NCDRC

NCDRC

FA/417/2007

SHARDA KAURA - Complainant(s)

Versus

DELHI DEVELOPMENT AUTHORITY - Opp.Party(s)

MS. KAMINI SHARMA

30 Jul 2012

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
APPEAL NO. 417 OF 2007
 
(Against the Order dated 01/09/2006 in Complaint No. 214/1996 of the State Commission Delhi)
1. SHARDA KAURA
HOUSE NO 55 SECTOR 9
PUNCHKULA HARYANA
PUNCHKULA HARYANA
...........Appellant(s)
Versus 
1. DELHI DEVELOPMENT AUTHORITY
VIKAS SADAN INA
NEW DELHI
NEW DELHI
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
 HON'BLE MRS. VINEETA RAI, MEMBER

For the Appellant :
Mr.O.P.Sharda & Ms.Kamini
Sharma, Advocates
For the Respondent :
Ms.Manika Tripathy Pandey &
Mr.Ashutosh Kaushik, Advocates

Dated : 30 Jul 2012
ORDER

ORDER PER VINEETA RAI, MEMBER This First Appeal has been filed by Miss Sharda Kaura (hereinafter referred to as the ppellant being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the tate Commission which dismissed her complaint against Delhi Development Authority, Respondent herein. In her complaint before the State Commission, Appellant had stated that in response to an advertisement she had applied for allotment of a flat in Vasant Kunj area in 1982 in Category-III under the Self-Financing Scheme, 1982 floated by the Respondent/Authority. Appellant deposited Rs.15,000/- on 13.08.1992 as registration amount and the price quoted for the flat was between Rs.2,31,000/- to Rs.2,63,000/-. Respondent/Authority was to construct the flats and deliver possession within a reasonable period of time. Although, the Appellant visited the Respondent/Authority office several times to find out the status of her application, there was no response. She also applied 5 times under the Scheme against the same registration and initial deposit. A registered A.D. notice sent on 15.06.1990 through her Counsel also remained unanswered. However, in response to the Appellant 6th application made in 1994, Respondent/Authority offered her a flat at Dwarka in Block No.9, Pocket No.2 on the top floor and also sought enhanced payment of Rs.7,73,500/-. Since, Appellant was not in a position to pay this amount, she requested the Respondent/Authority for refund of the registration amount. Respondent/Authority asked her to submit two copies of cancellation letter and other documents and after going through this letter, she got suspicious and when she personally went to Respondent office to enquire into the matter, she learned that although Apartment No.4128 in Pocket-4, Vasant Kunj had been allotted to her in 1983, the name of one Subhash Chander was fraudulently substituted in her place in the Register of Respondent/Authority. Appellant was also shocked to know that the file in this connection was missing. Appellant, therefore, sought allotment of a flat in Vasant Kunj area but despite several letters and various appeals including to the Vice-Chairman of the Respondent/Authority, her request was not considered. Being aggrieved, Appellant filed a complaint before the State Commission on grounds of unfair trade practice on the part Respondent/Authority, and requested that Respondent/Authority be directed to deliver her Flat No.4128, Pocket-4, Vasant Kunj for which she was ready to pay the remaining instalments, arrears, charges/balance price as was charged from the other allottees in 1983. However, if the said flat was occupied, then the value of the flat as prevalent in the open market on the date of order of the Honle Commission may be awarded. A compensation of Rs.50,000/ for pain and mental agony and Rs.10,000/- as litigation cost was also sought. Respondent/Authority on being served denied the Appellant allegations and stated that as per draw of lots, the flat at Vasant Kunj was allotted to one Subhash Chander. However, Appellant name was inadvertently shown in the Register in 1985 because of bonafide typographical error in the list of successful allottees but there was no fraud as alleged. Respondent contended that since the Appellant had been applying under the ongoing Scheme and her name was being considered in various draw of lots it was not considered necessary to respond to her letters pertaining to the Vasant Kunj flat. As soon as she was successful in the draw of lots in respect of a flat in Dwarka, she was duly informed and when she refused to take possession of the same and sought refund of the registration amount, this was also done on 01.08.1996 after the required deductions and a cheque for Rs.12,441/- was sent to her. There was no foul play or manipulation as alleged by the Appellant in view of the reasons stated above. Since the Appellant had been refunded the registration amount on her own request, she could not now insist on reconsideration for allotment of a flat in Vasant Kunj as the principle of estoppel would apply. Respondent/Authority cannot be held guilty of unfair trade practice because of a bonafide typographical error. The State Commission after hearing both parties and on the basis of evidence filed before it partly accepted the contention of the Appellant and directed Respondent/Authority to pay the Appellant a compensation of Rs.5 lakhs. The relevant part of the order of the State Commission is reproduced below: et us assume that wrong entry was made in the record prepared in the year 1985 in respect of allotment of flat in Vasant Kunj in favour of the complainant but the fact remains that this entry was not acted upon nor was any letter sent to the complainant for 10 long years and the complainant was also silent for such a long time and suddenly woke up in the year 1994 when the allotment-cum-demand letter was sent to her informing her the allotment of a flat in Dwarka though she had applied for allotment of flat in Vasant Kunj and asked for refund of the amount. Whatever may be the case, the complainant has suffered a lot at the hands of the OP. It is such a kind of negligence and deficiency in service on the part of the OP that consumer came to know about the allotment of flat in Vasant Kunj made in the year 1983, recorded wrongly in the record, though sometimes in the year 1994, had it been a genuine allotment, she would have received the letter in 1983-84 as was received by the actual allottee Subhash Chander. Since no flat is available at Vasant Kunj or at Dwarka for allotment to the complainant, the only order which can be contemplated in such circumstances is to compensate the complainant for mental agony and harassment suffered by her due to incorrect entry made in the year 1983 and non-allotment of any flat either in Vasant Kunj or at Dwarka through the allotment at Dwarka was not only given up by her but the registration amount was also refunded, may be with the high false hope that DDA can be compelled to give her the flat at Vasant Kunj. In totality of the circumstances of the case, we deem that compensation of Rs.5 lacs including the cost of litigation would meet the ends of justice. The payment shall be made within one month of receipt of this order. Appellant has now filed the First Appeal seeking enhancement of compensation to Rs.25 lakhs flat. Learned Counsel for both parties made oral submissions. Counsel for Appellant reiterated the stand taken by the Appellant before the State Commission and stated that the entire conduct of the Respondent/Authority was suspect because as per their own records, Appellant was successful for allotment of a flat in Vasant Kunj area but this was fraudulently given to one Subhash Chander. This fact was suppressed mischievously by the concerned officers in the Respondent office. It is because of this reason that the Respondent/Authority did not care to reply to the various letters sent by the Appellant for several years and it was only when she persisted, that a flat was offered to her in another area which she did not accept because of the highly enhanced price. The contention of the Respondent/Authority that there was a typographical error in showing her as being successful in the draw of lots is suspect because the relevant file on the subject is not traceable. These facts were appreciated by the State Commission but since the compensation awarded was much less than required, she has filed the present Appeal which may be accepted. Counsel for Respondent on the other hand stated that as submitted before the State Commission, there was no unfair trade practice on its part and the flat could not be allotted to the Appellant in Vasant Kunj because she was not successful in the draw of lots. It was explained to her that her name was wrongly shown in the successful allotteeslist in a Register due to a typographical error which was also rectified. The file on the subject (which was not lost but had been sent to the record room) as also the Press releases giving the results of various draws indicated that her allegations were unfounded. Further, Appellant herself has admitted that she kept applying under the Scheme while it was still alive and therefore, Respondent justifiably presumed that she was still interested in allotment of a flat in other localities and it was under these circumstances that her name was included in the various draw of lots and she was finally successful in respect of a flat in Dwarka. Once she declined to take the flat and sought refund, she cannot now claim relief on the principle of estoppel. The State Commission after duly considering these facts has also concluded that there was no malafide or unfair trade practice on the part of the Respondent/Authority. We have heard learned Counsel for both parties and have carefully gone through the evidence on record. Admittedly, the Appellant had applied under the Self-Financing Scheme in the year 1982 for allotment of a flat in Vasant Kunj and that it was only in 1994 that she came to know that a flat had been allotted to one Suresh Chander though in the Register, her name was shown as being successful in the draw of lots. We further note that the Respondent has explained this situation by categorically denying the allegations of fraud made by the Appellant and stating that the inclusion of her name in the Register in 1985 was a mere typographical error whereas in all the other documents including the Press releases as well as the file on the subject it is clearly indicated that as per the draw of lots, the legal and bonafide allottee who was successful in the draw of lots was one Subhash Chander. We have perused the relevant documents including the affidavits of the Vice-Chairman, DDA and others filed in evidence in this connection and we find force in the Respondent contention as stated above. The only proof that the Appellant has submitted in support of her allegation is that her name has been shown in the Register as being successful in the draw of lots; however, as per all the other records as also the Press release and the fact that Appellant kept on applying for draw of lots under other schemes, rules out the possibility of a fraudulent allotment to someone else. However, we agree with the State Commission that the Respondent as a responsible service provider should have responded to various letters written by the Appellant and if this had been done, she could have been spared avoidable harassment and tension regarding the fate of her application as also her apprehension that she was fraudulently and wrongly denied her flat. The Honle Supreme Court in G.D.A. Vs. Balbir Singh 2004(5) SCC 6 and later in HUDA Vs. Darsh Kumar - 2005(9) SCC 449 has held that in such cases compensation must co-relate with the amount of loss or injury. Respectfully following the above judgments and taking into account the circumstances of this case, we feel that the State Commission has adequately compensated the Appellant for the deficiency in service on the part of the Respondent/Authority including the mental agony and inconvenience caused to her because of the error committed (even if it was bonafide) in making a wrong entry in the records. We, therefore, uphold and confirm the order of the State Commission and dismiss the First Appeal. No costs.

 
......................J
ASHOK BHAN
PRESIDENT
......................
VINEETA RAI
MEMBER

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