Date of Filing: 03.01.2022

                                                  Date of Disposal: 29.04.2023

BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.

DATED THIS THE 29^th DAY OF APRIL 2023

CONSUMER COMPLAINT NO.01/2022         

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER                                          

Sri. V. Dalapathy

Aged about 66 years,

S/o Late Venkateshalu,

R/o at 108, 4^th Main Road,

(Party inperson)

The President,

Housing Building Co-operative

Society Limited,

Indian Telephone Industries

Limited, Dooravaninagar,

(Represented by Ms. Nayana Tara B.G, Advocate)

//JUDGEMENT//

BY SMT. REKHA SAYANNAVAR, MEMBER

01.   The present complaint is filed under section 35 of the Consumer Protection Act, 2019 with the prayer to direct the opposite party to allot 40 x 60 site of a sum of Rs.20,00,000/-[Rupees Twenty Lakhs] and to pay the compensation of Rs.20,00,000/- towards mental agony and to punish the opposite party in accordance with the provisions of this Act and to grant such other relief as this commission deems fit in the interest of justice and equity.

02.   Brief facts of the complaint:-

The complainant is a party in person. He is an Advocate by profession.  The complainant became the member of opposite party - ITI Employee’s Housing Co-Operative Society Limited, Dooravaninagar, Bangalore, in the year dated: 11.11.1978, receipt No. 0914 Membership amount paid was Rs.100/-. The said society called application in Chandra Layout.  The complainant had opted for 40 x 60 site and made the advance payment of Rs.3,000/- on 09.12.1980.  He also made an additional advance of Rs.2,780/- on 31.07.1981.  Further an additional advance of Rs.21,000/- was made on 21.04.2006. Again an additional advance of Rs.3,00,000/- paid by the complainant on 07.05.2015. 

03. The complainant personally visited and approached the opposite party and requested to allot 40 x 60 site as he is senior most member and also made the above payments.  The complainant made request letters to all the concerned government authorities.  The complainant did not get any proper response from the opposite party.  He was constrained to issue legal notice on 24.09.2017, the said legal notice was duly served upon the opposite party. There is no response from the opposite party side to the said legal notice.  The act of the opposite party caused mental agony and financial hardship.  He left with no other alternative to approach this Commission for the redressal of his grievance under the Consumer Protection Act, 2019 for the deficiency of service of opposite party.  Hence, this complaint.

04. The notice of this complaint was duly served upon the opposite party.  The counsel for the opposite party filed detailed version, partly denied the averments made by the complainant. The counsel for the opposite party contended that, the above complaint is barred by limitation and deserves to be dismissed on this ground alone.  The complainant had issued the legal notice on 24.09.2017 and this present complaint is filed in the year 2022 which is almost 05 years thereafter.  The complaint ought to have been filed within 02 years from the date of the cause of action has arisen as per Consumer Protection Act.  The counsel for the opposite party also contended that, the complainant claims to be the member of the opposite party society. The members of opposite party society are not consumers within the meaning of the Consumer Protection Act.  Further the complainant had already approached the Registrar of Co-operative society for the same grievance. The said proceeding is still pending.   The complainant also the Advocate representing himself is as the complainant in this complaint. He ought to have been contested in as party in-person or engaged another Advocate to represent this complaint. Hence there is no merit in the complaint. The same may kindly be dismissed with cost. 

05. The points that would arise for consideration are as under:-

(1) Whether there is deficiency of service and unfair trade practice on the part of the opposite party ?

(2) Whether the complainant is entitle for the 

      relief as sought ?

     (3) What order ?

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

POINT NO.1 & 2:-  Are in the Negative

POINT NO.3:-           As per the final order

for the following:-

REASONS

07. POINT NO.1 & 2:- To avoid the repetition of the facts of the complaint we have discussed both the points together.

08.   The complainant had filed this complaint for the alleged deficiency of service on the part of the opposite party.  The counsel for the opposite party had filed detailed version and partly denied the averments made by the complaint and prayed to dismiss the complaint.  

09. The point to be noted here is that, this Commission has observed that, the notice of this complaint was duly served upon the opposite party and the counsel for the opposite party had filed detailed version. Further on perusal of the order-sheet, it appears that, the complaint was posted for the evidence affidavit of the complainant on  06.04.2022.

10. Since from 13.05.2022 till this day the complainant and his counsel remained absent and did not let his affidavit evidence.  It is the burden on the complainant to prove his complaint through his affidavit evidence and documentary evidence as contemplated under Section 38(6) of Consumer Protection Act, 2019.  The complainant did not file any affidavit in the form of his evidence.

11. Section 38(9) of Consumer Protection Act 2019 contemplates that, the District Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, while trying a suit in respect of reception of evidence as affidavits.  Therefore, the complainant shall tender the sworn affidavit evidence by entering into witness box.  That has not been complied by the complainant in the present complaint in hand.  The complainant had failed to prove the burden casted on him.   Hence the complainant has failed to prove the deficiency of service and unfair trade practice as alleged.  Accordingly, we answer Point No.1 & 2 are in the negative.

12. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following:

                                        ORDER

        The complaint is dismissed. No order as to costs.

        Supply free copy of this order to both the parties and return the extra copies of the pleading and evidence to the parties.

        Applications pending, if any, stand disposed-off in terms of the aforesaid judgment.

(Dictated to the Stenographer, typed by her, corrected, revised and then pronounced in the open commission on 29^th Day of April 2023).

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

//ANNEXURE//

Witness examined for the complainant side:

• NIL -

Documents marked for the complainant side:

– NIL -

Witness examined for the opposite party side: 

- NIL –

Documents marked for the Opposite Party side:

- NIL -

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•