PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 20th day of August 2011
Filed on : 13/10/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No. 538/2010
Between
Tom Thomas, : Complainant
12/435, Ollassayil house, (By Adv. Jinu Joseph,
M.K. Raghavan road, 1st Floor, 3 Ganesha
Koovapadam, Kochi-02. Building, Power House road,
Kochi-18)
And
The Manager, : Opposite party
Unni Mishiha Kuries Koovapadam (Party-in-person)
(P) Ltd., Koovapadam, Kochi-02.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
Complainant happened to be a defaulted subscriber to a monthly kuri conducted by the opposite party. The subscription was of Rs. 1,000/- per month of 60 numbers. He subscribed to 10 such kuries. The complainant has subscribed From 17th day of August 2005 to 17th February 2006. Subsequently he could not continue to pay his subscription. When he demanded refund it was denied and he was told that the subscribed amount was forfeited as foreman’s commission. Hence this complaint claiming refund along with compensation and costs.
2. The opposite party has filed version wherein several contentions have been raised to refute the demand for refund of subscribed sum. The total amount subscribed is only Rs. 54,660/- and not Rs. 70,000/- as claimed in the complaint. The opposite party is entitled to a total of Rs. 1,00,000/- as foreman’s commission as a whole from all the 10 kuries put together. In that view of the matter, it is the complainant who is liable to pay the balance amount after deducting the subscribed amounts. This complaint is filed to off set his liability to pay the balance because the complainant is in the know of things as he was one of the Directors of opposite party company for quite a long time. The opposite party has not caused any loss or injury in body, mind or money to the complainant. Hence it is urged to dismiss the complaint.
3. Complainant was examined as PW1. Ext. A1 to A12 were marked for him. No oral evidence for the opposite party. Both sides were heard.
4. The following points emerge for deliberation and determination.
(i) Whether the complainant is entitled for the refund of subscribed sum?
(ii) Any other relief allowable?
5. Complainant is subscriber to kuries as described in the complainant. He had been remitting the subscription for six months without fail, subsequently due to financial stringency he could not continue with the venture. He had subscribed to 10 such kuries. Exts. A1 to A10 pass books vouche for the payments he had paid in each ticket. Those Exts. Would disclose that the complainant had paid the subscription for the first six months availing due Bonus/dividend in each month. Therefore the actual amount he was made to pay on each occasion was much less than Rs. 1,000/-. Hence the stand taken by the complainant that he had paid an amount of Rs. 70,000/- in total is untenable. This complaint revolves round the demand of the complainant for refund of the aforesaid sum. It needs no explanation to show that he is entitled - if at all he is - only to the actual amount he had paid. As a defaulted subscriber he cannot avail the benefits of an ordinary subscriber.
Against his claim for refund, opposite party has raised the counter claim of foreman’s commission. He is of the view that he is entitled to Rs. 10,000/- in each in respect of the kuries on this score. Thus his total entitlement is worked out to be a whopping figure of Rs. 1,00,000/- as a from all the tickets. It is on that ground the opposite party has driven the ball to the complainant’s court. We have to find a way out from this legal puzzle. The foreman can very well charge for his service, a commission which is fixed at no more than 5% in Kerala S.16 (1) (b) of the Kerala Chitties Act 1975 stipulates that the commission or remuneration of the foreman shall not exceed five percent. In that view, the claim of the opposite party that he is entitled to Rs. 10,000/- on each kurie is really a tall claim. The maximum he is entitled under the Act in this case is 3,000/- and the total claim he can make in respect of all the kuris is 30,000/-. But there is a rider to this claim. This much of amount is payable only in cases where the kuries have successfully completed its normal term of 60 months. But in the instant case, the subscriber has paid only six occasions continually. But defaulted thereafter. Therefore the subscriber could avail services of the opposite party as a foreman only partly, entitling the latter charge commission commensurate with the quantum of service rendered by him to the former. In that view of the matter, opposite party is entitled to recover a total amount of Rs. 3,000/- (Rupees three thousand only) for the bunch of kuries to which complainant had been subscribing. Reciprocally complainant is not entitled to all the benefits that accrue out of the transaction as explained earlier. He is entitled to refund of the amount he had actually paid. As he is a defaulting subscriber, there is no sense in demanding the discount and other benefits just as that can be claimed by normal members. Section 25(2) of the Kerala chitties Act 1975 enjoins upon the foreman to refund the subscribed amount to the subscriber on demand on deposit it in a bank presumably to get him the due interest. Therefore the subscriber is entitled for the bank interest for the said amount. To sum up, the subscriber complainant is entitled for refund of the actual amount he had remitted in respect of all the ten kuries after deducting a total amount of Rs. 3,000/- as foreman’s commission as a whole in respect of all the kuries put together complainant is also entitled to interest on such amount @ 12% p.a. from 17th June 2006 till payment.
6. Point No. ii. In the facts and circumstances of the case, we do not think the complainant is entitled for any compensation. However he will be paid the costs of the proceedings in this forum.
7. Accordingly, the complaint stands allowed as follows:
i. Opposite party shall pay to the complainant the actual amount he had paid towards subscription after deducting Rs. 3,000/- towards commission. The aforesaid amount shall carry interest @ 9% p.a. from 17-06-2006 till payment.
ii. Opposite party shall pay to the complainant Rs. 1,000/- towards costs of the proceedings in the Forum.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 20th day of August 2011
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
