Chandigarh

StateCommission

A/162/2023

GURMIT KAUR - Complainant(s)

Versus

PRIMARY ESTATES & DEVELOPERS PRIVATE LIMITED - Opp.Party(s)

Savinder Singh Gill & Hoshiar Chand Adv.

16 Oct 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Additional Bench)

==============

 

Appeal No.	:	A/162/2023
Date of Institution	:	12.07.2023
Date of Decision	:	16.10.2024

 

1]       Gurmit Kaur w/o Sh. Sukhdev Singh, Resident of H.No. 606, PSEB Housing Complex, Sector 68, Mohali, Punjab – 160062.

2]       Sukhdev Singh s/o Sh. Pritam Singh, Resident of H.No. 606, PSEB Housing Complex, Sector 68, Mohali, Punjab – 160062.

                                                                                         ... Appellants

                                                         Versus

1]       Primary Estates & Developers Pvt. Ltd., having its Registered Office at H.No. 38, Sector 10-A, Chandigarh, through its Directors Sh. Jashneet Singh, Sh. Vijay Rana, Sh. Gulshan Wadhawan, Sh. Samar Mohan Ranga and Sh. Ashish Sachdeva.

2]       M/s Bajwa Developers Limited, Regd. Office at Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, Punjab, through its Director Sh. Jarnail Singh Bajwa.

                                                                                               …Respondents

 

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       MR.PREETINDER SINGH, MEMBER

 

Argued by:    Sh. Savinder Singh Gill and Sh. Hoshiar Chand, Advocates for the Appellants.

                      Sh. Ishtneet S. Bhatia, Advocate for Sh. Ashish Sachdeva, one of the Directors of Respondent No.1.

PER PADMA PANDEY, PRESIDING MEMBER

 

1]                This appeal is directed against the order dated 09.06.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (hereinafter to be referred as “the Ld. District Commission”), vide which, it partly allowed the Consumer Complaint bearing no. 416 of 2020 in the following terms;

1. In view of the foregoing discussion, the complaint is partly allowed with a direction to OP No.1 to pay lump sum compensation of Rs.50,000/- on account of mental agony and physical harassment as well as litigation expenses to the complainants within a period of 45 days from the date of receipt of its copy failing which they shall be liable to pay interest @9% per annum on the awarded amount from the date of this order till it is paid.”

2]                For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

3]                Before the Ld. District Commission, it was the case of the Complainants that they booked an independent floor in the project being developed by the Opposite Parties under the name and style “Arcadia Country Homes”, situated at Sector 123, SAS Nagar, Mohali on 08.09.2015 by paying booking amount of ₹2,95,000/. Vide allotment letter dated 24.07.2016, the complainants were allotted Floor/Flat No.251/GF in the said project for total price of ₹26,45,000/-. The complainants paid a sum of ₹25,88,577/- to the Opposite Parties in different installments vide Annexures C-2 (Colly) and C-3 by availing the loan from the Bank. The Floor Buyer’s Agreement was executed between the complainants and Opposite Party No.1 on 25.08.2016,  and as per Clause 10(a) of the said agreement, the possession was to be given within 18 months from the signing the agreement or from the date of commencement of the construction i.e. by 24.02.2018.  The Opposite Parties offered the possession of the unit on 01.12.2019 without obtaining the completion certificate and occupation certificate. There was inordinate delay in offering the possession of the unit. As per the District Town Planner, GMADA, Mohali, Opposite Party No.2 was declared a defaulter and no completion certificate was issued in respect of the project in question till date. The project site lacks the basic amenities what to talk of the promises by Opposite Party No.1. Moreover, Opposite Party No.1 was registered as a promoter by GMADA on 13.02.2014, which was valid upto 30.11.2018. Hence the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

4]                Despite availing repeated opportunities, the Opposite Parties failed to file reply and evidence by way of affidavits and as such, their defence was ordered to be struck vide order dated 28.12.2021 by the Ld. District Commission. 

5]                On appraisal of the pleadings of the parties and evidence adduced on record, Ld. District Commission partly allowed the Consumer Complaint of the complainants as noticed in the opening para of this order.

6]                Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellants/ Complainants.

7]                During the present proceedings before this Commission on 08.08.2023 Learned Counsel for the Appellants gave up Respondent No.2. However, Sh. Jashneet Singh, Sh. Vijay Rana, Sh. Gulshan Wadhawan, Sh. Samar Mohan Rang, Directors of Respondent No.1 did not turn up despite service of notice through publication and hence they were proceeded ex-parte vide order dated 14.02.2024.

8]                We have heard the Learned Counsel for the contesting parties and have gone through the evidence and record of the case with utmost care.

9]                The core question that falls for consideration before this Commission is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it.          

10]               After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be partly accepted for the reasons to be recorded hereinafter.        

11]               It is the case of the Appellants/Complainants that the impugned order passed by the Ld. District Commission suffers from several patent irregularities and the same needs modification and the amount of compensation should be enhanced. Learned Counsel for the Appellants/ Complainants submitted that the Ld. District Commission failed to grant interest for delay in handing over of the possession of the subject flat and only granted lump sum compensation of ₹50,000/- ignoring the other reliefs as claimed by the Appellants/ Complainants. In support of this, he placed reliance on DLF Homes, Panchkula (P) Ltd. Vs. Sushila Devi, C.A. Nos. 2285-2330 of 2019 and Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Complaint No.12 of 2017, wherein @9% interest was granted from the committed date of delivery till possession is delivered. Learned Counsel further submitted that the Ld. District Commission failed to appreciate the fact that the Respondents do not have the requisite occupation & completion certificate from the competent authorities and as such said possession cannot be deemed to be legal and complete.  

12]               However, per material available on record, we are not inclined to accept the submissions made by the Learned Counsel for the Appellants/ Complainants qua grant of @9% interest from the committed date of delivery till possession is delivered, in view of the fact that during the course of arguments on 29.05.2023 before the Ld. District Commission, Learned Counsel for the Complainants stated that sale deed had already been executed as prayed in Para 14 Cl. (a) of the prayer clause and the complaint has already been satisfied and now he wanted to pursue the complaint for compensation only. Even a categorical finding to this effect has been recorded by the Ld. District Commission in Para 5 of the order impugned before us. In the said backdrop, to our mind, the Appellants/Complainants cannot derive any benefit from the judicial pronouncements of DLF Homes, Panchkula (P) Ltd. Vs. Sushila Devi, (supra) and Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture (supra) and as such, the prayer made for award of interest @9% p.a. from the committed date of delivery till date of possession is rejected.

13]               Now, adverting to the other limb of submission made by the Learned Counsel for the Appellants/Complainants that Ld. District Commission failed to grant proper compensation and the compensation awarded is highly inadequate. It is well settled that the word ‘Compensation’ is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors., (2000) 7 SCC 668 are also apposite:-

 

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

 

14]               In Lucknow Development Authority v. M K Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the Consumer Protection Act observed that  “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”. Under these circumstances, the complainant is entitled to get, special, exemplary and aggravated damages.  So on account of inconvenience, physical and mental harassment suffered by the Appellants/Complainants at the hands of the Respondents, ₹1,00,000/- would be just and reasonable to be awarded as compensation. In this view of the matter, the orders passed by the Ld. Lower Commission, granting meagre compensation needs modification. 

 

15]               In view of above, the present appeal stands partly accepted. The orders of the Ld. District Commission are modified to the aforesaid extent. The order be complied with by Opposite Party No.1, within a period of 30 days from the date of receipt of its certified copy, failing which, Opposite Party No.1 shall be liable to pay penal interest in the manner as directed by the Ld. District Commission.

 

16]               No other point was urged by the Counsel for the Parties.

 

17]               Certified Copies of this order be sent to the parties, free of charge.

 

18]               The file be consigned to Record Room, after completion and the Ld. District Commission be sent back immediately.

Pronounced

16^th Oct. 2024

                                                                                                                             

Sd/-  [PADMA PANDEY]

PRESIDING MEMBER

Sd/- [PREETINDER SINGH]

MEMBER

 

“Dutt”