State Consumer Disputes Redressal Commission
M/S. Sree Gokulam Chits & Finance ... vs Dr.C. Balakrishnan No.28, First Phase, ... on 10 October, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., JUDICIAL MEMBER
Tmt. VASUGI RAMANAN MEMBER II F.A.NO.595/2010 (Against order in CC.NO.276/2009 on the file of the DCDRF, Coimbatore) DATED THIS THE 10th DAY OF OCTOBER 2011 M/s. Sree Gokulam Chits & Finance Company (P) Ltd., Rep. by its Executive Director G.Baiju No.307, 7th Street, 100 Feet Road Gandhipuram, Coimbatore- 12 Appellant/Opposite party Vs. Dr.C. Balakrishnan No.28, First Phase, Maharani Avenue Vadavalli, Coimbatore Respondent/ Complainant The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay RS.20000/- with 24% interest, towards travelling expenses, alongwith compensation of Rs.10000/- and cost. The District Forum allowed the complaint.
Against the said order, this appeal is preferred praying to enhance the award, order of the District Forum dt.24.3.2010 in CC.No.276/2009.
This petition coming before us for hearing finally on 10.10.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/Opposite party : M/s. L. Rajasekar Counsel for the Respondent/ Complainant: M/s. K.V. Kalyanasundaram M. THANIKACHALAM J, PRESIDENT
1. The opposite party is the appellant.
2. The respondent/ complainant, approached the District Forum, seeking direction for the refund of a sum of RS.20000/-, paid by him in two Chit groups, as well as for compensation of Rs.10000/-, for mental agony, alleging that the opposite party having collected the amounts, failed to inform the commencement of the chit, as well as failed to demand and inform, the amount payable then and there, which should be construed as deficiency, that inspite of repeated request, they have also failed to refund the amount collected, that should be construed as deficiency.
3. The opposite party admitting that the complainant was a subscriber in two Group as well the payment of Rs.10000/-
each, resisted the case contending that despite repeated request, the complainant failed to pay the subsequent payment, viz. subscriptions, that as per the Tamil Nadu Chit Funds Act, the foremen is entitled to 5% commission, and the sum was adjusted from the payment made by the complainant, that because of the default committed by the complainant, the entire period of chit runs without alternative subscriber, thereby causing loss to the chit company, that the opposite party has not committed any deficiency in service, then there is no question of refund the amount, or paying any compensation, thus praying for the dismissal of the complaint.
4. The District Forum, issued a direction to pay the amount collected, as well as directed to pay a sum of RS.10000/- as compensation, as claimed, concluding that the opposite party failed to prove, about the commencement of the chit, as well as failed to prove that the chit came to be terminated, that should be construed as deficiency in service, which is impugned in this appeal.
5. The learned counsel for the appellant urged two points before us to upset the findings of the District Forum, and they are (1) the case is barred by limitation, (2) that the amount paid by the complainant was adjusted towards the amount payable to the foremen, as per provisions available under Tamilnadu Chit Funds Act, which were not properly considered by the District Forum, resulting injustice, that should be set right.
6. Per contra, it is the submission of the learned counsel for the complainant, that the question of limitation was not raised before the District Forum, and the Chit company is not entitled to forfeit the amount, though there is a provision, since commencement of the chit, termination of the chit was not informed rendering service by foreman. Hearing bothsides, having gone through the documents, including the order of the District Forum, we feel the appellant is justified in urging the above points, which were not properly considered by the District Forum. Infact, as pointed out by the learned counsel for the appellant, the District Forum approached the case in negative way, as if the burden is upon the opposite party to prove their case, forgetting the fact that the complainant joined in the chit group, where we find the date of commencement, period of subscription termination etc., that itself would go to show the order of the District Forum is not legally sustainable.
7. Admittedly the complainant joined as subscriber in the chit conducted by the opposite party, in Group No.G2F bearing ticket Nos.55 and 56, agreeing to pay the subscription of Rs.10,000/- for each, ticket for a total sala value of Rs.2 lakhs.
As evidenced by documents also viz.
Ex.A1 and A2, for Group G2F -55 ticket No.20, subscription of RS.10000/- was paid, entered in the pass book. This document itself makes it abundantly clear, date of commencement of the chit as 13.11.2006, and date of termination of chit as 13.6.2008, i.e, 20 months, totaling a sum of RS.2 lakhs. Therefore, it is futile on the part of the complainant, to contend that chit was not commenced or they were not informed about the commencement of the chit. The District Forum unfortunately not reading this document properly, has recorded a finding, that there is no acceptable evidence that the chits were conducted, terminated on 13.6.2008. We do not understand, what more records the District Forum required, to ascertain the period of chit. Since the complainant admittedly has not paid, except the first premium, for each group, has not participated in any auction also, probably he was not informed about the subsequent subscription payable, which cannot be termed as deficiency in service, further fact being there was no consideration for rendering service in this case, and the payment already made was only initial subscription.
Assuming that subscription was paid for rendering service, since the foreman is entitled to commission, now we have to see, whether the claim is in time.
8. By going through the pleadings, we are unable to find the actual date of cause of action for the complaint, which is essential one, since without cause of action, no case lie. In paragraph 6 of the complaint, date of legal notice alone is given, as if probably indicating that should be taken as the date of cause of action, which cannot be.
The prayer in the complaint is directing the opposite parties to pay RS.20000/- alongwith interest at 24% p.a., from the date it is due. Accepting the case of the complainant, as if the amount is due from 25.11.2006 and 27.11.2006, a direction came to be issued, and that date should be the dates of cause of action, for the refund of the amount, or for the recovery of the amount, as the case may be. Otherwise, there is no explanation in the complaint or in the affidavit, how the case is in time. It is not necessary for the opposite party to raise the limitation in the written version always, though that right is available. Even in the absence of the opposite party, raising the question of limitation, it is the duty of the District Forum as mandated by the Sec.24(A)(i), they should see whether the consumer complaint was filed within 2 years, from the date of cause of action, which the District Forum failed. The case came to be filed only on 9.7.2009, for the recovery of the amount paid on 25.11.2006, and 27.11.2006, i.e., after a lapse of 2 years. Therefore, as rightly urged atleast before this commission, by the learned counsel for the appellant, claim is barred by limitation, for which there is no answer from the complainant, explaining atleast how the claim is in time. Therefore, undoubtedly we have to conclude,the case is barred by limitation, and on the failure of case being not filed within 2 years, the consumer forum has no jurisdiction to decide the dispute. In this view, the appeal deserves to be accepted.
9. As rightly urged on behalf of the appellant, even on merit also, we feel that the complainant is not entitled to recover the amount deposited. The case of the opposite party, is that because of the default committed by the complainant, in not subscribing subsequently, without alternative subscriber they have to run the chit for 20 months, and under Sec.21, the foreman is entitled to commission i.e., 5%, which is adjusted from the amount paid. The total value of the chit is Rs.2 lakhs each, and the complainant has debited only 5% i.e., equal to the commission, which the foreman is entitled.
Therefore, as rightly claimed under Sec.21(b),the amount paid by the complainant was adjusted, by way of commission, remuneration, cannot be ignored altogether. Because of this reason alone, for 3 years, the complainant slept and belatedly wisdom dawn, resulting issuance of notice, which will not give life, to the time barred claim. The District Forum without considering all these facts, has erroneously issued a direction, and therefore unavoidably, we are constrained to interfere, accepting the appeal.
10. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.276/2009 dt.24.3.2010, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
VASUGI RAMANAN J. JAYARAM M.THANIKACHALAM MEMBER I JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Miscellaneous