1.       This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 11.12.2018 of the State Commission in complaint no. 14 of 2014.  

We have heard the appellant (the ‘complainant’) in person and the learned counsel for the respondents (the ‘builder’) and have perused the record.

2.       The award as firmed-up by the State Commission vide its impugned Order dated 11.12.2018 is being reproduced below for reference:

1. Consumer complaint is partly allowed with costs of Rs. 25,000/- [Twenty Five Thousand only] to be paid to the complainant.
2. Opponent are directed to hand over possession of the flat bearing no. A/207, 2^nd floor M.M. Mansion, C.S. No. 181 (pt) in G/ North Ward, Laxmi Baug, Dharavi, Mumbai 400017 admeasuring 538 sq. ft. carpet area to the complainant with occupation certificate and all necessary documents within 2 months from the date of this Order.
3. Opponents are directed to pay an amount of Rs. 1 lakhs [Rs. One Lakh only] as compensation to the complainant.
4. Free certified copies of this Order be furnished to the parties forthwith.

3.       The builder has not agitated the State Commission’s Order.

The complainant has filed the present appeal to seek enhancement in compensation. His grievance is that the quantum of compensation awarded by the State Commission vide direction no. 3) is grossly on the lower side.

4.       The complainant draws attention to clause 11 of the subject agreement in which it is stated that “The Developers shall give possession of the said Flat to the Flat/Shop Purchaser within 06 months”. He submits that the agreement was executed on 08.09.2009. As such the 06-month period for giving possession elapsed on 07.03.2010. But, as also recorded in para [6] of its Order by the State Commission, the builder could not obtain occupancy certificate and hence could not hand over meaningful legitimate possession of the subject unit to him. He duly paid the total consideration of Rs. 28.45 lakh i.e. Rs. 6,50,000/- on 01.09.2009, Rs. 10,00,000/- & Rs. 8,95,000/- on 12.09.2009 and Rs. 3,00,000/- on 15.06.2011. Possession of the unit has not been handed over to him even after the State Commission has directed that possession along with “occupation certificate and all necessary documents” be handed over within 2 months of its Order. He further submits that the State Commission has awarded only Rs. 1 lakh as compensation which is grossly on the lower side. The normal practice in consumer protection fora is to provide compensation by way of interest at a fair rate on the deposited amount for the period it is unjustly and inequitably retained by a builder i.e. for the period of delay in handing over possession beyond the committed date. In his opinion interest at the rate of 9% per annum on the deposited amount will be fair. He further submits that being a layman in his complaint he had asked for lumpsum Rs. 10 lakh for the mental agony and harassment as also for the delay in handing over possession. Even then the same ought to have been provided with reasonable interest from the date on which the possession had become due i.e. from 07.03.2010 but the State Commission has granted a dismally paltry amount and that too without any interest at all.

5.       Learned counsel for the builder submits that though the commitment period elapsed on 07.03.2010 but the complainant paid the entire amount of the consideration only on 15.06.2011. He also submits that a rate of interest of 6% per annum will be fair and anything above this will be unreasonable.       

6.       Regarding the delay, we may first observe, to place the whole matter in perspective, that prior to, or, at the least, simultaneous to, getting the buyer-consumer to enter into its agreement and accepting the first payment towards the total cost of the subject unit, the builder was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning. It was the prime responsibility of the builder to ensure that it was in a position to deliver the possession of the subject unit to the buyer-consumer within the committed period. Planning, execution and completion were the builder’s responsibility, and not of the consumer; (normal) impediments or problems that may arise in planning, execution and completion were again its own responsibility, and not of the consumer. Specifically, availability of land, as well as all approvals from the concerned government, development and municipal authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly to be taken care of and dealt with by the builder. Time and cost overruns were essentially within the domain of its own duty and obligation. Non-fulfilment of its overall responsibilities of project planning, execution and completion can not be and are not grounds for condoning or overlooking delay in completion and failure to offer meaningful legitimate possession with occupancy certificate and all relevant necessary documents within the committed period.

7.       In the present case, the delay, on the face of it itself, is abnormally unreasonable. And delay even beyond 15.06.2011 i.e. when the complainant had paid the last instalment towards the consideration is clearly unjustified and untenable and hard to overlook. Most disconcertingly, the builder has absolutely no argument to make on its patent deficiency in respect of the abnormal unreasonable delay.

8.       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. Sections 14 of the Act 1986 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.

9.       In the case at hand, we see that the subject agreement was executed on 08.09.2009. The commitment period of 06 months elapsed on 07.03.2010. The complainant paid the entire consideration by 15.06.2011. But possession of the subject unit was not handed over to him. Even the occupancy certificate had not been obtained by the builder, in the absence of which it was not feasible to give meaningful legitimate possession.

The complaint was filed before the State Commission in 2014. It was decided on 11.12.2018. The present appeal was filed before this Commission on 31.01.2019. Today i.e. on 19.04.2023 it is listed for final hearing. As such about 09 years have been taken in the litigation before the two consumer protection fora i.e. the State Commission and this Commission.

We may note that the Act 1986 is for “better protection of the interests of consumers”, in a fight which is recognizedly amongst unequals often. In the case at hand, we have the builder on the one hand, with adequate and more wherewithal, and an ordinary normal consumer on the other side, without much wherewithal. The builder has absolutely no argument to make in respect of its patent deficiency of abnormal unreasonable delay in making possession. It admits its deficiency, gives no explanation for the same, no apology, no regret. Its only focus is to anyhow get the compensation minimized.

The complainant filed the complaint way back in the year 2014 in which he had asked for Rs. 10 lakh as lumpsum compensation for the delay and the mental agony and physical harassment. The State Commission has provided only an amount of Rs. 1 lakh and that too without any interest. In the normal wont, interest ought to have been factored in to offset the efflux of time. Else, with the passage of time, the principal itself becomes dilute, day by day. The enormous period of time which has elapsed after the expiry of the committed date i.e. 07.03.2010 and also after expiry of the date on which the complainant paid the last instalment towards the consideration i.e. 15.06.2011 cannot be ignored with apathy or indifference and has to be adequately taken care of while moulding the award.

10.     In the facts & circumstances and specificities of the case, we feel that interest at the rate of 7.5% per annum on the total amount deposited by the complainant from the date of the last deposit i.e. from 15.06.2011 till the date of actual handing over of physical possession shall be just and equitable, commensurate with the loss and injury suffered. 

11.     Sequel to the above, direction no. 3) of the State Commission’s impugned Order is modified to the effect that the builder shall pay interest at the rate of 7.5% per annum on the total amount deposited by the complainant from the date of the last deposit i.e. from 15.06.2011 till the date of actual handing over of physical possession.

Directions no. 1) and no. 2) shall remain undisturbed, neither side has agitated the same.

12.     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 requested to upload this Order on the website of this Commission immediately.