KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 271/2008
JUDGMENT DATED:27-10-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
1. The General Manager,
Kerala State Financial Enterprises Ltd.,
Regd. Office, “Bhadratha’, Thrissur.
: APPELLANTS
2. The Branch Manager,
Kerala State Financial Enterprises Ltd.,
Perunna Branch, Changanachery.
(By Adv.Sri.P.K.Venugopal)
Vs.
1. Remani Prabhakaran,
Idakkad, Veliyanadu,
Pin-689 590.
2. Priyamol.P,
-do- -do-
: RESPONDENTS
3. Deepthi.P,
-do- -do-
4. Divya.P,
-do- -do-
JUDGMENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellants were the opposite parties and respondents were the complainants in CC.138/06 on the file of CDRF, Kottayam. The complaint was filed alleging deficiency of service on the part of the opposite parties in not allowing the benefit under the Liability Waiver Scheme to the complainants being the legal heirs of the deceased chitty subscriber, Prabhakaran who joined in the chitty No.5/04 as chital No.47 with sala of Rs.1,00,000/- and the said chitty was prized in his name on 4/10/2004 and the prized chitty amount was put in FD on 5/11/2004. The complainants have also alleged deficiency of service on the part of the opposite parties in not allowing the insurance benefits under the aforesaid Liability Waiver Scheme.
2. The opposite parties entered appearance and filed written version denying the alleged deficiency of service. They contended that the subscriber, Prabhakaran was not entitled for the benefit under the Liability Waiver Scheme because of the fact that the subscriber had exceed 65 years of age on the date of termination of the aforesaid chitty No.5/04. The opposite parties relied on the circular No.68/05 (PLG) dated:11/5/2005 and pointed out clause 3 of the aforesaid circular debarring the subscribers who should exceed 65 years of age on the date of termination of the chitty. The opposite parties further contended that there was no insurance scheme entitling the subscriber or his legal heirs to get any insurance amount. Thus, the opposite parties prayed for dismissal of the complaint in CC.138/06.
3. Before the Forum below Exts.A1 to A6 and B1 to B7 documents were produced and marked on the side of the parties to the said complaint. Both the parties have also filed proof affidavits in lieu of examination in chief. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:29th August 2008 allowing the complaint and directing the opposite party/KSEF Ltd to waive the balance amount with regard to the chitty of late Prabhakaran and also to give the insurance amount under the said scheme with further direction to pay cost of Rs.2000/- to the complainants. Hence the present appeal.
4. When this appeal was taken up for final hearing there was no representation for the respondents/complainants. We heard the learned counsel for the appellants/opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on clause 3 of the B4 circular No.68/05 dated:11/5/2005 and submitted that the subscriber/deceased Prabhakaran was not eligible to get the benefit under the Liability Waiver Scheme. It is further submitted, no insurance scheme was introduced other than the Liability Waiver Scheme and that no insurance amount was due to the subscriber or the legal heirs of the subscriber under the aforesaid Liability Waiver Scheme. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below.
5. There is no dispute that the respondents/complainants are the legal heirs of deceased Prabhakaran and that the complainant’s predecessor, Prabhakaran was a subscriber of chitty No.5/04 with chital No.47 having the sala of Rs.1.lakh. The aforesaid chitty was introduced by the appellant/opposite party, KSFE Ltd from their branch at Perunna, Changanassery. Admittedly, the aforesaid chitty was prized in the name of the subscriber, Prabhakaran in October 2004 and the chitty amount was put in the fixed deposit on 5/11/2004. Subsequently the chitty amount was released to the subscriber Prabhakaran on 11/4/2005. It is to be noted that after joining of the aforesaid chitty by Prabhakaran, the appellant/opposite party, KSFE Ltd. Introduced a scheme known as “Liability Waiver Scheme for chitty subscribers”. The aforesaid scheme was first introduced vide circular No.55/04 dated:16/4/2004. Ext.B3 is the aforesaid circular No.55/04. Subsequently the appellant/opposite party, KSEF modified the aforesaid circular by introducing circular No.68/05 (PLG) dated:11/5/2005. Ext.B4 is the circular 68/05 (PLG). It is after introduction of B4 circular, the subscriber/Prabhakaran joined the scheme by remitting a sum of Rs.100/- covered by A5 chalan dated:20/6/2005. It would show that the subscriber Prabhakaran joined in the said scheme covered by circular No.68/05 (PLG) which was introduced as early as on 11/5/2005.
6. The case of the respondents/complainants is that their predecessor, Prabhakaran was eligible for the benefit under the said scheme introduced by circular No.68/05 (PLG)(Ext.B4). Admittedly the subscriber, Prabhakaran died on 31/10/2005. He was aged 64 years at the time of his death. The chitty No.5/04 commenced on 13/2/2004 and the date of termination is 4/3/2008. As per B4 circular the subscriber who is eligible for the benefit under the scheme should not exceed 65 years on the date of termination of the chitty. Ext.A1 admission register (Ext.B5) would show that the date of birth of the subscriber Prabhakaran was 30/12/1941. If that be so, it can be seen that the subscriber, Prabhakaran will be 67 years on the date of termination of the said chitty on 4/3/2008 as per B4 circular dated:11/5/2005, the subscriber Prabhakaran was not eligible or entitled for the benefit under the aforesaid scheme known as Liability Waiver Scheme for the chitty subscribers. It is on the strength of the aforesaid clause 3 of B4 circular, the appellants/opposite parties resisted the claim of the respondents/complainants.
7. The aforesaid clause 3 of B4 circular can be treated as exclusion clause of the said scheme introduced vide circular No.68/05 (PLG) (Ext.B4). There is nothing on record to show that the subscriber, Prabhakaran was made known or made aware of existence such a clause in B4 circular dated:11/5/2005. It was the bounden duty of the KSFE Ltd or its officials to make the provisions of the said scheme available to the subscribers who joined under the said scheme known as Liability Waiver Scheme for chitty subscribers. Ext.B6 notice said to have been published by KSFE would only show such a benefit is available to the chitty subscribers. But in B6 there is no whisper about the terms and conditions or the exclusion clause of the said scheme. As per B6 KSFE attracted the subscribers by stating that the subscribers are eligible for such benefits of a Liability Waiver Scheme and thereby the subscribers need not pay future subscriptions for the kuri, in the event of death of the subscriber or subscribers. So, there occurred failure on the part of the KSFE and its officials in publishing the terms and conditions including the exclusion clauses of the scheme.
8. Ext.B7 is another notice said to have been published by the 2nd appellant/2nd opposite party, KSFE branch, Perunna, Changanassery. The aforesaid B7 notice is also silent about the terms and conditions including the exclusion clauses of the said scheme. In B7 notice also the KSFE highlighted the benefits of the scheme, but they conveniently suppressed the exclusion clauses to the scheme. The aforesaid attitude or approach of the KSFE Ltd would give an indication that the KSFE deliberately suppressed material fact regarding the exclusion clause of the scheme from the subscribers of the chitties. In effect the appellant/opposite party, KSFE misled the subscribers by publishing B6 and B7 notices by withholding the crucial exclusion clauses of the scheme. The aforesaid action or inaction, omission or suppression would amount to unfair trade practice.
9. Appellant/opposite party, KSFE Ltd being a government owned public limited company was never expected to adopt such an unfair and unethical practice. The KSFE was very much interested in canvassing the general public by publishing B6 and B7 notices. The KSFE Ltd and its officials cunningly misled the subscribers and thereby canvassed business for KSFE Ltd, at the cost of the consumers like the subscriber, Prabhakaran. It is to be noted that the appellant/opposite party KSFE and its officials never asked the subscriber, Prabhakaran to produce his certificate evidencing date of birth while permitting the subscriber to joined the said scheme by remitting Rs.100/- covered by A5 chalan dated:20/6/2005. Thus, it can very safely be concluded that the subscriber, Prabhakaran was put in complete darkness about the terms and conditions including the exclusion clause of the scheme and that the KSFE Ltd permitted the subscriber to join the said scheme. Thus, in all respects the subscriber; Prabhakaran was eligible for the benefits under the scheme because of the suppression of material facts from his knowledge by the officials of KSFE Ltd. The respondents/complainants being the widow and children of deceased Prabhakaran are entitled to get the benefit of the aforesaid Liability Waiver Scheme. So, the respondents/complainants are not liable to remit the future subscriptions in the aforesaid chitty No.5/04. The Forum below is perfectly justified in extending the benefit of the said scheme to the complainants being the legal heirs of the deceased subscriber/Prabhakaran.
10. The complainants had also claimed insurance amount under the scheme; but the complainants have not specified the actual amount due under the so called insurance scheme. It is to be noted that the complainants have not produced any document evidencing the introduction of any such insurance scheme. On the other hand, Ext.B3 and B4 circulars evidencing the aforesaid Liability Waiver Scheme would only show that the subscribers of the chitties or their legal heirs will only get the benefit of waiver of liability to pay the future subscriptions towards the chitties. So, the claim made by the complainants for insurance amount can be treated as untenable and unsustainable. But the Forum below without going through the scheme introduced by B3 and B4 circulars ordered payment of insurance amount to the consumers. The aforesaid order passed by the Forum below directing the opposite party/KSFE Ltd to give the insurance amount to the complainants is legally unsustainable. Hence the same is quashed.
11. The Forum below has also awarded cost of Rs.2000/- to the complainants. Considering the facts and circumstances of the case the cot ordered by the Forum below can be treated as reasonable. It is also to be noted that the Forum below has not awarded any amount by way of compensation for the deficiency of service and unfair trade practice on the part of the appellants/opposite parties. So, the cost of Rs.2000/- awarded by the Forum below is upheld.
In the result the appeal is allowed partly to the as indicated above. Thereby, the impugned order directing the opposite party/KSFE to give the insurance amount to the complainants is deleted. In all other respects, the impugned order dated:29/8/2008 passed by the Forum below is confirmed. As far as the present appeal is concerned, parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K.ABDULLA SONA: MEMBER
VL.
