Andhra Pradesh

Nellore

CC/20/2015

S.Ramachandrarao - Complainant(s)

Versus

1.Director ESD Mee seva - Opp.Party(s)

T.Jagan Mohan Rao

29 Feb 2016

ORDER

                                                                           Date of filing       :  11-03-2015

                                                              Date of disposal   :  29-02-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the 29th day of  FEBRUARY, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

                                          C.C.No.20/2015

S.Ramachandra Rao,

Present address:4-210/150,

Netaji Nagar, ECIL-P.O.,

Hyderabad-500062.                                                            …         Complainant

 

                      Vs.

                                                                          

1. Director, ESD-Meeseva,

Road No.7, Banjara Hills,

Hyderabad-34.

 

2. Sub-registrar,

Sub-registrar office,

Kovur post, SPSR Nellore District.

 

3.  Mee seva kendram, ,

Rep. by its Proprietor,

Satram street,  Kovur – 524 137.

 

4. Meeseva Kendram,

Rep. by its Proprietor

Inamadugu Road, Junction,

Kovur-524137.                                                       …          Opposite parties

 

This matter coming  on 18-02-2016  before us for final hearing in the presence of the Sri T.Jagan Mohan Rao and Sri P.V.Chalapati Rao, advocates for the complainant  and  Sri K.Nagarathnam Reddy, Asst.Govt.Pleader,  for the 1^st and 2^nd  opposite parties, Sri B.Rama Rao, Advocate for the 3^rd and 4^th  opposite parties and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

 

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

          This consumer case is filed by the complainant against the opposite parties 1 to 4 to direct them to pay Rs.250/- service charges which he had paid to 3^rd and 4^th opposite parties for their deficiency in service and negligence for delay for Rs.20,000/- and  also to pay Rs.1000/- towards the costs of the complaint and pass such other relief or reliefs as the Hon’ble Consumer Forum may pleased to deemed it fit and proper in the circumstances of the case in the interests of justice.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

(a)It is the case of the complainant that on 01-07-2013 and 3-7-2013 he had paid service charges (Rs.125/- + Rs.125/-) to 3^rd and 4^th opposite parties for obtaining encumbrance certificate relating to the document no. 1092/2001 with regard to the property which was situated in IInd ward, Jangam street, Kovur village, Nellore.  At first instance, the encumbrance certificate which was provided by 2nd opposite party, the required information of complainant’s property particulars are not found in it.  Later on, the complainant had also again contacted and approached 4^th opposite party office for encumbrance certificate for such details of his property by paying a requisite fee of Rs.125/- to Meeseva office, Inamadugu Road junction, Kovur.  But, he could not able to get the said correct information details also from 2nd opposite party again.

(b)It is also further submitted by the complainant that in para-2 of his complaint that he had brought to notice of those said facts which are mentioned above to the 1^st opposite party on 19-07-2013 by report to the Director, ESD-Meeseva, Road no.7, Banjara Hills, Hyderabad for the deficiency in service on the part of 3^rd and 4^th opposite party towards him.  Thereafter, the 1^st opposite party wrote a letter dt.25-07-2013 in his proceedings no.1783/ESD/Meeseva/2013 to the 2^nd opposite party and send its copy to the complainant.  Even then, the complainant does not get any reply from 2^nd opposite party till today.  For that, he had suffered a lot and subjected to his mental worry and had incurred a financial loss.

( c ) It is also further submitted by the complainant that in last para of his complaint that he had sought the reliefs such as to return the amount of Rs.250/- paid by him and for unnecessary delay and sufferance in the hands of all the opposite parties till today, claimed compensation of Rs.20,000/- and costs of Rs.1000/- towards complaint.  Hence, the complaint before the Hon’ble Consumer Forum, Nellore.

II.  DEFENCE:

The contents of written version/counter dt.26-08-2015 filed on behalf of the opposite parties Nos.3 and 4:

1.    These opposite parties 3 and 4 resisted the complaint by denying the allegations of the complainant which are made in his complaint.  The complaint is unjust and not maintainable either in law or on facts.  Admitted facts are need not be proved. Even though 1^st and 2^nd opposite parties are represented by Sri Nagarathnam Reddy, Asst.Govt.Pleader for the opposite parties 1 and 2 by filing a memo of appearance but not filed their written version.

 

2.  It is also further submitted by the opposite parties 3 and 4 in paras-3  and 4 of their written version/counter that it is true that the complainant had made an application to the 3^rd opposite party on 01-07-2013 and he paid Rs.125/- towards a fee for obtaining E.C. with regard to document no.1092/2011 and to that effect he was received a receipt also. But he did not receive any information with regard to said document.  It is also again true that he made an application to 4^th opposite party on 03-07-2013 and paid Rs.125/- towards fee for obtaining encumbrance certificate with regard to the said document.

3.  It is also further submitted by the opposite parties 3 and 4 in para-5 of their written version/counter that these opposite parties 3 and 4 are only an agents and their duties, is to receive the applications along with necessary fees and sent for the same to the S.R.O., Kovur for E.C.  They are only middle persons in between the complainant and the sub-registrar’s office.  They are nothing to do with the entries made in the encumbrance certificate by the registration department.  Hence, they are not liable to pay any compensation or any amount to the complainant and the claim of Rs.20,000/- is highly excessive.  As they are received ECS, the complainant is not entitled to claim E.C. charges of Rs.250/-.  There is no nexus in between complainant and the opposite parties 3 and 4.  There is no cause of action for this complaint.  He is not a consumer within the meaning of the Act, 1986.

     Under the said circumstances and facts of the case, it is prayed that Hon’ble Consumer Forum may be pleased to dismiss the complaint with exemplary costs against the opposite parties 3 and 4.

III. The complainant had filed his chief affidavit on 10-8-2015 and also documents which were marked on his behalf as Exs.A1 to A4 whereas the opposite parties 3 and 4 had also filed their chief-affidavits in support of the case.  No documents were marked on their behalf.  The complainant had filed his written arguments in Telugu on 07-10-2015 and the opposite parties 3 and 4 had also filed its written arguments on 25-01-2016. The opposite parties       1 and 2 were also called absent.  There was no representation on behalf of them.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein. It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainant:

             Sri T.Jagan Mohan Rao, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has further argued that it is pure deficiency in service and negligence on the part of the opposite parties to answer the allegations of the complainant in his complaint.  He has further contended that it is true that as per the contentions of 3^rd and 4^th opposite parties also, the 2^nd opposite party had intentional and deliberate in its attitude, in not answering, the allegations of the complainant inspite of receiving  requisite fee of Rs.250/- on two occasions from 3^rd and 4^th opposite parties.  The 2^nd opposite party had failed miserably to provide necessary information and unrepresented in the Hon’ble Consumer Forum’s proceedings and kept quiet for the reasons best known to 2^nd opposite party.  The 2^nd opposite party had completely neglected the proceedings of 1st opposite party (Exs.A3 and A4) and thereby caused to him irreparable loss, mental agony and financial loss since 2 ½ years till today.  Finally, the said learned counsel for the complainant has appealed to the Hon’ble Consumer Forum to award compensation of Rs.20,000/- and for expenses incurred towards costs of his complainant Rs.4,000/- and it may be allowed.

Oral Submissions by the learned counsel for the opposite parties 3 and 4 :

      On the other hand, Sri B.Rama Rao, the learned counsel of the opposite parties 3 and 4 has also vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments. 

     He has further argued that 3^rd and 4^th opposite parties are admitted the allegations of the complainant with regard to receiving fee of Rs.250/- on two occasions as mentioned in the written arguments of the case.  They are nothing to do with the contents in those E.C. documents.  So, there is no deficiency in service and negligence on the part of the opposite parties 3 and 4 towards the complainant.  Finally, the said learned counsel for opposite parties 3 and 4 has prayed that the complaint may be dismissed against them with costs.

Forum’s Findings and observations

       Heard, the learned counsel for the complainant and opposite parties 3 and 4 and perused the record very carefully. Parties led their evidence by way of chief affidavits of them.  Oral arguments of the case are advanced by them.  Each case has to be judged on its own facts. Govt. Pleader on behalf of opposite parties 1 and 2 is unrepresented their case for the reasons best known to him.

    The crucial point is that whether the opposite parties are committed deficiency in service and negligence towards the complainant or not? 

 

Reasons for the order:

     After scrutinizing the facts of the case, it is crystal clear that 2^nd opposite party is unmoved inspite of the letters (Exs.A3 and A4) addressed to him in the case of the complainant since 2 ½ years till today.  It is clearly unjustified.

Presumptions of fact and law:

      In the process of decision-making, appreciation of evidence assumes utmost importance. Appreciation of evidence involves appreciation of documentary as well as oral evidence adduced by either party.  Certified copies of public documents may be admitted in evidence and it is presumed that their contents are proved (Section 77 C.P.C.).  It is true that proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs.  For weighing evidence and drawing inferences from it, there can be no Conon.  Each case presents its own peculiarities and common sense and shrewdness must be brought to bear upon the facts elicited in very case.

       Presumption is an inference drawn by the Forum/Court as to the truth of a particular fact from known or proved facts.

     “A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists.  It is a rule concerning evidence.  It indicates the person on whom the burden of proof lies”.

 

Section 101 of Evidence Act:   The section enunciates the general rule “He who asserts must prove.” The section 103 provides that the burden of proving any particular fact lies upon that person who wants the court to believe in its existence, unless otherwise provided in Law.  Based on the evidence adduced by the parties as well as the presumptions to be drawn in accordance with Law, the Court comes to its own conclusions on the various issues settled for determination. 

