BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 05^th DAY OF OCTOBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) for an order directing the OPs to deliver her the Gold coin as per the paper publication, by receiving the balance amount of Rs.4,800/- and further direct them to pay her a sum of Rs.50,000/- as compensation etc.

2. The brief averments made in the complaint are as under:

The OP-1 to commemorate the 50^th anniversary of India’s Independence, in 1^st week of August 1997 by way of paper publication invited the public in general to book for 10 gms of 24 K gold Medallion in tamper proof packaging with a certificate of purity with inclusive price of Rs.5,800/- each by deposit of Rs.1,000/- per piece and balance against delivery and booking will close on 31^st August 1997.  In pursuance of the said advertisement, the complainant along with a covering letter sent a demand draft for Rs.1,000/- drawn on State Bank of Patiala, Payable at New Delhi dated 13.08.1997 through registered post with acknowledgement due and the same was served to OP-1 on 19.08.1997.

After depositing the advance amount of Rs.1,000/- as stated above, the complainant was eagerly waiting for communication from the OP-1 for deposit of balance payment of Rs.4,800/- and in this regard the complainant several times spoke to OP-1 over phone.  But till 31^st May 2012, the OP-1 did not respond to the complaint nor issued advance receipt.  Finally on 31.05.2012 Sri.D.K Seth, D.G.M of OP-1 sent a e-mail to complainant asking her to visit their Bangalore office (OP-2) with advance receipt, ID proof and address proof.  In response to the said mail, complainant contacted OP-2, they again asked the complainant to contact their Delhi office and finally on 21.01.2013, the said D.K Seth of OP-1 vide his letter dated 21.01.2013 replied that since Rs.4,800/- being the balance amount was not paid, they are forfeiting the deposit of Rs.1,000/-.  In response to the said communication, on 24.01.2013, the complainant sent a reply stating that since balance of Rs.4,800/- was required to be paid at the time of delivery of coin, the same was not deposited and further had expressed her readiness and willingness to pay the balance amount from the day one but no reply communication/demand was made by the OPs in this regard.  Subsequently the complainant approached the Karnataka State Legal Services Authority for redressal but she could not get any relief there.  Therefore, the complainant has approached this Forum for redressal.

As per the paper publication issued by the OPs, the complainant had paid advance of Rs.1,000/- towards gold coin and she is a ‘Consumer’ and both the parties are required to deliver the gold coin as per their paper publication.  After receipt of advance amount without any reasonable cause the OPs have made the complainant to wait for 16 long years and finally forfeited the advance amount and had rendered deficiency of service.

For the aforesaid reasons, the complainant prays for an order directing the OPs to deliver her a gold coin as promised in the paper advertisement as she is always ready to pay the balance amount of Rs.4,800/- as against delivery and further direct them to pay compensation of Rs.50,000/- towards mental agony caused to the complainant for delay of 15 years in delivering the gold coin.  

3. The OPs in response to the notice served on them appeared through their advocate and filed their version admitting that the complainant has paid booking amount/deposit of Rs.1,000/- towards purchase of 10 grams gold medallion, the price of which was Rs.5,800/- and further contended as under:

That during 2012, the complainant having slept over the matter over 15 years sought for issuance of the Medallion at 1997 rate by offering to make the balance amount of Rs.4,800/- as per the offer/advertisement of 1997.  That the complaint filed after 15 years is untenable in law as the same is barred by limitation.  Even as per the admission of the complainant the cause of action for filing the complaint arose on 14.08.1997 and 31.05.2013, hence the complaint is belated and is filed without any tenable grounds and hence is not maintainable.  That the complainant made a claim for issue of Medallion after 15 years and the OPs made all efforts to trace/verify the records but are unable to do so as the records pertaining to the said period are not available.  That in view of the facts stated above, no deficiency of service is made out against the OPs and it is belated attempt by the complainant to cover up the lapses and negligence on her part.  The claim made by the complainant also excessive, exorbitant and bears no nexus to the imaginary deficiency of service claimed.  Therefore, the OPs have prayed for dismissal of the complaint.

The complainant to substantiate the allegations made in the complaint filed her affidavit evidence and also submitted written arguments.  The OPs in support of the averments made in the version filed the affidavit of one Mr.V. Kulasekaran, DGM (F&A), MMTC Local Head Office at Bangalore.  OPs also submitted their written arguments.

4. The points that arise for our determination in this case are as under:

        5. Perused the materials placed on record including the affidavit evidence submitted by both the parties, their written submissions and various documents produced in support of their respective contentions and also perused the citation submitted by the OPs.

6. Our answer to the above issues are as under:

REASONS

7. (Point No.1) Admittedly the complainant in pursuance of an advertisement published in leading news papers by OP-1 booked a 10 gms 24 K Gold Medallion by sending a demand draft for Rs.1,000/- to the OP.  Since the balance amount of Rs.4,800/- was to be paid against the delivery, the complainant claims that she was waiting for receipt of the Gold Medallion.  She further claims that she was ever ready to pay the balance amount of Rs.4,800/- against delivery of the gold coin.

8. It appears that the complainant did not either receive the Gold Medallion or any communication from OP-1 for payment of the balance amount of Rs.4,800/-.  The complainant claims that when she did not receive any communication from OP-1, she made several communications with OP-1 over telephone and finally she received a communication dated 31^st May 2012 from OP-1 to contact their Bangalore office for collecting the Gold coin.  The e-mail communication dated 31^st May 2012 sent by OP-1 to complainant is produced by the complainant.

9. The complainant claims that the above said e-mail communication dated 31^st May 2012 was in response to her telephone call to the OP-1.  This claim of the complainant does not appears to be true.  On close perusal of the said e-mail communication sent by OP-1 shows that the said communication has been sent to complainant in response to her e-mail sent to OP-1.  Though the complainant claims that she made a several telephone calls to OP-1 from 1997 till May 2012 but she did not produce any credible documentary or oral evidence to substantiate the same.  Thus it is apparent that for the first time the complainant sent a e-mail to the OP-1 asking them to deliver her the Gold Medallion in pursuance of booking made by her on 30.08.1997.

10. The complainant after booking the Medallion for the first time contacted the OPs during the year 2012 after more than 15 years.  The OPs contended that the complainant slept over the matter for more than 15 years and sought for issue of Medallion in the year 2012 at 1997 rate by offering to make balance amount of Rs.4,800/-.  It is further contended by the OPs that as per the cause of action shown by the complainant in para-10 of the complaint, the complaint is highly belated and filed after 15 years and is barred by limitation.

11. The complainant in her sworn affidavit reiterates that after booking the Medallion in the year 1997 she made several communications to OP-1 over phone for deposit of the balance amount of Rs.4,800/-, however she received a response only on 31^st May 2012.  The complainant either in the complaint or in the affidavit did not provide credible material to believe that she was communicating with OP-1 from 1997 to 2012 for delivery of the Gold Medallion.  Admittedly during this period of 15 years the complainant has neither addressed any letter to OP-1 nor any e-mail communication demanding the delivery of the Gold Medallion.  The complainant was also not caused any legal notice to OP-1 within a reasonable time when they failed to deliver the Gold Medallion against her booking.  No explanation is coming forth from the complainant as to why no written communication or legal notice was caused to OP-1 within the said period of 15 years.  Similarly no satisfactory explanation is coming forth from the complainant as to what prevented her from making any written communication or cause legal notice to OP-1 when they failed to deliver her Gold Medallion within a reasonable time from the date of booking.

12. In her written arguments the complainant claims that during last 15 years she approached OP over phone but they never made any attempts to deliver her gold coin.  In her written arguments also she has not specified on which day, month or year she approached OP over phone and what was the reply by the OP-1 to such phone calls.  As stated earlier the complainant did not produce any credible evidence to show that she was pursuing her claim and requesting OP-1 for settling her claim.  OP-1 categorically denied that the complainant at any point of time spoke to them over phone regarding this issue.  Under these circumstances, we cannot believe at all that the complainant was communicating with OP-1 subsequent to August 1997 till May 2012 regarding the delivery of the Gold Medallion.  It is apparent that the complainant has slept over her right for more than 15 years and for the first time she sent a e-mail communication to OP-1 regarding the issue in the month of May 2012.

13. The limitation for filing the complaint is two years from the date of cause of action.  Sec.24.A of the Consumer Protection Act, 1986 reads as under:

24-A. Limitation period.—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

14. In the instant case on hand, the complaint has been filed more than 13 years after the cause of action aroused.  Furthermore there is no application filed by the complainant to show sufficient cause for not filing the complaint within the period of limitation.  The complainant is certainly not diligent in enforcing her right.  The complainant who has slept over her right for more than 15 years cannot expect any reliefs in the hands of this Forum.

15. In a judgment rendered case of Lanka Venkateswarlu (D) by Lrs Vs. State of A.P & others reported in 2011 (2) RCR Civil-880 (SC) the Hon’ble Supreme Court after considering the entire case law on the point of delay has observed as under:

“Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party.  Justice must be done to both parties equally.  Then alone the ends of justice can be achieved.  If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly”.

16. In view of the discussions made above and in view of the ratio laid down by the Hon’ble Supreme Court in the above said authority and in view of the provisions contained in sec.24.A of the Consumer Protection Act, 1986, we are of the considered opinion that the present complaint is hopelessly barred by time and therefore is liable to be dismissed on this count only.

17. Point No.2 – In view of the findings given by us on issue No.1 this point does not survive for determination.

18. In view of our finding on point No1, we are of the opinion that the complainant is not entitled to any relief sought by her in the complaint.  In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainants U/s.12 of the Consumer Protection Act, 1986 is dismissed.  No order as to costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 05^th day of October 2015)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 23.05.2014.

1. Smt.Rajani Jain

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties-1 & 2 dated 21.06.2014.

1. Sri.V.Kulasekaran

Document produced by the Opposite parties.1 & 2:

MEMBER                            MEMBER                    PRESIDENT

Vln*