D.O.F. 31.05.2011

                                          D.O.O. 31.10.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 31^st day of October, 2011.

C.C.No.177/2011

Kandambeth Suja,                                               

Mandook House,

P.O. Alavil,                                                            :         Complainant

Kannur Dist.

(Rep. by Adv. K.K. Ramesh)

1.  Puthiyapurayil Vijaya,

     D/o. Appu, Puthiyapurayil,        

     Chirakkal, P.O. Alavil,

     PIN : 670 008                                                  :         Opposite parties

2.  Branch Manager,

     Payyannur Service Co-op.Bank Ltd.,

     Payyannur.

(Rep. by Adv. C.V. Ramakrishnan)

O R D E R

Smt. K.P. Preethakumari, Member

          This is a complaint filed under Section 12 of Consumer Protection Act for directing the opposite party to re-deposit ` 1,00,000 before 2<sup>nd</sup> opposite party along with ` 1,00,000 as compensation.

          The case in brief of the complainant is that she had purchased 5 ¼ cents of property comprised in R.S.175/8 of Chirakkal amsom and desom which was alienated to the 1^st opposite party and her two children after the death of her husband.  One of the children is a minor and hence the 1^st opposite party directed the complainant to deposit 1/3 of the consideration before 2^nd opposite party as fixed deposit in the name of the minor child and accordingly the 1^st opposite party deposited `1,00,000 as 1/3<sup>rd</sup> of the total consideration amount before 1<sup>st</sup> opposite party as fixed deposit and shown the receipt to the complainant.  So the complainant had handed over the entire amount to 1<sup>st</sup> opposite party and she had executed the documents infavour of the complainant.  The term of F.D. is upto 18.11.04.  This fact is also in the jenmam deed having No.1580/07 of Valapattananm S.R.O.  Later on when the complainant had approached, service co-operative bank, Chelora for a loan of `1,00,000 the bank had directed the complainant to produce a certificate from 2^nd opposite party to the effect that minor’s share is in the Bank deposit.  But on enquiry the complainant came to know that the 1^st opposite party had withdrawn the above deposit from the bank.  The expiry of deposit is on 18.11.04 and before that the 1^st opposite party cannot withdraw the amount and 2^nd opposite party should not allow the complainant to withdraw that amount.  So there is deficiency of service on the part of the opposite parties.  Because of the act of the opposite parties, the complainant failed to avail a loan for digging a well.  Because of this the complainant had suffered so much of injuries and hardship.  All these were caused due to the deficient service of opposite parties.   Hence the complaint.

          In pursuance to the notice issued by the Forum 2^nd opposite party appeared and filed their version.  1^st opposite party remained absent and hence she was called absent and set exparty.

          The 2^nd opposite party filed version contending that there is no consumer relationship with the opposite party and hence the complaint is liable to be dismissed.  The 2^nd opposite party denied the contention that after the death of husband of 1^st opposite party, 5 ¼ cents of property including a house devolved upon the 1^st opposite party and her two children and for the purchase of above property the complainant directed the 1^st opposite party to deposit minor’s share before the bank and the sale price was ` 3,00,000 etc.  The 2<sup>nd</sup> opposite party further denied the averment that the 1<sup>st</sup> opposite party executed sale deed infavour of complainant, regarding the deposit in minor’s share in the Bank is also mentioned in the document, the complainant approached before the Chelora Bank for loan, bank demanded to produce a certificate showing existence of deposit in the name of minor, the opposite parties colluded and cheated the complainant, the opposite parties.  Committed deficiency etc are false and hence denied.  The 1<sup>st</sup> opposite party has deposited an amount of ` 30,000 in the name of her minor child T.K. Lijesh as his mother, natural guardian and the amount was deposited for a period of 8 years with FDR No.2587 on 18.01.2006.  On 19.10.09 the 1^st opposite party has submitted an application to the 2^nd opposite party stating that they are in urgent need of money for the medical treatment of the child Lijesh and requested to permit her to withdraw the F.D. amount before maturity period.  So the 2^nd opposite party has returned back the F.D. amount with interest to her in good faith.  The amount was deposited by 1^st opposite party as the natural guardian and also withdrawn by her on behalf of her child on the capacity of natural guardian.  The complainant is not a consumer of opposite party.  The complainant has not suffered any hardship or monetary loss due to any act of opposite parties.  So the complaint is liable to be dismissed.

          Upon the above contention the following issued have been raised for consideration.

1.     Whether the complainant is a consumer?

2.     Whether there is any deficiency of service on the part of opposite party?

3.     Whether the complainant is entitled to any relief?

4.     Relief and cost.

The evidence in the above case consists of oral testimony of PW1 and Exts A1 to A4.

Issue No. 1

          The complainant’s case is that the 1^st opposite party by colluding with 2^nd opposite party had withdrawn the F.D. in the name of the minor child of 1^st opposite party before maturity and hence she was caused so much of mental hardships, since the amount deposited was the minor child’s share of the property which was purchased by the complainant.  In order to prove her case she was examined as PW1 and documents such as jenmam deed, photocopies of F.D. deposits, Copies of lawyer notices, reply notice etc are produced. The 2^nd opposite party contended that there is no consumer relationship with the complainant and opposite parties and hence the complaint is liable to be dismissed.  As per S.2(1)(d) of the C.P.Act, consumer means any person who (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose or        (ii) Hires or avails any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary or such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised or under any system of delivered payment when such services are availed with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purposes.  While going through the complaint it is seen that the grievances of the complainant is not with respect to any goods or services availed by her either from 1^st opposite party or 2^nd opposite party.  Moreover it is seen that the complainant’s remedy is to direct the 1^st opposite party to deposit 1,00,000 before 2^nd opposite party and this one lakh rupees is the F.D. deposit prematurely withdrawn by the 1^st opposite party.  But the complainant has no contention that she has deposited the above amount before 2^nd opposite party.  Admittedly it was deposited by 1^st opposite party towards the share in the property of the minor child.  So it is seen that the complainant has not purchased goods from 1^st opposite party and not availed any service from 2^nd opposite party.  Moreover the subject matter which connects complainant and 1^st opposite party is immovable property which will not come under the purview of Consumer Protection Act.  So we are of the opinion that the complainant has no consumer relationship with the opposite parties and hence the issue No.1 is found against the complainant and hence the complaint is liable to be dismissed and order passed accordingly. 

In the result, complaint dismissed.  No cost.

                       Sd/-                      Sd/-                                         

                     President            Member               

APPENDIX

Exhibits for the Complainant

A1.  Jenmum deed No.1580/2007.

A2.  (a) & (b) F.D. Receipt by 2^nd OP.

A3.  (a) Lawyer notice to 2^nd OP.

       (b) Lawyer notice to 1^st OP.

A4.  Reply by 1^st OP dated 19.01.2011.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

Nil    

                                                                           /forwarded by order/

                                                                     SENIOR SUPERINTENDENT