BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 15^TH November 2010

PRESENT

                                                       SMT. ASHA SHETTY           :   PRESIDENT                

   SMT.LAVANYA M. RAI       :   MEMBER

   SRI. ARUN KUMAR.K         :   MEMBER

COMPLAINT NO.254/2010

(Admitted on 25.9.2010)

Gopal Achary,

So. Late Thammayya Achary,

Aged 70 years,

R.at   Darbe,

Vittal Mudnoor Village,

Bantwal Taluk.                                           …….. COMPLAINANT

(Advocate for Complainant: Sri. Bharathraj Hegde)

          VERSUS

Secretary,Authorised Officer,

Bhagyalaxmi Mahila

Vividoddesha Sahakari

Sangha, Madathadka, Vittal,

Bantwal Taluk.                                          ….. OPPOSITE PARTY  

(Opposite Party: Exparte)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, the Opposite Party is engaged in business of rendering financial services like accepting deposits, providing credit facilities and other financial transactions with a general public.  It is stated that, the Complainant had invested certain sum of money with the Opposite Party.  The particulars of the deposit are as under:

It is further submits that, after the maturity date, Complainant requested with the Opposite Party for return of the deposit amount. But Opposite Party failed to pay the amount and the secretary/authorized signatory of Opposite Party promised with the Complainant that, they will pay the amount within one week.  After several request by the Complainant, the Opposite Party had paid only Rs.15,000/- on 20.8.2007 and endorsed the same on the above receipt.  The Opposite Party agreed for the payment of remained amount with interest immediately.  But inspite of several request by the Complainant the Opposite Party failed to pay the remaining amount of Rs.5,000/- and interest on 20,000/- from 7.3.2005 to 20.8.2007.

The Complainant further submits that, without any option he issued legal notice on 24.10.2009 by R.P.A.D. by demanding the aforesaid amount.  But the Opposite Party was intentionally unclaimed the notice.  Again the Complainant herein on 14.11.2009 issued the legal notice by way of under certificate of Post by demanding the aforesaid amount.  But the Opposite Party failed to pay the amount which amounts to deficiency and hence, the above complaint  filed the under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to refund to the Complainant a sum of Rs.5,000/- and interest of 10% per annum on Rs.20,000/- from 7.3.2005 to 8.3.2006 and 10% interest on Rs.5,000/ from 8.3.2006 till payment and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party.  The acknowledgement placed on the file of this FORA marked as Court Document No.1.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer?

2. Whether the Complainant proves that Opposite Party committed deficiency in service?
3. If so, whether the Complainant is entitled for the reliefs claimed?
4. What order?

4.       In support of the complaint, the Complainant – Mr.Gopal Achary, (CW1) filed affidavit reiterating what has been stated in the complaint and Ex C1 to C4 are produced as listed in the annexure. The Opposite Party placed exparte.

We have heard and perused the pleadings, documents and evidence placed on record by the Complainant and answer the points are as follows:

                   Point No.(i) : Affirmative

Point No.(ii) to (iv): As per the final order.

REASONS

5.      POINT NO. (i):

In the instant case,  the Fixed Deposit Receipt produced by the Complainant i.e. Ex.C1 reveals that, the Complainant made investment with the Opposite Party i.e. Bhagyalaxmi Mahila Vividoddesha Sahakari Sangha, Madathadka, Vittal, Bantwal Taluk, as evidenced from the above Fixed Deposit Receipt produced before this Forum. 

The financial service is one of the services specifically mentioned in clause (o) of Section 2(1) of the Act.  It is settled preposition of law that, when the Company/Firm/Society transacting non-banking financial business accepts deposit from the persons for particular period, the person who has deposited the money with such Company/Firm/Society hires the service of that company/society.  We have therefore hold that, the service undertaken to be rendered by the Opposite Party society is a service within the purview of the Act.  Therefore, the Complainant is a consumer. Point no.(i) held in favour of the Complainant.

POINTS NO. (ii) to (iv):

As far as deficiency is concerned, the Complainant filed affidavit in order to substantiate his case and produced Ex.C1 i.e. the original fixed deposit receipt bearing F.D.R.No.117 for a sum of Rs.20,000/- issued by the Opposite Party.  The said fixed deposit receipt reveals that, the Complainant deposited Rs.20,000/- on 7.3.2005 and the date of maturity shown as 8.3.2006, the Opposite Party agreed to pay interest payable half yearly at the rate of 10% per annum to the Complainant.  The Opposite Party agreed to refund the amount on the date of maturity i.e. 8.3.2006 which has been already expired.  There is no evidence on record to show that the Opposite Party paid the entire amount as agreed by them till this date.  But Complainant sworn to the fact that, on 20.8.2007 a sum of Rs.15,000/- paid by the Opposite Party and the same has been endorsed on the back side of the original fixed deposit receipt (i.e. Ex.C1). From the above endorsement shows that, the Opposite Party paid only Rs.15,000/- out of Rs.20,000/- deposited by the Complainant with the Opposite Party society. 

However, we have noticed that, the Opposite Party despite of receiving version notice not bothered to appear before this Forum to controvert or contradict the evidence placed by the Complainant in this case.  The entire oral as well as documentary evidence placed on the file of this Forum is not rebutted by the Opposite Party.  The unrebutted evidence requires no further proof.

We have observed that, the Opposite Party despite of receiving Rs.20,000/- as deposit from the Complainant on 7.3.2005 not paid the entire amount along with interest agreed upon till this date amounts to deficiency of service.   

In view of the above discussions, we hold that, the Opposite Party i.e. Bhagyalaxmi Mahila Vividoddesha Sahakari Sangha inspite of receiving the Fixed Deposit amount from the Complainant not paid the said amount even after maturity till this date amounts to deficiency as stated supra.  Therefore, we direct the Opposite Party i.e. Bhagyalaxmi Mahila Vividoddesha Sahakari Sangha, Represented by its Secretary/Authorized Officer is here by directed to refund a sum of Rs.20,000/- (Rupees Twenty thousand only) towards the original fixed deposit amount along with interest at 10% p.a. from the date of deposit till the date of payment.  Out of the said amount Rs.15,000/-(Rupees Fifteen thousand only)   which has been already paid by the Opposite Party shall be deducted. 

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- (Rupee One thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  The Opposite Party i.e. Bhagyalaxmi Mahila Vividoddesha Sahakari Sangha, Represented by its Secretary/Authorized Officer is here by directed to refund a sum of Rs.20,000/- (Rupees Twenty thousand only) towards the original fixed deposit amount along with interest at 10% p.a. from the date of deposit till the date of payment.  Out of the said amount Rs.15,000/- (Rupees Fifteen thousand only) which has been already paid by the Opposite Party shall be deducted. And Rs.1,000/- (Rupee One thousand only) towards the litigation expenses.  Payment shall be made within 30 days from the date of this order.

The F.D.R., if any, deposited by the Complainant be returned fourth with by substituting the certified.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 15^th day of November 2010.)

    PRESIDENT                 MEMBER                   MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Gopal Achary – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 7.3.2005: Original Fixed Deposit Receipt NO.117.

Ex C2 –             : Unclaimed Postal Cover with postal receipt/

                            Acknowledgement.

Ex C3 – 24.10.2009: Office copy of the legal notice.

Ex C4 –                 :U.C.P. Endorsement

COURT DOCUMENT:

Doc.No.1: Unserved Postal Acknowledgment.

Witnesses examined on behalf of the Opposite Party:

-Nil-

Documents produced on behalf of the Opposite Party:   

-Nil-

Dated:15.11.2010                                    PRESIDENT