Tamil Nadu

South Chennai

CC/78/2004

A.Chitra - Complainant(s)

Versus

Kasi Housing & Development Ltd - Opp.Party(s)

S.Devika

10 Jan 2017

ORDER

                                                                        Date of Filing :   26.08.2003

                                                                        Date of Order :   10.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II          

C.C.NO.78/2004

TUESDAY THIS  10^th DAY OF JANUARY 2017

A. Chitra,

No.691, Chennai Salai,

Vedantham Nagar,

L.N. Puram,

Panruti.                                                      .. Complainant.

 

                        ..Vs..

M/s. Kasi Housing & Development Ltd.,

Rep. by its Managing Director,

91-92, Jawaharlal Nehru Street,

Ashok Nagar,

Chennai – 83.                                                       ..Opposite party.

 

Counsel for the Complainant           : M/s. S.Devika & another

Counsel for the opposite party         : M/s. Siva Associates.

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to refund a sum of Rs.1,32,000/-  with interest and also to pay a sum of Rs.50,000/- towards compensation for hardship and suffering and Rs.3,500/- as cost of the complaint.

1. The averment of the complaint are brief as follows:

         The complainant was lured by the attractive advertisements issued by the opposite party and subscribed to the scheme on the understanding that a sum of Rs.1,500/- would be paid  by her every month for 100 months.   It was agreed that there would be a lucky draw once in every four months and the winner of the said draw would be provided with a flat measuring 330 sq. ft at the rate of Rs.450 sq.ft.  Accordingly, the complainant began to make a monthly payment of Rs.1500/- from October 1994 and thereafter paid a sum of Rs.1500/- every month until February 2002.   After persistent enquiries made by her, the complainant came to know that she was allotted a flat as she was the lucky winner of the draw held on 3.3.2002.    However, the opposite party was not informed to the complainant that she was the winner of the draw held on 3.3.2002 and therefore to call upon the opposite party vide letter dated 20.3.2002 to furnish her with an allotment letter and receipt for a sum of Rs.6000/- paid by way of demand draft.  

 

2.     The complainant was  therefore constrained to once again send a letter to the opposite party on 3.4.2002 calling upon them to issue the allotment letter.   The opposite party did not respond to either of the above letter.    The complainant’s husband contacted the opposite party to remind them to issue the allotment letter and take further action.   The opposite party was informed that the complainant would be required to pay for an additional 100 sq. ft. inclusive of the area comprising of the path way and the stair case, at the rate of Rs.700/- per sp. Ft.    The complainant and her husband were informed that if the complainant was not in a position to make additional payment towards the flat, she would be provided with a flat comprising of an area of 230 sq. ft.  The opposite party’s staff also informed the complainant the final agreement of sale would not be signed by the opposite party.    The complainant states that all the payments were made to the opposite party, therefore the opposite party that she could not possibly enter into an agreement to sale with any person other than the opposite party.    The complainant also states that the opposite party have attempted to impose unfair, illegal and unconscionable terms after having accepted a total sum of Rs.1,32,000/- form her.  

3.     Accordingly the complainant has issued a legal notice through her counsel on 11.12.2002.  The opposite party have failed to respond to the said notice.   Again the complainant caused issuance of legal notice dated 12.7.2003 calling upon the opposite party to refund a sum due to the complainant, they have failed to respond to the same.   Therefore the opposite party has committed deficiency of service and unfair trade practice as they have failed to comply with the terms of the scheme.  Hence the complaint.

4. Written Version of  opposite parties are in briefly as follows:

       It is true that the complainant became a subscriber in the opposite party scheme and she paid Rs.6000/- as the last installment under receipt Nol.16108 dated 16.3.2002.  Though the complainant became a winner in the draw she did not select any flat and so no allotment order could be issued by the complainant.   As per the agreement, the complainant should be allotted with a flat of 333 sq. ft. and rule 22 of the scheme provides that if a flat of agreed sq. ft is not available, the subscriber can be given any other flat upto a higher area subject to a maximum of 25% of the agreed area.  

5.      As the flat of 333 sq ft was not available, the complainant was asked to select another flat of more area where she could not do it.   Hence there is no question of deficiency of service on the part of the opposite party is not allotting any flat to the complainant or giving possession thereof.   Therefore, there is no mistake or deficiency in service on the part of the opposite party but there is mistake only on the complainant under rule 17, the complainant ought to have paid future installment also after the drawn but she stopped payment of subscription immediately after she was declared winner in the draw.   Further under rule 26 of a subscriber wants to discontinue his membership, she can get with flat or house site towards subscription paid and so this complaint filed for repayment of subscription paid is not refundable.   Further the claim of interest from October 1994 is not at all maintainable  and the complaint is liable to be dismissed.

6.    In order to prove the averments of the complaint, the complainant has filed proof affidavit along with for evidence and documents Ex.A1 to Ex.A9 marked.  Proof affidavit of opposite party filed and no documents marked on the side of the opposite party.

7.   At this juncture, the point for the consideration before this

        Forum is:  

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite party as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

8. Point No.1

        Regarding this point on careful perusal of the evidence of the complainant, as well as opposite party it is learnt that, it is an admitted case that the complainant had joined the scheme advertised by the opposite party for a sum of Rs.1500/- would be paid for 100 months and there would be a lucky draw once in every four months and the winner of the said draw would be provided with a flat measuring 320 sq. ft. at the rate of Rs.450/- sq. ft.     In this connection the complainant has regularly paid monthly installments of Rs.1500/- from October 1994 to February 2002.  The card issued for the payment of the said installment is marked as Ex.A3.  The receipt for first installment is marked as Ex.A1.  It is further learnt that the complainant was allotted a flat as she was the lucky winner of the flat draw held on 3.3.2002 and therefore she has constrained to pay a sum of Rs.6,000/- which is marked as Ex.A2.  It is further stated by the complainant that even after payment since the allotment letter was not given to the complainant, when the complainant approached the opposite party personally and he was informed that the complainant would be required to pay for an additional 100 sq. ft. inclusive of the area comprising of the path way and the stair case, at the rate of Rs.700 sq. ft. for which the complainant was not in a position to make additional payment towards the flat she would be provided with a  flat comprising of an area of 230 sq. ft. only.   But the opposite party has not come forward to comply the demand of the complainant.   Though the complainant sent a letters Ex.A4 & Ex.A5 and also telegrams Ex.A6 sent to the opposite party on different dates i.e. 20.3.2002, 3.4.2002, and 12.4.2002, but the opposite party did not care about this.   So the complainant has sent a legal notice Ex.A7 to Ex.A9 to the opposite party and the acknowledgement for the receipt of the same is marked as  Ex.A10.  Even thereafter, the opposite party has not come forward to comply the demands.

9.     While being so, on going through the evidence of the opposite party it is learnt that the complainant became a winner in the draw as per agreement should be allotted with the flat 333 sq. ft. and rule 22 of the scheme provides that if a flat of agreed sq. ft. is not available the subscriber can be given any other flat upto a higher area subject to a maximum of 25% of the agreed area and the flat of 333 sq. ft. was not available the complainant was asked to select another flat of more area where she could not do it.    Further, it is learnt that under Rule-17, the complainant ought to have paid future installment also after the draw but she stopped payment of subscription immediately after she was declared winner in the draw and if it is so under Rule-26, if a subscriber wants to discontinue his membership, she can get with flat or house site towards subscription paid but certainly no refund can be given as per rules.  It is further stated that the complainant is not  entitled to claim interest  from October 1994 only from 11.12.2002 and therefore there is no deficiency of service on the part of the opposite party.

10.    At this juncture, on careful perusal of rival submissions put forth on either side, it is crystal clear that it is an admitted case that the complainant is a subscriber of the scheme announced by the opposite party and she became a lucky winner of the draw held by the opposite party.  At the outset, the payment of Rs.1,32,000/- paid by the complainant towards the Group of housing benefit scheme run by the opposite party has been proved by the complainant through Ex.A1 to Ex.A3.   At this point of time, it is pertinent to note that though it is admitted by the opposite party that the complainant was a winner in the draw held by the opposite party and the same was not informed to the complainant properly by the opposite party though it is bounden duty of the opposite party.  In this regard, the complainant written two letters Ex.A4 and Ex.A5 and sent telegram through Ex.A6, the opposite party has not at all neither sent reply nor any allotment letter to the complainant.   Furthermore, it is noticed from the evidence of the complainant that she did not give any opportunity by way of information or allotment letter to select the flat.   Moreover from the averments of written version and the evidence of the complainant, though it has been mentioned about the agreement in connection with the scheme and quoted so many rules but to substantiate the same, no documents submitted before this forum.  Therefore, it can be easily come to the conclusion that there is no such agreement made between the complainant and the opposite party as rightly stated by the complainant in his proof affidavit.  But as per contra, at the time of filing version before this forum only the opposite party has pointed out such agreement and the rules cannot be accepted since the opposite party has not given any reply containing the alleged agreement to the legal notice sent by the complainant to the opposite party Ex.A7 and Ex.A9, even receipt of the same by the opposite party.   Hence, the said plea taken by the opposite party is rejected.

11.    In such circumstances, the payment of Rs.1,32,000/- has not been disputed.  It is crystal clear that the act of the opposite party for not allotting the flat of 333 sq. ft as per the promise under the Group of housing benefit scheme which clearly amounts for deficiency in service on the part of the opposite party and the same has been proved by the complainant with relevant and consistent evidence.  Whereas, the opposite party has not substantiated his version.   Thus, the point No.1 is answered accordingly.

12.    POINT No.2

        As per the prayer in the complaint, the complainant claims to refund a sum of Rs.1,32,000/- with interest at the rate of 18% p.a. and compensation of Rs.50,000/- for mental agony and hardship.  In this circumstances, as per the decision arrived in point No.1 it goes without saying that the complainant is  very well entitled for the refund a sum of Rs.1,32,000/- with reasonable interest and with reasonable compensation along with cost.     Thus the point No.2 is answered accordingly.

In the result, the complaint is allowed in part. Accordingly, the opposite party  is directed to refund a sum of Rs.1,32,000/- (Rupees one lakh and thirty two thousand only) along with interest at the rate of 15% p.a. from the date of filing of this complaint i.e 26.8.2003  to till the date of this order (10.1.2017) and also to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for causing mental agony and hardship due to the deficiency of service on the part of opposite party and to pay cost of Rs.3,500/- (Rupees Three thousand and five hundred only) to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

         Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  10^th  day  of  January 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 16.10.1994         - Copy of receipt issued by the opposite party to the

                               complainant.

Ex.A2- 10.2.2002  - Copy of D.D. issued by the complainant to the opposite

                              Party.

Ex.A3-         -       - Copy of Pass book.

Ex.A4- 20.3.2002  - Copy of letter from the complainant to the opposite party.

Ex.A5- 3.4.2002    - Copy of letter from the complainant to the opposite party.

Ex.A6- 12.4.2002  - Copy of telegram.

Ex.A7- 11.12.2002         - Copy of legal notice with Ack. Card.

Ex.A8- 12.7.2003  - Copy of legal notice with Ack. card.

Ex.A9- 17.7.2003  - Copy of legal notice with Ack. card.

 

Opposite party’ side document: -   .. Nil.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.