F.A.No.295  OF 2012 AGAINST C.C.NO.168 OF 2011 DISTRICT FORUM-II VIJAYAWADA AT KRISHNA DISTRICT

Between:

1.   M/s rep. by its Foreman/Managing Director
D.No.17-264, First Floor, White House
Near Bus Stand Road, 2.   M/s 4^th Floor,  

                                                Appellants/opposite parties

Smt

                                                    Respondent/complainant

Counsel for the Appellant              M/ s Counsel for the Respondent           M/s

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                        &

                        SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

 WEDNESDAY THE   DAY OF MARCH

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri

                                        ***

1.             The opposite party has filed appeal challenging the order of the District Forum. 

2.             The respondent   joined in the chit group bearing reference no  NDLO 4H under tickets no.4 and 6  with the appellant for the chit value of `3,00,000/- each  and the monthly subscription payable  for the  chit is `7,500/-   in  duration of 40  months. The respondent paid 4 monthly subscriptions of `25,000/- which include dividend. The appellant removed the respondent’s name from the rolls of the chit without issuing notice to her. The respondent requested the appellant to furnish the account details and refund the amount paid by her. The appellant issued notice demanding the respondent to pay the amount due of other chit group. The respondent got issued reply to the notice. The appellant filed suit for recovery of the amount due from the respondent without making refund of the amount paid by the respondent. Hence, the respondent filed the complaint.

3.             The appellant-chit fund company resisted the claim on the premise that the respondent had been irregular in paying the monthly subscription and she paid `20,668/- excluding dividend. At the time of receiving prize amount in respect of Chit group, NDL04H pertaining to Ticket No.6, the respondent instructed the appellant to adjust an amount of `14,624/- to the chit group no.NOL02G1-32 which was adjusted under receipt dated 30.11.2008. The appellant issued notice on 13.03.2009 demanding the respondent to pay arrears of Rs.30`5,000/- on 27.05.2009. `550/- was collected as penalty for delayed payment of subscription. The respondent failed to clear arrears in spite of notice dated 13.03.2009 and removal of her name from the list of chit subscribers was informed to the respondent on 12.06.2009. As on the date the respondent was balance due was `19,774/- out of which a sum of `12,500/- was adjusted towards foreman’s commission and as per the instruction of the the balance amount of `7,300/- was adjusted to her another chit no.NDLo4H06 for `3,00,000/-. The respondent is liable to pay miscellaneous charges to the appellant.

4.             The   filed his affidavit and the documents, ExA1 to A6. On behalf of the appellants, their Recovery   filed his affidavit and the documents, ExB1 to B5.

5.             The District Forum allowed the complaint on the premise that the appellant-chit fund company adjusted the amount from one chit of the respondent to another chit without obtaining her consent and the appellant company cannot deduct 5% of the chit value from the amount paid by the respondent towards damage for breach of contract.  The District Forum observed that the appellant-chit fund company had not furnished payment  of the chit to the respondent.

6.             Aggrieved by the order of the District Forum, the opposite party chit fund   has filed appeal contending that the respondent failed to pay installments regularly and the appellant issued removal notice to the respondent under ExB4 informing the respondent that an amount of `12,500/- was deducted towards foreman’s commission  and breach of contract and the balance amount of `7,300/- was adjusted to the other chit no.NDL04H-06 and for the balance amount, the appellant filed suit. It is contended that the appellant is entitled to 5%damages on the chit value and that the respondent is entitled to `7,438/- and not `20,000/- as held by the District Forum.

7.    The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

8.     It is an admitted fact that the respondent subscribed to ticket number 4 and 6 in chit no.NDL04H for the chit value of `3,00,000/- each payable @Rs.7,500/-.    It is not disputed that the respondent joined another chit bearing number NDL02G1 for chit value of `2`25,000/- including dividend whereas the appellant has contended that the respondent paid `20,668/- excluding dividend and she cannot claim the sum of `25,000/-.

9.    The respondent was not regularly paying the subscription as a result of which the appellant issued notice on 13.03.2009  demanding for arrears of `30,004/- whereon the respondent paid `6,150/- of which a sum of `550/- was adjusted towards penalty charges.  The appellant issued removal notice on 12.05.2009 informing the respondent that her name was removed from the list of chit subscribers and the appellant informed the respondent that 5%of chit `12,500/-was deducted from the amount of `19,774/- paid by the respondent and on request made by the respondent they adjusted the balance amount of `7,300/- to the chit No.NDL04H-6.

10.            The District Forum observed that the appellant had not filed any documents to show that the respondent had given her consent for adjustment of the amount to the chit number NDLO4H6. The District Forum observed at page 4 of the order as under:

“As per Ex.B.1 previously on 30-11-2008 she paid Rs.14 the amount of Rs.7,300/- to the chit No.NDLO4H-6. In Ex.B.5 the same is revealed. But we do not accept the submissions of the opposite parties as according to them the complainant paid Rs.20”

11.            The finding of the District Forum that the appellant in absence of any authorization from the respondent cannot adjust the amount in one   to any other chit is sustainable. The finding of the District Forum that the appellant cannot deduct 5% of the chit value from the amount   by the respondent is against the terms of the chit agreement and the decision of the  

12.              appellant chit fund company has not filed any document to show that the respondent authorized the appellant to deduct or adjust any amount from the amount paid by her.  In the absence of such document, the District forum has rightly held that the appellant failed to show any positive evidence in support of the appellant’s contention that the respondent authorized the appellant to adjust or deduct the amount in the grounds of appeal also it is specifically mentioned at page No.2 that the respondent is entitled to an amount of `7,300/-.  At page no.3 of the appeal it is mentioned “the learned District Forum erred in granting `20,000/- to the respondent/complainant together with interest and costs instead of only `7,438/- actually entitled by the respondent/complainant”. 

13.            The appellant deducted a sum of `12,500/- towards 5% of the chit value for damage for breach of contract on the part of the respondent.  The appellant is equally negligent and rendered deficient service by deducting the amount and adjusting the same amount instead of paying it to the respondent, to her another chit.  As such we are of the considered view that out of the amount of Rs.12`7,000/- is deserved to be paid to the respondent.  The respondent is held entitled, `7000/- + `7,300/- = `14,300/-.  Accordingly, the order of the District Forum is liable to be modified.

14.            In the result, the appeal is allowed modifying the order of the District Forum.  The opposite parties no.1 and 2 are directed to pay `14,300/- together with costs of `1,000/- to the complainant.  There shall be no order as to costs in the appeal. 

                                                                                MEMBER

                                                                                MEMBER

                                                                            Dt.20.03.2013

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