Karnataka

Bangalore 4th Additional

CC/1082/2018

Smt Bharathi Singh, - Complainant(s)

Versus

The Managing Director, - Opp.Party(s)

V Prakash

30 Jul 2019

ORDER

Complaint Filed on:26.06.2018

Disposed On:30.07.2019

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

    DATED THIS THE 30^th JULY OF 2019

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

CC No.1082/2018

 

 

 

COMPLAINANT	Smt.Bharathi Singh, W/o Late Mr.Shamsher Singh, Aged about 60 years, R/# 18 Lakshmaiah Reddy Road, Halasuru, Bangalore-560 008.   Advocate – Sri.Bhakthavachala         V/s
OPPOSITE PARTy	The Managing Director, Rajiv Gandhi Rural Housing Development Corporation, Rajaji Nagar Industrial Area, Bangaluru – 560 044.   Advocate – Sumana Baliga M

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Party (herein after called as OP) under section 12 of the Consumer Protection Act, 1986.  The Complainant prays to allot the house forthwith/immediately to the complainant, to direct the OP to pay a sum of Rs.2,50,000/- as compensation/damages/interest and pass such other orders as this Forum deems fit in the interest of justice and equity.

 

2.      The brief facts of complaint is as under:

 

Complainant submitted that OP had advertised and called for application for allotment of house to the houseless people.  In response to the advertisement complainant applied for house and paid initial deposit of Rs.60,000/- on 16.10.2012 as per their advertisement the OP had assured that within two years the OP will complete the construction and allot the house but the OP has not kept his promise made in the advertisement.

 

The complainant further submitted that, she has written a letter dated 15.10.2014 to OP requesting to allot a house or compensate by way of damage, for which OP had given untenable reply dated 17.11.2014.  Subsequently the complainant got issued a legal notice dated 09.09.2016 calling upon the OP about the status of the construction but the OP did not bother to reply to the legal notice.  Hence complainant applied an RTI seeking for action taken report.  The OP negligently issued an untenable reply dated 19.04.2018.  This clearly shows how irresponsible in discharging their duties.  Complainant felt there is a deficiency in service and unfair trade practice on the part OP.  Left with no other option complainant filed this complaint for seeking reliefs.  

 

3.      After service of the notice from the office, the OP appeared before this Forum and filed objections.  The OP submitted that the Government of Karnataka launched a scheme called ‘Namma Mane’ an affordable housing scheme consisting of multistoried dwelling units in affordable price for the economically weaker sections of the society in semi urban and rural areas.  The entire work was expected to be completed within a period of 12 months from the date of contract.  The OP further submits that on 08.07.2011, OP published Rajiv Gandhi Rural Housing Corporation Allotment Rules for Affordable Housing Schemes “Nanna Mane”.  In response to the public notice complainant applied for the flat.  Complainant application was registered as Application No.20530.

 

OP further submitted that the OP has not allotted any flat to the complainant in pursuance of her application.  Hence she is not a consumer as per the definition of Section 2(d) of the Consumer Protection Act.  Further OP submitted that the tender for construction the flat was awarded to KPC project Ltd., Hyderabad for construction of 1564 flats.  When OP invited for tender for the allotment of 1564 flats, OP received 1453 applications and out of which 784 flats were already allotted.  For the remaining 780 flats OP has called for applications in response it had received 429 flats.  OP has called for applications in different phases depending upon completion of the flats and the area in which it is located.

 

OP further submitted that KCP project Ltd., to which the tender was awarded, did not complete the construction and took the matter to various courts and the one such dispute in this regard, is pending before the court in O.S No.169/2017.  That as many of the eligible persons had applied for the flats and due to litigation and time mentioned at the time of calling for application for likely completion of project, OP took following decision.

 

1. The opposite party decided to give the first preference to already allotted flats and with imposing fine to the contractor may extend the period of the construction is one year finally.

 

2. It was decided to not allot the flats till the completion of the extended one year period given to the KCP Project Ltd.

 

3. If the said KCP Project Ltd., complete project within the appropriate period, the remaining flats will allot by preference of the eligible applicants.

 

4. The Opposite party decided that, if the said KCP Project Ltd., failed to complete the project within the period of one year, the corporation will appoint new agency and the flats will allot the remaining applicants with condition of pay the refined cost (under rule 10 of the Rajiv Gandhi Rural Housing Corporation rule).

 

5. If the applicants were not interested to wait one year and to pay the refined cost, the said applicants having right to take back the initial deposit with interest and application.

 

That notice dated 10.06.2014 OP intimated to the petitioner that there will be a delay in completion of the project and offered to return application along with SB interest for the initial deposit deposited by the complainant after giving affidavit.  OP gave an option that complainant application will be considered if the complainant is willing to wait for an extended period of one year for the allotment process and if she is agrees to pay the additional cost to be incurred due to above mentioned reason.  In the said intimation it was clearly stated that if the applicant is not interested to wait or/and unable to pay the additional cost, then Corporation will refund the initial deposit with interest after written request along with the affidavit.

 

The OP further submitted that the complainant neither approached the OP for return of the initial deposit along with affidavit or affidavit intimating OP that they are willing to wait for one year and showing willingness that they will pay additional charges which will be incurred on them.  Hence there is no deficiency on the part of OP and prayed for dismissal of the complaint in the interest of justice.  

 

4. In the course of enquiry into the complaint, the complainant and the OP has filed their affidavit reproducing what they have stated in their respective complaint and objection.  Complainant and OP have filed written arguments.  Both sides have produced documents which were marked.  We have heard the arguments of both sides and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration:

 

 

1)	Whether the Complainant has proved that there is deficiency in service on the part of OP, if so, whether she entitled for the relief sought for?
2)	What order?

 

        6. Our findings on the above points are as under:

 

 

Point No.1:-	In the Affirmative
Point No.2:-	As per the order below

 

REASONS

 

 

7. Point No.1 On perusal of the pleadings and documents of both parties, it is an admitted fact that, OP called for an application for allotment of flat for the houseless people as per Ex-B1 dated 08.07.2011 through public notice Rajiv Gandhi Rural Housing Corporation Allotment Rules for Affordable Housing Schemes “NANNA MANE”.  The complainant had applied for flat by paying initial deposit amount of Rs.60,000/- on 16.10.2012. 

 

8. The preliminary objection raised by the OP is that, the complainant is not a consumer as per definition U/s.2 (1) (d) of Consumer Protection Act, 1986.  Sec.2 (1) (d) of the Consumer Protection Act, 1986 reads as here under.

 

(d) “Consumer” means any person who—

 

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose).

 

(Explanation.—For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;)

 

Admittedly the OP had called for an application for allotment of Flat through public notice dated 08.07.2011.  Complainant had applied for the Flat by paying an initial deposit amount of Rs.60,000/- on 16.10.2012.  The OP had received the same.  Hence complainant is a Consumer under Sec.2 (1) (d) of the Consumer Protection Act.  Hence the complaint is maintainable before this Forum. 

 

9. The main grievance of the complainant is that, the OP had assured that they will complete the construction within two years and allot the Flat.  Till today OP has not allotted the flat in favour of the complainant. 

 

10. Admittedly the OP had called an application for allotment of house the OP has not allotted the flat to the complainant due to some technical problem.  Hence the OP has issued a letter dated 10.06.2014 as per Ex-B3/Ex-A2.  The letter reads as hereunder:

 

“¤UÀªÀÄzÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ ¥ÀæPÁgÀ vÁªÀÅ DgÀA©üPÀ oÉêÀt gÀÆ.60000/- ªÉÆvÀÛªÀ£ÀÄß ºÀÆr M§â CfðzÁgÀgÁVgÀĪÀÅzÀjAzÀ ªÀÄAqÀ½AiÀÄ ¤AiÀÄAvÀæt «ÄÃjzÀ C¤ªÁAiÀÄð PÁgÀtUÀ½AzÁV ¸ÀzÀj AiÉÆÃd£ÉAiÀÄÄ ¥ÀÆtðUÉƽ¸À®Ä vÀqÀªÁVzÉ JAzÀÄ w½¸À®Ä «µÁ¢¸ÀÄvÉÛêÉ.  ªÉÄð£À CA±ÀUÀ¼À£ÀÄß vÀªÀÄä UÀªÀÄ£ÀPÉÌ vÀgÀ§AiÀĸÀÄvÁÛ; CfðzÁgÀgÁzÀ ¤ÃªÀÅ ºÀAaPÉ ¥ÀæQæAiÉÄUÉ ¸ÀĪÀiÁgÀÄ MAzÀÄ ªÀµÀðzÀªÀgÉUÉ ¤jÃQë¸À®Ä ºÁUÀÆ F ªÉÄÃ¯É w½¹zÀ PÁgÀtUÀ½AzÀ ¥ÀjµÀÌøvÀ ªÉZÀѪÀ£ÀÄß ¥ÁªÀw¸À®Ä ¸ÀªÀÄäw¹zÀgÉ, ºÀAaPÉ ¸ÀªÀÄAiÀÄzÀ°è DzÀåvÉ ªÉÄÃgÉUÉ ¤AiÀĪÀiÁ£ÀĸÁgÀ ¥ÀjUÀt¸À¯ÁUÀĪÀÅzÀÄ.  MAzÀÄ ªÀµÀð ¤jÃQë¸À®Ä ºÁUÀÆ ¥ÀjµÀÌøvÀ ªÉZÀѪÀ£ÀÄß ¥ÁªÀw¸À®Ä ¸ÁzsÀå«®è¢zÀÝgÉ, C¦üqÀ«mï ¤Ãr ªÀÄ£À« ¸À°è¹zÀÝ°è, DgÀA©üPÀ oÉêÀt ºÁUÀÄ §rØ (SB Interest) AiÉÆA¢UÉ ºÀt ªÀÄgÀÄ¥ÁªÀw¸À¯ÁUÀĪÀÅzÀÄ”.

 

11. As per the letter the complainant has to wait for one year and also has to pay additional extra cost incurred.  If she is not willing to wait or to pay extra incurred amount to take back the initial deposit of Rs.60,000/- along with S.B interest.  Complainant has not visited the OP office along with affidavit to take back the initial deposit along with interest but the complainant has waited nearly 4 years after issuance of notice dated 10.06.2014.

 

12. Admittedly the OP has accepted that they would return the advance amount of Rs.60,000/- along with S.B interest.  It is also admitted that due to technical reasons the project could not be completed.  Further the OP gave an option to the complainant that, if the complainant wait for one year and pay the enhanced value they would make the allotment on priority basis.  However the complainant has approached this Forum for deficiency of service.  Since the OP has accepted that there is a delay on their part due to unavoidable circumstances the project could not be completed in time and since they are ready to give away the deposit advance amount paid.  We deem it proper to hold that there is a deficiency of service on the part of OP.  Due to the conduct of OP, the complainant made suffer since from 2012.  Hence it is just and proper to direct the OP to pay compensation of Rs.30,000/-.  Hence OP is directed to refund the advance deposit amount of Rs.60,000/- along with S.B interest, compensation of Rs.30,000/- and litigation cost of Rs.20,000/- to the complainant.  Accordingly we answered point No.1 in the affirmative.

 

          13. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:         

              

 

 

 

 

  O R D E R

 

 

The complaint filed by the complainant is allowed in part.  OP is directed to refund the advance deposit amount of Rs.60,000/- along with S.B interest from the date of deposit till the date of realization.  Further OP is directed to pay compensation of Rs.30,000/- together with litigation cost of Rs.20,000/- to the complainant.

 

 This order is to be complied by the OP within 45 days from the date of receipt of this order.

 

 

          Supply free copy of this order to both parties. 

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 30^th day of July 2019)

 

 

 

(ROOPA.N.R)     MEMBER

(PRATHIBHA.R.K)  PRESIDENT

           

            

 
                          

                      

Witnesses examined on behalf of the complainant/s by way of affidavit:

 

Smt.Bharathi Singh.

 

Copies of documents produced on behalf of complainant/s:

 

Ex-A1	Letter given by the complainant dated 10.10.2014.
Ex-A2	Untenable reply given by OP dated 17.11.2014.
Ex-A3	Legal notice issued by complainant dated 09.09.2016.
Ex-A4	RTI application made by the complainant dated 04.04.2018.
Ex-A5	Copy of IPO and postal AD card.
Ex-A6	Untenable reply given by the OP dated 19.04.2018.

 

Witnesses examined on behalf of the OP/s by way of affidavit:

 

Sri.Parasuramegowda, who being the General Manager (SD) of OP Housing Corporation Ltd.  

 

Copies of Documents produced on behalf of OP:

 

Ex-B1	Copy of paper cutting publishing Rajiv Gandhi Rural Housing Corporation Allotment Rules for Affordable Housing Schemes “NAMMA MANE”
	Typed copy of document-1
Ex-B2	Copy of extract of relevant portion of the ledger extract for filing the application.
	Typed copy of document-2
Ex-B3	Copy of notice/intimation dated 10.06.2014.
Ex-B4	Copy of authorization letter dated 19.12.2018.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

Vln*