By. Smt. Renimol Mathew, Member:
Brief of the complaint:- The complainant was the subscriber of opposite party's Group No.3 chitty in which he had paid Rs.4,850/- as chitty installments. Thereafter the collection agent of opposite party's not approached this complainant to collect the subscription. When complainant enquired this matter to opposite party they informed that there was some misappropriation by their Manager and advice him to transfer his chitty to other one. Complainant refused to transfer his chitty and demanded to return subscribed amount. Opposite party told that he will get it after the completion of the period prescribed. Subsequently after the completion of the period complainant approached opposite party and demanded to return the amount. But opposite party behaved in a rude manner and threatened the complainant. Hence filed this complaint.
2. On receipt of notice opposite party appeared and version filed. Opposite party admitted that the complainant was a subscriber and he has paid Rs.4,850/- as chitty installments. The rule of chitty is that first chitty can be taken by the foreman of the chitty and thereafter the subscribers are entitled for the entire amount after deductions and as such 5 percent chitty commission is to be entitled to the foreman of the chitty. It is the rule of chitty agreement that if a subscriber defaults three consecutive installments, the defaulted subscriber ceased to be a subscriber and in his place the company steps in to the shoes of the subscriber. The Petitioner never did pay the three installments of the above chitty consecutively as such the petitioner ceased to be a subscriber and the amount paid by him is adjusted towards the chitty commission for the chitty in which the petitioner was liable to pay to the company as Rs.5000/-. After the default of the chitty installments the petitioner never came to this opposite party's office for demanding any installment amount paid by him as such the averments that the branch manager threatened the petitioner is not correct. There was no such incident reported to the opposite party. This petitioner is liable to the balance amount towards the chitty commission with 15 percent interest from the date of default to the opposite party. The petitioner is not entitled for the amount which he has paid as installments towards the kuri which he has defaulted as per chitty agreement. The petitioner never approached this opposite party or opposite party No.1 of Kalpetta office as such he is not entitled for any amount accordingly there has been no mental or financial difficulties sustained by the petitioner. The petitioner is not entitled for refund of Rs.4,850/ paid by him as chitty installments with compensation as claimed in the petition. It is respectfully submitted that it is with the commission amount received from the subscribers that every Chitty Institution exists. It is submitted that as per section 3 and 64 of the chit Funds act 1982 the affairs of the chitty can be decided only by a Registrar/arbitrator which has started functioning recently at Trivandrum for the whole State of Kerala. The petitioner has no cause of action to lodge the complaint. There is no deficiency of service on the part of these opposite parties. Hence prayed to dismiss the complaint.
3. The opposite party filed I.A.19/2015 challenging the maintainability of this complaint. Complainant/respondent filed counter and heard both parties and I.A dismissed on ground that the complaint is maintainable before this Forum.
4. On perusal of complaint, version and document the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and cost.
5. Point No.1:- Complainant filed affidavit and examined as PW1 and Ext.A1 document is marked. Ext.A1 is the chitty pass book. Opposite party also affidavit filed and cross-examined. Thereafter on 27.03.2015 complainant filed I.A.103/2015 to amend the complaint and implead supplemental opposite party No.2 the Managing Director of the opposite party Company. As per the Order of this I.A. Opposite party No.2 was impleaded and version filed. Complainant also filed additional affidavit but opposite party not cross-examined the complainant and evidence closed. Heard both the parties, opposite party argued that the amount claimed is barred by limitation the chitty installment became defaulted only because of the deficiency of the complainant. The amount shown in Ext.A1 is admitted by both the opposite parties. As per I.A.278/2013 filed by complainant, opposite party is directed by this Forum to produce the entire documents pertaining to the disputed chitty. But opposite party failed to produce the required documents.
6. Opposite party's Manager was examined as OPW1, he deposed that the disputed chitty was terminated before he joining opposite party's company but records are not available with them. So he is not a competent person to say about the disputed chitty. Opposite party argued that the rule of the chitty agreement is that a subscriber defaults three consecutive installments the defaulted subscriber ceased to be a subscriber and in his place the company steps into the shoes of the subscriber. Again opposite party contented that complainant is not entitled for the amount which he has paid as installments towards the chitty, which he has defaulted as per chitty agreement. Again opposite party contented that complainant never approached opposite party's office as such he is not entitled for any amount accordingly, there has been no mental or financial difficulties sustained by the petitioner. Opposite party admitted the amount shown in Ext.A1 but no documentary evidence produced by opposite party to show that the chitty was terminated or discontinued or transferred. Opposite party is entitled for chitty commission but the reason for default of the subscription is not proved beyond doubt. Whether it is due to the default of complainant or opposite party. Complainant alleged that opposite party's agent did not approached him to collect the subscription. Opposite party failed to produce the documents relating the group No.3 chitty. They filed affidavit stating that all the documents with regard to the above chitty was misplaced while transferring it to the record room as and when the chitty was over. In Ext.A1 as well as in the version opposite party admitted that the complainant has paid Rs.4,850/- as chitty installments. Opposite party argued that it is with the commission amount received from the subscribers that every chitty institution exists. But in this case, on going through the evidences and records Forum could not reach a conclusion that group No.3 chitty of opposite party's completed or not, opposite party failed to produce the details shown as per the Order in I.A.278/2013. Hence we opine that there is deficiency of service from the part of opposite parties and complainant is entitled to get the amount as per Ext.A1.
7. Point No.2:- Since the Point No.1 is found against the opposite parties, they are liable to return the amount received from the complainant with cost and compensation.
In the result, the complaint is partly allowed and opposite parties are directed to return Rs.4,850/- (Rupees Four Thousand Eight Hundred and Fifty) to the complainant. Also the opposite party is directed to pay Rs.1,000/- (Rupees One Thousand) as cost and Rs.1,000/- (Rupees One Thousand) as compensation to the complainant. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29th day of July 2015.
Date of Filing:19.07.2013.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Haja Hussain. Complainant.
Witness for the Opposite Parties:-
OPW1. Jose. Manager, Dhanakodi Chits, Sulthan Bathery.
Exhibits for the complainant:
A1. Chitty Pass book.
Exhibits for the opposite parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
