee and is not liable to pay any amount.  They submitted that the committee decided to construct a Maha Kshetram along with a kalyana mandapam, old age home and school building and decided to raise fund  by way of donations from the devotees and from the public and  opened day deposit and  SB account in various financial institutions.  Some donators demanded return of the amount given for construction and that the opposite parties  being donatory is not liable  to return the donations and there is no privity of contract between them and the complainant and they are unnecessary parties and prayed for dismissal of the complaint.

          4. The 2^nd opposite party also filed version.  According to him he never acted as a manager or a member of the committee of chit fund run by the 1^st opposite party and one Balachandran and the complaint is bad for non joinder  of necessary parties as Balachandran is not made a party.  He further submitted that he was working as clerk for  a temporary period on daily wages under the 1^st opposite party and Balachandran.  There is no privity of contract between him and the complainant.  He contended that he had not received any amount from the complainant and thus he prayed for dismissal of the complaint.

          5. We heard the learned counsel for the appellant/2^nd opposite party and agent for the complainant.  The counsel for the appellant argued for the position that the Forum below ought to have found that the complainant had failed to prove his case by adducing any oral evidence and there is no oral evidence from the side of the complainant that appellants received any amount from the complainant.  He further submitted that the bank accounts of the 4^th opposite party were operated by the 1^st opposite party and one Balachandran as treasurer and Secretary of the 4^th opposite party and the appellant was only an employee of the 4^th opposite party and such he can not be made liable for the debts of the 4^th opposite party and as per by-law there are 11 working committee members for the 4^th opposite party, temple committee and prayed for exonerating him from the liability.   Thus he requested for allowing the appeal. 

          6. On the other hand the agent for the complainant supported the findings and conclusions arrived at by the Forum below and prayed for dismissal of the appeal.

          7. On hearing both sides and on perusing the records we find that the President is authorized to represent the committee as per by-law and as per by-law the documents relating to the administration of the committee are to be signed by the President, Secretary and Treasurer.  Admittedly the chitty was conducted by the committee as Foreman so that the committee is to be made a party represented by the President because the President is empowered to represent the committee.  Secretary is a necessary party because he is also empowered to sign the documents on behalf of the committee along with the President and Treasurer.  As per the by-law the Secretary is the sole person to maintain all the records and registers of the committee and he is also responsible to maintain the day to day affairs of the committee.  As admitted by the 1^st and 3^rd opposite parties the committee is a registered one and the committee as such is not made a party to the complaint. Only the President of the committee is impleaded, at the same time the Secretary who is authorized to execute the documents for and on behalf of the committee is not made as a party.  So for a proper and effective disposal of the issues involved in the case the committee and its office bearers are to be made parties to the complaint.  Moreover as per the by-law the general council is the body to represent the committee and it is to be arrayed as party to the complaint.  The mere fact that the appellant was exonerated from the liability by the Forum below in some other complaints can not be taken as a ground to hold that the appellant in this complaint is also entitled for exoneration.  The materials on record especially the by-law of the committee would make it clear that the appellant being the executive member is a necessary party and answerable and responsible for the
amounts due to the consumers like the complainants.  So a remand is made for the limited purpose of making tort feasers (the members of the committee) as parties to the complaint and get the liability apportioned among the members and also on the properties of the society viz Vairajathan Easwaran Kshethra Committee.  It is made clear that the finding regarding the entitlement of the complainant to get refund of the amounts with interest accrued there on will remain sustained.  It is true that all the tort feasers are not necessary parties in a proceeding like the complaint herein.  But for an effective disposal of the matter and for doing substantial justice to the parties, the matter is to be remanded.  Hence we do so.

          In the result the appeal is allowed to the extent that the matter is remanded to the Forum below for the limited purpose of getting the committee and its members as parties to the complaint and to have a proper and effective disposal of the same on merits after permitting all the parties including the parties to be impleaded to adduce evidence in support of their contentions.  The impugned order is set aside for the limited purpose as indicated above.  It is made clear that the complainant should take necessary steps to get the committee and its members impleaded.  The parties are directed to appear before the Forum on 30-11-2010.  As far as the present appeal is concerned there shall be no order as to costs.

          SMT.VALSALA SARANGADHARAN     : MEMBER

          SRI.M.V.VISWANATHAN                        : JUDICIAL MEMBER

Ps.