SRI. JACOB STEPHEN (PRESIDENT):<br /> <br /> <br /> Complainants of both cases are one Thulasi and the opposite parties of both cases are a financier represented by its proprietor. The main prayer in O.P.399/01 is for the release of an amount of Rs.5,700/- and its interest deposited by the complainant with the opposite party and the main prayer in O.P.163/02 is for the return of 2 grams of gold pledged by the complainant with opposite party. Separate versions and proof affidavits were filed. But it is seen that evidence for both cases taken together on the basis of the order dated 30.10.2003 in the order sheet of O.P.399/01 clubbing both cases together and hence this common judgment.<br /> <br /> <br /> 2. The complainant filed these complaints against the opposite parties for getting reliefs from this Forum. <br /> <br /> 3. The facts of the complainant in O.P.399/01 is that the complainant is a worker at Kodumon Plantation and the opposite party is the proprietor of Parvathi Financiers at Elamannoor. She opened an account No.1601/98 with opposite party for saving money for her daughter’s marriage. She had deposited Rs.50/- on 11.1.1998, Rs.150/- during 1998 February and Rs.5,500/- on 16.7.1998. Her daughter’s marriage engagement was on 12.8.2001 and the date of marriage was fixed to 12.9.2001. After the engagement, she approached opposite party for withdrawing the deposit for her daughter’s marriage. At that time, opposite party told her that there is no such deposit and sent her back. She arranged money by some other ways and conducted the marriage as fixed earlier. After the marriage, she approached opposite party with two mediators and demanded the deposit. At that time, opposite party denied the claim of the complainant at first but later he agreed to return the deposit with interest. But he had not returned the deposit as promised earlier. Opposite party’s action is deficiency of service and is violation of Money Lendor’s Act and Monopoly and Restrictive Trade Practices Act. Because of this, she had monetary loss and suffered mental agony. So the complainant prays for an order directing opposite party to release the deposit amount of Rs.5,700/- with 18% interest till date and allowing a compensation of Rs.10,000/- with cost of this proceedings and for cancelling the licence of opposite party’s institution.<br /> <br /> 4. The facts stated in O.P.163/02 is as follows: On 26.8.2001, the complainant pledged 2 grams of gold (ring) with opposite party and availed a gold loan for Rs.500/-. On 18.12.2001, she approached opposite party for closing the gold loan. But opposite party told her that there is no such gold loan with him and sent her back after scolding her by using obscene words. Thereafter, she approached opposite party for several time but he had not given the pledged gold. Opposite party’s action is deficiency of service. Because of this, she had suffered <br /> irreparable injury and loss and mental agony. Therefore, she prays for an order directing the opposite party for allowing her to close the gold loan account as if it is <br /> closed as on 18.12.2001 and a compensation of Rs.3,000/- and cost of this case and for cancelling the licence of opposite party’s institution.<br /> <br /> 5. In both cases, opposite party filed separate versions. The main contentions raised in O.P.399/01 are as follows: Opposite party is admitting the deposit made by the complainant. On 16.5.2001, the amount deposited with interest at the rate of 18% was released to the complainant without obtaining the passbook. The complainant told him that the passbook was irrecoverably lost and it could not be traced and undertakes to give it if it is recovered later. As the complainant is a relative, he believed her words and made the payment after obtaining a receipt for it. Subsequent to the marriage of the complainant’s daughter, the complainant approached him for some financial assistance, which was not yielded by him. Opposite party also denied the mediation averred in the complaint. Opposite party is not liable to pay any amount to the complainant. This complaint is filed only because of the aforesaid strained relationship and for harassing the opposite party and it is a frivolous complaint. Hence, he prays for the dismissal of O.P.399/01 with his cost.<br /> <br /> 6. The main contentions raised in O.P.163/02 is as follows: He is admitting the pledging of gold ornament and it is still with him as the complainant never approached him for taking it back. It is also alleged that he had appeared before this Forum on several postings of O.P.399/01 before the filing of this O.P.(O.P.163/02) but the complainant never raised any complaint against him regarding the non-delivery of the gold ornament. So this complaint is also filed only for harassing the opposite party and hence he prays for the dismissal of this O.P. also with his cost.<br /> 7. The points for consideration in these cases are the following:-<br /> <br /> (1)Whether the complaints are maintainable before this Forum?<br /> (2)Whether the complainant is entitled to get reliefs as prayed for in these complaints?<br /> (3)Reliefs and Costs?<br /> <br /> <br /> 8. As both cases were clubbed together, evidence for both cases taken together in O.P.399/01. The evidence of both cases consists of oral evidence of the complainant and one witness from the side of the complainant who were examined as PWs.1 and 2. Exts.A1 and A2 were marked on the basis of the separate affidavits filed by the complainant in both cases. For the opposite party, opposite party has been examined as DW1 and Exts.B1 to B5 were marked on the basis of the proof affidavit filed by the opposite party. After the closure of evidence, both sides heard.<br /> <br /> 9. Point No.1: The matter in issue in both O.Ps. are relates to consumer dispute and the complainant is a consumer of the opposite party as defined in Consumer Protection Act. Hence we hold point No.1 accordingly.<br /> <br /> 10. Points Nos.2 & 3: Complainant’s case is that the opposite party has not returned the money deposited and the gold ornament pledged by her with the opposite party. The complainant and one witness from her side were examined as PW1 and PW2 and Exts.A1 and A2 were marked. PW1 and PW2 were also cross-examined by the other side. Ext.A1 is the passbook issued by the opposite party from the deposit made by the complainant. As per Ext.A1, an amount of Rs.5,700/- stands in the credit of the complainant as on 16.7.1998. Ext.A2 is the gold loan receipt No.403/01 dated 26.8.01 issued by the opposite party. As per Ext.A2, one gold ring having 2 grams is pledged with opposite party for Rs.500/- on 26.8.01 by the complainant. The genuineness of Exts.A1 and A2 were not challenged by the opposite parties. It is clear from the versions as well as from the cross-examination. Opposite party has no dispute regarding the transaction, but his specific contention is that on 16.5.2001, the complainant approached him and requested for the return of the deposited amount without surrendering the passbook as it was lost and undertakes to surrender it, if it is found later. Since the complainant is a relative, he believes the words of the complainant, he paid the deposited amount with interest at the rate of 18% and he had obtained a receipt also from the complainant, which was marked as Ext.B2 through DW1. Opposite party has also submitted that the complainant had certain other transactions with opposite party, which were settled. In order to prove this, he had produced 4 documents relating gold pledging by the complainant. The first one dated 26.8.2001 with respect to gold loan No.403/01, the second one dated 20.6.01 with respect to gold loan No.177/01, the 3rd one dated 4.7.01 with respect to gold loan No.237/01 and the 4th one dated 16.7.01 in respect to gold loan No.228/01 were marked as Exts.B1, B3, B4 and B5. According to DW!, Exts.B1 to B5 were executed by the complainant and the signatures of Ext.B2 receipt and other exhibits were put by the complainant and all are one as the same. So he contended that Ext.B2 can be admitted in evidence for the return of the deposited amount. But the execution of Ext.B1 to B5 were denied by the complainant.<br /> <br /> 11. On comparing the signatures of the complainant seen on the complaint, vakkalath, deposition etc. put by the complainant with the signatures seen in Exts.B1 to B5 alleged to have been put by the complainant. We have noticed similarities and differences. But we are not experts to say final opinion regarding the signatures before us. Moreover, both sides did not take any step to bring expert evidence in this aspect. So we are not inclined to accept the contentions put forward by both sides with the dispute regarding the signature. <br /> <br /> 12. It is pertinent to note that the opposite party has an opportunity for producing the registers/account books kept by him for proving his contentions. The complainant also filed an I.A.No.67A/03 for directing opposite party to produce the registers, which was also allowed by the Forum. But opposite party was reluctant to produce it irrespective of the order in the I.A. His attitude towards the direction for production of document was that those documents are not supposed to be produced before the Forum. It was clearly stated by DW1 in his cross to a question put to him by the counsel