Date of Filing:31.01.2022

Date of Disposal:29.04.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,  PRESIDENT

1. The complainant files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 with a direction to the OPs  allot the site infavour of the complainant or in alternative refund entire amount along with interest at the rate of 24% and compensation of Rs.2,00,000/- and such other reliefs.

2.   The following are the complaint's key facts: 

It is case of thatcomplainant is the member of the OP society and OP involved in the business of developing residential layouts at Kuberanandasagara, Hunsur main road, Maidanahalli village, Mysuru Dist.The complainant as a member of the OP society and applied for residential site measuring 30X40Sq.ft.and sital value is fixed at the rate of Rs.275/- per sq.ft. and total value of the site is Rs.3,30,000/- in the layout of the said site.Thereafter the complainant has deposited a sum of Rs.3,60,820/- on various dates. Despitereceipt of said sale consideration amount, the OP society has neither alloted the site to the complainant nor assigned any reason for the delay. Despite of the sufficient number of opportunities and even after several approaches the OP has not at all allotted site to the complainant.After causing legal notice the complainant has preferred present complaint seeking for allotment of said site as aggrieved and also for reliefs as prayed in the complaint. Hence, due to the act  and action of the OP, the complainant was forced to file the present complaint.

3. Notice to OPs  duly served, OP-1 &2  remained absent and OPs placed exparte.

4. Despite sufficient opportunity granted, the complainant neither filed chief examination affidavit nor submitted the arguments. In the absence of oral submission the matter is reserved for orders.

5.  The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?
2. What order?

6. The findings on the above points are as under:

Point No.1               :       Negative

Point No.2               :       As per final order

REASONS

7. POINT NO.1:-  When the complainant is the member of the OP society and OP involved in the business of developing residential layouts at Kuberanandasagara, Hunsur main road, Maidanahalli village, Mysuru Dist.  The complainant as a member of the OP society and applied for residential site measuring 30X40Sq.ft.  and sital value is fixed at the rate of Rs.275/- per sq.ft. and total value of the site is Rs.3,30,000/- in the layout.  Thereafter the complainant has deposited a sum of Rs.3,60,820/- on various dates. Despite  receipt of said sale consideration amount, the OP society has neither alloted the site to the complainant nor assigned any reason for the delay. Despite of the sufficient opportunities and even after several approaches the OP has not at all allotted site to the complainant.  After causing legal notice the complainant has preferred present complaint seeking for allotment of said site as aggrieved and also for reliefs as prayed in the complaint.

8. Onus to prove the deficiency of the OP lies on the complainant in the complaint. The complainant failed to adduce evidence by way of chief-examination affidavit under section 38(5) of the C.P.Act, 2019. The evidence consists statement on facts of the complaint averments. The complainant has not filed affidavit evidence as he failed to lead evidence by way of affidavit to prove complaint allegations as against OPs. Mere pleading on facts in the complaint as against the OPs, that they have caused deficiency of service.  On perusal of the records submitted by the complainants we fail to find any material  which shows that OP is causing deficiency of service. This question on facts of the complaint needs to be proved by way of adducing evidence in the complaint. It is more important to corroborate the same by way of documentary evidence. During the course of proceedings the evidence which is to be adduced by the complainant which has to  describes every point of complaint allegations.

9.     In view of the above , it is observed that even after granting sufficient opportunity to prove the complaint allegations, but on the date of complainants evidence neither the complainants nor  counsel present before the commission. By admitting the absence it is recorded that  they have failed to lead any evidence by way of affidavit and the commission has recorded the evidence of the complainant  taken as not filed and matter is posted for orders.  

10. As per section 38(6) of C.P.Act, 2019, every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record provided that where an application is made for hearing or the examination of parties in person or through video conferencing, the District Commission may on sufficient cause being shown and after recording its reason in writing allow the same and according to section 38(9) for the purpose of this section the District Commission shall have the same powers as vested in Civil court under Civil Procedure code 1908(5 of 1908) while trying a suit in respect of following matters namely

1. Summoning & enforcing the attendance of any witness or any defendant or witness & examining the witness on oath.

2. Discovering and production of any documents or other material object as evidence.

3. Receiving of evidence as affidavits.

4. Requisitioning of the report of concerned analysis.

5. Any other matter which may be prescribed.

11.  The complaint  is only allegation in writing made by the complainant could not be treated as complainant evidence by affidavit.

12. During the trial of the complaint, the complainant evaded  describing every facts of the case is  only allegations in writing made by the complainant could not be treated as complainant evidence by affidavit and only pleading of complaint facts can not be treated as evidence. As per Consumer Protection Act, 2019 in section 38(3) (e) where the complainant fails to appear on the date of hearing before the District Consumer Commission may either dismiss the complaint for default and decided on its merits. After sufficient time is  granted to the complainant to file affidavit evidence, but failed to lead evidence by way of affidavit and since the complainants as well as advocate remained absent on the date of evidence, the commission came to the conclusion that the case of deficiency of service alleged is not proved. The complaint is hereby dismissed. Accordingly, we answer  we answer Point no.1  in Negative.

13. POINT NO.2:- In the result, we passed the following:

                              ORDER

1. The complaint filed by the Complainant U/s 35 of the Consumer Protection Act, 2019 is dismissed. No costs.

2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 29^th April 2023)

(RAMACHANDRA M.S.)

PRESIDENT

 (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

Witness examined on behalf of the complainant by way of affidavit: Nil

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit: Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

 (NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

SKA*