ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not allotting the site and direct OP to refund Rs.3,24,375/- paid towards the cost of the site along with interest at the market rate and Rs.50,000/- as compensation for causing harassment, mental pain and agony and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant was an employee in the Railway Department and he became a member of the OP’s Co-operative Housing Society by paying the membership fee and applied for allotment of a site measuring 30 X 50 in the layout named Railway Lake View(Jalliga).  The cost of the site was Rs.13,36,350/-, payable in four installments.  He paid the first installment of Rs.3,24,375/- on 15.08.2015 by issuing a cheque.  The same was honored.  He received a letter on 20.07.2017 by the OP demanding to pay the second installment for the site.  At that time, as he was admitted to Columbia Asia Hospital for his health problem and as the treatment was for a long time, he could not pay the second installment and intimated the same and requested OP to refund the amount paid by him in respect of the first installment of the site.  On 18.11.2017 and on 05.01.2017 again the OP sent a letter to pay the second installment.  Unable to recover from the health, and as he could not pay the second installment, he opted to surrender the site and sought for refund of the amount.  In this connection, he issued a notice dated 28.08.2018 demanding for refund of the same which OP did not reply but informed that the amount would be returned provided the complainant surrenders the original receipt.  Again OP requested the complainant to execute Indemnity Bond which was executed by him.  OP promised to pay /refund the amount in the year 2019 and inspite of it, whenever calls were made over the phone, OP used to give lame excuses for refunding the amount.  Complainant and his advocate though tried to contact the OP for refund several times, OP never refused to refund but did not refund the same.  He has been put to lot of mental agony, tension, harassment financial loss due to the OP not refunding his amount, through he requested for the same by surrendering the receipt and executing the Indemnity Bond.  Hence there is deficiency in service on the part of OP and also unfair trade practice. Hence the complaint.

3.      Upon the service of notice, OP remained absent and hence placed exparte.

4.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

5.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

6.     POINT No.1 & 2:-

   Perused the complaint, affidavit evidence and the documents produced by the complainant.  Ex.P1 is the broucher wherein a sum of Rs.13,36,350/- has been mentioned as cost of the site in respect of the site measuring 30 X 50.  Ex.P2 is the membership Identity Card issued to the complainant, wherein his membership is mentioned as No.180, Ex.P3 is the receipt for having paid the membership fee of Rs.1,350/- and P4 is the application given by the complainant for the site measuring 30 X 50 and also the cheque for Rs.3,24,375/-.  P5 is the copy of the said cheque.  Ex.P6 is the copy of the demand notice issued by the OP to the complainant to pay the second installment towards the site.  P7 is the letter written by the complainant to the OP seeking for refund of the amount on the ground that he has some health problem and cannot pay the second installment.  Ex.P8 is the copy of the acknowledgement acknowledging the receipt of the said letter and Ex.P9 is again a letter dated 28.08.2018 wherein the complainant has demanded OP to refund the amount.

        7.     When all these documents are taken into consideration, it becomes clear that the complainant became the member of the OP society by paying the membership fee, applied for a site measuring 30 X 50 and paid first installment of Rs.3,24,375/-.  It also becomes clear from the letter written by the complainant to OP wherein he has informed that for the second installment he cannot be passed due to his health problem urging OP to refund the amount paid by him.  It is also in his evidence and in the complaint that he has surrendered the original receipt and executed Indemnity Bond.  The copy of the original receipt is produced, whereas, no copy of the Indemnity Bond is produced.  Even then, when the complainant do not want the site and cannot want to pay the second installment towards the site due to his health problem, it is the duty of the OP to refund the amount at the earliest considering the age of the complainant.  Complainant is a senior citizen aged 85 years as mentioned in the cause title to the complaint.  Inspite of demand by writing letter, OP kept the amount and did not refund the same. Which amounts to unfair trade practice and hence we answer point No.1 in affirmative and direct OP to refund Rs.3,24,375/- within 30 days along with interest at 12% p.a., on the said amount from the date of sending the letter dated  20.08.2018.  The act of OP in not paying the amount at the request of the complainant made him to suffer physically and mentally and financially and hence he had to file this complaint by engaging an advocate and by paying his professional fee.  Hence we direct OP to pay a sum of Rs.25,000/- towards damages and Rs.10,000/- towards legal expenses and litigation expenses.  Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to refund Rs.3,24,375/- within 30 days along with interest at 12% p.a., from the date of sending the letter dated  20.08.2018. 
3. OP is further directed to pay a sum of Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses to the complainant.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30^TH DAY OF JANUARY 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: The Pomplet/broucher

Ex P2: My employee membership card

Ex. P3: Amount prepaid towards membership

Ex P4: Application for registration for house/site

Ex P5: Copy of the cheque for having paid Rs.3,24,375/-

Es P6: Letter written by the society dated 05.01.2018

Ex P7: Notice sent by me

Ex P8: Postal acknowledgement

Ex P9: Letter to OP

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

• NIL -

Copies of Documents produced on behalf of Opposite Party/s

• NIL -

MEMBER                                        PRESIDENT