BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 61/2006

Dated: 17..08..2009

Complainants:

1. Reghuvathy, D/o Devaki, Ayyanakathuvilakom, Maranalloor, Aruvikkara, Neyyattinkara.

2. Vasanthakumari, D/o Devaki, Mahalekshmi Vilasom, Koovalassery, Poovanvila, Neyyattinkara.

3. Astha, c/o 2^nd complainant of ..do.. ..do..

(By adv. M. Joseph)

Opposite parties:

1. Peroorkkonam Financial Enterprises, Represented by its Proprietor, Padmakumar, Peroorkonathu Veedu, Kottampally, Maranalloor Village, Neyyattinkara.

2. Reshma Rani, w/o Padmakumar of ..do. ..do..

    

(By Adv. B. Vasudevan Nair

 

This O.P having been heard on 25..05..2009, the Forum on 17..08..2009 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the opposite parties received deposits from the complainants on assurance that the deposited amounts could be withdrawn on demand by the complainants while the monthly interest at the rate of 12% on the deposited amounts will be given to the complainants till the withdrawal of the said deposits, that the 1^st complainant started depositing money with the 1^st opposite party, Peroorkkonam Financial Enterprises on 20/11/2004, and the 2^nd complainant on 23/1/2005 and 3^rd complainant on 11/7/2005, that opposite parties had given interest to the deposited amounts upto 24/9/2005 and that the deposits and withdrawals were entered in the pass book issued by the opposite parties. Complainants had deposited Rs.38,935/-, Rs.15,200 and Rs.45,650/- respectively with opposite parties. Since the opposite parties had not given interest after 24/9/2005, complainants requested the opposite parties to return the deposited amounts, but opposite parties never returned the said amounts till date. The action of the opposite parties amounts to unfair trade practice and deficiency in service. Hence this complaint to direct the opposite parties to refund the deposited amounts with interest at the rate of 12% thereon to the complainants and to pay compensation of Rs.10,000/- each.

2. 1^st opposite party did not turn up inspite of service of notice, and no version filed by the 1^st opposite party. Hence 1^st opposite party set ex-parte.

3. 2^nd opposite party entered appearance and filed version contending that the complainants are not a consumer, that the complaint is not maintainable either in law or on facts, that there is no relationship with the complainants and 2^nd opposite party, that complainants are stranger to the 2^nd opposite party, that 2^nd opposite party is the wife of the 1^st opposite party, that 2^nd opposite party has no business relationship with the 1^st opposite party, that 1^st opposite party's business is a proprietory concern, that 2^nd opposite party never received any amount from the complainants, that 2^nd opposite party is an unnecessary party in this case, and that 2^nd opposite party has never committed unfair trade practice and deficiency in service. The 1^st opposite party has never transferred any property to the 2^nd opposite party as alleged in the complaint, and that the complainants are not entitled to any relief from the 2^nd opposite party. Hence 2^nd opposite party prayed for dismissal of the complaint with cost.

4. The points that arise for consideration are:

1. Whether complainants are entitled to get Rs.1,04,773/- from the opposite parties?

2. Whether there has been deficiency in service and unfair trade practice on the part of opposite parties?

3. Whether complainants are entitled to get compensation and costs?

5. In support of the complaint, 2^nd complainant has filed proof affidavit and Exts.P1 to P3 were marked. 2^nd Complainant has been cross examined by the 2^nd opposite party, one witness has been examined as PW2. Opposite parties did not file affidavit or documents.

6. Points (i) to (iii): It has been the case of the complainant that opposite parties had received deposits from the complainants on assurance that the said deposits could be withdrawn on demand by the complainants, while the monthly interest at the rate of 12% will be given to the complainants till the withdrawal of the said deposits, that believing the assurances of the opposite parties, complainants started depositing money with opposite parties, that 1^st complainant started deposit on 20/11/2004, 2^nd complainant on 23/1/2005 and 3^rd complainant on 11/7/2005, that opposite parties had given interest to complainants till 24/9/2005, and the deposits and withdrawals were entered in the pass book issued by the opposite parties. Submission by the complainants is that since opposite parties had failed to give assured interest to the deposited amounts from 24/9/2005 onwards, complainants approached the opposite parties for withdrawal of the deposited amounts, that even after repeated requests, opposite parties did not return the deposited amounts to the complainants. Ext.P1 is the copy of the pass book issued by the 1^st opposite party in the name of the 1^st complainant. As per Ext.P1, Account No.is 03/04, Date of issuance of pass book is 20/11/2004. From 11/2004 onwards 1^st complainant is seen deposited with Peroorkonam Financial Enterprises. As per Ext.P1 1^st complainant is entitled to get Rs.38,935/-. Ext.P2 is the pass book issued by 1^st opposite party Peroorkonam Financial Enterprises in the name of the 2^nd complainant. As per Ext.P2, Account No.is 03/05, date of issuance of pass book is 23/1/2005, complainant is seen started deposit of money with 1^st opposite party from 23/1/2005 onwards. As per Ext.P2 is the balance amount in the said account is Rs.15,200/-. Ext.P3 is the pass book issued by the 1^st opposite party in the name of 3^rd complainant. As per Ext.P3 Account No.is 03/05, the date of issuance is 11/7/2005. The initial deposit was on 11/7/2005. As on 24/9/2005, it is seen as per Ext.P3 that 3^rd complainant is entitled to get Rs.45,650/-. It must be mentioned here that 1^st opposie party did not turn up, nor did he file version, inspite of service of notice 1^st opposite party remains exparte. 2^nd opposite party filed version denying the allegations in the complaint. Submission by the 2^nd opposite party is that she has no business relationship with the 1^st opposite party, that 1^st opposite party's business is a proprietory concern, that 2^nd opposite party never received any amount from the complainants, that complainant is a stranger to 2^nd opposite party and that 2^nd opposite party is an unnecessary party in this case. 2^nd opposite party did not file affidavit to substantiate her version nor did she file any documents. Submission by complainants is that 1^st opposite party is the husband of the 2^nd opposite party and opposite parties together conduct the said business. Though 2^nd opposite party had filed version, she did not adduce evidence by way of affidavit, thereby, we could discard the version of the 2^nd opposite party. Even then we could not take adverse inference against 2^nd opposite party since the initial burden of proving that 2^nd opposite party had received the deposit amount would rest on the complainants. Complainants did not produce any documents showing the involvement of the 2^nd opposite party in the alleged transaction. By mere submission that 2^nd opposite party is the wife of the 1^st opposite party, thereby the liability of the 1^st opposite party cannot shift to the 2^nd opposite party, unless and until a joint liability of the opposite parties established by complainants with cogent and clinching evidence. Complainants failed to establish the joint liability of the 1^st and 2^nd opposite parties. Since the 1^st opposite party was absent and remained ex-parte, affidavit of the complaintant against 1^st opposite party remains uncontroverted. Evidently complainants have succeeded in establishing the case against the 1^st opposite party. Unfair trade practice and deficiency in services on the part of the 1^st opposite party is proved. In view of the above discussions, we find complainants are entitled to get the amount deposited with 1^st opposite party.

In the result, complaint is allowed. 1^st opposite party shall pay a sum of Rs.38,935/- to 1st complainant, a sum of Rs.15,200/- to 2^nd complainant and a sum of Rs.45,650/- to 3^rd complainant.. The said amounts will carry interest at the rate of 9% from the date of the complaint (that is from 27..02..2006) till realization. There will be no compensation in facts and circumstances of the case. Parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17^th day of August, 2009.

G. SIVAPRASAD.

PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.61/2006

APPENDIX

I. Complainants' witness:

PW1 : Vasanthakumary. D

II. Complainants' Documents:

P1 : Photocopy of pass book of Account No.03/04 dated 20/11/2004 with depositor's name – Smt. D. Reghuvathy.

P2 : " No.03/05 dated 23/1/2005 with depositor's name – Smt. D. Vasantha Kumary

P3 : Copy of pass book of account No.03/05 dated 11/7/2005 with depositor's name – V. Astha

III. Opposite parties' witness : NIL

IV. Opposite parties' documents : NIL

PRESIDENT

ad.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 61/2006

Dated: 17..08..2009

Complainants:

1. Reghuvathy, D/o Devaki, Ayyanakathuvilakom, Maranalloor, Aruvikkara, Neyyattinkara.

2. Vasanthakumari, D/o Devaki, Mahalekshmi Vilasom, Koovalassery, Poovanvila, Neyyattinkara.

3. Astha, c/o 2^nd complainant of ..do.. ..do..

(By adv. M. Joseph)

Opposite parties:

1. Peroorkkonam Financial Enterprises, Represented by its Proprietor, Padmakumar, Peroorkonathu Veedu, Kottampally, Maranalloor Village, Neyyattinkara.

2. Reshma Rani, w/o Padmakumar of ..do. ..do..

    

(By Adv. B. Vasudevan Nair

 

This O.P having been heard on 25..05..2009, the Forum on 17..08..2009 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the opposite parties received deposits from the complainants on assurance that the deposited amounts could be withdrawn on demand by the complainants while the monthly interest at the rate of 12% on the deposited amounts will be given to the complainants till the withdrawal of the said deposits, that the 1^st complainant started depositing money with the 1^st opposite party, Peroorkkonam Financial Enterprises on 20/11/2004, and the 2^nd complainant on 23/1/2005 and 3^rd complainant on 11/7/2005, that opposite parties had given interest to the deposited amounts upto 24/9/2005 and that the deposits and withdrawals were entered in the pass book issued by the opposite parties. Complainants had deposited Rs.38,935/-, Rs.15,200 and Rs.45,650/- respectively with opposite parties. Since the opposite parties had not given interest after 24/9/2005, complainants requested the opposite parties to return the deposited amounts, but opposite parties never returned the said amounts till date. The action of the opposite parties amounts to unfair trade practice and deficiency in service. Hence this complaint to direct the opposite parties to refund the deposited amounts with interest at the rate of 12% thereon to the complainants and to pay compensation of Rs.10,000/- each.

2. 1^st opposite party did not turn up inspite of service of notice, and no version filed by the 1^st opposite party. Hence 1^st opposite party set ex-parte.

3. 2^nd opposite party entered appearance and filed version contending that the complainants are not a consumer, that the complaint is not maintainable either in law or on facts, that there is no relationship with the complainants and 2^nd opposite party, that complainants are stranger to the 2^nd opposite party, that 2^nd opposite party is the wife of the 1^st opposite party, that 2^nd opposite party has no business relationship with the 1^st opposite party, that 1^st opposite party's business is a proprietory concern, that 2^nd opposite party never received any amount from the complainants, that 2^nd opposite party is an unnecessary party in this case, and that 2^nd opposite party has never committed unfair trade practice and deficiency in service. The 1^st opposite party has never transferred any property to the 2^nd opposite party as alleged in the complaint, and that the complainants are not entitled to any relief from the 2^nd opposite party. Hence 2^nd opposite party prayed for dismissal of the complaint with cost.

4. The points that arise for consideration are:

1. Whether complainants are entitled to get Rs.1,04,773/- from the opposite parties?

2. Whether there has been deficiency in service and unfair trade practice on the part of opposite parties?

3. Whether complainants are entitled to get compensation and costs?

5. In support of the complaint, 2^nd complainant has filed proof affidavit and Exts.P1 to P3 were marked. 2^nd Complainant has been cross examined by the 2^nd opposite party, one witness has been examined as PW2. Opposite parties did not file affidavit or documents.

6. Points (i) to (iii): It has been the case of the complainant that opposite parties had received deposits from the complainants on assurance that the said deposits could be withdrawn on demand by the complainants, while the monthly interest at the rate of 12% will be given to the complainants till the withdrawal of the said deposits, that believing the assurances of the opposite parties, complainants started depositing money with opposite parties, that 1^st complainant started deposit on 20/11/2004, 2^nd complainant on 23/1/2005 and 3^rd complainant on 11/7/2005, that opposite parties had given interest to complainants till 24/9/2005, and the deposits and withdrawals were entered in the pass book issued by the opposite parties. Submission by the complainants is that since opposite parties had failed to give assured interest to the deposited amounts from 24/9/2005 onwards, complainants approached the opposite parties for withdrawal of the deposited amounts, that even after repeated requests, opposite parties did not return the deposited amounts to the complainants. Ext.P1 is the copy of the pass book issued by the 1^st opposite party in the name of the 1^st complainant. As per Ext.P1, Account No.is 03/04, Date of issuance of pass book is 20/11/2004. From 11/2004 onwards 1^st complainant is seen deposited with Peroorkonam Financial Enterprises. As per Ext.P1 1^st complainant is entitled to get Rs.38,935/-. Ext.P2 is the pass book issued by 1^st opposite party Peroorkonam Financial Enterprises in the name of the 2^nd complainant. As per Ext.P2, Account No.is 03/05, date of issuance of pass book is 23/1/2005, complainant is seen started deposit of money with 1^st opposite party from 23/1/2005 onwards. As per Ext.P2 is the balance amount in the said account is Rs.15,200/-. Ext.P3 is the pass book issued by the 1^st opposite party in the name of 3^rd complainant. As per Ext.P3 Account No.is 03/05, the date of issuance is 11/7/2005. The initial deposit was on 11/7/2005. As on 24/9/2005, it is seen as per Ext.P3 that 3^rd complainant is entitled to get Rs.45,650/-. It must be mentioned here that 1^st opposie party did not turn up, nor did he file version, inspite of service of notice 1^st opposite party remains exparte. 2^nd opposite party filed version denying the allegations in the complaint. Submission by the 2^nd opposite party is that she has no business relationship with the 1^st opposite party, that 1^st opposite party's business is a proprietory concern, that 2^nd opposite party never received any amount from the complainants, that complainant is a stranger to 2^nd opposite party and that 2^nd opposite party is an unnecessary party in this case. 2^nd opposite party did not file affidavit to substantiate her version nor did she file any documents. Submission by complainants is that 1^st opposite party is the husband of the 2^nd opposite party and opposite parties together conduct the said business. Though 2^nd opposite party had filed version, she did not adduce evidence by way of affidavit, thereby, we could discard the version of the 2^nd opposite party. Even then we could not take adverse inference against 2^nd opposite party since the initial burden of proving that 2^nd opposite party had received the deposit amount would rest on the complainants. Complainants did not produce any documents showing the involvement of the 2^nd opposite party in the alleged transaction. By mere submission that 2^nd opposite party is the wife of the 1^st opposite party, thereby the liability of the 1^st opposite party cannot shift to the 2^nd opposite party, unless and until a joint liability of the opposite parties established by complainants with cogent and clinching evidence. Complainants failed to establish the joint liability of the 1^st and 2^nd opposite parties. Since the 1^st opposite party was absent and remained ex-parte, affidavit of the complaintant against 1^st opposite party remains uncontroverted. Evidently complainants have succeeded in establishing the case against the 1^st opposite party. Unfair trade practice and deficiency in services on the part of the 1^st opposite party is proved. In view of the above discussions, we find complainants are entitled to get the amount deposited with 1^st opposite party.

In the result, complaint is allowed. 1^st opposite party shall pay a sum of Rs.38,935/- to 1st complainant, a sum of Rs.15,200/- to 2^nd complainant and a sum of Rs.45,650/- to 3^rd complainant.. The said amounts will carry interest at the rate of 9% from the date of the complaint (that is from 27..02..2006) till realization. There will be no compensation in facts and circumstances of the case. Parties shall bear and suffer their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 17^th day of August, 2009.

G. SIVAPRASAD.

PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.61/2006

APPENDIX

I. Complainants' witness:

PW1 : Vasanthakumary. D

II. Complainants' Documents:

P1 : Photocopy of pass book of Account No.03/04 dated 20/11/2004 with depositor's name – Smt. D. Reghuvathy.

P2 : " No.03/05 dated 23/1/2005 with depositor's name – Smt. D. Vasantha Kumary

P3 : Copy of pass book of account No.03/05 dated 11/7/2005 with depositor's name – V. Astha

III. Opposite parties' witness : NIL

IV. Opposite parties' documents : NIL

PRESIDENT