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. 319/2006 Filed on 02.12.2006

Dated : 30.05.2009

Complainant:

Chacko Eapen, Angadipattu House, Vennikulam – P.O.,

Thiruvalla – 689 544.

(By Advocate Alex Varughese)

Opposite party:

Secretary[FHCC], Sree Uthradom Thirunal Hospital,

Pattom Palace, Trivandrum – 4.

(By Advocate Narayan. R)

This O.P having been heard on 21.04.2009, the Forum on 30.05.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The complaint is one regarding allegation of deficiency of service and unfair trade practice on the part of the opposite party. The case of the complainant in gist is that he had deposited Rs. 2,00,000/- on 01/02/1998 and another Rs. 2 lakhs on 01.04.1999 totalling to Rs. 4 lakhs for a period of ten years each with the opposite party. The opposite party had promised monthly interest at Rs. 3500/- for the first deposit and Rs. 3,000/- for the second deposit totalling to Rs. 6500/-. The opposite party has used the word 'rent' for the interest due. Later the opposite party unilaterally reduced the rate of interest to Rs. 2150/- each per deposit, totalling to Rs. 4,300/-. Since September 2005, the complainant has also not been given the interest, inspite of repeated notices. The complainant has only this interest income and none other. The time period of the deposit lapses on 01.02.2008 and 01.04.2009 respectively. The complainant is entitled to get the rent arrears of 14 months totalling to Rs. 60,200/-. The complainant is also entitled to get back the deposit amount of Rs. 4 lakhs and also future rent at the rate of Rs. 4300/- per month, compensation of Rs. 8,000/- and costs of Rs. 5,000/- from the opposite party.

Opposite party filed written version contending in brief as follows: The present consumer complaint is not maintainable either on law or on facts and is liable to be dismissed. There is no merits in the complaint and it has been filed solely on an experimental basis just to harass and vex this opposite party. All averments in the complaint, save to the extent they are specifically admitted are denied. The subject matter of the complaint is not amenable to the jurisdiction of the Hon'ble Forum. The complainant is not a consumer per se and the matter relates to arrears of rent. No rent is due from the opposite party. The rent is being paid in time to the complainant. The complainant may be put to strict proof as the allegation of arrears of rent, if any. The refund of amount paid as fees is also not a subject matter of dispute before this Hon'ble Forum. Further payment of the same would arise only in 2008 February and in 2009 April and the complainant cannot claim the same in 2006 itself. No amount is due to the complainant, the complainant has no cause of action nor any right to claim the amount. Hence prayed that the complaint be dismissed with costs to the opposite party.

Evidence in this case consists of Exts. P1 to P7 on the side of complainant and deposition of PW1, the complainant himself. There is no documentary evidence on the part of the opposite party. The authorized signatory of the opposite party had been examined as DW1.

At the outset itself the opposite party had challenged the maintainability of the complaint before this Forum on grounds of jurisdiction vide order dated 14.03.2008, this Forum directed that, the issue of maintainability would be decided later, at the stage of final hearing.

Issues that would arise for consideration are:-

1. Whether the complaint is maintainable in this Forum?

2. Whether there is unfair trade practice and deficiency in service from the side of opposite party?

3. Reliefs and costs.

In this case the complainant has produced 7 documents. These documents were marked as Exts. P1 to P7. Ext. P1 is the copy of the investment certificate (Hitech membership certificate) dated 01.02.1998. Ext. P2 is the copy of investment certificate (Executive-A membership certificate) dated 01.04.1999. Ext. P3 is the copy of advertisement inviting investment. Ext. P4 is the copy of brochure regarding investment. Ext. P5 is copy of letter issued by the opposite party to the complainant with regard to the arrears of rent. Ext. P6 is the copy of letter issued by the opposite party to the complainant to inform that they decided to increase the rent to Rs. 2,150/- from March 2003. Ext. P7 is the copy of membership form filled and terms and conditions.

Point (i) :- The main contention of the opposite party in this case is that the complainant is not a consumer and the matter relates to arrears of rent. In this case the complainant has taken 2 memberships from the opposite party. One is High Tech membership dated 01.02.1998(Ext. P1) and another is Executive A membership dated 01.04.1999 (Ext. P2). The membership fee is Rs. 2 lakhs per each membership. The benefit of this scheme is that to get a monthly return of Rs. 3,500/- for each investment. The opposite party also agreed to return the investment amount after ten years. As per the terms and conditions(Ext.P7) the opposite party offered free medical treatment facility worth Rs. 42,000/- per year with the option to convert the free medical facility in cash and receive it monthly if the facility is not used. In this case as per the terms and conditions of the scheme the complainant is entitled to get Rs. 6,500/- per month as the benefit of this investment scheme. Opposite party termed the monthly return as rent. Hence they claimed that this Forum has no jurisdiction to decide the case. In this case the complainant invested Rs. 4 lakhs with the opposite party (Exts. P1 and P2). The investment is money and then how can the benefit arising out of money be termed as rent. In normal parlance the benefit out of investment of money is interest or profit. This is an investment scheme. In this case the aim of the opposite party is to collect funds from the members of the club and make profit therefrom. The aim of the investors is to get interest from their investment. The opposite party argued that the monthly returns of the investment is rent and the documents produced by the complainant itself shows it. It is true that the word used by the opposite party is rent, but even if the opposite party used the term rent, but actually there is no landlord-tenant relationship between the opposite party and the complainant as per Buildings and Rent Control Act. According to the opposite party to get arrears of rent the Rent Control Court has the jurisdiction to entertain the case. Hence it is clear that the word 'rent' is used to exploit the investors and the aim of the opposite party is to evade from their liabilities. The act of the opposite party amounts to unfair trade practice. Hence that is not a ground for maintainability of this complaint before this Forum. Anyhow the opposite party has used the word rent instead of interest, actually the benefit he gets is interest. And also the opposite party stated that if the complaint is maintainable on that ground, the complaint is for settling the account, then the complaint is not maintainable. But this Forum finds that the settling of account is for the non-payment of monthly returns. Hence the complaint is maintainable on that ground. The opposite party also contended that the complaint is premature. That ground is also not sustainable. At the time of cross examination DW1 stated that “കാലാവധിക്കു മുന്പായി ഈ case കൊടുക്കാനുളള കാര്യം എന്ത് (Q) Arrears ഉളളതു കൊണ്ടായിരിക്കാം (A) Agree ചെയ്ത monthly amount unilateral ആയി കുറയ്ക്കുകയും ചെയ്തതും ഒരു കാരണമല്ലേ (Q) ആയിരിക്കാം (A). The opposite party violated the terms and conditions of the contract, hence the complainant has the right and liberty to claim refund of the amount before maturity period. In view of the above, we find complaint is maintainable under the Consumer Protection Act.

Points (ii) & (iii):- In this case there is no dispute regarding the deposit. The opposite party agreed that the complainant had deposited Rs. 4 lakhs as membership fee. No dispute regarding the maturity period of ten years and the benefits of the scheme. As per the terms and conditions of the membership scheme (Ext. P7) the complainant has to get Rs. 6500/- per month. But in violation of the terms and conditions the opposite party did not pay the monthly returns after 01.10.2005. And more over the opposite party reduced the monthly returns of Rs. 3500/- for each investment of Rs. 2 lakhs to Rs. 2150/- unilaterally. In these circumstances the complainant decided to withdraw the investment.

The opposite party is SUT Hospital, Thiruvananthapuram. The opposite party is a well reputed medical institution and still now well functioning. From such a reputed institution nobody can expect such a type of unfair trade practice to exploit the subscribers after receiving their hard earned money. The subscribers like the complainant attracted and lured by the brochure, advertisement (Ext. P3 and P4) and terms and conditions of the membership had taken the membership with huge amount. The consumers like the complainant have deposited the amount with bonafide belief that the opposite party would act and deal fairly and honestly and hold their well reputed fame. But in this case the opposite party violated the terms and conditions of the agreement. They failed to pay the monthly return after 05.10.2005 and they unilaterally reduced the monthly returns from Rs. 3,500/- to Rs. 2,150/-. The opposite party has no evidence to show that they paid the interest correctly. But the complainant is even ready to accept that reduced rate of interest. But the opposite party failed to perform their part in accordance with their agreement. Before this Forum they contended that they used the term rent for the monthly returns and hence this complaint is not maintainable here. In this case the word rent is used in the sense monthly returns of the investment. This Forum is of the opinion that the opposite party used this word rent also to exploit the subscribers. The complainant has not given any building or goods to the opposite party for rent. Rent means the amount of money that one regularly pay to somebody so that one can use something that they own such as house, some land, a machine etc. The owner who owns such house, land or machine gets rent as a factor reward. In this case complainant did not rent (out)/let (out) any building, land or machinery. In this case, complainant participate in an investment scheme offered by the opposite party, whereby the opposite party received/borrowed some amount from the complainant. The extra money that one pay back when one borrow money or that one receive when one invest money is nothing but interest. One gets interest as a factor reward of investment/capital. Here the word rent is not the rent as per BRC Act. Here there is no landlord-tenant relationship between the opposite party and the complainant. In this case as per the terms and conditions of the contract the investment amount has to be refunded only after 10 years. But the opposite party itself violated the contract. Hence the complainant has the right to withdraw the amount before the period of maturity. At the time of depositing the amount the complainant had full faith with the dealings of the opposite party. But the opposite party exploited the complainant by unfair trade practice and deficiency in service. From the above discussions, we are of the view that, the luring advertisement and promises made by the opposite party has forced the complainant to invest his hard earned money with the opposite party. The opposite party has used the term 'rent' instead of 'interest' and the opposite party is liable to refund the amount due to the complainant under that head. The act of the opposite party in not paying the monthly returns promptly and reducing the interest amount unilaterally definitely amount to unfair trade practice. Here the use of the nomenclature 'rent' instead of 'interest' itself is an act to mislead the public. Hence the complaint is allowed.

In the result, the opposite party is directed to pay the monthly return from 01.10.2005 till the date of refund of the membership fee. And also the opposite party is directed to refund the club membership fee matured on 01.02.2008 and 01.04.2009 within one month from the date of receipt of this order otherwise 18% annual interest also shall be paid till the date of realization of the amount. This Forum also finds that the complainant is entitled to get compensation for his mental agony and financial loss due to the deficient act of the opposite party. Hence the opposite party is directed to pay Rs. 5,000/- as compensation and as cost Rs. 2,000/-.

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 day of 30^th May 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

C.C. No. 319/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Chacko Eapen

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of High-Tech Membership Certificate issued by

the opposite party to the complainant dated 01.12.1998.

P2 - Copy of Executive A Membership Certificate issued by

the opposite party to the complainant dated 01.04.1999.

P3 - Copy of advertisement inviting investments.

P4 - Copy of brochure regarding investment.

P5 - Copy of letter dated 03.07.2002 issued by the opposite

party to the complainant.

P6 - Copy of letter dated 22.10.2002 issued by the opposite

party to the complainant.

P7 - Copy of filled membership form and its terms and

conditions.

P8 - Copy of letter issued by complainant to opposite party

dated 22.09.2006.

III OPPOSITE PARTY'S WITNESS :

DW1 - K. Haridas

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT