BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1044/2016

DATED ON THIS THE 2^nd January, 2020

      Present:   1) Sri. C.V.Maragoor

B.Com., L.L.M., - PRESIDENT   

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri C.V.MARAGOOR,

President

1.       This complaint has filed by Smt.Madhu W/o late H.K.Suresh resident of Kitturu Village, Periyapatna Taluk, Mysuru District to direct the opposite parties to provide a site in favour of her measuring 30 x 40 ft. at the rate of existing in the year of membership of the deceased H.K.Suresh, to pay interest at the rate of 21% p.a. from the date of membership of the deceased till providing site, to order for compensation of Rs.1,00,000/- towards mental agony and other miscellaneous expenses and cost of this proceedings.
2.       The opposite party No.1 is President and opposite party No.2 is Secretary of the Employees House Building Co-operative Society Ltd., K.R.Nagara Town, Mysuru District. It is the case of complainant that her deceased husband was working as a driver in the KSRTC and became member of the opposite parties (hereinafter called as society) Employees House Building Co-operative Society Ltd., by paying necessary fee. The deceased H.K.Suresh had applied for site in the society measuring 30 x 40 ft. size for Rs.4,50,000/-.  During the life time, deceased H.K.Suresh has paid Rs.1,35,000/- to the society prior to his death occurred in accident on 11.10.2014. After the death of deceased, the complainant has approached the society requesting them to execute sale deed in respect of the site allotted in favour of her husband.  The society did not care either to the oral requests or written letter and notice, hence this complaint.
3.         The society appeared through its learned counsel and filed written version admitting that the deceased H.K.Suresh had applied for allotment of site at Kalenahalli village, K.R.Nagara Taluk where the society decided to form a layout in Survey No.93.  The deceased has remitted Rs.45,000/- on 01.03.2011 and Rs.90,000/- on 20.07.2011 total sum of Rs.1,35,000/- out of the cost of site fixed at Rs.4,50,000/- It is the case of society that the deceased H.K.Suresh on 11.10.2013 gave a consent letter stating that the site allotted to him may be given to Smt.B.K.Jyothi W/o Kemparaju.  After receiving consent letter, the society has refunded Rs.1,35,000/- to deceased husband of the complainant.  Smt.B.K.Jyothi has paid Rs.4,50,000/- to the society and then site was allotted to an extent 30 x 40 feet formed by the society in favor of her.  The opposite parties contention is that the society has given reply to the notice issued by complainant learned counsel.  The deceased during his life time withdrawn the amount deposited and gave consent to the society to allot a site to Smt.B.K.Jyothi as such the complaint is not maintainable.
4.       The complainant filed her affidavit and produced seven documents in support of her case.  The President of the society M.V.Rajegowda filed affidavit and produced some documents in support of their case.
5.      We have heard the arguments advanced by the learned counsel for the complainant in addition to written brief submitted by the complainant and opposite parties and the points that would arise for determination are as under:-  

1. Whether the complainant proves that the act of society not allotting site in favour of deceased H.K.Suresh amounts to deficiency in service?
2. Whether the society proves that it has refunded Rs.1,35,000/- to the deceased H.K.Suresh?
3.  Is complainant entitled to the reliefs sought for?

6.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative;

Point No.2 :- In the negative;

Point No.3 :- Partly in the affirmative as per final order for the following

:: R E A S O N S ::

7.         Point Nos.1 and 3:- The learned counsel for the complainant has submitted that the society has failed to prove their defence that the society has refunded the amount of Rs.1,35,000/- remitted by deceased husband of the complainant.  The society has not produced any material to believe that they have refunded the amount by producing ledger extract of the deceased and accounts of the society.  As against this, the learned counsel for the society submitted that on the consent letter given by the deceased the society has allotted site in favour of B.K.Jyothi who has deposited entire site value of Rs.4,50,000/-.
8.           The opposite party society has not disputed membership of the deceased and payment made by him a sum of Rs.1,35,000/- to the society prior to his death on 11.10.2014.  It is the specific defence of society that on 11.10.2013 the deceased gave a consent letter stating that he is unable to pay the balance sital value and the site allotted to him may be given to Smt.B.K.Jyothi.  The complainant has served notice under Order 12 Rule 8 CPC on 30.04.2018 to the society to produce ledger book of the deceased H.K.Suresh, account extract of the society to show the amount of Rs.1,35,000/- drawn by the deceased, credit transaction of the deceased for payment of Rs.1,35,000/- and other documents.  The society has produced application filed by deceased for allotment of site and alleged consent letter which is xerox, Xerox copy of resolution dated 16.10.2013 passed by the society to allot site of the deceased in favour of Smt.B.K.Jyothi and seniority list of the members of the society containing the instalments paid by them. The contention of complainant is that alleged Xerox consent letter and Xerox copy of resolution are created by the society.  It is further contention of complainant that the society has not produced material document in spite of notice issued under Order 12 Rule 8 CPC i.e. ledger extract of deceased, account extract of the society and credit transaction showing payment made to the deceased. 
9.           The consent letter and copy of resolution are not material since the burden is on society to show that it has refunded Rs.1,35,000/- remitted by the deceased in the year 2011.  The society in their defence or arguments no where e mentioned the date on which the refund was made to the deceased.  The documents called by the complainant from the society i.e. ledger extract of the deceased, account extract of the society and credit transaction of Rs.1,35,000/- are material to prove the defence of society.  The society in spite of service of notice has withheld the material documents and on the contrary produced other documents like application filed by the deceased for allotment of site and seniority list of the members of the society.  Thus, the society has failed to prove that it has refunded Rs.1,35,000/- to the deceased. 
10.           The complainant though asked for allotment of site but the deceased during his life time or after the death of deceased the complainant has not made any efforts to make payment of the balance sital value of Rs.3,15,000/-.  Therefore, the complainant is not entitled for allotment of site from society.  The society has failed to refund the amount in spite of oral and written requests made by the complainant after death of her husband in the year 2014.  The complainant being a widow as such the society would have refunded the amount immediately on receipt of her requests or allotted a site.  The society has used the said amount as such it is liable to pay interest at the rate of 10% p.a. from 01.08.2011 till payment.  In addition to that the opposite parties shall liable to pay compensation as it has harassed the complainant by not refunding the amount or allotting site.  The opposite parties shall pay compensation of Rs.25,000/- to the complainant in addition to that pay Rs.10,000/- towards litigation cost of the proceedings. For the above reasons, we proceed to pass the following;          

:: ORDER ::

1. The complaint filed by Smt.Madhu W/o H.K.Suresh is partly allowed directing the opposite party Nos.1 and 2 shall jointly and severally liable to refund a sum of Rs.1,35,000/- to the complainant with interest at the rate of 10% p.a. from 01.08.2011 till payment.
2. It is further ordered that the opposite party Nos.1 and 2 shall jointly and severally to pay compensation and litigation cost of Rs.35,000/- to the complainant within 45 days from the date of order. Otherwise, it carries interest at the rate of 10% p.a. from the date of filing complaint till payment.  
3. Furnish the copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Forum on this the 2^nd January, 2020)