Vol. IV LIKHA RAM BUDANIYA v.

CENTRAL HIMALAYAN LAND DEVELOPMENT 71

same is called for. The Appeal deserves to be Cases referred:

dismissed. 1. Mehnga Singh Khera and Ors. v. Unitech Ltd., I
(2020) CPJ 93 (NC). (Relied) [Para 26]
12. In the result, we pass the following:
2. Narinder Kumar Bariwal and Ors. v. Ramprastha
ORDER Promoters and Developers Pvt. Ltd. And Ors, CC-
1122/2018, decided on 1.11.2019 (NC). (Relied)
The Appeal is dismissed with no [Para 32]
Order as to costs.
3. Aashish Oberai v. Emaar MGF Land Limited, I
Appeal dismissed. (2017) CPJ 17 (NC). (Relied) [Para 33]
4. J.J. Merchant v. Shrinath Chaturvedi, III (2002) CPJ
8 (SC)=IV (2002) SLT 714. (Relied) [Para 37]
IV (2024) CPJ 71 (Del.)
5. Arifur Rahman Khan and Ors. v. DLF Southern
DELHI STATE CONSUMER DISPUTES Homes Pvt. Ltd. and Ors., IV (2020) CPJ 10
REDRESSAL COMMISSION, NEW DELHI (SC)=VI (2020) SLT 50. (Relied) [Para 40]
6. Aadil Shekh v. Central Himalayan Land
Ms. Pinki, Member (Judicial) & Ms. Bimla Kumari,
Development Co. Ltd., First Appeal No. A/12/
Member (Female) 184, decided on 25.2.2016 (Utta. SCDRC). (Relied)
LIKHA RAM BUDANIYA —Complainant [Para 43]
Counsel for the parties:
versus
For the Complainant: Ms. Girija Wadhwa, Advocate.
CENTRAL HIMALAYAN LAND For the Opposite Party: Mr. Praveen Rao, Advocate.
DEVELOPMENT —Opposite Party
JUDGMENT
Complaint Case No. 333/2009—Decided on 2.9.2024
Ms. Bimla Kumari, Member (Female)—
Consumer Protection Act, 1986 —
Briefly stated the facts of the present case are that
Sections 2(1)(g), 14(1)(d), 17(1)(a)(i) —
the Opposite Party is a developer company, which
Housing — Allotment of flat — Delay in
floated a scheme namely “Cloud 9 Hill Town”
delivery of possession — Deficiency in
Scheme 2005 for allotment of residential plots in
service — Total sale consideration of plot was
Nainital, Uttarakhand. The Complainant applied
of Rs.14,45,000 — Complainant had paid a
for a residential plot in the aforesaid scheme of the
total sum of Rs.15,75,050 to Opposite Party —
Opposite Party. The Opposite Party issued
Possession of plot was to be offered within 2
allotment letter dated 28.6.2005 in favour of the
years of the completion of development
Complainant vide which a plot bearing no. BE 05/
works — Physical possession of the plot on
01 admeasuring 500 sq. yards @ Rs.2890 per sq.
paper was to be given by opposite party after
yards was allotted to the Complainant and the
clearance of dues and execution of sale deed
total sale consideration of the plot was of
— No development work was carried out and
Rs.14,45,000. As per Clause no. 7 of allotment
possession of plot has not been handed over
letter, the possession of the plot was to be offered
to him till date — Since, the opposite party
on completion of development works in the area
did not develop the plot and did not give
within two years. Between the period from
possession of plot within 2 years as per
28.6.2005 to 10.8.2007, the Complainant had paid
allotment letter — There is ‘deficiency in
a total sum of Rs.15,75,050 to the Opposite Party,
service’ on the part of opposite party —
as and when the same was demanded by the
Opposite party is directed to refund to Rs.
Opposite Party.
15,75,050 along with interest @ 4% p.a. — Rs.
1,00,000 awarded towards mental agony and 2. The Opposite Party vide its letter dated
harassment — Rs. 50,000 awarded as 19.1.2006 informed the Complainant that the
litigation costs. [Paras 1, 41, 42, 46, 48, 49] Revenue Law applicable in that state envisaged a
Result : Complaint allowed.
higher rate of stamp duty on registration of sale
deeds, in case the same were accomplished, post
329
72 CONSUMER PROTECTION JUDGMENTS (Oct.) 2024

completion of development work in the area and MoU, the Complaint for the first time came to know
in order to save a substantial amount to the allottees that the total cost of plot was Rs.14,45,000 out of
like the Complainant, the Opposite Party which a sum of Rs.3,36,000 was towards basic cost
unilaterally decided to get the sale deed executed of raw land and the balance sum of Rs.11,09,000
before completion of development of work in the was towards the cost of infrastructure and
area. development of land. The Opposite Party vide
3. Thereafter, the Opposite Party vide another letter dated 25.9.2007 permitted the Complainant
letter dated 9.10.2006 informed the Complainant to sell his plot in two parts by duly paying transfer
that a special camp was being held in Delhi by charges @ Rs.50 per sq. yard and Rs.70,000 as
Nainital Revenue Department for execution of additional services and administrative charges.
sale deed. The Opposite Party vide letter dated 6. It is the further case of Complainant that
15.11.2006 further informed the Complainant that as per the Allotment Letter dated 28.6.2005, the
with regard to the queries raised by customers development work was to be accomplished by
regarding construction of house on the site, still 27.6.2007. In the third week of December, 2007, he
under development, it had been decided by telephonically enquired from the Opposite Party
Opposite Party to allow the same, subject to the as to what was the status of the development work.
allottees seeking permission from local authorities. In reply, the Opposite Party stated that the same
However, terms contained in the Allotment Letter would be accomplished very soon. Since, the
dated 28.6.2005 reflects that no permission was Complainant had not received any communication
required from the said authority as the land fell from the Opposite Party till January 2008, he sent
outside its jurisdiction. representation to the Governor of State of
4. Thereafter, the Opposite Party vide Uttarakhand. The ADC of the Governor of State of
communication dated 2.12.2006 & 16.12.2006 Uttarakhand vide letter dated 8.2.2008 informed
further informed the Complainant that the local the Complainant to address his grievance to the
authority had forbidden the registration of sale ADC, Nainital, Uttarakhand. Thus, the
deeds without the presence of buyer/allottee and Complainant forwarded his grievance to ADC,
the Complainant was required to be present in the Nainital, Uttarakhand on 24.3.2008. Having
office of the Sub-Registrar, Nainital. Thus, the waited patiently for an effective redressal from
Complainant visited the office of Sub-Registrar, Government Authorities for a reasonable period of
Nainital on 14.3.2007, wherein the sale deed a year, the Complainant personally visited the
(Annexure C-10) was executed in favour of the township of the Opposite Party on 28.9.2009,
Complainant. But, the Complainant was shocked wherein he was shocked to see that even after
to realize that the sale deed of 500 sq. yards plot passage of 2½ years from the date of expiry of
was executed for a mere declared value of development work, the development of the area
Rs.3,36,000 against which he had already paid a was still lacking. On the same day, the Complainant
total amount of Rs.15,75,050. Thereafter, the took photographs (Annexure C-17) of the site.
Opposite Party vide letter dated 11.7.2007 informed 7. Thus, having left with no other option, the
the Complainant that it was sending the statement Complainant filed the present complaint alleging
of account of plot to the Complainant, as per which ‘deficiency of service’ and unfair trade practice on
the Complainant had paid an excess amount of the part of the Opposite Party.
Rs.2528.77 towards the purchase of plot. 8. The Opposite Party filed the written
5. It is the case of Complainant that on statement, wherein it is submitted that that the
14.9.2007, he visited the office of Opposite Party, complaint filed by the complainant is devoid of
wherein he submitted the application for any merits. The complainant has not approached
permission to sell his plot in parts. However, the this commission with clean hands and
Opposite Party forced him to sign an undated intentionally and deliberately concealed many
Memorandum of Understanding. On perusal of facts from the court. The township is fully equipped
330
Vol. IV LIKHA RAM BUDANIYA v. CENTRAL HIMALAYAN LAND DEVELOPMENT 73

with metallic roads connecting each and every harassment, pain and mental
plot to the main road and highway. Basic amenities agony to the tune of Rs. 7 Lac (@
of water and electricity have been provided to each of Rs. 1 Lac per year) for delayed
and every owner, who has constructed the villa possession from the year 2007 till
and is staying at the township. There is provision date).
of 24 hours power backup and huge gensets have (iii) to pay to the complainant
been installed for such purpose. litigation charges to the tune of
9. It is the further case of the opposite party Rs.55,000.”
that the complaint filed by the complainant is not 15. Thereafter, the Opposite Party filed the
maintainable as the same is barred by limitation. First Appeal No. 302/2015 before the Hon ble
After execution of the Memorandum of National Consumer Disputes Redressal
Understanding between the parties on 14th Commission and challenged the order dated
September 2007, the complainant wanted to sell 27.1.2015 passed by this Commission.
the land, which was not permissible but the
opposite party allowed the complainant to sell the 16. Thereafter, vide its order dated 27.4.2016,
land by bifurcating the same subject to payment of the Hon’ble National Consumer Disputes
usual and prevalent charges, which were paid by Redressal Commission set aside the order dated
the complaint. The complainant has not raised 27.1.2015 passed by this Commission and directed
any construction over the land, as he has no to decide the complaint afresh after giving an
intention of residing in the township. The opportunity of being heard to the parties. The
complaint is not maintainable as there are mixed relevant portion of the order dated 27.4.2016
and complicated questions of law, which require passed by Hon ble NCDRC reads as under:
detailed examination and cross-examination of “Learned State Commission observed
parties. that as no development has taken
10. Complainant had filed evidence by way place at the site so far and possession
of his affidavit. has not been handed over to the
complainant, complaint is within
11. The Opposite Party had also filed the limitation. It was further observed that
evidence by way of affidavit of Manager (Legal) sale deed bears signature of
namely Mr. Deepak Baweja of the Opposite Party. complainant only but it does not bears
12. Complainant filed the written arguments signatures of opposite party/seller. It
on 6.8.2013. was, further, observed that opposite
13. However, Opposite Party did not file party wanted to play fraud with
written arguments despite several opportunities revenue authorities by showing
granted vide orders dated 22.10.2013, 11.3.2014, consideration of Rs.3,36,000 against
12.8.2014 & 11.11.2014. received amount of Rs.15,75,050 and
so allowed complaint as mentioned
14. After hearing Ld Counsel for parties and above.
going through the material on record, Ld
Predecessor allowed the complaint vide order dated Perusal of certified copy of sale deed of
27.1.2015 with the following directions: plot for Rs.3,36,000 reveals that it
bears signatures of complainant as
“(i) to refund the amount of well opposite party and sale deed has
Rs.15,75,050 along with interest been registered by registering
@ 15% p.a. from the date of authority. In such circumstances,
deposit till the date of its observation of Learned State
realisation. Commission that sale deed dated
(ii) to pay compensation for 17.3.2007 is forged and fabricated
331
74 CONSUMER PROTECTION JUDGMENTS (Oct.) 2024

document does not hold good. On the 18. On 7.12.2016, the Opposite Party moved
contrary, photocopy of sale deed an application under Section 195 (b)(i) read with
produced by complainant bears Section 340 CrPC for initiating proceedings against
signatures of complainant at two the Complainant for giving false evidence before
places on every page and he has also this Commission. However, Opposite Party did
inserted dated “14.9.2007” whereas not press the said application and the said
sale deed was got registered on application was dismissed vide order dated
17.3.2007 which makes it crystal clear 15.4.2024.
that complainant just to deceive 19. Thereafter, the opposite party filed the
consumer fora has put another written arguments on 18.12.2018.
signatures alongwith wrong date on
photocopy of sale deed and no 20. We have gone through the material on
reliance can be placed on these record.
photocopies. As per Memorandum of 21. We have heard arguments from Ld.
Undertaking dated 14.9.2007, opposite counsel for the parties.
party was to receive Rs.11,09,000
22. First of all, we would like to deal with the
towards cost of infrastructure and
preliminary objections of the opposite party.
development cost as enumerated in
Clause 23 of the brochure which 23. Whether the complaint is barred by
included road, water lines, drainage, limitation.
etc. There may be evasion of stamp 24. It is the case of the opposite party that the
duty which, apparently, has been done brochure of the project of the opposite party was
by both the parties and only on this published in the year 2005. The application form
basis, complaint could not have been was filled by the complainant on 5.5.2005. The
allowed without observing whether land was allotted to him on 28.6.2005. The sale
requisite infrastructure and deed between the parties was executed in March
development work has been carried 2007. The Memorandum Of Understanding was
out or not pertaining to purchased executed between the parties on 14.9.2007 but the
plot. In the absence of any such complaint has been filed by the complainant in
observation, complaint could not have December 2009 that is much after the expiry of 2
been allowed and direction could not years from the date of execution of all the aforesaid
have been given to opposite party to documents.
refund amount alongwith huge
25. To resolve this issue we would like to
compensation of Rs.7 lakhs and
refer, Section 24A of the Consumer Protection Act,
appeal is to be allowed and matter is
1986 which is reproduced herein for ready reference:
to be remanded back to Learned State
Commission to decide complaint (1) The District Forum, the State
afresh after giving an opportunity of Commission or the National
being heard to the parties.” Commission shall not admit a
complaint unless it is filed within
17. After the remand back of case, the matter
two years from the date on which the
was listed before this Commission and the
cause of action has arisen.
Complainant moved an application for placing on
record certain documents on record. However, the (2) Notwithstanding anything
said application was dismissed by Learned contained in Sub-section(1), a
Predecessors vide order dated 12.9.2017, as the complaint may be entertained
documents sought to be placed on record by the after the period specified in Sub-
Complainant were not relevant. section (1), if the complainant

332
Vol. IV LIKHA RAM BUDANIYA v. CENTRAL HIMALAYAN LAND DEVELOPMENT 75

satisfies the District Forum, the complainant vide letter dated 8.2.2008 (P 57) to
State Commission or the address his grievance to ADC, Nainital. Thereafter,
National Commission, as the the complainant, acting upon the letter of ADC to
case may be, that he had Governor of Uttarakhand, forwarded his complete
sufficient cause for not filing the grievance to the ADC, Nainital Uttarakhand vide
complaint within such period: letter dated 24th March 2008 (page 58) and kept on
Provided that no such complaint waiting for an effective redressal of his grievances
shall be entertained unless the from government authorities. He also personally
National Commission, the State visited the project of the opposite party on 28.9.2009
Commission or the District but was shocked to see that most of the facilities
Forum, as the case may be, promised to him were lacking, even after a passage
records its reasons for condoning of two and half years, after the expiry of the promised
such delay. period of 2 years, as per letter of allotment. Since,
the possession of the plot was to be given to the
26. Further, we would also like to refer the complainant within two years after completion of
judgment of Hon ble National Commission In development work as per allotment letter and the
Mehnga Singh Khera and Ors. v. Unitech Ltd., I possession has still not been given to the
(2020) CPJ 93 (NC), wherein it has been held as complainant by the opposite party, we are of the
under: considered view that cause of action is still
“It is a settled legal propossession that continuing in favour of the complainant and the
failure to give possession of flat is complaint filed by the complainant is not barred
continuous wrong and constitutes a by limitation.
recurrent cause of action and as long as the 29. Hence, this plea of the opposite party is
possession is not delivered to the buyers, answered in negative.
they have every cause, grievance and right
30. Whether the complainant purchased the
to approach the consumer courts.”
plot for commercial purpose.
27. Now, coming to the facts of the present
31. It is the case of the opposite party that after
case, it is worth noting that plot number BE-05/01
the execution of Memorandum Of Understanding
was allotted in favour of the complainant by the
on 14.9.2007 the complainant wrote a letter (page
opposite party vide allotment letter dated 28.6.2005
61) of the written statement to the opposite party
(P 33) and as per Clause 7 of the said allotment
and expressed his desire to sell the plot into 2/3
letter, the possession of the plot was to be offered
parts. Although, the bifurcation of the plot was not
to the complainant on the completion of
encouraged but in order to accommodate the
development work within 2 years.
complainant, the opposite party granted
28. It is the case of the complainant that he permission to the complainant to sell the plot in 2
telephonically made queries in Dec 2007 from the parts subject to payment of transfer charges and
opposite party regarding the status of the other administrative charges, which were paid by
development work of the project and it was the complainant. This act of complainant clearly
informed to him that the development work would shows that he did not want to enjoy his life in the
be accomplished very soon. But, he received no township of opposite party and purchased the
communication regarding the completion of plot for commercial purpose.
development work and delivery of possession till 32. To deal with this issue we would like to
the month of January 2008. He has further deposed refer the judgment of Hon ble National
that feeling aggrieved by the conduct of the opposite Commission in Narinder Kumar Bariwal and Ors.
party he made a representation to the Governor of v. Ramprastha Promoters and Developers Pvt.
Uttarakhand and acting upon his representation, Ltd. And Ors., CC-1122/2018 decided on 1.11.2019,
the ADC to Governor of Uttarakhand informed the wherein it was inter-alia held as under:
333
76 CONSUMER PROTECTION JUDGMENTS (Oct.) 2024

“The contention of the Learned circumstances for the complainant to take a

Counsel that the said Apartments were decision to sell the plot and in the absence of any
purchased for commercial purpose is evidence on record it cannot be presumed that the
not supported by any documentary plot in question was purchased by the complainant
evidence as the onus shifts to the for ‘commercial purpose’.
Opposite Parties to establish that the 35. Hence, this contention of the opposite
Complainants have purchased the party is also answered in negative.
same to indulge in „purchase and sale
of flats as was held by this 36. Whether the case involves complicated
Commission in Kavita Ahuja v. Shipra question of facts and laws.
Estates, I (2016) CPJ 31. The Opposite 37. To deal with this issue, we would like to
Parties failed to discharge their onus refer the judgment in J.J. Merchant v. Shrinath
and we hence hold that the Chaturvedi, III (2002) CPJ 8 (SC)=IV (2002) SLT
Complainants are ‘Consumers’ as 714=(2002) 6 SCC 635 wherein it was inter alia held
defined under Section 2(I)(d) of the by the Hon’ble Supreme Court as under:-
Act.”
“Under the Act the National
33. Further in Aashish Oberai v. Emaar MGF Commission is required to be headed
Land Limited, I (2017) CPJ 17(NC) it was inter-alia by a retired Judge of this court and the
held as under: State Commission is required to be
“A person cannot be said to have headed by a retired High Court Judge.
purchased a house for a commercial They are competent to decide
purpose only by proving that he owns complicated issues of law or facts.
or had purchased more than one Hence, it would not be proper to hold
houses or plots. In a given case, that in cases where negligence of
separate houses may be purchased experts is alleged, consumers should
by a person for the individual use of be directed to approach the Civil
his family members. ‘A’ person Court.
owning a house in a city ‘A’ may also It was further held that merely because
purchase a house in city ‘B’ for the it is mentioned that the Commission or
purpose of staying in that house Forum is required to have summary
during short visits to that city. ‘A’ trial would hardly be a ground for
person may buy two or three houses if directing consumer to approach the
the requirement of his family cannot be Civil Court. For the trial to be just and
met in one house. Therefore, it would reasonable, long-drawn delayed
not be correct to say that in every case procedure, giving ample opportunity
where a person owns more than one to the litigant to harass the aggrieved
house, the acquisition of the house is other side, is not necessary. It should
for a commercial purpose”. be kept in mind that the legislature has
34. In the present case, the opposite party has provided alternative, efficacious,
not placed on record any material to show that the simple, inexpensive and speedy
complainant was indulged in the business of remedy to the consumers and that
purchasing and selling the plots for commercial should not be curtailed on such
purpose. So far as, the letter dated 14.9.2007, ground. It would also be a totally
allegedly written by the complainant to the wrong assumption that because
opposite party is concerned, we are of the summary trial is provided, justice
considered view that there may be compelling cannot be done when some questions
of facts are required to be dealt with or
334
Vol. IV LIKHA RAM BUDANIYA v. CENTRAL HIMALAYAN LAND DEVELOPMENT 77

decided. The Act provides sufficient or inadequacy in the nature and manner of
safeguards.” performance which has been undertaken to
38. In the present case, the complainant has be performed in pursuance of the contract
filed the complaint for the refund of the amount of in relation to the service. The expression
Rs.15,75,050 along with interest, compensation ‘service’ in Section 2(1)(0) means a service
and litigation costs as possession of the plot has of any description which is made available
not been handed over by the opposite party within to potential users including the provision
two years, after the completion of development of facilities in connection with (among
work as per allotment letter. In these circumstances, other things) housing construction. Under
we are of the considered view that no complicated Section 14(1)(e), the jurisdiction of the
questions of facts and law are involved in the consumer forum extends to directing
present case. It is simple dispute between builder the opposite party inter alia to remove
and buyer for which no detailed examination and the deficiency in the service in
cross examination of parties is required and this question. Intrinsic to the jurisdiction
issue can easily be decided by this commission by which has been conferred to direct the
way of summary trial. Hence, this contention of the removal of a deficiency in service is the
opposite party is also answered in negative. provision of compensation as a
measure of restitution to a flat buyer
39. The last question that arises for for the delay which has been
consideration is whether there is ‘deficiency in occasioned by the developer beyond
service’ on the part of the opposite party. the period within which possession
40. To deal with this issue, we would like to was to be handed over to the
refer the dicta of Hon ble Supreme Court in Arifur purchaser. Flat purchasers suffer agony
Rahman Khan and Ors. v. DLF Southern Homes and harassment, as a result of the default
Pvt. Ltd. and Ors., IV (2020) CPJ 10 (SC)=VI (2020) of the developer Flat purchasers make
SLT 50=2020 (3) RCR (Civil) 544, wherein it has legitimate assessments in regard to the
been discussed as follows: future course of their lives based on the
flat which has been purchased being
“23.......The expression deficiency of
available for use and occupation. These
services is defined in Section 2(1)(g) of
legitimate expectations are belied when the
the CP Act 1986 as:
developer as in the present case is guilty of
(g) “deficiency” means any fault, a delay of years in the fulfillment of a
imperfection. shortcoming or contractual obligation.
inadequacy in the quality, nature
41. It is the case of complainant that
and manner of performance
possession of plot number BE-05/01 in the project
which is required to be
of opposite party namely “Cloud 9 Hill Town”
maintained by or under any law
Scheme 2005 under the scheme CN/02/05 was to
for the time being in force or has
be handed over by the opposite party within 2
been undertaken to be performed
years of the completion of development works in
by a person in pursuance of a
the project as per allotment letter dated 28.6.2005
contract or otherwise in relation
(C 3). He has also stated that the sale deed of the un-
to any service.
developed plot (C 10) was executed between the
24. A failure of the developer to comply parties on 14.3.2007 in view of the letter (C-5) of the
with the contractual obligation to provide opposite party dated 19.1.2006 (Page 36 of the
the flat to a flat purchaser within a complaint) in order to save stamp duty because
contractually stipulated period amounts to higher rate of stamp duty was to be paid on a fully
a deficiency There is a fault, shortcoming developed plot as per Revenue Law of the State.

335
78 CONSUMER PROTECTION JUDGMENTS (Oct.) 2024

Further, as per letter dated 15.11.2006 (C-7) of the Uttrakhand in First Appeal no. A/12/184 titled as
opposite party (page 41) the physical possession Aadil Shekh v. M/s Central Himalayan Land
of the plot on paper was to be given by the opposite Development Co. Ltd. decided on 25.2.2016, by
party after the clearance of dues and execution of which Hon ble State Commission Uttrakhand set
the sale deed. aside the order dated 12.11.2012 passed by the
42. It is worth noting that complainant has District Forum, Nainital in a consumer complaint
categorically deposed that after the execution of no. 137 of 2010.
the sale deed, the opposite party vide its letter dated 44. It is worth noting that in the above referred
11.7.2007 (C-11) informed the complainant that he case, the opposite party had taken the similar plea
was required to make last payment on and before as is taken by it in its written statement. However,
12.8.2007 and the said instalment was paid by the the District Forum, Nainital dismissed the
complainant on 10th August 2007. But, later on, it complaint filed by complainant.
was found that a sum of Rs. 2,528.77 was paid in 45. In appeal, Hon’ble State Commission
excess by the complainant as per the statement of Uttrakhand observed as under
account of the opposite party (P-51). The
“The District Forum has committed
complainant has deposed that till 10th August
illegality by ignoring report of Advocate
2007 he has paid a total sum of Rs.15,75,050. He
Commissioner, who has specifically
has deposed that he made queries in Dec 2007 from
mentioned that the land is still
the opposite party regarding the status of the
undeveloped, deserted and inhabitable and
development work and the opposite party informed
due to standing of 12-13 Banjh trees over
him that the development work would be
the plot in question, construction of
completed very soon and written information
building is impossible. Therefore, by
would be given to him. But, no written
allotting such undeveloped, deserted piece
communication regarding the completion of
of land to the appellant-complainant, there
development and delivery of possession of the plot
is deficiency in service on the part of
was received by him till the month of January 2008.
respondent-opposite party.”
Since, no communication was received by the
complainant from opposite party, he wrote a letter 46. Since, the opposite party did not develop
to the Governor of State of Uttarakhand, who the plot and did not give possession of plot within
acting upon his representation, through ADC 2 years as per allotment letter, we are of the
informed the complainant vide letter dated 8th considered view that there is ‘deficiency in service’
February 2008 to address his grievance to ADC, on the part of the opposite party.
Nainital. Thereafter, the complainant forwarded 47. Accordingly, the complaint filed by the
his grievance to the ADC, Nainital Uttarakhand complainant is allowed.
and kept on waiting for an effective redressal of his
48. The opposite party is directed is directed
grievances from government authorities. In other
to refund to the complainant a sum of Rs. 15,75,050
words, it is the case of complainant that no
along with interest as per the following
development work was carried out and the
arrangement:
possession of the plot has not been handed over to
him till date, as per allotment letter dated 28.6.2007. A. An interest @ 4% p.a. calculated
However, on the other side, the opposite party has as agreed between the parties
stated that township is fully equipped with according to Sub clause (F) of
metallic roads and facilities of electricity, water, Para 25 of the Broacher (page 24)
restaurants and club etc are provided to the owners of the complaint from the date
of villas. each payment was received by
the Opposite Party till 2.9.2024
43. To resolve this issue, we would like to (being the date of the present
refer the judgment of State Commission, judgment);
336
Vol. IV NATIONAL INSURANCE CO. LTD. v. MANOJ KUMAR TIBREWAL & OTHERS 79

B. The rate of interest payable as IV (2024) CPJ 79 (Bihar)

per the aforesaid Clause (A) is BIHAR STATE CONSUMER DISPUTES
subject to the condition that the REDRESSAL COMMISSION, PATNA
Opposite Party no. 2 pays the
entire amount on or before Mr. Justice Sanjay Kumar, President & Mr. Ram
2.11.2024. Prawesh Das, Member; Mr. Raj Kumar
Pandey, Member
C. Being guided by the principles as
discussed above, in case the NATIONAL INSURANCE CO. LTD.
Opposite Party fails to refund the —Appellant
amount as per the aforesaid versus
Clause (A) on or before 2.11.2024,
MANOJ KUMAR TIBREWAL & OTHERS
the entire amount is to be
—Respondents
refunded along with an interest
@ 6% p.a. calculated from the First Appeal No. A/190/2017—Decided on 4.4.2024.
date on which each installment/ Consumer Protection Act, 1986 —
payment was received by the Sections 2(1)(g), 14(1)(d), 15 — Insurance —
Opposite Party till the actual Accidental claim — Delay in intimation to
realization of the amount. insurance company — Repudiation of claim
49. In addition to the aforesaid and taking — Alleged deficiency in service —
into consideration the facts of the present case, the Complainant has failed to establish that he
Opposite Party is directed to pay a sum of suffered permanent disablement on account
of any accidental injury — From materials
A. Rs. 1,00,000 as costs for mental placed on record, it is evident that
agony and harassment to the complainant suffered permanent
complainant; and disablement due to disease as such
B. The litigation costs to the extent complainant did not satisfy terms and
of Rs. 50,000. conditions of insurance policy for payment of
50. Applications pending, if any, stand insurance claim — Claim does not appear to
disposed of in terms of the aforesaid judgment. be genuine and bonafide rather an
afterthought as in legal notice dated 2.3.2013
51. A copy of this judgment be provided to all send to insurance company complainant
the parties free of cost as mandated by the stated that he suffered polio attack on
Consumer Protection Act, 1986. The judgment be 9.3.2009 and subsequently suffered
uploaded forthwith on the website of the disablement — Complainant has not adduced
commission for the perusal of the parties. any medical evidence to even remotely
52. File be consigned to record room along suggest that he suffered disability due to
with a copy of this Judgment. accidental injury rather his stand that he
Complaint allowed.
suffered injury in road accident on 9.3.2009
and accidental fall on 1.4.2009 in bathroom is
an afterthought — District Consumer Forum
has wrongly shifted burden on insurance
company rather onus lies upon complainant
to establish that he suffered disability due to
accidental injury in which he has miserably
failed — Order directing insurance company
for payment of claim amount to complainant
is set aside. [Paras 2, 3, 19-24]

337