This complaint coming up before us for hearing on 04-05-12 in the presence of Sri K.S.Chandramouleswara Rao, advocate for  complainant and of Sri Lanka Vijaya Kumar, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to direct the opposite party to pay sum of Rs.53,400/- (comprising of Rs.25,000/-and Rs.8,500/- with held by opposite party, Rs.9,900/- towards the interest on the prize amount of Rs.1,50,000/- from             10-04-11 to 22-08-11 and for special damages of Rs.10,000/-); for subsequent interest @18% p.a., from the date of petition till realization and for costs.

1. The averments of the complaint in brief are as follows:

Complainant is a chit holder of opposite party for the chit value of Rs.2,50,000/- for a period of 50 months at monthly subscription of Rs.5,000/- commencing from October, 2010. On 10-04-11 complainant became highest bidder in the chit auction agreed to forego a sum of Rs.1,00,000/- and accordingly she was declared as prized chit holder.   Immediately, complainant furnished four sureties/employees of an aided college.   The opposite party started delayed tactics without paying the prize amount to the complainant and put her to financial difficulties.   Ultimately, opposite party issued cheque for Rs.1,16,500/- dated 22-08-11 in favour of complainant, having taken deposit of Rs.25,000/- and Rs.8,500/- towards two monthly installments unilaterally and illegally.    The said deposit of Rs.25,000/- and Rs.8,500/- towards two monthly installments, though there are no such arrears by the date of the said cheque are nothing but high handed and illegal and not at all called for and therefore opposite party is bound to pay the said amount immediately.    On account of the delayed tactics of opposite party complainant was required to meet her financial need by raising a private loan on higher interest and bound to pay interest over the said amount for a period of four months from 10-04-2011 to 22-08-11, in addition to pay the said amount of Rs.33,500/- to the complainant.   In those circumstances, complainant got issued legal notice dated 05-09-11 calling upon the opposite party to pay the above said Rs.33,500/- and interest at 18% p.a., over Rs.1,16,500/- plus Rs.33,500/- i.e., Rs.1,50,000/- from          10-04-11 to 22-8-11 and damages of Rs.10,000/-.  The opposite party received the said notice on 10-09-11 but kept quite.   Thus opposite party committed deficiency of service.  Hence the complaint.
 

3.   Opposite party filed its version and the brief averments thereof are follows : 

          Most of the allegations made in the complaint are not true and correct and the complainant is put to strict proof of the same and the complaint is not maintainable either on facts or at law.   It is true that the complainant subscribed a chit, the value of the said chit being Rs.2,50,000/- payable in 50 monthly installments @Rs.5,000/- p.m., commencing from October, 2010.   It is also true that the complainant became the successful bidder in the auction held on 10-04-11 agreeing to forego Rs.1,00,000/- out of Rs.2,50,000/-.    In order to draw the prize amount, the successful bidder has to furnish sureties to the satisfaction of the opposite party.  By the date of payment of prize amount, the complainant fell in arrears of two installments i.e., July and August, 2011 to a tune of Rs.7,700/-.    The complainant furnished sureties only in the month of August, 2011.   The opposite party officials verified their solvencies.  The complainant also gave a letter requesting the opposite party to invest Rs.25,000/- as a single investment, to deduct the arrears of installments and to pay the balance amount.   Accordingly the opposite party deducted the said amount.   Accordingly the opposite party paid a sum of Rs.1,16,500/- to the complainant by way of cheque dated 22-08-11.  The complainant having realized the said amount without any objection, paid the subsequent installments also and later developed an after thought somehow to cause inconvenience to the opposite party and as a part of her plan got issued the legal notice dated 05-09-11 with false allegations.    When questioned about the attitude of the complainant in issuing legal notice, the complainant having verified the records of opposite party assured opposite party that she will withdraw the said notice, having believed the complainant, opposite party did not issue reply notice.   Contra to her promise and assurance, the complainant got filed this complaint with all false and baseless allegations.   Hence the complaint may be dismissed with costs.      

4.      In support of their versions complainant and opposite party filed their respective affidavits.

5.     On behalf of complainant Exs.A-1 to A-3 are marked.  On behalf of opposite party Exs.B1 to B9 are marked.

6.   Now the points that arise for consideration are:

1. Whether there is any deficiency of service on the part of opposite party?
2. To what relief the complainant is entitled to?

7.   POINT No.1:-    The case of the complainant is that she joined as a chit holder of the opposite party for the chit value of Rs.2,50,000/- for a period of 50 monthly at a monthly subscription of Rs.5,000/- from October, 2010 onwards, that she became successful bidder on 10-04-11, that she immediately furnished sureties in order to draw the prize amount, that the opposite party issued cheque for Rs.1,16,500/- dated 22-08-11 after taking a deposit of Rs.25,000/- and deducting a sum of RS.8,500/- towards two monthly installments highhandedly and illegally and that thereby committed deficiency of service.

8.     The case of the opposite party is that the complainant fell in arrears of two installments i.e., July and August, 2011 by the date of payment of prize amount, that she has submitted sureties only in the month of August, 2011, that opposite party’s officials verified the solvencies and that the complainant also gave a letter requesting the opposite party to invest Rs.25,000/- as a single investment, to deduct the arrears of the installments and to pay the balance amount and  accordingly they paid Rs.1,16,500/- by way of cheque dated                  22-08-11 that there is no deficiency of service on the part of opposite party.

9.     It is not in dispute that the complainant has joined the chit of opposite party for the value of Rs.2,50,000/- and became highest bidder on 10-04-11 in the auction held and agreed to forego Rs.1,00,000/-.   The version of complainant is that she immediately furnished sureties to draw the prize amount, but the opposite party made delayed payment of Rs.1,16,500/- through a cheque dated                  22-8-11 after deducting deposit amount of Rs.25,000/- and Rs.8,500/- towards two monthly installments and thereby the opposite party made delayed payment and that therefore the opposite party is liable to pay interest for the period from 10-04-11 to 22-08-11.  The case of the opposite party is that the complainant submitted sureties only in the month of August, 2011 and in support of its version, opposite party submitted Ex.B-8 surety form, wherein the date of receipt of the surety is noted as 01-08-11.   Complainant has not mentioned the date of submission of sureties either in her complaint or in affidavit.   She has only submitted that she furnished sureties immediately after she became successful bidder of the chit. 

10.    The chit agreement was marked as Ex.B-1.  The clause 5 of Chapter VII of the agreement is as follows:

                “In case the prized subscriber or his nominee fails to furnish security and/or surety before the next succeeding auction date, the foreman shall deposit the amount in the
Approved Bank and inform the fact to the Prized Subscriber and the Registrar.”

11.   According to the said clause of the agreement when the prized subscriber failed to furnish surety before the next succeeding auction date, the foreman shall deposit the amount in approved bank and inform the fact to the prized subscriber and the Registrar.  The case of the opposite party as stated above is that the complainant has furnished surety only in the month of August, 2011.   Admittedly, the complainant became the highest bidder on 10-04-11.   Therefore,             the next date of auction of the succeeding month will be 10-05-11.   If the complainant failed to furnish sureties within the next date of succeeding auction, the opposite party has to deposit the auction amount in the approved Bank, but that was not done by the opposite party and it is not the case of the opposite party that they have deposited the said amount in the approved Bank and informed the complainant and Registrar.  Therefore the contention of the opposite party that complainant has furnished surety only in the month of August, 2011 cannot be accepted.   In support of the allegation of opposite party, that the complainant has furnished surety in August, 2011, the opposite party has also filed Ex.B-6 letter dated 16-06-11 wherein the complainant was requested to furnish the security.             But there is no acknowledgment for the said Ex.B-6 letter in order to prove that it was addressed to the complainant.  In the absence of any acknowledgment for Ex.B-6, it can be safely concluded that opposite party has created Ex.B-6 in support of its contention that complainant has furnished surety in August, 2011. In those circumstances, adverse inference may be drawn that the complainant has furnished the sureties within the prescribed time i.e., before the auction of the succeeding month. As per clause 11 in Chapter VII of Ex.B-1 agreement if the foreman fails to pay the prize amount to the prized subscriber or his nominee after furnishing sufficient security, they shall be eligible to realize the prize money from the foreman with interest @12% p.a., from the date of furnishing security.  As the opposite party has not deposited the prize amount in an approved bank as stated above, the complainant is eligible to realize prize money with interest @12% p.a., from the date of succeeding date of auction.    Therefore, the opposite party is liable to pay interest @12% p.a., to the delayed payment i.e., on the prize amount from 10-05-11 to              22-08-11 the date of cheque.   

12.   The next allegation of the complainant is that the opposite party illegally and high handedly deducted a sum of Rs.25,000/- towards deposit and Rs.8500/- towards two monthly installments.   The case of the opposite party is that by the date of payment of the prize amount the complainant fell in arrears of two installments i.e., July and August, 2011.   The details of subscription made by complainant is marked as Ex.B-2.  As seen from Ex.B-2 the complainant has paid Rs.7,700/- on 17-08-11 i.e., before the date of payment of the prize amount for 10^th and 11^th monthly installments.   Thus the complainant has paid the July and August installments amounts on 17-08-11 itself before the date of payment of prize amount and there are no arrears payable by the complainant.  Admittedly, the date of payment of prize amount is 22-08-11.   Therefore, according to Ex.B-2 there are no arrear amount payable by the complainant i.e., for July and August 2011 by the date of payment of the prize amount by the opposite party i.e., 22-08-11.  Even though there are no arrears payable by the complainant the opposite party has deducted an amount of Rs.8500/- from out of the prize amount and credited Rs.7,700/- towards two future monthly installments and Rs.800/- towards verification charges.   Therefore it can be safely concluded that even though there are no arrears payable by the complainant the opposite party has illegally deducted an amount of Rs.7,700/- towards future installments from out of the prize amount.   However the said amount of Rs.7,700/- was adjusted towards future installments by the opposite party  and Rs.800/- was credited towards verification charges. 

13.   An amount of Rs.25,000/- from out of the prize amount was deducted by the opposite party and Ex.B-5 policy was issued in favour of the husband of the complainant by Shriram Life Insurance Company Limited.   According to the opposite party as the complainant has given a letter dated 04-08-11 i.e., Ex.B-9 an amount of Rs.25,000/- from out of the prize amount was invested under Ex.B-5 in favour of the husband of the complainant.   The allegation of the complainant is that   the opposite party has illegally and high handedly deducted the said amount of Rs.25,000/- from out of the prize amount.   Whether the opposite party has illegally and highhandedly deducted Rs.25,000/- cannot be decided by this Forum since opposite party pressed into service Ex.B-9 consent letter and Ex.B-5 policy.   Ex.B-5 policy contains the signature of the husband of the complainant as proposer and insured.     As already stated above Ex.B-5 policy was issued in the name of the husband of the complainant viz.,                       D. Srinivasa Rao and the said policy was issued by Shriram Life Insurance Company Limited.   Both the insured and the insurer of Ex.B-5 are not parties to this complaint.    The complainant requested the opposite party to issue policy in the name of her husband in Ex.B-9 letter and accordingly Ex.B-5 was issued.  Since Ex.B-5 policy was issued in the name of husband of the complainant,  the amount of Rs.25,000/- deducted towards the policy from the prize amount, it cannot be refunded to the complainant.   Therefore, in view of the facts and circumstances of the case, as the opposite party has deducted an amount of Rs.7,700/- towards future installments of the complainant, we find deficiency of service on the part of opposite party.   Further as already stated above the opposite party is liable to pay interest at 12% p.a., to the complainant from 10-05-11 on the delayed payment of the prize amount.  As per the agreement Ex.B-1 the opposite party is eligible to deduct verification charges from out of the prize amount.   Accordingly, this point is answered.

14.  POINT No.2:-    In view of the foregoing discussion on point No.1,  the opposite party is liable to pay interest @12% p.a., on Rs.1,49,200/- from 10-05-11 till 05-08-11 (the date of issuance of policy under Ex.B-5) and thereafter the opposite party is liable to pay interest @12% p.a., on Rs.1,24,200/- from 06-08-11 till 22-08-11 (the date of payment of the prize amount).    Further the opposite party is liable to pay compensation for the deficiency of service for deducting Rs.7,700/- from out of the prize amount even though there are no arrears payable by the complainant.   Complainant claimed compensation of Rs.10,000/- which is imaginary and too high.   In the circumstances of the case, awarding compensation of Rs.3000/- besides payment of the interest as stated above on the delayed payment of prize amount, would meet ends of justice. Accordingly this point is answered.

15.  POINT No.3:- In the result the complaint is allowed in part as indicated below:

1. The opposite party is hereby directed to pay interest @12% p.a., on Rs.1,49,200/- from 10-05-11 till 05-08-11 (the date of issuance of policy under Ex.B-5). Thereafter the opposite party is further directed to pay interest @12% p.a., on Rs.1,24,200/- from 06-08-11 till 22-08-11 (the date of payment of the prize amount) to the complainant.
2. The opposite party is further directed to pay Rs.3,000/- (Rupees three thousand only) to the complainant towards compensation.      
3. The opposite party is also directed to pay Rs.1,000/- (Rupees one thousand only) to the complainant towards costs.

The above order shall be complied within a period of six weeks from the date of receipt of the order failing which the amounts awarded in item 1 and 2 shall also carry subsequent interest @9% p.a., till the date of payment.  

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 9^th day of May, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For  opposite party:                                              

                                       PRESIDENT