This case is coming for final hearing on 31-07-2014 in the presence of Sri N.S.Gangadharam, Advocate for Complainant and Sri P.Murali Gopal, Advocate for Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)

1. The complaint filed the present complaint against the Opposite Parties 1 to 3 on 28.08.2012 and requested the Forum to direct the Opposite Parties (1) to refund the amount of Rs.5,22,424.25 with interest at the rate of 24% p.a. from the date of last payments till date of realization (2) to pay compensation of Rs.1,00,000/- for mental agony and hardship (3) for costs of the legal expenditure.

2. The brief facts are as follows: The Opposite Parties are doing chit fund business in the name and style of M/s.Sri Venkata Bhavani Chit Funds (P) Ltd. The 1^st Opposite Party is represented by its Foreman Sri M.Appalaraju, Opposite Parties 2 & 3 are the Directors of the 1^st Opposite Party firm. The Complainant joined as a subscriber of the Chit in the Opposite party’s chit groups along with his wife, Smt.B.Venkata Lakshmi, his brother-in-law Sri Babu Rao and his brother-in-laws’ wife Smt.B.Manikumari.

3. Prior to joining in the chits, the complainant use to work as Chit Fund Collection Executive with the Opposite Party. He submits that he is one of the subscriber of the Chit No.(1)LT-11ZV-32 for Rs.5,00,000/- (2) LT-9 ZV-9 for Rs.5,00,000/- (3) LT-9 ZV-15 for Rs.5,00,000/- (4) LT-9 ZV-28 for Rs.5,00,000/- (5) LT-11 ZV-9 for Rs.5,00,000/- (6) LT-11 ZV-37 for Rs.5,00,000/- and (2) LT-12 ZV-18 for Rs.5,00,000/-. Since the date of joining as a subscribers he along with his wife and his brother-in-law’s family use to pay the instalments within time and participated in Chit amount vide chit Nos.(1) LT-11ZV-32 for Rs.5,00,000/-(2) LT-9 ZV-9 for Rs.5,00,000/- (3) LT-9 ZV-15 for Rs.5,00,000/- and (4) LT-9 ZV-28 for Rs.5,00,000/- even after furnishing the proper sureties to the satisfaction of the Opposite Parties company did not pay the prized amount till the date i.e. date of filing of the complaint on 28.08.2012 and also even the Opposite Parties did not allow the complainant to participating in the remaining Chits bearing Nos.LT-11ZV-9, LT 11ZV-37 and LT12 ZV-18. All of a sudden on 31.03.2011 without any intimation the Opposite Party terminated the Complainant from the duties without any notice and without following the procedure under law while terminating an employee. Even after the Opposite Party terminating the complainant from the duties also the Opposite Parties did not paid the chit fund prized amounts. Keeping in view of the relationship between the Complainant and Opposite Party he has not taken any legal action against the Opposite Parties. Finally on 25.07.2012, the Complainant got issued Legal Notice to the Opposite parties for refund of the amounts due to him. After receiving the Notice the Opposite Parties, the Opposite Parties gave reply Lawyer’s Notice dt. 5.8.2012 with false allegations stating that as the 34 Registered Legal Notices were issued earlier to the Complainant in the month of June and July, 2012 which were “not claimed” by the Complainant as the full address of the Complainant is not mentioned and also on this belated stage because of collecting the previous details is not possible, all of sudden the Opposite Party requested the Complainant to wait for 15 days for suitable reply.

4. As the complainant is entitled for the refund of Rs.5,22,424.25 ps from the Opposite Parties vide Chit Nos. (1) No.18 for Rs.58,150/- as on 26.03.2010 + (2) No.15 for Rs.1,41,721.75 ps as on 26.02.2011; + (3) No.28 for Rs.1,14,721.75 ps as on 26.02.2011; + (4) No.32 for Rs.1,08,994/- as on 25.03.2011 + (5) No.9 for Rs.1,25,836.75 as on 26.03.2011, the Complainant has filed the present complaint for the refund of Rs.5,22,424.25 ps against the Opposite Parties seeking relief prayed for.

5. On behalf of the Opposite Parties Sri P.Murali Gopal filed Vakalat and filed a detailed counter mentioning about the documents furnished by him and the facts of the case. The Opposite Parties 2 & 3 filed Adoption Memo on 15.04.2013 to treat the counter of the 1^st Opposite Party.

6. The gist of the counter filed by the Opposite Parties is as follows: The Opposite Party states that the complainant worked in the Opposite Party Chit fund from 6.6.2002 to the end of February 2011 and stopped attending to his duties without any intimation to the Opposite Party company. Thereafter waiting for one month and as there is no response from him even after making phone calls also as there is no other option for removal of the complainant from the services publication was given for his appearance and thereby finally on 1.4.2011 he has been terminated from the services. There is no employer and employee relationship between the complainant and the Opposite Party as he has been terminated from the services.

7. While coming to the counter part for the chits relating to the LT-11 ZV-32 with regarding to the payment of Rs.1,08,994/- as alleged by the Complainant, Opposite party stated that complainant joined as a Member in the Chit for value of Rs.5,00,000/- and on 26.02.2011 auction has been conducted. The complainant after participating in the auction received Rs.3,79,000/- amount after deducting Rs.500/- towards Administration charges vide two cheques No.75859 dt. 25.03.2011 and No.76860 dt.25.3.2011 which was reflected in the bank account statement of the Opposite Party and still after taking the auction amount from the Opposite party, the complainant is liable to pay remaining 15 instalments amounting to Rs.1,87,500/-.

8. With regarding to the counter part related to Chit LT-09 ZV-09 Opposite Party stated that complainant participated in the auction conducted by the Opposite Party on 26.03.2011 and stood as highest bidder for Rs.4,40,000/- and after deducting Rs.500/- towards documentation charges by way of cheque bearing No.0092 dt.23.04.2011 drawn on Lakshmi  Vilas Bank and the said transaction was reflected in the statement of account. The complainant after receiving the auction amount has not paid the remaining instalments and thereby he became a defaulter and even after issuing the Legal Notices for paying the said balance amount on 11.06.2012 and the Legal Notices were returned to the Opposite Party with a postal endorsement ‘NOT CLAIMED’ which were sent to the Complainant and his guarantors.

9. With regarding to the Counter part of the Opposite Party pertaining to the Chit No.LT-09ZV-15 the Opposite Party stated that the complainant participated in the auction of the chit and stood as highest bidder for Rs.4,34,490/- on 27.05.2011 and the said amount was paid to him by way of cheque No.078739 drawn on Lakshmi  Vilas Bank, Gopalapatnam after deducting Rs.500/- towards documentation charges on 27.05.2011. The complainant paid for only 32 instalments out of 40 instalments and still he has to pay for 8 instalments. So the Opposite Party has sent Legal Notice to the Complainant on 11.06.2011 with due process of law and to his guarantors and surprisingly the notices served to the Complainant and Guarantors were returned to the Opposite Party with a postal endorsement ‘NOT CLAIMED’ and as on that date of sending Legal Notice, the Complainant is liable to pay Rs.1,00,000/- for the 8 instalments.

10. With regarding to the Chit No.LT-11ZV09 the Complainant participated in the chit auction conducted by the Opposite Party on 26.03.2011 and stood as highest bidder for Rs.2,10,766.50 ps excluding the dividends out of 40 instalments. After deducting the bid amount Rs.2,10,766.50 ps the complainant committed default in paying the remaining balance for 19 instalments. The Opposite Party No.1 after deducting 5% of the total chit value of the damages for breach of contract and Incidental Charges in the chit amount of Rs.1,85,696.50 ps was payable to the complainant and the same was intimated to the complainant by letter dt.10.10.2011. Even the said letter was returned with a postal endorsement “NOT CLAIMED”, thereafter the said amount Rs.1,85,696.50 was adjusted in Chit No.33. Even for the Chit No.33 he is due for Rs.51,978.50 ps to Opposite Parties.

11. With regarding to the Chit No.LT-12ZV18 the Complainant paid only 12 instalments out of 40 instalments amount to Rs.1,54,928.75 excluding dividends and thereafter he became a defaulter from 18^th instalment onwards. As per the terms and conditions / Byelaws of the chit agreement, as the complainant is a defaulter for so many instalments his name was removed from the list of the subscribers as per the conditions laid down. For that after deducting the incidental charges out of the said amount in the above chit for an amount of Rs.1,29,858.75 payable to the complainant the same was intimated to him on 10.10.2011, but it was returned with postal endorsement “NOT CLAIMED”. The said amount was adjusted in Chit No.6 out of Rs.2,37,675.25 ps and still he is due for an amount of Rs.1,07,816.50 ps to Opposite Parties for Chit No.6 mentioned in legal Notice dt. 12.06.2012.

12. At the time of entering into membership of the chit fund, the complainant has not mentioned their full address and particulars, so that the notices sent to the complainant and his wife along with his brother-in-law and his wife were returned with an endorsement as “NOT CLAIMED”. The documents reveals that the complainant has received the prize amount from the Opposite party and even after receiving the prize amount and as he is due to the Opposite party for the balance amounts, he has filed the present complaint in this Forum with a malafide intention and to harass the Opposite Parties without any cause of action to file the present complaint. Hence the complaint may be dismissed with costs as there is no deficiency of service on part of the Opposite Parties.

13. Observing the entire pleadings of the both sides, the Forum framed the following points:

    1. Whether there is deficiency of service on part of Opposite Party

    2. To what relief the complainant is entitled

14. After the Opposite parties filed the Counter along with bunch of documents for filing evidence, four opportunities were given to the Complainant from 8.5.2013 to 8.7.2013 and even after that also the Complainant not appeared and “treated as there is no evidence” from the side of complainant and then it was posted for Opposite Parties evidence.

15. The Opposite Parties filed Evidence Affidavit and on their behalf Ex.B1 to B65 were marked. From 14.08.2013 to 6.02.2014 (for 6 adjournments), there is no representation from the side of Complainant even for filing written arguments and then on 3.3.2014 Opposite Party-1 filed Written Arguments and Opposite Parties 2 & 3 filed “Adoption Memo” to treat the Written Arguments of 1st Opposite party on their behalf. Thereafter on 31.07.2014, the complainant’s documents Ex.A1 to A12 were marked and the matter was posted for Orders to decide the matter on merits.

16. Point Nos.1 & 2: In the present complaint, the complainant is requesting the Forum to direct the Opposite Parties to refund Rs.5,22,424.25 ps vide 5 chits amount i.e. (1) Rs.58,150/- for Chit No.18 to be paid as on 26.03.2010 (2) Rs.1,41,721.75 ps for Chit No.15 to be paid as on 26.02.2011 (3) Rs.1,14,721.75 ps for Chit No.28 to be paid on 26.02.2011 (4) Rs.1,08,994/- for Chit No.32 to be paid as on 25.03.2011  (5) Rs.1,25,836.75 for Chit No.9 to be paid on 26.03.2011. The Opposite Party after receiving the complaint filed a detailed counter and gave the explanation for each and every chit pertains to the complainant and stated that all the said amounts pertaining to the 5 chits mentioned supra has been paid him inspite of that as he was due for the balance amount of the chit instalments 34 registered legal notices were sent to the complainant and his sureties for recovery of the amount which was due by him. All the said notices were returned with a postal endorsement by the postman as “NOT CLAIMED” which was mentioned in Ex.A8, Reply Notice for Ex.A6.

17. Before discussing about the point of deficiency of service, the validity of the Vakalat filed by the Complainant’s counsel has to be decided. The complainant filed the complaint in the Forum on 28.8.2012. As seen from the Vakalatnama, filed on behalf of Complainant, the names and addresses of the Advocates or any Advocate is not mentioned in the Vakalat except Complainant’s signature. Even on the reverse of the Vakalat also the name and address of the Counsel for Complainant is not mentioned except the acceptance signature of Sri N.S.Gangadharam, Advocate and Sri K.Maheswara Rao, Advocate. The principles of Sec.30 & 31 of Civil Rules of Practice relates to the Vakalatnama Rule 31(4)  states that “the statement of Advocates address for the service shall be endorsed on the Vakalatnama and subscribed with his own signature by Advocate”. In this Vakalat as the name of the counsel and address is not there and not mentioned on the threshold itself the section of the Forum might have returned the same for filling up the said blanks. By oversight the complaint only has been scrutinized under Regulation (9)(2) of C.P.R.2005 and Vakalat has not been observed. However, viewing interest of the Complainant for filing Consumer Case the Vakalat is considered. Hereafter Section is directed to scrutiny the Vakalatnama also while scrutinizing the complaint.

18. With regarding to the Chit No.9, Ex.A1 pertaining to the Chit No.LT-9Z-V0 the account copy shows that as on 23.04.2011 for 13 instalments, the complainant has paid Rs.1,25,836.75 ps to the Opposite Party. On perusal of the Receipt dt. 26.03.2011 enclosed with Ex.A1 it reveals that Net subscription for the month of March to the Chit No.9 is Rs.11112.50 as reflected in the account copy.

19. With regarding to the Chit No.15 LT9ZV15 : The receipt dt.23.04.2011 for Rs.22,756/- and account copy for chit No.15 is marked as Ex.A4. As on 23.4.2011 for 14 instalments, the complainant has paid Rs.1,37,477.75 ps Ex.A5 is the Receipt for 6 instalments.

20. With regarding to the Chit No. LT/12/ZV 18: For 6 instalments from Oct 2009 to Mar 2010 he has paid Rs.58,150/- to the Opposite Parties.

21. With regarding to the Chit No.LT/9Z/V-28 The Receipt and Statement copy are marked as Ex.A3. As on 28.5.2011 he paid rs.1,48,970.50 ps to the Opposite Parties for 15 instalments to the Opposite Party. The next due amount Column, still Rs.1,76,460/- has to be paid to Opposite Parties by the Complainant only.

22. With regarding to the Chit No.LT-11ZV-32 : From 11.04.2010 to 26.02.2011 Complainant paid Rs.1,08,994/- to Opposite Parties and Net due amount is Rs.1,12,385/-. The 4 Original Receipts furnished i.e. Ex.A9 are related to Chit No.9, 15, 28 and 32.

23. Ex.A6 is the Legal Notice dt. 25.07.2012 served to the Opposite Parties 1 to 3 to pay the Chit amounts pertaining to 7 chits including Chit No.9,15,18,28 & 32. After receiving Ex.A6 Legal Notice, Opposite Party served reply notice on 5.8.2012 i.e. Ex.A8 to the Complainant’s counsel Sri N.S.Gangadharam stating  that Opposite Parties are sending the tentative reply to the Ex.A6 as they have sent 34 Legal Notices to the Complainant and his wife along with his brother-in-law and his wife. The said Notices were returned with postal endorsement as “NOT CLAIMED and returned to sender” though it was served to the Complainant address which was mentioned as H.No.18-12-6, Kummari Street, Salipet, Maharanipet Post, Visakhapatnam. Further Opposite  Party requested the Complainant’s counsel to wait for 15 days for giving appropriate reply after perusing the records Ex.A9.

24. Pertaining to the Chit No.9 of the Complainant when comparing with the Ex.A8 Reply Notice of Opposite Party with Ex.B37, 38, 39 & 40 towards Chit No.LT-11ZV-09. Ex.B37 is the Chit Agreement for LT-11ZV-09 on the name of Complainant which is containing the terms and conditions. As per Ex.B38 Notice sent to the Complainant it reveals that as on1 0.10.2011, the Complainant is due for an amount of Rs.185696.50 ps to the Opposite Parties. Otherwise the Chit membership will be terminated as per the provisions of the Act. The postal endorsement and the Xerox copy of the cover in which Notice Ex.B38 is sent to the Complainant was returned and it shows that by striking the address of the Complainant in handwritten “not claimed”. Hence return to sender is mentioned. Ex.B40 reveals that as on3 1.05.2012 Complainant is due Rs.1,85,696.50 ps to the Opposite Party.

25. With regarding to Chit No.LT/9ZV/15 the documents Ex.B20 to B27 related to the Chit No.15: As per Ex.B20 Complainant participated in the Chit Auction on 23.04.2011 and the prized amount of Rs.4,34,990/- has been given to him vide Ex.B21 through Cheque No.078739 dt. 27.5.2011 and the same was reflected in the account  copy of the Opposite Party in the transaction dt. 27.5.2011 the same was also reflected in the Bank account copy i.e. Laxmi Vilas Account Statement of the Opposite Party in the transaction dt. 11.6.2011. After receiving the prize amount as the complainant has not paid the balance amount of Rs.1,00,000/- for the Chit No.LT9-ZV-11, the Opposite Party sent Legal Notice to the Complainant vide Ex.B24. On the face of the xerox copies of the covers the Complainant and Opposite Parties’ addresses are mentioned.  Ex.B25 & 26, reveals that the Notices were “not claimed and returned to sender”. The Notice sent to Sri Boddu Baburao i.e. Complainant’s brother-in-law and Smt.Boddu Mani Kumari vide Ex.B27 & Ex.B28 are also reveals that notices were not claimed.

26. With regarding to the Chit No.LT-12ZV-18, the Exs.B53 & B54 are related to Chit No.18. Ex.B18 shows that as on 10.10.2011, the Complainant is due for Rs.1,29,858.75 ps to the Opposite Parties and if the said amount was not paid, the Complainant membership will be terminated. The Opposite Parties sent Ex.B53 Legal Notice to the Complainant. The Xerox copy of the covers and the postal receipt i.e. Ex.B54 reveals that the Notice as “NOT CLAIMED and returned to sender”.

27. With regarding to the Chit No.28: Ex.B29 to B36 are related to Chit No.28, Ex.B29 is the Form No.11 which shows that the Complainant participated in the Chit and stood a highest bidder for Rs.4,29,990/ out of Rs.5.00 Lakhs chit amount on 26.05.2011. The said amount was paid to him vide Ex.B31 on 25.06.2011 and the same was reflected in Ex.B-32 i.e. the Account Copy of the Opposite Party in the transaction dt. 25.06.2011. After receiving the bid amount of Rs.4,29,990/- as Complainant has not paid the balance amount of Rs.1,00,000/- for 8 instalments, the Opposite Party issued Legal Notice Ex.B-33 to the Complainant on 21.07.2012 to pay amount Rs.1,00,000/-. But as per Ex.B34 cover sent to Complainant Ex.B35 cover sent to the Complainant’s wife, Ex.B36 sent to Complainant brother-in-laws wife, they are returned to Opposite Parties with a Postal Endorsement that the notices were returned with as ‘NOT CLAIMED and returned to sender”.

28. With regarding to the Chit No.LT-11Z-V32, Ex.B2 to B10 which relates to the Chit No.32. Ex.B2 and B3 shows that Complainant  participated in the Chit auction and stood as highest bidder for Rs.3,79,500/- Rs.3,79,000/- was paid to him vide two cheques 075859 and 075860 dt.25.03.2011. After deducting the administration charges Rs.500/- which was reflected in Ex.B4 and B5.  After receiving the chit amount Rs.3,79,000/- as the Complainant has not paid the balance amount of Rs.1,87,675/-. Then Opposite Party got issued Legal Notice Ex.B6 to the Complainant for recovery of the same. The copy of the covers sent along with Ex.B6 notice vide Ex.B7 to Complainant, Ex.B8 to Complainant’s wife P.Venkatalakshmi, Ex.B9 to Complainant’s brother-in-law, Ex.B10 to Complainant’s brother-in-law’s wife B.Mani Kumari reveals that, all Ex.B7 to B10, Notices were “NOT CLAIMED was returned to the sender” (i.e. to the Opposite Party).

29. Ex.B1 is the booklet containing the bye-laws of the Opposite Party for conducting chits and giving the amounts to the subscribers. In the complaint in para ‘D’ (Page 2) Complainant stated that “he along with his wife, brother-in-law and brother-in-law’s wife has joined in the Opposite Party chits as subscribers for the Chit Nos.24, 16, 19, 7, 22, 11, 26, 32, 28”. So as observing the returned covers of the Notices served by the Opposite parties for paying the amounts it reveals that the Complainant, his wife Venkatalaxmi, his brother-in-law and his brother-in-law’s wife B.Manikumari has participated in the chits and notices were sent to them regarding payments due to the Opposite Party.

30. Here observing the documents i.e. Exhibits related to the Chits No.9, 15, 28 & 32 which shows the Opposite Party has paid the amount to the Complainant which was reflected in their bank statements.

31. As per Ex.B15 Notice related to Chit No.9 for payment of Rs.1,00,000/- due by the Complainant, for payment of balance amount of Rs.1,00,000/-. As per B24 Notice pertaining to the Chit No.15 dt.11.06.2012, for payment of Rs.1,00,000/- towards balance amount. As per Ex.B33 Opposite Party sent Legal Notice for payment of Rs.1,00,000/- towards balance payment from Complainant for Chit No.28. The payment of Rs.1,85,696.50 ps for the Chit No.LT-11ZV-9 to be payable  by Complainant is adjusted in Chit No.33 for Instalments 22-35, so for Chit No.33 still the Complainant is due for amount of Rs.51,978.50 ps to Opposite Party as per Ex.B46.  As seen from Ex.B60, regarding Chit No.6 the Complainant is due for an amount of Rs.1,07,816.50 ps to the Opposite Party as on 12.06.2012 after adjusting Rs.1,29,858.75 ps vide Ex.B53. Ex.B60 Notice was refused by the Complainant vide Ex.B61.

32. Observing the entire documents of the Complainant and the Opposite Parties along with the version of the Complainant that he has been illegally terminated by the Opposite Parties from the employment (vide Para No.F of Pg. 3 of Complainant) and reply of the Opposite Party for the said point in para 26, page 13 of the Counter that he was terminated from service, we are of opinion that the bonafides of the complainant should be suspected.

33. Even after receiving the chit values after participating in the chit auction vide Ex.B3, B12, B21, B31, B51 and taking the same as he is bore grudge upon the Opposite Parties. He filed the present Complaint against Opposite Parties, for the wrongful gains, wherein there is no cause of action at all. For the said act of the complaint in filing the complaint for wrongful gains amounts to offence under Sec.26 of Consumer Protection Act. For that he has to be penalized and at the same time we are of conclusive opinion that there is no deficiency of service on the part of Opposite Parties. As the Opposite parties has suffered harassment and also there is wastage of valuable time of the Forum, we are of firm decision that the complaint is liable to be dismissed with very reasonable costs to be paid by the Complainant to Opposite Parties.

34. In the light of facts and documents placed before us, we firmly came to conclusion that the Complaint is liable to be dismissed with costs of Rs.3,000/- to be paid by the Complainant to the Opposite Parties for causing harassment to him and the said costs has to be paid within 30 days from the date of receipt of this order. Accordingly point No.1 and 2 are answered.

35. In the result the Complaint is dismissed with costs of Rs.3,000/- (Rupees three thousand only). The complainant has to pay Rs.3,000/- costs to the Opposite Parties 1 to 3 within 30 days from the date of receipt of this Order.

     

    Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 11^th day of August, 2014.

     

            Sd/-                                                                   Sd/-

    President (FAC)                                                         Member           

                                                                            District Consumer Forum-I

                                                                                Visakhapatnam

     

    APPENDIX OF EVIDENCE

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:   

       Sd/-                                                                    Sd/-

President (FAC)                                                         Member           

                                                                        District Consumer Forum-I

                                                                            Visakhapatnam