BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 1271 OF 2013 AGAINST C.C.NO.105 OF 2012 DISTRICT CONSUMER FORUM RANGAREDDY
Between
- DLF Limited,
A company registered under the Companies Act, 1956,
Having its Registered office at DLF Shopping Mall,
3rd Floor Arjun Marg, DLF City Phase – I,
Gurgaon – 122002, Rep. by its Authorised Signatory
Mr.Chintalapati Srinivas S/o Venkata Ramaraju
Age 46 years, Occ: Employee
.
- M/s. DLF Homes Kokapet Pvt Ltd.,
Regd. Off: IE, Jhandewalan Extn.
Nazz Cinema Complex, New Delhi-110055
Rep. by its Authorised Signatory
Mr.Chintalapati Srinivas S/o Venkata Ramaraju
Age 46 years, Occ: Employee.
- DLF Commercial Developers Limited,
Regd. Off: 8-2-269/S/50/A, Road No.2,
Banjara Hills, Sagar Society,
Hyderabad – 500 034.
Rep. by its Authorized Signatory
Mr.Chintalapati Srinivas S/o Venkata Ramaraju
Age 46 years, Occ: Employee
- DLF India Limited,
A Company registered under the Companies Act, 1956,
Plot No.6, 7, 11, 12 and 14, Sy.No.83/1,
Hyderabad Knowledge City Phase-I,
APIIC Lay Out Raidurg Hyderabad – 81.
Rep. by its Authorized Signatory
Mr.Chintalapati Srinivas S/o Venkata Ramaraju
Age 46 years, Occ: Employee
Appellants/ opposite parties
AND
Mukul Purohit S/o Om Prakash Purohit
Age Major, Occ: Private Employee
R/o 205, Silpa Manor, Kondapur
Hyderabad-500084
Respondent/complainant
Counsel for the Appellants M/s P.Sriram
Counsel for the Respondent M/s A.Rajashekhar Reddy
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE NINETEENTH DAY OF MARCH
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties aggrieved by the orders of District Consumer Forum, Ranga Reddy dated 28.10.2013 made in CC No.105 of 2012 wherein it allowed the complaint directing the opposite parties to pay an amount of Rs.8,44,800/- towards loss of opportunity together with compensation of Rs.10,000/- and costs of Rs.5,000/-.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainant, in brief, is that the Opposite Party No.2 approached the complainant through various agents both online and in person claiming that they would be launching a prestigious residential project in Hyderabad with the name and style as DLF “Lake District Kokapet”. The complainant decided to settle down in Hyderabad and he came across the advertisements, presentations and brochures issued by the Opposite Parties and one Mr.Brigadier Mahinder Singh who is the authorized agent of the Opposite Parties gave the details of the project to the complainant. The complainant booked a flat and submitted his application form by paying an amount of Rs.4,00,000/- with Opposite Party No.2 vide cheque bearing No.359464 dt.15.04.2009. The Opposite Party no.2 confirmed the availability of flats for booking in the venture known as “the Summit at the Lake District” The Opposite Party No.2 encashed the cheque issued by the complainant and issued a receipt along with schedule of balance payments to be made by the complainant.
4. The complainant was allotted the flat admeasuring 1760 sft on the 14th floor in block ‘B’ in the Summit and the same was duly confirmed by Opposite Party No.2. The complainant invested his hard earned money with a fond hope that he would be house owner in a project developed by DLF, where the value of investments were almost doubled by the date of completion as the Opposite Parties are one of the reputed organizations in real estate sector. The complainant was disappointed by the slow pace of progress in the state of affairs in the above project and brought the said fact to the notice of Opposite Party No.2 through number of phone calls and emails. While so, the Opposite Parties people through letter dt.17.07.2009 informed that they are going to scrap the said project launching of a new project called the South End “New City Heights’” situated at Poppulguda, Hyderabad. The Opposite Party no.2 requested the complainant by way of their letter to move to this second project with an assurance to allot a flat of exactly same specification at the same terms and conditions as offered for the first project. After reviewing the new project and considering the promises made by the Opposite Parties 2 and 3, the complainant has agreed to move to the second project without prejudice to his rights and signed the consent letter dt.21.08.2009 and sent the same to Opposite Party No.2. Then a new flat in block ‘C’, unit-5, 6th floor, west facing was blocked for complainant. Subsequently, the complainant received information from the Opposite Party no.2 about the progress of the second project and also about the Bhoomi Pooja performed by them and about the approvals obtained from the concerned authorities. The complainant was asked to pay an amount of Rs.3,27,393/- in the demand note sent by the Opposite Parties for the flat of the second project. The complainant sent the duly filled application form and a cheque bearing No.359474 dt.03.04.2010 for the above said amount drawn on ICICI Bank and intimated the same to Opposite Party No.2.
5. To his utter shock and surprise, the complainant received a mail dt.25.05.2010 from Opposite Party No.2 which was in complete violation of all the promises made by them previously by scrapping of 2 BHK flats and availability of only 3 BHK flats in its place with a minimum area of 1529 sft. The opposite party no.2 confirmed that the flat was blocked in the name of the complainant for a total sale consideration payable at Rs.49,52,000/-. At this juncture, the complainant having waited for almost 1 ½ year was left with only two options, either to take the booking amount back or opt for a 3 BHK which was beyond his financial capacity. The complainant strongly opposed the decision of Opposite Parties to increase the price and to change specifications arbitrarily without consulting them before finalization. However, considering the dream of owning a house, the complainant opted to own a 3 BHK after deliberations with his family members and friends and intimated the same to the Opposite Parties. In response to his mail, representative of Opposite Party No.2 confirmed the blocking of a 3 BHK flat for complainant with revised specifications and price sheet. The Zonal head of Opposite Party No.1 gave a statement in press that they are going ahead with the second project. During December, 2010, the complainant was again informed that the second project is going to be scrapped by showing legal issues as the reason. The complainant was utterly surprised to receive a mail dt.22.02.2011 from Opposite Party No.2 wherein the complainant is asked to take back his amounts with 6% interest to wash off their hands. The Opposite Parties issued letters, correspondences, application forms and emails so as to create confusion with an ulterior motive to deceive and deprive the complainant to own a flat which amounts to unfair trade practice. The complainant got issued a legal notice dt.20.04.2012 and there is no response from the Opposite Parties. Hence the complaint praying to direct the opposite parties to send cancellation letter in the name of New City Heights project stating the reason for its abandonment and to refund the amount of Rs.4,00,000/- paid by him and to pay an amount of Rs.12,50,000/- towards the loss of opportunity besides paying Rs.3,00,000/- as punitive damages for the mental agony and frustration suffered by him.
6. The Opposite Parties resisted the case contending that the issue involved in the present case is purely of contractual nature and therefore this Forum has no jurisdiction to try and entertain the present complaint. It is further contended that the complainant booked the apartment after knowing the information regarding the project through their representatives and on the basis of his own knowledge. The complainant invested in their project in spite of informing about the pending litigation surrounding the project land. The said litigation prevented them from executing the project and they constrained to abandon the project. There was no misrepresentation or misguidance from their side. It is clearly stated at Clause-17 of the application which was signed by the complainant that “the Applicant agrees and acknowledges that the company, in its sole discretion may abandon the project without assigning any reason thereof and in such an eventuality, the liability of the company shall be limited only to refund the amount received from the applicant along with 6% interest per annum from the date of receipt of such amount and the applicant shall have no other claim of any nature whatsoever”. The issue involved in the present case has arisen out of the said application form which contains some terms and conditions. Therefore, it is purely a contractual matter between the parties. The unavoidable shifting of project is due to unforeseen delay in the pending litigation which caused great agony to them with huge monetary loss. Hence, they offered a similar flat in the second project to the complainant. They never forced the complainant to shift to the other project and the complainant opted to take the flat on his own free will. They never encashed the cheque issued for Rs.4,00,000/- by the complainant. Due to revision in building plans, only 3 BHK flats were offered and the complainant was duly informed of the same and given the option either to continue in the project or to take back their amount with agreed rate of interest at 6% p.a. The financial burden of the complainant cannot be attributed to them as they are always prepared to cancel the booking and return the money. The complainant was always kept informed of the situation.
7. As per Clause-33 in the application form, the applicant agrees to settle the disputes or differences only through arbitration. Hence, this Forum does not have jurisdiction over a contractual matter where an alternative remedy is provided to the parties under the contract. The interest of 24% p.a. as claimed by the complainant is highly exorbitant and unreasonable. The complainant is not entitled to claim any damages or other reliefs as claimed in the complaint. Therefore, it is prayed to dismiss the complaint with costs.
8. In proof of the complainant’s case, he filed his evidence affidavit and got marked Exs.A1 to A22. On behalf of the opposite parties, the Authorized Signatory of opposite party no.2 filed his evidence affidavit and got marked Exs.B1 and B2.
9. The District Forum after considering the material available on record, allowed the complaint bearing CC No. 105 of 2012 by orders dated 28.10.2013 as stated in paragraph No.1, supra.
10. Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to appreciate the settled law laid down in the cases of Bharathi Knitting Co. Vs Kerala State Electronics Development Corpn Ltd., reported in II (2004) CPJ in which it was held that a person who signs document containing contractual terms is normally bound by them even though he had not read them or was ignorant of their precise legal effect. In case of project abandonment the appellants are liable to refund booking amount at agreed 6% interest and the opposite parties have handed over the same to the complainant while the matter was pending before the District Forum. The District Forum failed to consider clause 17 of the Application Form wherein it clearly states that it is the sole discretion of the appellants/opposite parties to abandon the project without assigning any reason thereof and in such eventuality the liability of the appellants/opposite parties shall be limited, only to rend the amount with interest @ 6% per annum from the date of such amount and that the complainant shall have no other claim of any nature whatsoever. The District Forum is without any jurisdiction as it is purely a contract/breach or otherwise of the terms and conditions of an application from/agreement executed between the parties. The advance amount of Rs.4.00 lakhs was paid back to the complainant with interest @ 6% per annum totaling to Rs.4,39,709/- after deducting TDS as per the terms and conditions of the application form. Hence, the opposite parties prayed to allow the appeal by setting aside the order of the District Forum and dismiss the complaint.
11. None appears. None of the parties have filed their written arguments.
12. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
13. The preliminary objection raised by the Opposite Parties is that the issue involved in the present case is purely of contractual nature and therefore this Forum has no jurisdiction to entertain the present complaint.
14. Section 2 (1) (o) of the Consumer Protection Act, defines 'service' as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
15. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a 'consumer', as stated above. In the instant case, Ex.A2, is the brochure issued by the opposite parties which discloses the proposed construction of the house with infrastructure. It is therefore cannot be said that the District Forum has no jurisdiction to entertain the complaint and the same is rejected.
16. The next argument advanced by the learned Advocate for the Opposite Parties is that there is an arbitration clause in the application form which is marked as Ex.B1 (No.33) which reads as under:
“The applicant agrees that, in the event of any dispute or differences arising out or touching upon or in relation to the terms of this Application including the interpretation and validity of the terms thereof and the respective rights and obligations of the Applicant and the Company, shall be referred by any party for adjudication, to a sole arbitrator to be appointed by the Managing Director of the Company whose decision shall be final and binding upon the parties. It is understood that no other person or authority shall have the power to appoint the arbitrator. The arbitration proceedings shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereof for the time being in force. The arbitration proceedings shall be held at Hyderabad only. The courts in R.R.District shall alone have the jurisdiction”.
17. In view of the above clause, the learned counsel contends that the present complaint is not maintainable before this Forum and the present dispute shall be referred for adjudication to a sole arbitrator to be appointed by the Managing Director of the company. We do not find any force in the said contention.
18. The Consumer Protection Act, 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Fora were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent Rs.4,00,000/- for booking of the flat in the said project, launched by the opposite party. However, his hopes were shattered, when despite making payment of amount he failed to get the flat, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.
19. Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
In view of the above, the plea taken by the opposite party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected."
20. In view of the above, the objection raised by the Opposite Parties, being devoid of merit, is rejected.
21. It is not in dispute that the complainant booked a 2 BHK flat in 14th floor of block ‘B’ which is admeasuring 1760 sft. Ex.B1 is the application form submitted by the complainant for allotment of the said flat. The opposite parties contended that as per clause 17 of the terms and conditions of Ex.B1 it is the sole discretion of the appellants to abandon the project without assigning any reason and in such an eventuality the liability of the opposite pares shall be limited only to refund the amount received from the complainant with interest @ 6% per annum from the date of receipt of such amount and that the complainant shall have no other claim of any nature whatsoever. According to the learned counsel, the “Summit Project” had to be abandoned due to litigation of the property. On the other hand, the learned counsel for the complainant would submit that there is no proper explanation from the side of the Opposite Parties for cancellation of the above project i.e. due to “Force Majeure” as described in the terms and conditions. Even though the Opposite Parties did not file any documentary evidence to show that any third parties succeeded in the litigation, the complainant is aware of the said fact even at the time of submitting the application form with terms and conditions forming part of the application.
22. The word "force majeure" has been defined in Concise Law Dictionary by P. Ramanatha Aiyar as "irresistible force or compulsion; circumstance beyond one's control". It was held by the Hon'ble Apex Court in AIR 1961 SC 1285 (M/s Dhanrajamal Gobindram v. M/s Shamji Kalidas and Co.) that force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidalwave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control.
23. To take refuge under the force majeure circumstances, it was incumbent on the part of the opposite parties to prove that the alleged circumstances were beyond their control. There may be litigations pending before the High Court of A.P. filed by third parties against HMDA and other authorities with regard to the land, but the opposite parties were bound to fulfil their commitment under the Agreement for developing the Project and delivering the possession of the plot to the complainant within the agreed time. These were the circumstances, which could have been foreseen and should have been kept in mind while agreeing upon the terms and conditions so mentioned in the application form/ Agreement. If these are to be taken as an excuse to wriggle out of the condition so imposed in the application/agreement, then in every case such a plea would be taken as an excuse for not performing their part of the contract, by the Developers.
24. Evidently, the first project was cancelled on 17.07.2009 i.e. after one month of the booking. After negotiations, the complainant gave his consent to the Opposite Party no.2 to take a flat in the second project on 28.07.2009 and the complainant received the second demand note for Rs.3,27,393/- on 12.03.2010 and the same was paid to the opposite parties. Thereafter the opposite parties informed to the complainant that the second project is moving as planned and they expect to receive the approvals by the end of September, 2009. There is no justification on the part of the Opposite Parties to cancel the projects as and when they wish simply on the ground that they need not assign any reasons to do so as per the terms of the Agreement. It is the duty of the Opposite Parties to explain the circumstances which are beyond their control to continue the second project. The documents filed by the complainant clearly goes to show that the Opposite Parties made false representations and dragged the time for nearly 2 years without any progress in the construction.
25. The Opposite Parties relied upon a decision of our Apex Court in Bharathi Knitting Company Vs DHL Worldwide Express Courier (AIR 1996 SC 2508) wherein their lordships held that normally parties are bound by the contractual terms when they signed on the document. It is further observed that in an appropriate case, the tribunal without trenching upon acute disputed questions of fact may decide the validity of the terms of the contract based upon the fact situation and may grant remedy.
26. It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. The following view taken by the Hon'ble Supreme Court in this regard in Bharathi Knitting Company Vs. DHL Worldwide Express JT 1996 (6) SC 254 is pertinent:
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, learned senior counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. It is true, as contended by Mr. M.N. Krishnamani, that in an appropriate case the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon its own facts".
27. However, a term of a contract will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice. The term providing for payment of a nominal compensation such as interest @ 6% having become the order of the day in the contracts designed by big builders, a person seeking to buy an apartment is left with no option but to sign on the dotted lines since the rejection of such term by him would mean cancellation of the allotment. A person seeking to acquire a built up flat instead of purchasing a plot and then raising construction on it, therefore, is not in a position to protest or resist the inclusion of such a term in the Application Form/ Agreement, and has to rely upon the reputation of the builder, particularly if he is a big builder. A person who, for one reason or the other, either cannot or does not want to buy a plot and raise construction of his own, has to necessarily go in for purchase of the built up flat. It is only natural and logical for him to look for an apartment in a project being developed by a big builder such as the opposite party in this complaint. Since the contracts of all the big builders contain a term for payment of a specified sum as compensation in the event of default on the part of the builder in handing over possession of the flat to the buyer and the flat compensation offered by all big builders is almost a nominal compensation. The flat buyer is left with no option but to sign the Application Form/ Agreement in the format provided by the builder. No sensible person will volunteer to accept compensation constituting about lesser interest of his investment in case of delay on the part of the contractor, when he is made to pay 18% compound interest if there is delay on his part in making payment.
28. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable. The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay lesser interest on the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer. Such a term in the Application Form/Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him. He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance. If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc. The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word "including" before the words "any of the following practices".
29. The appellants/opposite parties filed the judgment of the Hon’ble National Commission in the case of M/s DLF Commercial Developers Vs Vipin Kumar Mittal in R.P.No.1556 of 2014 decided on 19.02.2016 wherein the National Commission allowed the Revision Petition reducing the interest awarded by the District Forum from 18% to 6% on the amounts paid by the complainant. Here, in the present case the situation is different from that the above judgment, in the instant case the terms of agreement bind the complainant only in respect of first project but the complainant gave their consent for taking flat in the second project. However, according to the judgment of the Hon’ble National Commission with regard to agreed rate of interest mentioned in the application form, the opposite parties already refunded the amount of Rs.4,00,000/- with interest @ 6% per annum after deducting TDS which is sufficient in so far as the relief with regard to the first project is concerned.
30. The complainant claiming an amount of Rs.12,50,000/- towards the loss of opportunity and punitive damages as he was not in a position to purchase flat with the same rate as prevailing during the year 2009. The District Forum has awarded punitive damages of Rs.8,44,800/- towards loss of opportunity for which it had given the following reasons:
Loss of opportunity and punitive damages: The claimant is claiming an amount of Rs.12,50,000/- towards the loss of opportunity as he was not in a position to purchase a flat with the same rate as prevailing during the year 2009. Evidently, the complainant agreed to purchase 1760 sft @ Rs.1,850/- for each sft in the beginning for a total price of Rs.32,56,000/-. He also agreed to pay Rs.2,46,400/- towards Township Infrastructure Charges (TIC). In total, he agreed to pay an amount of Rs.35,02,400/- in the beginning. After cancellation of the first project, the complainant agreed to increase Rs.400/- in the base price for sft and also to pay Rs.220/- instead of Rs.140/- for TIC. Due to the cancellation of the second project, the complainant has to pay Rs.39,60,000/- (Rs.1,760/- x Rs.220/-) besides paying Rs.3,87,200/- (Rs.1,760/- x Rs.220/-) if he wants to take a 2 BHK flat for the present. The difference in the values comes to Rs.8,44,800/- (Rs.43,47,200 – Rs.35,02,400/-). Therefore, it is reasonable to award the said sum towards loss of opportunity. Punitive damages (exemplary damages) will be awarded where the wrong or injury is of grievous nature to serve as deterrent on the wrong doer not to repeat the wrong. After considering the circumstances of this case, we deem it fit to award compensation towards mental agony suffered by the complainant without awarding any punitive damages. Therefore, we are awarding Rs.10,000/- as compensation for mental agony and Rs.5,000/- towards costs. We answered this point accordingly.”
31. In view of aforesaid discussions, we come to this conclusion that the impugned order passed by the District Forum, is well reasoned order and discussed categorical of its order as to what has been the deficiency on the part of opposite parties. The impugned order does not suffer from any irregularity or illegality and does not call for any interference by this Commission. Hence, the point framed at para No.12, supra, is answered accordingly in favour of the complainant.
In the result this appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs. Time for compliance four weeks .
PRESIDENT MEMBER
19.03.2018