D.R. RAIBOLE vs KAUSHIK V. CHHEDDA

APPELLANTS are the original complainants in the above complaint and they have filed this appeal against the order dated 29.4.2000 and although they have succeeded in all the points raised and set before the District Forum for consideration, they are required to approach this Commission in the appeal herein.

AT the outset, we wish to state that we are not able to comprehend the operative clause of the impugned order passed by the District Forum, Raigad rather in queer and strange manner as will be indicated hereinafter. (For brevity''s sake, appellants who are original complainants are hereinafter referred to as "Flat purchasers" and respondent who is original O.P. as "Builder"). Few relevant facts: These two complainants booked two separate flats with the builder in their project at Panvel. The transaction dates back to 28.9.1996. The flats earmarked for the respective complainants were A 202 and B 202 and both the agreements also bear the same date i.e., 28.9.1996. It is noticed that both the flat purchasers paid the booking amount and thereafter from time-to-time paid a sum of Rs. 1,10,000/- each and according to the flat purchasers, Builder had agreed to hand over the possession within 18 months of the date of agreement after completing the construction, which would be around March, 1998.

However, it is a case of the flat purchasers that despite payment of substantial consideration, they did not notice any progress in the construction work and as such both of them become concerned and approached the Builder, when the Builder informed them that the construction would commerce in December 1996.

HOWEVER, even, thereafter there was no progress noticed and, therefore, the flat purchasers demanded the amount paid to the builder towards the consideration with interest, as also compensation for mental agonies, etc. Eventually the flat purchaser with factual background as above approached the District Forum, Raigad.

IN response to the notice, builders appeared and in their written statement filed raised several points inter alia asserting that the common complaint filed by the flat purchasers/complainants was not maintainable, that the project of construction was delayed for the reasons beyond their control and power, that the flat purchasers by their letter dated 13.12.1997 agreed to have the flats in their different projects. Builders also stated that since the flat purchasers had agreed to shift to their other project, the complaint filed was not maintainable. Flat purchasers filed the rejoinder to the written say of the builders/O.P. categorically denying the case of the O.P./builders they having agreed to take the flats in the other project. As far as so called communication is concerned, this is what the flat purchasers have stated in their rejoinder: "Regional language omitted"

IT is to be stated that if one reads the rejoinder of the flat purchasers, they have in a categorical term denied they having agreed to opt for the flats in other project of the builders.

IT is relevant to note that matter vested there and although flat purchasers have made allegations against the builder, interpolating certain material in the form, which they had submitted, no further reply has been filed. With these findings, the District Forum set before it the following points for its consideration. The same appear in vernacular and are produced to appreciate the grievance to the flat purchasers in the appeal. "Regional language omitted"

It is to be stated that on point Nos. 1-4 the findings have been positively in favour of the flat purchasers/complainants and it is relevant to note that the said findings stand inasmuch as the same are against the builder/O.Ps. which have not been subjected to challenge in the appeal.

TO be precise, vide point No. 1 which is in vernacular, Forum has positively held that flat purchasers/complainants being consumers. Vide point No. 2 findings are rendered that the builders/O.Ps. have been deficient in rendering service to the complainants/flat purchasers. Other points in respect of point No. 5 are not very much relevant.

NOW as far as point No. 5 is concerned the District Forum had set the issue which can be translated in simple english as under: "Whether complainants are entitled to the compensation as claimed?" It is at this stage, that the District Forum went astray and totally ignoring and overlooking the fact in the matters herein, as also the statutory provisions as envisaged under Section 14(1)(d) of Consumer Protection Act, 1986 ordered that the complainants/flat purchasers should be provided the flats in the other project of the O.P./builders. Consequently, the main relief of the complainants/flat purchasers that the amounts paid by respective flat purchasers towards the consideration mentioned herein above be refunded to them was given complete go-bye.

THRUST of the grievance of the appellants in this appeal is that the Forum has virtually foisted its own order upon them, when they have not claimed the alternate flats but instead they have claimed refund of the amount of consideration paid by them to the O.Ps.

ACROSS the learned Advocate Mr. Tripathi representing the O.P./builder submitted that since the complainants/flat purchasers had agreed to switch over the flats in the other project, Forum was justified in making the award. It is not possible to accept the submissions as have been made by and on behalf of the O.Ps. in the terms as aforesaid.

First of all it is the basic requirement and the principal that party when it approaches the judicial or quasi judicial Forum, then, in the event of succeeding party establishes their case, the reliefs to be granted have to be in accordance with and in conformity with as parties claimed in the complaint or in the plaint. It is none of the business of the Forum to compel the party to accept anything against their Will and wishes and more so, when parties had not claimed or asked for the same.

THE flat purchasers have clearly explained in their rejoinder about the so called stand taken by the builders with regard to flat purchasers switching over to their other project and surprisingly we do not find even remoted whisper of the contents of the rejoinder in the impugned judgment. It would be thus evident that the District Forum has gone astray for no reason whatsoever and despite positive findings in favour of the complainants/flat purchasers has proceeded to make the award, which was not warranted by the facts and situation as also under the law.

UNDER Section 14(1)(d) of Consumer Protection Act, 1986 it is clearly mandated that moment the deficiency in service stands established or defect in the goods supplied established when reliefs to be granted have to be moulded in accordance with the statutory provisions only. Inasmuch as Section 14(1)(d) of Consumer Protection Act, 1986, which is relevant provides as under: "To pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party." Plain reading of the said provision clearly shows that the Forum in the event of consumer succeeding had to be compensated on two counts. Firstly, actual loss suffered by the successful consumer and secondly, which is also very important that the successful consumer has also to be separately compensated for injury suffered by the consumer due to negligence of the O.P.

IT is obvious District Forum has lost sight of such provision of the Statute and has proceeded to make the award in the manner as indicated herein above.

IN our view that being so, the operative clause of the award impugned in this appeal has to be set aside by allowing this appeal. Hence the following order: ORDER 1. Findings as rendered by the District Forum on point Nos. 1-4 stands confirmed. 2. As far as operative clause of the impugned order is concerned, we set aside the same and substitute as under: (a) O.Ps. shall pay a sum of Rs. 1,10,000/- each to complainant Nos. 1 and 2 with interest @ 12% p.a. w.e.f.1.4.1998 till realisation. (b) O.Ps. shall also pay compensation of Rs. 15,000/- to each of the complainants for the mental agonies suffered by them. (c) Cost of Rs. 500/- awarded to each of the complainants in the proceedings stands confirmed. (d) As far as this appeal is concerned, no order as to costs. (e) Copies of the order herein to be furnished to the parties.

Appeal allowed.