Date of filing: | 30.11.2019 |
Date of disposal: | 25.08.2023 |
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 25.08.2023
PRESENT
Mr.K.B SANGANNANAVAR : JUDICIAL MEMBER
CONSUMER COMPLAINT NO. 571/2019
Mr. Richard D’ Souza, Aged 64 years, S/o. Late Louis D’ Souza, R/at: 1-N-6-454/2, Louliland, Daddalkad, Ashoknagar, Mangaluru, Dakshina Kannada - 575006. Represented by his son & GPA: Mr. Erwick Flynn D’ Souza, Aged 26 years, S/o. Mr. Richard D’ Souza, R/at: 1-N-6-454/2, Louliland, Daddalkad, Ashoknagar, Mangaluru, Dakshina Kannada District – 575006. (Advocate – Sri.P.P. Hegde) | …..Complainant/s. |
V/s |
1) M/s. Skygold Properties Pvt. Ltd., Rep. by its Managing Director, Mr. Akash A. Suvarna, R/at: 42/A, 2nd Block, 3rd Stage, Basaveshwara Nagar, Bangalore – 79, Email: R/at: 42/A, 2nd Block, 3rd Stage, Basaveshwara Nagar, Bangalore-79. 3) Jupiter Infrastructure (Bangalore) Pvt. Ltd., 34, E-Block Extension, Swathi restaurant, Sahakarnagar, Bangalore-560092. Email: …..Opposite party/s. |
ORDER
BY SRI.K.B SANGANNANAVAR, PRL. DISTRICT JUDGE (R) - JUDICIAL MEMBER:
01. This is a complaint filed under section 17 of Consumer Protection Act, 1986 with a prayer for issuance of directions to opposite party Nos.1 & 2 to pay a sum of Rs.32,78,068/- along with Rs.7,00,000/- towards compensation for the loss sustained on account of non providing of the services as agreed and for the physical and mental sufferings along with future interest at the rate of 18% per annum from the date of complaint till realization.
02. This complaint came to be presented on 30.11.2019 through learned Advocate and the Commission ordered to issue notices to opposite party Nos.1 & 2, who have failed to put their appearance before the commission despite service of the notices. The notice of this complaint is served through PP on opposite party No.3, in a daily newspaper “Vijaya Karnataka” dated: 15.07.2022. It is therefore the commission declared such service is sufficient service and as they failed to appear in obedience of the notice are held ex-parte.
03. The complaint case proceed to hold an enquiry and during the course of the enquiry in order to support case filed by complainant Mr. Richard D’ Souza submitted affidavit evidence along with Exhibit C.1 to C.18 besides submitted a certificate under section 65B of the Indian Evidence Act to give authentication to the e-documents and after closure of enquiry, having heard the learned counsel for complainant, commission to decide on the alleged rendering deficiency in service on the part of opposite party Nos.1 to 3 and if it is shown, what would be the order or award ?.
04. It is found from enquiry conducted by the commission that, complainant had entered in to an agreement with M/s. Skygold Properties Private Limited, who is none other opposite party No.1, for purchase of apartment No.201 on 27.09.2011. This was signed by complainant and Mr. Akash A. Suvarna, who is opposite party No.2 representing opposite party No.1 signed. Under this agreement he had paid Rs.1,00,000/- as an advance consideration and subsequently paid Rs.7,64,300/-, i.e., Thus, he has shown Rs.8,64,300/- was paid to M/s. Skygold Properties Private Limited under the agreement.
05. Further it is also found from the evidence of complainant, coupled with documents placed on record that, one Mr. Melvin Pereira, had also purchased an apartment No.A409, which came to be cancelled, as such as Mr. Melvin Pereira had paid a sum of Rs.4,50,000/- to M/s. Skygold Properties Private Limited and the OPs out of such amount paid refunded Rs.1,00,000/- to him and after such refund the balance amount would be Rs.3,50,000/- payable by opposite party Nos.1 & 2 to said Mr.Melvin Pereira, as such the Ops have promised and undertook that, Rs.3,50,000/- payable to him would be paid directly to the complainant and find support such averments has placed e-mails which reveals and corroborate the case of the complainant as stated to that effect. The e-mails were sent not only to the complainant but also to his relative Mr. Melvin Pereira, are placed on record. In such circumstances, commission believes the case of the complainant that he has paid Rs.12,14,300/- to opposite parties.
06. It is to be noted herein complainant besides submitting affidavit evidence reiterating the complaint averments has placed as many as 18 documents marked as Exhibit – C.1 to C.18, commencing from booking form, sale agreements, receipts, e-mails, legal notice, postal receipts. Thus, these documents are suffice to hold that, complainant had paid Rs.8,64,300/- to opposite parties and in view of the promise and undertaking of opposite party Nos.1 & 2 in respect of Rs.3,50,000/-, which they are owe to the relative of the complainant Mr. Melvin Pereira, has to be payable to complainant herein. In such circumstances, since the Ops have failed to participate in the proceedings to rebut the case of the complaint it may not be difficult to hold that the Ops are due an amount of Rs.12,14,300/- to the complaint under the agreement entered stated supra in the preamble.
07. In view of the above discussions, opposite parties are to be hold due such amount and as they have failed to complete the project as agreed under Exhibit – C.2 and C.3 dated: 27.09.2011, are to be held rendered deficiency in service and their actions and omissions are amounts to unfair trade practices and as a result commission hold complainant is entitled to seek refund of Rs.12,14,300/- from them. Though the complainant has sought for award of interest at the rate of 18% per annum, which cannot be awardable, in view of drastic reduction in the banking lending rate of interest by National Bank and Scheduled Banks in the recent past.
08. Further complainant has sought for award of Rs.7,00,000/- as compensation for mental agony and physical inconvenience, which again cannot be awardable, since, we have to keep in mind the principles of proportionalities, by the same time we have also to take notice of the fact that commission awarding interest on such amount keeping in mind as opposite party Nos.1 & 2 withheld the huge amount for all these years without adhering the terms of the agreement stated supra.
09. In the above such view of the matter, complainant has to be held entitled for interest on Rs.12,14,300/- at the rate of 9% per annum from the date of receipts till realization and Rs.50,000/- as compensation for the mental agony and physical inconvenience suffered all these years and Rs.25,000/- towards litigation cost which would meet the ends of justice to a consumer who had approached commission seeking redressal of his grievance.
10. Accordingly proceed to allowed the Complaint in part and directed the opposite party Nos.1 to 3 to pay the complainant a sum of Rs.12,14,300/- along with interest at the rate of 9% per annum from the date of receipts till realization and do pay Rs.50,000/- as compensation for the mental agony and physical inconvenience and Rs.25,000/- as litigation cost within 45 days from the date of order. Failing which the amount awarded as compensation and litigation costs shall carry interest at the rate of 12% per annum from such default till realization.
11. Send a copy of this order to both parties.
JUDICIAL MEMBER.
Knmp*
