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Judgment
The present Appeal has been filed against the order dated 3.6.2019, passed by the State Consumer Disputes Redressal Commission, Uttrakhand at Dehradun (hereinafter referred to as "the State Commission"), whereby the Complaint preferred by the Respondent herein has been allowed ex parte against the present Appellants who had been impleaded as Opposite Parties, by directing the Appellants herein to hand-over possession of Flat No.302 (FH-02), GTM Forest & Hills, Dehradun to the Complainant/Respondent within a period of one month from the date of order and execute the necessary documentation in that regard in Complainant's favour. It was further directed to pay Rs.14,86,820/- (Rupees fourteen lacs eighty six thousand eight hundred twenty only) to the Complainant/Respondent for carrying out the remaining work in the subject flat; Rs.5,00,000/- (Rupees five lacs only) as compensation on account of delayed possession as well as hardship undergone by the Complainant and Rs.20,000/- (Rupees twenty thousand only) towards litigation expenses.
From the perusal of the impugned order, we find that the Appellants herein had put in appearance before the State Commission upon being served with the notice of the Consumer Complaint but in spite of having been granted sufficient opportunity, did not file any written statement and subsequently, did not appear before the State Commission. For ready reference paragraphs 3 and 5 of the impugned order are reproduced hereinbelow :
"3. Upon being served with the notice of the Consumer Complaint, the Opposite Parties put in appearance before the Commission but inspite of being granted sufficient opportunity, did not file any written statement and later also failed to appear before the Commission and neglected the proceeding of the Consumer Complaint. Consequently, the Consumer Complaint was directed to proceed ex parte against the Opposite Parties and an order was passed that in case the Opposite Parties fail to turn up, the Consumer Complaint shall be heard in their absence and decided as per law."
"5. On the date of hearing arguments in the matter, the complainant appeared in person before the Commission and submitted arguments. There was no representation from the side of opposite parties. We have heard the complainant in person and thoroughly examined the material available on record available before us."
It appears that the flat was not fully constructed and was not complete in all respects and therefore, the Complainant/Respondent got the flat inspected by Engineer Er. K.A. Khan, B.Tech Civil (A.M.U.) and also filed an affidavit that a sum of Rs.15,00,000/- is required to be spent for completing the work of the flat. For ready reference para-8 of the impugned order is reproduced below :
The complainant has categorically stated that the flat is still not complete in all respects and certain works are still to be carried out in the concerned flat. The complainant has filed the affidavit of Er. K.A. Khan, B. Tech. Civil (A.M.U.), wherein the said deponent has deposed that total amount of Rs.15,00,000/- is required to be spent in completing the work of flat, in order to make it suitable for residential purposes. The said Engineer has also filed his valuation report dated 07.05.2019, which is on record. The said Expert is a Civil Engineer by profession and is an Architect, Valuer, Surveyor, Real Estate Consultant etc. and, as such, can very well be regarded as the technical expert in the field and there appears no reasoning to deny the valuation so made by the expert, more so, in view of the fact that there has not been any objection to the same from the side of the opposite parties, as opposite parties chose not to adduce any evidence in the case. This way, the complainant has filed the expert evidence in support of his case, to show that the above sum of Rs. 15,00,000/- is required to be spent in completing the required work in the flat in question, in order to make the flat in habitable/ living condition. Thus the complainant is entitled to sum of Rs.15,00,000/- from the opposite parties for carrying out the remaining required work in the flat after adjusting sum of Rs.13,180/-, admittedly due against the complainant to the opposite parties. Therefore, the complainant is entitled to sum of Rs.14,86,820/- (Rs.15,00,000/- minus Rs.13,180/-) from the opposite parties for carrying out the remaining work in the flat on his own, in order to make the flat in question habitable/ living, so that he can comfortably live therein, along with his family members.
The State Commission, in para-9 and 11 has dealt with and granted relief. Both these paragraphs are reproduced below for ready reference :
The complaint has claimed sum of Rs.5,00,000/- towards damages/ compensation for delayed possession etc. As is stated above, as per the application form, the possession of the flat was to be delivered to the complainant latest by 18.11.2008, i.e., more than 10 years" ago, but the possession of the flat has not yet been handed over the opposite parties to the complainant and they have been enjoying the hard-earned money of the complainant since long. The complainant is a senior citizen and has retired for the post of Colonel in the Indian Army. He has served the nation for long and the builder cannot be spared for committing such an illegal act and committing unfair trade practice as well as deficiency in service and also for usurping the money of the consumer, which he had invested with the builder, with a view of getting a flat for his residential purpose, which purpose has been defeated by the builder for no fault on the part of consumer, inspite of receiving almost the entire consideration amount from the consumer. Therefore, in the given set of facts and circumstances, the complainant is definitely entitled to sum of Rs.5,00,000/-.as compensation on account of delayed possession as well as hardship undergone by him for such a long time, in getting the possession of the flat. One can easily imagine the sufferings of the complainant , who had invested his hard-earned money in buying the flat for his residential purpose and inspite of having made almost the entire payment towards the agreed price of flat, he has been deprived of the flat till date the builder has been enjoying his money and earning interest on the same by investing the said sum in his business work etc. It is worth to mention here the complainant had taken term loan of Rs.20,00,000/- from the ban ad had been paying EMI"s of said loan to the bank. Thus, the hardship suffered by the complainant is also writ large, by paying the loan instalments to the bank and purpose for which the loan was obtained, has also not been accomplished as yet and the possession of the flat is still wanting at the end of the builder for no justified ground/ reason. We also do not find any Force Majeure circumstances as reason for delaying the possession of the flat. As is stated above, the opposite parties have not been courageous enough to come up before the Commission and to have their say in order to deny the allegation levelled by the complainant and to show that there has not been any inaction on their part and that they were forced/ compelled by the circumstances beyond their control, which caused delay in delivering possession of flat the complainant- consumer.
Looking to the facts in hand and law on the point we are of the considered view that the opposite parties had malafide intention to grab the hard-earned money of the complainant, the senior citizen. Admittedly, the builder had been enjoying the money of the complainant right from the year 2006 onwards; even after making requests after requests, the builder is in no mood to hand over the possession of the flat to the complainant and is delaying/ lingering on the matter without any justification and inspite of receiving almost the entire price of the flat agreed between the parties. Since the case of the complainant is well-merited and he has been made to run from pillar to post in order to get redressal of his grievance and to move this Commission, he also entitled to litigation expenses quantified at Rs.20,000/-.
From perusal of the same, we find that as the matter before the State Commission was ex parte for reasons best known to the Appellant, who had put in appearance but did not appear on subsequent dates, neither filed any Written Version nor evidence in support of his claim, the State Commission was perfectly justified in directing the Appellant herein to pay a sum of Rs.14,86,820/- as also compensation of Rs.5,00,000/- and litigation cost of Rs.20,000/- and the same is based on appreciation of evidence and material on record and does not suffer from any illegality or perversity which requires any interference or taking a contrary view in exercise of the Appellate jurisdiction.
In view of the foregoing discussions, the Appeal fails and is dismissed.
The statutory deposit be refunded to the Appellant.