(Passed on 08/12/2016)

PER SHRI.B.A.SHAIKH, HON’BLE JUDICIAL MEMBER

1.       This appeal is filed by the original opposite party (for short O.P.) against the order dated 21/02/2005 passed in consumer complaint bearing No.37/2004 by the District Forum, Nagpur, by which the complaint has been partly allowed and direction has been given to the O.P. to refund  Rs. 10,000/- with interest at the rate of 9% p.a. from 12/09/1994 to the complainant  and also to pay him cost of Rs. 500/-.

2.       An application  is also filed  along with appeal  for condonation of delay from  receipt  of copy of the order on 20/05/2005 till 11/08/2005. The appeal ought  to have been filed  on or before  20/06/2005. Thus there is  delay of 51 days  in filing this  appeal. The delay is explained as occurred due to administrative ground.  However, we find that the delay is not properly explained. However, we proceed to decide the appeal  on merits since we have already heard appellant’s advocate on merits of the case.

3.       Admittedly  an  amount of Rs. 10,000/- was paid  by the  original  complainant /respondent herein  to the O.P./appellant  by way of cheque  on 12/09/1994 for purchasing  unit  certificates. The said units were not given  to him  despite of making  repeated request. Therefore, the  complainant sent  letter dated 08/08/2000 to  the Head Office of the O.P. making the said grievance.  Thereafter also the unit certificates  were not given to him.  However, lastly  the O.P. wrote the letter on 02/02/2003 informing the complainant that  the cheque of Rs. 10000/- has been  tendered  by way of   refund to the complainant’s agent namely  Mr. Jayant Chitale, which was drawn on Corporation Bank and that record  of the O.P. shows that  the amount  of that cheque  is not  outstanding  for payment.  However, the complainant  alleged that  he had not  authorised   Mr. Jayant Chitale to receive that amount on his behalf. Therefore,  alleging  deficiency in service on the  part of the O.P. the consumer complaint No. 37/2004 was filed  before the Forum by the complainant  against the O.P. requesting that  direction be given to the O.P. to refund  Rs. 10,000/- with interest at the rate of 28% p.a. from 12/09/1994 and also to pay him  cost of Rs. 3000/- and compensation of Rs. 10,000/- for physical and mental  harassment.

4.       Notice of the said complaint was served by the Forum to the O.P. The O.P. received that notice. But failed to appear before  the Forum. The O.P.  thus did not contest  this complaint  by filing  reply. Therefore, the Forum proceeded exparte against the O.P.

5.       The Forum then  on considering evidence affidavit and  documents filed  on record by the complainant, passed the  impugned order and thereby partly allowed the complaint.  The Forum directed the O.P. to refund Rs. 10,000/- with interest at the rate of 9% p.a. and to pay cost of Rs. 500/- to the complainant.  The Forum held while giving the said  direction that  handing over the cheque of Rs. 10,000/- by the O.P. to Mr. Jayant Chitale constitutes  deficiency in service  on  the part of the O.P.  There is no evidence to show that  the said cheque was enchased and  dispute of encashment  of cheque  is in between  the O.P. and Corporation Bank and  complainant  has no concern   with the same.  Thus, The Forum concluded that  it was  the responsibility  of the O.P.  either to purchase the units for Rs. 10,000/-  or refund that amount and  as it is not done so,  it constitutes  deficiency  in service  on the part of the O.P. and accordingly  the aforesaid direction  has been given .

6.       Notice of this appeal was initially issued to the respondent.  It was  returned  with postal endorsement  as “Refused”. However,  on perusal of the envelop of that notice  it was found that  the full name of the respondent was not  written  on  the envelop. Therefore, second  notice was issued  by giving full name  of the  respondent. It was returned  with postal endorsement  as “Left”. With permission of this Commission , notice has been published  in local newspaper  against the respondent  of which  one issue  is produced on record. We are  therefore satisfied that notice has been duly served to the respondent. As the respondent failed to appear   before this Commission, this appeal  is proceeded exparte against him.

7.       The learned advocate  Mr. V.N. Gadkari appearing for the appellant  submitted that  the cheque for Rs. 10,000/- was duly delivered  to Mr. Jayant Chitale by cheque  and it was account payee  cheque  and it was issued  in the name of original complainant.  and therefore it can be presumed that  the respondent  deposited  amount of that cheque in his  bank account. He has also  submitted  that in the record of original  O.P./appellant  no amount of that cheque  is  found as outstanding  for payment.  He therefore,  submitted that  the Forum has not considered  this  aspect  properly  and erred in partly allowing  the complaint.  He also argued  that the complainant is not  a consumer  of the appellant  and  appellant has not provided  any service to him  and on this count  also he requested that  the impugned  order may be set aside.

8.       So far as relationship of the service provider and  consumer  is concerned  in between  both the parties, we find that  the O.P./appellant herein  does not dispute that  the appellant in the name  of  “Unit Trust of India”  accepts various  amounts from  the prospective  investors  and issues  units certificate to implement various  scheme.  In the present case also the O.P./appellant had undertaken  scheme called as  “Children  Gift Growth Fund,86” in the year 1994. Launching  the said scheme  and its implementation undertaken by the O.P./appellant herein  by accepting  various amounts  from the investors, constitutes  the relationship  of service  provider and consumer in between  the appellant  and its customers. We find no substance  in the submission  of the learned  advocate of the appellant about  non maintainability of the  complaint as  complainant had  admitted  paid Rs. 10,000/- to appellant  for purchasing unit  under aforesaid  scheme.

9.       We also find that  the O.P./appellant herein remained absent  before the  Forum after service of notice  and  it is thus clear that  the O.P. did not raise  any defence  before  the Forum and hence, complaint went   unchallenged.  The amount  of Rs. 10,000/- paid by the appellant/O.P. was not refunded to him.  Even for the sake  of arguments if it is accepted that the O.P./appellant  had paid Rs.10,000/- by handing over the cheque of that amount  to  Mr. Jayant Chitale, then also there  no evidence to show that  the complainant  had authorized   Mr. Jayant Chitale to get refund of amount on his behalf and the said cheque  was deposited in the bank account of the complainant  for encashment.  Therefore on this ground also  we find that   the defence of the O.P. that   Rs. 10,000/- by way of cheque  were  refunded to the  complainant cannot be accepted.

10.     We are of thus clear view that as no amount is refunded to the complainant it constitutes deficiency in service on the part of the O.P. and Forum has rightly directed the O.P. to refund of Rs.10,000/- with the   aforesaid rate of interest to the complainant.  Hence, we find that there is no merit in the appeal and it deserves to be dismissed.

ORDER

i.        The appeal is dismissed.

ii.       No order as to cost in appeal.

iii.      Copy of order be furnished to both the parties, free of cost.