MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY vs RAMESH CHAND BIST

WE have heard Sri Uma Shanker, Advocate at some length in support of the appeal. Sri S.C. Awasthi, Advocate appeared on behalf of the complainant-respondent Ramesh Chand Bist.

THE order under challenge is of the District Forum in Case No. 48/93. THE order is of 17.6.1993 in which the finding recorded is that after the complainant obtained registration for a M.I.G. flat in Indira Puram Housing Scheme Phase I with the Mussoorie Dehradun Development Authority by paying the registration amount on 30.4.1990, no timely information was given to him about any further amount to be deposited by him. As such, he could not deposit the amount by 26.2.1991 and his name was not included in the draw held on 27.2.1991. THE complainant therefore has claimed that the entire amount of Rs. 11020/- deposited by him for the flat on 30.4.1990 should be refunded to him with interest but the appellant before us (Opposite Party before the District Forum), was insisting that it would refund only a sum of Rs. 8250/- after deducting 25 % amount deposited by the complainant, and that too, without any interest. The finding recorded by the District Forum is that no timely information was given to the complainant for depositing the further amount of Rs. 16125/- and that information about it reached the complainant only after the draw had taken place. This was a deficiency in service on the part of the appellant. The District Forum directed the appellant to refund the amount of Rs. 11,020/- with interest from 30.4.1990 till the date of payment and quantified the amount at Rs. 15,000/- payable by 15.7.1993.

The appellant says that the finding of deficiency on its part was not correct. Also, that according to the terms contained in the brochure only a sum of Rs. 8250/-was refundable without any interest thereon.

WE are unable to agree with Sri Uma Shanker. The District Forum has observed in its order under challenge that the failure of the inclusion of the name of the complainant in the first draw held on 27.2.1991 was due to lapse on the part of the employees of the appellant and there was no fault on the part of the complainant-respondent. WE have come to the same conclusion overselves because we feel, on the admitted position taken by Sri Uma Shanker, that the letter calling for the deposit of the further amount sent by registered post to the complainant at the address contained in the application form on 21.9.1992 was returned with the endorsement that the complainant was not traceable. He also says that it was not necessary for the appellant to try to serve the complainant again. In fact there was a duty cast on the complainant to find out himself about the matter. WE do not agree. The terms of the brochure say that only in the event of an applicant''s failure to deposit the amount in time will result in the deduction of 25% of the amount deposited by him when the refund is made. On the own showing of the appellant, the complainant was not called upon, in accordance with law, to deposit the balance amount. The failure on the part of the appellant to take any further steps to inform the complainant about the amount to be deposited by him and the date thereof after the return of the letter dated 5.9.1990 clearly amounts to deficiency on the part of the appellant. It has been urged by Sri Uma Shanker that the complaint had not been verified nor supported by an affidavit by the complainant.

WE find that this ground was not raised before the District Forum nor has it been taken in the memorandum of appeal. WE do not permit this ground to be urged as it was raised only in a miscellaneous application filed before the State Commission in December 1993 for summoning the record of the District Forum. No copy of this application was served in time on the complainant-respondent or his Counsel. Another ground urged before us is that the case involved complicated facts and on the evidence before it the District Forum was not justified in adjudicating on the question of deficiency. Apart from the fact that this aspect does not appear to have been raised before the District Forum we find that there was no difficulty in concluding on the material on record that there was deficiency on the part of the employees of the appellant in service in relation to the complainant. We agree with this finding of the District Forum. We dismiss the appeal and upheld the order of the District Forum. Parties are directed to bear their own costs.

A copy of the order may be made available to parties as per rules. Appeal dismissed.