Andhra Pradesh

Chittoor-II at triputi

CC/43/2015

B.Ramamurthy, S/o. B.Guruswamy - Complainant(s)

Versus

The Managing Director, A.P.S.R.T.C., - Opp.Party(s)

Y.Bhaskaraiah

05 Nov 2016

ORDER

Filing Date: 03.10.2015

Order Date:05.11.2016

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

SATURDY THE FIFTH DAY OF NOVEMBER, TWO THOUSAND AND SIXTEEN

 

 

 

C.C.No.43/2015

 

 

Between

 

 

B.Ramamurthy,

S/o. B.Guruswamy,

D.No.22-6-90, Venkateswara Colony,

Mangalam,

Tirupati Urban Mandal,

Chittoor District.                                                                              … Complainant

 

 

 

And

 

 

1.         The Managing Director,

            A.P.S.R.T.C.,

            O/o. Bus Bhavan

            RTC Cross Roads,

            Musheerabad,

            Hyderabad.

 

2.         The Regional Manager,

            A.P.S.R.T.C., Complex,

            Tirupati RTC Bus Stand,

            Tirupati,

            Chittoor District.

 

3.         The Chief Accounts Officer,

            O/o. The Regional Manager,

            A.P.S.R.T.C. Complex,

            Tirupati RTC Bus Stand,

            Tirupati,

            Chittoor Distrct.                                                                   …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 20.10.16 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for complainant, and Sri.G.Sreenivasulu, counsel for the opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section – 12 of C.P.Act 1986, by the complainant against the opposite parties 1 to 3 for the following reliefs 1) to direct the opposite parties to refund EMD amount of Rs.1,50,000/- with interest at 24% p.a. from the date of deposit till realization, 2) to direct the opposite parties to pay a sum of Rs.5,000/- towards other expenses incurred by the complainant, 3) to direct the opposite parties to pay Rs.10,000/- towards punitive damages for causing mental agony to the complainant and 4) to direct the opposite parties to pay Rs.20,000/- towards costs of the complaint.   

            2.  The averments of the complaint in brief are:-  that the 2^nd opposite party made a publication through pamphlet dt:29.01.2015, calling for tenders, for allotment of shops in the bus-stands within its region. The complainant purchased an application by paying Rs.1,720/-, in the office of opposite party No.2 on 20.02.2015. As per the terms and conditions in the application, complainant deposited EMD amount of Rs.1,50,000/- by way of D.D. drawn on Dena Bank, Tirupati, in favour of opposite party No.3. The complainant quoted Rs.40,501/- as monthly licence fee for the shop No.SO-38 (clock room). Even though the complainant tender is the highest amount than others, the opposite parties rejected the tender of the complainant and accepted the tender of another one, which is less than the complainant offer. The opposite parties for their benefits allotted the shop with malafide intention by causing loss to the institution. Inspite of several requests and notice, the opposite parties did not refund the EMD amount to the complainant. Rejection of his tender and forfeiture of  EMD amount is illegal. Hence the complaint.   

            3.  Opposite party No.2 filed written version and the same is adopted by opposite parties 1 and 3. The opposite parties in their written version admitted that the complainant has purchased application for Rs.1,720/- from the office of opposite party No.2, deposited a sum of Rs.1,50,000/- towards EMD and also quoted Rs.40,501/- for shop No.SO-38 (clock room), and also admitted that the complainant is the highest bidder by quoting Rs.40,501/- as monthly licence fee, but his tender was rejected on the ground that the complainant failed to affix his passport size photograph on the tender form / application. On the same ground, the EMD amount of Rs.1,50,000/-, so deposited by the complainant was also forfeited for submitting his incomplete application / tender form i.e. “submitting tender form without affixing photograph on the space provided therein”. As per the Condition Nos.6 and 9 of the tender form / application, they have allotted shop No.SO-38 to 2^nd highest bidder. There is no malafide intention or deficiency in service on the part of the opposite parties, and that the complainant since failed to affix his photograph, he is not entitled to any of the reliefs sought for, including refund of the EMD amount and prays the Forum to dismiss the complaint with costs.

            4.  Complainant filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A6. On the other hand, affidavit of opposite party No.2 is filed as R.W.1 and got marked Exs.B1 to B3. Both parties have filed their respective written arguments. 

            5.  Now the points for consideration are:-

            (i).  Whether the EMD amount of Rs.1,50,000/- deposited by the complainant

       is liable to be forfeited? / Whether the forfeiture is justified?          

(ii).  Whether there is deficiency in service on the part of the opposite parties?

(iii).  Whether the complainant is entitled for the reliefs as prayed for?

(iv).  To what relief?

6.  Point No.(i):-  to answer this point, the burden lies on the opposite parties that they are empowered to forfeit the EMD amount of Rs.1,50,000/-. Opposite parties specific contention is that since the complainant has failed to affix his photograph on the application form / tender form, his application is liable to be rejected and the EMD amount of Rs.1,50,000/- is also liable to be forfeited and accordingly the said amount was forfeited. For this purpose, the opposite parties relied on a Circular No.17/2003-OPD(C), dt:20.02.2003, Condition Nos.6 and 9 of tender form. Exs.A2 and B1 are the tender forms. Ex.B2 is the Circular No.17/2003-OPD(C) dt:20.02.2003, issued by the Corporate Office, Operations (Commercial) Department, Mushirabad,          Hyderabad – 20, under Proceedings No.C5/243(211)/2002-OPD(C). As per tender form Column No.6 specifies that bidder has to keep his tender form in sealed cover properly and it should be mentioned on the cover, the purpose for filing the tender form and nature of business to be conducted specifically, that sealed cover should be specific in mentioning that they are sending to the Regional Manager, and full address of the bidder should be mentioned on the cover. Condition No.9 specifies that if the bidder fails to furnish necessary information, if the particulars are illegible or invisible and if he fails to affix the photograph, such tender forms will be rejected. Minors are not competent to participate in the bid. In Circular No.17 under Ex.B2, some circumstances were mentioned under which EMD amount will be forfeited viz.          a) when the tenderer backs out from payment of Security deposit within seven days from the date of receipt of allotment letter or fifteen days from the date of allotment letter whichever is earlier, b) when the EMD paid is less than what is stipulated in the tender, c) when the EMD is paid through other means i.e., in a manner other than what is stipulated in the tender notification, d) when incomplete tender form is submitted or tender form with pre-conditions or additional conditions is submitted,    e) when the tender is submitted in an un-concerned tender form, f) when the tender is submitted for the business other than that notified in the tender notification, g) when the tender is submitted by minors / or on behalf of minors. The EMD of the tenderer shall be forfeited with the approval of Executive Director of the Zone concerned. Thus these conditions are clear that, there is no condition that in case photograph is not affixed on the tender form, the EMD amount so deposited by the bidder shall be forfeited. So, the opposite parties violated the terms and conditions specified in Column Nos.6 or 9 of the tender form or in the conditions specified in Circular No.17/2003 under Ex.B2.

            7.  In condition No.5 of the tender form it is mentioned that bidder shall obtain D.D. for the EMD amount in any National Bank in the name of Accounts Officer, A.P.S.R.T.C., Tirupati, and the said D.D. shall be accompanied the tender form / application. In case the EMD amount is not paid as required, such applications shall not be considered / accepted. The bidders those who are un-successful in the tender, their EMD amount shall be refunded only after the tenders were finalized. Therefore, in view of Condition No.5 of the tender form, bidders those who participated in the bid and remained un-successful, their EMD amount will be paid back / refunded to the respective bidders only after finalizing the tenders.

            8.  It is not the case of the opposite parties that the complainant is an un-successful bidder or that the complainant has quoted less amount in the tender form, that he has violated any of the terms and conditions in the tender form specifically. On the other hand, the admitted fact is that complainant stood as highest bidder for a sum of Rs.40,501/- as monthly licence fee. In case, the complainant failed to affix photograph on the tender form at the appropriate column, his application should have been rejected, in those circumstances the options left to the opposite parties are 1) the application of the complainant ought to have been rejected and his EMD amount of Rs.1,50,000/- shall be refunded as in case of unsuccessful bidder, 2) the opposite parties ought to have declared him as highest bidder and permit the complainant to produce his photograph within a specified time for accepting his tender, but the opposite parties failed to do so. Unfortunately, though the complainant stood as higher bidder for shop No.SO-38 (clock room), he was neither allotted the shop nor refunded his EMD amount, which is quite irregular and arbitrary. The opposite parties also failed to furnish details in favour of whom the bid is knocked-down, and what is the amount quoted by next successful bidder, name of such 2^nd successful bidder etc., inspite of complainant’s allegation that less quotation was accepted by the opposite parties. Under the above circumstances, the opposite parties, if they are not satisfied with the application of the complainant for not affixing his photograph alone, they should have rejected the application and refund the EMD amount. Contrary to that, not only the application of the complainant was rejected, only on the ground that he has not affixed his photograph on the tender form, but also his EMD amount of Rs.1,50,000/- was forfeited on the same ground that the complainant’s photograph was not affixed on the tender form. The Consumer Protection Act 1986, is enacted to protect the rights of the consumer and also to protect the consumer from exploitation from the hands of the traders or the service providers or the business people. Here the rights of the consumer / complainant were certainly violated. Apart from it, another important aspect is Circular No.17/2003 under Ex.B2 was not furnished to the complainant or any of the bidders, those who participated in the bid. Anywhere in the pleadings, evidence affidavit or written arguments submitted on behalf of the opposite parties, it is mentioned that copies of Ex.B2 circular was furnished to all the participant bidders. Then, how the opposite parties are expected that bidders will aware of the terms and conditions that were incorporated in the circular. Even otherwise, the circular also did not speak if the photograph of any of the bidder is not affixed on the tender form, his EMD amount will be forfeited. Therefore, under the above circumstances, we are of the opinion that forfeiting the EMD amount of Rs.1,50,000/- deposited by the complainant on 20.02.2015 is arbitrary, illegal and not justified. On the sole ground that his photograph was not affixed on the tender form, the opposite parties are not competent to forfeit the EMD amount of Rs.1,50,000/-, which is a huge amount. In case 10 or 15 people, who offers tenders, did not affix their photographs, the opposite parties if forfeit those amounts deposited as EMD by such bidders, it will collect more than Rs.15 lakhs to the account of opposite party No.3, which is unsustainable. As such EMD amount of Rs.1,50,000/- deposited by the complainant on 20.02.2015 is not liable to be forfeited. Accordingly this point is answered.

            9.  Point No.(ii):-  in view of the discussion made supra under point No.1 and the terms and conditions of the tender form as well as circular under Ex.B2 forfeiture of the EMD amount deposited by the complainant is unsustainable. Inspite of repeated requests and notice issued by the complainant under Ex.A3, which was acknowledged by the opposite parties under Ex.A5 and maintaining silence for the notice without giving reply and made the complainant to wander around the office of the opposite parties for refund of the EMD amount, certainly amounts to not only deficiency in service on the part of the opposite parties but also it appears prima facie unfair trade practice on the part of the opposite parties. Under the above circumstances, we are of the opinion that the complainant has established that there is deficiency in service on the part of the opposite parties and they are liable to refund the EMD amount of Rs.1,50,000/- to the complainant. Accordingly, this point is answered.

            10.  Point No.(iii):-  in view of the admitted facts about the participation of the complainant as bidder and he stood as highest bidder in the tender offering Rs.40,501/- as monthly licence fee for shop No.SO-38 (clock room) and also in view of the admissions made by the opposite parties that the complainant deposited a sum of Rs.1,50,000/- towards EMD amount for offering tender to the said shop. So far as rejection of his application / tender form is concerned on the ground that complainant has not affixed his photograph on the tender form may be reasonable to some extent but when he stood as highest bidder and his quotation shows the highest amount as licence fee for shop No.SO-38 (clock room), his tender ought not to have rejected by the opposite parties but it was rejected. Not only rejected the tender form of the complainant but also his EMD amount of Rs.1,50,000/- was forfeited illegally without any bona fide ground. Even though the complainant stood as highest bidder, his tender was rejected and the shop No.SO-38 was allotted to some other person said to be the 2^nd highest bidder, but his name and quoted licence fee were not mentioned anywhere. As such the EMD amount of Rs.1,50,000/- ought to have been refunded to the complainant by treating him as un-successful bidder under Condition No.5 of Ex.A2 (equivalent to Ex.B1). Under the above circumstances, we are of the opinion that complainant is entitled for the relief of refund of EMD amount of Rs.1,50,000/- deposited by him and the opposite parties also liable to pay a sum of Rs.5,000/- as punitive damages to the complainant, apart from the costs of the litigation. Accordingly this point is answered.

            11.  Point No.(iv):- in view of our discussion under points 1 to 3, we are of the opinion that the complainant has established that the forfeiture of EMD amount of Rs.1,50,000/- by the opposite parties apart from rejecting his tender form, though he stood as highest bidder in respect of shop No.SO-38 (clock room) is illegal and also established that there is deficiency in service on the part of the opposite parties, that he is entitled to refund of EMD amount, punitive damages and costs of the litigation, and complaint is to be allowed accordingly.

            In the result, complaint is allowed in part directing the opposite parties 1 to 3 jointly and severally to refund the EMD amount of Rs.1,50,000/- (Rupees one lakh fifty thousand only) with interest @ 9% p.a. from the date of deposit i.e. 20.02.2015 till realization, that opposite parties 1 to 3 also liable to pay punitive damages of Rs.5,000/- (Rupees five thousand only) to the complainant for adopting unfair trade practice and as there is deficiency in service on the part of the opposite parties and the opposite parties also directed to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint. The opposite parties 1 to 3 further directed to comply with the orders within six (6) weeks from the date of receipt of copy of this order, failing which the punitive damages of Rs.5,000/- shall also carry interest @ 9% p.a. from the date of order, till realization. Remaining reliefs are rejected.    

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 5^th day of November, 2016.

 

       Sd/-                                                                                                                      Sd/-                          

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

WITNESSES EXAMINED ON BEHALF OF COMPLAINANT.

 

PW-1: B. Ramamurthy (Chief affidavit filed).

 

WITNESSES EXAMINED ON BEHALF OF OPPOSITE PARTIES.

 

RW-1: V. Nagasivudu (Chief affidavit filed).

 

                 EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT.

 

EXHIBITS (EX.A)	DESCRIPTION OF DOCUMENTS
	Photo copy of D.D.No.203623, Dt: 20.02.2015 drawn in favour of R3.
	Photo copy of Tender Form submitted by Complainant. Dt: 20.02.2015.
	Office copy of Legal Notice filed by the Complainant with Postal Receipts (4) Dt: 03.07.2015.
	Photo copy of Tender Cost Receipt. Dt: 20.02.2015.
	Postal Acknowledgements 2 and 3.
	Tender Publication Copy published by the R.M., APSRTC, Tirupati.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

 

EXHIBITS (EX.B)	DESCRIPTION OF DOCUMENTS
1.	Attested copy of Tender Form submitted by the Complainant. Dt: 20.02.2015.
2.	Attested copy of Circular Dt: 20.02.2003. No.17/2003-OPD(C) issued by Vice-Chairman & Managing Director, APSRTC.
3.	Attested copy of office copy of intimation of forfeiture of EMD amount. Dt: 12.03.2015.

 

 

 

 

                                                                                                                                     Sd/-

                                                                                                                      President

          

              // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

               Dist. Consumer Forum-II, Tirupati.

 

            

Copies to:-     1.  The complainant.

                        2.  The opposite parties.