D.o.F:17/03/2011
D.o.O:29/11/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.63/11
Dated this, the 29 th day of November 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
Mrs.Annamma Jose, W/o Jose,
R/at Vayalil House, Thenoore, : Complainant
Chittarickal ,Kadumeni PO,
Hosdurg,Kasaragod
(Adv.Santhosh Thomas,Hosdurg)
1.The Managing Partner,
Jyothis Project, Devdhan Lottery Services, : Opposite parties
40/8942 C, 2nd floor, CRH Complex,
M.G.Road, Ernakulam-682035.
2. The Branch Manager,
Jyothis Project, Kottacherry,Kanhangad.
(Adv.Sethumadhavan, Hosdurg)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The complaint in brief is as follows:
Complainant joined the LIS Deepasthambam project conducted by the opposite parties and subscribed units worth `37000/- on 18/1/2006 and ` 26000/- on 27/4/2006. When the project faced some legal problems due to the intervention of the government authorities, the opposite parties suggested transferring the amount deposited by the complainant to newly started jyothis project with an offer to refund the deposit within 100 weeks. Trusting the offer complainant transferred the entrusted amount from the LIS project and the opposite parties have accepted the deposit from the complainant offering her 100% profit within 100 weeks. Complainant joined in the new Jyothis Project on 3/5/2007 in 2 heads and she was given 2 beneficiary certificates for ` 23000/- and ` 40,000/-. The date of expiry of the said deposits are shown as 26/3/2009. After the maturity period though complainant approached the opposite parties they did not pay `126000/- as promised by them. Hence the complaint.
2. According to opposite parties complaint is not maintainable as there is an arbitration agreement between the complainant and the opposite parties firm to resolve the dispute between them. The allegation that complainant had joined in the LIS Deepasthambam project conducted by opposite parties and subscribed units worth ` 37000/- on 18/1/2006 and `26000/- on 27/4/2006 and later opposite parties suggested transferring the deposit amount to newly started Jyothis Project is false and incorrect. The opposite parties are not aware about LIS Deepastabham Project Jyothis is a project owned and operated by Devdhan Lottery services, a partnership firm with separate legal entity and it has no connection whatsoever with LIS Deepastabham Project and to the knowledge of opposite parties LIS is also another partnership firm. The opposite party is a separate legal entity and none of the partners of the opposite party’s firm has any connection with LIS. The complainant has entrusted and not deposited ` 63000/- with the opposite party firm for supplying lottery tickets and magazines. The averment that the deposit made with opposite party firm expired on 26/3/09 is not correct. The expiry date mentioned in the certificate issued to the complainant at the time of joining is regarding the last date of drawing lottery tickets to the complainant in the scheme. It is neither the date of maturity nor the date of giving back benefit of lottery commission to the entrusted amount . The opposite party firm was accepting money in advance for purchasing lottery tickets and magazines on behalf of members joining in the scheme and major portion of the commission amount availing out of these purchase is sparing to the members in such a way that the ‘first come first’ basis’ will get the benefit of ‘’commission to their entrusted amount for which the opposite party firm have not committed any period or time stipulation. Further there is an agreement between the complainant and opposite party firm where the complainant joined a member that if the project cannot function smoothly due to government directions, legal orders etc then the sole responsibility of the firm shall be restricted to refunding of the entrusted amount after deducting the cost of lottery tickets purchased and magazines issued. As per the scheme of the Jyothis project any person interested in getting government lottery tickets worth `10/- can became member of the scheme. The project envisaged that the amount entrusted by beneficiary will fetch a minimum of twice the entrusted amount as lottery prize and any shortage thereof shall be made good by the opposite party firm first as reimbursement of the amount of un-issued tickets and magazines and the balance if any as compensation. The reimbursement of the amount will be only from the lottery purchase commission and prize commission obtained by the opposite party firm in the business and that too strictly on the basis of seniority of the members joining in the project. The Jyothis project was started on 12/3/2007. The project was running very smoothly without any complaints. But the firm stopped functioning due to the intervention of police and civil court. But subsequently Hon’ble High Court of Kerala in WP©24704/2009 dtd 17/9/2009 directed the Commissioner of Police Kochi City to take final decision in the matter. On the basis of said direction the City Commissioner of Police conducted an enquiry and find that the working of the firm is legal and hence permitted the opposite party to continue the business as on 19/10/09. The opposite party is ready to give back the entrusted amount as per the agreement between the complainant and opposite party firm. The further contention of opposite party is that the forum lacks jurisdiction in view of the agreement between complainant and opposite party which stipulates that the disputes shall be adjudicated within the courts situated in Kochi Corporation. The complainant is not entitled for any interest as there is no stipulation in the agreement to pay interest. The complaint is therefore liable to be dismissed.
3. Complainant filed proof affidavit in support of her case. Exts.A1to A6 marked. No evidence either oral or documentary has been adduced by opposite party. Both sides heard. Documents perused.
4. The issues to be settled in this case are:
1. Whether the complaint is maintainable before the Forum?
2. Whether there is any deficiency in service on the side of opposite party?
3. Whether the complainant is entitled for any relief as claimed?
4. What order as to relief and costs?
5. Point No.1: According to opposite party there is an arbitration clause in the agreement executed by the complainant with them hence the recourse of the complainant is only the settlement of dispute by an arbitrator. But to substantiate the contention no agreement is produced by the opposite parties. Further the Hon’ble Supreme Court in Sky Pak Courier vs. Tata Chemicals Ltd has held that the arbitration clause is an agreement is not a hurdle for the Consumer Fora to go into the merits of a consumer dispute. Another contention of opposite party is that the complaint is not maintainable due to lack of territorial jurisdiction since as per the agreement between the complainant and opposite party only Kochi courts alone have jurisdiction to adjudicate the disputes. This contention is also not sustainable . Opposite party is doing business all over Kerala by opening branches in all districts. As per Sec 11(2) of the Consumer Protection Act a complaint can be instituted either the opposite party resides or carries on business or having a branch office. The complaint can also be instituted where the cause of action wholly or partly arose. The 2nd opposite party is the branch office of Ist opposite party and the complainant’ entrusted’ the amount with 2nd opposite party from Kanhangad which situates within the territorial limits of this Forum. Hence the Forum has territorial jurisdiction to try the case.
6. Issue No.2&3 are discussed together
The opposite parties contend that the amount remitted is an ‘entrustment’ and not’ deposit’ and the entrustment was towards the purchase of lottery tickets and magazines. According to them there is an agreement executed between the complainant and opposite party to that effect. But no such agreement is produced before us. Hence we are not inclined to accept this contention of the opposite parties and further it is also difficult to believe that one will try his luck by taking lottery tickets through another without any benefits when he has easy access to purchase the lottery tickets locally. Therefore the contentions of the opposite party is not acceptable and their acceptance of amount promising to return it in double within a short period and the subsequent lapse on their part to repay the money as promised amounts to deficiency in service and therefore opposite party is liable to compensate the complainant.
7. According to the complainant , she has invested the amount with opposite party on the promise that opposite party will returns the amount in double within 100 weeks. This is a highly speculative deal. In normal course of business it is impossible to double the capital within a short span of 100 weeks ie approximately 2 years. The complainant is therefore not entitled for the whole relief claimed. But is eligible to get her entrusted amount with a reasonable interest.
8. Issue No.4 : Relief & Costs:
As per Ext.A1 complainant has entrusted ` 40,000/- and as per Ext.A2 ` 23,000/- on 3/5/2007. The complainant is entitled to get back the said amount of ` 63,000/- with interest @ 9% from the date of entrustment. Hence the complaint is allowed and opposite party is directed to pay ` 63,000/- with interest @9% from 3/5/2007 to till date of payment. Opposite parties are liable to pay a cost of ` 3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order.
Exts.
A1&A2-Beneficiary certificate
A3-6/1/11- copy of lawyer notice
A4-AD card
A5-brochure
A6-news paper
PW1-Annamma Jose-complainant
MEMBER MEMBER PRESIDENT
eva/
