IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC 132/2007 .
Date of Filing: 10.08.2007. Date of Final Order: 30.07.2015.
Complainant: 1. Sri Ratan Sen S/O Late Nalini Mohan Sen,
2. Smt. Sandhya Sen W/O Ratan Sen all of 91, Nilmoni Bhattacharyya Lane,
P.O.&P.S. Berhampore, Dist. Murshidabad.
-Vs-
Opposite Party: 1 The Post Master, Berhampore Post Office, Berhampore, Murshidabad.
2. Kousik Chatterjee, S/O Late Sentu Chatterjee,
Central Correctional Home, Berhampore, Murshidabad. Convicted, accd in S.Sc
585/04.
Present: Sri Anupam Bhattacharyya ………………….President.
Sri Samaresh Kumar Mitra ……………………..Member.
FINAL ORDER
Sri Anupam Bhattacharyya, Presiding Member.
The instant complaint has been filed by the complainants u/s 12 of C.P. Act, 1986 praying for withdrawal of 26 Nos. of KVPs amount to Rs. 1,50,000/- plus compensation of Rs.10,000/-.
The complainants’ case, in brief, is that the complainants purchased a Kisan Vikas Patra of Rs.50,000/- and 25 Nos. of Kisan Vikas Patras Rs.1000/-each totaling Rs.25,000/- from the office of the OP no.1 by their own self earned money in the name of their daughter Gouri Sen (Chatterjee). They wanted to give this money as dowry, but being pressurized by the husband (OP No.2) of their daughter, they were constrained to purchase it in the joint names of Gouri Sen (Chatterjee) and Kousik Chatterjee(OP No.2) on 27.02.03 and 28.02.2003 respectively. In fact neither of them either collectively or individually paid any sum of rupees to purchase said KVPs. On 4.07.2004 their daughter died by burning due to torture by her in-laws including OP No.2-husband who was convicted and for that he is debarred from succeeding the property of his wife deceased Gouri Sen (Chatterjee) as per Hindu Succession Act. Gouri Sen died issueless. The complainants are the only legal heirs of their deceased daughter. They applied before OPNo.1 Post Master for withdrawal of their KVPs but they did not pay any heed to their prayer. Then, they have filed this complaint. Hence, the instant complaint case.
The written version filed by the OPNo.1 Post Master , in brief, is that as per norms of the Department the payment can be made to the either of the holder or survivor. It has been intimated that the petitioners are not the purchaser of the said KVPs. So, they are not entitled to get payment as per Departmental Rules. Hence, the instant written version.
The written version filed by the OP No.2, in brief, is that in this case the complainants are not consumers and that the instant dispute is not a consumer dispute as per definition of the C.P. Act. This OP has denied the allegation as to torture upon the wife by her husband and father in –law. The OP purchased all the KVPs from his own money in his name and in the name of his wife jointly. After death of Gouri Chatterjee, her husband, the OP No.2 would inherit 50% of his share by way of inheritance. Sec.25, Hindu Succession Act is not applicable being the case is pending before Hon’ble High Court and also this OP has not murdered his wife and for that the complainants are not entitled to get any relief.
Considering the pleadings of both parties the following points have been framed for disposal of the case.
Points for decision.
- Whether the complaint is maintainable in its present form or not?
- Whether there is any cause of action to file this case?
- Whether the complainants are ‘consumers’ under the purview of Consumer Protection Act, 1986?
- Whether petition of complaint is barred by principles of estoppels, waiver and acquiescence or not?
- Whether the complainants are entitled to get relief as prayed for?
- To what other relief/reliefs, the complainants are entitled to get?
Decision with reasons.
Point Nos. 1 to 6.
All these points are taken up together for the sake of convenience.
The instant complaint is praying for payment of matured amount of KVPs for Rs.1.5 lac plus compensation of Rs.10, 000/- .
The complainants’ case is that they were pressurized to purchase 26 KVPs amounting to Rs.1.5 lac in the joint names of their daughter and son-in-law. Subsequently, dowry death of their daughter caused by son-in-law and other in-laws. Accordingly, to Sessions case for dowry death of their daughter was started and conviction order was passed by the Ld. Session’s Court and for that husband of the daughter of the complainants is not entitled to inherit the property of his deceased wife.
On the other hand, OP’s case is that at present the OP No.2 has been acquitted by the Hon’ble High Court from the aforesaid session’s case. OP No.2 has denied the allegation of the complainants that the impugned 26 KVPs were purchased with own money of the complainants.
The case is now taken up for hearing on fresh remand giving opportunity to both sides for adducing evidence as per order of Hon’ble State Commission.
Accordingly, the complainants has adduced two witnesses including complaint No.2 by adducing evidence on affidavit and both of them were cross-examined by the OP Nos. 1 & 2 separately.
Both the PW-1 , the Postal Agent and PW-2 the complainant No.2 –mother of deceased daughter have deposed on dock. They have been cross-examined by both OP Nos. 1 & 2 separately. They have tendered their examination –in-chief by affidavit.
PW-1 , the Postal Agent has deposed in his examination-in-chief by affidavit that though the actual payment was made by the petitioners jointly on 27.02.2003 and 28.02.2003 , the said KVPs were made in the joint names of Gouri Sen (Chatterjee) and Koushik Chatterjee, as per request of the parties.
He has deposed in his cross-examination by Op No.1 Post office that he is no longer working as an agent and during the period of his agency he used to maintain accounts in a Khata, wherein it has been mentioned the names of the purchasers, amount received from them for purchasing the same and also the dates of delivery of certificates to the purchasers.
He has also deposed that every year he maintained the separate Khata and without seeing the Khata he cannot say on which particular dates he received money. However, he is not able to submit any of his Khatas maintained by him and he has no iota of knowledge about postal rules.
He has further deposed during the cross-examination by OP No.2 that the mother of PW-1 Goruri Sen handed over the money to him for purchasing the KVPs and he does not know the source of money handed over to him by Gouri Sen.
The Ld. Lawyer for the OP No.2 has put suggestion to PW-1 to the effect that all the KVPs were purchased out of money provided by OP No.2 Koushik Chatterjeee which has been denied by him. The OP No.2 has also put suggestion to PW-1 that all the original KVPs were in the custody of OP No.2 which has been denied by the PW-1.
Mere suggestion is not evidence.
In this case the OP No.2 has not adduced any evidence to rebut the complaint’s case as well as to establish his own case.
PW-2 the complainant No.2 who is wife of complainant No.1 as well as mother of deceased daughter Gouri Sen (Chatterjee) has deposed in her examination-in-chief corroborating the complainant’s case as well as corroborating PW-1.
She has deposed-in-her cross-examination by OP No.1 Post Office that the KVPs in question were purchased in the name of her daughter Gouri Sen (Chatteerjee) and Koushick Chatterjee. Gouri Sen (Chatterjee) died in the year 2004 and she has not filed any petition in any other court for Succession Certificate for having the amount of the KVPs in question and she has not filed any other petition before the OP No.1 –Post Office.
She has also deposed in her cross-examination that no case is pending before the civil court regarding the matter of disbursement of the amount of KVPs and no case is pending before the civil court to determine the fact as to who actually paid the money for the purpose of procuring the KVPs. Kousik Chatterjee never made any objection claiming that he is the owner of the money of KVPs.
The OP No.1 has put suggestion to PW-1 to the effect that Op No.1 is not guilty of deficiency in service and they are not entitled to have the amounts of KVPs as per terms and conditions and conditions existing with the Op No.1 and he same has been denied by the complainant PW-2.
PW-2 has deposed in her cross-examination by OP No.2 that they have not filed any –Succession Certificate Case as successor of her deceased daughter and she has not filed any Civil Suit for obtaining decree regarding the share of her deceased daughter.
Also she has deposed in her cross that she has not filed any documents as source of her money for purchasing the KVPs in the name of her deceased daughter. When she volunteers that the business of her husband is the source of that money and they paid money by cash.
The Op No.2 has put suggestion to PW-2 to the effect that Kaushik Chatterjee by his earning purchased the KVPs in the name of her daughter and that the complainants have no source of income for depositing money for 26 KVPs which have been denied by the PW-2, the complainant No.2.
In this case the main contestant OP No.2 , the son-in-law of the complainants has not adduced any oral or documentary evidence to rebut the evidence adduced by the complainant save and except the judgment of the Hon’ble High Court dt. 9.10.13 setting aside the judgment and order of conviction dt. 19.6.2007 and 20.6.07 passed in Session Trial No. 5(11)/ 2004 corresponding to Sessions Serial No. 585/2004 passed by ld. Addl. Sessions Judge, 1st F.T.C., Berhampore, Murshidabad.
The Op No.2 has neither deposed on dock nor filed any evidence -on -affidavit.
He has also not adduced any evidence to prove his case that he purchased the impugned KVPs with his own earnings.
It is true that primary onus is upon the complainants.
The complainant’s main case is that they were constrained to purchase KVPs in the name of their daughter and son-in-law.
To prove the same the complainants have examined the postal agent PW-1 and the complainant No. 2 herself –mother of the deceased daughter.
Where PW-1 has deposed that he used to maintain Khata showing purchase of KVPs and money received from whom.
But no such Khata has been produced before the Forum in evidence.
Where, PW-1, the postal agent has deposed in his cross-examination by Op No.2 that mother of Gouri Sen handed over the money to him for purchasing the KVPs.
He has also deposed that he does not know the source of money handed over to him.
The impugned amount of KVPs is Rs.75,000/- , Rs.50,000/- on 27.02.2003 and Rs.25,000/- for 25 KVPs @ Rs.1000/- each on 28.02.2003.
Regarding source of such money PW-2 mother of the deceased daughter Gouri Sen has deposed that she has not filed any documents as source of that money.
When, she volunteers that the business of her husband is the source of that money and they paid money by cash.
But, husband of PW-2 has not deposed in this case who is the complainant No.1.
There is no explanation in the evidence of PW-2 as to non-examination of her husband, the complainant No.1.
Also, no document relating to the nature and income such as turnover of the alleged business of the complainant No.1 has come in evidence
Where, the alleged payment of huge amount of cash for Rs.50,000/- on27.02.2003 and Rs.25,000/- on 28.02.2003 without any gap , just on the following day to the postal agent.
Further, from the evidence of PW-1 in cross it appears that PW-2 gave such cash to the Postal Agent, PW-1.
Where, the alleged source is from the business of complainant No.1 but the alleged cash was not paid by him to the agent. Also, there is no explanation as to such payment of cash by wife of complainant No.1.
This raises serious doubt in the complainant’s case.
The complainant’s case is that the complainants purchased 26 KVPs by their own self earned money.
In the complaint petition there is no whisper relating to source of money as to business of Complainant No.1.
There is no document to show that the alleged business was in the joint name of both the complainants.
This case has been sent back to this Forum by the Hon’ble State Commission on remand for hearing afresh issuing appropriate direction to both sides to adduce appropriate evidence.
During fresh hearing as per above direction of Hon’ble State Commission the complainant has examined two witnesses including the complainant No. 2 as PW-2.
Cross-examination of PW-2 was completed on 28.1.2015 by OP No.2 and on the same day the OP No.2 prayed for time for cross-examination of PW-1, Ratan Sen.
But, in this case Ratan Sen has not deposed and thus, there is no question of cross-examination of Ratan Sen, Complainant No.1 by OP No.2.
After completion of cross-examination of PW-2 by OP No.2 on28.1.2015 the next date was fixed on 12.3.15 for further evidence when Ld. Lawyers for both parties were present but none of the parties was present personally for adducing evidence on dock nor there was any prayer from the side of the complainant for adducing further evidence. On that day the OP No.2 filed a petition praying for time for cross-examination of Ratan Sen who did not appear to depose in this case and then the case was fixed for hearing argument.
Initially, the complainant’s main case was that the OP No.2, husband of the complainants’ daughter being convicted in the Sessions Trial NO.5 (ii)/2004 for the alleged dowry death of their daughter is debarred u/S 25, Hindu Succession Act from inheriting the matured KVPs in the name of his wife.
Now, during hearing of this case on fresh remand the OPNo.2 has filed the Xerox copy of judgment of the Hon’ble High Court in CRA-414 of 2007 wherein the OP No.2 has been acquitted from the charge of dowry death of his wife and for that at present the complainant has no such case against OP No.2 as to bar u/s 25 , H.S. Act for the conviction in Sessions case.
In this case OP No.2, the son-in-law has not deposed and has no counter claim.
In this regard the ld. lawyer for the complainant has advanced argument that for absence of any counter claim and the OP no.2, Kaushik Chatterjee, son-in-law of the complainant being not deposed on dock before this Forum, there is no scope of this Forum to disbelieve the evidence of the complainant.
The settled principle is that the complainant cannot take the advantage of the weakness of the case of the OP. The complaint is to stand upon his own leg or in other words the complainant is to prove its case on its own legs.
Before this Forum the 26 KVPs in question have come in evidence to show that the deceased Gouri Sen was first party of the impugned KVPs and OP No. 2 is the 2nd Party.
The main dispute is relating to inheritance after death of daughter of the complainant.
Even if it is taken into consideration but not admitted that complaint-father purchased KVPs in the name of both daughter-Gouri Sen and son-in-law –OP No.2-Kausik Chatterjee,the same is gift to them and that cannot be revoked as there is no such case of revocation of that gift.
In another angle the Ld. Lawyer for the complainant has advanced argument during his argument in reply that the complainant No.2 being mother of the deceased daughter Gouri Sen is Class-I heir as per Hindu Succession Act.
On the other hand, the ld. lawyer for the OP no.2 , husband of the deceased wife-Gouri Sen (Chatterjee) has advanced argument claiming OP No.2 as only legal heir of issueless deceased wife as per Sec. 15 of the Hindu Succession Act.
From the cross-examination of PW-2, complainant No.2 –mother of deceased daughter Gouri Sen, it appears that they have not filed any Succession Certificate case nor filed any civil suit for obtaining decree regarding the share of deceased daughter.
From the above discussion we can safely conclude that at this juncture we do not find any deficiency on the part of the OP no.1 –Post Office as there is legal dispute regarding the disbursement of the matured value of the impugned 26 KVPs as to the question who is legal heir of the deceased Gouri Sen(Chatterjee).
That being so we have no other alternative but to conclude that this Forum is not the proper Forum to decide the same and as such the complainants are not entitled to get any relief from this Forum. They are at liberty to seek relief before the proper Forum as this Forum has no jurisdiction to decide the legal question to the effect that who is legal heir of the deceased Gouri Sen (Chatterjee) in respect of the impugned 26 KVPs as per the Hindu Succession Act.
Hence,
Ordered
that the Consumer Complaint No. 132/2007 be and the same is hereby disposed of on contest being this Forum has no jurisdiction to decide the question of legal heirs of deceased Gouri Sen (Chatterjee) in respect of impugned 26 KVPs as per the Hindu Succession Act.
The complainants are at liberty to seek relief/reliefs before the appropriate Court of Law.
There will be no order as to cost.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
Member Member President
District Consumer Disputes District Consumer Disputes District Consumer Disputes
Redressal Forum. Redressal Forum. Redressal Forum.
Murshidabad. Murshidabad. Murshidabad.
