KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.APPEAL No. 581/09JUDGMENT DATED: 01.11.2010 PRESENT:- SMT. VALSALA SARANGADHARAN : MEMBER SHRI. S. CHANDRAMOHAN NAIR : MEMBER APPELLANT C. N. Raveendran Pillai, Cherukarayathu Puthen veedu,Venga P.O., Sasthamkotta, Kollam, Secretary, Mannom Memorial N.S.S., Karayogam – 4240, Venga South, Sasthamcotta, Kollam. (Rep. by Adv. Sri Dinesh Sajan. K) Vs RESPONDENT 1. Raghavan Pillai Manisseril veedu, Venga P.O.,Sasthamcotta, Kollam. 2. Lalithambika W/o Raghavan pillai, Manisseril veedu, Venga P.O., Sasthamkotta, Kollam. (Rep. by Adv. Sri. Mohan Varghese) JUDGMENT SMT. VALSALA SARANGADHARAN : MEMBER Appellant is the opposite party in O.P. 178/05 of CDRF, Kollam who is under orders to refund a sum of Rs. 5,300/- with 9% interest from 3.3.2005 along with Rs. 5,000/- as compensation and Rs. 2,000/- as costs to the complainant. The case of the complainant is that the opposite party who was the then secretary of Mannom Memorial N.S.S. Karayogam No. 4240 Venga South received Rs. 10/- as admission fee and Rs. 2/- as monthly subscription each, from the complainants. On 3.3.2005 the complainant gave an application for getting the” Vivahapathrika”for the marriage of complainant’s daughter. The opposite party demanded Rs. 5,000/- as contribution in addition to Rs. 200/- towards notice charges and 100/- towards expenses. The complainant entrusted the above said amount to the opposite party. But he did not give the vivahapathrika. Hence alleging deficiency in service on the part of the opposite party, he filed complaint before the Forum. The opposite party filed version and contented that the complainants are not consumers within the purview of Consumer Protection Act and denied the allegation of the complainants that they had entrusted Rs. 5,300/- to the opposite party. He further contented that one Kunjukrishna pillai who was the president of NSS Karayogam No. 4240 manipulated the receipts towards membership and monthly contribution and as per bye law a person who is a member of a Karayogam is not entitled to apply for member ship in another karayogam. So the complainants have no right to get the membership in the Karayogam of the oposite party. Moreover NSS Union, Karunagapally issued a direction to the opposite party that the complainants are not to be given membership in their Karayogam in pursuant to a complaint dated 2.4.2004. He further contented that he has not received any amount as alleged by the complainant’s pleading that there was no deficiency on his part, the opposite party prayed for dismissal of the complaint. We heard the learned counsel for both sides. The learned counsel for the appellant submitted that the Forum below ought to have found that the complainants/respondents have not produced any documents to show that the appellant/opposite party has received the amount of Rs. 5,300/- from the complainant. He argued for the position that Pw2 who was the former president of Karayogam was expelled from his position as president due to the mal- administration and manipulation of documents. So his deposition ought to have not rejected by the Forum below and the witness who alleged to have accompanied the complainant at the time of giving money to the opposite party was also not examined. He further submitted that as per Ext. D6. the union secretary, Thaluk NSS Union Karayogam informed the Secretary of N.S.S. Karayogam No. 4240 that Sri. Raghavan Pillai, the first complainant need not to be given membership till a decision is taken by the Thaluk Union and that in such a situation the opposite party is justified in denying the membership to the complainants . He has also submittd that the opposite party has not committed any deficiency in service and thus he prayed for setting aside the impugned order passed by the Forum below. On the other hand the learned counsel for the respondents/complainants supported the findings and conclusions arrived at by the Forum below and argued that after accepting the application fee along with monthly subscription fee the opposite party cannot be justified in denying the membership to the complainants. It is argued by him that the opposite party had accepted Rs. 5,300/- from the complainants on 3.3.2005 in the presence of witnesses and the opposite party had agreed to issue the vivahapathrika in connection with the marriage of complainant’s daughter. The case of the complainant is that the usual practice followed in the Karayogam is to accept the contribution first and give receipts later and in the instant case also the opposite party had accepted a sum of Rs. 5,300/- though no receipts were issued for the amounts given. He argued for the position that the Forum below had considered all the aspects of the case in its correct perspective and has passed the order which is only to be upheld and prayed for dismissal of the appeal. On hearing both sides and on perusing the records we find that though the respondents/complainants have averred that the first complainant had given Rs. 5,300/- to the opposite party on 3.3.2005 for getting Vivahapathrika, we do not find any evidence to show that the opposite party had accepted the said amount. On a perusal of the documents we find that as per Ext. P1 series the complainants had remitted Rs. 12/- each towards admission fee according to the complainants a sum of Rs. 5,300/- was paid in the presence of witnesses, but nothing is brought out to show conclusively that the amount of Rs. 5,300/- was paid on 3.3.2005. The crucial points for consideration is as to whether the complainants were enrolled as members of NSS Karayogam. Nobody can be enrolled as members without a decision taken by NSS Karayogam in its meeting. Ext. P5 notice, would make it clear that no such decision was taken enrolling the complainants as members of the Karayogam. The mere fact that as per P1 receipts a sum of Rs. 12/- was collected by way of admission fee and monthly subscription cannot be taken as a ground to conclude that the complainants were given membership in the Karayogam. The terms of the byelaw would make it specific that Membership fee alone can be accepted before enrollment of persons as members of the karayogam. The bye law is more specific that monthly subscription can be collected only from a member who has been enrolled by virtue of the decision taken in a meeting convened for the very purpose. But no evidence is forth coming from the side of the complainants to show that such resolution or decision was taken in any meeting held by the Karayogam. The best piece of evidence to show the membership is the Minutes Book of the meetings of the Karayogam. The complainants have not taken any steps to get the Minutes book of the Karayogam produced in this case. In effect there was nothing on record to substantiate the case of the complainants that they were enrolled as members of the Karayogam. The only document available is the P1 receipts, which would not show that the complainants were members. On a perusal of Ext. D1 series, it is found that the space provided for writing the decision of the committee regarding the admission is left blank. Thus in effect, the Forum below passed the impugned order allowing the complaint without any evidence or other material. The Forum below miserably failed in appreciating the facts and evidence on record in the correct perspective. The opposite party in his version admitted that he has issued receipts for Rs. 12/- each which consists of Rs. 2/- towards monthly subscription fee from each complainant. The opposite party would argue that he had issued the receipts under the inspiration of the then president Mr. Kunju Krishna Pillai, and he was fully aware that it was against the conditions of the Bye-law . It is also found that if the receipts of Rs. 12/- was against the principle, the opposite party ought not have issued the same. The mentioning of the fact that monthly subscription was also received along with application fee would indicate that there was some sort of deficiency on the part of the opposite party. We are at loss to understand how monthly subscription can be collected without admitting the complainants in the karayogam. The opposite party has not a case that the complainants were made members of said Karayogam. If that be so the complainants are entitled to get back the admission fee collected from them as per Ext. P1 series. In Ext. P5, as per Clause VII it is shown that if the membership is denied the admission fee collected will be refunded. The Forum below awarded Rs. 5,000/- as compensation apart from a direction to refund Rs. 5,300/- Since there is no evidence to show that the complainant had paid Rs. 5,300/- . We are not inclined to uphold that part of the order. However since the opposite party had committed deficiency in service as discussed about the complainants are to be compensated. The complainants have failed to substantiate their case that they were given membership. Hence the direction of the Forum below to pay a sum of Rs. 5,000/- as compensation can not be upheld. For the laches on the part of the opposite party in collecting the monthly subscription fee along with admission fee, the opposite party is answerable. Hence the complainants are to be compensated and in our view a sum of Rs. 2,000/- as compensation will be sufficient to meet the ends of justice. The cost of Rs. 2,000/- which was ordered by the Forum below is seen on the higher side. We are of the view that a sum of Rs. 1,000/- will be just and proper in the facts and circumstances of the case In the result, the appeal is allowed in part thereby the opposite party is directed to pay Rs. 2,000/- as compensation along with costs of Rs. 1,000/- to the complainants The opposite party is also directed to return a sum of Rs. 24/- which was collected from the complainant towards admission fee. As far as the present appeal is concerned there shall be no order as to costs. VALSALA SARANGADHARAN : MEMBER S. CHANDRA MOHAN NAIR : MEMBER ST | 
