DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 18^th day of August, 2023                                                                                               

                             Filed on: 11/11/2019

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                        

C.C. No.  426/2019

Between

COMPLAINANT

P.J. Abraham, Padinjarekkara (H), Near Substation, MA College PO. Kothamangalam. 686666.

(By Adv.M.S.Amal Dharsan, Adv.Noel Jacob, Level -2, Ozone Greens, Ozone Avenue, Jawahar Nagar North, Kadavanthra P.O., Cochin-682 020)

VS

1. M/s Nedumpillil Financial Co Ltd (NFC), represented by the Managing Director, N I Abraham
2. Prof N I Abraham, Patron, NFC., residing at Nedumpillil house, Edayar P. O..via Koothattukulam,
3. N.A Issac, Chairman, NFC.,  2^nd Floor, Carmal Centre, Banerji Road, Ernakulam- 682018.
4. N.I Abraham (Junior), Managing Director, NFC. 2^nd Floor, Carmal Centre, Banerji Road, Ernakulam-682018

(Ops 1 to 4 rep. by Adv.Geo Paul, Providence Road, Kochi-18)

FINAL ORDER

DB.Binu, President

1. A brief statement of facts of this complaint is as stated below:

The complaint is filed under Section 12 (1) of the Consumer Protection Act,1986. The brief facts, as averred in the complaint that the Complainant is a retired Commerce Professor, had availed the services of the 1st opposite party which is a Company engaged in the business of banking and finance. The 1st opposite party is a banking company with branches in Kothamangalam and Muvattupuzha since 2017, and the complainant has deposits in both branches. The 2nd opposite party is the complainant's colleague and has a close relationship with him for the last 60 years, being the Patron of M/s Nedumpillil Financial Co Ltd. The 3rd opposite party is the son of the 2nd party and serves as the Chairman, while the 4th opposite party is the grandson of the 2nd party and holds the position of Managing Director in M/s. Nedumpillil Financial Co Ltd.

The 2nd opposite party, on behalf of the 1st opposite party (banking company), requested the complainant to deposit Rs. 8,00,000/- with their bank through their Kothamangalam branch on 30.10.2017 for a short period of 20 days for their urgent internal adjustments. However, shortly after the deposit was made, news emerged that the manager of the Kothamangalam branch of the NFC misappropriated cash and gold of the banking company and was charged by the police.

The complainant made written and oral requests to the opposite parties to return his money. They returned Rs. 4 Lakhs in five equal instalments starting from 22.06.2018 to 20.10.2018, but no further payments were made. Despite several demands, both written and oral, the remaining balance was not refunded. The complainant sent a registered letter on 20.08.2019 and another written request on 31.10.2019, but received no response.

The complainant claims that he is entitled to receive Rs. 4 Lakhs as the principal amount and Rs. 1,25,700/- as agreed upon interest, with interest from the date of filing the complaint until payment. Additionally, he seeks compensation of Rs. 50,000/- for mental agony and torture caused by the situation. The complainant requests the commission to direct the opposite parties to provide the mentioned reliefs, along with the cost of the complaint and proceedings.

2) Notice

Notices were issued by the Commission to the opposite parties. However, they failed to file their versions within the statutory period. Consequently, they have been set ex-parte.

3) . Evidence

          The complainant had filed an ex-parte proof affidavit and 6 documents that were marked as Exhibits-A-1 and A-6.

The following is a list of documents on behalf of the complainant:

1. Exhibit A-1: True copy of the receipt dated 30.10.2017 that the Complainant received for depositing an amount of Rs. 8,00,000/-.
2. Exhibit A-2: True copy of the letter sent to the opposite parties dated 18.11.2017.
3. Exhibit A-3: True copy of 6 the passbook entries evidencing repayment of Rs. 4,00,000/- in 5 equal instalments starting from 22.06.2018 to 20.10.2018.
4. Exhibit A-4: True copy of the letter dated 22.11.2018 addressed to the Manager of the 1st Opposite party.
5. Exhibit A-5: True copy of the letter dated 20.08.2019 addressed to the 4th Opposite party along with the acknowledgement.
6. Exhibit A-6: True copy of the letter dated 30.10.2019 addressed to the 4th opposite party.

4) The main points to be analysed in this case are as follows:

i)       Whether the complaint is maintainable or not?

ii)      Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii)     If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv)     Costs of the proceedings if any?

5)      The issues mentioned above are considered together and are        answered as follows:

 In the present case in hand, as per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant submitted a receipt as evidence of depositing an amount of Rs. 8,00,000/- with the opposite parties. (Exhibits A-1). Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 1986 (Point No. i) goes against the opposite parties.

The complainant filed the above case seeking compensation for the deficiency in service caused by the opposite party’s failure to refund the deposited amount. The complainant alleges that the opposite party did not fulfil their obligation to return the money, resulting in a deficiency in the service provided to the complainant.

The complainant submitted that the above consumer complaint pertains to the settlement of accounts with the 1st Opposite party and the same is maintainable as held by the Hon'ble High Court of Kerala in the case of Anil Paul and Another V. South Indian Bank, Kolenchery 2022 (2) KHC 332. In the case referred, it was held that Section 3 of the Consumer Protection Act, 1986, makes it clear that the powers of the commission are in addition and not in derogation of any other law for the time being in force. Therefore, when the issue of settlement of accounts arises for consideration in a complaint alleging deficiency of service and unfair trade practice, the commission is well within its powers to decide the issue.

The 2nd opposite party back in 2017, had approached the Complainant for and on behalf of the 1 opposing party Company to deposit an amount of Rs. 8,00,000/-. Thereafter, on 04.11.2017, to the Complainant's utter shock and dismay, the Complainant had found out through newspapers, that the Manager, Kothamangalam branch of the 1st opposite party where the Complainant had deposited the money, had pilfered and misappropriated funds and gold from the Company. However, the Manager had later been caught by the police.

On coming to know about the aforementioned incident and being concerned/worried about the funds that the Complainant had deposited, the Complainant demanded the opposite parties to return the money that the Complainant had deposited through a registered letter dated 18.11.2017 as well made several oral requests for the same (Exhibit A2).

However, to date, opposite party had only returned/refunded an amount of Rs. 4,00,000 out of the total amount of Rs. 8,00,000/- that the Complainant had deposited. (Exhibit A3).

Thereafter, the Complainant made several demands for getting the balance amount of Rs. 4,00,000/- along with interest on several occasions. However, there has been no response from the opposite party. This evinces their clear intention to not return the money that the Complainant had deposited with them. A letter dated 22.11.2018 addressed to the Manager of the 1st Opposite party (Exhibit A4).

Thereafter, the Complainant addressed a letter dated 20.08.2019 to the 4th opposite party, urging to refund the amount along with interest rightfully due to the Complainant (Exhibit A5).

Thereafter, under a telephonic conversation with the 4th opposite party wherein the Complainant was assured to be returned/refunded the amounts due along with interest, the Complainant sent yet another letter dated 30.10.2019 reminding them of the same (Exhibit A6).

          The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations leveled against them.  Here, the case of the complainant stands unchallenged by the opposite parties.  We have no reason to disbelieve the words of the complainant as against the opposite parties. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).                    

          The complainant made earnest efforts through written and oral requests to the opposite parties to return the deposited amount. While the 1st Opposite party did refund Rs. 4,00,000/- in instalments, the remaining balance was not refunded despite multiple demands. The complainant also claims interest and compensation for mental agony.

Notices were issued to the opposite parties, but they failed to respond within the statutory period, resulting in their setting ex-parte. The complainant provided compelling evidence, including receipts, letters, and passbook entries (Exhibits A-1 to A-6), which were unchallenged by the opposite parties.

Upon examination of the evidence and arguments, the following key points were analysed:

The opposite parties' failure to refund the entire amount despite evidence of misappropriation points to a deficiency in service on their part. The opposite parties' negligence and non-response have caused significant inconvenience, mental agony, financial loss, and hardships to the complainant.

The 1^st opposite party's failure to refund the entire amount despite evidence of misappropriation by their branch manager constitutes a deficiency in service. The complainant's requests for the return of the deposited money, along with interest, were left unanswered and unaddressed. This lack of response and negligence on the part of the opposite parties amounts to unfair trade practice.

          In light of the above analysis, the issues (II) to (IV) are found in favour of the complainant, highlighting the serious deficiency in service on the part of the opposite party. The complainant's claims are supported by reliable evidence and remain unchallenged by the opposite parties.

Considering the compelling circumstances and unaddressed grievances, the commission holds the complainant's claims to be valid. Thus, the complainant is granted the relief sought, including the principal amount, interest, and compensation for mental agony.

          Financial frauds in a fully literate state pose a critical concern that demands swift and decisive action. These fraudulent schemes can have far-reaching consequences, affecting individuals, the economy, and public trust in the financial sector. Even educated individuals are susceptible to falling prey to such scams, necessitating heightened vigilance and robust consumer protection mechanisms. Addressing these issues is essential to safeguard the interests of the public and maintain the integrity of the financial system

In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.

Hence the prayer is partly allowed as follows:

1. The Opposite Parties shall refund of Rs. 4,00,000/- towards the deposited amount along with the interest @9% from the date of deposit ie., 30.10.2017 till the date of realization.
2.  The Opposite Parties shall pay Rs 50,000/- /- towards compensation for the deficiency of service committed by the opposite parties, and for the mental agony and physical hardships sustained by the complainant.
3.  The Opposite Parties shall also pay the complainant Rs. 7,000/- towards the cost of the proceedings.

The Opposite Parties be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order failing which the amount ordered vide (ii) above shall attract interest @9% from the date of receipt of a copy of this order.  Needless to say that the amount ordered vide (i) above shall attract interest @9% from the date of deposit till the date of payment.

Pronounced in the Open Commission on this the 18^th day of August, 2023                                                                                                

Sd/-  

D.B.Binu, President

                                                                             Sd/-

                                                          V.Ramachandran, Member

Sd/-

                                                         Sreevidhia T.N., Member

Forwarded/by Order

Assistant Registrar Order

Assistant Registrar

Appendix

Complainant’s evidence

1. Exhibit A-1: True copy of the receipt dated 30.10.2017 that the Complainant received for depositing an amount of Rs. 8,00,000/-.
2. Exhibit A-2: True copy of the letter sent to the opposite parties dated 18.11.2017.
3. Exhibit A-3: True copy of 6 the passbook entries evidencing repayment of Rs. 4,00,000/- in 5 equal instalments starting from 22.06.2018 to 20.10.2018.
4. Exhibit A-4: True copy of the letter dated 22.11.2018 addressed to the Manager of the 1st Opposite party.
5. Exhibit A-5: True copy of the letter dated 20.08.2019 addressed to the 4th Opposite party along with the acknowledgement.
6. Exhibit A-6: True copy of the letter dated 30.10.2019 addressed to the 4th opposite party.

Opposite parties Evidence

Nil

Despatch date:

By hand:     By post                                                  

kp/

CC No. 426/2019

Order Date: 18/08/2023