SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 35 of the Consumer Protection Act 2019 seeking to get an order directing opposite parties to pay a sum of Rs.50,000/- towards compensation and Rs.10,000/- towards cost of proceedings to the complainant.
The brief facts of the complaint is that that complainant is the subscriber of chitty No.8/21 with chital No.40 conducting by 2nd OP. She updated her entire dues of Rs.35802/- on 10/5/2023. After receiving the cheque amount, 2nd OP issued the receipt No.87196551 dtd.10/5/2023. The auction of the said chitty is at 1.P.M on 10th day of every month. It is submitted that after paying the entire dues, complainant requested 2nd OP to allow her to participate in the auction conducted on the same day. But the 2nd OP declined to allow her to participate in the said auction. It is submitted that no variations from the chitty variyola is allowed in any procedure in conducting the chitty. Further submitted that even if it is auctioned the prize money will be disbursed only after furnishing sufficient security and payment will be after 30 days. So there is no problem whatsoever in allowing a genuine subscriber like the complainant. Complainant served a lawyer notice to the 2nd OP, and the 2nd OP through the lawyer sent a reply notice. The payment by cheque is not banned by KSFE. The complainant was ready to pay the cheque amount in cash. Due to the aforesaid illegal acts, deficiency in service and unfair trade practice, the complainant suffered huge monetary loss and mental agony. Hence this complaint.
After receiving notices, OPs 1&2 filed version jointly. OPs denied the averments in complaint except those admitted. It is stated that the complainant has defaulted 13 instalments of the chitty from 11/4/2022 to 10/4/2023 and produced cheque for the due amount upto May 2023 as stated at 12.50 P.M on 10/5/2023 just before the auction time. 2nd OP submitted that only subscribers who have no default upto the previous instalment and produced cheque for current instalment only can be included in auction. The staff of OP informed the complainant about the inability for inclusion in the auction. Only subscribers who have no default upto the previous instalment and produced cheque for current instalment only can be included in auction. Complainant’s name could not be incl;uded in the auction since actual realization of cheque is not made. Defaulted subscribers are not allowed to participate in auction. Hence no claim is maintainable. It is submitted that when the complainant approached 2nd O on 10/5/2023, the 2nd OP informed the complainant that it is practically not possible to include the complainant in the auction proceedings on the said date and also showed and explained to the norms, rules and circular of the company. But the complainant was not even ready to hear the explanations of the 2nd OP. Eligibility for participating in chitty auction is upto date remittance of the chit. Here for want of realization of cheque, 2nd OP was unable to include the subscriber in auction due to practical reasons. There is no deficiency in service and unfair trade practice on the part of OPs, hence prayed for the dismissal of the complaint.
At the evidence stage from the complainant’s side five documents were produced. Marked as Exts.A1 to A5. On the side of OPs, present Manager of 2nd OP branch filed his chief affidavit and 2 documents as Exts.B1&B2. He was examined as DW1 and was cross examined for the complainant. Ext.A1 is the original receipt issued by 2nd OP, Ext.A2 is the Variyola issued by 2nd OP, Ext.A3 is copy of lawyer notice, Ext.A4 is postal acknowledgment and Ext.A5 is reply notice. Ext. B1 is the circular No.2/2018 dtd.6/1/2018. Ext.B2 is Alert note No.2/2021 dtd.22/12/2021 issued by KSFE,Corporate office,Trissur. After that the learned counsel of complainant argued the matter. OP’s learned counsel filed written argument note.
The 1st plea raised by the OP is that the present complaint is not maintainable before this commission since there is no territorial jurisdiction.
On consideration of this point, we have to look into Sec.34 of Consumer Protection Act 2019 . It is specifically stated in Sec.34(2)(b) of Consumer Protection Act 2019 any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given;
Here it is an admitted facts that the complainant joined in chitty conducted by 2nd OP which situated at Udma-Kasaragod District and 1st OP is the Regional office of 2nd OP, which is at Kannur. So as per Sec.34(2)(b) there is territorial jurisdiction. The 1st plea is answered accordingly.
The next point to be considered is whether there is any deficiency in service on the part of OPs towards the complainant?
The undisputed facts are that the complainant is the subscriber in chitty No.8/21 with chital No.40 conducted by 2nd OP. Further on 10/5/2023 complainant produced cheque of Rs.35602/- and the 2nd OP issued a receipt for the same. It is also admitted that auction of the said chitty is at 1.P.M on 10th day of every month.
Complainant’s allegation is that she is the subscriber of chitty No.8/21 with chital No.40 conducting by 2nd OP. She updated her entire dues of Rs.35802/- on 10/5/2023. After receiving the cheque amount, 2nd OP issued the receipt No.87196551 dtd.10/5/2023. It is submitted that after paying the entire dues, complainant as a chital requested 2nd OP to allow her to participate in the auction conducted on the same day. But the 2nd OP declined to allow her to participate in the said auction.
2nd OP contended that the complainant has defaulted 13 instalments of the chitty from 11/4/2022 to 10/4/2023 and produced cheque for the due amount upto May 2023 at 12.50 P.M on 10/5/2023 just before the auction time. 2nd OP submitted that only subscribers who have no default upto the previous instalment and produced cheque for current instalment only can be included in auction. Further submitted that complainant could not be included in the auction since actual realization of cheque is not made. Defaulted subscribers are not allowed to participate in auction.
OP produced two documents for substantiating their contention. Exts.B1&B2. Ext.B1 is the circular No.2/2018 dtd.6/1/2018 issued by Corporate office of KSFE, Ext.B2 is the Alert Note No.2/21 issued by KSFE. On perusal of Exts.B1&B2, it is realized that the Assistant Manager of each branch can take decision to participate the chital who closed the chitty dues through cheque.
Here Ext.A1 is the receipt issued by 2nd OP after receiving the cheque of complainant submitted by her towards closing the entire dues in the chitty. 2nd OP also admitted that they have issued Ext.A1 receipt after receiving the cheque submitted by the complainant for an amount of Rs.35802/- the entire due amount till the auction date. Here complainant’s allegation is that even after receiving the cheque and issued receipt for that declining her from participating in the chitty auction is deficiency in service on the pat of 2nd OP.
Here OP does not have a case that the cheque submitted by the complainant was dishonoured. Issuing Ext.A1 receipt, it can be presumed that the 2nd OP issued Ext.A1
receipt after confirming that the cheque will be honoured. So after receiving the cheque submitted by the chital towards the defaulted chitty amount and issued receipt for that, decline them from participating in the chitty auction is nothing but deficiency in service on the part of OPs. The auction of 2nd OP , definitely caused monetary loss and mental agony to the complainant. So the complainant is entitled to get relief. Since OPs 1&2 are related in business, both of them are liable.
In the result, complaint is allowed in part. Opposite parties 1 &2 are directed to pay Rs.25,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of the case to the complainant. Opposite parties 1&2 are directed to comply the order within one month from the date of receipt of copy of this order. Failing which the amount Rs.25,000/- will carry interest@9% per annum from the date of order till realization. Complainant can execute the order as per provision in Consumer Protection Act 2019.
Exts:
A1 - original receipt issued by 2nd OP,
A2- Vriyola issued by 2nd OP,
A3- copy of lawyer notice,
A4- postal acknowledgment
A5- reply notice.
B1-circular No.2/2018 dtd.6/1/2018.
B2- Alert note No.2/2021 dtd22/12/2021.1-
PW1-Girija.C.V- Complainant
DW1- Suresh.M.K- 2nd OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR