Haryana

StateCommission

A/138/2018

M/S DTDC COURIER AND OTHERS - Complainant(s)

Versus

MUKESH KUMAR AND OTHERS - Opp.Party(s)

B.S.WALIA

31 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      138 of 2018

Date of Institution:      01.02.2018

Date of Decision :       31.08.2018

1.     M/s DTDC Courier & Cargo Limited No.3, Victoria Road, Bangalore-560047 through its Manager/authorised signatory.

2.     M/s DTDC Courier, Shop No.10 HUDA Complex, near Town Park, Sirsa, Tehsil and District Sirsa, through its proprietor/Manager.

                                      Appellants-Opposite Parties No.3 & 4

Versus

 

1.      Mukesh Kumar s/o Sh. Fakir Chand, Resident of House No.6, Sant Nagar Society, Hisar Road, Sirsa, Tehsil and District Sirsa.

Respondent-Complainant

2.      Housing Board Haryana, through its Chief Administrator at Panchkula.

3.      Estate Officer, Housing Board Haryana 1305/15-A, Hisar, District Hisar.

                                      Respondents-Opposite Parties No.1 &2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri B.S. Walia, Advocate for appellants.

                             Shri Deeraj Narula, Advocate for respondent No.1.

Shri Kamal Sharma, Advocate proxy for Shri B.S. Negi, Counsel for the respondents No.2 & 3.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated September 06^th, 2017 passed by District Consumer Disputes Redressal Forum, Sirsa (for short ‘the District Forum’).   

2.                Mukesh Kumar – complainant (respondent No.1 herein) belonging to Below Poverty Line (BPL) category was allotted flat No.398/SF, Housing Board Colony, Sector-21, Sirsa by Housing Board Haryana – Opposite Parties No.1 and 2 in the year 2012-2013.  The tentative sale price of the allotted flat was Rs.3,90,000/-. As per terms and conditions of the allotment, an amount of Rs.39,000/- was deposited by the complainant being 10% of the tentative sale price of the flat as registration fee with the opposite parties No.1 and 2. The complainant was required to pay second installment amounting to Rs.39,000/- towards the remaining sale price on or before 15.10.2013.  Regarding payment of the second installment, the complainant got prepared a demand draft amounting to Rs.39,000/- and the same was sent to the opposite parties in a parcel through the opposite party No.3 – DTDC Courier Service, Shop No.10, Housing Board Colony, Sirsa. vide receipt No.Z03530731. The complainant was assured by the opposite party No.3 that the parcel containing demand draft will be delivered to the addressee within a period of two days.

3.                The complainant was shocked to receive information in the month of August, 2016 when he received memo No.3699 dated 29.07.2016 from the opposite parties No.1 and 2 that the amount of Rs.39,000/- sent to the opposite party No.1 on 15.10.2013 had not been credited in the account of the complainant. The complainant also got information that the sale price of the flat has also been mentioned as Rs.4,33,700/- whereas in the allotment letter, the total sale price was mentioned as Rs.3,90,000/-. The opposite parties raised a demand of Rs.2,37,122/- as interest and an amount of Rs.40,116/- as monthly interest liability. The complainant was offered delivery of possession on payment of the above mentioned amount. The opposite parties also deposited monthly installments of Rs.2403/- per month regarding payment of the remaining sale price amount during the period of 30 months.

4.                On July 29^th, 2016 when the complainant visited the office of the opposite parties, he was informed that the payment of an amount of Rs.39,000/- vide demand draft dated 15.10.2013 had not been received in the office of the opposite parties. So, under these compelling circumstances the complainant deposited the above mentioned amount of Rs.2,37,122/- with Union Bank of India, Sirsa branch in the account of the opposite party No.1 and thereafter possession of the flat was delivered to the complainant on 29.07.2016.  Thereafter, the complainant also visited the office of the opposite party No.3 DTDC Courier service who could not show that the parcel containing demand draft was delivered to the addressee and even could not show any record maintained in the office regarding this transaction. The complainant is entitled to receive the demand draft amount of Rs.39,000/- alongwith  interest amount of Rs.16,753/- which the complainant had to pay unnecessarily.

5.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite parties No.1 and 2 to withdraw the excess amount of cost of the flat Rs.43,700/- and interest amount of Rs.40,116/-. The opposite parties No.3 to 4 be directed to pay an amount of Rs.39,000/- mentioned in the demand draft alongwith an amount of Rs.16,753/- as interest. The opposite parties also be directed to pay to the complainant an amount of Rs.30,000/- on account of un-necessary harassment, mental agony and an amount of Rs.5,000/- as litigation expenses.

6.                The opposite parties No.1 and 2 in their written version have taken plea that the complaint is not maintainable in the present form and that the complaint has been filed beyond the period of limitation. It is pleaded that main grievance of the complainant appears to be against the opposite parties No.3 and 4 who failed to deliver the alleged demand draft amounting to Rs.39,000/- sent by the complainant. The complainant has also not mentioned the number of the demand draft which was sent through the opposite party No.3. The opposite parties did not receive payment of second installment amounting to Rs.39,000/- through demand draft. Price of the flat has been correctly shown as Rs.4,33,700/-.  In fact, earlier a tentative sale price of the flat was mentioned as Rs.3,90,000/-. An amount of Rs.16,753/- has been rightly claimed from the complainant as interest as the complainant failed to deposit an amount of Rs.39,000/- till 15.10.2013. The claim of the opposite parties No.1 and 2 regarding an amount of Rs.40,116/- as monthly interest liability is also justified which has been correctly calculated. An amount of Rs.2,37,122/- has been paid by the complainant being remaining sale price amount along with interest and thereafter possession has also been delivered to the complainant as per policy of the opposite parties. The complainant did not think it proper to make inquiry regarding delivery of the parcel containing demand draft. The complainant is not entitled to receive any amount as prayed in the complaint. It is prayed that the complaint be dismissed.

7.                In the beginning Shri Sachin Sukhija, proprietor appeared on behalf of the opposite parties No.3 and 4 – DTDC Courier on January 24^th, 2017. On February 27^th, 2017 when the complaint case was fixed for filing written version, none appeared on behalf of the opposite parties No.3 and 4 and opposite parties No.3 and 4 were proceeded against ex parte. ;

8.                After hearing arguments, vide impugned order dated September 06^th, 2017 the complaint filed by the complainant was partly allowed. The opposite parties No.3 and 4 were directed to pay an amount of Rs.16,753/-  to the complainant which was charged by the opposite parties No.1 and 2 from the complainant as interest on account of non-delivery of demand draft. The opposite parties No.3 and 4 were also directed to pay an amount of Rs5,000/- as litigation expenses. The opposite parties No.1 and 2 were directed to issue ‘No Objection Certificate’ in respect of demand draft in question to the complainant within a period of one month. The opposite parties No.3 and 4 were directed to make compliance of the order jointly and severally within a period of one month from the date of receipt of copy of the order failing which to pay interest at the rate of 9% per annum. The complainant was also directed to approach Syndicate Bank for cancellation of demand draft and receive payment from the bank.

9.                Aggrieved with the impugned order dated September 06^th, 2017 passed by the learned District Forum the opposite parties No.3 and 4 M/s DTDC Courier & Cargo Limited filed the present First Appeal No.138 of 2018 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant. It is also pleaded that the appellants did not receive any notice from the District Forum before they were proceeded ex parte. Moreover, the complaint was not within prescribed period of limitation.

10.              We have heard learned counsel for the parties and perused the case file.

11.              During the course of arguments, it was common case of both the parties that the complainant Mukesh Kumar belonging to BPL category was allotted flat No.398/SF in Housing Board Colony, Sector 15-A, Sirsa in the year 2012-2013, vide letter dated September 01^st, 2013 Exhibit R-8 after receiving an application Exhibit R-5. Flat was allotted through draw of lots held on July 10^th, 2013. Admittedly, an amount of Rs.39,000/- was deposited at the time of issuance of the allotment letter. The complainant/allottee was required to pay second installment amounting to Rs.39,000/- on or before October 15^th, 2013 failing which allotment of the flat could be cancelled as mentioned in the allotment letter Exhibit R-8. It is also admitted fact that the tentative sale price of the flat was mentioned as Rs.3,90,000/- in Exhibit C-2. The grievance of the complainant is that in the beginning sale price of the flat was mentioned as Rs.3,90,000/- but the sale price was changed later on as Rs.4,33,700/- as mentioned in the Hire-Purchase Tenancy Agreement Exhibit R-13 and other documents.

12.              We feel findings cannot be given that the sale price of the allotted flat was later on increased and mentioned as Rs.4,33,700/- illegally because in the document Exhibit C-4 and other relevant record in the beginning although sale price was mentioned as Rs.3,90,000/- but it was mentioned that it is tentative sale price per flat. In these circumstances, we find no illegality regarding increase in the sale price of the allotted flat mentioning it as Rs.4,33,700/-. It was in the knowledge of the complainant from the very beginning that the sale price amount of Rs.3,90,000/- was only tentative and not exact sale price. In this way, the complainant is not entitled for refund of an amount of Rs.43,700/- from the opposite parties No.1 and 2. The claim of the opposite parties No.1 and 2 regarding an amount of Rs.40,116/- as monthly interest liability is also justified and the complainant is not entitled for refund of the above mentioned amount which has already been paid by the complainant. In this way, the complainant is not entitled to any relief as claimed in the complaint against the opposite parties No.1 and 2. Findings of the learned District Forum in this regard are correct and justified.

13.              It is admitted fact that the complainant was required to pay an amount of Rs.39,000/- being second installment of the total sale price on or before October 15^th, 2013. The complainant thought it proper to make payment of the above mentioned amount through demand draft. The complainant got prepared demand draft amounting to Rs.39,000/-  from Syndicate Bank on October 15^th, 2013. Exhibit C-3 is the photo copy of the demand draft. Exhibit C-4 is the receipt received from the opposite party No.3 DTDC Courier as the demand draft was sent through courier service. During the course of arguments, there was no controversy of any type that the parcel containing demand draft which was sent through the opposite party No.3 was not received in the office of the opposite parties No.1 and 2. It is also admitted fact that the total amount mentioned in the demand draft Exhibit C-3 amounting to Rs.39,000/- was not debited from the account of the complainant till the month of August, 2016 when the complainant had to make payment of the total sale price amount to the opposite parties including the above mentioned amount of Rs.39,000/-.

14.              The opposite parties No.3 and 4 did not prefer to file written version or to adduce evidence in the complaint case in support of their version. It is strange that the opposite parties No.3 and 4 have taken plea in the Memorandum of Appeal that the opposite parties No.3 and 4 were proceeded against ex parte without effecting service whereas it is clear from the order sheet of the complaint case filed that one Sachin Sukhija, Proprietor appeared on behalf of the opposite parties No.3 and 4 on January 24^th, 2017 before the District Forum. On next date February 17^th, 2017 when the complaint case was fixed for filing written version, the opposite parties No.3 and 4 were proceeded against ex parte as none appeared on behalf of the opposite parties No.3 and 4.   It is clear that in this regard the opposite parties No.3 and 4 have taken false plea.  During pendency of the appeal also,   the opposite parties could not produce any document to prove that the parcel containing demand draft was delivered to the addressee and if so on which date. In this way, it is clear that the opposite parties failed to prove that the parcel containing demand draft was delivered to the addressee. All it happened due to faults of the opposite parties No.3 and 4 and it is a clear case of deficiency in service on their part.

15.              In this case the complainant had to pay an amount of Rs.16,753/- to the opposite parties No.1 and 2 in excess as interest from August 15^th, 2013 up to the end of August, 2016. The opposite party No.1 did not receive payment of the amount of Rs.39,000/- during this period due to fault of the opposite parties No. 3 and 4.  In these circumstances, the findings of the learned District Forum are justified directing the opposite parties No.3 and 4 to pay an amount of Rs.16,753/- as well as an amount or Rs.5,000/- as litigation expenses with interest at the rate of 9% per annum in case the awarded amount is not paid within a period of one month.

16.              During the course of arguments, learned counsel for the appellants also argued that the complaint was filed beyond the period of limitation. It stands proved that the demand draft contained in a parcel was handed over to the opposite parties No.3 & 4 for delivery by the complainant on October 15^th,2013. The parcel containing demand draft could not be delivered to the addressee. Version of the complainant is that he came to know that the demand draft has not been received by the opposite party No.1 when he received a memo No.699 dated July 29^th, 2016 from the opposite party No.1 in the month of August, 2016. The opposite parties No.3 and 4 could not produce any evidence to prove that prior to the month of August, 2016 the complainant had knowledge that the parcel containing the demand draft had not been received by the opposite party No.1 soon after the dispatch of the goods through courier service. In this way, cause of action first time arose for filing of the complaint in the month of August, 2016 and the complaint was filed by the complainant well within time on December 07^th, 2016.

17.              As a result, as per discussions above in detail, we have no hesitation in holding that the findings of the learned District Forum are correct, valid and justified. Hence, the findings of the learned Forum stand affirmed and the appeal stands dismissed.

18.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 31.08.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL