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Judgment
Karuna Nand Bajpayee, Presiding Member
This appeal has been filed under section 51(1) of The Consumer Protection Act, 2019 in challenge to the Order dated 10.08.2018 of the State Commission in consumer complaint no. 512 of 2017.
Heard the learned counsel for the appellant society / the opposite party no.1 and the learned counsel for the respondents no.1 and no.2 / the complainants and perused the record including inter alia the impugned Order dated 10.08.2018 passed by the State Commission and the memorandum of appeal.
The relevant facts giving rise to the complaint has been narrated by the State Commission as follows:
The complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the premise, that originally complaint was filed before District Forum S.A.S. Nagar (Mohali) and it was returned to Consumer Complaint No.512 of 2017 2 complainant for want of pecuniary jurisdiction and thereafter filed this complaint. The complainants being non resident Indians (NRI) living in USA decided to apply for membership of OP no.1 society for allotment of residential plot by depositing Rs.21,000/- as membership fee and membership certificate was issued by OP no.1 to complainants. The complainants applied for plot of 250 square yards being corner plot with OP no.1 society by depositing Rs.3,00,000/- as installment of plot with OP no.1 society, vide receipt no.105 dated 11.04.2011. The complainants further deposited Rs.3,00,000/- as installment, vide receipt no.374 dated 16.08.2011. It was represented to complainants by officials of OP no.1 that it held all the necessary approvals and sanctions issued by competent authorities inclusive permission for change of land user (CLU). The possession of the allotted plot was assured to be delivered to complainants within a period of 30 months from the date of allotment with the amenities like water supply, sewerage, parks, roads and electricity. No development work has been started by OP no.1 society in the project, as the land remained full of deep pits and even it has not been leveled by OP no.1 society as yet. The complainants visited India and inspected it. The development work has not been started because OP no.1 society has not obtained legal approvals, sanctions and even permission of change of land user (CLU) from competent authorities and it gave out only false assurances to complainant. OP no.1 society sold the entire project to OP no.2 and forced the complainants to accept OP no.2 as the new developer of Consumer Complaint No.512 of 2017 3 the colony and to deposit the amounts with it. No refund has been paid to complainants by OP nos.1 and 2, despite request of complainants to that effect. Legal notice dated 15.04.2015 served upon OPs by complainants for refund of the amount of Rs.6,21,000/- to them. Neither OP no.1 nor OP no.2 have been granted the permission of change of land user by the competent authority nor even layout plan of this project has been sanctioned by PUDA nor any other sanctions and approvals have been accorded by the competent authorities to OPs. The District Town Planner S.A.S. Nagar Mohali pointed out various defects, shortcomings in the project, vide letters dated 24.04.2015, 19.05.2015, 13.07.2015 and 03.03.2016. The complainants have termed the act of OPs deficient in service and unfair trade practice.
The State Commission after considering the aspects relating to the deficiency in service and unfair trade practice allowed the complaint. The award made by the State Commission vide its impugned Order dated 10.08.2018 is reproduced below for the ready reference:
As a result of our above discussion, we accept the complaint of the complainants against OP no.1 only and direct OP no.1 to refund the entire deposited amounts of complainants with interest @12% per annum from the date of their respective deposits till actual payment. We further direct OP .1 to pay Rs.50,000/- as compensation for mental harassment and Rs.25,000/- as cost of litigation to complainants. These amounts shall be payable by OP no.1 to complainants within 45 days from the date of receipt of certified copy of the order.
Learned counsel for the appellants has confined his submission to the extent of assailing only on the point of rate of interest granted on the amount deposited by the complainants and the amount of compensation Rs. 50,000/- awarded on account of mental harassment. Submission is that the rate of interest of 12% per annum awarded by the State Commission is on the higher side and the same may be reduced to 6% per annum. He also submits that the additional compensation of Rs.50,000/- awarded to the complainants is also not justified and reasonable in the circumstances of the present case as the complainants have already been adequately compensated by way of interest on their deposited amount, therefore, the additional compensation may be waived off.
On the other hand, learned counsel for the respondents no.1 and no. 2/ complainants submits that rate of interest of 12% per annum as awarded by the State Commission is by no means unreasonable or unjustified in the facts and circumstances of the present case and there is no reason to reduce it. Further submission is that the basis on which the State Commission has awarded the rate of interest of 12% per annum flows from the provisions of Punjab Apartment & Property Regulation Act, 1995 (PAPRA) and the award made by the State Commission ought to stand as such.
The Bench has considered the arguments of the learned counsel for the parties. During the course of the arguments the merits of the case or the genuineness of the complainants’ grievances have not come under any serious dispute. The only point of consideration appears to be the adequacy of compensation awarded by the State Commission or to say in other words, the rate of interest that has been adopted for the purpose of awarding the compensation in this case.
Regarding the compensation, we may first observe that in various situations where the consumer is not given a fair deal and where he is made to suffer by the service provider by being deficient in service or by resorting to some unfair trade practice, the eventuality of such plight has been adequately taken care of by the legislation and in order to redress his grievance statutory provisions have been enacted. Section 14 of the Act 1986 / Section 39 of the Act 2019 contemplates to provide compensation for the loss or injury that may be suffered by such consumer and grant even punitive damages in appropriate cases where it is deemed fit. The legislature in its wisdom has not laid down any specific method fixed in nature or any specific manner in which the loss or injury suffered by a given consumer may be quantified. It also does not provide any rigid or fixed methodology by resorting to which the grievance of a consumer and damages therefor may be quantified and compensated. It is not even otherwise feasible to find or provide any cut-and-dried formula of universal application or to lay down any straight-jacket guidelines with absolute objectivity in order to estimate the loss or injury suffered by a consumer or the amount of compensation which may be mathematically equal to the loss or injury suffered with objective exactitude. The facts of each case vary and so shall vary the myriad factual and legal nuances of each transaction that may take place between consumer and the service provider. There may be cases where the circumstances of a consumer, the extent of his travails, the degree of his predicament or the enormity of his loss or injury may be such that the same may persuade the concerned authority, judicial or quasi-judicial as it may be, to stringently discountenance the deficiency or unfairness & deceptiveness of the service provider and put him to strict terms and lean ungrudgingly towards the suffering consumer in order to provide him compensatory anodyne of justice. Similarly, on the other hand, there may be cases where the service provider may successfully demonstrate the circumstances which may go to mitigate its guilt or to extenuate the degree of its liability. It may in such cases successfully display its bonafides, its diligence, its sincerity in providing service and the fairness of its trade practice. The service provider may in such cases show circumstances and prove that the loss suffered by the consumer is not the consequence of its doing or that the degree or the extent of its liability is not so enormous as may call for escalated degree of damages or compensation. As the facts of each case may naturally vary infinitely, it is eventually for the concerned judicial or quasi-judicial forum to make a dispassionate assessment of the whole situation and to approach each case with a non-partisan attitude without prejudice or prediction so that it may strike the chord of balance and may do conscionable justice within the peremeters of law. At times, lumpsum amount of compensation for the loss or injury suffered by the consumer is provided and a specific quantified amount is ordered to be paid. But quite often instead of specifying lumpsum quantified amount, the compensation is provided by way of directing to pay interest at a particular rate on the amount which in a given case might have been unduly, inequitably or illegitimately retained by the service provider. It is for the reason of variance of circumstances of each case that the amount of compensation to be fixed by the forums may keep varying from case to case. It is the same reason how and why different forums may provide for compensatory interest at different rates as a method to adequately or befittingly quantify the amount of commensurate compensation. No rule-of-thumb is possible to be adopted for all times or for all cases. The different forums while discharging their judicial or quasi-judicial functions can neither afford to be oversensitive while assessing the grievance of the consumer nor can they be found reluctant in providing just and appropriate compensation commensurate with the loss or injury suffered or in awarding condign damages wherever called for. They cannot allow themselves to either become instruments of converting the solemn provisions of the Act into means of exploitation of service providers in the name of consumer justice or to ever disregard the plight of the aggrieved consumer with apathy or indifference. The forums have to be unfailingly judicious, and try to meet the scales of equity in each case having regard to its particular facts & circumstances and specificities.
The view expressed by Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 Live Law (SC) 352 has also been kept in perspective.
Keeping in in view the observations made by Hon’ble Apex Court in the said case Experion Developers Pvt. Ltd. (supra) and the circumstances and specificities of the present matter, the Bench deems it appropriate to modify the award made by the State Commission as follows:
(i) The appellant society shall refund the entire amount deposited by the complainants with interest at the rate of 9% per annum from the date of their respective deposits till actual payment; and
(ii) The appellant shall pay Rs. 25,000/- as litigation expenses.
The amount, if any, already paid to the complainants in compliance of the award dated 10.08.2018 of the State Commission, shall be duly adjusted.
The amount of the award, as firmed-up herein, shall be made good by the opposite parties within six weeks from today, failing which the entire deposited amount of the complainants shall carry interest at the rate of 12% per annum in place of 9% per annum.
In the event of non-compliance of award, after the expiry of the stipulated period, the complainants would be at liberty to approach the executing court for recovery of the same. On receipt of such an execution application the State Commission shall undertake execution proceedings, for ‘enforcement’ and for ‘penalty’, as per the law.
The appeal stands disposed of accordingly.
The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.