THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No. 147/2010
Saturday, the 28th day of May, 2011.
Petitioner : K.V Varkey,
Kureattiparambil Suvilla,
Thukalassery
Thiruvalla P.O
(By Adv. Sadarul Anam)
Vs.
Opposite parties : 1) The Managing Director,
The KSFE Ltd.,
Bhadratha P.B No. 510.
Muslim Road, Trichur.
2) The General Manager,
The KSFE Ltd.,
Bhadratha P.B No. 510
Muslim Road, Trichur.
3) The Branch Manager,
The KSFE Ltd.,
Changanacherry Branch
Perunnai P.O.
(By Adv. Anie C. Kuruvilla)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of the petitioner filed on 16..6..2011 is as follows.
Petitioner is a subscriber of the prized chitty in 2 numbers of chitty conducted by the 3rd opposite party. In order to become a member of chitty a bilaterial agreement has to be signed by the subscriber and 3rd opposite party. As per the condition stipulated in the variola opposite party is only eligible to claim 5% of the chitty sala as foremans commission. Petitioner bid the chitty vide No. 22/06 on 7..10..2009. 3rd opposite party at the time of giving the prize money deducted an amount of Rs. 332/- from prize money. Similarly at the time of giving the prize
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money of the chitty with chital No. 43 opposite party deducted an other Rs. 332/- and thus balance amount was given to the petitioner. Petitioner sent a letter to the first
opposite party for clarifying why such deduction was effected . As reply to the letter second opposite party informed the petitioner that said recoveries were effected towards service tax. The second allegation of petitioner is that the opposite party company announced lottery chitty. Petitioner also enrolled in chitty 22/06 of the 3rd opposite party. Petitioner was very prompt in remitting the chitty subscription and petitioner expected that opposite party would regularly drawing lottery tickets on behalf of the petitioner. On verifying the notice board of the 3rd opposite party it was noticed that lottery tickets with serial No. TY 340113 purchased by the opposite party on behalf of the petitioner had won prize of Rs. 500/- in the draw conducted on 20..2..2007. On 9..11..2009 when the petitioner called 3rd opposite party to collect the prize money it was understood that opposite party had not credited the lottery prize in the petitioners account as promised. Again on 15..11..2009 petitioner contacted the 3rd opposite party then it was informed that it was a mistake on the part of head office and the name of the complaint appeared in the lottery prize list is not correct. So, petitioner forwarded 2 letters to the opposite party but neither of them were so far replied. So the petitioner prays for direction to the opposite party to issue list of subscribers in chitty numbers 22/06. According to the petitioner act of the opposite party amounts to deficiency in service. So, the petitioner prays for a direction to the opposite party to refund Rs. 664/- with interest . Petitioner also claims compensation.
Opposite party entered appearance and filed version contenting that the petition is not maintainable. Opposite party admitted that the petitioner is a subscriber
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of chitty No. 22/06 with chital No. 4344 having a sala of Rs. 1,00,000/- each with 3rd opposite party. The duration of the chitty is 50 months. Execution of thalavariola is also admitted by the opposite party. The chitty No. 22/06, chital No. 44 was auctioned on 7..1..2010 after foregoing an auction discount of Rs. 7001/-. It is also admitted that Rs. 331/- was deducted from the prize money towards service tax. Like wise chitty No. 22/06, chital No. 43, was auctioned on 7..1..2010 after foregoing an auction discount amounting to Rs. 6001/- there also Rs. 332/- was deducted towards service tax. For the letter sent by the petitioner seeking clarification opposite party sent reply. Petitioner was the manager of the KSFE in its various branches from 13..9..82 to 30..11..2004. As per the circular No. 123/07 dtd: 1..12..2007 it is made clear that, as per the Finance Act 2007, Cash Management Services are also included in the list of services which are liable to service. As per the circular opposite party is bound to pay service tax with effect from 1..6..2007 at the rate of 12.36 % on the amount of foreman’s commission. As a beneficiary of service availed petitioner has to bear the service tax. For this there is no deficiency in service or unfair trade practice on the part of the opposite party.
Regarding the complaint No. 2 chitty subscribers who won lottery for the tickets purchased in chitty No. 22/06 and allotted in February 2007, published by the credit note Dtd: 1..3..2007 from the second opposite party, are chital No. 42 and 45 of chitty No. 22/06. They have won Rs. 10/- and 500/- respectively. Name of the complaint was crept in the credit note by way of a mistake. The complainant on many occasion remitted the chitty installment from June 2009 in his chitty at other branches of KSFE. If the remittance were made in another branches, the concerned authorized officer of that section would be able to know about the remittance, when it
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would actually reach him. Since the inter branches remittance was reached belatedly the lottery tickets could not be purchased on the complainants each and every monthly remittance. According to the opposite party there is no deficiency in service on the part of the opposite party. They pray for dismissal of the costs with their opposite party.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite parties?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A12 documents on the part of the petitioner and Ext. B1 to B6 documents on the side of the opposite parties.
Point No. 1
Petitioner alleges 2 acts of deficiency in service on the part of the opposite party. Opposite party illegally collected Rs. 332/- towards service tax in chitty No. 22/06 in chital No. 43 and 44. Opposite party has not deducted the prize money and not credited the lottery prize which were won by the petitioner in chitty No. 22/06. According to the opposite party they admitted that chitty No. 22/06, chital No. 44 was auctioned on 7..10..2009. On the said chital number, Opposite party collected an amount of Rs. 332/- from the prize money towards service tax. Likewise chitty No. 22/06 chital No. 43 was auctioned on 7..1..2010 there also Rs. 332/- was deducted towards service tax. Opposite party produce circular No. 123/07 (FA )Dtd 1..12..2007 said document is marked as Ext. A2. In Ext. A2 it is stated that as per the finance Act 2007 Cash Managing services are also included in the list of services which are
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liable to service tax. Chitty run by KSFE Ltd. come under the category of cash Management service, Department of Revenue, Ministry of Finance has clarified as per Ext. A2 that in the case of “Business Chitty Funds” Cash Management service is provided for consideration and therefore leviable to service tax under banking and other financial services. So, as per this KSFE is bound to pay service tax with effect from 1..6..2007 at the rate of 12.36 % on the amount of foreman’s commission. As a beneficiary of service the petitioner is in our view is liable to bear the service tax.
‘Deficiency’ is defined in Consumer Protection Act is in section 2 (g) of the consumer protection act as imperfection, shortcoming , inadequacy in the quality and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to a service. So in our view for the deduction of service tax there is no deficiency in service. Further more the petitioner’s contention that for the collection of service tax there is no specific clause stated in the chitty thalavariola and as such it is not binding on the petitioner are not sustainable. Because, chitty’s mentioned above are commenced on 29..12..2006 and the collection of the service tax were introduced from 1..6..2007on words. So the collection of service tax would not find a claim in the chitty thalavariola which was signed and executed earlier. Copy of the chitty thalavariola is produced before the fora and the same is marked as Ext. B1. As per condition 21 (a) and 32 of Ext. B1 opposite parties are legally entitled to collect service tax which were applicable from time to time.
Regarding the second allegation opposite party produced a copy of the credit note with vide No. KGJC 527/06, 07 Dtd: 1..3..2007 same is marked as Ext. A3.
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From Ext. A3 it can be seen that chital No. 42 and 45 of chitty No. 22/06 won prize for Rs. 10/- and Rs. 500/- respectively. Chital No. 42 is one Raghavan Pillai and Chital No. 45 is P.P Unnikrishnan Nair. Opposite party admitted that in the credit note which was issued from the head office of the opposite party to the branch office, Changanacherry the name of the prize winner of the lottery instead of Sri. P.P. Unnikrishnan Nair, name of the petitioner was mentioned mistakenly. Since the chital number of the petitioner is 44, first preceeding number may be due to clerical mistake. But in the above credit note the chital number is mentioned correctly and as such complainant is not entitled for lottery amount for Rs. 500/-. Copy of details of the lottery tickets purchased is produced by the opposite party and same is marked as Ext. B4. From Ext. B4 it can be seen that lottery tickets for the month of July, September, November 2007 with regard to the chital Number of the petitioner were purchased on the month of April 2010 and May 2010. Further more from Ext. B5 series personal ledger it can be seen that the complainant has won lottery prize amount of Rs. 10 /- each on different date and Rs. 20/- was won and amounts were credited in the complainant account. Further more petitioner has not adduced any evidence to prove that due to the delay in purchase of the lottery tickets in July, September and November 2009 he sustained damages. So, with regard to the second allegation in our view the petitioner has not sustained any mental loss . So, point No. 1 is found accordingly
Point No. 2
In view of the finding in point No. 1, petition is dismissed. Considering the facts and circumstances of the case no cost and compensation is ordered.
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Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 28th day of May, 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the Petitioner:
Ext. A1: Copy of receipt No. T-2580
Ext. A2: Copy of receipt T3 – 3006
Ext. A3: Copy of the letter issued by the petitioner to first respondent
Ext. A4: Reply letter
Ext. A5: Copy of letter Dtd:26..12..2009
Ext. A6: Letter No. 4302 Dt: 16..3..2010
Ext. A7: Reply letter Dtd:..............
Ext. A8: Letter Dtd: 16..1..2009
Ext. A9: Letter Dtd: 26..12..2009
Ext. A10: Letter Dtd: 1..3..2010
Ext. A11: Letter Dtd: 16..3..2010
Ext. A12: Copy of the last lottery ticket purchased for the petitioner.
Documents for the opposite party:
Ext. B1: Thalavariola
Ext. B2: Copy of the circular No. 123/07 FA
Ext. A3: Copy of credit note Dtd: 1..3..2007
Ext. B4: Details of the lottery tickets purchased
Ext. B5: Copy of personal ledger
Ext. B6 series Subscribers personal ledger.
By Order,
Senior Superintendent
