DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 31st day of July, 2024
Filed On: 07/01/2020
PRESENT
Shri. D.B. Binu President
Shri. V. Ramachandran Member
Smt. Sreevidhia T.N. Member
C.C. NO. 12/2020
COMPLAINANT
Pushpa Tomy, W/o Late Tomy, Chakkalakkal House, Ochanthuruth, Puthuvypu village. Kochi Taluk, Now Residing at Chakkalakkal House, Near Talent School, Njarakkal P.O, Puthuvel Road, Njarakkal, PIN-682505
(Rep. by Adv. Vipindas M.V., Diastus Komath, Silpa N.P. & Daison Komath, VS & DK Associates, 1st Floor, Valooran Building, Govt. Hospital Road, near JFCM Court, Njarakkal P.O., Vypin, Ernakulam 682505)
V/s
OPPOSITE PARTY
Vypeen Kurees and Finance, Cherai, Pallippuram Village, Kochi Taluk a Partnership firm represented by its managing partner Varghese, S/o Ouseph, Kuzhuppilly House, Kedamangalam, Paravur Village, Paravur Tauk, Ernakulam District, PIN 683513.
(Rep. by Adv. M.G. Jeevan, 2nd Floor, Ambuj Arcade, Canal Road, North Paravur)
FINAL ORDER
D.B. Binu, President.
1.A brief statement of facts of this complaint is as stated below:
The complainant is the wife of the late Mr Tomy, who was a subscriber of a chitty (chit fund) conducted by the opposite party, an unregistered and unauthorized chitty firm. The chitty in question, identified by Chitty Number F51 and Chital No. 1104/1104, was operated without the necessary legal registrations, violating Section 5 of the Central Act and Section 3 of the Kerala Chit Funds Act. Furthermore, the firm was involved in activities beyond the scope of chit business, contrary to Section 12 of the Chit Funds Act, 1982.
During his lifetime, Mr. Tomy made several payments towards the chitty, but the opposite party failed to record these payments in the passbook and did not issue receipts. Despite Mr. Tomy’s attempts to settle the account before his death, the opposite party did not cooperate, instead, they demanded additional charges and interest. The complainant alleges that these actions were intended to extort more money from her husband unlawfully.
After Mr Tomy's death, the complainant repeatedly approached the opposite party to obtain information about the outstanding amount and the payments made by her husband. However, the opposite party refused to provide the requested information, further causing her distress. The complainant asserts that the opposite party's actions amount to a deficiency in service and unfair trade practices, leading to mental agony, harassment, and financial loss.
The complainant seeks the intervention of the Consumer Commission to rectify the deficiency in service, direct the opposite party to close the chitty account by accepting the balance amount, return the documents belonging to her, and compensate her for the losses and injuries suffered due to the opposite party’s negligent actions.
2. NOTICE:
The Commission issued a notice to the opposite party, who subsequently filed their version.
3. THE VERSION OF THE OPPOSITE PARTY:
The opposite party acknowledges that the complainant’s husband, Mr. Tomy, was a subscriber of Chitty F51, Kaipada No: 1104/1104, conducted by their firm. However, they deny the allegations that the partnership firm is unauthorized and unregistered, stating that the firm is a legally registered partnership. They assert that the chitty in question is not unauthorized and that there have been no violations of the Central Chitty Act or the Kerala Chitty Act, particularly Sections 5 and 3, respectively. Additionally, the claim that the firm is conducting business in violation of Section 12 of the Chit Fund Act, 1982, is categorically denied.
The opposite party explains that Mr Tomy auctioned the chitty on 26.03.2011, received the auction amount, and executed an agreement to continue the payment of chitty instalments. He paid the instalments until 26.08.2013, covering 35 out of the total 150 instalments. After that date, he failed to make any further payments. The opposite party refutes the claim that payments were not properly accounted for, asserting that all payments were recorded and receipts were issued.
The opposite party also denies the allegation of filing false cases against Mr. Tomy. They confirm that they filed O.S.424/18 before the Munsiff Court, N. Paravur, which is currently pending. The claim that Mr Tomy was prompt in his payments and that the opposite party demanded additional charges or interest is also denied. They clarified that they approached the complainant and her husband several times for the payment of outstanding instalments, but these attempts were unsuccessful.
The opposite party asserts that the complainant's claims of unfair trade practices, withholding of passbooks, and additional demands are baseless. They state that the passbook was handed over to Mr. Tomy, and all payments were duly recorded. The complainant remains liable for the defaulted amount and the interest as per the chitty agreement. The opposite party expresses readiness to settle the matter if the complainant pays the outstanding amount, including withdrawing the ongoing suit in the Munsiff Court. They stated that the complaint is not sustainable in law or fact and request its dismissal.
4. Evidence:
The complainant submitted one document.
- Copy of the pass book issued by the opposite party.
5. Points for Consideration:
The main points to be analyzed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iii) Costs of the proceedings, if any?
6. The issues mentioned above are considered together and answered as follows:
The complainant failed to submit a proof affidavit or follow the procedures mandated by the Consumer Protection Act. Despite being given multiple opportunities, the complainant consistently neglected to present any evidence. After December 30, 2022, the complainant ceased to appear before the commission and did not provide the necessary evidence, demonstrating a pattern of non-attendance from the outset of the case. Consequently, the commission instructed the registry on June 30, 2023, to notify the complainant to appear. The registry contacted the complainant by phone, informing them of the required appearance and subsequent steps.
The commission had previously directed the registry to issue notices to the complainant on August 11, 2022, and February 9, 2023, to appear and submit evidence. However, the complainant's continued absence and failure to provide any evidence left the commission with no choice but to proceed with resolving the complaint based on the available evidence. Despite numerous opportunities to comply, the complainant has neither submitted the required evidence nor appeared before the commission, indicating a lack of interest in pursuing the case.
The core of the complaint revolves around the alleged deficiency in service by the opposite party. Under the Consumer Protection Act, the burden of proof lies with the complainant to establish the deficiency in service. This principle has been upheld in various judgments, including the case of SGS India Ltd vs. Dolphin International Ltd [(2021) AIR SC 4849], where the Hon’ble Supreme Court of India held that "the onus of proof of deficiency in service is on the complainant." In the absence of sufficient evidence, mere allegations cannot be the basis for holding the opposite party liable.
In this case, the complainant has failed to substantiate his allegations with concrete evidence.
7. Deficiency in Service and Negligence:
The term "deficiency" as defined the Consumer Protection Act, refers to any fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance which is required to be maintained by or under any law or as is claimed by the person performing the service. In the present case, the complainant has not been able to prove that the service provided by the opposite party was deficient as per the statutory or contractual obligations.
In conclusion, the Commission finds that the complainant failed to provide sufficient evidence to substantiate their claims of deficiency in service or negligence by the opposite party. Therefore, the complaint is dismissed, and no relief is granted to the complainant. We have decided not in favour of the complainant on all the issues mentioned above. After careful consideration, we found that the case presented by the complainant is meritless. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission this the 31st day of July, 2024.
Sd/-
D.B. Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia T.N., Member
Forwarded/By Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 12/2020
Order Date: 31/07/2024
