Full Judgment
Mrs. Neena Sandhu, Member:
1. This is an appeal filed by the appellant/complainant, against the order, dated 28.4.2011 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 673 of 2010vide which, it allowed the complaint and directed the OP/respondnet to refund Rs. 6,33,000 to him (complainant) along with interest @ 9% p.a. from the respective dates of its deposit till realization along with Rs. 25,000 as compensation for mental agony and harassment and Rs. 5,000 as costs of litigation, within one month from the date of receipt of copy of the order.
2. Briefly stated, the facts of the case, are that the OP advertised, in the year 2008, and invited applications for allotment of residential flats at Santemajra, Tehsil and District Mohali (Punjab). The complainant contacted the OP with a dream of his own flat, near Chandigarh. The OP assured the complainant that the allotment of complete builtup flat would be given to all the allottee applicants by October, 2009. It was further stated that after getting assurance from the OP, the complainant applied for allotment of flat and deposited a sum of Rs. 2,10,000. The OP allotted Studio Apartment No. G-16, Tower E on Ground Floor in Work 1 at Mohali to the complainant, for a total price of Rs. 13,99,000 and the super area of the said flat was approximately 628 sq. ft. Thereafter, the OP prepared the buyers agreement and Clause 4.a of the said agreement deals with the delivery of possession and reads that the possession of the apartment was proposed to be delivered by the developer to the purchaser by October, 2009 subject to force majeure circumstances, beyond the control of the developer, and upon registration of the sale deed provided all amounts due and payable by the purchaser under the agreement had been paid to the developer within the stipulated period. It was further stated that the OP had failed to deliver possession of the flat by the stipulated date. It was further stated that the complainant deposited a total sum of Rs. 6,33,000 out of the total amount of the flat of Rs. 13,99,000 with the OP and the latter also issued ledger account from 1.4.2008 to 31.3.2011 acknowledging the receipt of this amount. The complainant waited for the delivery of possession of the flat but the OP failed to deliver the same, despite repeated requests and visits. The complainant visited the office of the OP in the month of December, 2009, and enquired the status of flats. The OP reassured that the project was under construction and advised the complainant to wait for some time more. It was further stated that as per Clause 4.c.ii of the buyers agreement, the opposite party was to pay Rs. 5 per sq. ft. per month as compensation for the period of delay in offering the possession of the said apartment beyond the period indicated in clause 4.a.i which means that the complainant was entitled to compensation at the aforesaid rate from October, 2009 till the date of payment. It was further stated that the OP had failed to deliver the possession of the flat by the end of October, 2009, which amounted to deficiency, in service, and indulgence into unfair trade practice. Accordingly, a complaint under Section 12 of the Consumer Protection Act, 1986, was filed.
3. Reply was filed by the OP, in which, it was stated that the complainant failed to comply with the terms and conditions of the agreement dated 14.5.2008 which included the clear payment schedule which was to be followed by every buyer. It was further stated that the complainant was askedvide letters dated 9.7.2008 and 17.9.2008 to make the payment of Rs. 2,09,850 and Rs. 3,49,750. It was admitted that, as per the buyer agreement, the construction of flats, had to be completed by October, 2009 provided all the amounts due and payable by the purchaser, under the said agreement, had been paid to the developer within the stipulated period. It was further stated that the complainant did not make all the due payments and only 50% payment was made by him. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OP and nor it indulged into unfair trade practice.
4. The parties led evidence, in support of their case.
5. The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the order.
6. Aggrieved by the order, passed by the learned District Forum, the appellant/complainant filed the instant appeal, for enhancement of compensation and litigation costs.
7. We have heard Mr. Munish Goel, Advocate for the appellant/complainant and, have perused the record, carefully.
8. The learned Counsel for the appellant/complainant submitted that the learned District Forum did not take into consideration that as per Clause 4.a of buyers agreement, the date of delivery of possession mentioned was October, 2009. He further submitted that it further mentioned in Clause 4.c.ii that was the respondent shall pay Rs. 5 per sq. ft. per month for the period of delay in offering possession of the said apartment, and, as such, the appellant was entitled to Rs. 5 per sq. ft. per month from October, 2009. It was further submitted that the learned District Forum did not award any compensation on account of increase in prices of flats since 2008. It was further submitted that the Forum did not take into consideration that now appellant has to pay more from his pocket to buy any other flat in this area, due to the fault of the OP. It was further contended that the learned District Forum awarded meager compensation of Rs. 25,000 and costs of litigation of Rs. 5,000 and the same are liable to be enhanced, besides award of compensation to him, as indicated above.
9. As per the contention of the learned Counsel for he appellant/complainant as per Clause 4.c.ii of agreement referred to above, the appellant was entitled to the compensation @ Rs. 5 per sq. ft. per month from October, 2009. After going through the facts of this case, we do not find any force in this contention. The complainant did not make payment of instalments, as per the construction linked schedule, as is evident from Annexure R-1 dated 9.7.2008 and Annexure R-2 dated 17.9.2008. He, thus, himself committed default in making payment of instalments, as indicated above. While ordering the refund of Rs. 6,33,000, the District Forum, took due care of the factum, that the amount deposited by the complainant was used by the OP, for a sufficient longer period, without handing over the possession to him, of the flat, by the due date. It was, under these circumstances, that for the financial loss caused to the complainant, on account of improper retention of the amount, deposited by him, by the OP, he was duly compensated by granting interest @ 9% p.a. from the date of respective deposits of the amounts to him. The interest so awarded to the complainant, if calculated, comes to be more than the amount of Rs. 5 per month per sq. ft., as provided by Clause 4.c.ii of the agreement. The interest @ 9% p.a. awarded to the complainant, as indicated above, was by way of compensation. Not only this, the complainant was also awarded compensation, in the sum of Rs. 25,000 for mental agony and physical harassment along with cost of litigation to the tune of Rs. 5,000. In Surendra Kumar Tyagi v. Jagat Nursing and Hospital and Anr., IV (2010) CPJ 199 (NC), the principle of law laid down by the National Commission, was to the effect, that compensation should be commensurate with loss and injury suffered by the complainant. The compensation is required to be fair and just and not unreasonable and arbitrary. The Consumer Foras are not meant to enrich the consumers, at the cost of the service providers, by awarding, unfair, unreasonable, and highly excessive compensation. In the instant case, since the amount of interest awarded, if calculated comes to be more than the amount provided, under Clause 4.c.ii of the agreement, and, as such, it can be safely held that the complainant has been adequately compensated. The interest, awarded to him, being in the shape of compensation, to set off his financial loss, he is not entitled to compensation claimed by him. Not only this, the relief of possession was declined to him by the District Forum. In the appeal, he has not claimed possession. In this view of the matter, Clause 4.c.ii of the agreement is not applicable to the instant case. Even the cost of litigation and compensation for mental agony and physical pain awarded to the complainant, are just, reasonable, fair and adequate. The appellant is, thus, not held entitled to the enhancement of compensation, cost of litigation and the amount provided under Clause 4.c.ii. The submission of the Counsel for the appellant, being devoid of merit is rejected.
10. Secondly the learned Counsel for the appellant, contended that while passing the impugned order the learned District Forum did not take into consideration the hike in prices of the property since, 2008, and in order to buy a similar flat in this area, the complainant has to pay more and that too without his fault. In our opinion, even this contention of the Counsel for the appellant is also baseless. No document was produced to establish that if such a flat is to be purchased by the appellant, at or near the site, in question, he will have to pay more for that. No document was also placed on record that the appellant has already entered into a bargain, for the purchase of a similar flat, at or near the site, in question, for a sale consideration, which is much more than the price, at which the flat, in question, was agreed to be purchased by him. In the absence of any reliable documentary evidence, having been produced, by the complainant, in this regard, this Commission cannot act on mere conjectures and surmises, to come to the conclusion, that the prices of such like flats, have gone very high after 2008, when the agreement C-3, in this case, was executed between the parties. Thus, the claim of the appellant, in this regard, being based on house of cards, is liable to crumble. The submission of the Counsel for the appellant being devoid of merit is rejected.
11. In view of the above discussion, we have come to the conclusion that the learned District Forum has rightly compensated the complainant for the loss incurred by him. Therefore, we concur with the order passed by the learned District Forum and dismiss the appeal, being devoid of any merit, with no order as to costs.
12. Copies of this order be sent to the parties, free of charge.