Date of Filling     :  22.02.2016.

                                                                                                Date of Disposal :  28.11.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint no.09/2016

(Dated this Monday the 28^th day of November 2016)

M. Murugan,

S/o. Mr. Mahalingam,

No.3/18, Thanappan Street,

East Banu Nagar,

Chennai - 600 053.                                                              … Complainant.

                                                          - Versus –

1.  Sriman Madhwa Sidhantannahini,

     Permanent Nidhi Limited,

     Represented by its Manager,

     New No.37, Caar Street,

     Triplicane,

     Chennai - 600 005.

2.  Sriman Madhwa Sidhantannahini,

     Permanent Nidhi Limited,

     Represented by its Manager,

     Plot No.5, 5/105, 1^st Main Road,

     Banu Nagar,

     Ambattur,

     Chennai -600 053.                                                       … Opposite parties.

This complaint is coming upon before us finally on 18.11.2016 in the presence of M/s. M.A.R. Pragash, Counsel for the Complainant and Mr. N.C. Ravichandran, Counsel for the  1 & 2^nd Opposite parties and upon having perused the documents, evidences, written and oral arguments of the both sides this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 & 2^nd opposite parties for seeking compensation of Rs.5,00,000/- for negligence in service on the part of the opposite parties and for the financial loss, physical and mental agony caused to the complainant with cost.

2.      The brief averments of the complaint as follows:-

The complainant pledged his jewels with the 2^nd opposite party for the development of business in different dates as follows:

Though the 2^nd opposite party sanctioned very meager amount for the jewels pledged by him, the complainant was paying the interest and renewing the loan account from time to time.  Thus the above said jewels were pledged and renewed for several times atleast for three or four times.  Due to heavy blow in business, the complainant lost everything and was not able to pay the interest for few months.  On 16.10.2015, the complainant approached the opposite party to pay the amount and to get the above said items renewed.  The 2^nd opposite party made some calculations and asked the complainant to bring Rs.2,65,000/- for renewing all the above said article and also to make part of the payment.  The said amount was written in the backside of the card.

3.       After mobilizing the fund, the complainant approached the 2^nd opposite party on 19.11.2015 with an intention to pay all the interest and get all the articles renewed and to redeem few article.  To the great shock and surprise of the complainant, the 2^nd opposite party informed that all the above said articles were sold and the 2^nd opposite party refused to receive the amount from the complainant.  As per the terms and conditions envisaged in the loan card, there is a duty cast upon the opposite parties to issue prior notice, intimating the complainant to pay all the interest or the principal amount together with interest within a specified time.  However, the 2^nd opposite party had failed and neglected to issue any prior notice before selling the above said articles of the complainant.

4.       The 2^nd opposite party had adopted a summary procedure while disposing the jewels of the complainant which were pledged to them.  The complainant has got very serious and strong doubt, that the above said jewellery articles were abused without following due procedure contemplated under law and the said act and attitude which the opposite parties followed, amounts to unfair trade practice and created untold mental as well as physical agony and pain.  The complainant sent legal notice to the opposite party on 22.12.2015.  Though the opposite parties received the legal notice, the opposite parties did not show any interest either to reply for the legall notice or to provide any details about the loan transaction.  Hence this complaint.

5.       The contention of written version of the 2^nd opposite party and adopted the 1^st opposite party is  briefly as follows:-

The complaint is not maintainable either in law or in facts and is liable to be dismissed with cost and  denies all the allegations stated in the complaint except which are specifically admitted herein.  Though it is true that the complainant pledged his jewels with the 2^nd opposite party but denied that the 2^nd opposite party sanctioned very meager amount for the jewels.  The 2^nd opposite party acted as per the rules and regulations.  It also denied that the complainant was paying interest and renewing the loan amount from time to time.  The loan amount was advanced for the maximum of the security of the Gold pledged by the complainant and he has accepted the same while availing the loan.  The complainant availed only fresh loan and he has not renewed the loan. 

6.       The complainant had never approached the 2^nd opposite party with his jewel loan and he never enquired any clarification for the same.  The complainant approached the 2^nd opposite party only after the accretion was completed.  The 2^nd opposite party acted as per the terms and conditions envisaged by the loan card.  The notices were issued to the complainant by ordinary post and as well as by registered post.  The notice by ordinary posts were served to the complainant and some of the registered posts were returned.  The 2^nd opposite party never committed any mistake and not the reason for the complainant to close his business and has not created any mental or physical agony to the complainant.

7.       There is no deficiency of  service on the part of the opposite parties.  It is true that the complainant had issued legal notice and the same has been received by the 2^nd opposite party.  The complainant is irregular and loan by the complainant is questionable.  The period of loan account are all expired.  The 2^nd opposite party issued reminders several times to the complainant to clear his arrears and also for closing the loan account.  The complainant has not turned up for the renewal the loan accounts.  The 2^nd opposite party attempted to visit the complainant personally several times to remind for the closure of account.  The 2^nd opposite party is not at all responsible for the loss suffered by the complainant.  The complainant has not come to this Forum with clean hands.  Hence, this complaint is liable to be dismissed.

8.       In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and the documents from Ex.A1 to Ex.A8 are marked.   While so, on the side of the 1 & 2^nd opposite parties, the proof affidavit is filed  and the documents from Ex.B1 to Ex.B5 are marked for their evidence.

9.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the 1 to 4 opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10.      Written arguments filed and oral arguments adduced on the both sides.

11.     Point no.1:-

Regarding this point, on careful perusal of the averments of the complaint as well as proof affidavit of the complainant, it is learnt that the complainant had pledged his jewels in the opposite parties’ Nithi Limited on different dates and in this connection, Ex.A1 to Ex.A6 are the loan cards issued by the opposite parties.   It is further stated that the total loan amount is Rs.3,91,000/- for pledging of 246 grams in total and the complainant was paying the interest and renewing loan account from time to time.  It is further narrated that the 2^nd opposite party asked the complainant to bring Rs.2,65,000/- renewing all the above said articles and for part payment by making some calculation and on that score, the complainant mobilize the fund and approached the 2^nd opposite party on 19.11.2015 with an intension to get renewal of articles and to redeem few articles.  But the 2^nd opposite party informed that all the above articles were sold and refused to receive the amount of the complainant.

12.     Furthermore, it is deposed that the 2^nd opposite party has not acted to the administration envisaged which are mentioned in the loan card.  But per contra, the 2^nd opposite party has adopted a similar procedure without giving any notice to the complainant and the 2^nd opposite party has disposed off the jewels of the complainant and the said act, amounts to unfair trade practice which leads to mental agony and pain and, therefore the complainant had issued legal notice which are marked as Ex.A7 and the acknowledgement card for the receipt of the same are marked as Ex.A8.  Inspite of receipt of the notice, the opposite parties had not come forward to comply for the demand and hence the complainant is constrained to file this complaint.

13.     While being so, on going through the written version and the proof affidavit of the opposite parties, they deny all the allegations made in the complainant and it is not correct to say that the opposite parties have not followed the rules and regulations and in fact the notices were issued of the complainant by ordinary post as well as through registered post and the same were served to the complainant and some of the registered post were returned and hence the opposite parties have committed any mistakes and in fact the complainant is irregular in repaying the interest and fails to redeem the jewels within the stipulated time and hence the opposite parties are not at all responsible for the loss suffered by the complainant.

14.     At this juncture, on careful perusal of the rival submissions put forth on either side, the pledging of jewels and the disposal off the pledged jewels are all admitted facts.   At the outset, the vital point to be taken into consideration is, as to whether the opposite parties had acted as per the rules and regulations and after issue of proper notice to the complainant only, the pledged jewels had been disposed off.  First of all, the main allegation in the complaint as well as proof affidavit is, that as per the information given by the opposite parties, the complainant has prepared to mobilize the above said fund for renewing  the loan as well as to redeem some articles and thereafter, approached the opposite party along with the said funds.  At that time, the opposite party informed that all the articles have been disposed off without giving any prior notice. 

15.     At this point of time, on seeing through naked eyes, the Ex.A1 clause no.5 of the rules and regulations it  reads as follows: “mg;gb Nehl;B]; mDg;gpAk; fl;l Ntz;ba tl;b KOtJk; fl;lhtpby; fld; njhifAld; tl;b ghf;fpAk; Nru;j;J KOj;njhifiaAk; cldbahf fl;l Ntz;Lk;.  mwptpg;gpd;gb mt;thW fl;lj;jtwpdhy; xU khjk; fopj;J mtu;fSila mlF itj;j eiffs; kW mwptpg;gpd;wp mtu;fs; yhg e\;gj;jpy; Vy %ykhf tpw;W tplg;gLk;”.  In favour of the complainant either to renew the loan account by paying the interest or failed to redeem the articles within the stipulated time, inspite of issuance of notice by the opposite parties, the opposite parties are entitled to arrange for auction and recover the loan amount along with the considerable interest.  If it is so, the issuance of proper notice before auction of the pledged jewels is mandatory as per the rules and regulations of the contract between the complainant as well as the opposite parties.  In such circumstances, whether the opposite party has followed the above said procedure before auctioning the pledged jewels has to be considered.

