Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
31st day of October 2022
CC 665/15 filed on 28/10/15
Complainants : 1) A.K. Sidhique, S/o Arakkaveettil Kunjimon,
Thiruvanikkavu Desom, Ollukkara Village, Thrissur.
2) Maimoona, W/o A.K. Sidhique, Arakkaveettil
Thiruvanikkavu Desom, Ollukkara Village, Thrissur.
(By Advs. Anoop K.K., M.K. Santhosh Mohan &
Sreevidia V, Thrissur)
Opposite Parties : 1) BRD Finance Ltd., Regd. Office : Bethany Complex,
Thrissur Road, Kunnamkulam Village,
Thalappilly Taluk, Thrissur. Rep. by Chairman.
2) C.C. William Varghese, Chungath House,
Guruvayoor Road, Kunnamkulam, Chairman,
BRD Finance Ltd.
3) C.K. Appu Mon, Board Of Director,
BRD Finance Ltd.
4) C. G. Surendran, Board Of Director,
BRD Finance Ltd.
5) P.S. Balakrishnan, Board Of Director,
BRD Finance Ltd.
6) K.C. Seemon, Board Of Director, BRD Finance Ltd.
7) P. Gigi Varghese, Board Of Director,
BRD Finance Ltd.
8) K. C. Samu, Board Of Director, BRD Finance Ltd.
9) Mary Williams, Board Of Director, BRD Finance Ltd.
10) T.K. Surendran, Board Of Director, BRD Finance Ltd.
11) C.Simon Cheru, Board Of Director, BRD Finance Ltd.
12) Dr. Prasad Punnoose, Board Of Director,
BRD Finance Ltd.
13) Nisy Jacob Das, Board Of Director, BRD Finance Ltd.
14) Binu Zacharia, Board Of Director, BRD Finance Ltd.
15) Thomas Augastine, Board Of Director,
BRD Finance Ltd.
16) Simon K.C., Board Of Director, BRD Finance Ltd.
17) Sudheesh M., Board Of Director, BRD Finance Ltd.
18) Shibu Jose C., Board Of Director, BRD Finance Ltd.
19) Roshny Simon, Board Of Director, BRD Finance Ltd.
20) Sunitha Mohan, Board Of Director, BRD Finance Ltd.
21) Antony P.D., Board Of Director, BRD Finance Ltd.
22) Dr. Jetsy Taj, Board Of Director, BRD Finance Ltd.
23) Vishnu Bhattathirippad A.N., Board Of Director,
BRD Finance Ltd.
24) Leela James, Board Of Director, BRD Finance Ltd.
25) Dr. Grigar Chery Williams, Board Of Director,
BRD Finance Ltd.
26) Manager, BRD Finance, Bethany Complex,
Thrissur Road, Kunnamkulam Village,
Thalappilly Taluk, Thrissur.
(OP 1, 3 & 26 By Advs. Rajith Davis &
P.V. Muneera, Thrissur.)
F I N A L O R D E R
By Sri. Ram Mohan R, Member :
- Complaint in brief, as averred :
The complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The 1st opposite party is statedly an establishment registered under the Indian Companies Act. The 2nd opposite party is its Chairman and the 3rd to the 25th opposite parties, Members of its Board of Directors. The 26th opposite party is statedly its Manager. The 1st opposite party, statedly started from their Jammu Branch, multi-division kuries with 168 divisions each comprising 75 installments, the total number of tickets being 12,600. Each of the instalment was worth Rs.1,500/-, the chit amount of each division being Rs.1,12,500/-. From the said chit amount of Rs.1,12,500/- in each division, a Foreman Commission of Rs.2,500/- was agreed to be deducted, making the prize amount Rs.1,10,000/- which was subject to auction. Under the said scheme, the 1st complainant subscribed 3 kuries (No.555, 556 & 557) and the 2nd complainant, 2 kuries (No.553 & 554), with the 1st opposite party. The complainants admitted to have on 12/08/15 realised the prize amount in all the kuries under auction. The complainants also state that the opposite parties conduct the auction at a hall in Kunnamkulam. The complainants further allege that on 12/08/15, when they reached the site for auction it was realised that the opposite parties conducted chit proceedings only in respect of 120 divisions wherein 108 divisions were under auction and the remaining 12 divisions under draw. The complainants thereby allege that the subscribers in respect of the outstanding 48 divisions of kuries i.e. (48 X 75 = 3600) were only suppositional or they do not physically exist and that the opposite parties deceitfully and illegitimately collected the dividend in respect of the said 48 divisions. The complainants allege unfair trade practice on the part of the opposite parties. A lawyer notice issued to the opposite parties statedly elicited no result. Hence the complaint. The complainants pray for an order directing the opposite parties to refund the amount they illicitly collected from the complainant, apart from other reliefs of compensation and costs.
2) NOTICE :
Upon notice from the Commission the 1st, the 3rd and the 26th opposite parties contested the complaint. The other opposite parties have not cared either to enter appearance or to file their version before the Commission, in spite of their having received the Commission’s Notice to that effect. Accordingly, the proceedings against all the opposite parties except the 1st, the 3rd & the 26th opposite parties, were set ex-parte.
3) Version of the 1st, the 3rd & the 26th Opposite parties (Contesting opposite parties) :
The contesting opposite parties admitted that the auction proceedings were conducted at a nearby auditorium, for want of space to simultaneously accommodate 12600 subscribers. The opposite parties also admit the complainants’ subscription of the said kuries. They claimed that there were altogether 12600 tickets in respect of the 12600 subscribers in reality. But they aver that the auction proceedings were conducted as per the terms and conditions of the “kuri rules” that are laid down in the kuri passbooks, wherein it is stipulated that 108 divisions will be under auction and 12 divisions under draw. It is their stance that they are not bound to conduct proceedings for the entire 168 divisions. But the opposite parties affirm that the auction discount is actually shared among all the 12600 tickets.
The opposite parties contend that the complainants ought to have withdrawn themselves from the kuries, if they disagreed with the kuri rules. The complainants’ act of having complained after enjoying the fruits of the kuries is alleged to have been driven with malafide intent. The opposite parties also aver misjoinder of parties with respect to opposite parties except 1,2,3,16,22,24 & 26, whereas non-joinder of parties is also alleged in view of the complainants’ having not arrayed the 12600 subscribers as parties to the complaint.
4) Evidence :
The complainants produced documental evidence that had been marked Exts. P1 to P12, apart from affidavit and notes of arguments. The complainants in the meantime moved IA 610/16 for production of documents by the opposite parties to which the opposite parties responded only partly and the documents the opposite parties thus produced were marked Exts. P13 to P19. No documents are seen marked on the part of the contesting opposite parties, but version affidavit and notes of argument. The proceedings against the other opposite parties being set ex-parte, no documents produced on their part as well.
5) Deliberation of evidence and facts of the case :
The Commission has very scrupulously delved into the facts and evidence of the case. Exts. P1 & P2 are kuri Passbooks issued by the 1st opposite party, in favour of the 2nd complainant, the statements in respect of which are numbered 553 & 554 respectively. Exts. P3 to P5 are kuri Passbooks issued by the 1st opposite party, in favour of the 1st complainant, the statements in respect of which are numbered 557, 556 & 555 respectively. Ext. P6 is a letter dtd. 14/09/15 issued by the 1st opposite party. Ext. P7 is copy of the 1st complainant’s notice dtd. 28/09/15. Exts. P8 & P9 are Postal Receipts and Postal Acknowledgement cards respectively. Ext. P10 is copy of the 1st complainant’s lawyer notice dtd. 12/05/16. Ext. P11 (series) and Ext. P12 (series) comprise postal receipts and postal acknowledgement cards respectively.
Ext. P13 is the Annual Report 2010-2011 in respect of the 1st opposite party establishment. Ext. P14 is copy of the Balance Sheet as at 31/03/2012 in respect of the 1st opposite party establishment. Ext. P15 is the Annual Report 2012-13 in respect of the 1st opposite party establishment. Ext. P16 is copy of the Balance Sheet as at 31/03/14 in respect of the 1st opposite party establishment. Ext. P17 is the Annual Report 2014-2015 in respect of the 1st opposite party establishment. Ext. P18 is the Annual Report 2015-16 in respect of the 1st opposite party establishment. Ext. P19 is the copy of the selected extracts of the personnel ledger in respect of the complainants.
6) Points of deliberation :
(i) Whether the act of the opposite parties is tantamount to unfair trade
practice or not ?
If point No.(i) is proved in favour of the complainant :
(ii) Whether the complainant is entitled to receive any compensation
from the part of the opposite parties ?
If so, its quantum ?
(iii) Costs ?
7) Point No.(i)
The crux of the complaint is that the subscribers in respect of the 48 divisions of kuries, the proceedings in relation to which were not conducted were only suppositional and the said subscribers do not exist in reality. The complainant prayed for the opposite parties’ production of the details relating to the name and address of the 12600 subscribers and the personnel ledger in respect of the kuries, apart from other documents, which was allowed by the Commission. But the opposite parties declined to produce the former documents on the claimed ground of spoiling their credibility with subscribers and the latter one under the ground of its bulkiness. Both the grounds which the opposite parties claimed are evidently flimsy and frivolous. Refuting the allegations raised by a couple of subscribers, through proper validation, will only add to the credibility of a financial firm, while suppression, on the other hand will taint its credibility. Likewise, a financial establishment which prioritises credibility above all, can seldom resort to the averment of “bulkiness” or “unwieldiness”, for non-production of a document which is capable of disproving the very crux of an allegation. In fact, they are by such an act, subordinating their claimed priority of credibility. In this era of digital revolution, any document of whatever degree of bulkiness can be abridged or reduced to compactness & handiness, more so, while the opposite parties themselves claim to maintain a “Computerised Accounting System”. At the same time, the opposite parties consciously failed to produce any other cogent evidence at all, to prove the existence of the 3600 subscribers [48 divisions X 75 subscribers], who were allegedly unreal. It is plain and unambiguous that activities relating to chit funds fall well within the definition of ‘service’ under Section 2(1)(O) of the Consumer Protection Act, 1986 and that chit funds cases fall well within the ambit of Consumer Commissions. This fact is unequivocally pronounced by the Hon’ble National Commission, by judgement dtd. 30/11/03 in Kovilakam Chits and Financial …. Vs K.L. Benny[III (2003) CPJ 87 NC]. Under the aforesaid circumstances, we are constrained to arrive at an adverse inference against the opposite parties, in the wake of their having not cared to produce the 2 crucial documents which were unequivocally decisive in proving or disproving the allegations raised by the complainants and, hence we are of the considered view that the opposite parties adopted the deceptive practice of having unlawfully bagged the auction discount claimed to have been shared to the 3600 subscribers, which constitutes an unfair trade practice.
Though the opposite parties baldly aver misjoinder of parties, they hardly produced any evidence at all to substantiate their claims in this regard, whereas their names (the opposite parties who are claimed to have been improperly arraigned) are conspicuously incorporated in the Ext. P1 to P5 Passbooks, as “Directors”. Moreover, the conscious failure on the part of the non-contesting opposite parties to file their written version, amounts to admission of the allegations levelled against them. The Hon’ble National Commission expressed the same view, by order dtd. 09/10/17 in RP 579/17 [2017(4)CPR 590].
The opposite parties had also raised the contention of non-joinder of the 12600 subscribers, as parties to the complaint. At the same time they consciously declined to provide the details of the said subscribers. The opposite parties attempt to blow hot and cold. This contention of the opposite parties is violative of the doctrine of approbate and reprobate.
For the aforesaid reasons, point No.(i) is proved in favour of the complainants.
8) Point No. (ii) & (iii) :
Had the auction discount in respect of the ‘3600’ suppositional subscribers been actually shared among the ‘9000’ real subscribers, it would certainly have fetched bigger fiscal gains to the said real subscribers, which the opposite parties did not do. The misdeeds on the part of the opposite parties inflicted financial loss, agony and hardship on the complainants. The opposite parties have necessarily to compensate the complainants. We are of the considered view that the complainants are entitled to receive from the opposite parties a sum of Rs.75,000/- towards compensation for the financial loss, agony and hardship they underwent and a sum of Rs.5,000/- towards costs.
In the result, the complaint is allowed and the opposite parties are jointly and severally directed to
- pay the complainants a sum of Rs.75,000/- (Rupees Seventy Five thousand only) towards compensation for the financial loss, agony and hardship, they underwent, and
- pay the complainants a sum of Rs.5,000/- (Rupees Five thousand only) towards costs,
all with 9% interest p.a. from the date of filing of the complaint till the date of realisation. The opposite parties shall comply with the above direction within 30 days of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 31st day of October 2022.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainants’ Exhibits :
Exts. P1 & P2 kuri Passbooks issued by the 1st opposite party, in favour of the
2nd complainant, the statements in respect of which are numbered 553
& 554 respectively.
Exts. P3 to P5 kuri Passbooks issued by the 1st opposite party, in favour of the
1st complainant, the statements in respect of which are numbered 557,
556 & 555 respectively.
Ext. P6 a letter dtd. 14/09/15 issued by the 1st opposite party.
Ext. P7 copy of the 1st complainant’s notice dtd. 28/09/15.
Exts. P8 & P9 are Postal Receipts and Postal Acknowledgement cards
respectively.
Ext. P10 copy of the complainant’s lawyer notice dtd. 12/05/16.
Ext. P11 (series) and Ext. P12 (series) comprise postal receipts and postal
acknowledgement cards respectively.
Ext. P13 Annual Report 2010-2011 in respect of the 1st opposite party
establishment.
Ext. P14 copy of the Balance Sheet as at 31/03/2012 in respect of the 1st
opposite party establishment.
Ext. P15 Annual Report 2012-13 in respect of the 1st opposite party
establishment.
Ext. P16 copy of the Balance Sheet as at 31/03/14 in respect of the 1st opposite
party establishment.
Ext. P17 Annual Report 2014-2015 in respect of the 1st opposite party
establishment.
Ext. P18 Annual Report 2015-16 in respect of the 1st opposite party
establishment.
Ext. P19 copy of the selected extracts of the personnel ledger in respect of the
complainant.
.
Id/- Member
