BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 74/2011 Filed on 16/03/2011

Dated: 15..10..2012

Complainant:

Philips Varghese, Parolil Moby Cottage, Rajagiri – P.O., Kalamassery, Ernakulam – 683 104.

(By Adv. S. Reghu Kumar)

Opposite parties:

1. Sree Uthradom Thirunal Hospital, Pattom, Thiruvananthapuram, represented by its C.E.O.

2. Dr. Bharath Chandran, Managing Director, Sree Uthradom Thirunal Hospital, Pattom, Thiruvananthapuram.

(By Adv. Narayan. R)

This O.P having been heard on 05..10..2012, the Forum on 15..10..2012 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant deposited an amount of Rs. 1,00,000/- with opposite parties prompted by a newspaper advertisement made by opposite parties in the year 1999, that opposite party issued a certificate for the same dated 1/1/2000 which matured on 2/1/2010, that as per the said certificate opposite party promised a return of Rs. 1,500/- per month and commitment for future treatment expenses at the opposite parties’ hospital, that opposite party has calculated interest @ Rs.1,500/- till March 2002 and deposited the same irregularly, that in the month of April 2002 opposite parties unilaterally reduced the interest to Rs. 1,000/- per month from Rs.1,500/-, that on receipt of the letter intimating reduction of interest on 11/7/2002 complainant issued a letter to the opposite parties objecting the same, that from April 2003 onwards opposite parties had again unilaterally revised the interest to Rs.1,075/- per month without giving any explanations / clarifications, that opposite parties were not at all prompt and regular in effecting the payment of interest, that on 19/11/2009 complainant issued a letter requesting the opposite parties to return the principal amount with interest and compensation for non payment of interest in time, that complainant also expressed wish to not renew the membership, that despite the receipt of the notice opposite parties not only deposited the principal amount, interest and compensation for delay in effecting the payment of interest and but also not terminated the membership till 12 October 2010, that opposite parties issued three cheques for Rs. 1,00,000/-, Rs. 19,091/- and Rs. 16,150/- on 12^th October 2010 to the complainant, but the said cheques were bounced back from the bank due to the reason insufficient balance in the account, that the same was brought to the attention of the opposite parties and as directed by opposite parties, complainant resubmitted the cheques and got encashed on 22 October, 2010, that the action of the opposite parties amounts to deficiency in service and unfair trade practice. Hence this complaint to direct opposite parties to pay Rs. 1,65,739/- with future interest @ 18% per year as compensation along with Rs. 10,000/- as cost.

2. Opposite parties filed version contending inter alia that the complaint is not maintainable either in law or on facts, that 2^nd opposite party has been unnecessarily been dragged into this litigation, that Secretary of the Family Health Care Club is the proper person to be arrayed as an opposite party, if the complainant has any genuine grievance, that the terms and conditions strictly and unambiguously state that the member of the scheme is entitled to rent, that the complainant and other persons who obtain membership are being paid rent as consideration for paying the fee for the club membership, that it is using the said fees that the buildings of the hospital were constructed, that members are entitled to get a portion of the rent from the same, as per the share deposited, that members can use the room facility if so required, that payment of rent is an issue which cannot be dealt with by this Forum, that further complainant is aggrieved by a revisal in rate of rent which happened in the year 2002 and 2003, that no action or protest was made by the complainant over these years, that after more than 9 years complainant cannot be had to question the legality of the same, that complainant is estopped from raising any demands with the transactions that happened in 2002 and 2003, that opposite parties suspect the genuineness of document submitted by the complainant, that all rent amounts legally due to the complainant has been paid by the opposite parties, opposite parties are bound to pay the rent only till the period of scheme, that the statement of accounts mischievously made and is devoid of any truth whatsoever, that there is no unfair trade practice and deficiency in service on the part of the opposite parties. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether the complainant is a consumer as defined in the Consumer protection Act?

2. Whether there is unfair trade practice and deficiency in service on the part of opposite parties?

3. Whether complainant is entitled to any reliefs as claimed in the complaint?

In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P4. In rebuttal, opposite party’s Administrative Legal Officer, has filed proof affidavit. Opposite party has not furnished any documents.

4. Points (i) to (iii): There is no dispute on the point that complainant had deposited an amount of Rs. 1,00,000/- with opposite parties vide membership certificate dated 01/01/2000 issued by opposite party. Ext. P1 is the copy of the membership certificate issued by opposite party. As per Ext. P1, the membership fee of Rs. 1,00,000/- will be returned to the head of the family or successor if the membership is not renewed after 10 years ie. 2^nd day of January 2010. According to complainant, opposite party assured a return of Rs. 1,500/- per month and commitment for future treatment expenses at the opposite parties hospital amounting to equivalent of the maturity value at the assured rate. It has been contended by the complainant that opposite party had calculated the interest @ Rs.1,500/- till March 2002 and deposited the same irregularly. The very case of the complainant is that from April 2002 to March 2003 opposite parties unilaterally reduced the interest amount to Rs. 1,000/- per month from Rs. 1,500/-, that complainant on receipt of the letter intimating reduction of interest issued a letter dated 11/7/2002 to the opposite parties. Ext. P2 is the copy of the letter dated 29^th August 2002 issued by the complainant to SUT Hospital which has been marked subject to objection. As per Ext. P2 it is seen addressed to opposite party that "A letter was sent by you in my Kerala address in the name of my wife Mrs. Molly Philip letter dated 11^th July 2002 saying that you are constrained to revise the rent and paid all my dues". As per Ext. P2 it is mentioned by complainant that as the condition No. 3 of the scheme members do not have the right to cancel the membership unilaterally before the expiry of the first 10 years. As per condition No. 15 of the scheme rent of Rs. 1,500/- is fixed for 10 years irrespective of the revision of hospital charges. In the letter, complainant had informed the opposite party that this is a contract thereby opposite party cannot revise the rent as they wish. In the letter complainant requested the opposite party to make immediate payments as agreed upon without any further delay and keep him informed of the payments. Ext. P3 is the copy of the letter dated 19/11/2009 by the complainant to opposite party requesting the latter to send him a statement of accounts on the money, opposite party has paid him so far. Ext. P4 is the copy of the Advocate notice issued by the complainant. Exts. P4(a) & (b) copies are postal receipts and acknowledgement card. It has been contended by the complainant that from April 2003 onwards opposite parties again unilaterally revised interest per month to Rs. 1,075/- without giving any clarification. As per Ext. P1 complainant is entitled to get Rs. 1,500/- per month and the same will be remitted to the account opened by the complainant. There is no provision for revision of interest or rent per month to Rs. 1,075/- such revision is against the spirit of the scheme initiated by the opposite party. Admittedly, complainant is entitled to get a rent / interest @ Rs. 1,500/- per month for 10 years and complainant is also entitled to get membership fee of Rs.1,00,000/-. From the side of the opposite party, opposite party has filed proof affidavit in lieu of chief examination. It is admitted by the complainant that opposite party had calculated interest / rental return @ Rs. 1,500/- till March 2002 but deposit was made irregularly. From April 2002 onwards, opposite parties unilaterally reduced the interest / rental return to Rs. 1,000/- per month from Rs. 1,500/-. Again from 2003 April onwards opposite parties unilaterally revised the rental return per month to Rs. 1,075/- without giving any clarifications. Admittedly, opposite parties had issued 3 cheques No. 855 521 for Rs. 1,00,000/-, No. 855 522 for Rs. 19,091/- and No. 855 523 for Rs. 16,150/- on 12^th October 2010, though the said cheques were dishonoured initially and subsequently they were honoured on 22^nd October 2010. It should be noted that the certificate was matured on 2/01/2010 but the said payments by way of cheques were issued to the complainant on 12/10/2010 after a lapse of more than 9 months. Further, rental / interest returns were not deposited to the account of the complainant as agreed by opposite party thereby the action of the opposite party in not releasing the matured amount with interest / rental return per month and unilateral reduction of interest / rental return by the opposite parties would amount to deficiency in service. In view of the above discussion and evidence available on records, we are of the view that complainant is entitled to get back the membership fee of Rs. 1,00,000/- on the date of maturity on 2/01/2010 with interest / rental return per month @ Rs. 1,500/- per month from 4^th April 2002 to 02/01/2010 (maturity date of the certificate). As the said membership fee of Rs. 1,00,000/- was not returned to complainant on the maturity date ( 02/01/2010) complainant is entitled to get reasonable interest at the rate of 12% for Rs. 1,00,000/- from 02/01/2010 to 22/10/2010 (the date on which Rs.1,00,000/- was returned to complainant). Since opposite party has not returned the matured amount on due date and has reduced rental / interest against the terms of Ext. P1 certificate the action of the opposite parties amounts to deficiency in service, for which complainant is entitled to compenstion which we fix at Rs.5,000/-.

In the result, complaint is partly allowed. Opposite parties shall jointly and severally pay return of Rs. 1,500/- per month from 04/04/2002 to 02/01/2010 after adjusting the amount already paid to the complainant towards interest charge (promised return) during the said period. Opposite party shall also pay interest at the rate of 12% for Rs. 1,00,000/- from 02/01/2010 to 22/10/2010 along with Rs. 5000/- towards compensation and Rs. 2,000/- as cost. Opposite parties shall pay the complainant the aforesaid amount within two months from the date of this order.

copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of October, 2012. Sd/-

G. SIVAPRASAD,

PRESIDENT. Sd/-

BEENA KUMARI .A,

MEMBER.

Sd/-

S.K. SREELA,

ad. MEMBER.

C.C.No: 74/2011

APPENDIX

I. Complainant’s documents:

P1 : Copy of membership certificate issued by opposite party.

P2 : " letter dated 29/08/2002 issued by the complainant to SUT Hospital.

P3 : " letter dated 19/11/2009 by the complainant to opposite parties.

P4 : " Advocate notice issued by the complainant.

P4(a) : " Postal receipts

P4(b) : " acknowledgement card.

II. Complainant’s witness:

PW1 : Philips Varghese

III. Opposite parties’ documents : NIL

IV. Opposite parties’ witness:

DW1 : K. Haridas

Sd/-

PRESIDENT