16.     According to the evidence of the complainant, none of the notice received from the opposite parties, regarding the disposal of the pledged jewels and also the prior notice by the complainant.  While so, the opposite party evidenced that the notices were issued to the complainant by original post as well as by registered post and the same were served to the complainant and some of the registered post were returned.  Such being so, it is the bounden duty of the opposite party to produce the relevant documents to that effect, before this Forum.  But it is pertinent to note that Ex.B1 series, Jewel Loan Register in respect of the complainant maintained by the opposite parties which is not a disputed one.  Ex.B3 & Ex.B5 are the renewal reminders of the jewel loan.  Regarding the issuing of notice, Ex.B2, Series acknowledgement cards have been produced but not produced the actual returned postal cover.  The address mentioned in the acknowledgement card is not in a full pledged one and it is noted that mere mentioning the name and not only that the said post was not received by the addressee.  It is only received by one Maniyaraj.  Similarly another registered post returned as left dated 11.10.2015 & 31.10.2015.  If it is so, concerned returned cover has not been produced before this Forum which creates reasonable doubts in issuance of notices.  Not only that, though it has been mentioned in the written version that some of the notices have been served.  But no such served notice has not been produced by the opposite parties.  So, as rightly pointed out by the complainant that Ex.B2 Series are all created documents by the opposite parties which cannot be easily thrown out.  Further, it cannot be accepted since the corresponding documents have not been proved.

17.     In the light of above facts and discussions, it is crystal clear that the issuance of  notices as well as the service of the notices have not been proved properly on the side of the opposite parties.  In such circumstances, as per  Ex.B5 series, it is pertinent to note that the total auction amount of the pledged jewels is Rs.4,98,664/-.  Out of which, after deduction of the loan amount along with interest the sum of Rs.20,482/- has been returned to the complainant and the same has not been returned till date by the opposite parties to the complainant is very clear.  Under this circumstances, it is noticed that no relevant document filed by the opposite party for the auctioned amount as well as the auctioning jewels to reveal the facts that when it was auctioned, what was the market price of the jewels at the time of auction etc.  At this juncture, with the rich experience gained by this Forum and considering the market rate of the jewels per gram at that time, this Forum has come to conclusion that during the time of auction, the cost price per gram might be not less than Rs.2,500/-. The total quantity of grams pledged by the complainant was 246 grams as prescribed in Ex.A1 to Ex.A6 as well as in Ex.B1 series.  As such, the total value of the 246 grams at the time of auction is Rs.6,15,000/-.  While so, the total auctioned amount mentioned by the opposite parties as per Ex.B5 is only Rs.4,98,664/-.  In such circumstances, it can be easily to arrive the difference between Rs.6,15,000/- and Rs.4,98,664/- is of Rs.1,17,336/-.  But the admitted refund amount by the opposite parties is only Rs.20,482/- which cannot be accepted.

18.     From the foregoing among other facts and circumstances, it is learnt that the amount to be refundable is Rs.20,482/- has been admitted by the  opposite parties and hence there is no hindrance to order for the same.  Furthermore, this Forum has concluded that the act of the opposite parties clearly amounts for unfair trade practice which certainly leads to mental agony, hardship and also loss to the complainant and the same has to be compensated by this Forum.  In such a way, the complainant has proved the deficiency of service on the part of the opposite parties. Thus the point is answered accordingly.

19.     Point no.2:-

As per the conclusion arrived in point no.1, the complainant is entitled to get refund of Rs.20,482/- due in the auction amount and also for reasonable compensation and with cost.  Thus point no.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the 1 & 2^nd opposite parties are jointly and  severally directed to refund the balance of the auction amount of Rs.20,482/- (Rupees twenty thousand  four hundred and eighty two only) with interest at the rate of 9% p.a. from the date of filing of this complaint (i.e. 28.01.2016) till the date of this order (i.e. 28.11.2016) and to pay a sum of Rs.1,25,000/- (Rupees one lakh twenty five thousand only) towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the  1 & 2^nd opposite parties along with the cost of Rs.10,000/- (Rupees ten thousand only).

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9.5% p.a.  till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 28^th November 2016.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite parties:-

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MEMBER - I                                                                             PRESIDENT