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. 65/2006 Filed on 2/3/2006

Dated: 17..08..2009

Complainant:

Gopi, Puthen veedu, Puliyarathala, Maranelloor, Neyyattinkara.

(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are that the opposite parties received deposits from the complainant on assurance that the deposited amounts could be withdrawn on demand by the complainant while the monthly interest at the rate of 12% on the deposited amounts will be given to the complainant till the withdrawal of the said deposits, that complainant started depositing money with the 1^st opposite party, Peroorkkonam Financial Enterprises on 15/3/2001, that opposite parties had given interest to the deposited amounts upto 7/12/2005 and the deposits and withdrawals were entered in the pass book issued by the opposite parties. The deposited amounts would come to Rs.2,60,000/-, that since the opposite parties had not given interest after 7/12/2005, complainant 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 return the deposited amounts with interest at the rate of 12% thereon to the complainant and pay compensation of Rs.10,000/-.

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

3. 2^nd opposite party entered appearance and filed version contending that the complainant is not a consumer, that the complaint is not maintainable either in law or on facts, that there is no relationship with the complainant and 2^nd opposite party, that complainant is a 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 complainant, that 2^nd opposite party is an unnecessary party in this case, and that 2^nd opposite party 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 complainant is 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 the complainant is entitled to get Rs.2,60,000/- with interest @ 12% thereon?

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

3. Whether the complainant is entitled to get compensation and costs?

5. In support of the complaint, complainant has filed proof affidavit and Ext.P1 was marked. One witness has been examined as PW2. Both the complainant and the witness have been cross examined by 2^nd opposite party.

6. Points (i) to (iii): It has been the case of the complainant, that opposite parties received deposits from the complainant on assurance that the deposited amounts can be withdrawn on demand by the complainant while the monthly interest at the rate of 12% on the deposits will be given to the complainant till the withdrawal of the said deposits, that believing the assurance of the opposite parties, complainant started depositing money with 1^st opposite party - Peroorkkonam Financial Enterprises on 15/3/2001, that opposite parties had given interest to the deposited amounts upto 7/12/2005 and the deposits and withdrawals were entered in the pass book issued by the opposite parties. Submission by the complainant is that since opposite parties failed to give the assured interest to the deposited amount from 7/12/2005 onwards, complainant approached opposite parties for withdrawal of the deposited amount, that even after repeated requests, opposite parties did not return the deposited amounts to the complainant. Ext.P1 is the original pass book issued by the 1^st opposite party in the name of the complainant. As per Ext.P1 Account No.is 03/01, name of the depositor is Sri.P. Gopi and date of issuance of pass book is 15/3/2001. Initial deposit on 15/3/2001 was Rs.1,40,000/-.Deposits and withdrawals have been recorded in Ext.P1.On a perusal of Ext.P1, it is seen that deposits rose from Rs.1,40,000/- on 15/3/2001 to Rs. 2,60,000/- on 7/12/2005, interest is seen paid from the date of deposit to 7/12/2005. As on 7/12/2005, the balance amount in the account is Rs.2,60,000/-. Ext.P1 bears seal of the 1^st opposite party, 1^st opposite party did not turn up nor did he file version in spite of service of notice. 1^st opposite party remains ex-parte. 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 amounts from the complainant, 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 the complainant is that 1^st opposite party is the husband of the 2^nd opposite party and opposite parties together conduct the said business. It is pertinent to note that 2^nd opposite party did not deny the allegation that 1^st opposite party is the husband of the 2^nd opposite party. Though 2^nd opposite party had filed version, she did not adduce evidence by way of affidavit, thereby, we could discard version of the 2^nd opposite party. Even then the initial burden of proving that 2^nd opposite party has received the deposit amount from the complainant would rest on the complaint. Complainant failed to establish the same by documents. 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 is established complainant cannot claim to have any amount from the 2^nd opposite party. Complainant failed to establish the joint liability of 2^nd opposite party and 1^st opposite party. Since 1^st opposite party was absent and remained ex-parte, the affidavit of the complainant, against 1^st opposite party remains uncontroverted. Evidently complainant has succeeded in establishing the case against the 1^st opposite party. Unfair trade practice and deficiency in service on the part of the 1^st opposite party is proved. In view of the above discussions, we find complainant is 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.2,60,000/- to the complainant. 1^st opposite party shall also pay interest at the rate of 9% on Rs.2,60,000/- from the date of complaint (that is from 2..03..2006) till realization of the said amount by the complainant. 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.65/2006

APPENDIX

I. Complainant's witness:

PW1 : Gopi. P

PW2 : Narayana Pillai. B

II. Complainant's documents:

P1 : Original pass book of A/c No.03/01 dated 15/3/2001 with depositor's name Sri. P. Gopi

3. 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. 65/2006 Filed on 2/3/2006

Dated: 17..08..2009

Complainant:

Gopi, Puthen veedu, Puliyarathala, Maranelloor, Neyyattinkara.

(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 complainant on assurance that the deposited amounts could be withdrawn on demand by the complainant while the monthly interest at the rate of 12% on the deposited amounts will be given to the complainant till the withdrawal of the said deposits, that complainant started depositing money with the 1^st opposite party, Peroorkkonam Financial Enterprises on 15/3/2001, that opposite parties had given interest to the deposited amounts upto 7/12/2005 and the deposits and withdrawals were entered in the pass book issued by the opposite parties. The deposited amounts would come to Rs.2,60,000/-, that since the opposite parties had not given interest after 7/12/2005, complainant 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 return the deposited amounts with interest at the rate of 12% thereon to the complainant and pay compensation of Rs.10,000/-.

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

3. 2^nd opposite party entered appearance and filed version contending that the complainant is not a consumer, that the complaint is not maintainable either in law or on facts, that there is no relationship with the complainant and 2^nd opposite party, that complainant is a 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 complainant, that 2^nd opposite party is an unnecessary party in this case, and that 2^nd opposite party 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 complainant is 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 the complainant is entitled to get Rs.2,60,000/- with interest @ 12% thereon?

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

3. Whether the complainant is entitled to get compensation and costs?

5. In support of the complaint, complainant has filed proof affidavit and Ext.P1 was marked. One witness has been examined as PW2. Both the complainant and the witness have been cross examined by 2^nd opposite party.

6. Points (i) to (iii): It has been the case of the complainant, that opposite parties received deposits from the complainant on assurance that the deposited amounts can be withdrawn on demand by the complainant while the monthly interest at the rate of 12% on the deposits will be given to the complainant till the withdrawal of the said deposits, that believing the assurance of the opposite parties, complainant started depositing money with 1^st opposite party - Peroorkkonam Financial Enterprises on 15/3/2001, that opposite parties had given interest to the deposited amounts upto 7/12/2005 and the deposits and withdrawals were entered in the pass book issued by the opposite parties. Submission by the complainant is that since opposite parties failed to give the assured interest to the deposited amount from 7/12/2005 onwards, complainant approached opposite parties for withdrawal of the deposited amount, that even after repeated requests, opposite parties did not return the deposited amounts to the complainant. Ext.P1 is the original pass book issued by the 1^st opposite party in the name of the complainant. As per Ext.P1 Account No.is 03/01, name of the depositor is Sri.P. Gopi and date of issuance of pass book is 15/3/2001. Initial deposit on 15/3/2001 was Rs.1,40,000/-.Deposits and withdrawals have been recorded in Ext.P1.On a perusal of Ext.P1, it is seen that deposits rose from Rs.1,40,000/- on 15/3/2001 to Rs. 2,60,000/- on 7/12/2005, interest is seen paid from the date of deposit to 7/12/2005. As on 7/12/2005, the balance amount in the account is Rs.2,60,000/-. Ext.P1 bears seal of the 1^st opposite party, 1^st opposite party did not turn up nor did he file version in spite of service of notice. 1^st opposite party remains ex-parte. 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 amounts from the complainant, 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 the complainant is that 1^st opposite party is the husband of the 2^nd opposite party and opposite parties together conduct the said business. It is pertinent to note that 2^nd opposite party did not deny the allegation that 1^st opposite party is the husband of the 2^nd opposite party. Though 2^nd opposite party had filed version, she did not adduce evidence by way of affidavit, thereby, we could discard version of the 2^nd opposite party. Even then the initial burden of proving that 2^nd opposite party has received the deposit amount from the complainant would rest on the complaint. Complainant failed to establish the same by documents. 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 is established complainant cannot claim to have any amount from the 2^nd opposite party. Complainant failed to establish the joint liability of 2^nd opposite party and 1^st opposite party. Since 1^st opposite party was absent and remained ex-parte, the affidavit of the complainant, against 1^st opposite party remains uncontroverted. Evidently complainant has succeeded in establishing the case against the 1^st opposite party. Unfair trade practice and deficiency in service on the part of the 1^st opposite party is proved. In view of the above discussions, we find complainant is 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.2,60,000/- to the complainant. 1^st opposite party shall also pay interest at the rate of 9% on Rs.2,60,000/- from the date of complaint (that is from 2..03..2006) till realization of the said amount by the complainant. 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.65/2006

APPENDIX

I. Complainant's witness:

PW1 : Gopi. P

PW2 : Narayana Pillai. B

II. Complainant's documents:

P1 : Original pass book of A/c No.03/01 dated 15/3/2001 with depositor's name Sri. P. Gopi

3. Opposite parties' witness : NIL

IV. Opposite parties' documents: NIL

PRESIDENT