Unit Trust of India vs Joseph Kunju

SINCE common question arises for consideration in both these appeals they are being disposed of by this common order. Appeal No. 193/99 is by the complainant in O.P. No. 222/98 on the file of the Consumer Disputes Redressal Forum, Alappuzha, whereas Appeal No. 228/99 is by the complainant in O.P. No 533/98 on the file of Consumer Disputes Redressal Forum, Thrissur. In O.P. No. 222/98 the complainant joined on behalf of his two grand children in the Children''s Gift Growth Fund, 1986 (CGGF 86), as per the said scheme as stated in Ext. A1 brochure on the child on attaining 21 years of age, he would be eligible for a minimum of Rs. 1,00,000/- with recurring bonus and dividend. The grievance was that while he was regularly making the contribution, he sent a cheque towards the contribution alongwith Ext. A2 letter but the cheque was returned with a letter intimating that the said scheme has been stopped. The complainant alleged that the said act of the opposite party would amount to deficiency of service, consequently he wanted a direction to the opposite party to continue the scheme and also to pay a compensation of Rs. 5,000/-. The allegation of the complainants in O.P. 533/98 also is similar, the first complainant joined on behalf of his daughter in the aforesaid scheme. He was making contributions regularly. But when she sent an application dated 20.3.1998 alongwith the amount for purchase of 260 units, the same was rejected. The complainant could not continue the remittance and the aforesaid act of the opposite party, therefore, would constitute deficiency in service. The opposite party in O.P. No. 222/98 as well as O.P. No. 533/98 filed versions. The nature of the defence taken in both the versions is the same. The contention raised by the opposite parties in the respective version is that the scheme started as per Section 21 of the Unit Trust of India Act, 1963 and as per Clause 33 of the scheme the opposite parties are entitled to terminate the scheme at any time by giving a notice of not less than two weeks in one of leading English dailies, and consistent with the same they had published the suspension of the scheme by public notice dated 20th October, 1997. Therefore, they sought to maintain that the action of the opposite parties in this regard since is consistent with the requirement of the scheme and Section 21 of the Unit Trust of India Act, 1963 the said action of the opposite party cannot constitute deficiency in service. It was also maintained merely because the future contribution was stopped with effect from the date of notification benefit accruing on the remitted units would accrue. The benefits are noted in Clauses A and B of the Children Gift Growth Fund and they maintained that being the guarantee benefit no injury could be caused to the child on whose behalf the contributions were made. Therefore, it was maintained by them that the complaint is not maintainable.

IN O.P. No. 222/98 the complainant had produced Exts. A1 to A3 and gave evidence as P.W. 1. IN the said O.P. the District Forum made a direction to refund the amount collected under Ext. A3 series alongwith 15% interest with quarterly rest from the date of remittance till realisation, Rs. 2,000/- was awarded as compensation, and cost of Rs. 500/- was also awarded. In O.P. 553/98 the complainant had produced Exts. P1 to P5. In that case the District Forum made a direction to pay a compensation of Rs. 2,000/- for mental agony and to pay Rs. 500/- towards costs. In Appeal 193/99 the complainant filed I.A. 383/99 for admitting the photo-copy of the Financial Express dated 20th October, 1997 and also I.A. 623/97 for admitting the photo-copy of the Gazette of India dated 19th April, 1986. It was submitted by the learned Counsel for the respondent that the copy of the newspaper was not produced before the District Forum and, therefore, the same cannot be admitted in the appeal stage. As regards the Gazette Notification is concerned, for admitting the same also the learned Counsel has objection. The same is a public document, and can be admitted without further proof. We consider that the objection in that regards cannot be sustained. As to the newspaper sought to be admitted by I.A. 383/99, we consider that the same being a relevant material for resolving the dispute in this matter the same too can be admitted and hence they are admitted in this appeal as additional documents.

The important point that could arise for consideration to both these appeals is as to the right of the opposite party/appellant to suspend or terminate the scheme and the incidental question that would arise is, whether the said suspension would amount to deficiency as defined under Section 2(1)(g) of the Consumer Protection Act, 1986. The facts are not in dispute, when the respective guardians joined the scheme and while contributions were being made on their offering the purchase units the same was not accepted and returned also is admitted. The justification sought to be offered by the appellant/opposite party is that as per Clause 33 of the scheme since the opposite party is conferred with the right to terminate the scheme at any time without assigning any reason by giving a notice of not less than two weeks in one of the leading English dailies and they having published the resolve in the Financial Express dated 20th October, 1997 the respective complainants could not have any grievance. Clause 33 of the scheme published in the Gazette of India dated 19th April, 1986 reads "The Trust reserves the right to terminate the scheme at any time by giving a notice of not less than two weeks in one of the leading English dailies without assigning any reason whatsoever if it feels in the interest of the unit holders and the Trust is expedient so to do". It was in exercise of the said power that public notice came to be published in the Financial Express dated 20th October, 1997. Whereas in Clause 33 speaks of right to terminate the scheme the public notice speaks of suspension of the scheme with effect from first November, 1997. We do not consider that since the notification only suspends the scheme with effect from first November, 1997 the same is not consistent with aforesaid Clause 33 as could be clear from Clause 33 the opposite parties/appellants are conferred with a larger right, therefore, a lesser right of suspension can be exercised and the publication of notice has to be held to be not in violation of Clause 33 of the scheme.

NOW once it is found that the said suspension is consistent with the provision in the scheme, as the scheme this was published under Section 21 of the Unit Trust of India Act, 1963, it cannot be said that the opposite party/appellant is barred by principle of promissory estoppel in taking the impugned step of suspension of the scheme. In a similar question when it arose for determination before the National Commission, the National Commission held in the decision in Unit Trust of India v. Kumari Gauthami & Anr., I (1996) CPJ 203 (NC)=1996 (1) CPR 22, where the scheme has been framed under the powers given by the statute the principle of promissory estoppel would not apply. In this connection it will be relevant to note that the Ext. A1 in O.P. No. 222/98 gives the benefits to which the child would be entitled and Clauses A and B thereof assure dividend year after year and also bonus every three years. It is submitted by the learned Counsel for the appellant, in spite of the suspension of the scheme the aforesaid benefit would recurrently accrue to the child and when it matures on attaining the age of 21 by the child, the child would be eligible to get the amount alongwith the aforesaid bonus as well as dividend. The brochure Ext. A1 itself shows benefits under Clauses A and B, and this would accrue to the benefit of the child ir-respective of the suspension/termination of the scheme. In both these O.Ps. the District Forum found deficiency of service on account of the suspension of the scheme, that cannot be sustained.

WHEREAS in O.P. 222/98 the District Forum made a direction to return the amount under Ext. A3 series alongwith interest with quarterly rests and also compensation, in O.P. No. 533/98 on the finding of deficiency of service direction was made to pay Rs. 2,000/- as compensation. In view of the fact that the suspension/termination of the scheme is consistent with Clause 33 of the scheme, the same cannot constitute deficiency within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. When such is the position it is clear that the District Forum has gone wrong in finding deficiency of service and making the consequential directions. The said direction has to be set aside and the respective complaints are liable to be dismissed. In the result the appeals are allowed but in the circumstance of the case there will be no order as to costs. Appeals allowed.