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DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 10th day of November, 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 25/10/2018
CC/135/2018
Elsy Sebastian,
Kallanikkunnel,
Perumpadari P.O.,
Mannarkkad, Palakkad – 678 762.
(By Authorised Representative) - Complainant
Vs
1. Director of Industries,
Directorate of Industries,
Thiruvananthapuram.
2. The District Manager,
District Industries Centre,
Palakkad – 678 001.
3. The District Collector,
Civil Station, Palakkad.
4. The Thahsildar,
Mannarkkad Taluk, Mini Civil Station,
Mannarkkad, Palakkad – 678 582.
(By Authorised Representatives) - Opposite parties
O R D E R
By Sri. Vinay Menon V., President
- The complainant is the proprietor of Mariya Rubber Industries, who had availed two financial assistances totaling Rs.1,00,000/- as Margin Money Loan from the 2nd opposite party during 1993. She had effected a cumulative repayment of Rs.40,000/- Thereafter, the balance amount together with interest and penal interest together with collection charges was recovered from the complainant as revenue due upon land. The said amount added up to Rs. 3,32,275/-. But the complainant was entitled to pay only an amount of Rs.2,84,604/- together with its collection charges of Rs.14,230/- (Totalling Rs. 2,98,834/-). The balance amount of Rs.33,440/- is due to her. Even after repeated requests, the said amount was not paid to her. This complaint seeks to avail the said amount together with interest and incidental reliefs.
2. The opposite parties entered appearance. The grievance of the complainant is as against the 2nd opposite party. Incidentally, they are the only ones who filed version. They admitted the mistake. They contended that an amount of Rs.25,380/- was levied in excess and the 2nd opposite party had informed the same to the 1st opposite party. They had taken all steps to return the amount to the complainant and would return the amount upon receiving sanction from the Government.
3. Pleadings and evidence considered, the following issues arise for consideration
1. Whether the complaint is barred by limitation?
2. Whether the quantum of mistaken payment is Rs. 33,440/- or Rs. 25,380/-?
3. Whether there is any deficiency in service on the part of opposite parties
1 and 2?
4. Reliefs and cost, if any.
4. Evidence comprised of Proof affidavit of complainant and Exhibits A1 to A14 on the part of the complainant and proof affidavit and Exhibits B1 to B8 on the part of the opposite party.
Issue No. 1
5. Last of the payment was effected on 10.08.2012. From Exhibit B6(b) communication, it can be seen that after 10.08.2012 the complainant had issued communication on 08.08.2013. Thereafter a chain of official communications and procedures had been ongoing. It is not finalized even till the date of final hearing. The payment due to the complainant is kept in limbo. In the facts leading to the dispute in Oriental Insurance Co.Ltd. V/s Chinnar Brick Kiln (AIR 2009 J&K 4) the Insurance Company had failed either to close or to repudiate the claim of the complainant. The complaint was filed with delay. As per Section 18 of the Consumer Protection Act 1987 (Jammu & Kashmir Act) which is pari passu Section 24 A of the Consumer Protection Act 1986, a complaint was to be filed within two years from the date the cause of action has arisen. The Hon’ble High Court of J&K upheld the finding of the lower Fora that there is a continuing cause of action in view of the non closure and non repudiation of the claim by the opposite party.
Adhering to this wisdom, we find that the complaint is not barred by limitation, owing to continuing cause of action.
Issue No. 2
6. In view of the admissions made by the 2nd opposite party, the existence of mistaken additional payment or liability to effect payment need not be looked into. The only question is as to the quantum of mistaken payment. The complainant claim that it is Rs. 33,440/- while the opposite party maintain it to be Rs. 25,280/-.
7. The complainant has repeatedly filed statement of calculation as to how the amount they claim was arrived at. But the opposite party vaguely stated as to how much amount they are to return. No assistance was provided by the opposite parties to conclude as to how the amount was arrived at. Hence we are constrained to sift through the pleadings of the disputants and exhibits as to ascertain what exactly is the probable amount.
8. In page 3 of the version the 2nd opposite party states that they received only an amount of Rs. 3,17,933/- after deduction of collection charges and demand notice fee. The amount admittedly wrongly collected is Rs.25,380/-. Hence we can presume that the actual amount due to the opposite party is Rs.2,92,553/- per version filed by the opposite party.
Exhibit B6 is a communication dated 19.09.2012 issued by the 2nd opposite party to the 1st opposite party. In unnumbered paragraph 2 it is stated therein that the demand raised was for an amount of Rs. 2,67,431/. Thereafter in unnumbered paragraph 3 the amount stated is Rs. 2,84,648/-. In the same paragraph, the amount mistakenly remitted in the office of the 1st opposite party is stated to be Rs. 3,10,028/-. Less Rs.25,380/- from Rs.3,10,028/- we get Rs.2,84,648/-.
Here itself there is a variance of Rs.7,905/- even as per the case of the opposite parties. The schedule in the version shows this amount as receipt, but the schedule in Exhibit B6 is silent as to the payment of this sum.
Exhibits A11 and A12 are loan ledger reports regarding the two financial assistances extended to the complainant as on 16.08.2012 maintained by the 2nd opposite party. The total amount that is repayable as can be seen from Exhibits A11 and A12 is Rs. 2,84,604/-. This amount is devoid of any additional charges.
9. Exhibits A5 to A10 are the village office receipts evidencing repayment of the amounts paid by the complainant to the 2nd opposite party, final installment being on 10.08.2012. The total amount paid by the complainant, inclusive of charges is Rs.3,32,275/-. The opposite parties have raised no objection as to the amounts evidenced by Exhibits A5 to A10.
10. Now to consider the dates. Final instalment of the amount was remitted by the complainant on 10.08.2012. The amount paid is Rs.3,32,275/-. Exhibit A 11 and 12 are dated 16.08.2012. The total amount payable is Rs.2,84,604/ without any charges. Allowing 5% as collection charges, the charge would come to Rs.14,230/-. The total payable therefore is Rs. 2,98,834/- as claimed by the complainant.
11. In view of the absence of any cogent evidence forthcoming on the part of the opposite parties proving that the quantum stated by them is the amount due to the 2nd opposite party, and in view of the evidence adduced by the complainant, we have no hesitation to accept the quantum arrived at by the complainant. The opposite parties has failed miserably to discharge the burden of proof cast on them.
12. In the result we hold that the complainant is entitled to receive Rs.33,440/- as claimed by them, instead of Rs.25,380/- as held out by the OP2.
Issue No.3.
13. We have already found in issue no. 2 that the complainant is entitled to Rs.33,440/-. In a transaction of the present nature the complainant and opposite parties are in a fiduciary relationship. In a fiduciary relationship, it is imperative that both the parties have to be vigilant so as not to cause any damage to the financial interest of the other party. That vigilance and care includes, timely actions and proper documentation and maintenance of the documents and statements. The opposite parties 1 and 2 have failed pathetically to maintain proper accounts as to show / prove how Rs.25,280/- was arrived at. And resultantly, in the Commission also, they could not defend their calculations diligently.
14. Hence we hold that there is deficiency in service on the part of the opposite parties 1 and 2 in (a) failing to maintaining proper accounts; and (b) inordinate delay in repayment of the amount. The opposite parties 4 & 5 are absolved of any liability.
Issue no. 4
15. In view of the findings in issue numbers 2 and 3, we hold that the complainants are entitled to the following reliefs considering the fact that the opposite parties have made the complainant run pillar to post for nearly 10 years.
(1) The complainant is entitled to reimbursement of Rs. 33,440/- (Rupees Thirty three thousand four hundred and forty only) together with interest at the rate of 10% from 10.08.2012(date of last of payment) till date of actual payment by the opposite parties 1 & 2.
(2) The complainant is entitled to a compensation of Rs. 1,00,000/- (Rupees One lakh only) from the opposite parties 1 & 2 for mental pain and agony owing to inordinate delay.
(3) The complainant is entitled to a cost of Rs. 25,000/- (Rupees Twenty five thousand only) from the opposite parties 1 & 2.
The opposite parties 1 & 2 shall comply with the order by effecting payment of the aforesaid 3 payments within 45 days from the date of receipt of a copy of this order.
Pronounced in the open court on this the 10th day of November, 2021.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Copy of communication dated 15.06.1993 issued by the 2nd opposite party
to KFC .
Ext.A2 – Copy of communication bearing no. 31/94-95 dated nil issued from the
2nd opposite party to the Manager, Federal Bank.
Ext.A3 – Copy of the Demand Notice bearing collectorate file no. 2010/72156/9
dated 08.12.2011.
Ext.A4 – Copy of the Demand Notice bearing collectorate file no. 2011/1064/9
dated 16.04.2012.
Ext.A5 – Original of receipt bearing no. 5702868 dated 04.02.2012 of Mannarkkad
Village Office.
Ext.A6 – Original of receipt bearing no. 5746999 dated 23.05.2012 of Mannarkkad
Village Office.
Ext.A7 – Original of receipt bearing no. 6016562 dated 27.06.2012 of Mannarkkad
Village Office.
Ext.A8 – Original of receipt bearing no. 6042900 dated 17.07.2012 of Mannarkkad
Village Office.
Ext.A9 – Original of receipt bearing no. 6084101 dated 10.08.2012 of Mannarkkad
Village Office.
Ext.A10 – Original of receipt bearing no. 6084102 dated 10.08.2012 of Mannarkkad
Village Office.
Ext.A11 – Original Loan Ledger Report as on 16.08.2012 for loan IV/42.
Ext.A12 – Original Loan Ledger Report as on 16.08.2012 for loan VI/21.
Ext. A13(series) – Copy of notice dated 11.04.2016 issued by complainant to 2nd
opposite party along with postal acknowledgment.
Ext.A14 – Original of the communication bearing no. B4 – 2017/17532/9 dated 21.12.2017.
Exhibits marked on the side of the opposite party
Ext. B1 – Copy of G.O. bearing no. G.O.(M.S.) No. 170/93/ID dated 28.12.1993
Ext. B2 – Copy of Circular bearing no. FC2/4311/94 dated 3.2.1994
Ext. B3 – Copy of Agreement dated 20.07.1994 executed between the complainant and
2nd opposite party.
Ext. B4 – Copy of Order bearing no. C-3094/94 dated 12.07.1994 of the 2nd opposite party.
Ext. B5 – Copy of Requisition for recovery of amount bearing no. RR/2010/14580/9
dated 30.12.2010.
Ext. B6(a) – Copy of Communication bearing no. C2/21/12 dated 19.09.2012
Ext. B6(b) – Copy of office note bearing no. C2/3221/12 dated 19.07.16
Ext. B7 – Copy of Communication bearing no. F.C.1/21081/12(2) dated 20.01.2018.
Ext. B8 - Copy of office note bearing no. C2/3221/2012(2) dated 26.03.2018
Witness examined on the side of the complainant
NIL
Witness examined on the side of the opposite party
NIL
Cost : Rs. 25,000/- allowed
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
Forwarded/By Order,
Senior Superintendent
Fair copy on : 24/11/2021
Despatched on:
