Kerala

Idukki

CC/154/2018

M V Balakrishnan - Complainant(s)

Versus

Secretary Arakkulam Gramma Panchayath - Opp.Party(s)

Adv.K M Sanu

31 Jan 2020

ORDER

DATE OF FILING :31/07/2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of January 2020

Present :

SMT.ASAMOL P. PRESIDENT IN CHARGE

SRI.AMPADY K.S. MEMBER

CC NO.154/2018

Between

Complainant : M.V.Balakrishnan,

Muraleesadanam,

Vengalloor P.O., Thodupuzha.

(By Adv: K.M.Sanu)

And

Opposite Party : 1 . The Secretary,

Arakkulam Grama Panchayath,

Arakkulam P.O., Moolamatom.

2 . The Assistant Engineer,

LSGD Arakkulam Grama Panchayath,

Arakkulam P.O.

(Both by Adv: Prince J.Pananal and Adv.Shijomon Joseph)

 

O R D E R

SRI. AMPADY K.S. (MEMBER)

 

Allegations of the complainant are as follows:-

 

1 . Complainant has been doing minor contract works of opposite parties from 2005 onwards. He has been doing these works and works of others for earning his livelihood.

 

2 . For doing the work of opposite parties, he has to remit earnest money deposit @ 2.5% of estimate of each work. After obtaining tender, 5% of estimate amount has also to be furnished to the opposite parties. As such, he has been remitting these amounts to opposite parties. After completing the work and after a fixed period thereafter, FD has to be released and earnest money deposit has to be refunded while encasing the bill amount.

 

(Cont....2)

 

-2-

 

3 . He has been filing such applications after completing each work before opposite parties. After verifying this by second opposite party, first opposite party has to refund the above amounts. Till then, no objection has been raised by opposite parties stating any defects in work or that maturity has not attained etc. Opposite parties are playing delay tactics. By not refunding the amounts, complainant has to lose Rs.1,10,000/- (One Lakh Ten Thousand only). Even though many such applications were filed, opposite parties have not disposed those or refunded the amounts stating that file could not be traced out and that period is over etc.

 

4 . While so, the complainant filed petition before Honorable Ombudsman for LSGI and it has given direction to dispose the complaint within 3 months. But opposite parties have not refunded the amount.

 

5 . Even though, complainant has filed applications in time, opposite parties have not disposed the same in due course and trying to show that those have hit by limitation. Inaction on the part of opposite parties is deficiency in service. So the complainant is entitled to recover receivable amount of Rs.1,10,000/- (One Lakh and Ten Thousand only) along with interest and to obtain compensation from opposite parties.

 

Hence he prayed for the following reliefs.

 

1 . Direction may be given to opposite parties to return the eligible balance amount of Rs.1,10,000/-(One Lakh Ten Thousand only) with interest @ 12% per annum.

 

2 . Compensation Rs.25,000/- (Twenty Five Thousand only) may be allowed for deficiency in service and

 

3 . Allow Rs.5000/- (Five Thousand only) towards cost of the case.

 

(Cont....3)

 

-3-

 

Opposite parties entered appearance and prayed for written version. But it was not filed. Opposite parties had no representation. Hence the opposite parties were set exparte on 24/10/2019 and posted to 31/10/2019 for hearing.

 

On 14/11/2019, opposite parties filed petition to set aside ex-parte order and no objection raised by complainant. Opposite parties have also filed petition dated 31/10/2019 raising maintainability as preliminary issue. Petition for setting aside ex-parte order was allowed. But opposite parties have not filed written version. Following documents were marked from the side of the complainant.

 

1 . Ext.P1 – Copy of applications filed before Secretary, Arakkulam Grama Panchayath along with receipt thereof dated 28/04/2017 and 17/07/2017. Besides, copy of application dated 23/06/2014 addressed to Secretary of above Grama Panchayath without receipt thereof is also produced.

 

2 . Ext.P2 – True copy of order dated 16/07/2016 in complaint No.1309/2015 of Honourable Ombudsman for LSGI and written explanation filed by Secretary, Arakkulam Grama Panchayath in the above complaint before Honourable Ombudsman.

 

3 . Ext.P3 – Reply dated 28/09/2017 given by Secretary of above Grama Panchayath to the complainant in response to application dated 11/11/2016.

 

4 . Ext.P4 -Copy of various applications filed from 2009 to 2016 along with details of work before Secretary and A&E, Arakkulam Grama Panchayath (Total shown Rs.1,45,166/-)

 

5 . Ext.P5 – List of EMD/SD amount as per receipt and register stated to be obtained as per RTI application (Total Rs.1,26,724/-)

 

6 . Ext.P6 - Copy of register from 2004 to 2016 and auction, rent deposit, bidder's security deposit etc, from 2013 to 2018 issued by SPO and Secretary, Arakkulam Grama Panchayath under RTI Act.

 

(Cont....4)

-4-

 

7 . Ext.P7 – Receipts of EMD and SD remitted in 2005, 2006, 2008 and 2009 by the complainant issued by the opposite parties (11 nos) (Total Rs.39,150/-).

 

Complainant's evidence is over. Hence on 14/01/2020, case was posted for orders to 31/01/2020.

 

We have examined the contentions of the complainant and petition of maintainability filed by the opposite parties and perused the documents produced. Since the opposite parties have not filed written version or documents and no representation from the side of opposite parties, we have no other alternative but to dispose the case on the basis of materials available on records. It is seen as per Ext.P2 that Honourable Ombudsman for LSGI as per order dated 16/07/2016 directed the complainant to file fresh complaint along with documents before the Secretary Arakkulam Grama Panchayath within 2 months from the date of receipt of the order and within 3 months they have to take appropriate decision after hearing the party and conducting enquiry. But as per Ext.P3, opposite parties replied to the complainant in response to the compliant dated 11/11/2016 that he has filed application for refunding the EMD, SD amounts for the works done 2004, 2005 onwards. The above application was filed after the order of the Honourable Ombudsman. It is stated by the opposite parties that if the application is not filed and obtained refund of the EMD and security deposit, it will be accounted to the Panchayath fund. It is also stated that original receipt of the EMD, SD etc. have to be produced. Hence his complaint cannot be entertained. At the same time as per the written explanation filed by opposite parties before Honourable Ombudsman which is marked as Ext.P2, it is stated by the opposite parties that security deposit remitted for the works completed during 2004-05 cannot be refunded and that as per rules security amount cannot be refunded after 3 years from the period fixed. But opposite parties has not produced relevant provision before this Honourable Forum. At the same time it is stated that opposite parties has refunded security deposit of R.39,950/- on 28/12/2012 to the complainant for the claims filed by him. It is also stated that if the complainant produce sufficient documents and the report of the Asst. Engineer, there is no legal impediment for refunding the amount. Opposite parties have not established their case before this Forum with

(Cont....5)

 

-5-

 

supporting documents. Considering the contentions and documents of the complainant as well as Ext.P2, it is seen that opposite parties have not acted properly. Considering the documents produced, it is seen that contentions of complainant are having force.

 

Regarding the petition of maintainability, contentions of opposite parties are unsustainable. Panchayath has withheld the EMD/SD remitted by complainant towards works done by him. There is consumer relationship between complainant and opposite parties. Hence the contention of opposite parties is overruled.

 

Regarding the first prayer, we direct the opposite parties to verify the claims of the complainant along with necessary documents to be produced by him in proper manner for the refund of EMD, security deposit as prescribed by law and dispose of it within 1 month from the date of receipt of this order. If the complainant is eligible for refund, it has to be refunded within the above period as prescribed by law.

 

Regarding the prayer for compensation and allegation of deficiency in service, it is seen that even though the complainant has filed various applications before opposite parties, proper action has not been taken by them. In these circumstances there is fault on the part of opposite parties in disposing the matter in a proper manner. Hence it can be treated as deficiency in service. So we direct the first opposite party has to pay Rs.5000/- towards compensation.

 

Finally with regard to cost of the case, opposite parties are directed to pay Rs.1000/- towards the cost of the case.

 

Needless to say, opposite parties have to dispose the matter as prescribed by law and there must be proper reasoning for the decision taken.

 

 

(Cont....6)

 

-6-

 

If the claim is found to be allowable as per law and is not refunded within the above period, all the amounts would fetch simple interest @ 8% per annum from date of applications filed till full realization.

 

In the result, complaint is allowed to the above extent.

 

Pronounced in the Open Forum on this the 31^st day of January, 2020.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL P. , PRESIDENT -IN -CHARGE

 

 

 

 

 

 

 

 

 

 

 

(Cont....7)

 

-7-

 

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of applications filed before Secretary, Arakkulam Grama Panchayath

along with receipt thereof dated 28/04/2017 and 17/07/2017 and copy

of application dated 23/06/2014 without receipt.

Ext.P2 -True copy of order dated 16/07/2016 in complaint No.1309/2015 of

Honourable Ombudsman for LSGI and written explanation filed by

Secretary, Arakkulam Grama Panchayath in the above complaint before

Honourable Ombudsman.

Ext.P3 -Reply dated 28/09/2017 given by Secretary of above Grama Panchayath to

the complainant in response to application dated 11/11/2016.

Ext.P4 - Copy of various applications filed from 2009 to 2016 along with details of

work before Secretary and A&E, Arakkulam Grama Panchayath (Total

shown Rs.1,45,166/-)

Ext.P5- List of EMD/SD amount as per receipt and register stated to be obtained

as per RTI application (Total Rs.1,26,724/-)

Ext.P6-Copy of register from 2004 to 2016 and auction rent deposit bidder's

security deposit etc, from 2013 to 2018 issued by SPO and Secretary,

Arakkulam Grama Panchayath under RTI Act.

Ext.P7- Receipts of EMD and SD remitted 2005, 2006, 2008 and 2009 by the

complainant issued by the opposite parties (11 nos) (Total Rs.39,150/-).

 

On the side of the Opposite Party :

Nil.

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT