BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 53/2006 Filed on 25.02.2006

Dated : 17.08.2009

Complainants:

1. Krishnan Nair, Vadakkumkara Veedu, Nettani Desam, Keezharoor, Neyyattinkara.

    

2. Saralabhai, -do-

(By adv. M. Joseph)

Opposite parties:

1. Padmakumar, Proprietor, Peroorkonam Financial Enterprise, Peroorkonathu Veedu, Karingal Desom, Maranalloor, Neyyattinkara.

    

2. Reshmarani, W/o Padmakumar, -do-

(By adv. B. Vasudevan Nair)

This O.P having been heard on 30.06.2009, the Forum on 17.08.2009 delivered the following:

ORDER

SRI. 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are that the opposite parties received deposits from the complainants on assurance that the deposited amounts could be withdrawn on demand by the complainants while the monthly interest at the rate of 12% on the deposited amounts will be given to the complainants till the withdrawal of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, Peroorkonam Financial Enterprises on 01.10.2002 and the 2^nd complainant on 09.01.2005, that opposite parties had given interest to the deposited amounts upto 05.09.2005 and that the deposits and withdrawals were entered in the pass book issued by the opposite parties. Complainants had deposited Rs. 10,00,000/- and Rs. 2,00,000/- respectively with opposite parties. Since the opposite parties had not given interest after 05.09.2005, complainants requested the opposite parties to refund 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.

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.

2^nd opposite party entered appearance and filed version contending that the complainants are not consumers, 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 proprietary 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.

The points that arise for consideration are:-

1. Whether the complainants are entitled to get Rs.12,60,000/- from the opposite parties?

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

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

In support of the complaint, 1^st complainant has filed affidavit in lieu of chief examination and Exts. P1 and P2 were marked. Witness has been examined as PW2. 2^nd opposite party did not file affidavit or documents.

Points (i) to (iii):- It has been the case of the complainants that opposite parties had received deposits from the complainant 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 deposits will be given to the complainants till the withdrawal of the said deposits, that believing the assurance of the opposite parties, 1^st complainant, who is the husband of the 2^nd complainant, started depositing money with 1^st opposite party Peroorkonam Financial Enterprises on 01.10.2002 and 2^nd complainant started depositing money with the 1^st opposite party on 09.01.2005. Submission by the complainants is that opposite parties had given interest to the deposited amounts and the deposits and withdrawal amounts were entered in pass book duly signed by the 1^st opposite party. It has also been the case of the complainant that complainants had received interest upto 05.09.2005 and that as on 05.09.2005 1^st complainant was entitled to get Rs. 10,00,000/- and 2^nd complainant was entitled to Rs. 2 lakhs. Submission urged by the counsel appearing for the complainant is that opposite party had issued interest upto 05.09.2005, that since opposite party failed to give accrued interest after 05.09.2005 even after repeated request, complainants requested the opposite parties to return the deposits, but the opposite parties did not return the deposited amounts. Ext. P1 is the original pass book issued by the 1^st opposite party in the name of the 1^st complainant. As per Ext. P1 the date of pass book is 01.10.2002. Account No. is 03/02. As perusal of Ext. P1 would reveal that 1^st complainant had deposited an amount of Rs. 4,30,000/- on 01.10.2002, that thereafter further deposits and withdrawals are seen made in Ext. P1 that interest is seen paid upto 05.09.2005, that as on 05.09.2005 the balance amount in the said account was Rs. 10 lakhs. Ext. P2 is the original pass book issued by the 1^st opposite party in the name of the 2^nd complainant. As per Ext. P2 Account No. is 03/05 and date of the pass book issued is on 09.01.2005. The initial deposit on 09.01.2005 was Rs. 9,000/-, that thereafter complainant deposited Rs. 81,000/- on 05.06.2005, Rs. 10,000/- on 03.07.2005 and Rs. 1,00,000/- on 03.08.2005. It is seen as per Ext. P2 that interest had paid upto 05.09.2005 and as on 05.09.2005, the balance amount in the said account was Rs. 2 lakhs. Submission by the counsel appearing for complainants is that opposite parties never paid rate of interest after 05.09.2005, even after repeated requests, which forced the complainant to demand for refund of amounts deposited. 1^st opposite party did not turn nor did he file version inspite of service of notice. 1^st opposite party remains ex-parte. 2^nd opposite party filed version. Submission by the 2^nd opposite party is that she has no business relation with the 1^st opposite party, that 1^st opposite party's business is a proprietary concern, that 2^nd opposite party never received any amount from the complainants, that complainants are strangers 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 case, nor did she file any documents. Submission by the complainants 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 deposits from the complainants would rest on the complainants. Complainants 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 opposite parties is established, complainants cannot claim to have any amount from the 2^nd opposite party. Since 1^st opposite party was absent and remained ex-parte, the affidavit of the complainants 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 service on the part of the 1^st opposite party proved. In view of the above discussions, we find complainants are entitled to get the deposited amounts.

In the result, complaint is allowed. 1^st opposite party shall pay a sum of Rs. 10 lakhs to 1^st complainant and Rs. 2 lakhs to 2^nd complainant. The said amounts will carry interest at the rate of 9% from the date of complaint, (that is from 25.02.2006) 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.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

C.C. No. 53/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Krishnan Nair

PW2 - Gopi. V

II COMPLAINANT'S DOCUMENTS :

P1 - Original pass book of Krishnan Nair

P2 - Original pass book of Saralabhai

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT