D.O.F. 03.06.2008

                                                D.O.O. 21.02.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                   :        Member

Dated this the 21^st day of  February, 2011.

C.C.No. 136/2008

P. Jayanandhan,

S/o. Raman,

Amina Quarters,                                                   :         Complainant

P.O. Thazhe chovva, Kannur.

(Rep. by Adv. K. Anil Kumar)

The Chairman, LIS (Regd),

Palackal Court, M.G. Road,                                  :         Opposite party

Ernakulam, Cochin – 682 035

(Rep. by Adv. Sona Jayaraman)

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of ` 39,245 with 18% interest from the date of the petition till the date of payment together with the cost of litigation.

          The brief facts of the case of the complainant is that he has deposited a sum of ` 15,000 on 31.10.2005 with the opposite party under the LIS Deepasthambam Project.  He deposited the amount on the promise of opposite party that he will get double the amount deposited within a year.  Inspite of repeated demands the opposite party never paid the amount.  So he sent a letter dated 28.12.2007 asking the opposite party to pay the promised amount.  But it was not replied.  Lawyer notice dated 19.03.2008 was sent calling upon the respondent to pay the promised amount.  The opposite party sent a false reply stating that the amount was received by the complainant by virtue of a cheque from their office at Kannur.  Hence this complaint.

          Pursuant to the notice opposite party entered appearance and filed version.  The resume of opposite party’s version is as follows : Complainant had entrusted ` 15,000 on 31.10.2005. Later he had received back this amount and two other membership amounts plus some extra benefits totaling to ` 1,10,000.  Complainant concealed this fact before the Forum.  An amount of ` 1410 being prizes fetched by his lottery tickets on account of his membership of ` 15,000 had also collected and handed over.  Opposite party also offered an additional benefit of “commission” equal to the amount the members had entrusted with the opposite party.  Opposite party did not committed any maturity period.  The fund for this come from the purchase commission on purchase of lottery and magazines.  The benefits was to be paid subject to certain conditions. Due to police intervention, court cases and freezing of our accounts etc the activity of purchasing lottery tickets and magazines were stopped and opposite party could not continue the giving of “commission”.  It will be resumed only after cases are disposed.  As it may take some more time to distribute the commission mentioned above, they have offered to give an amount equal to the entrusted amount for those who cannot wait indefinitely.  Accordingly, the petitioner had already received back ` 1,10,000 in total for three memberships including the membership of ` 15,000 mentioned in the petitioner by his cheques.  The petitioner has made a foul play while receiving the cheques.  Everyone has to surrender membership card while receiving the cheque but complainant with fraudulent intention had not surrendered the membership card making staff of office believe that those were already surrendered at the head office, Ernakulam.  He cleared his cheque in course of time.  Now he makes the claims with this membership card.   Opposite party has statements and records signed by the complainant to show that he has accepted all the claims of complainant.  Hence to dismiss the complaint.

          Upon the above pleadings the following issues have been taken for considerartion.

1.           Whether there is any deficiency in service on the part of opposite party?

2.           Whether the complainant is entitled to the relief as prayed in the complaint?

3.           Relief and cost?

The evidence consists of the oral testimony of PW1, DW1, Ext. A1 to A9, B1 to B7.

Issues 1 to 3

          Admittedly complainant had entrusted ` 15,000 to opposite party on 31.10.2005 towards LIS Deepasthambam Project Membership.  Ext.A1 proves the membership of complainant and acknowledge the receipt of ` 15,000.  the case of the complainant is that he has deposited the amount on the promise of opposite party that he will get double the amount deposited within a year.   But opposite party did not give the amount so back even after sending lawyer notice.  But on the other hand opposite party contended that complaianant received back the amount together with two other membership amount plus some extra benefits totaling to ` 1,10,000.  Opposite party admitted that opposite party had offered an additional benefit of commission equal to the amount the members had entrusted but contended that opposite party had not committed any maturity period or any fixed time as alleged by complainant and one year term is only an expectation of the complainant.

          Opposite party further contended that complainant had three memberships of ` 15,000, ` 40,000 and ` 25,000 a total amount of 80,000.  The third amount is in the name of complainants wife.  Opposite party also contended that complainant had received back ` 1,10,000 for the above three memberships which includes the membership of              ` 15,000 in question by two cheques as follows :

a)      Kotak Mahindra Bank, M.G.Road, Ernakulam – ` 80,000, cheque No.2949, dated 12.02.2007 cleared on 14.02.2007.

b)      SBI, MG Road, Ernakulam – ` 30,000, cheque No.691899, dated 12.02.2007 cleared on 14.02.2007.

Opposite party has also the case that the complainant did not surrender the membership card while receiving refund cheque.

          Ext.A1 undoubtedly proves the membership of ` 15,000 of complainant.  Complainant sent his first notice on 28.12.2007 as per Ext.A2.  Date of membership was 31.10.2005.  The second notice ie the first lawyer notice was sent on 17.03.2008.  Ext.A5 reveals opposite party has received the notice. Ext.A6 is the reply wherein opposite party has made allegation that complainant received the cheque from the Kannur office of the opposite party without surrendering the original membership card make believing the staff of the opposite party that the membership card had already been surrendered at the head office, Ernakulam.

          Ext. B5 dated 10.02.2007, the account status report for                P. Jayachandran reveals that Mr. P. Jayachandran by user name Jayanand Vs 40349 entrusted an amount of 15,000 for 24 units jointly on 31.10.2005, ` 40,000 entrusted for 32 units joining on 24.02.2006 and in the name of Vijayalakshmi E. by user name vijay w 17610 entrusted ` 25,000 for 40 units joining on 02.06.2005.  The net amount payable comes to ` 80,000.  All these units of three sections of amount cancelled on the same date 07.02.2007.  It can be seen from the payment details the cheque No.002949 dated 12.02.2007 for ` 80,000.  The customer acknowledgment of receipt of cheque makes it clear that complainant has received his outstanding account with LIS Deepasthambam project and agreed thereby that he would not have any claim with LIS Deepasthambam Project in the above user name.  Ext.B2 the Journal Voucher No.6917 reveals the used name Jayanand V 40349, P. Jayan B18663 and vijay w17610 on account of Ch No. 002949 dated on 12.02.2007 in favour of P. Jayanandan.  So also the journal Voucher 6918 on account of Ch: 691899 in favour of P.Jayanandan reveals the sanction of special amount ` 30,000.

          Anyhow the complainant is having complaint only with respect to Ext.A1 membership, for 24 units as per username Jayanandan V 40349, joined on 31.10.2005.

          Stated in the version (para-12) that the petitioner had three memberships of ` 15,000, ` 40,000 and ` 25,000 totalling to ` 80,000.  It is also stated that the third one is in the name of his wife.  Complainant though not detailed in complaint deposed in cross examination that “Fsâ `mcy 25,000 cq]-bmWv deposit sNbvX-Xv.  AXnsâ Cc«n 50,000 cq]-bmWv Int«-­-Xv.  Fsâ 15,000 cq]bv¡v 30,000 cq]-bmWv Int«-­-Xv.  thsdmcp deposit 40,000 cq]bv¡v 80,000 cq]-bmWv Int«-­-Xv.”  It can be seen that with respect to the amount of membership there is no dispute.  Complainant has admitted that he has already received ` 1,10,000.   Para 10 of the version makes it clear that opposite party had offered to give an amount equal to the entrusted amount for those who cannot wait indefinitely.

          The amount in question ` 30,000 seen cleared on 14.02.2007 by cheque 691899 (SBI, MG Road, Ernakulam dated 12.02.2007.  Complainant has only one membership value of ` 15,000.  Other membership of complainant the value is different.  In other words one membership of complainant with value of ` 15,000 and another membership with value of ` 40,000.  So the first membership Ext.A1 is doubled the amount is ` 30,000.  If ` 30,000 is released that means the membership Ext.A1 surrendered.  It is proved ` 30,000 paid.   Since the complainant managed to keep Ext.A1 in hand that does not mean the payment of ` 30,000 is washed away.  Complainant should prove that     ` 30,000 which he has released has no connection with the membership beyond doubt.

          A close scrutiny of the facts will reveal that there are altogether 3 memberships connected with the complaint.  That is two memberships in the name of complainant and one membership in the name of his wife.  The value of memberships in the name of complainant are of ` 15,000 and ` 40,000.  As per this promise opposite party is liable to pay double the amount ie ` 30,000 + ` 80,000 = ` 1,10,000.  Complainant has already admitted that he has received an amount of ` 1,10,000.  Hence there is no substance in the case of complainants.  The amount in cheque 691899  ` 30,000 being cleared by the complainant.  Complainant should say and prove that where is this amount and on what account he has collected the amount. The facts and evidence available proves that opposite party has paid the alleged amount of         ` 30,000.  Thus issues 1 to 3 are found against complainant. 

In the result, the complaint is dismissed.  No order as to costs.

                                                                 Sd/-                    Sd/-                     Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Receipt issued by respondent in favour of the petitioner dated

      31.10.2005..           

A2. Copy of the letter dated 28.02.2007.          

A3. Copy of Lawyer notice dated 17.03.2008.         

A4. Postal receipt dated 19.03.2008.

A5. Acknowledgement dated 04.04.2008.

A6. Reply letter dated 17.04.2008.

A7. Speed & Safe Courier Service receipt dated 28.12.2007.

A8. Acknowledgment receipt of Courier.

A9. Provisional Membership Certificate-AIP of LIS.

Exhibits for the opposite party

B1.  Authorisation letter.

B2.  Journal Voucher.

B3.  Journal Voucher.

B4.  Prize payment voucher.

B5.  Account status report for P. Jayanandan.

B6.  Balance sheet.

B7.  Copy of deposit transaction enquiry of Chacko P.V.

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  V.L. Fletcher

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT