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Judgment
We have heard the learned counsel for the builder co. (the appellants in appeal no. 74 of 2019 and the respondents in appeal no. 1691 of 2019) and for the complainant (the respondent in appeal no. 74 of 2019 and the appellant in appeal no. 1691 of 2019).
We have also perused the material on record including inter alia the State Commission’s Order dated 13.11.2018 under challenge and the respective memoranda of appeal.
Complaint no. 260 of 2017 was decided by the State Commission vide its Order dated 13.11.2018. Appeal no. 74 of 2019 has been filed by the builder co. seeking setting aside of the said Order. Appeal no. 1691 of 2019 has been filed by the complainant seeking enhancement in compensation.
As evinces from the material on record and the appraisal made by the State Commission, the complainant had booked a plot of 350 sq. yd. with the builder co. on 12.02.2007. The agreement was executed by the builder co. on 22.12.2011 for a plot of 300 sq. yd. The entire consideration of Rs. 22,82,753/- was paid by the complainant to the builder co. during the period from 12.02.2007 to 05.03.2014. As per the agreement the possession of the plot was to be delivered within 36 months of the date of the agreement i.e. by 21.12.2014. The same was however not delivered in the promised period, or within a reasonable period thence. In fact the same has not been delivered even till date.
The State Commission vide its Order dated 13.11.2018 has directed the builder co. to deliver physical possession of the plot to the complainant within 03 months of its Order and has awarded compensation for the delay in delivery of possession by way of interest at the rate of 12 % per annum on the amount deposited by the complainant from the respective dates of deposit till actual realization within 02 months of its Order. It has also stipulated that in case the payment is not made within the said period of two months, the rate of interest shall stand enhanced from12% per annum to 18% per annum. It has additionally provided lumpsum compensation of Rs. 2,00,000/- for mental agony and physical harassment and Rs. 21,000/- as cost of litigation.
We note that the appraisal made by the State Commission in its Order brings out ingredients of both ‘deficiency in service’ and ‘unfair trade practice’ on the part of the builder co.
However, learned counsel for the builder co. submits that though the prayer made in its appeal no. 74 of 2019 is for setting aside the Order of the State Commission, the builder co. is only contesting the quantum of compensation awarded by the State Commission. The authorised representative of the builder co. present in person also confirms that it is only contesting the quantum of compensation.
Learned counsel for the complainant submits that his appeal no. 1691 of 2019 seeks enhancement in compensation and he would argue for the same.
As such the limited point to be adjudicated is re the quantum of compensation.
Learned counsel for the builder co. submits that unreasonably high compensation has been awarded by the State Commission. He questions the method adopted by the State Commission in computing compensation by way of interest at the rate of 12% per annum on the amount deposited by the complainant from the respective dates of deposit till actual realization. In the opinion of the learned counsel the period (i.e. the respective dates of deposit till actual realisation) as well as the rate of interest (i.e. 12% per annum), both need to be re-looked into and re-worked. Learned counsel also questions the stipulation of enhanced rate of interest at the rate of 18% per annum in case of delay in making payment, submitting that the same is highly unreasonable. The submission is that the method of computation needs to be revisited and the compensation needs to be reduced.
Learned counsel for the complainant does not question the method of computation per se adopted by the State Commission, submitting that this is the normal manner in which compensation is generally computed by the consumer protection fora. He however further submits that the compensation so quantified is insufficient to entirely offset the loss and injury suffered by the complainant. The submission is that unilateral reduction of the size of the plot from 350 sq. yd. to 300 sq. yd., delay of about 04 years from 2007 to 2011 in executing the agreement, the continuing delay in delivering possession till date when the same was promised to be delivered in 2014, the fact that the entire consideration had been duly paid before the promised date of delivery, the troubles and travails, the uncertainty and difficulty the complainant has been continuously facing for all these years, all seen together necessarily require that the compensation may be enhanced. Learned counsel however then submits that even though his case for enhancement of compensation is wholly worthwhile, but, still, to put a period to the lis, and to put an end to the sufferings of the complainant, the complainant is prepared to even forgo the stipulation of enhanced rate of interest of 18% per annum in case of delay in making payment but with the trust and request that the delivery of possession and payment of compensation may at least now be ensured within a time-bound period of four to six weeks.
The factual matrix of the case as has been captured by the State Commission in its Order is not disputed by either of the learned counsel, no mistake of fact is being pointed out by the either.
Regarding the quantum of compensation, we may first observe that the same has to be fair and reasonable, just and equitable, commensurate with the loss and injury suffered.
Section 14 of the Act 1986 provides for “compensation to the consumer for any loss or injury suffered by the consumer”, it however does not say of any particular way or method of computing compensation.
In the case at hand, unarguably, booking for a 350 sq. yd. plot was made in 2007, a belated agreement was executed after about 04 years in 2011, the size of the plot was unilaterally and domineeringly reduced from 350 sq. yd. to 300 sq. yd. at the time of the agreement, the entire consideration was paid between 2007 to 2014 (upto 05.03.2014) prior to the promised date of delivery of possession, the promised date was in 2014 (21.12.2014), the possession was not delivered by the promised date or even in any reasonable period thence, the possession has still not been delivered till date.
In the obtaining facts and circumstances we do not feel that the State Commission has been unduly over-indulgent or has lost sight of its duty to judiciously work out reasonable compensation to balance the scales of equity.
In the matters of judicious discretion we are generally loath to unnecessarily interfere in the discretion already exercised by the lower forum and substitute it with our own, though of course in the matters where we find that the use or exercise of discretion has not been judiciously undertaken or where we find any elements of capricious and whimsical exercise or of patent arbitrariness or unreasonableness or of visible lack of application of mind, we do not hesitate to interfere and do pass the corrective orders necessarily. Similarly, where we find elements of absurdity in the order, we do not hesitate to set the same right. But just because a different view is also possible, it alone is not by itself a persuasive ground to substitute the order passed by the lower forum by our own alternate opinion. In the present matter at hand, however, we must but clarify that even we do not see any reason or feel inclined to take a different view of the matter than what has been taken by the State Commission, especially when seen with the concession of doing away with the stipulation of enhancement of rate of interest to 18% per annum which has been conceded by the complainant during the course of the arguments to put an end to the litigation.
The appeal filed by the complainant appears to have been a bonafide attempt to present and give vent to his troubles and grievances before this Commission. On the other hand the appeal filed by the builder co. appears to be a vexatious attempt to further delay the matter, moreso when physical possession of the subject plot has also not been made-over till date when it is not even the builder co.’s own case that it is not dutybound to deliver the physical possession.
As such, the two appeals are disposed of with modification in the award as below:
The builder co. shall deliver physical possession of the subject plot to the complainant and shall pay compensation for the delay in delivery of possession by way of interest at the rate of 12 % per annum on the amount deposited by the complainant from the respective dates of deposit till actual realization along with lumpsum compensation of Rs. 2,00,000/- for the mental agony and physical harassment and Rs. 21,000/- as cost of litigation, within 06 weeks of the date of this Order.
The amount if any deposited by the builder co. with the State Commission in compliance of this Commission’s Order dated 29.05.2019 along with interest if any accrued thereon shall be forthwith released by the State Commission to the complainant as per the procedure.
The physical possession of the subject plot shall be delivered to the complainant and the balance awarded amount shall be paid to the complainant by the builder co. within 06 weeks from today, failing which the State Commission shall forthwith undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.
The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.