for the complainant. His answer was “ChnsS lmPcmt¡­Xà Ahsbm¶pw”. From this, it is very clear that he is afraid of producing the registers kept by him in the course of his daily business transactions. This casts serious doubts in the bonafides of the opposite party. Opposite party is suppressing the real facts of the transaction with the complainant and thereby prevented this Forum from finding out the truth unrebutted. Testimony of PW2 also supports the contentions of the complainant. Issuance of Ext.A1 is also admitted by the opposite party. In the circumstances, we find no merit in the contention of the opposite party based on Exts.B1 to B5. Hence we are inclined to accept the contention of the complainant based on Ext.A1 passbook. Thus opposite party has failed to convince the Forum that he had returned the deposited amount and its interest to the complainant. Therefore, we find that the amount deposited by the complainant with the opposite party as per Ext.A1 is not so far received by the complainant. <br /> <br /> 13. However, the dispute with regard to Ext.A2 transaction, the complainant has failed to prove her case. Her contention is that on several occasion she approached the opposite party for closing the gold loan account based on Ext.A2. But she failed to adduce evidence to substantiate her allegation. At the same time, the opposite party is admitting the transaction and submitted also that he had no hesitation for closing Ext.A2 gold loan account if she is prepared for it. Nothing seen on record that such an attempt was made by the complainant. Therefore, we are inclined to accept the contentions of the opposite party.<br /> <br /> 14. On the basis of the above discussions, we find gross deficiency of service from the part of the opposite party with respect to the dispute in O.P.399/01 relating to Ext.A1transations. The prayer made by the complainant in O.P.399/01 is found allowable. Therefore, the complainant is entitled to get a relief as prayed for in O.P.399/01.<br /> <br /> 15. At the same time, we find no deficiency in service from the part of the opposite party with respect to the dispute in O.P.163/02 relating to Ext.A2 transaction. The prayer made by the complainant in O.P.163/02 is not found allowable. Therefore, the complainant is not entitled to get any of the reliefs prayed for in O.P.163/02.<br /> <br /> 16. In the result, O.P.163/02 is dismissed and O.P.399/01 is allowed, thereby the opposite party is directed to return Rs.5,700/- (Rupees Five thousand seven hundred only) deposited by the complainant as per Ext.A1 passbook with 18% interest per annum from the date of deposit till the date of closure of the said amount by the complainant. Opposite party is also directed to pay compensation of Rs.2,000/- to the complainant for the reason of loss and mental agony sustained to the complainant in this regard with cost of Rs.500/- (Rupees Five hundred only). The complainant is directed to surrender Ext.A1 passbook with opposite party within 30 days from the date of receipt of this order and the opposite party is also directed to close the said account and pay the amounts so awarded on getting Ext.A1 passbook, failing which the interest for the awarded amount will follow at 18% per annum till whole payment as the rate of interest of the deposit is 18%.<br /> <br /> 17. Dismissal of O.P.163/02 is not a bar to the complainant’s liberty to close Ext.A2 gold loan account as per the usual terms and conditions of gold loan.<br /> <br /> Declared in the Open Forum on this the 10th day of June, 2008.<br /> <br /> <br /> Jacob Stephen,<br /> (President)<br /> Smt. C. Lathika Bhai (Member) :<br /> <br /> Sri. N. Premkumar (Member) :<br /> <br /> Appendix:-<br /> Witness examined on the side of the complainant:<br /> PW1 : Thulasi.<br /> PW2 : K. Sethukumar.<br /> Exhibits marked on the side of the complainant:<br /> A1 : Passbook.<br /> A2 : Gold loan receipt No.403/01 dated 26.8.01 issued by the opposite <br /> party.<br /> Witness examined on the side of the opposite party:<br /> DW1 : K.V. Sivaraman Nair.<br /> Exhibits marked on the side of the opposite party:<br /> B1 : Terms and Conditions of pledged gold ornaments (Gold loan No.403/01) <br /> dated 26.8.01.<br /> B2 : Receipt dated 16.5.01 executed by the complainant in favour of<br /> Sri. K.N. Sivaraman Nair.<br /> B3 : Terms and Conditions of pledged gold ornaments (Gold loan No.177/01)<br /> dated 20.6.01.<br /> B4 : Terms and Conditions of pledged gold ornaments (Gold loan No.237/01)<br /> dated 4.7.01.<br /> B5 : Terms and Conditions of pledged gold ornaments (Gold loan No.278/01) <br /> dated 16.7.01.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />