BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 11TH July 2013
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.68/2012
(Admitted on 25.2.2012)
Mrs. B.Kripalatha Lobo,
Aged 40 years,
W/o Walter Montiero,
C-1, Dukes Manor,
Matadakani Road,
Near Urva Market,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainants: Sri Melwyn D.M.)
VERSUS
1. Nano Forex India,
Having its office at Madhuram Flats,
Tadveer Rander Road, Surat, Gujarath,
Branch Office: Nano Forex India,
Alistair”3-5-54, Simon Lane,
Ram Nagar, Kankanady Post,
Mangalore.
(Represented by its authorized signatory)
2. Antony M Pinto,
Aged 52 years,
S/o Late A.E. Pinto,
“Alistair” 3-5-54, Simon Lane,
Ram Nagar, Kankanady Post,
Mangalore. ……. OPPOSITE PARTIES
(Opposite Party No.1: Exparte)
(Advocate for the Opposite Party No.2: Sri M.N.Vinaya Kumar)
***************
ORDER DELIVERED BY HON’BLE MEMBER
SMT.LAVANYA M. RAI:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that Opposite Party No.2 is the authorized agent of Opposite Party No.1 and is person in charge of day to day affairs of the Opposite Party No.1’s Business and having complete knowledge of the transaction. The complainant further submitted that the Opposite parties claim to the engaged in the business of accepting deposits from the public with a promise to give 20% returns per month for a period of one year to the depositors for their deposits and also promised to repay the deposited amount to the investors. The Complainant further submitted that believing the words of Opposite Parties that the complainant attended the meeting organized by the Opposite Party No.2 in the last week of August 2010 at “Abhiman Residency” Bunts hostel, Mangalore and made false representation as stated above in the present of some public. The complainant believing the words of Opposite Party No.1 and one Mrs.Fanny P.D’Souza, W/o Vincent D’Souza Residing at near Urva Church, Ashok Nagar Post, Mangalore insisted to deposit with Opposite party No.1, hence the complainant has deposited Rs.1,00,000/- in her name and the complainant issued post office savings bank cheque dated 19.11.2010 bank in favour of opposite party No.2 for Rs.1,00,000/- the said deposit got matured on 19.11.2011. The complainant also submitted that the deposit receipt issued by the Opposite Party No.1 is in the custody of Opposite Party No.2. The complainant had demanded for return of the said deposit receipt from the Opposite party No.2. Initially the Opposite Party No.2 promised the complainant that he would return the deposit receipt after the maturity date, but till today he has not returned the same to the complainant thereafter Opposite party avoid the phone calls of complainant, hence the above complaint came to be filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties refund Rs.1,00,000/- to the complainant with interest at 20% from the date of deposit till the date of repayment and to pay Rs.5,00,000/- towards mental agony and to pay cost and other reliefs.
II. 1. Version notice served to the Opposite Parties by R.P.A.D. Opposite Party No.2 appeared through their counsel and filed version, in respect of receiving notice to the Opposite party No.1 not appeared nor represented the case till this date, hence we have proceeded exparte as against Opposite party No.1. The refused notice of Opposite Party No.1 availed on record and marked as Document No.1.
Opposite Party No.2 denied the entire allegations made in the complaint and stated that the averments made in the para No.2(a) of the complaint are false and baseless. Opposite party No.2 further denied that is engaged in the business of accepting deposits from the public and this complainant with a promise to give 20% returns per month for a period of 1 year to the depositors for their deposits and also promised to repay the deposited amount to the investors. Further the opposite party denied that the meeting organized the Abhiman Residency at Mangalore in presence of some public and not aware as to whether one Mrs.Sanny P.D’Souza has insisted the complainant to deposit with Opposite Party No.1 or not. Infact if there is any meeting as stated by the complainant is put to strict proof of the same. The Opposite Party No.2 further denied that the complainant had deposited any amount with the Opposite party and it got matured on 19.11.2011. Further denied that receipt for the payment issued by Opposite Party to the complainant is in the custody of the Opposite party. The Opposite Party No.2 further submitted that he is one of the victim who has invested the money in the Opposite Party No.1 herein, later they have dishonest by misappropriated the money invested by the public and opposite party No.2 herein filed complaint against opposite party No.1 before the J.M.F.C. II Court at Mangalore the Xerox copy of the same produced before the FORA. Hence the allegation made against the Opposite Party No.2 is false and there is no deficiency of service and prayed for dismissal of the complaint.
III. 1. In support of the above complaint, the Complainant i.e one Mrs. B. Kripalatha Lobo,(CW1) reiterating what has been stated in the complaint and Ex.C1 to C3 are marked for the complainant as listed in the annexure in detail and in the present case the complainant not served interrogatories nor filed any reply and also not submitted arguments on behalf of the complainant. One Mr.Antony Manuel Pinto Opposite Party No.2 (RW1) filed affidavit and served interrogatories.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the Opposite Party counsel and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
Now the points are in dispute between the parties before this FORA is that the complainant stating that the Opposite Parties claim to be engaged in the business of accepting deposits from the public with promise to give 20% returns per month for a period of one year to the depositors for their deposits and also promised to repay the deposited amount to the investors. In this regard the Opposite Party No.2 organised meeting at Abhiman Residency, believing the words of the Opposite parties and Mrs. Fanny P D’Souza the complainant has deposited Rs.1,00,000/- by issuing post office savings bank cheque. Opposite Party No.2 on the other hand denied the allegations made in the complaint and stated that the complainant is not a consumer with in the meaning of Consumer Protection Act and there was no question of becoming guilty of deficiency in service. Further the Opposite Party No.2 also stated that without adducing any cogent evidence either oral or documentary evidence how the complainant to prove the case. Further the Opposite party No.2 submitted that without producing any documents without leading any evidence regarding the deposit of amount cannot presume that there was a customer and consumer relationship. Hence prays for a dismissal.
On perusal the rival contentions raised by the respective parties we find that after filing complaint the complainant not served interrogatories nor filed any reply. Further more we also find that the Ex.C1 produced before the FORA by the complainant that on 19.11.2010 for Rs.1,00,000/- withdrawn by cheque whose name it was credited is not shown and the complainant not lead any evidence to prove by summoning the post master of the said Kankanady post office without adducing any evidence, only producing ledger extract is not at all proved by the complainant that the said amount was credited to the Opposite parties account. Further the complainant also stated that she has invested the amount of Rs.1,00,000/- with the Opposite Party No.2, in this regard there is no documentary evidence to prove the case and there was a meeting held on Abhiman Residency in this also there is no clear evidence or there is no proof in this regard only the oral complaint not prove the case. Further we also noticed that if the Opposite Party No.2 was organized the meeting in the last week of August 2010 at Abhiman Residency, there is any ledger maintained by the said hotel. If the complaint is genuine the complainant would have summon the ledger book from the above said hotel and placed before the FORA. It is the duty of the complaint to prove or establish the case. Further after filing complainant evidence the Opposite Party No.2 served interrogatories but the complaint not filed any reply in the said interrogatories the Opposite Party No.2 put the questions to the complainant but the complainant not reply the same. Further we also noticed that complainant stated that one Fanny P.D’Souza was present at the time of meeting. But complainant not lead any evidence of the said Mrs.Fanny P.D’Souza. The complainant produced Ex.C2 and C3 before the FOR A, which reveals that the contents of the F.I.R. and complainant not shown that Rs.1,00,000/- issued post office savings bank cheque dated 19.11.2010 the entire contents of the complaint and F.I.R. not reveals about the facts of the present case. Hence these all facts we observed that the complainant not established the case as against Opposite Parties only filing complaint before the FORA, which cannot be believable without proving or producing any documents. The complainant also having opportunity to serve interrogatories and reply. But she never take that opportunity and also not file her arguments. Hence we are of the opinion that the complaint filed by the complainant is not genuine and has no merits, deserves to be dismissed. No order as to cost.
In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 11th July 2013)
PRESIDENT MEMBER
