BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.113-2015

DATED ON THIS THE 29^th January 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint under section 12 of the C.P.Act, against the opposite parties, seeking a direction to refund a sum of `38,500/- with interest at 12% p.a. from the date of purchase of D.D’s and compensation for the mental agony, hardship caused and to allot a site.
2.     The complainant intending to purchase a residential site from opposite party No.1 submitted application along with requisite fee to the opposite party No.2.  Due to non-allotment of the site, the complainant requested opposite party No.1 for refund of the deposited amount, on failure to trace the application by opposite party No.1. The complainant repeatedly demanded for allotment of a site or for refund of the deposited amount apart from issuing a legal notice on 17.12.2014.  But in vain.  Hence, aggrieved complainant filed this complaint, alleging deficiency in service and unfair trade practice by both opposite parties and sought for the reliefs.
3.     Opposite party No.1 submits, that the complaint is not maintainable and liable to be dismissed and denied the allegations as false.  The opposite party No.1 admitted the submission of application for allotment of a site at R.T.Nagar and denied the submissions of D.D. along with the application.  The opposite party No.1 submits that, since the amount deposited was not remitted to it, same was requested either to deposit with it or to pay the same to the complainant vide its letter dated 03.11.2014, 26.11.2014 and 20.12.2014. As such, opposite party No.1 was not liable to pay the same since, not receipt.  Hence, the opposite party No.1 prays for dismissal of the complaint with cost.
4.     Opposite party No.2 submits, the complaint against it is not maintainable and liable to be dismissed.  Further, submits opposite party No.2 is neither a necessary party nor a proper party to this complaint.   The opposite party No.2 admitted that the complainant as its customer, and at the request of opposite party No.1, for allotment of site two D.D’s for a sum of `500/- and `38,000/- was required by it.  Further, its role was confined to transmitting the D.D. and said application to opposite party No.1.  Accordingly, opposite party No.2 has acted hence, there is no deficiency in service and prays for dismissal of complaint.
5.     On perusal of the material on record, matter posted for orders.
6.     The points arose for our consideration are:-

1. Whether the complainant establishes the deficiency in service and unfair trade practice by opposite parties is not tracing the D.D. deposited and in non-refunding of the D.D. amount and thereby entitled for the reliefs sought?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- The complainant deposited a D.D. sum of `38,000/- towards the initial payment for allotment of a residential site at Vijaynagar, Mysore, by opposite party No.1.  The application fee `500/- and initial deposit fee of `38,000/- was submitted to opposite party No.2 along with the application form.  The opposite party No.2 forwarded the same to opposite party No.1.  Site was not allotted in favour of the complainant.  As such, complainant sought for refund of the deposited amount from opposite party No.1.  The opposite party No.1 refusing to refund the amount, informed that, it had not received the initial deposit amount of `38,000/- from opposite party No.2.  On approaching opposite party No.2, informed that the said amount was already remitted to opposite party No.1, hence, the refund has to be made by opposite party No.1 only.  Aggrieved by the reply of opposite party No.1 and opposite party No.2, filed the complaint seeking reliefs.
9. The opposite party No.1 submits that, it had entrusted the work to opposite party No.2 to receive the application form along with the initial deposit amount for allotment of residential sites to the aspirants.  On receipt of the same the opposite party No.2 had forwarded the same.  The opposite party No.1 contended that it had not received the complainant’s application form along with initial deposit amount paid through D.D.  Hence, it is not liable for refund of the amount and no deficiency in service and unfair trade practice by it.
10. The opposite party No.2, submits, it had forwarded the application form along with the D.D. of the complainant to opposite party No.1 immediately on receipt of the same.  Hence, contended that, it had performed the work promptly without any lapses on its part.  Further, contended that there are every possibility of mis-placement of the D.D. by opposite party No.1, hence, it is not liable for refund of the amount and no deficiency in service and unfair trade practice by it.
11. From the material on board, it is observed that the complainant had submitted his application form along with two D.D’s (amounting to `38,000/- + `500/-) in favour of opposite party No.1, to the opposite party No.2.  the opposite party No.2 also acknowledged the receipt of the same.  The opposite party No.2 statement of account, also confirms the remittance of the D.D. to opposite party No.1.  However, the opposite party No.1, never placed any evidence to establish that it has not received the D.D. along with application form.  Further, the opposite party No.1 has not raised any objection with opposite party No.2, until the complainant approaching it for refund of the amount deposited.  Mere producing the letter dated 03.11.2014, 20.12.2014, 26.11.2014, written to the opposite party No.2 will not substantiate that, the opposite party No.1 does not receive the D.D. amount along with application form.  Hence, we opined that there is lapse on the part of opposite party No.1.
12. The statement of account submitted by the opposite party No.2, confirms that it has remitted the entire amount received by it to opposite party No.1.  Hence, we are of the view that there is no lapse on the part of opposite party No.2.
13. In view of the above, it is opined that there is lapse on the part of opposite party No.1, and it amounts to deficiency in service, hence, opposite party No.1 is liable to refund the amount deposited i.e. `38,000/- along with interest at 18% p.a. and also to pay the compensation for the hardship, inconvenience and mental agony caused to the complainant.  Accordingly, the point No.1 is answered partly in the affirmative.
14. Point No.2:- In view of the above observations, we hereby proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party No.1 is hereby directed to pay `38,000/- along with interest at 18% p.a. from the date of deposit of amount (i.e., 21.10.2011), with opposite party No.2, to the complainant, within 30 days of this order.
3. The opposite party No.1 shall pay a sum of `10,000/- towards compensation for mental agony, hardship, inconvenience caused and `3,000/- for the negligence and deficiency in service and  `2,000/- towards litigation expenses, to the complainant, within 30 days of this order.
4. In default to comply, the opposite party No.1 shall pay penalty of `100/- per day, to the complainant until compliance made.
5. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
6. Complaint against opposite party No.2 dismissed.
7. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 29^th January 2016)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER