Andhra Pradesh

Chittoor-II at triputi

CC/49/2016

S.N.Begum (S.Naseema Begum) - Complainant(s)

Versus

APSRTC, Rep. by its Regional Manager, - Opp.Party(s)

A.Sudarsana Babu

16 Feb 2017

ORDER

        

 

                                                                                                                                                            Filing Date:-26-04-2016                                                                                                                                                                                      Order Date:-16-02-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. M.Ramakrishnaiah, President

                                                                                           Smt.T.Anitha, Member

 

                                    THURSDAY, THE SIXTEENTH DAY OF FEBRUARY, TWO THOUSAND AND SEVENTEEN

 

C.C.No.49/2016

Between

S.N.Begum @ Naseema Begum,

Muslim, aged about 36 years,

Residing at D.No.12-674,

Bugga Street,

Renigunta,

Chittoor District.                                                                               … Complainant

 

And

1. The A.P.S.R.T.C., rep. by its

Regional Manager,

Having its office at RTC bus stand,

T.P.Area,

Tirupati.

 

2. The Deputy C.T.M. (Estate Officer),

A.P.S.R.T.C. Regional Office,

At RTC bus stand,

T.P.Area,

Tirupati.                                                                            … Opposite parties

 

         This complaint coming on before us for final hearing on 30.01.2017 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.A.Sudarsana Babu, counsel for the complainant and Sri. Gali Sreenivasulu, counsel for the opposite parties having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed under Section 12(1) of the C.P.Act, 1986 by the complainant complaining the deficiency of service on part of the opposite parties and prayed this Forum to direct the opposite parties 1 and 2 to pay an amount of Rs.3,41,000/- as per the calculation memo towards the negligence and deficiency of service on part of the opposite parties and to pay Rs.50,000/- towards the compensation for deficiency in service and damages for mental agony suffered by the complainant and to pay costs of the complaint.

   2.The brief facts of the case are:  The complainant submits that the opposite parties APSRTC represented by its Regional Manager, Tirupati passed an order dt:20.06.2009 in favour of her in order to eking her livelihood for the self employment to run the fast food centre at open place in the bus station of  Renigunta, in order to eking  her livelihood for the self employment, further in the above said order the lease period was commenced from 04.04.2009 to 03.04.2014. The managing director of the APSRTC entered into an agreement dt:28.03.2009 with the complainant by mentioning terms and conditions of the agreement and the complainant also signed in the copy of the said agreement and the complainant further submits that as per the terms of the order dt:20.06.2009 the complainant has paid an EMD amount of Rs.10,000/- dt:28.02.2009 vide D.D No. 260740 in favour of the Regional Manager, RTC, Tirupati and opposite parties allotted the place to the complainant and directed to make the construction to materialize the order. When the complainant started raising structure in the premises allotted to her to run the shop on 18.04.2009 the Regional Manager, APSRTC Suryaprakasha Rao, orally instructed to her stop the construction until his further order and in disobedience to his order the action will be initiated. By that time the complainant almost completed 60% of the work by spending Rs.50,000/-. After that in spite of the repeated requests made by her the opposite parties failed to take any action and allotted the alternate place for her. Hence as the lease period was going to be expired and she already invested huge amounts to construct the shop, having no other go the complainant at last caused a personal requisition letter  to opposite parties dt:12.02.2014 and also a legal notice on 05.03.2014 calling upon the opposite parties 1 and 2 to allotted the shop to her. But, after receipt of the said notices the opposite parties kept silent.

   3. The complainant further submits that she approached the opposite parties several times for the return of the EMD amount of Rs.10,000/- with interest and also demanded compensation for the loss sustained by her. But the opposite parties failed to take any steps to pay the same having disgusted with the negligent and deficient service of the opposite parties,  the complainant caused an another legal notice dt: 06.04.2016 even after receipt of the said notice the opposite parties failed to pay the above said amount. The complainant further submits that she paid an amount of Rs.10,000/- dt:28.02.2009 and since it was not materialize and same was not returned, she is claimed interest of Rs.17,000/- over that amount of Rs.10,000/- at the rate of  24% per annum for 85 months from 28.02.2009 to 28.03.2016 and it becomes Rs.27,000/- and also the complainant invested Rs.50,000/- for making construction of the fast food centre and it was abruptly stoped in the middle of the construction and she could not materialized the same, she is claimed interest of Rs.84,000/- for the amount of Rs.50,000/- at the rate of 24% per annum for 84 months from  18.04.2009 to 18.04.2016, totally Rs.1,34,000/- . Further if at all the above said fast food is materialized she could have earned minimum amount of Rs.3,000/- per month and in such event she will earn an amount of Rs.1,80,000/- for lease period of 5 years commencing from 04.04.2009 to 03.04.2014. Hence the total amount the complainant is claimed Rs.3,41,000/- apart from the mental agony.

         4. The complainant further submits that apart from Rs.3,41,000/- she claimed for mental agony towards the negligent and deficiency of service on part of the opposite parties in abruptly ordering to stop the construction, not initiating any positive step and not to return the EMD amount and failed to give reply to the personal request and to legal notice of the complainant hence which is nothing but deficiency of service on part of the opposite parties. Hence she filed the present complaint.

         5.  The opposite parties filed the written version by denying some of the allegations of the complainant and further admitted the license agreement with the complainant to run fast food centre at open space of bus station, Renigunta for a period of 5 years with effect from 04.04.2009 to 03.04.2014 on a monthly license fee of Rs.1,000/- vide order  dt: 20.06.2009. After allotment of the stall, the licensee stated that she tried to erect temporary structure for running the business. But the Renigunta Panchayat Officials have obstructed her claiming that land belongs to the panchayat. The licensee approached the APSRTC authorities for allotment of alternative site. But they have advised to take back the security deposit paid by the complainant since the alternative place was not available within the bus stand to run the fast food centre. But the complainant does not claimed security deposit and insisted for alternative place and also she demanded interest and compensation.

         The opposite parties submits that the open place in Renigunta Bus stand was allotted to the complainant but the panchayat officials of Renigunta was  not permitted her to make any constructions as the said open place belongs to their Panchayat hence there is no latches on their part. The complainant has not filed any document to show that she has raised construction in the said land and sustained loss. Hence the question of raising construction by the complainant in the open space allotted to her does not  arise as there was no permission to that effect and the opposite parties are not liable to pay damages. The opposite parties further stated that they requested the complainant to receive the EMD amount of Rs.10,000/- but the complainant did not turn up  to receive the EMD amount with a malafide intention to get wrongful gain. Hence the opposite parties even today ready to pay the EMD amount of Rs.10,000/- to the complainant. Hence there is no deficiency in service on their part.

           The opposite parties further submits that the complaint is barred by limitation and also the complainant is not a consumer as there is no buyer and seller relationship between the complainant and the opposite parties as the corporation is not doing any business. Hence the complaint is liable to be dismissed.

         6.  The complainant one S.N. Begum @ S. Naseema Begum, filed her chief affidavit and Ex.A1to A4 were marked on behalf of  her. The opposite party no.1 one    V. Nagasivudu, S/o. Late Chinna Naganna filed his chief affidavit and no documents were marked on behalf of him. Both the parties are filed written arguments and oral arguments were heard.

         7.  Now the points for consideration are:             

             (i)  (a).Whether the complaint is barred by limitation? (b) And Whether the complainant will come under the purview of the “Consumer” U/s 2(1)(d)ii of C.P.Act, 1986?

             (ii)  Whether there is any deficiency in service on part of the opposite parties

                    towards the complainant?      

             (iii)  Whether the complainant is entitled to the reliefs as prayed for?

             (iv)   To what Relief?

         8. Point No:-(i)(a). As per the contentions of the complainant the date of the agreement was 28.03.2009 for a period of license for five years i.e. from 04.04.2009 to 03.04.2014 and the above said complaint is filed on 26.04.2016 for which the complainant ought to have file on or before 03.04.2016  but he has filed the complaint with a delay of 23 days. Hence the complainant filed the petition under section 24 Clause(A) of the C.P.Act, 1986 by mentioning reasonable grounds for delay in I.A.37/2016. By perusing the petition filed by the complainant/petitioner the said I.A. was allowed by this Forum and the delay was condoned. Hence the complaint is within limitation.

       (b)  The opposite parties further contended that the complainant is not  a consumer as there is no buyer and seller relationship between the complainant and the opposite parties as the corporation is not doing any business.

             The main contention of the complainant is that she paid an amount of Rs.10,000/- in the form of D.D. towards EMD amount to the opposite parties for providing site to establish fast food centre in the RTC bus stand of Renigunta. Even after receipt of the said EMD amount the opposite parties failed to provide the site to the complainant. Hence as per section 2(1) (d) clause (ii) “Consumer” means   any person who-

1. [ hires or avails of ] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires of avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person[but does not include a person who avails of such services for any commercial purpose];

 

      [Explanation:-  For the purpose of this clause “ Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]

      Hence in the present case the complainant paid the EMD amount for the allotment of shop to start the fast food centre in the RTC Bus Stand in order to eking her livelihood. Hence the complainant will come under the purview of the consumer.

         9. Point No:-(ii).   The main contention of the complainant is, in order to eking her livelihood she wants to open the fast food centre in the opposite party’s RTC Bus stand in Renigunta and she paid EMD amount of Rs.10,000/- for the allotment of the shop. Hence there is no dispute regarding the allotment of the site to the complainant for running of the fast food centre in order to eking her livelihood by means of self-employment and also there is no dispute regarding the receipt of the EMD amount of Rs.10,000/- for the allotment of the site to the opposite party. The complainant further stated that when she tried to raise the structure by spending an amount of Rs.50,000/- thee then officials of the opposite parties orally instructed her to stop the construction until their further orders as the site allotted to the complainant belongs to the Renigunta Panchayat. After several requests made by the complainant the opposite parties failed to provide alternative site to the complainant for the establishment of fast food centre which is nothing but deficiency of service.

         The counsel for the opposite parties contended that after allotment of the stall, the licensee stated that the Panchayat Officials has obstructed her claiming the land belongs to the Panchayat and approached them for the alternative site. But they have advised her to take back the security deposit of EMD amount since alternative place could not be provide on the ground of the place meant for commercial purpose was not available but, she refused to receive the EMD amount by demanding the interest and compensation. But the APSRTC could not provide alternative place within the Bus station, Renigunta since no vacant place was available at that time for commercial purpose and also the complainant was not permitted to make any construction in the open place. Hence the question of raising construction by the complainant does not arise as there was no permission to that effect and hence they are not liable to pay any amount towards damages. The opposite parties stated that they requested the complainant to receive the EMD amount of Rs.10,000/-, but the complainant did not turn up with a malafide intention to claim wrongful gain, even now they are prepared to pay the above said EMD amount of Rs.10,000/- to the complainant.  Hence they have stated that the complainant unnecessarily thrown blame on them without receiving the EMD amount.

             But, in this particular case as there is no dispute regarding the receipt of the EMD amount by the opposite parties because same was admitted by them. But the opposite parties stated that even after several requests made by them the complainant failed to receive the EMD amount but, in order to prove that they have not filed any single scrap of paper to show their bonafides. But the opposite parties kept silent even after receipt of legal notices sent by the complainant under Ex:A1 dt: 05.03.2014 and Ex:A3                 dt: 06.04.2016  without sending any reply to the above notices which clearly shows that they never made any requests or sent any communications to the complainant to receive the EMD amount which clearly shows that there is a deficiency in service on part of the opposite parties towards the complainant. Hence under the above circumstances, we are of the opinion that there is deficiency in service on part of the opposite parties.   

         10. Point(iii):-   As per the contentions of the complainant she paid an amount of Rs.10,000/- towards EMD amount dt: 28.02.2009 vide D.D.No.260740 for the allotment of the shop. But even after receipt of the said amount the opposite parties failed to provide the site to the complainant in the allotment of the shop. Hence the complainant is entitled of Rs.10,000/- with an interest @ 9% p.a. from the date of the payment i.e. 28.02.2009 till realization. The next contention of the complainant she made construction by spending Rs.50,000/- for the fast food centre and also she claimed interest of @ 24% p.a. for Rs.50,000/- for 84 months of Rs.1,34,000/- and if the order is materialized she could have earned a minimum amount of Rs.3,000/- per month and such event she will earn an amount of Rs.1,80,000/- for a period of five years from 04.04.2009 to 03.04.2014 that is lease period. The complainant totally claim Rs.3,41,000/- apart from the mental agony.

          There is no dispute regarding the receipt of the EMD amount of Rs.10,000/- on 28.02.2009 by the opposite parties and in order to prove that the complainant spent Rs.50,000/- towards construction of the fast food centre but, in order to prove that she has not filed any documentary proof i.e. bills and photos of the material which was purchased by her for the construction of the fast food centre. Hence in the absence of any documentary proof we cannot considered the claim of Rs.50,000/- and also the complainant claimed @ 24% interest and also she claimed Rs.1,80,000/- for lost the income of Rs.3,000/- per month and totally she claim Rs.1,80,000/- for the license period. But in the absence of any corroborative evidence we could not come to the conclusion that she lost income of Rs.1,80,000/- hence it cannot  be considered.

        Hence we are of the opinion to grant for refund of EMD amount of Rs.10,000/- (rupees ten thousand only) from the date of the deposit i.e. 28.02.2009 till realization, and it is reasonable to grant interest @ 9% p.a. and also Rs.5,000/- towards mental agony for the deficiency in service towards the complainant and also the complainant is entitled for Rs.2,000/- (rupees two thousand only) towards costs of the complaint. If the opposite parties failed to comply with  the order within six weeks from the date of receipt of copy of this order the above said amount of Rs.5,000/- (rupees five thousand only) shall carry interest @ 9% p.a. from the date of the order till realization. Accordingly this point is answered.

         11.Point (iv):-   In view of our discussion on points 1 to 3, we are of the opinion that there is deficiency in service on part of the opposite parties towards  the complainant that even after receipt of the EMD amount they failed to provide the vacant site to the complainant. Hence this complaint is allowed accordingly.

          In the result, the complaint is  allowed in part, directing the opposite parties          1 and 2 to refund the EMD amount of Rs.10,000/- (Rupees ten thousand only) dt:28.02.2009 with interest @ 9% p.a. from the date of the payment i.e.28.02.2008 till realization. The opposite parties are further directed to pay Rs.5,000/- (Rupees five thousand only) towards compensation for causing mental agony and deficiency in service towards the complainant and also to pay costs of Rs.2,000/- (Rupees two thousand only) towards litigation. The opposite parties are further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order. Failing which the above said compensation amount of Rs.5,000/- (Rupees five thousand only) shall carry interest @ 9% p.a. from the date of this order till realization.

          Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 16^th day of February, 2017.

         Sd/-                                                                                                                        Sd/-  

      President                                                                                                          Lady Member 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: S. N. Begum @ S. Naseema Begum (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: V. Nagasivudu (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Office copy of the Legal Notice. Dt: 05.03.2014.
	Acknowledgements 2 in Number. Dt: 07.03.2014 and 08.03.2014.
	Office copy of the Legal Notice. Dt: 06.04.2016.
	Acknowledgements 2 in Number. Dt: 01.04.2016 and 11.04.2016.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

-NIL-

      Sd/-       

 President

 

 

// TRUE COPY //

                                                                                                 // BY ORDER //

 

                                                                                           Head Clerk/Sheristadar, 

                                                                                  Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:  1) The Complainant.

                  2) The Opposite parties 1 and 2.