M.Gopalkrishnan vs Coonoor Consumer Protection Council

ORIGINAL Complaint No. 88 /1996 has been filed by 34 complainants against the opposite parties mentioned in the complaint alleging deficiency in service.

VERY briefly the facts of the case are that it is alleged that in order to provide shelter to some of the employees working in Hindustan Photo Films, a scheme was published/displayed on the Notice Board of the Company, in response to which they made initial contribution of Rs. 5,000 each and also paid different amounts after obtaining loan from the employer, yet when the house were not being given to the complainants, this complaint was filed seeking following reliefs: "(a) To refund to the complainants, except complainants one, eighteen, twenty seven, twenty eight and thirty, a total sum of Rs. 6,77,435 (Rs. six lakh seventy seven thousand four hundred and thirty five only) being the amount paid in excess by the complainants to the opposite parties, for which the construction work has not been completed till date, with interest at 24% per annum from 7.1.1992 till date of payment (b) To pay to each of the second to thirty-fourth complainants a sum of Rs. 1 lakh (Rupees one lakh only) for the injury suffered by each of them by way of mental agony due to the negligence of the opposite parties. (c) To pay to the complainants to thirty four, towards the loss incurred by way of total monthly rents paid by them and rental loss incurred to them at the rate of Rs. 18,217(Rupees eighteen thousand two hundred and seventeen only) per month from 7.1.1992 till date of payment. (d) To compensate to each of the complainants two to thirty four the loss that would be incurred due to escalation of costs to complete the unfinished construction of the houses at the existing rates. (e) To pay to the complainants a sum of Rs. 5,000 as costs."

F.A. No. 208/1995 and F.A. No. 223/1995 Six complainants along with Venkateshwara Housing Society filed a complaint before the State Commission alleging deficiency in service on the part of the respondents. Basis of the complaint were same as referred to in the complaint. The State Commission after hearing the parties, passed the order. Operative part of which reads as follows: "18. In the result the 4th and 5th OPs are directed to: 1. refund the amounts paid by the 3rd, 4th, 5th and 8th complainants (excluding the cost of the house sites purchased in their names) totalling to Rs. 2,44,000 along with interest at the rate of 24% from 7.1.1992 till the date of payment, which in our opinion will meet the escalation cost also. 2. To pay compensation at the rate of Rs. 5,000 each to the 3rd to 8th complainants. 3. The 3rd to 8th complainants shall be entitled to the costs of Rs. 2,000 each before this Commission. The costs will be paid by the 2nd to 5th opposite parties jointly and severally."

These two appeals have been filed by Mr. M. Gopalkrishnan and Mrs. V. Dakshinamurthy, who were OP Nos. 4 and 5 in the complaint filed before the State Commission and are opposite parties 5 and 6 in the complaint filed before us.

SINCE the cause of action is the same, we heard the learned Counsel for the parties by combining these all files for the simple reason that complainant before the State Commission and before us had filed separate complaints in view of the pecuniary jurisdiction worked out by the complainants. SINCE the cause of the action is the same and the fall out of one will have bearing on the other, we have decided to club these 3 cases together and heard them together. After perusing the material on record we found that after filing the complaint, certain number of complainants have moved into the houses. In order to ascertain the ground reality, we appointed the President, District Forum, Ooty as Local Commissioner and he had sent a report that out of 34 complainants in OP No. 88/1996, thirty two (32) of the complainants are living in built-up houses. Due to some oversight or omission, no report has been sent about the status of houses with regard to the 6 complainants who had filed complaints before the State Commission and who are before us as respondent in the two First Appeals, referred to earlier.

WE see the prayer clause in the complaint. It is clear that the complainants are looking for refund of amount irrespective of possible differences with regard to payments made, work completed/left incomplete, etc., amounts paid in excess, and compensation of Rs. 1 lakh for each of the complainants and also payment of monthly rent for the loss incurred by them which they had to pay for the accommodation which they would not pay had they got the proposed houses. After hearing the learned Counsel for the complainant in the Original Petition 88/1996 and both the parties in the two First Appeals (FA No. 208/1995 and 223/1995), one point comes out clear that .there are different houses ''for each of the complainants, i.e., 33 complainants as also the 6 respondents in the two FAs, making those in all, 39 individual entities. It is not disputed that many/most of them have moved into the built-up houses and living there. A point is made by the learned Counsel for the complainant that many complainants admittedly are living in the houses but most of them have invested funds of their own sources to complete the houses-left incomplete by the contractor. It is also stated that the details of the amount spent by the contractors, namely, Smt. K. Shanti on each of the house is not on record and also the factum that the amount spent by each of the complainant to get the house completed is also not on record. Keeping in view, the individual nature of the complaint(s), which is particular to each complainant, in our view, this complaint is misconceived for the simple reason that the complainant could not have been filed aggregating the individual grievance in the form of a common complaint to bring it within our jurisdiction.

SINCE admittedly each complainant has its own grievance which shall need scrutiny and evidence in each case in our view; we feel that the District Forum shall be the right Forum to hear the case relating to the point of deficiency(ies) in service. We are doing so in the interest of justice as they would not have to travel to Delhi to lead evidence and cross-examination of witness(es), especially when justice can be dispensed nearer to them.

IN the light of aforementioned circumstances, this complaint cannot be maintained hence this complaint is dismissed giving opportunity to the complainants as also the complainants before the State Commission in First Appeal No. 208/1995 and FA No. 223 / 1995 to file individual complaints before the District Forum along with the relevant material and praying for specific relief particular to their case with proof. The parties shall be at liberty to take all the pleas taken before us in the complaint or in the two Appeals mentioned in the cause-title, before the District Forum who shall give the parties opportunity to lead the evidence and also if necessary appoint Local Commissioner to ascertain the ground reality before passing the final order. IN view of the above all the three cases, i.e., OP No. 88 / 1996, FA No. 208 / 1995 and FA No. 223/1995 stand disposed of in above terms. The complainants shall file complaint within 3 months of the passing of this order and District Forum is requested to dispose of the case at the earliest as they relate to the period which is over 10 years ago.

The complainant shall move application for condonation of delay on the ground that the period spent before the State Commission and National Commission be exempted which shall be granted by the District Forum keeping in view the spirit of the judgment passed by the Honble Supreme Court in the case of Laxmi Engineering Works v. P.S.G. Industrial Institute II (1995) CPJ 1 (SC)=(1995) 3 SCC 583. Ordered accordingly.