Aruna Khandelwal vs DELHI DEVELOPMENT AUTHORITY

PRESENT revision petition has been filed against order dated 27.7.2011, passed by Delhi State Consumer Disputes Redressal Commission, (for short ''State Commission '') vide which, appeal of the petitioner was dismissed.

PETITIONER /complainant had filed a consumer complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ''Act '') against respondent, for delayed possession of the flat, with following prayers ; "(1) To pay interest to the complainant at minimum rate of 18% on the total cost of the flat amounting to Rs.2,41,847.55 from atleast 9.8.1988 to atleast 8.7.1994 as compensation for denial of the possession of the flat inspite of full payment and completion of all required formalities ; (2) To further compensate the complainant for its gross delay in paying this compensation for so long inspite of repeated pleas to it, by paying interest on the amount payable as per (1) above from the date of possession of the flat (8.7.94) till the actual payment of this amount. (3) To compensate the complainant for the harassment caused and expenditure incurred by her in pursuing this matter with the DDA all these years involving a lot of travel, correspondence, waste of time and energy, whereas in normal and correct course of business, all these could have been avoided. "

District Forum, vide order 15.9.2010, allowed the complaint partly and passed the following directions; "(i) The OP shall pay @ 12 % interest p.a. on Rs.2,41,847.55 from 9.8.1988 to 8.7.1994. (ii) The OP shall pay Rs.25,000/- as compensation for mental agony, harassment and sheer suffering inclusive of the litigation cost. "

NOT satisfied with the quantum and the rate of interest, petitioner filed an appeal before the State Commission, which dismissed the same vide the impugned order.

LEARNED counsel for petitioner has pleaded for higher rate of interest and also for enhanced compensation. In support, learned counsel has relied upon a decision of Hon ''ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 7 CLD 8 (SC). State Commission in its impugned order has observed ; "3. The first contention of the counsel for appellant is with regard to the rate of interest. He says that the complainant should have taken the interest @ 12% as claimed by her in her complaint. On query from the counsel that how will he justify 18% rate of interest, his contention is that, in case of default of any installment, the OP charges 18% rate of interest and toeing the same line, the complainant deserves interest @ 18%. We are not inclined to agree with the contention of the counsel. This rate of interest cannot be applied vice versa and there is no such rule for it. 12% rate of interest is quite adequate and proper. The contention of the counsel for the appellant in this behalf is therefore, devoid of any substance. 4. The next and the last contention of the counsel for the appellant is that amount of compensation of Rs.25,000/- awarded to the complainant is on the lower side. 5. Consumer Courts are not a profit industry for litigant seeking damages. The quantum of damages as to the commensurate with the loss of agony suffered by the consumer. We do not subscribe to the view that the compensation awarded by the District Consumer Forum is on the lower side. It is true, and we will concede with the question of determination of compensation for mental harassment is a tricky one and some element of personal predilection inevitably gets involved but the principle is that an assessment made by a Forum need not be disturbed unless the award is outrageously minimal. We, therefore seem no sufficient reason to order enhancement. "

IN the complaint filed before the District Forum, petitioner nowhere quantified the amount of compensation. Nevertheless, District Forum quantified the same at Rs.25,000/-, which has been affirmed by the State Commission. Thus, we do not find any ground for enhancement of the compensation and no fault can be found with the reasoning given by the Foras below.

NOW coming to the rate of interest, in Ghaziabad Development Authority (supra), the Court observed ; "However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e., a recompense for the loss or injury. It therefore, necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus, the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. "

The Hon ''ble Supreme Court further held ; "As has been set out hereinabove, the National Forum has been awarding interest at a flat rate of 18% per annum irrespective of the facts of each case. This, in our view, is unsustainable. Award of compensation must be under different separate heads and must vary from case to case depending on the facts of each case. "

Keeping in view the principle of law laid down by Hon ''ble Supreme Court in Ghaziabad Development Authority (supra) we find no error in the impugned order declining to award interest @ 18% p.a.

IT is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited.

HON ''ble Supreme Court in Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. "

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act. Since, two fora below have givendetailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby dismissed with costs of Rs.5,000/- (Rupees Five Thousand only).

PETITIONER is directed to deposit the costs of Rs.5,000/-, by way of cross cheques, in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs, within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 17.8.2012 for compliance. Revision Petition dismissed.