By: Miss. R.K.Madanavally, Member
The complainant's case in brief is that on 25.9.2008, she had pledged 32.30 grams of gold for an amount of Rs. 27,800/- with 1st opposite party finance company for a period of 6 months. At the time of pledging the gold, a 'card' was issued infavour of the complainant by the opposite parties and a service charge of Rs. 150/- was also collected by them. The opposite parties had collected the thumb impression of the complainant in different papers.
On 16.11.08, the complainant approached the opposite parties and demanded the pledged ornaments as she was ready to pay the full loan amount with interest. She had entrusted the card in the counter and they told her to wait there some time. Though she had waited for a long time in the opposite parties office, they were not ready to accept money from the complainant and release the gold ornaments.
Thereafter the complainant again demanded the gold ornaments but the opposite parties were not ready. Then she sent a Registered letter infavour of opposite parties and they 'refused' to accept the letter.
The complainant again demanded the pledged ornaments by a letter. Thereafter on 24.11.08, she had sent a Registered Lawyer Notice to the opposite parties demanding the same. The opposite parties had sent a reply notice with false reasons. In the reply notice it was stated that on 13.10.08, the complainant had paid the entire loan amount with interest and taken back the pledged ornaments. But the complainant submits that she had neither paid the loan amount nor accepted the ornaments. Thus she made this complaint.
The opposite parties in their version admitted the pledging of gold ornaments and denied the averments of taking the 10 thumb impression in the different documents. So also they denied the handing owner of the pawnslip by the complainant and her daughter and the refusal of the registered letter dated 19.11.08.
The case of the opposite party is that on 1.3.08, the complainant, along with her grand daughter Jamsheera came to the office of the opposite party and on enquiry, they understood that the ornaments are to be given for the marriage of the above said Jamsheera. Since the liability was cleared, the opposite parties took the thumb impression of the complainant on the proper record and the gold was released. According to opposite parties, they had not committed any deficiency in their service. The service rendered were punctual and proper. The gold was released to the right person. More over there were some mishaps at the house of the complainant for which the complainant is not capable of supporting the above Jamsheera. There fore she is pretending before the others in this fashion. Hence the complaint is to be dismissed with cost.
The main issues arised for our consideration here are;
1)Whether opposite parties are deficient in service?
2)If so relief and cost?
Point No 1 and 2.
As far as the above case is concerned, both parties are relying upon the Ext.B2 document ie a “pawn slip”. In the Ext. B2, it can be seen that പണ്ടം മടക്കി കിട്ടി ബോധിച്ചു. A thumb impression was also seen. The complainant submitted that the handwriting and thumb impression were not belonged to her. At the same time opposite party contended that it was the thumb impression of the complainant herself. The complainant, as per IA 274/12 send the Ext. B2 (pawn slip) to the Forensic Laboratory, Thiruvananthapuram for a comparison. The report of the expert was marked as Ext.X1. The opinion of the expert was detailed in Ext. X1. It is stated that disputed thumb impression was marked as Q and the finger impressions attested by the Senior Superintendent is marked as S. The expert has clearly opined that the disputed finger impression is not identical with given specimen impressions, and are not made by the same finger of the same person. The Ext A1, the copy of the Registered lawyer Notice issued by the complainant to the opposite party shows that the complainant is ready to repay the loan amount of Rs.27800/- with interest to the opposite party and she is demanding her ornaments to be returned to her. The page No3 and 4 of the affidavit submitted by the complainant also discloses the fact that, she has not repaid the loan amount. Even though she was prepared to remit the said amount, the opposite party has refused to accept the money and release the gold ornament to her. Since the complainant her self has admitted the said liability in various documents and in oral evidence, this forum is of the firm view that she has not repaid the loan amount with interest to opposite party.
The opposite party in turn, states that the dues are cleared and the gold ornaments are returned to the complainant on proper receipts. But, the expert who verified and compared the thumb impression has opined that “The specimen finger impression are not made by the same finger of the same person” .
Since the expert is not cross examined by the opposite party and no objection is filed against this report, this evidence remain unchallenged and unrebutted. This forum has no other way except to accept this documents. In short the complainant has proved that she has not repaid the loan amount with interest to the opposite party. The opposite party failed to prove that he had released the gold ornaments to the complainant after accepting the loan amount.
The page No6 of the cross examination of DW1 reads that “B2 വിന്റെ അകത്തും പുറത്തും എഴുതിയിട്ടുള്ള handwriting പരാതികാരിയുടെ കൂടെ വന്ന ആളുടെതാണ്" This statement also creates a doubtful circumstances of the entire transaction.
In the result, for the interest of Justice, we order that the complainant shall refund the loan amount of 27800/- with interest @ 12% per annum from 25.9.2008, till the date of payment to the opposite party. The opposite party shall return the gold ornaments, 32.30 gram or its present market value to the complainant, along with Rs.2000/- as cost of this proceedings, with in one month of the receipt of the copy of this order.
Dated this 15th day of October , 2014
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K.MOHAMMED ALI , PRESIDENT
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R.K.MADANAVALLY , MEMBER
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MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : PW1
PW1 : Complainant, Fathima
Documents marked on the side of the complainant : Ext.A1to A5
Ext.A1 : Copy of the letter sent by the complainant to the 2nd opposite party, date 24-11-2008
Ext.A2 : Photo copy of the notice sent by the complainant to the 2nd opposite party, date 16-11-2006
Ext A3 : Photo copy of the lawyer notice sent to the 2nd opposite party by the complainant through her counsel, dated 05-12-2008.
Ext A4 : Reply notice sent to the counsel of the complainant by Adv. Anil Niravil, for and on behalf of the 2nd opposite party.
Ext A5 : postal receipt and acknowledgment card issued by opposite party to the complainant.
Witness examined on the side of the opposite party : DW1
DW1 : Branch Manager, Vineesh.M.V
Documents marked on the side of the opposite party : Ext. B1 to B3
Ext.B1 : On demand promisory note, dated, 25/09/2008
Ext.B2 : Receipt, dated dated, 25/09/2008
Ext.B3(s) : Lawyer notice and postal receipt and acknowledgment card issued by opposite party to the complainant.
Third party document marked : Ext. X1
Ext. X1 : Comparison of disputed Finger impressions Report of the Expert. Shri.T.R.Hariprasad.
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K.MOHAMMED ALI , PRESIDENT
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R.K.MADANAVALLY , MEMBER
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MINI MATHEW, MEMBER
