DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 59/2015
Date of Institution : 09.04.2015
Date of Decision : 17.08.2015
Charanjit Kaur wd/o Teerth Singh S/o Mukand Singh resident of Himadi Tehsil Barnala District Barnala, LRs of the deceased Teerth Singh.
…Complainant
Versus
PACL Limited, SCF-24m, Improvement Trust, Barnala, through its Branch Head.
…Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Rajiv Goyal counsel for the complainant
Sh. Rajneesh Kumar Bansal counsel for the opposite parties
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
Charanjit Kaur widow of Teerth Singh (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act (hereinafter referred as Act) against PACL India Limited (hereinafter referred as opposite party).
2. The facts emerging from the present complaint are that the opposite party offered Recurring Deposit Scheme to the husband of the complainant and relying upon the same, the deceased husband of the complainant accepted the Recurring Deposit Scheme and it was agreed that the complainant shall pay the amount of Rs. 75,000/- to the opposite party in 6 years and on maturity the opposite party will pay Rs. 1,15,600/- alongwith interest and other benefits accrued on the said amount. The husband of the complainant Teerth Singh mentioned the complainant as his nominee in the above mentioned policy/scheme. As per the said representation of the opposite party the said Recurring Deposit Scheme was commenced on 17.10.2013 and expired matured on 17.10.2019. The husband of the complainant already deposited first installment on 17.10.2013 vide policy No. U017234156 and second installment paid on 18.3.2014. Even husband of the complainant paid third installment to the opposite party but opposite party not issued any receipt in this regard.
3. It is further submitted that thereafter on 13.1.2015 unfortunately husband of the complainant Teerth Singh died. On 28.1.2015 complainant deposited all the relevant documents alongwith photocopy of Recurring Deposit Scheme with the opposite party but opposite party has not issued any receipt in this regard but the opposite party assured the complainant that the cheque of the whole amount will be sent to her through post within 15 days. However the said amount was not disbursed till today. Therefore, the said act/omission clearly amounts to deficiency in service on the part of the opposite parties. Hence the present complaint is filed seeking a direction to the opposite party.-
1) To pay the amount of Rs. 1,15,600/- alongwith interest and Rs. 1,00,000/- on account of insurance.
2) To pay Rs. 50,000/- as compensation for causing mental and agony and to pay Rs. 11,400/- as litigation expenses.
4. Upon notice of this complaint the opposite parties filed a joint written statement taking preliminary objections interalia on the ground that the present complaint is based on false, frivolous and baseless allegations and complainant has intentionally not disclosed material facts. Secondly, the complaint does not fall under the Consumer Protection Act as there is no deficiency in service as defined under Section 2 (1) (g) of the Act. Thirdly, the complainant's claim is based upon the agreement executed between them and there is an arbitration clause in the agreement according to which parties should invoke arbitration proceedings and therefore this Forum has no jurisdiction to entertain the present complaint. Fourthly no cause of action has been arisen in favour of the complainant to file the present complaint. It is further in the preliminary objections that the opposite party is a real estate company, neither an insurance company nor involved in any such kind of activities and engaged only in the business of sale, purchase, development and allotment of land to its customers. Further, the opposite party admitted that Teerth Singh entered into an agreement with the opposite party vide registration No. U017234156 dated 17.10.2013 and he was well conversant with the terms and conditions of the agreement and both the parties are bound by the terms and conditions of the agreement. Further, as per terms of agreement if the customer dies during the plan his/her nominee or the legal heir/successor can continue the payment plan on furnishing specific written request to the opposite party but if he/she is unable to continue the payment plan he or she will be eligible for the refund of the amount as per the terms and conditions of the agreement.
5. On merits, it is admitted that Teerth Singh entered into an agreement with the opposite party bearing registration No. U017234156 for purchase of land and cost of the plot was to be paid in 12 installments of Rs. 6,435/- each half yearly. But late Sh. Teerth Singh only deposited two installments i.e Rs. 12,870/- out of 12 installments. It is denied that Teerth Singh deposited third installment with the opposite party. It is further submitted that complainant never met the opposite party to repay the amount. It is further submitted that Central Bureau of Investigation has seized the various documents including deeds and freeze the bank accounts of the PACL Ltd. in case Crime No. R.C.BD 1/2014/E/2004 and the opposite party approached the Hon'ble Delhi High Court and the matter is pending for de-freezing the account. In view of the above the opposite party is helpless to make refund/payment to its customers. It is denied that complainant is entitled for any type of claim of insurance amounting to Rs. 1,00,000/-. They have denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
5. In order to prove her case, the complainant has tendered into evidence copy of registration letter/receipt Ex.C-1, copy of death certificate Ex.C-2, copy of DDR No. 20 dated 14.1.2015 Ex.C-3, copy of ID card Ex.C-4, copy of aadhaar card Ex.C-5, copy of ID card of Teerth Singh Ex.C-6, copy of aadhaar card Ex.C-7, copy of postmortem report Ex.C-8, copy of IPP Code No. 56 Ex.C-9, affidavit of complainant Ex.C-10, affidavit of Sukhwinder Singh Ex.C-11, copy of receipt Ex.C-12 and closed the evidence.
6. To rebut the case of the complainant the opposite party has tendered affidavit of Amit Kapila CSC Incharge Barnala Ex.OP-1 and closed the evidence.
7. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
8. Before adverting to the matter on merits, it is relevant to deal with the preliminary objections raised by the opposite party. Firstly, the learned counsel for the opposite party has contended that the complainant's claim is based upon the agreement executed between them and there is an Arbitration Clause in the agreement, according to which the parties should invoke arbitration proceedings for the redressal of their grievances and therefore being an exclusion clause in the agreement this fora is not competent to deal with the present complaint. On the other hand learned counsel for the complainant contended that the jurisdiction of this Forum is not barred by Arbitration Clause. After hearing the learned counsel for the parties we are of the view that this fora has the jurisdiction to deal with this complaint notwithstanding any Arbitration Clause in the agreement.
9. In case titled Associated Road Carriers Ltd. Versus Kamlender Kashyap & Ors reported in I (2008) CPJ-404 (NC), it was observed that additional remedy is provided under Section 3 of the Act and jurisdiction of fora is not barred by Arbitration Clause. Further in case titled Pasumarthi S.N. Murthi (Dr.) Versus Nischint Constructions reported in I (2003) CPJ-399 (A.P.), it was observed that fora is at liberty to proceed with matters rather to relegate to arbitration since the Act intends to relieve consumers of cumbersome arbitration proceedings. Keeping in view the citations as referred to above this complaint is maintainable in this Forum.
10. The second preliminary objection taken by the learned counsel for the opposite party is that the complainant has no cause of action as the opposite party had not received any deposit from the complainant as it only received advance consideration for purchase of land/plot asper the conditions of the agreement. However this contention of the learned counsel for the opposite party is untenable as no agreement or document has been placed on record to indicate that the deposit was received by them as advance for purchase and development of land/plot. The complainant has placed on record receipt Ex.C-12 showing the deposit of amount and expiry date is shown as 17.10.2019. The complainant has also placed on record photocopy of registration letter cum policy showing the expiry date as 17.10.2019 and the maturity value is Rs. 1,15,600/-. On the other hand the opposite party have not rebutted these documents and moreover these documents have been issued by the opposite parties. Therefore, by stretch of any imagination the opposite parties cannot take the plea that the amount was an advance for purchase and development of the plot only and the complainant was not having any right to ask for the refund of this amount alongwith interest.
11. In case titled Y. Kanaka Reddy Versus Smt. D. Lakshmamma & Ors. Reported in I (2003) CPJ-232 (NC), it was observed that when the amount deposited under scheme and lumpsum payable and promised amount not paid then it was observed that deficiency in service proved and opposite party was held liable to refund deposited amount with interest.
