DOF.29.9.2009 DOO.14.9.2010 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 14th day of September 2010 C.C.No.259/2009 Smt.M.Rekha, Sree Mangalam, Kavumbhagam, Thalassery Complainant (Rep. by Adv.K.Ajith Kumar) Manager, Kannur District Co-op. Bank Ltd., Thalassery. Opposite party (Rep. by Adv.Preethi Parambath) 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 return the pledged items after collecting the loan amount with interest or to pay the present market value of the pledged gold and an amount of Rs.25, 000/- as compensation with cost. The case of the complainant in brief is as follows: Complainant pledged her gold ornaments weighing 46.5 grams with opposite party on 15.7.08 and received an amount of Rs.40, 000/- as loan. At the time of weighing the ornaments the applicant was asked to sign an application which was not filled. Subsequently office staff asked the address of the applicant and orally submitted to them her address. The complainant was not aware of the contents of what was written. The applicant has given her full address including that of her husband as per the request by the opposite party. When complainant approached opposite party to take back the pledged ornaments she heard that it was auctioned by Bank. It is an illegal act. Bank authorities did not make her aware of any such stipulations and regulations at the time of taking the loan. The value of the ornaments is much greater than the value of gold since it was a pleasant gift of her father. In the reply of lawyer notice opposite party stated that all communications were sent to the address given by the complainant at the time of issuing the loan. It is a false statement complainant applicant has no need to give false address. If the application is filled with wrong address it is the fault committed by the staff of the opposite party who filled the application and complainant was not aware of the information what was really written in the application form. Hence the opposite party is liable to accept loan amount due and to return the pledged ornaments. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version contending that it is false to say that the complainant had put her signature in the unfilled application for gold loan. In fact, only after entering the full details of the applicant the printout of the same will be taken for obtaining the signature from the party. Hence the applicant can see what is written and what is not written. The loan was sanctioned for 3 months. Since the complainant failed to take back her pledged ornaments reminder was sent on 21.1.09 requesting to take back the ornaments. But there were no response. So registered notice was issued on 10.2.09 and 28.2.09 followed by another ordinary notice on 12.3.09. Complainant did not approach to take back the ornaments. In the absence of response on the part of complainant opposite party is constrained to move in accordance with rules and regulations of the bank and the ornaments finally auctioned on 18.3.09 and the same intimated to the complainant. All the communications were sent in the address given by the complainant. There is no deficiency in service on the part of opposite party. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complaint is entitled for the remedy as prayed in the complaint? 3. Releif and cost. The evidence consists of the oral evidence adduced by PW1, DW1 and Exts.A1 to A3 and B1 to B5. Issue Nos.1 to3 Admittedly complainant pledged her gold ornaments one chain and 2 anklets weighing 46.5 grams for an amount of Rs.40, 000/-. The case of the complainant is that she had given all the information to the staff of opposite party and also put signature to an unfilled application form. But when she went for taking back the pledged ornaments she realized the fact that her ornaments were auctioned. Complaint alleges that the ornaments were auctioned without giving any information to her. However complainant was given receipt issued by opposite party on 15.7.08 for pledging the ornaments Ext.A1 is the receipt. Complainant has alleged that she was not informed any stipulation and regulation by the opposite party at the time of pledging the ornaments. The specific case of the opposite party is that after entering the full details of the complaint/applicant the print out of the same was taken and signature was obtained there after. That means at the time of signing she was able to see what was written in the application form. Opposite party contended that the loan was sanctioned for three months. But the complainant did not come to take back the ornaments after the expiry of 3 months. It is pertinent to note that complainant also has no case that she went to bank within the stipulated time to take back the ornaments. Opposite party further contended that they sent reminder on 21.1.09. Complainant was not responded. Two registered letters one on 10.2.09 and the other on 22.2.09 also sent requesting to take back the ornaments. Since there was no response opposite party has finally sent an ordinary letter on12.3.09. Opposite party further contended that in the absence of response on the side of complainant opposite party was constrained to auction the pledge ornaments on 18.3.09as per the rules and regulation. Complainant filed proof affidavit in tune with the pleadings. Complainant also field Exts.A1 to A3. Complainant PW1 in her cross examination deposed that “IT-]y-«dn t]cpT A{U-ÊpT print out FSp-¯-Xn-\p-ti-jT AXn-emWv H¸n-«-Xv F¶p ]d-ªm icn-bm-Wv. :. Complainant is a graduate capable of reading and writing of English language. PW1 has also admitted that the period of loan 3 months were written on Ext.A1 receipt. Ext.A1 dt. 15.7.08 despite at its face itself as: “3 amk-t¯¡v “. This writing on the face of the Ext.A1 makes it clear the complainant was fully aware of the fact that the period of loan was 3 months. On the back of the receipt also contains condition among which the first one is that the maximum period to take back the ornaments is 3 months. Hence the awareness of the complainant with respect to the period of loan is proved beyond doubt. PW1 deposed further in cross examination that “3 amkT Ign-ª-t¸mÄ Rm³ At\-z-jn-¨n-Ã.-Im-c-WT t\m«okv Ab-¡p-sa-¶mWv ]d-ª-Xv. 3 amkT Ignªv _m¦n \n¶pT intimation hcm-¯-t¸mÄ Rm³ t]mbn At\-z-jn-¨n-Ã. tem¬ FSp-¯-Xn\p tijT 2 hÀjT Ignª tij-amWv _m¦n t]mbn At\-z-jn-¡p-¶Xv “.Ext.A1 and the evidence adduced by PW1 reveals that complainant was aware that the maximum period of loan was three months but she approached the bank only after one year. The only explanation given by the complainant for this delay is that she had been expecting a notice from the bank. When Ext.A1 specifically makes it clear that the maximum period for taking back the ornaments is 3 months the above explanation cannot be justified as sufficient reason for making such long delay in taking back the ornaments. Opposite party cannot be blamed for proceedings further in order to realize the amount. The negligence on the part of complainant is apparent which disentitle the complainant to get the relief sought for. As per the version 4 communications including 2 registered letters were sent by opposite party. Ext.B4 publication also done. Ext.B2 and B3 is registered letters. In a way bank has complied with formalities so as to conduct auction and to realize the amount. But a deep analysis of evidence would reveal certain facts that lead to find unfair trade practice in the dealings of opposite party. Ext.A1 is the documents that clearly shown the period of the loan. No one can deny it. But it is a card one will keep it carefully which is not reading always. There is even possibly of forgetting it. This cannot of course take as a ground to defend the case but it has to be taken into account that this aspect had been considered relevant that led the rule makers to frame rules and relations to the effect that registered communication should be sent to the party concerned before taking the hard line to auction the ornaments. That means law insist to discharge a legal duty by the concerned authority to make assure that the party/complainant has received the communication so as to push him aware of the misfortune that he/she is going to face. Here the question is whether the opposite party has discharged this legal obligation taking into consideration this aspect of law while dealing with the formalities that has been seen complied with? It could be seen that 4 letters were sent by the opposite party but in vain. It will be continued to be in vain even if series of letters happened to be sent. In the ordinary course of life if there was no response to Ext.B2 & B3 registered letter that can also be presumed that it is not reached to the addressee. B2 and B3 are returned un served. It is sure that the addressee is quite unaware of the content. Ext.B4 publication is the alternative way adopted to make known these facts to the concerned parties. But the member of the loan alone is published. So that direct attention is necessary without which the communication will not be reached to complainant. The basic reason for this hurdle is nothing but the address of the party was collected without sufficient care and attention for which the opposite party is answerable. At the time of taking down the address it should be twice read over to parties to ascertain that it is taken down correctly. Ext.A1clearlyshows the period of loan but does not show address of the applicant. Name, period and amount are written correctly. It also indicates that importance given to note the address is less than that of other particulars. The importance of sending communication in case of necessity has to be taken into account as an important aspect. If it is given to that much importance the same should have been written on the token of receipt so as to make it assure the correctness by the applicant himself. Moreover, in the case in hand there is no evidence to show that the mater filled up has been read over to the applicant. Even if the particulars are given by the applicant it is the duty of the officials to make assure that the entry particular are true and correct particularly the address. The present case it is seen out of available evidence that the authorities have not taken enough vigilance to make assure that the particulars entered is true and correct. The reason for the absence of this vigilance is not without reason. It is only because the bank is having enough security with them to compensate their loss in case of contingency. But opposite party is not that much interested not to take place such a loss to the applicant. This nature of dealings amounts to unfair trade practice. That does not mean the negligence on the part of complainant is to be discarded. It is true that if there was no negligence on the part of complainant this contingency of causing loss would have been avoided. Hence we are of opinion that the complainant is not entitled to get back the ornaments but entitled only for compensation. Taking into account the entire aspect we feel an amount of Rs.10, 000/-as compensation including cost of these proceedings will meet the end of justice. Thus the issues 1 to 3 are found partly in favour of complainant and order passed accordingly. In the result, the complaint is allowed partly directing the opposite party to pay an amount of Rs.10000/- (Rupees Ten thousand only) as compensation including the cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Receipt issued by OP A2.Copy of the lawyer notice sent to OP A3.Replynotie Exhibits for the opposite party B1.Application of the complainant for gold loan B2 & 3. Un delivered Registered notice sent to complainant B4.Paper advertisement in Desabhimani Daily dt.9.8.09 B5.Letter issued by complainant Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.P.N.Natarajan /Forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
