KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.905/05 JUDGMENT DATED 8/9/08 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER S.CHANDRAMOHAN NAIR : MEMBER 1. The Managing Director, Kerala State Financial Enterprises Ltd., Museum Road, Thrissur : APPELLANTS 2. The Managing Director, Kerala State Financial Enterprises Ltd., Branch Kadappakkada, Kollam. (By Adv.P.K.Venugopal) Vs Thulasi Bhai, Rahul Bhavan, Keerikadu. P.o. : RESPONDENT Kayamkulam. (By Adv.Dinesh Sajan.K.) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER This appeal is preferred by the opposite parties in OP.No.179/04 of CDRF, Kollam who are under orders to pay to the complainant a sum of Rs.91,400/- with compensation of Rs.5,000/- and cost of Rs.1,000/-. The appellants are also directed to pay 9% interest on the prize amount of Rs.91,400/- from the date of filing of the complaint till the date of payment. 2. The case of the complainant before the Forum was that she was a subscriber of the opposite parties in chitty No.85/01 with chittal No.48 for a sala of Rs.1,00,000/-. The complainant had given a proxy for one year from 9/12/01 to 9/11/02 in favour of the 2nd opposite party, Manager, to participate in the auction. It is her case that on 9/10/03 she directly participated in the chitty and got the chitty prized in favour of her for an amount of Rs.91,400/- and she had signed some records to that effect. But the 2nd opposite party later informed her that the chitty was prized in her favour as back on 11/11/02 and she was asked to receive a sum of Rs.70,000/- after the reduction of 30% and alleging deficiency of service and unfair trade practice the complaint was filed praying for directions to the opposite parties to pay the amount of Rs.91,400/- with interest and cost. 3. Resisting the allegations of the complainant the opposite parties filed version contending that the ticket of the complainant got prized in the draw held on 11/11/2002 and that fact was intimated to her on 13/11/02 by registered letter. The complainant did not come forward to accept the amount and as per the chitty conditions she was liable to get only Rs.70,000/- which was prized in her favour as per proxy. It was also contended that the allegation of the complainant that she was never informed was not correct. The opposite parties denied the allegations of unfair trade practice and deficiency of service and they prayed for the dismissal of the complaint. 4. The evidence consisted of the oral testimony of PW1, DW1 and documents P1 to P5 and D1 to D9. 5. The learned counsel for the appellants submitted his arguments based on the contentions taken in the version as well as the grounds urged in the memorandum of the present appeal. It is argued him by that the chitty was prized in favour of the complainant/respondent as per the proxy and she was informed of the said fact vide Ext.D2. He also relied on Ext.D4 and D5. It is argued by him that the chitty was prized in her favour on 11/11/02 on the strength of the proxy (D1) executed by the complainant . The complainant cannot make a claim later and participate in the auction held on 9/10/03. The appellants also gave emphasis to the fact that Ext.D4 would clearly prove that the matter was informed to the complainant/respondent regarding the prizing of the chitty and it was the fault of the complainant that she did not come forward to accept the money and hence there was no negligence or unfair trade practice on the part of the opposite parties. It is also his case that the opposite parties had done everything in the proper way and hence it is his very case that the Forum ought to have dismissed the complaint. 6. On the other hand, the learned counsel for the respondent/complainant argued the case supporting the findings and conclusions of the Forum below. He has argued that if the appellant’s case is correct there would have been no occasion for permitting the complainant to participate in the auction on 9/9/03 and 9/10/03 on which dates the complainant directly participated in the auction. He has also argued before us that it was unfair on the part of the opposite parties to deny the claim of Rs.91,400/- on the ground of a letter alleged to have been sent by the opposite party on 13/11/02. He has disputed the fact of dispatch of sent such a letter and he prayed for dismissing the appeal upholding the directions contained in the order. 7. On hearing the counsel for the appellants and respondent, we find that admittedly the complainant is a subscriber of the opposite parties in chitty No.85/01 with chital No.48 for a sala of Rs.1,00,000/-. We have directed the opposite parties to produce the original of D5. On a perusal of the dispatch register it is found that the letter has been sent to the complainant Smt.Thulasi Bai on 13/11/02. There is no reason to disbelieve the genuineness of such an entry in page No. 42 of dispatch register as it is seen entered not on the top or bottom of the page but in between the letter sent to the Smt.Geetha and Ajay Prasad. However it is to be noted that after sending such a letter the opposite parties/ appellants have kept silent about the prizing of the chitty on 11/11/02 even when the complainant was coming to the 2nd opposite party for remitting the chitty instalments. It is also to be noted that the complainant was allowed to participate in the auction of the chitty on 9/10/03 and the opposite parties/appellants have awakened only after the request of the party to get the auctioned amount of Rs.91,400/-. The letter sent on 9/10/03 is sent after an year and the complainant has been informed to receive the amount as per the prizing of the chitty on 11/11/02. Even though it is argued and found that the letter was sent on 13/11/02 it was the duty of the opposite parties to see that the prize amount was paid to the complainant or deposited the amount in the name of the complainant/respondent. Such an action was not taken by the appellants and in the said circumstance it is found that there is some deficiency on the part of the appellants. The complainant/respondent has also been allowed to participate in the auction on 9/10/03 which would show that the opposite parties had not taken proper care and caution in the conducting of the chitty. In such circumstances it is our irresistible conclusion that the complainant has to be compensated for the deficiency of service of the opposite parties. 8. The Forum below has ordered to pay Rs.91,400 with 9% interest from the date of complaint. However the same cannot be supported as the chitty was prized in the drawn held on 11/11/02 and the intimation has been sent on 13/11/02. In the said circumstance we find that it will be reasonable and justifiable if the opposite parties are directed to pay the complainant of Rs.70,000/- with 18 % interest from 11/12/02 (one month time will be reasonable for the processing of the claim) till the date of payment. The complainant is also allowed to realise the cost of Rs.1,000/- as ordered by the Forum below. In the result the appeal is allowed in part modifying the order to the extent that the opposite parties are directed to pay Rs.70,000/- with 18% from 11/12/02 till the date of payment with cost of Rs.1,000/- In the nature and circumstance of the case the parties are directed to suffer their respective costs. S.CHANDRA MOHAN NAIR : MEMBER VALSALA SARANGADHARAN : MEMBER Pk.
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