 

Case-Law:

     In the case of joint Sub Registrar, District Registrar Office Vs.T.M.T.Maragatham, 2007 CTJ 728(NC) =2007(2) CPJ72), the Hon’ble National Commission held that though issuing of encumbrance certificate was statutory  function, it was also a service within the meaning of Section – 2(1)(o) of the Act and a complaint would be maintainable before Consumer Forum.  An encumbrance certificate is required to contain a complete list of encumbrances affecting a particular immovable property and any errors committed by the Registrar in the certificate would amount to deficiency in service or negligence in discharge of duty.

    In the present case, except the required details of alleged document, other entries are provided to the complainant and there is no use for him.  In that context, an error, is apparently committed by Registrar and it is certainly amounts to deficiency in service on the part of 2^nd opposite party towards the complainant. Hence, the 2^nd opposite party is liable for payment of Rs.10,000/- as compensation to the complainant.

    In the present case, the 2^nd opposite party had already furnished details of encumbrance certificates but totally forgotten to provide necessary and adequate information which are required by the complainant for fees paid by him to 2^nd opposite party for that purpose.  There is no doubt about that 1^st and 3^rd and 4^th opposite parties are intermediate agencies in between the 2^nd opposite party and the complainant.  Their role is very limited.  They cannot be made liable for negligent acts of the 2^nd opposite party. The 2^nd opposite party must say that whether the required particulars of encumbrance certificate of complainant are available or not

        The 2^nd opposite party is continuously absent and wantonly abstained from the Forum’s Proceedings.  Its silence amounts to acceptance it or not?  Whether the Revenue department/sub-registrar’s office had kept everything in darkness without furnishing correct and accurate information that is needed by the person concerned? Wrong information was provided which leads disturbance in the mind of the person who has applied for it by paying fee to the institution.  

     The Forum will not become spectator of the situation and it will act accordingly to punish the wrong doer.  Adverse inference against a party is usually drawn during the course of trial, if he deliberately abstains from adducing better evidence, which he is in a position to adduce.  It is not correct to say that keeping mum without disclosing required particulars of complainant by the 2^nd opposite party for which it received fee from him.

      After having scanned the entire material on record and considered the rival submissions in the light of well-settled legal principles, we are of the clear opinion that this consumer case is a fit case to award compensation of Rs.10,000/- to the complainant and also he is entitled to get Rs.1000/- costs of the complaint.  The complainant has brought the case in detail and concerned documents are clearly proved his case.  Mental agony cannot be measured in terms of money.  There is a deficiency in service and negligence on the part of 2^nd opposite party towards the complainant.  The Sub-Registrar’s office must provide required information to all the consumers who are approached to it.  These two points are held in favour of the complainant and against the 2^nd opposite party.

 

POINT No.3:   In the result, the complaint is allowed in part, ordering the 2^nd opposite party to pay Rs.250/- (Rupees two hundred and fifty only) to the complainant along with interest @9%(nine) from the date of the complaint i.e., 11-03-2015 till the date of realization, to pay Rs.10,000/- (Rupees ten thousand only) towards compensation for his mental agony, financial loss and mental distress and also to pay Rs.1,000/- (Rupees one thousand only) towards the costs of the complaint, within one month from the date of the receipt of the order.  The complaint against the opposite party nos.1, 3 and 4 is dismissed without costs.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 29th day of FEBRUARY, 2016.    

 

              Sd/-                                                                             Sd/-                                                                           

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

11-08-2015

:

Saini Ramachandra Rao, S/o.Raghavaiah, Hindu, 67 years, present address: 4-210/150, Netaji Nagar, ECIL P.O., Hyderabad – 62.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1	08-12-2015	:	Smt.Thota Jayalakshmi, W/o.Ramanaiah, Hindu, aged 58 years, proprietor of Meeseava Kendram and residing t Sathram Street, Kovur Town and Manadal, SPSR Nellore District.
RW2	08-12-2015	:	S.Jayanthi, W/o.Ramesh, Hindu, aged 26 years, Proprietor of Meeseva Kendram and residing at Inamadugu Road Junction, Kovur Town and Mandal, SPSR Nellore District.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

Ex.A1	01-07-2013	:	Photostat copy of receipt no.6193760 along with statement of encumbrance on property issued by the 3rd and 4th opposite parties.
Ex.A2	19-07-2013	:	Photostat copy of complaint given by the complainant to the 1st opposite party.
Ex.A3	01-08-2013	:	Photostat copy of letter addressed by the 1st opposite party to the 2nd opposite party.
Ex.A4	25-07-2013	:	Photostat copy of Note file given by the 1st opposite party to the complainant.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

			N I L -

 

           Id/-                                                                                                   PRESIDENT(FAC)

 

 

Copies to:

 

1) Sri T.Jagan Mohan Rao and Sri P.V.Chalapati Rao, Advocates, Kovur, SPSR Nellore   

    Dist.                                             

 

2) Sri K.Nagarathnam Reddy, Asst. Govt. Pleader, Fathekhanpet, Nellore-3      

 

3) Sri B.Rama Rao, Advocate, Office: Kalan Mosque, Opp:Antony Church,  

    Fathekhanpet, Nellore-3.

 

Date when order copies are issued: