CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.

Present

Sri. Santhosh Kesavanath P. President

                                                                                                                                   Sri. K.N. Radhakrishnan, Member

 

CC No.24/09

 

Monday the 12^th day of December, 2011

 

Petitioner                                                          : K.C.Augusthy

                                                                         Kattakkayam,

                                                                         Nechipuzhoor PO

                                                                         Pala, Kottayam.

                                                                        (Adv.Biju Zacharias Kolady)   

                                                                      Vs.

Opposite party                                                 : Registrar,

                                                                         Sub Registrar Office,

                                                                         Meenachil Taluk.

                                                                        2) Suresh Kumar,

                                                                            Vazhoor Sub Registrar Office,

                                                                            Vazhoor.

                                                                           (party in person)

                                                                        3) The Secretary,

                                                                            Registration Dept.,

                                                                            Govt.of Kerala, Secretariat

                                                                            Trivandrum.

                                                                        4) The District Collector,

                                                                             Kottayam.

                                                                            (OP 1,3&,4 Adv.Dist.

                Govt.Pleader R.Vikraman Nair)

 

                                                                        ORDER

             Case of the petitioner, received by post on 16/12/08 is as follows.

            Petitioner on 18/9/07 applied for an encumbrance certificate to the 1^st opposite party by paying the prescribed fee. On 19/9/07 petitioner gone to the office of 1^st opposite party for collecting the encumbrance certificate, opposite party has not given the encumbrance certificate as agreed. Petitioner filed complaint to the opposite party and issued a copy of the complaint to the District Registrar. According to the petitioner the purpose of encumbrance certificate is to produce it before the Valavoor Service Co-operative Bank for sanctioning a loan. Petitioner had to entrust the loan amount to a person who is going abroad in 20/9/07. Petitioner waited in the office of 1^st opposite party upto 3’O clock, five times, petitioner enquired to the 1^st opposite party with regard to the issuance of the certificate. 1^st opposite party harassed petitioner but not supplied the encumbrance certificate. On 24/9/07 petitioner given complaint to the Chief Minister, as per the complaint a false report is submitted by the District Registrar to the Chief Minister. On 25/6/08 and on 14/8/08 petitioner had given complaints to the Inspector General Registration Department. According to the petitioner so far grievance of the petitioner has not redressed. On 17/11/08 petitioner issued a letter to the opposite party, opposite party has not so far replied. According to the petitioner due to the act of opposite party petitioner sustained huge loss. Petitioner prays for a direction to the opposite party to pay compensation.

            1^st opposite party filed version contenting that the petition is not maintainable, there is no deficiency in service on the part of 1^st opposite party. State of Kerala is not a party in this case and no complaint will lie against the employees of State without the state being a party in the complaint. As per the application of the petitioner, the encumbrance certificate was prepared on 19/9/07 as last of 18 applications of same nature.   Certificate was prepared and the person who is competent for verifying the prepared document was out of station on official duty. Petitioner reached the office on 20/9/07 for certificate. When the petitioner demanded the certificate the office staff informed that the person eligible for verifying the prepared document was out of station for official duty and he will come after 1’O clock. The person present in the office at the time was two LD clerks having 2 months service only and they were not eligible for verifying the document. Sri. Anilkumar who had went to Kottayam on official duty returned at 1.30 PM and he verified the document and completed the formalities for delivery of the same to the petitioner. At that time petitioner was not present in the office and upto 5 ‘O clock he had not returned for accepting the document. Next day was Sunday and on Monday morning the petitioner reached the office and collected the certificate without any objection. The averment of the petitioner that he was present till 3’O clock was denied.   Certificate was ready for delivery at 1.30 PM and at that time the petitioner was not present in the office and he did not return upto 5 ‘O clock. According to the 1^st opposite party petitioner has not sustained any damages and there is no deficiency in service on the part of the 1^st opposite party.

            2^nd opposite party filed version contenting that petition is not maintainable. 2^nd opposite party admitted the application dtd 18/9/07. 2^nd opposite party prepared the same on 19/9/07 and was placed before the Sub Registrar for putting the signature. According to the 2^nd opposite party he is only entrusted with the duty of verification of the encumbrance and preparation of the certificate, 2nd opposite party contented that there is no deficiency in service on his part and prayed for dismissal of the petition.

            3^rd and 4^th opposite party filed joint version contenting the same contention as raised by the 1^st opposite party and they prayed for the dismissal of the petition with their costs.

i)                    Whether petitioner is a consumer and petition is maintainable or not?

ii)                   Where there is any deficiency in service on the part of opposite parties?

iii)                 Reliefs and costs?

Evidence in this case consists of affidavits filed by both parties Ext.A1 to A23 documents on the side of the petitioner and Ext.B1 to B7 documents on the side of the opposite parties.

            According to the opposite party duty performed is statutory in nature, carried out by the government. Collection of registration charge or stamp duty is not by way of consideration for rendering service and there is no hiring of service. So petitioner is not a consumer. In our view public authorities are accountable for their arbitrary and ultra virus action.   State is liable to compensate for loss or injury suffered by a citizen due to arbitrarily action of its employee. Further more public authorities who are entrusted with the statutory function cannot act negligently. So the word “consumer” is a comprehensive expression it extent from the person who buys any commodity to consume or availed any service.   In the act “consumer” is defined in two parts first deals with goods and other with services. Both parts declare meaning of goods and services by use of wide expression. When a statutory authority issues encumbrance certificate for the benefit of common man it is as much service even though it is a statutory service. So in our view the petitioner is a consumer and the petition is maintainable before this Forum.

            According to the petitioner act of the opposite party in not issuing the encumbrance certificate on 19/9/07 amounts to deficiency in service. 1^st opposite party contented that on 19/9/07 there are altogether 18 encumbrance certificate. Person who is entrusted with collection of fees and signing of certificate is Junior Superintendent.   If the Junior Superintendent is absent, duty of sign of the encumbrance certificate vests with the Sub Registrar. The Junior Superintendent T.P. Kusumakumari is on leave from 5/9/07 to 29/9/07, Jose Varghes UD Clerk is on leave from14/9/07 to 19/9/07.There are only 4 LD Clerks . Out of the 4 LD clerks Thomas Joseph and Smt. Bhagyalakshmi were junior and is not competent to prepare encumbrance certificate, as per the norms as stated in the registration manual. One V.Sureshkumar LD clerk is responsible for the preparation of the encumbrance certificate. Said Sureshkumar was on official duty on 19/9/07, said Sureshkumar prepared the encumbrance certificate after 5 PM on 19/9/07. According to the 1^st opposite party due to work load and lack of staff it is not able to prepare the encumbrance certificate. 1^st opposite party further contented that nobody entrusted the encumbrance certificate to 1^st opposite party to put his signature.

            It is very interesting to note that one V.Sureshkumar LD Clerk, of the said office filed version in contradiction to the version of 1^st opposite party. According to the 2^nd opposite party he prepared encumbrance certificate on 19/9/07 and entrusted the same to 1^st opposite party for putting his signature. Petitioner produced report filed by the District Registrar to Joint Secretary of Petition redress cell of Chief Minister said document is marked as Ext.A9. In Ext.A9 District Registrar (General) Kottayam reported that from the deposition of the Sub Registrar and Clerk the application was ready on 19/9/07. Petitioner was not present at the office for accepting the same on 22/9/07, after launch, petitioner came to the office for accepting the encumbrance certificate. In the version of opposite party 1, opposite party 3 and 4 they admitted that petitioner reached the office on 22/9/07 for getting the certificate. Petitioner produce certified copy of document No.1641/07 the said document is registered on 20/9/07 said document is marked as Ext.A14. From Ext.A14 it can bee seen that petitioner is signed as a witness in Ext.A14 and he is personally present in the Sub Registrar Office on 20/9/07. On different occasion opposite party has different version with regard to the non issuance of the encumbrance certificate. Admittedly the encumbrance certificate is ought to have been given to the petitioner on 19/9/07 but it was given to the petitioner only on 22/9/07. Ext A20 is a letter issued by registration Inspector general to the petitioner. In Ext.A20 the I.G of registration communicated to the petitioner that he had given strict warning to the sub registrar who delayed the issuance of encumbrance certificate. In our view the act of the opposite party amounts to deficiency in service.   It is unfortunate that matter which required immediate attention linger on and man in the street is made to run from one end to other with no result. When citizen seeks to compensation from public authority in respect of injuries suffered by him is to be award. When the Fora direct payment of damages against the state the ultimate sufferer is the common man. It is the taxpayer’s money which is paid for in action of loss that is entrusted under the act to discharge their duties in accordance with law. Even though the petitioner claimed damages for remotness of damages caused to him. But are only allowing damaged for the deficiency in service committed by the opposite parties. So point no. 2 is found accordingly.

            In view of the findings in point No.1 & 2 petition is allowed. Opposite party is ordered to pay the petitioner an amount of Rs. 5000/- as compensation. Opposite party also ordered to pay Rs.1000/- cost of the proceedings. The 4^th opposite party is liable to pay the compensation to the complainant from the public fund immediately. But recovered the same from those who are found responsible for such unpardonable behaviour. Recover the amount proportionately if there is more than one functionary.

            Order shall be complied with within one month of the receipt of a copy of the order.

Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the.12^th day of December, 2011.

 

Sri. K.N. Radhakrishnan, Member                    Sd/-

            Sri. Santhosh Kesavanath P. President Sd/-

Ext.A1-copy of receipt with vide No.2855/07

Ext.A2-Copy of application dtd 20/9/07

Ext.A3-postal receipt

Ext.A4-A.D card showing acceptance of A2

Ext.A5-Copy of Deed No.1641/07

Ext.A6-copy of agreement dtd 20/9/07

Ext.A7-Copy of encumbrance dtd 19/9/07

Ext.A8-Letter dtd 18/5/09 issued by Secretary VSC Bank

Ext.A9-lawyer’s notice dtd 13/12/07

Ext.A10-copy of reply notice dtd 15/12/07

Ext.A11-Agreement dtd 11/1/08

Ext.A12-petition dtd 24/9/07 addressed to Chief Minister

Ext.A13-letter dtd 16/10/07 issued from office of Chief Minister

Ext.A14-Intimation dtd 9/1/08

Ext.A15-Report of District Registrar dtd 14/11/07

Ext.A16-copy of reply received from S.R.O as per R.T.I Act

Ext.A17-copy of petition submitted to Inspector General Registration by the petitioner

Ext.A18-copy of petition dtd 14/8/08 addressed to I.G.Registration

Ext.A19-Ltr dtd 26/12/08 issued by I.G Registration Ernakulam

Ext.A20-Ltr dtd 18/3/09 given by I.G Registration to the petitioner

Ext.A21(series)notice and postal receipt dtd 17/11/08 (2 Nos)

Ext.A22-Postal AD showing acceptance of A21 dtd 18/11/08

Ext.A23-Postal A.D showing acceptance on 19/11/08                                                 

Ext.B1-Copy of order in OP 256/98

Ext.B2-Copy of application in encumbrance certificate

Ext.B3- Kerala Registration manual page No.373

Ext.B4-Copy of EC register page

Ext.B5-Attendance register Sept.2007

Ext.B6-attendance register July 2007

Ext.B7-Copy of deed No.1641/1/07   

 

By Order,