K A Nagamani vs Karnataka Housing Board

BY way of present revision petition, there is challenge to order dated 19.2.2007, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short "State Commission") vide which, appeal of the petitioner challenging order dated 21st December, 2006 passed by District Consumer Disputes Redressal Forum, Bangalore (for short "District Forum") was dismissed.

BRIEF facts of this case are that petitioner being aggrieved by the action of respondent in forfeiting the balance sum of Rs. 3,937, filed a complaint of deficiency in service in not handing over the possession within a period of one and a half years as stated in the brochure and in not constructing the allotted flat and negligence in considering the fact of non-construction of the allotted flat. It is further alleged that petitioner applied for the flat with respondent under Self-Financing Scheme but respondent unilaterally changed it to Composite Housing Scheme after the construction in Self-Financing Scheme was completed and not refunding the entire sum deposited therewith.

PETITIONER has made following prayers in her complaint made before the District Forum: "(a) to refund Rs. 3,937 towards the deposit lying with the opposite party and to pay the interest @ 27% p.a. from the dates mentioned against each figure for the deposit amount of Rs. 2,67,750; (b) to pay the cost of the proceedings."

ON notice, respondent appeared before the District Forum but it did not file its reply vide order dated 21st December, 2006, District Forum allowed the complaint of the petitioner and directed the respondent to pay interest @ 12% p.a. on Rs. 2,67,750, from the date of its respective deposits till realisation and also directed the respondent to refund an amount of Rs. 3.93 to the petitioner.

NOT satisfied with the order of District Forum, petitioner filed an appeal before State Commission challenging the order of District Forum insofar as it related to the award of interest @ 12% p.a. and made following prayer: "(a) .......... (b) enhance the rate of interest from 12% p.a. on Rs. 2,67,750 (Rupees two lakh sixty-seven thousand seven hundred fifty only) to 27% p.a. on Rs. 2,67,750 (Rupees two lakh sixty-seven thousand seven hundred fifty only) and direct the first respondent to pay an interest of 27% p.a. on Rs. 2,67,750 (Rupees two lakh sixty-seven thousand seven hundred fifty only) to the appellant from the date of its respective deposits till the date of realization. (c) awarding the cost of this appeal."

STATE Commission, vide impugned order dismissed the appeal of petitioner holding that award of interest @ 12% is just and reasonable.

AGGRIEVED by the order of State Commission, petitioner has filed present revision petition before this Commission.

ON 25.6.2007, revision petition was admitted and notice was issued to the respondent "limited to award of compensation only".

WE have heard the petitioner who has argued her case in person as well as gone through the written argument filed by her and also learned Counsel for respondent.

IT is contended by petitioner that award of interest @ 12% is not adequate and sufficient to completely compensate her as there has been mental loss, physical and mental sufferance and agony as well as harassment. Further, Section 14(1)(i) of the Consumer Protection Act, 1986 (for short as ''Act'') empowers Consumer Fora to provide adequate cost to the parties. It is also contended that instant case is the fit case for enhancement of interest from 12% to 27% as the deficiency is a continuing wrong having occurred in 1991 and petitioner suffered for no fault of her own.

OTHER contention of petitioner is that in many other cases, Supreme Court as well as this Commission has awarded interest upto 18% p.a. Petitioner has relied upon the following judgments in support of her contentions : (i) Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=AIR 2004 SC 2141; (ii) HUDA v. R.P. Chawla, R.P. Nos. 547 and 548 of 1997, decided on 31.8.2001; (iii) George Thomas v. GDA, I (1999) CPJ 18 (NC); (iv) Brij Pal Sharma v. GDA, III (2005) CPJ 43 (SC)=VI (2005) SLT 365; and (v) Lata Constructions v. Rameshchandra Ramnik Lal, III (1999) CPJ 46 (SC)=X (1999) SLT 77=AIR 2000 SC 380.

ON the other hand, it is argued by learned Counsel for the respondent that petitioner has filed complaint before District Fora in the year 2006, i.e. 11 years after the cancellation of the allotment and only prayer made in the complaint is to refund Rs. 3,937 and to pay interest @ 27% p.a. Similar prayer was also made by petitioner before the State Commission. Since, no legal issue is involved in this case, thus, revision petition is not maintainable.

AFTER perusing the record, we find that complaint filed before District Forum, was ex facie barred by the period of limitation. It appears that both the Fora below have overlooked this fact.

AS per petitioner''s own case, respondent had communicated her, vide letter dated 31st ''January, 1996 that house No. l 16 HIG-B allotted to her was not constructed due to the facts that land proposed to construct the above house was disputed by the land owners and the matter is yet to be settled and as such the same was changed to house No. 64 HIG-B5 1st Floor, which was intimated to the petitioner and final cost was fixed at Rs. 5,90,000.

ADMITTEDLY, petitioner on receipt of letter dated 31st January, 1996, submitted her representation dated 21st September, 1996 after about eight months, and raised objections to the change of scheme from S.F.S. to C.H.S. stating that it was unilateral and was not acceptable to her and requested respondent to allot flat under SFS, HIG-B only. As apparent from record, thereafter there has been no correspondence on behalf of the petitioner till year 2002. It was only in year 2002, petitioner again started making representations to the respondent.

IT is an admitted case that complaint was filed before District Forum in 2006, whereas the cause of action accrued in 1996. Thus, complaint filed before District Forum was hopelessly time-barred.

EVEN otherwise, in Balbir Singh (supra), Apex Court has observed: "However, the power and duty to award compensation does not mean that irrespective of the facts of the case, compensation can be awarded in all matters at a unilateral rate of interest 18% per annum."

WE agree with the concurrent findings given by two Fora below that interest @ 12% awarded to the petitioner, is just and reasonable.

PRESENT revision petition has been filed under Section 2(b) of the Act. It is well settled that powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

RECENTLY, Hon''ble Supreme Court in Mrs. 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.

IN the present petition, no jurisdictional or legal error has been shown to us to call for interference in the exercise of power under Section 21(b) of the Act, since, two Fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

IT is not that every order passed by Fora below is to be challenged by a litigant even when the same is passed on sound reasoning.

ACCORDINGLY, present revision petition is not maintainable being devoid of any merits and the same has been filed just to waste the time of this Commission. Accordingly, we dismiss the same with costs of Rs. 10,000 (Rupees ten thousand only).

PETITIONER is directed to deposit the costs by way of cross cheque for a sum of Rs. 10,000, in the name of "Consumer Legal Aid Account" within four weeks from today.

IN case, costs are not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a., till realization.

PENDING miscellaneous applications also stand dismissed being not maintainable.

LIST on 9th September, 2011, for compliance. Revision Petition dismissed.