Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The complainant has come up with his grievance against the Opposite party under section Consumer Protection Act, 1986 contending that the Opposite party had published a notification in the year 1992 calling for the applications for allotment of sites in different extensions of Mysore. He applied for allotment of a site on 11.02.1992 measuring 40’ x 60’, paid Rs.500/- towards the registration and Rs.6,250/- as a partial sital value. As he was a Government servant was transferred to Bangalore, therefore on 30.08.1994, he gave an application to Opposite party to change his address and obtained an endorsement to that effect. During 2003, he came to know from reliable source, that the Opposite party had allotted him site No.199 measuring 40’ x 60’ at 3rd Stage, ‘B’ Division, Koppalur, Mysore, but, the Opposite party failed to intimate the said allotment to his new address. Then he approached the Opposite party for allotment of site, the Opposite party gave evasive answers and further told him, as he did not respond to the intimation given by them, they allotted that site to some other person. Therefore, calling this act of the Opposite party as deficient has prayed for a direction to the Opposite party to allot him a site, which was allotted on 14.07.2003 or an alternative site and to pay compensation of Rs.10,00,000/-.<br /> 2. The Opposite party has filed his version contending that the complainant is not a Consumer under law, has further denied in the complainant having had given them an application on 30.08.1994 for change of address and also endorsement alleged to had been issued by them after the receipt of application. It is further admitted to had allotted site No.199 in favour of the complainant and that allotment letter was sent to the complainant address he had given and the post was returned with a shara that no such person was found. He did also publish the allotment in its Notice Board on 01.01.2004, but the complainant never approached him and further stated that the complaint is barred by limitation, the complainant is not entitled for any reliefs and has prayed for dismissal of the complaint.<br /> 3. The complainant has filed an application under section 5 of the Limitation Act with an affidavit contending that he got issued a notice to the Opposite party on 26.09.2005 calling upon him to allot a site, which was served on him on 29.06.2005, but the Opposite party has not given any reply. In the meanwhile he was not feeling well to initiate the complaint in time as he was suffering from disease and produced medical certificate and thereby has prayed for condoning delay in filing this complaint.<br /> 4. In the course of enquiry into the grievances of the complaint, the complainant and one Prabhakar, The Zonal Officer of Opposite party have filed their affidavit evidence. Heard the counsel for both the parties and perused the records. The complainant has produced copies of correspondence letters between himself and the Opposite party, certain challens, endorsement said to have been issued by the Opposite party on receipt of an application for change of address and copy of a legal notice. The Opposite party has produced its file.<br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the complaint is barred by limitation?<br /> 2. Whether the complainant proves that the Opposite party had issued an acknowledgement on his giving an application for change of address and that the Opposite party has failed to send the allotment letter to the changed address and thereby caused deficiency in his service?<br /> 3. Whether the complainant is entitled for the relief sought for? <br /> 6. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Points no. 1 and 2:- The complainant in the complaint and also in the affidavit evidence narrating to had filed an application for allotment of a site on 11.02.1992, has further contended as he was a Government servant was transferred to Bangalore, therefore on 30.08.1994 he gave an application to the Opposite party to note down the change of address and that Opposite party had issued an endorsement to him to that effect and of course the complainant has produced that endorsement dated 30.08.1994 said to had been issued by the Opposite party. The complainant has further contended that the Opposite party after allotting a site in his favour did not send the allotment letter to his newly given address, but during 2003 he came to know the allotment of site made in his favour. According to the complainant he came to know the allotment of site during 2003 itself. Even, thereafter he had also come to know that the site, which was allotted to him came to be cancelled and the same was allotted to someone else. But, the complainant who came to know all these kept quite without initiating any action to pursue his remedy under law. Thereafter, he claimed to have got issued a legal notice to the Opposite party on 26.09.2005 narrating the history of his application, application given for change of address and reiterated in he having had come to know the allotment of site during 2003 itself. Thus, it is clear that the complainant from the year 2003 till 26.09.2005 until he gave a legal notice he did not initiate any action. Even after getting a legal notice issued to the Opposite party on 26.09.2005 the complainant further did not pursue his grievance but slept over the matter till he presented this complaint on 31.01.2008. Hence, it is manifest that the complainant got knowledge of allotment during 2003 and the default of the Opposite party in not informing him of the allotment including cancellation of site and allotting to someone else. The complainant having slept over from 2003 onwards has come up with his complaint in the end of January 2008, which is in our view is highly barred by limitation. Even, it could be seen that the complainant even after the issue of legal notice to the Opposite party on 26.09.2005, he did not file any complaint to the Forum and there also 2 years have elapsed. Therefore the complaint if we viewed from any angle can safely be held as hopelessly barred by limitation.