SARLA PANDEY vs Unit Trust of India

THIS is a complainant''s appeal against the order dated 29.8.1997 passed in Case No. 668/93 by the District Consumer Disputes Redressal Forum, Indore (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : the appellant applied for 5000 units of Rs. 10/- each of U.T.I. Mastergain, 92 Scheme and sent the amount of Rs. 50,000/- by cheque No. 388181 dated 18.5.1992 through respondent No. 2. The cheque was encashed by Unit Trust of India (UTI) on 17.61992.5000 units were to be delivered by 30.9.1992 but, the units were not received on or before the date fixed. The appellant made complaints and correspondence, ultimately filed the complaint before the District Forum on 10.5.1993. The Unit Certificates were then despatched on 4.5.1993 vide Postal Registration No. 1442 of Bombay GPO, which were received on 10.5.1993. In between the prices went down. Therefore, the complainant for the deficiency in service in not delivering the Mastergain (1992) unit certificates on or before 30.9.1992 claimed loss of Rs. 90,000/- and recurring loss of interest on the said amount. The complaint was resisted. It was submitted that the unit certificates were despatched on the given address of the addressee by post on 9.10.1992, but, were received back undelivered. Again on receipt of the complaint in March, 1993,5000 unit certificates were again despatched by post, which were received by the complainant on 10.5.1993. The opposite parties also enquired from the complainant whether the unit certificates have been received or not, if not to comply with the formalities so that the duplicate unit certificates be sent. The delay in delivery of units was caused due to Postal Authorities for that, the opposite parties are not responsible. The District Forum after appreciation of evidence dismissed the complaint holding that the unit certificates were despatched on 9.10.1992, but, unfortunately due to Postal Authorities the same were returned undelivered. On receipt of complaint, the unit certificates were again sent vide letter dated 4.5.1993, in the circumstances, there was no deficiency in service on the part of the opposite parties, hence, dismissed the complaint. We have heard Mr. K.K. Pandey, husband of the appellant and Mr. Narendra Saindane, Manager of the Bhopal Office of UTI and perused the record.

The defence of the opposite parties is that 5000 unit certificates of Mastergain, 1992 were despatched in postal bulk on 9.10.1992 containing units of various allottees, which has not been established by any evidence. On the other hand M/s. Datamatics stated in their letter dated 27.7.1993 that the unit certificates were despatched on 4.5.1993. Of this defence, the complainant filed a rejoinder stating that the unit certificates were not despatched on 9.10.1992 but only on 4.5.1993. Of this reply/rejoinder to the written statement an affidavit of Miss Neelam Uttamsingh, Assistant Legal Manager was filed dated 31.7.1996 of which para 1 reads thus : "The opposite parties reiterate the contents of their earlier reply and submit with reference to paras 6 and 7 of the same rejoinder in reply that the original certificates were despatched in May, 1993 as per the copy of the postal bulk enclosed with our earlier reply dated 7.4.1994. However with reference to the date of despatch given in the earlier reply as 9.10.1992 it is respectfully submitted that the same was a typing error which was left unerased due to oversight and the intention of the opposite party was not to lie and/or mislead the Hon''ble Forum as this Hon''ble Forum will appreciate from the copy of proof of despatch annexed thereto as Annexure "B" which bears the stamp of despatch date as of May, 1993."

From this it is clear that the units allotted to the complainant were never despatched prior to 4.5.1993 by post. Therefore, the question of despatch of unit certificate''s on 9.10.1992 by post which were returned undelivered by the Postal Authorities does not arise. Even for arguments sake, the unit certificates were despatched on the so-called date in the postal bulk, of that no envelope with the postal endorsement to demonstrate that has been filed. Therefore, it is clear that the delay in delivery of unit certificates was because of the deficiency in service on the part of the opposite parties.

THE complainant invested quite a good amount of Rs. 50,000/- which will certainly cause anxiety, worry, mental agony and sufferance, for that the complainant is certainly entitled to just compensation and not the amount as claimed as the complainant has not established the actual loss which the complainant suffered on account of non-delivery of the unit certificates. No material has been placed that after listing in the stock exchange when the price of the unit certificates was high, the complainant has entered into any sale transaction. THErefore, the loss to which the complainant would be entitled only to be the actual loss and not for any presumptive loss on account of fall in the price of the units subsequently on principles of lost opportunity or any other opportunity thereafter. See, the decision of the National Commission in case of Unit Trust of India & Ors. v. Kavita Gupta & Anr., I (1997) CPJ 37 (NC). In case of Unit Trust of India v. Smt. Bandana Roy Choudhury, III (1996) CPJ 126 (NC), the National Commission, for the units not delivered even after 18 months held the act of non-delivery as an act of deficiency under Section 14(1)(g) and observed in para 3 thus : "Master Gain, 1992 is a capital growth oriented unit scheme of the Unit Trust of India and these units are listed at stock- exchanges also. In a way, they are tradable and negotiable instruments whose price fluctuates from time-to-time according to the Net Assets Value (NAV). In this sense, these units provide, apart from the capital appreciation of the amount invested an easy liquidity to the investors, with a facility to realise cash, if required, at any point to time. However, it is difficult to quantify the loss as the N.A.V. keeps on fluctuating from time-to-time. The only other method to compensate the loss of any appreciation in the capital value of the units would be to give interest, on the amount invested, at a rate which is normally charged by the Banks for advances and loans or on long term deposits. The State Commission has awarded interest at the rate of 15% p.a., which, in our opinion, is quite just and reasonable. We however, see no justification for the award of Rs. 20,000/- as compensation in addition to interest. This appeal, therefore, is allowed to this extent and the order as regards the award of compensation of Rs. 20,000/- is set aside. The order as regards the payment of interest @ 15% p.a. is upheld."

IN the present case too, there was non- delivery of units for sufficiently long time, causing anxiety, worry, mental agony to the complainant, therefore, the complainant would be entitled to just compensation in the shape of interest at the rate of 15% per annum from 17.6.1992 the date of encashment of the cheque till 10.5.1993 and also further amount as compensation of Rs. 5,000/- for taking a false stand that the unit certificates were timely despatched on 10.5.1992 in the postal bulk and received back undelivered. Actually, the unit certificates were not despatched as is evident from the affidavit of Miss Neelam Uttamsingh. In the result, the appeal is allowed. The order of the District Forum is set aside with costs of Rs. 2,000/- throughout. The opposite parties are directed to pay the amount as indicated hereinabove within a period of two months from the date of receipt of certified copy of this order, failing which the interest shall be payable at the rate of 18% per annum instead of 15% per annum. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case. Appeal allowed. _________________