Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member
This appeal takes an exception to the order dated 05/01/2008 in consumer complaint No.442/2006, Shri Anil Naryan Joshi & Anr. V/s. M/s.Ganashree Developers, passed by District Consumer Forum, Mumbai Suburban (‘Forum below’ in short).
It was a consumer complaint filed by the appellant/org. complainant against the respondent/developer-builder to claim compensation of the flat and also compensation for delayed possession. Forum below upholding the contention of the complainant, partly allowed the complaint and directed the builder to hand over the possession of the flat on receiving the balance consideration and also to pay cost of `1,000/-. All other reliefs claimed by the complainant were rejected. Feeling aggrieved thereby, builder-developer filed appeal unsuccessfully and thereafter, taken the matter before the National Commission in Revision Petition which also stood dismissed as per order passed in Revision Petition No.2082/2009 on 23/06/2009. However, as it appears, while arguments were advanced in the sister appeal i.e. one filed by the builder-developer, this appeal which is filed by org. complainant was not mentioned and taken up for hearing. The relief i.e. compensation of `1,75,000/- stood rejected by the Forum below and hence this appeal.
We heard both the parties. Perused the record.
Our attention was invited by the Learned Counsel appearing for the appellant to clause 3(g) from the complaint and then to prayer clause (b) relating to the claim of compensation of `1,75,000/- claimed in the complaint and which according to the appellant/org. complainant stood erroneously rejected.
“Clause 3(g) – The Complainants state that on 26th July 2005, their room in which they are presently residing is flooded with rain water their by causing damage to the tune of Rs.1,35,000/-. Had the opponent gave the possession of the flat in time i.e., on May 2005, the complainants could not have suffered such loss and damages and thus the opponent is liable to make good for the same.
Prayer (b) - The opponent be directed to pay to the complainant compensation of Rs.1,75,000/- (Rupees One Lakh Seventy Five Thousand only) for the mental anxiety and frustration which the complainants are suffering, fearing for the safely of their hard earned money.”
Referring to the impugned order, it is mentioned that though the complainants have claimed compensation of `1,75,000/- towards mental torture, it is seen that the complainants failed to substantiate the same and after considering the circumstances, Forum below in its own wisdom thought it fit to reject the same.
We specifically enquired from the Learned Counsel appearing for the appellant about the evidence they had adduced before the Forum below covering the claim of compensation of `1,75,000/-, supra. He conceded that there is no evidence lead on behalf of the complainant. Referring to the pleadings i.e. paragraph 3(g), supra, to which a reference is made, statement is made about flood and damage caused to the then premises occupied by the complainants and it is the grievance of the complainants that since possession of the flat was not given in time, they were forced to reside in old occupation and suffered damages. However, looking to the prayer clause, claim of `1,75,000/- was made for compensation for mental torture. There is neither evidence nor any material placed on record about alleged damage due to flood. There is no nexus established between said loss or damage and the mental torture for which compensation of `1,75,000/- is claimed though the conditions of mental torture are the one of substantive feeling, necessarily certain compensation ought to have been added narrating the circumstances on the basis of which said claim is based. Though, the actual evidence of mental torture felt not available, but repercussion thereof felt by the nearby relatives or the effect thereof on the action of the complainants which ought to have been narrated and evidence could have been adduced. Therefore, in the absence of any material, we find Forum below justified in holding that the complainants failed to substantiate their claim on this count. There is no reason to disturb the finding reached by the Forum below on this issue which is the subject matter of this appeal. Thus, finding the appeal devoid of any merit, we pass following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
