KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.18/2017

JUDGEMENT DATED: 11.01.2023

(Against the Order in C.C.No.53/2014 of CDRF, Malappuram)

PRESENT:

APPELLANT:

(by Adv. J. Nadarajan)

Vs.

RESPONDENT:

(by Advs. J. Swarnan & N.V. Paulose)

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite party in C.C.No.53/2014before the Consumer Disputes Redressal Forum, Malappuram (in short the District Forum) has filed the appeal against the order passed by the District Forum dated 31.08.2016. By that order the District Forum directed the opposite party to pay Rs.32,000/-(Rupees Thirty Two Thousand) the value of the gold ornaments pledged by the husband of the complainant and Rs.1,00,000/-(Rupees One Lakh) as compensation for the mental agony and deficiency in service of the opposite party together with and Rs.10,000/-(Rupees Ten Thousand) as costs of proceedings.

          2.       The averments contained in the complaint in brief is as follows: On 14.11.2012, 10.5gms of gold ornaments had been pledged with the opposite party in the name of the husband of complainant and availed Rs.16,000/- as loan. The period of that loan transaction expired on 14.02.2013 and on 22.04.2013 the complainant reached the office of the opposite party for taking back the gold ornaments discharging the liability and her request was rejected by the opposite party stating that the loan was availed by the husband of complainant and the ornaments were pledged in his name and therefore without his signature it cannot be taken back. Thus the complainant paid interest and the opposite party renewed the loan. The husband of complainant was abroad and thus on 16.08.2013 also complainant paid the interest and renewed the loan. On payment of interest for renewing the loan on 16.08.2013 the validity of the loan was extended to 16.11.2013. Later when the complainant reached the bank for renewing the loan paying the interest she was informed that the ornaments were sold in auction. The auction was conducted by the opposite party without informing either complainant or her husband Suresh Babu. Thus the opposite party deceived the complainant and her husband and that shows their deficiency of service. Then complainant sent a lawyer notice to opposite party to which a reply was sent with false allegations. The sale of gold ornaments behind the complainant and her husband caused heavy loss to complainant and mental agony. Therefore the opposite parties may be· directed to pay Rs.32,000/- as value of gold ornaments and Rs.1,00,000/- as compensation for the mental agony.

          3.       The opposite party filed version raising the following contentions.  The opposite party denied all the allegations of the complainant.  The opposite party asserted that Suresh Babu, the husband of complainant pledged the gold ornaments weighing 10.5gms with them and availed a loan of Rs.16,000/- and the period of the loan was three months. Till Suresh Babu left for foreign country on 22.04.2013 he never tried to take back the gold ornaments paying the dues or to renew the loan. Thus on 14.02.2013 notice was sent to Suresh Babu requesting him to take back the gold ornaments paying the dues. Then on 22.04.2013 Rs.930/- was paid and Rs.737/- was paid on 16.08.2013 towards the interest of the loan transaction. The complainant was directly intimated from the bank that for taking back the pledged ornaments the person who pledged the same should come or any other person authorized by the loanee should come. These facts were also revealed to the complainant when she visited the bank for paying the interest. On 27.04.2013 a notice was sent to Suresh Babu informing him that if he was not ready to take back the gold ornaments paying the dues within 10 days ornaments would be sold in auction. On 04.05.2013 that notice was received by Suresh Babu.  On 21.05.2013 also auction notice was sent to Suresh Babu.  After that on 16-08-2013 complainant paid Rs.737/- towards the interest and on that occasion the complainant was informed about the steps taken by the bank for conducting auction.  Again on 22.10.2013 Suresh Babu was informed by notice that the: ornaments would be auctioned on 16.11.2013. The notice of auction had been published in Chandrika Daily on 05.11.2013 and exhibited in the Ration shop of complainant and her husband and in the Notice Board of the Bank. On 16.11.2013 the ornaments were auctioned. The claim of complainant that on 22.04.2013 she had reached opposite party bank with full amount to take back the gold ornaments is false. If she had been ready to pay the entire amount the opposite party would have received the principal amount as Rs.1/and insurance amount. In such cases the gold ornaments would not be sold in auction. All the legal formalities had been complied with the opposite party in conducting auction. Therefore there was no deficiency in service on the part of the bank and they have never deceived the complainant or her husband as alleged. Though complainant had filed a complaint before Assistant Registrar (General), Co-operative Department, Perintalmanna and after conducting proper enquiry finding that there was no merit in the complaint that was dismissed by the Assistant Registrar on 10-02-2014. Thus complaint is to be dismissed.

          4.       Complainant filed affidavit and Exhibits A1 to A13 were marked on the side of the complainant.  On the side of the opposite party DW1 was examined and Exhibits B1 to B8 were marked.

          5.       After considering the evidence adduced by the parties and hearing both sides the District Forum passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite party hadfiled the present appeal.

          6.       Heard both sides.  Perused the records.

          7.       Parties are referred to according to their status/rank mentioned in the complaint.

          8.       The counsel for the appellant submitted that the District Forum ought to have dismissed the complaint finding that the complainant has no locus standi to file the complaint.  He pointed out that the complainant has not availed any gold loan from the opposite party and it was the husband of the complainant who availed the loan from the opposite party, after pledging the gold ornaments.  Admittedly the husband of the complainant was abroad at the time of filing the complaint.  Moreover, on two occasions, the opposite party received interest of the loan from the complainant.  It is also to be noted that it is alleged by the opposite party that they had informed the complainant regarding the auction of the gold ornaments.  The opposite party had no case that the complainant and her husband are living separately or they are not in good terms.  It is to be noted that the complainant has not disputed the fact that the gold ornaments are not pledged by her husband and she has not raised any independent title to the pledged gold ornaments denying the rights of her husband.  Considering all these facts the District Forum found that under these circumstances it can be presumed that the complainant is representing her husband Suresh Babu who availed the gold loan, for saving the gold ornaments pledged by him who was in abroad and the complainant can maintain the complaint perfectly and proceed the matter for and on behalf of her husband.  We consider that there is no reason/ground to interfere with the said finding of the District Forum.

          9.       There is no dispute to the fact that on 14.11.2012 Suresh Babu, the husband of the complainant pledged the gold ornaments of 10.5grams with the opposite party and availed loan of Rs.16,000/-(Rupees Sixteen Thousand) as per Exhibit A9 receipt.  The period of the loan was three months, till 14.02.2013.  According to the complainant on 22.04.2013, since her husband was not in station she went to the office of the opposite party to take back the gold ornaments by paying the amounts due to the opposite party but they did not allow her to take back the gold ornaments stating that for that purpose the presence of her husband is necessary or she has to produce authorization letter from him.  So she paid Rs.930/-(Rupees Nine Hundred and Thirty) towards the interest of the loan transaction and renewed the loan.  Exhibit A10 is the receipt issued by the opposite party regarding the receipt of the amount of interest from the complainant.  On 16.08.2013 the complainant paid Rs.737/-(Rupees Seven Hundred and Thirty Seven) towards the interest and according to her the loan transaction was renewed.  Exhibit A11 is the receipt issued by the opposite party regarding the receipt of Rs.737/-(Rupees Seven Hundred and Thirty Seven) from the complainant towards the loan transaction.  According to the complainant later when she went to the office of the opposite party, for renewing the loan and for payment of interest she was informed that the gold ornaments were sold in auction.  It is stated by the complainant that the auction was conducted without informing her or her husband.  It is admitted by the opposite party that they had issued Exhibit A10 and A11 receipts regarding the payment of interest towards loan transaction but they denied the statement of the complainant that the loan was renewed.  According to the opposite party the loan was not renewed and for that purpose the presence of the person who pledged the gold ornaments and availed the loan or the person authorized by him is necessary.   It is contended by the opposite party that Suresh Babu went abroad on 22.04.2013 and he never tried to take back the gold ornaments or to renew the loan transaction.  It is stated by the opposite party that they had issued notices to Suresh Babu intimating him that the gold ornaments would be auctioned if those were not taken back by remitting the due amount, but he did not turn up.  After complying with all the legal formalities, the gold ornaments were auctioned on 16.11.2013.

          10.     It is the case of the opposite party that they had issued notice to Suresh Babu on 14.02.2013.  But it is admitted by the opposite party that on 22.04.2013 they received Rs.930/-(Rupees Nine Hundred and Thirty) from the complainant towards the interest, as evidenced by Exhibit A10.  In the version filed by the opposite party it is admitted by them that on 22.04.2013 Suresh Babu had left India.  But there is no averment that on any subsequent date before the auction, Suresh Babu came to the native place.  Exhibit A13 is the letter dated 19.03.2015 from the Embassy of India, Doha (Qatar) to the Director, Department of Search and Follow-up from which it can be seen that on 22.04.2013 Suresh Babu came to Doha as an employee and he has reported to the Embassy that he is compelled to seek admission into the Department of Search and Follow-up due to non-availability of Exit Permit.  As found by the District Forum the document reveals that Suresh Babu reached Doha on 22.04.2013 on valid Visa and till 2015 he was  in Doha and since he had no Exit Permit he reported for Indian Embassy.  It indicates that from 22.04.2013 till 19.03.2015 Suresh Babu was not in India and he was in Qatar.  But according to the opposite party they had issued notices to Suresh Babu on 27.04.2013, 21.05.2013 and 22.10.2013.  According to the opposite party those notices were issued to Suresh Babu informing him that the gold ornaments would be auctioned if those were not taken back by paying the due amount.  But none of the copies of the said notices were produced by the opposite party and during cross examination,  DW1 has not given any reasonable explanation for the non-production of the copies of the notices alleged to have send by them to the opposite party.  According to the opposite party, the notice send by them to Suresh Babu on 27.04.2013 was received by him and Exhibit B2 is the acknowledgment card.  Exhibit B2 contains the initial/abbreviation of signature in the space provided for the signature of the addressee.  The genuineness of this acknowledgment card was challenged by the complainant during cross examination of DW1.  It is the case of the opposite party that on 21.05.2013 and 22.10.2013 they had send notices to Suresh Babu.  But Exhibit P10 receipt shows that on 16.08.2013 they received Rs.737/-(Rupees Seven Hundred and Thirty Seven) from the complainant as interest for the loan transaction.  The opposite party had not produced the copies of the notices alleged to have sent by them to Suresh Babu on 21.05.2013 and on 22.10.2013.  They have not produced the postal receipt to show that they had sent notices to Suresh Babu by registered post.  They had also not produced any acknowledgment card to show that the notices were received by Suresh Babu or by someone on behalf of him.  No explanation was given by the opposite party for not producing any document to show that they had send notices to Suresh Babu on 21.05.2013 and on 22.10.2013 regarding the auction.  As found by the District Forum since the opposite party has not produced any document to show that they had send notices to Suresh Babu on 21.05.2013 and on 22.10.2013 and no explanation is given by them for not producing the said documents, it cannot be concluded that the opposite party had send notices to Suresh Babu, the loanee intimating the auction of the gold ornaments.  Exhibit A13 shows that Suresh Babu left India in April 2013 and he never returned to India till 19.03.2015.  In these circumstances it can be seen that the claim of the opposite party that they had repeatedly sent notices to Suresh Babu intimating the auction of the gold ornaments and those were received by him are not sustainable.  From the averments in the complaint and in the version it can be seen that the complainant had approached the opposite party many times atleast for paying the interest of the loan amount and still the opposite party did not seek any acknowledgement from the complainant as to the notice of auction.  A bald statement in the version that the complainant had been intimated directly about the auction when she came to the office of the opposite party for paying interest is not sufficient to establish the claim of the opposite party.  But still no acknowledgement was obtained from the complainant by the opposite party.  The opposite party did not produce any convincing document to prove that their Board of Directors had taken decision to put the gold ornaments in auction on such and such dates.  Further, the opposite party had not produced any document to show that the auction of the gold ornaments was actually conducted on the date mentioned in the version.  It is to be noted that the opposite party has not stated about the actual amount obtained by the sale of the gold ornaments.  As righty found by the District Forum from all the above mentioned circumstances it is clear that the officials of the opposite party have made a foul play in the matter and they suppressed all material facts to make it appear that the ornaments pledged by the husband of the complainant were sold away in auction.  So the entire steps taken by the opposite party are shrouded in mystery.  That shows deficiency in service on their part.  The District Forum found that the opposite party is liable to pay the value of gold ornaments and compensation to the complainant for and on behalf of her husband.  We consider that there is no reason/ground to interfere with the said finding of the District Forum.

          11.     The District Forum found that the complainant calculated the value of the gold ornaments at Rs.32,000/-(Rupees Thirty Two Thousand) and that is not disputed by the opposite party in the version.  So the District Forum directed the opposite party to pay Rs.32,000/-(Rupees Thirty Two Thousand) as the value of the gold ornaments pledged by the husband of the complainant.  There is nothing to interfere with the said order passed by the District Forum.  The District Forum directed the opposite party to pay Rs.1,00,000/-(Rupees One Lakh) as compensation and Rs.10,000/-(Rupees Ten Thousand) as costs to the complainant.  The counsel for the appellant submitted that the compensation and costs ordered by the District Forum are on the higher side and he prayed that those may be reduced.  The costs of Rs.10,000/-(Rupees Ten Thousand) ordered by the District Forum is just and reasonable and there is nothing to interfere with the said order passed by the District Forum.  However, considering the facts and circumstances of the case, we consider that the amount of Rs.1,00,000/-(Rupees One Lakh) ordered as compensation by the District Forum is on the higher side and it has to be reduced.  Rs.25,000/-(Rupees Twenty Five Thousand) as compensation will be just and reasonable and it will meet the ends of justice.  Hence the order passed by the District Forum is to be modified to that effect.

          In the result, the appeal is partly allowed and the order passed by the District Forum is modified by reducing the compensation ordered by the District Forum to be paid by the opposite party to the complainant to Rs.25,000/-(Rupees Twenty Five Thousand).  In all other aspects the order passed by the District Forum will remain/stand intact. 

          Parties are directed to suffer their respective costs.

          At the time of filing of the appeal the appellant has deposited Rs.25,000/-(Rupees Twenty Five Thousand).  Respondent/complainant is permitted to obtain release of the said amount, on filing proper application, to be adjusted/credited towards the amount due to her from the appellant/opposite party.

SL