State Consumer Disputes Redressal Commission
P.K.Joshy, vs K.S.Madhusoodanan, on 30 November, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. 669/2006 (Arisen out of Order Dated null in Case No. of District ) 1. P.K.Joshy Namakad Chit Fund,Thripunithura,Namakad House,Kandanad,Thiruvankulam,Ernakulam BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
COMMON ORDER IN
APPEAL NOS:669/06, 670/06, 671/06, 672/06, 673/06, 674/06, 675/06, 676/06, 677/06, 678/06, & 679/06
COMMON JUDGMENT DATED:30-11-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPEAL NO:669/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu P.O, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
K.S.Madhusoodanan,
V/200A, Konikat House, : RESPONDENT
Chottanikkara-682 312.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:670/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu P.O, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Teena,
Thekkanath house, : RESPONDENT
Njarakkal - 682 505.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:671/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu P.O, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Pauly Joseph,
Vadakkekurikayil house, : RESPONDENT
Thykkoodam, Vyttila,
Kochi-19.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:672/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
A.C. Cyril,
Attipetty house, : RESPONDENT
Valappu, Ochanthuruthu-682 508
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:673/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Leela Cyril, Attipetty House,
Valappu, Ochanthuruth, : RESPONDENT
PIN - 682 508.
APPEAL NO:674/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
T.C.Joseph,
Thekkanath house, : RESPONDENT
Njarakkal - 682 505.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:675/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Leesha Saju,
Thekkanath house, : RESPONDENT
Njarakkal, Vypin, Ernakulam.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:676/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Seena,
Kachappilly house, : RESPONDENT
Njarakkal-682 505.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:677/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
V.J. Jolly,
Vadakkathu house, : RESPONDENT
Thykkoodam, Vyttila,
Kochi-19.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:678/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu P.O, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Praveen, C/o Devassy,
Kachappilly house, : RESPONDENT
Njarakkal-682 505.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
APPEAL NO:679/06
P.K.Joshy,
Proprietor, Namakkad Chit Fund,
Tripunithura, Namakkad House, : APPELLANT
Kandanadu P.O, Thiruvankulam Via,
Ernakulam.
(By Adv: Sri.Sabu Thozhuppadan.K)
Vs.
Raji.M.G,
Vaniyappillil house,
Edappally North, : RESPONDENT
Kochi-24.
(By Adv: Sri.E.M.Thomas & Baby M Perumpillil)
COMMON JUDGMENT
SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER
The above appeals are preferred from the common order dated:16th June 2006 passed by CDRF, Ernakulam in CC.Nos.496, 503, 501, 504, 505, 499, 497, 500, 502, 498 & 495/2005 respectively. The complainants therein alleged deficiency in service on the part of the respondent/opposite party in his failure to pay the chit amounts due to them under a chit transaction. The complainants in CC.495/05 to 505/05 claimed Rs.14,700/-, 9800/-, 32,900/-, 14,100/-, 9,400/-, 9,400/-, 13,800/-, 22,000/-, 9,400, 25,900/- and 9,800/- respectively. The complainants also filed petitions for condonation of delay stating that the condonation petitions are filed in abundant caution as the opposite party requested for extension of time to make payment of the chit amounts due to the complainants as subscribers.
2. The opposite party entered appearance in all the aforesaid consumer complaints and contended that the complaints are not maintainable as the same are barred by limitation under section 24-A of the Consumer Protection Act, 1986 that the opposite party is not liable to make any payments to the complainants; that the opposite party is the Managing Partner of Namakkad chit funds and the complaint filed without impleading Namakkad chit funds as a party to the chit transaction is not maintainable; that the chit business does not come within the purview of the Consumer Protection Act and so the Consumer Forum has no jurisdiction to entertain the complaints. Thus, the opposite party prayed for dismissal of the aforesaid complaints.
3. The opposite party had also filed interlocutory applications to consider the preliminary point regarding maintainability of the complaints. The Forum below heard the issue regarding maintainability of the complaints in those consumer complaints as preliminary issue and thereby a common order was passed in the aforesaid interlocutory application Nos.577/05, 578, 579, 580, 581, 582, 583, 584, 585, 586 and 587/05 filed by the opposite party and I.A.19/06 to 29/06 filed by the complainants. By virtue of the common order dated:10th February 2006, the Forum below condoned the delay in filing the complaints and thereby the complaints were held as maintainable.
4. Before the Forum below, the complainants in the said consumer complaints were examined as PW1 and the opposite party as DW1. Thalavaryola in all the said complaints were marked as Ext.B1. Ext.A1 to A3 documents were marked on the side of the complainant in CC.495/05. Exts.A1 to A5 in CC.496/05 Exts.A1 to A3 in CC.293/05, A1 to A3 in CC.498/05, 499, 500, 501, 503, 504 and 505/05. On the side of the complainant in CC.502/05 Ext.A1 chit passbook was marked. On an appreciation of the evidence on record, the Forum below passed the impugned common order allowing the above 11 complaints by directing the opposite party to pay the amounts mentioned in column 5 of the table shown in the said order. The opposite party was also directed to pay interest at the rate of 7% per annum on the aforesaid amounts from 21.10.2005 till the date of payment and cost of Rs.500/- each. Aggrieved by the aforesaid impugned common order, the present appeals are preferred.
5. We heard the learned counsel for the appellant/opposite party and the respondent/complainant in all the aforesaid appeals. The counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeals. He argued for the position that the aforesaid 11 complaints are barred by limitation under section 24-A of the Consumer Protection Act and that the Forum below cannot be justified in condoning the delay of 21 months in filing the said complaints. It is further submitted that the chit transactions with respect to the prize chits are prohibited by virtue of the provisions of Prize Chits and Money Circulation Scheme (Banning) Act and that the Forum cannot be justified in entertaining the said complaints with respect to prize chits. He also argued for the position that as per Ext.B1 kuri thalavaryola, the Forman of the chit is entitled to get 6% of the chit amount by way of Forman Commission and that the Forum below has gone wrong in directing the opposite party to pay the entire chit amount without considering clause-4 of Ext.B1 regarding entitlement of Forman Commission. Thus, the appellant in all the appeals prayed for setting aside the impugned order passed by the Forum below and for dismissal of the aforesaid consumer complaints. On the other hand, the counsel for the respondent/complainant in those appeals supported the impugned common order passed by the Forum below. It is submitted that the evidence available on record would show that there was sufficient reason for condonation of delay and that the Forum below has rightly held the complaints as maintainable. It is further submitted that B1 thalavaryola would make it clear that the provisions of Prize Chits and Money Circulation Scheme (Banning) Act have no application as far as the chit commenced from the State of Jammu & Kashmir. So, the chit commenced within the State of Jammu & Kashmir cannot be banned by virtue of the aforesaid Prize Chits and Money Circulation Scheme (banning) Act. It is also submitted that the opposite party is the Forman of the aforesaid chit and that the Foreman has admitted his liability to pay the chit amounts to the subscribers (complainants). So, the complaint filed against the opposite party as Foreman of the aforesaid chit is maintainable. Thus, the respondent/complainant in those complaints prayed for dismissal of the above appeals.
6. The points that arise for consideration are:-
1. Whether the consumer complaints in CC.495/05 to 505/05 are barred by limitation?
2. Whether the Forum below can be justified in condoning the delay in preferring those consumer complaints vide common order dated:10th February 2006 passed on I.A.577/05 to 587/05 and I.A.19/06 to 29/06?
3. Whether the claim preferred by the complainants is prohibited by virtue of the provisions of Prize Chits and Money Circulation Scheme (banning) Act?
4. Is there any legally sustainable ground to interfere with the impugned order dated:16th June 2006 passed by CDRF, Ernakulam in CC.495/05 to 505/05.
7. Point Nos.1 and 2:-
There is no dispute that the complainants in the aforesaid consumer complaints are the subscribers to the chit conducted by the appellant/opposite party as Foreman of Namakkad chit fund. Ext.B1 thalavaryola produced from the side of the opposite party (appellant) would show that the aforesaid chit commenced from the Jammu branch of Namakkad chit fund and that the B1 varyola was issued by the appellant/opposite party as managing partner of Namakkad chit fund and also in his capacity as the Foreman of the said chit. The letter marked as Ext.A3 in CC.495, 496, 497, 498, 499, 500, 501, 503, 504 and 505 would make it clear that the appellant/opposite party as Foreman of the aforesaid chit agreed the chit transaction and his liability to pay the chit amount to the subscribers viz. the complainants. So, the claim preferred by the complainants in the aforesaid consumer complaints can be considered as reasonable and justifiable claims.
8. Appellant/opposite party has got a case that the aforesaid complaints are barred by limitation under section 24-A of the Consumer Protection Act, 1986. It is true that the aforesaid chit was terminated on completion by 12th January 2002. As per A3 letter appellant/opposite party as Foreman of the chit requested for extension of time for another one month. The aforesaid letters issued by the appellant/opposite party as Foreman to the chit would show that the agreement was entered into between the subscribers and the Foreman of the chit and thereby the appellant/opposite party as Foreman agreed to pay the chit amounts to the subscribers by 15.9.2002. The execution of the aforesaid agreement is admitted by the appellant/opposite party. Copy of the said agreement has been produced from the side of the complainants and marked as Ext.A2. But as per Ext.A3 letter the opposite party Foreman requested for another one month. Thus, the complainants had to file the aforesaid consumer complaints on or before 15.10.2004. There can be no doubt that the period of limitation will start to run on the expiry of 2 years from the date of the cause of action. But the aforesaid consumer complaints were preferred only on 21.10.2005. Thus, the said complaints were delayed by more than one year.
9. According to the opposite party, the claims are barred by limitation and the consumer complaints had been delayed by 21 months. The complainants in those consumer complaints as PW1 have deposed that the opposite party as Foreman of the chit was requesting for extension of time and the said request for extension of time was made orally. The recitals in A3 letter issued by the opposite party would also give an indication that the opposite party was in the habit of requesting for extension of time on the ground that he could not dispose his landed property. So, the case of the complainants that the opposite party as Foreman of the chit was orally requesting for extension of time and that the complainant as subscribers to the said chit waited for getting the chit amounts without invoking the provisions of the Consumer Protection Act, 1986. The Forum below considered the entire aspects of the case regarding maintainability of those complaints and rightly passed the common order dated:10th February 2006 allowing the petitions filed by the complainants for condonation of delay. The Forum below can also be justified in finding the said consumer complaints as maintainable. Thus, this State Commission have no hesitation to endorse the said finding of the Forum below that the aforesaid consumer complaints are not barred by limitation as the delay has been condoned. Hence, we hold that the aforesaid consumer complaints are maintainable. These points are answered accordingly.
10. Point No.3:-
Appellant in the above appeals has got a case that the present claim is prohibited by the provisions of Prize Chits and Money Circulation Scheme (banning) Act. It is true that the aforesaid Act has got application in the State of Kerala. But at the same time the aforesaid Prize Chits and Money Circulation Scheme (banning) Act has no application in the State of Jammu & Kashmir. Admittedly, the subject chit commenced from the Jammu branch of the Namakkad chit funds and the said chit was commenced by the opposite party as Foreman of the said chit. The complainants herein preferred the aforesaid consumer complaints under the aforesaid chit which was commenced from the Jammu Branch of the opposite party. If that be so, the aforesaid chit is not prohibited by the provisions of Prize Chits and Money Circulation Scheme (banning) Act.
11. Ext.B1 thalavaryola would make ti clear that part of the aforesaid chit transaction had taken place within the jurisdiction of CDRF, Ernakulam. So, the complainants as subscribers of the said chit can very well file a complaint before the CDRF, Ernakulam. So, the Forum below had the jurisdiction to entertain the complaint in those consumer complaint preferred by the subscribers under the chit which was registered and commenced from the Jammu branch of the opposite party. So, the aforesaid contention of the appellant that the chit covered by B1 thalavaryola is prohibited under the provisions of Prize Chits and Money Circulation Scheme (Banning) Act cannot be upheld. More over, the opposite party had no such case before the Forum below. It is true that this issue being a question of law can be raised at the appellate stage also. But, the aforesaid contention adopted in the present appeal memorandum cannot be upheld because of the fact that the Prize Chits and Money Circulation Scheme (Banning) Act has no application in the State of Jammu & Kashmir where the subject chit was registered and commenced. Hence this point is found against the appellant in the above appeals.
12. Point No.4:-
The foregoing discussions and the findings thereon would make it clear that the appellant/opposite party is liable to pay the chit amounts claimed by the subscribers in their respective consumer complaints. Appellant has got a case that he is entitled for Foreman Commission at the rate of 6% on the chit amounts. It is to be noted that the Foreman is entitled for the Foreman Commission only in the event of completion of the chit. In this case it is come out in evidence that the Foreman failed to complete the aforesaid chit and he closed the aforesaid chit prematurely. In such a situation the Foreman is not entitled to claim Foreman Commission.
13. The appellant/opposite party as Foreman of the chit had issued cheque to the complainants as subscribers in CC.497/05, 498/05,499/055, 501/05 & 503/055. The issuance of the aforesaid cheque would give a clear indication that the opposite party as Foreman is not entitled for his Foreman Commission except in CC.497/05. It is further to be noted that the opposite party as Foreman failed to pay the chit amount within the stipulated time. The complainants as subscribers to the chit were compelled to move the Consumer Forum to get the chit amounts due to them. There can be no doubt that the complainants as subscribers suffered mental agony, inconvenience and financial loss on account of the failure on the part of the opposite party in paying the chit amounts due to the subscribers. But, the forum below has not awarded any compensation for the mental agony, inconvenience and financial loss suffered by the complainants/subscribers. The aforesaid circumstance would also justify in not allowing the Foreman Commission to the opposite party. It is further to be noted that the Forum has only awarded interest at the rate of 7% from the date of the complaint on the respective chit amounts due to the complainants. So, the impugned order passed by the Forum below directing the opposite party to pay Rs.14,700/- to the complainant in CC.495/05 Rs.9,800/- to the complainant in CC.496/05, Rs.32,900/- to the complainant in CC.497/05, Rs.14,100/- to the complainant in CC.498/05, Rs.9400/- to the complainant in CC.499/05, and Rs.9,400/- in CC.500/05, Rs.13,800/- to the complainant, in CC.501/05 Rs.22,000/- to the complainant, in CC.502/05, Rs.9,400/- to the complainants, in CC.503/05 Rs.25,900/- to the complainant in CC.504/05 and Rs.9,800/- to the complainant in CC.505/05. The Forum below is also justified in awarding interest at the rate of 7% per annum on the said amount from 21.10.05 till the date of payment with cost of Rs.500/- each to the complainants. Thus, in all respects the impugned order passed by the Forum below is to be confirmed. Hence we do so. This point is answered accordingly.
In the result the above appeals are dismissed. The impugned common order dated:16.6.2006 passed by CDRF, Ernakulam in the aforesaid consumer complaints is confirmed. As far as these appeals are concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA : MEMBER VL.
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER