State Consumer Disputes Redressal Commission
Sumit Singla vs National Consumer Awareness Group ... on 13 July, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Appeal No. 54 of 2016 Date of Institution 08.02.2016 Date of Decision 13.07.2016 Sumit Singla son of Sh. Gian Chand Singla, resident of House No.2046, Phase 2, Urban Estate, Patiala. .....Appellant/Complainant. Versus National Consumer Awareness Group Society, through its Chairman Sh.P.J.S.Mehta resident of Apartment No.401, Building No.19, Royal Estate, Zirakpur, SAS Nagar, Mohali. ......Respondent/Opposite Party. Argued by: Sh. Ashish Bansal, Advocate for the appellant. Sh. Jasmandeep, Advocate for the respondent. Appeal No. 75 of 2016 Date of Institution 10.03.2016 Date of Decision 13.07.2016 Daya Rani wife of Sh. Ragbir Chand, resident of House No.35, Ward No.11, District Sangrur (Pb.). .....Appellant/Complainant. Versus National Consumer Awareness Group Society, through its Chairman Sh.P.J.S.Mehta resident of Apartment No.401, Building No.19, Royal Estate, Zirakpur, SAS Nagar, Mohali. ......Respondent/Opposite Party. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. Ashish Bansal, Advocate for the appellant.
Sh. Jasmandeep, Advocate for the respondent.
PER PADMA PANDEY, MEMBER By this order, we propose to dispose of, following two appeals:-
FA/54/2016 Sumit Singla Vs. National Consumer Awareness Group Society.
FA/75/2016 Daya Rani Vs. National Consumer Awareness Group Society.
2. The aforesaid two appeals i.e. bearing No.54 of 2016, filed by Sh.Sumit Singla (complainant), against the order dated 09.12.2015 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short 'the Forum' only) and the other appeal bearing No. 75 of 2016 filed by Mrs.Daya Rani (complainant), against the order dated 05.02.2016 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short 'the Forum' only), vide which, the consumer complaints bearing Nos. 120 of 2015 and 793 of 2014 were dismissed.
3. Arguments were heard in common, in the aforesaid appeals, as the issues involved therein, except minor variations, here and there, of law and facts are the same.
4. To dictate order, facts are being taken from Consumer complaint bearing No. 120 of 2015, titled as " Sumit Singla Vs. National Consumer Awareness Group Society" before the Forum.
5. The facts, in brief, are that the complainant became the Member of the Opposite Party's Society, in the year 2005, and deposited the membership fee of Rs.1000/- (Annexure C-1). On the same day i.e. 21.11.2005, the complainant also deposited a sum of Rs.1,50,000/- towards the land cost vide receipt Annexure C-2. It was stated that the society also issued confirmation letter of receipt of Rs.1,50,000/- towards the land cost and demanded balance payment of Rs.1,50,000/- (Annexure C-3). In pursuance of the demand raised by the Opposite Party, the complainant deposited an amount of Rs.1,00,000/- vide demand draft on 27.12.2005 and another sum of Rs.50,000/- vide demand draft on 12.01.2006 i.e. total sum of Rs.1,50,000/- with the Opposite Party vide receipt (Annexure C-4). Thereafter, the Membership Certificate (Annexure C-5) was issued to the complainant. It was further stated that the Opposite Party further demanded an amount of Rs.37,500/- from the complainant as payment towards the margin money of the said flat vide letter dated 26.02.2006 (Annexure C-6) and it was also intimated that the total cost of four bedroom super deluxe flat would be Rs.22,50,000/- (Annexure C-6). The complainant deposited an amount of Rs.37,500/- on 14.03.2006 vide receipt Annexure C-7. Thus, the complainant deposited a total sum of Rs.3,37,500/- towards the land cost and Rs.1000/- as membership fee, but despite making the said payment, the Opposite Party failed to deliver possession of the flat to the complainant. It was further stated that the complainant was astonished to receive a letter dated 26.12.2008 (Annexure C-8), vide which, the Opposite Party invited all the members including the complainant. Upon receipt of the invitation, the complainant duly attended the meeting, which was held on 11.01.2009 at Auditorium, Arts College, Sector 10, Chandigarh and in the meeting, it came to the knowledge of the complainant that the land measuring 15.56 acres purchased by the society in Sector 92, Mohali from the funds of the Members has been declared as institutional land. The Opposite Party assured in the meeting that the said land would be sold and the amount received after selling the land would be distributed among the existing Members as on 11.01.2009 proportionately (Annexure C-9 & C-10). As such, the complainant started waiting for the sale of land and refund of proportionate share so that he could purchase flat, but despite repeated requests, visits and letter sent to the Opposite Party, it failed to refund the amount. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the "Act" only), was filed.
6. In its written statement, the Opposite Party, admitted the deposit of amount by the complainant and stated that the Opposite Party had purchased about 15.56 Acres of land at Sector 91 and 92-A Mohali, in the year 2005, for construction of flats for its members on 'no profit no loss' basis. However, the Director, Town and Country Planning Department, Punjab, Chandigarh prepared a Master Plan for the development of the town of Mohali in the year 2008, which was passed thereafter. Under the master plan, the land purchased by the Opposite Party Society falling under Sector 91-92-A Mohali for constructing residential flats for its members was reserved for institutional purposes only and disallowed the construction or use for residential purposes. It was further stated that the Opposite Party tried its best efforts to seek the permission of the State authorities to construct residential flats for its members but could not succeed. Therefore, a meeting was convened and all the Members of the Society had decided to sell the land and to return the amount of the respective members of the Opposite Party with proper interest. Accordingly, an advertisement for the sale of land in various newspapers was made. It was further stated that agreement to sell cum memorandum of understanding for Twenty One Crore Seventy Eighth lacs and Forty Thousand (Rs.21,78,40,000/-) dated 14.07.2014 had been entered into by the Opposite Party Society for the sale of land belonging to the society in the interest of members of the society. It was further stated that the Opposite Party Society already sold the land and distributed the entire sale proceeds amongst the members and refunded the proportionate share to the members. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
7. The parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, dismissed both the complaints, vide the impugned order, as sated above.
9. Feeling aggrieved, Sh. Sumit Singla and Smt.Daya Rani, filed the separate appeals bearing Nos.54 of 2016 and 75 of 2016, before this Commission, as stated above.
10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellant/complainant (Sh.Sumit Singla) in (Appeal No.54 of 2016) submitted that the Forum, while passing the impugned order, failed to appreciate the fact that once the respondent/Opposite Party society admitted the receipt of payments and failure on their part to deliver possession of the flat and refund of money till today, the deficiency of service was proved. He further submitted that the Opposite Party society failed to intimate the fact regarding sale agreement till today to the appellant nor any intimation was ever sent to him offering the proportionate amount and it was only when the complaint was filed, the Opposite Party offered to pay a meagre amount after ten years to the complainant, which clearly shows the malafide intention of the Opposite Party. He further submitted that the Forum committed a grave error in dismissing the complaint of the appellant simply on the basis of surmises and conjectures and also on the flimsy grounds, which is not sustainable in the eyes of law and prayed for allowing the appeal and setting aside the impugned order.
12. The Counsel for the respondent/Opposite Party submitted that the Opposite Party offered to compromise the matter before the Forum and disclosed that other members of the society had agreed to receive such share of money, as per their entitlement, as per Annexure R-8 to R-18 but the complainant was adamant and he did not agree for the same. He further submitted that the respondent/Opposite Party was still ready to compromise the matter, if the appellant/complainant agreed for the same. He prayed for dismissal of the appeal, filed by the complainant(s).
13. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be partly accepted and the impugned order passed by the Forum is liable to be set aside, for the reasons to be recorded, hereinafter.
14. The core question, that falls for consideration, is, as to whether, the Forum has rightly dismissed the complaint. The answer, to this question, is in the negative. Annexure C-1 is a copy of the Membership Form. From this document, it is proved that the complainant became the member of Opposite Party society and paid an amount of Rs.1,000/- as membership fee on 21.11.2005. It is also proved from Annexure C-2 that the complainant paid an amount of Rs.1,50,000/- to the society vide receipt dated 21.11.2005. Annexure C-4 are the copies of receipts dated 27.12.2005 and 12.01.2006. From these documents, it is proved that the complainant also paid an amount of Rs.1,00,000/- vide receipt dated 27.12.2005 and Rs.50,000/- vide receipt dated 12.01.2006. Annexure C-6 is a copy of letter dated 26.02.2006, in which, the tentative cost of HIG 4 bedroom super deluxe flat was mentioned as Rs.22,50,000/- approx. and the Opposite Party demanded an amount of Rs.37,500/- from the complainant. Annexure C-7 is a copy of receipt of Rs.37,500/-, which was paid by the complainant to the Opposite Party on 14.03.2006. So, it is clearly proved that the complainant paid the total amount of Rs.3,37,500/-. It is the admitted fact that the Opposite Party neither allotted the flat nor refunded the amount to the complainant. It was disclosed by the Opposite Party that on 11.01.2009 a resolution of the General Body Meeting of the society was passed, wherein, the difficulty being faced by the society in constructing the flats as the same was barred due to Government Policy having declared the assets as institutional land was taken note of, and, therefore, it was resolved that the entire assets of the society be put to sale and the existing members would be entitled to the share of such sale proceeds, after the sale of land in question. It is not the case that the complainant did not know about the said resolution dated 11.01.2009 and in fact, he agreed to resolution of sale of property. Even the Opposite Party stated in its written statement that some of the members approached the Permanent Lok Adalat, Mohali in the year 2013 for refund of their amount deposited with the respondent Society and during the proceedings, the Permanent Lok Adalat took upon itself the responsibility to sell the land of the society and issued a publication in the Sunday Tribune, Chandigarh and Rozana Ajit Jalandhar dated 08.12.2013 inviting tenders to be submitted within 30 days. However, no offer was received by the Permanent Lok Adalat in this respect. The Opposite Party disclosed that now with great