IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 2nd day of July, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No. 55/2008 (Filed on 10.06.2008) Suja Suseelan, Sujini Bhavan, Karakkadu P.O., Mulakkuzha Village, Chengannur Taluk. .... Complainant. (By Adv. R. Gopikrishnan) And: 1. The Kerala State Financial- Enterprises Limited, represented by its General Manager, BHADRATA, P.B. No.510, Museum Road, Thrissur – 680 020. 2. The Branch Manager, KSFE, Pandalam P.O., Pathanamthitta Dist. (By Adv. Sam Koshy) .... Opposite parties. ORDER Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows: The complainant was a subscriber of the chitty No.12/98 conducted by the second opposite party having sala of Rs.2,00,000/-. The duration of the chitty was 100 month with monthly instalment of Rs.2,000/-. The chitty was commenced on 11.03.1998 and on 12.10.1998 the complainant auctioned the chitty whereby eligible to get the prize money of Rs.1,40,000/- after the deductions. The complainant had no sufficient sureties for withdrawing the prized amount, hence she requested the second opposite party to deposit the amount in her name. Due to the financial crisis, the complainant could not continue the said chitty from 15th instalment and she had paid the instalment upto 4/99. After the discontinuation of the chitty, the complainant requested the second opposite party to return the paid instalments. Then the second opposite party assured that the amount will return only after the termination of the chitty. After termination of the chitty, the complainant approached the second opposite party for getting the paid amount. But he reluctant to return the amount. On 27.10.2007, the first opposite party issued a letter to the complainant stating that they are unable to release any amounts to the complainant. The above said acts of the opposite parties amounts to an unfair trade practice and deficiency in service. The complainant is entitled to get back Rs.28,000/- from the opposite parties. Hence the complainant filed this complaint against the opposite parties for getting an order for directing the opposite parties to pay Rs.28,000/- with interest along with compensation and cost. The complainant prays for granting the reliefs. 3. The opposite parties have filed a common version stating the following contentions: The complaint is not maintainable either in law or on facts. The opposite parties have admitted the chitty subscribed by the complainant and it was commenced on 11.03.1998 having a sala of Rs.2 lakhs with termination on 11.06.2006. The complainant prized the chitty on 12.10.1998 whereby she became eligible to get the prize money of Rs.1,40,000/-. For releasing the prize money, the complainant had to provide sufficient security. But the complainant failed to furnish security and she did not release the prize money. The complainant had participated in the auction and as such she is bound to remit the future instalments particularly viewed in the fact that the veethapalisa has been distributed to among all the other chittals by the opposite parties. The complainant had remitted only 14 instalments and thereafter she discontinued the payment. The opposite parties have incurred heavy loss by diversion of cost bearing funds for prize money payments in chitty due to the non-remittance of instalments by the complainant. Hence they cannot refund the amount remitted by the complainant. The complainant is not entitled to get any reliefs as sought for in the complaint from the opposite parties. The opposite parties have acted only within the precincts of law contract and the rules applicable to the opposite parties. The loss, if any, sustained to the complainant can only to the lapse of the complainant and for which opposite parties are not held liable. Hence the opposite parties pray for the dismissal of the complaint. 4. The points that arise for consideration are: (1) Whether the complaint is maintainable before this Forum? (2) Whether the complainant is entitled to get the reliefs as prayed for in the complaint? 5. The evidence in this case consists of the oral evidence of the complainant as PW1 and Exts.A1 to A3 marked from her side. For the opposite parties, the second opposite party adduced oral evidence as DW1. There is no documentary evidence from the part of the opposite parties. After closure of the evidence, both sides were heard. 6. Point Nos. 1 & 2: There are many settled legal position regarding to the question that the subscriber of a chitty is a consumer and the complaint filed by the subscriber for the alleged deficiency in service is a deficiency in service as defined in the Consumer Protection Act. Hence this complaint is maintainable before the Forum. 7. The complainant’s case is that she was a subscriber of chitty started by the second opposite party. The duration of chitty was 100 months having sala of Rs.2 lakhs with the instalment of Rs.2,000/-. The chitty was started on 11.03.1998, on 12.10.1998 the complainant auctioned the chitty but she had no sufficient securities for withdrawing the prized amount. Hence she requested the opposite party to deposit the amount in her name in the branch office. After that, the complainant had remitted the instalments upto 4/1999 and discontinued the payment due to her financial crisis. After the discontinuation, the complainant approached the second opposite party for getting the remitted amount, and then he assured that the amount will get only after termination. After the termination, she approached the second opposite party for getting the amount. But the second opposite party was reluctant to return the money. According to the complainant, she is entitled to get the remitted amount with interest. Hence she filed this complaint for getting the reliefs as sought for in the complaint. 8. In order to prove the complainant’s case, the complainant adduced oral evidence as PW1 and Exts.A1 to A3 were marked. Ext.A1 is the chitty passbook in the name of the complainant. Ext.A2 is the letter-dated 12.10.1998 issued by the opposite parties to the complainant. Ext.A3 is another letter-dated 27.10.2007 issued by the opposite parties to the complainant. The opposite parties’ counsel cross-examined PW1. 9. According to the opposite parties, they have admitted the chitty and the receipt of 14 instalments from the complainant. After prizing the chitty, the complainant failed to furnish sufficient security and she did not release the prize money. After remitting 14 instalments, she committed heavy default which in turn incurred heavy loss by diversion of cost bearing funds for prize money payments in chitty. Hence refund of the amount remitted by the complainant cannot be made and the complainant is not entitled to get refund. 10. In order to prove the contention of opposite parties, the second opposite party adduced oral evidence as DW1. There is no documentary evidence from opposite parties’ side. The complainant’s counsel has cross-examined PW1. 11. On going through the pleadings and evidences in this case, the materials on record shows that the complainant had remitted only 14 instalments of chitty started by the opposite parties. Ext.A2 shows that the complainant had prized the chitty on 12.10.1998 and the opposite parties have demanded to execute sufficient securities for withdrawing the prized chitty amount. At the time of cross-examination, PW1 stated that she had requested the second opposite party to deposit the prize money in the branch office. But the opposite parties have contended that the complaint has not requested to deposit the prize money as fixed deposit in the opposite party bank. The complainant herself submitted that she did not made request in written. It is pertinent to note that even after prizing the chitty at 8th instalment, the complainant had remitted chitty upto 14th instalments and thereafter she defaulted. At the time of cross-examination, DW1 stated as follows:- “tIcf Nn«n BIvSv 1975 {]ImcamWv KSFE Nn«n \S¯p¶Xv. Nn«n ]nSn¡p¶ Bfv Ahtijn¡p¶ C³aân\mWv security XtcXv. Securitycm³ Ignbm¯h#161;v Nn«n XpI F.Dbn \ÂIm³ Ct¸mhyhpv. Cu tIkn\v Bkv]Zamb ImeL«¯n Nn«n¯pI F.Dbn \ÂInbm aXnbmbncp¶p”. 12. The main contention raised by the opposite parties is that after prizing the chitty, the complainant had defaulted and hence the opposite parties sustained a huge financial loss and they are not liable to return the amount already remitted by the complainant. The terms and conditions of the chitty is mentioned in the ‘Variola” of the concerned chitty. It is clearly stated in it that how to appropriate the prized money when the prized subscriber failed to furnish the security for releasing the prize money and how to deal with defaulted, prized subscriber. In this case, the opposite parties have not produced the variola of the chitty subscribed by the complainant. The opposite parties have admitted that they are conducting chitty on the basis of the Kerala Chitty Act, 1975. The complainant’s counsel argued that section 17(2) of the Kerala Chitty Act, 1975 reads as “if owing to default of a prized subscriber, the prized amount due in respect any drawing remains unpaid before the date of the next succeeding instalments, the foreman shall deposit the same forthwith in any approved bank mentioned in the variola and intimate in writing the fact of such investment together with the following particulars of the investment to the prized subscriber, namely:- (a) the number, year and office of registration of the chitty. (b) the particular instalment of the chitty. (c) the amount due to the subscriber. (d) the approved bank in which the amount deposited. (e) the date of deposit. (f) the reason for the deposit and (g) the conditions of the disbursement. But the opposite parties have not complied these provisions accordingly. It is the boundan duty of the foreman to comply all the formalities and intimate it to the subscriber. Moreover, the opposite parties have not produced the variola of the chitty subscribed by the complainant. Further, the opposite parties failed to prove that they have suffered a huge financial loss due to the non-realisation of the prize money by the complainant and as a defaulter of prized chitty. In the circumstances, we find no reason for discarding the complainant’s claim of remitted chitty amount after the termination of the chitty by the opposite parties. The opposite parties have admitted the acceptance of 14 instalment amounts from the complainant. The complainant is entitled to get the remitted amount after deducting the foreman commission from the opposite parties. In the circumstances, the refusal of return of the amount remitted by the complainant, as instalment of the chitty is a clear deficiency in service and the opposite parties are liable to pay the amount with interest and cost. Since interest of the amount is allowed, no separate compensation is required. Hence complaint can be allowed accordingly. 13. In the result, this complaint is allowed, thereby the complainant is allowed to realise an amount of Rs.28,000/- (Rupees Twenty eight thousand only) from the opposite parties after deducting the foreman commission as per the variola of chitty No.12/98 subscribed by the complainant, with interest @ 10% per annum from the date of filing of this complaint till this date along with a cost of Rs.2,500/- (Rupees Two thousand five hundred only). The opposite parties are directed to comply this order within 2 months from the date of receipt of this order. If the amounts are not paid as ordered above, the amount would carry interest @ 12% per annum from today. Pronounced in the Open Forum on this the 2nd day of July, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Suja Suseelan. Exhibits marked on the side of the complainant: A1 : Chitty passbook in the name of the complainant. A2: : Letter-dated 12.10.1998 issued by the second opposite party to the complainant. A3 : Letter-dated 27.10.2007 issued by the first opposite party to the complainant. Witness examined on the side of the opposite parties: DW1 : Suresh. S. Exhibits marked on the side of the opposite parties : Nil. (By Order) Senior Superintendent. Copy to:- (1) Suja Suseelan, Sujini Bhavan, Karakkadu P.O., Mulakkuzha Village, Chengannur Taluk. (2) The General Manager, The Kerala State Financial Enterprises Limited, BHADRATA, P.B. No.510, Museum Road, Thrissur – 680 020. (3) The Branch Manager, KSFE, Pandalam P.O., Pathanamthitta Dist. (4) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