12. The third objection taken by the opposite party is that Central Bureau of Investigation has freezed the bank accounts of the opposite party in case Crime No. R.C. BD1/2014/E/0004 and the opposite party has already approached the Hon'ble Delhi High Court against the orders of the CBI and the matter is pending in the said Hon'ble High Court. In view of this the matter is subjudice and this Forum is not competent to proceed with the present matter till the matter is decided by the Hon'ble Delhi High Court. This contention of the learned counsel for the opposite party is not tenable. Firstly, the opposite party has not placed on record any stay order from any Competent Authority restraining this Forum not to proceed further. Moreover, the opposite party has not placed on record any orders of the CBI or Hon'ble Delhi High Court, so as this Forum may be in a position to assess the gravity of the proceedings and the consequential effects upon the proceedings pending in this Fora. In the absence of any document in this regard it cannot be held that the matter is subjudice.
13. Now coming to the case on merits, firstly it is to be determined whether the complainant has paid the amount in question. To support her case the complainant has placed on record her detailed affidavit Ex.C-10, wherein she has stated that her husband obtained the policy bearing No. U017234156 on 17.10.2013 and the said policy was matured on 17.10.2019 and her husband paid two installments vide receipts dated 17.10.2013 and 18.3.2014 respectively. She further deposed in her affidavit that her husband Teerth Singh has also paid third installment to the opposite party but opposite party not issued any receipt in this regard and thereafter on 13.1.2015 her husband Teerth Singh was expired in an accident and DDR No. 20 dated 14.1.2015 was also lodged in the local police station copy of which is Ex.C-3 on the file. She further deposed that on 28.1.2015 complainant deposited all the relevant documents alongwith photocopy of Recurring Deposit Scheme with the opposite party but no receipt to this effect has been issued by the opposite party to the complainant and assured her that the cheque of the whole amount will be sent to her through post within 15 days but the opposite party has not paid any amount despite requesting them again and again.
14. On the other hand the opposite party has taken a specific stand in the written statement that Late Sh. Teerth Singh deposited two installments of Rs. 12,870/- only out of total 12 installments. As per agreement if the customer dies then his/her nominee or the legal heir/successor can continue the payment plan on furnishing written request to the opposite party. It is further submitted that if the legal heir is unable to continue the payment plan due to any reason whatsoever he or she will be eligible for the refund of the amount as per the terms and conditions of the agreement.
15. Ex.C-1 is the policy in favour of the deceased Teerth Singh showing the payment of Rs. 6,435/- dated 17.10.2013. Ex.C-12 is the renewal subscription receipt dated 18.3.2014 showing the payment of the installment of Rs. 6,435/- on 18.3.2014. Apart from these two receipts the complainant or his legal heirs have not placed on record any receipt showing any further installment. Ex.C-2 is the death certificate of Sh. Teerth Singh which shows that Teerth Singh died on 13.1.2015. The policy Ex.C-1 further shows that Sh. Charanjit Kaur complainant is the nominee of deceased Teerth Singh who is the wife of deceased Teerth Singh. There is no document or insurance policy placed on record to show that in case of death of the member of the opposite party the legal heirs of the deceased is entitled to the insurance amount of Rs. 1,00,000/-. In the absence of any policy or document it cannot be held that the nominee complainant is entitled to Rs. 1,00,000/- as insurance amount from the opposite party. But as mentioned in the written version filed by the opposite party that in case of death of customer the nominee or legal heir is entitled for the refund of the amount as per terms and conditions of the agreement.
16. Keeping in view these circumstances we are of the opinion that the present complaint is partly allowed and the opposite party is directed to refund the amount of Rs. 12,870/- to the complainant alongwith interest at the rate of 9% per annum from the date of deposit till realization. However no order as to costs or compensation. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
17th Day of August 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandana Sidhu)
Member