efforts and hardships, the land, which was sold to a third party namely M/s Baba Banda Bahadur Enterprises, SCO No.522, 2nd floor, Sector 70, Mohali, as is evident from Agreement to Sell (Annexure R-3) dated 14.07.2014. It is, no doubt, true that the complainant neither challenged the resolution dated 11.01.2009 nor Agreement to Sell dated 14.07.2014. It is also true that during the course of proceedings before the Forum, as well as before this Commission, the Opposite Party offered to compromise the matter and disclosed that other members of the society had agreed to receive such share of money, as per their entitlement, as is evident from Annexure R-8 to R-18 but the complainant did not agree for the same. Whether the complainant was bound to accept the offer of the Opposite Party and compromise the matter ? In fact, it was his own wish, whether he wanted to compromise or not and nobody could pressurise the complainant to compromise. Moreover, the complainant is a consumer, as he booked the flat in the society of the Opposite Party in the year 2005 and deposited his hard earned money i.e. Rs.3,37,500/-, with the Opposite Party in the year 2005 and 2006. After receipt of the amount, the Opposite Party neither delivered possession of the unit nor refunded the money to the complainant. The complainant, in his complaint, has specifically stated that he approached the Opposite Party in December, 2010 to know the status of sale of land and refund of money as per share and the Opposite Party assured him that the price of the land has also increased manifold and he would be paid money proportionately as per his share and would be able to purchase the flat of the same size. After believing the assurances of the Opposite Party, the complainant started waiting for the sale of land and refund of his money, so that he could purchase his own flat but when no response was received from the Opposite Party, he made written request (Annexure C-11) to the Opposite Party to refund the amount, but to no avail. As per the disclosure of the Opposite Party, the land was sold to a third party namely M/s Baba Banda Bahadur Enterprises vide Agreement to Sell (Annexure R-3) dated 14.07.2014. The complainant filed the complaint before the Forum on 10.03.2015. But the Opposite Party failed to place on record any document which could show that it intimated/informed the complainant regarding sale of land or any intimation was sent to the complainant offering the proportionate amount, after the land was sold to a third party. When the complaint was filed before the Forum, the Opposite Party offered to compromise the matter and payment of the meagre amount, after 10 years to the complainant. Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Party, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. So, the Opposite Party had no right, to retain the hard earned money of the complainant, without rendering him, any service. It is therefore, held that the Opposite Party, by not refunding the amount to the complainant, was not only deficient, in rendering service, but also indulged into unfair trade practice. In our considered opinion, the complainant is certainly entitled to refund of amount of Rs.3,37,500/- alongwith interest @12% P.A., from the respective dates of deposits.
15. The next question, that falls for consideration, is, as to whether, the appellant/complainant is entitled to compensation, on account of mental agony and physical harassment caused to him. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word 'compensation' is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of 'compensation'. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. In the instant case, the complainant suffered a lot of mental agony and physical harassment, at the hands of the Opposite Party, for a period of more than 10 years. The complainant purchased the unit, with the hope to have a roof over his head, but his hopes were dashed to the ground, when he knew that the land over which the construction was to be done was declared as institutional land. It was expected of Opposite Party, in all fairness, that suo moto, it should have refunded the proportionate share to all the share holders after receipt of sale proceeds of the land, which it failed to do so. The complainant, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. Compensation to the tune of Rs.1,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,00,000/-.
16. With regard to the difference of the price of the flat in 2005 and the price of the flat in 2013 in the same area, as prayed for by the complainant, in the prayer clause of the complaint, before the Forum, we are of the view that the same is not justified because when refund of the deposited amount alongwith interest, compensation and litigation expenses are granted to the appellant/complainant, that will meet the ends of justice.
17. In view of the above, we are of the considered opinion, that the Forum had erred in dismissing the complaint and the order passed by it, is liable to be set aside, and the complaint deserves to be partly allowed.
18. For the reasons recorded above, appeal bearing No.54 of 2016, filed by the appellant/complainant (Sh.Sumit Singla) is partly allowed. The impugned order, passed by the Forum, is set aside. Consequently, the complaint filed by the complainant Sh.Sumit Singla, before the Forum, is partly allowed with costs. The Opposite Party is directed, as under:-
To refund the amount of Rs.3,37,500/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of interest @ 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
In Appeal bearing No.75 of 2016 titled Mrs.Daya Rani Vs. National Consumer Awareness Group Society .
For the reasons recorded above, appeal bearing No.75 of 2016, filed by the appellant/complainant (Smt.Daya Rani) is partly allowed. The impugned order, passed by the Forum, is set aside. Consequently, the complaint filed by the complainant Smt.Daya Rani, before the Forum, is partly allowed with costs. The Opposite Party is directed, as under:-
i. To refund the amount of Rs.3,37,500/-, to the complainant, alongwith simple interest @ 12% per annum, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
ii. To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
iii. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
iv. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of interest @ 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
13.07.2016 Sd/-
(DEV RAJ) PRESIDING MEMBER Sd/-
(PADMA PANDEY) MEMBER rb