<br /> 8. The complainant as we have stated above has filed an application under section 5 of the Limitation Act for condonation of delay. The complainant has stated as if in the meanwhile he was not feeling well to initiate the complaint in time, as he was suffering from disease. In support of his plea, he has produced a medical certificate shown to have been issued by a Private Doctor on 03.12.2007. In this, the doctor has stated as if this complainant was under his treatment since a longtime and the complainant was suffering from advanced Parkinson disease. This medical certificate produced by the complainant in our view do not inspire the confidence, because it is not the case of the complainant that during the year 2003 or during later years he was suffering from any disease took treatment from this doctor or from any doctor for that matter, which prevented from approaching this Forum with a complaint. It is also not his case specifically that he was suffering from such an ailment from a particular year or month, was not able to move about and that prevented him from having recourse to the course of law. The certificate of this doctor that the complainant is under his treatment since a longtime creates a doubt on its genuineness and therefore cannot be believed and hold that the certificate has been issued mechanically to overcome the delay in filing this complaint. Therefore, the ground urged by the complainant for condonation of delay is not convincing and satisfactory, as such we are inclined to hold that the complaint is highly barred by limitation and the same is liable to be dismissed on that ground alone.<br /> 9. Coming to the merits of the case, there is no dispute in this complainant having had applied for allotment of site and payment of certain amount. The complainant at the time of filing the application shown to had given a particular residential address. But, it is the grievance of the complainant that as he was transferred from Mysore to Bangalore he had given an application to Opposite party to note down his change of address and to that effect, the Opposite party had given an endorsement dated 30.08.1994. But, the Opposite party in the version and also in the affidavit evidence categorically denied the application given by the complainant and also having had issued any endorsement as relied upon by the complainant. The Opposite party in the version and also in the affidavit evidence has stated as under:-<br /> “It is false and denied that the complainant submitted an application on 30.08.2004 gave an application to the Opposite party for change of address. It is further false that the Opposite party issued an endorsement to the complainant on the same day.<br /> The Opposite party further in para 4 of its affidavit categorically stated as under:-<br /> The complainant is not at all submitted any application for change of address to the Opposite party.”<br /> <br /> With this contention of the Opposite party, it is clear that he has denied the receipt of any application from the complainant for change of address, besides denying the endorsement given as relied upon by the complainant. No doubt, the endorsement dated 30.08.1994 produced by the complainant is on the alleged letterhead of the Opposite party bears the alleged seal of Opposite party with signature of a clerk. But, the Opposite party since having denied the receipt of the application and issue of the endorsement repeatedly, the complainant ought to have taken steps to prove the genuineness of this endorsement, but has not made any efforts in this regard to prove that this endorsement was issued by the Opposite party. Therefore, under these circumstances, we hold that burden casted on the complainant to prove that this endorsement was issued by the Opposite party in response to application given by him for change of his address is not discharged by the complainant, as such we are constrained to hold that the complainant has failed to prove the change of address furnished to the Opposite party. <br /> 10. The Opposite party has produced its file, which contain the allotment letter, which is addressed to the address given by the complainant at the time of filing the application came to be returned to them. Thereafter it is shown that the Opposite party also published a notification in their Notice Board informing those allotees who have not received the allotment letters to approach them and to take the allotment letters. But, despite that, it appears the complainant did not approach the Opposite party in time to get the allotment letter and to follow what had been told in it as conditions. Thereafter, the Opposite party it is found since did not receive any response from the complainant, cancelled the allotment and allotted the site to some other member. Thus, the complainant in our view, under these circumstances, failed to prove any deficiency against the Opposite party and therefore the Opposite party having had no option canceled the allotment and allotted that site to the next eligible member. Hence, the complaint on merits also in our view is liable to be dismissed. With the result, we answer above points accordingly, and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br />