KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.646/05 JUDGMENT DATED.7.7.09 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. Sherly Mammon, Chirackal House, Vellayamkudy P.O, Suvarngiri. 2. K.C.Thomas, Kalarickal House, Changanassery.P.O Thengana., 3. Chinnamma Mathew, -- APPELLANTS Chukkananickal House,Thovarayar.P.O, 20 Acre. 4. Shalby Mathew, Chukkananickal House, Thovarayar P.O, 20 acre. (By Adv.Rajaprathap) Vs. The Secretary, The Aided School Teachers -- RESPONDENT Co-operative Society Ltd. No.K.336 Kattappana.P.O. SRI.S.CHANDRAMOHAN NAIR,MEMBER By the order dated 4.5.05 in OP.20/05 the CDRF. Idukki has dismissed the complaint with cost of Rs.2000/- to be paid by the complainant to the opposite party. It is aggrieved by the said directions of the Forum below that the present appeal is filed by the complainant calling for the interference of this Commission as to the sustainability of the order passed by the Forum. 2. The complainants had approached the Forum with the grievances that they were subscribers to a deposit scheme propounded by the opposite party and that though they were liable to remit the instalments regularly, they were also allowed to remit the defaulted payments with payment of interest. However, certain instalments were defaulted and when they tried to pay the amounts the opposite party refused to accept the arrears on the contention that as per a decision of the committee on 1/8/03 the defaulters were not permitted to continue in the scheme. Hence, alleging deficiency in service the complainant was filed praying for directions to the opposite party to permit the complainants to continue in the scheme on remittance of the arrears with interest with the further direction for payment of compensation. 3. The opposite party resisted the complaint by filing version stating that as per a resolution it was decided to close the RD accounts in respect of depositors who had committed default of more than 3 instalments and wide publicity was given for the said decision. It was also contented that though the complainants were given option to close the account and joint in the new scheme they were not amenable for the same and in such a situation there was no deficiency in service on the part of the opposite party. 4. The evidence consisted of the oral testimony of the first complainant as PW1 and documents P1 to P11. On the side of the opposite party the Secretary was examined as DW1 and Exts.R1 to R10 were marked. 5. We heard both sides. 6. The learned counsel for the appellants vehemently argued before us that the Forum below has dismissed the complaint without appreciation of the facts and circumstances and the evidence adduced by the complainants. He has much relied on Ext.P1 to P3. It is his very case that the complainants joined in the scheme on the basis of Ext.P1, conditions of the deposit scheme and argued before us that nowhere in the Ext. P1, there is a provision for denying the payment towards the Recurring Deposit if the depositor was prepared to give interest as per clause 4 of the conditions. He has also given much importance to Ext.P3 where the Joint Registrar of Co-operative Societies had directed the opposite party to allow a depositor to continue the remittance as per clause 4 of the conditions of Recurring Deposit. It is also his very case that the opposite party cannot suomottu alter the conditions and the account holders of RD account cannot be denied the benefits of the scheme in the guise that there was a committee decision restraining the account holders from continuing in the scheme if they had committed defaults for more than 3 instalments. It is also argued for the learned counsel for the appellants that the account holders/complainants were not informed of such a decision, and in such a situation the opposite party’s action in discontinuing the scheme as against the complainants amounts to deficiency in service. It is further argued by the learned counsel that the complaint is to be allowed in toto. 7. On the other hand, the learned counsel for the respondent/opposite party supported the findings and conclusions of the Forum below. It is argued by him that if the depositors commit defaults it would not be possible to continue the scheme and it was in order to restrict defaults in payment that the committee had decided to close the RD accounts in respect of depositors who had committed defaults for more than 3 instalments. It is also his case that the complainants hade defaulted so many instalments and it was in such a circumstance that they were denied the benefit of the scheme. Contending that there was no deficiency in service, the learned counsel prayed for the dismissal of the appeal also with cost. 8. On hearing the counsel for the appellant and the respondent and also on perusing the records, we find that it is the admitted case of both the parties that the complainants were account holders of the RD scheme started by the opposite party. It is also admitted that the complainants had defaulted certain instalments. However, on going through Ext.P1, we find that as per clause 4 of the conditions, complainants are permitted to remit the defaulted instalments with interest. There is no stipulation in the said P1 empowering the opposite party or the committee to make a further restriction or impose a further condition to close the account in respect of account holders who had committed defaults for more than 3 instalments. It is argued by the learned counsel for the respondent that the decision dated 1.8.03 was informed to the complainants and also wide publicity was given for the same. But no evidence is adduced by the opposite party in support of the said contentions. More over, it is the settled position that a part to an agreement cannot take an one sided decision to alter the existing conditions. In the instant case it is noted that the account holders are at freedom to clear the defaulted payments by paying interest as stipulated in clause 4 of the conditions. In such a situation it is our considered view that the opposite party cannot alter the conditions arbitrarily and by doing so they have committed deficiency in service. 9. The Forum has dismissed the complaint on the presumption that a decision has been taken by the committee of the society/opposite party and in such a situation the action of the opposite party is justifiable and the complainants have approached the Forum without bonafides. It is further noted that the Forum has allowed cost of Rs.2000/- also to be paid to the opposite parties by the complainants. We do not find any irregularity or impropriety on the part of the complainants in approaching the forum in as much as that they were the account holders and that they were at liberty to clear the defaulted instalments by paying interest as per a condition which was binding on both parties. We find that the complainants are consumers and they are entitled to get the reliefs prayed for. However, the prayer for allowing the complainants to continue in the scheme has becomes infructuous in the light of the fact that the period of the scheme is over. The alternate remedy that can be given is to direct the opposite parties to pay back the amount deposited by the complainants with interest at 12% per annum from the date of last remittance till the date of refund to the complainants. As interest is awarded the prayer for compensation is disallowed. We also find that the complainants are eligible for costs which we fix at Rs.3000/- for the proceedings through out. In the result, the appeal is allowed setting aside the impugned order dated 4/5/05 in OP.20/05 of CDRF, Idukki. Thereby, the opposite party/respondent is directed to refund the amount remitted by the complainants with 12% per annum from the date of the last remittance till the date of refund. The complainants are also entitled to cost of Rs.3000/- each for the proceedings through out to be realized from the opposite party S CHANDRAMOHAN NAIR -- MEMBER M.V.VISWANATHAN -- JUDICIAL MEMBER
......................JUSTICE SHRI.K.R.UDAYABHANU | | 
