State Consumer Disputes Redressal Commission
Chandigarh Housing Board vs Abha Dobriyal on 6 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 158 of 2013 Date of Institution : 08.04.2013 Date of Decision : 06.06.2013 Chandigarh Housing Board, through its Accounts Officer-III, #8, Jan Marg, Sector 9, Chandigarh. Appellant/Opposite Party V e r s u s Abha Dobriyal, Teacher, Govt. Middle School, Kishangarh, U.T. Chandigarh, presently residing at H.No. 1222/E, Adarsh Nagar, Naya Gaon, District Mohali. ....Respondent/complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Ravi Parkash Pruthi, Advocate for the appellant. Sh.
Anuj Kohli, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 31.01.2013 rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-
We also accordingly allow this complaint and order the Opposite Party to pay interest @9% p.a. on the deposited amount from the date of draw of lots i.e. 4.11.2010, till the date of refund, as claimed by the Complainant. Opposite Party shall also pay compensation of Rs.30,000/- to the Complainant for the harassment caused in taking recourse to legal action for claiming what was rightfully due to her. The Opposite Party is also directed to pay Rs.10,000/- as costs of litigation.
This order be complied with by the Opposite Party within 45 days from the date of receipt of its certified copy, failing which, the Opposite Party shall be liable to pay the interest @ 18% p.a. on the amount of Rs.70,000/- from 04.11.2010 till its payment along with compensation of Rs.30,000/-, besides costs of litigation of Rs.10,000/-.
2. The facts, in brief, are that the complainant had applied for one Bed Room Flat, under a Self Financing Housing Scheme-2008 for the Employees of Chandigarh Administration, launched by the Opposite Party. The complainant deposited a sum of Rs.70,000/-, as earnest money, vide acknowledgement no. 11586 dated 25.03.2008 Annexure C-1. Draw of lots, against the said scheme was conducted on 04.11.2010, wherein the complainant remained unsuccessful. Thereafter, the complainant kept on waiting, for the refund of amount deposited by him, as earnest money, as promised by the Opposite Party, but it did not do so. The complainant, ultimately, wrote a letter dated 10.01.2012, to the Opposite Party, seeking refund of the deposited amount, alongwith interest @12% per annum, w.e.f. the date of draw of lots, till realization. Refund was eventually received by the complainant vide cheque no. 071474, dated 06.02.2011 (infact 06.02.2012), on 19.03.2012. It was stated that, by illegally and improperly retaining the earnest money, which was deposited in the year 2008, by the complainant, with the Opposite Party, and delaying the refund thereof, without interest, when she was not successful, in the draw of lots, amounted to deficiency in rendering services, on its part. When the interest, on the amount was not paid by the Opposite Party, from the date, when the draw of lots, were held, until the receipt of the earnest money, left with no alternative, the complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Party, to pay interest, on the earnest money of Rs.70,000/-, deposited by her, from the date of draw of lots i.e. 04.11.2010, till 19.03.2012;
compensation in the sum of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-.
3. The Opposite Party, in its written version, pleaded that the complaint was not maintainable, as the complainant, at the time of submission of application, for the allotment of One Bed Room Flat, under the Self Financing Housing Scheme-2008 for the Employees of Chandigarh Administration, gave undertaking to the effect, that she shall not claim any interest, on the amount of deposit, made in consideration of the allotment of dwelling unit, under the Scheme. It was stated that the said Scheme remained under litigation, in the Honble High Court, from the very beginning. After the final decision, on 25.01.2012, refund was made to the unsuccessful applicants. It was further stated that, after the draw of lots, the name of the complainant was kept at Sr. No.455, on the waiting list, under general category. It was further stated that the said list was kept alive/pending, due to pendency of litigation, before the Honble High Court. It was further stated that the refund was made, to the complainant, on 06.02.2012, after the decision of the High Court on 25.01.2012. It was further stated that, in view of the undertaking, given by the complainant, she was not entitled to interest, on the amount, which was refunded to her, though late. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant/Opposite Party, submitted that at the time of applying for one bedroom flat, under the Self Financing Housing Scheme-2008 for the Employees of Chandigarh Administration, an undertaking/ declaration was given by the respondent/complainant, that she shall not claim any interest, on the amount of the deposit, made in consideration of allotment of dwelling unit. He further submitted that, in view of this undertaking/declaration, it could not be said that the Opposite Party was deficient, in rendering service. He further submitted that, no doubt, in the draw of lots, the complainant was unsuccessful, yet, her name was kept in the waiting list, under general category, but, as the said Scheme remained under litigation, in the Honble High Court, from the very beginning, the refund could not be made, in time. He further submitted that the District Forum was, thus, wrong in accepting the complaint, and granting reliefs, asked for by the complainant. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that according to Clause VIII (v)-MODE OF ALLOTMENT, of the Self Financing Housing Scheme-2008 on Lease Hold Basis for 99 Years for the Employees of Chandigarh Administration Annexure R-6, the Opposite Party was liable to refund the amount, within 30 days, of the draw of lots, to the unsuccessful applicants, without any interest. However, if the refund of amount was not made, within the stipulated period, then savings bank rate of interest, beyond the period of 30 days, was required to be granted to the unsuccessful applicants/complainant. He further submitted that the amount deposited by the respondent/ complainant, in the year 2008 was illegally and arbitrarily, withheld by the Opposite Party upto 19.03.2012, when ultimately, it was refunded to her. He further stated that, as such, the complainant was entitled to interest and was rightly granted the same, by the District Forum. He further submitted that the District Forum, was also right, in awarding compensation, to the complainant. He further submitted that the order of the District Forum being legal and valid, is liable to be upheld.
10. Admittedly, the complainant applied for one Bed Room Flat, under the Self Financing Housing Scheme-2008 for the Employees of Chandigarh Administration, launched by the Opposite Party. It is also not disputed that the complainant deposited a sum of Rs.70,000/-, as earnest money, vide acknowledgement no. 11586, dated 25.03.2008 Annexure C-1. There is also, no dispute, about the factum, that the draw of lots, against the said scheme, was conducted on 04.11.2010, and the complainant remained unsuccessful, in the same. Clause VIII (v) of the Self Financing Housing Scheme-2008 on Lease Hold Basis for 99 Years for the Employees of Chandigarh Administration Annexure R-6, reads as under:-
VIII-MODE OF ALLOTMENT
(v) Refund of the unsuccessful applicants shall be made within 30 days of the draw of lots without any interest. In case refund is not made within the stipulated period, interest shall be allowed at the Savings Bank rate beyond the period of 30 days.
11. It is evident, from the afore-extracted relevant Clause, that it was the duty of the appellant/Opposite Party, to refund the amount, deposited by the complainant, alongwith application, within 30 days, from the date, when the draw of lots were held and she remained unsuccessful. Admittedly, the earnest amount was not returned to the complainant, within 30 days, from the date, when the draw of lots were held and she remained unsuccessful. The earnest money was refunded to the complainant, on 19.03.2012. The complainant, was, thus, certainly entitled to interest at the Savings Bank rate, from 04.12.2010, to 19.03.2012, as per the afore-extracted Clause. The District Forum, was however, wrong in awarding interest @9% P.A., instead of, at Savings Bank rate, and that too from 04.11.2010 i.e. the date, when the draw of lots were conducted. The order of the District Forum, requires to be modified, to this extent.
12. There is nothing, on record, that when the name of the complainant was kept, in the waiting list, she was intimated by sending a letter, that since her name had been kept, in the waiting list, in case, she wanted the refund of amount, she should send her consent, otherwise, the same would not be refunded. The Opposite Party could not unilaterally, retain the amount, deposited by the complainant, especially, when she had been unsuccessful, in the draw of lots. The submission of the Counsel for the appellant/Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. The District Forum, awarded compensation, in the sum of Rs.30,000/-, to the complainant, on account of mental agony and physical harassment. In our considered opinion, the compensation awarded by the District Forum, is on the higher side. The compensation should be fair, reasonable and adequate. It should not be unfair and excessive. It must commensurate with the facts and circumstances of the case. The object of the Consumer Fora, is not to enrich the consumer, at the cost of the service provider. In our considered opinion, the compensation, if reduced to Rs.20,000/-, could be said to be fair, reasonable and adequate. The order of the District Forum also requires to be modified, to this extent.
14. The District Forum awarded penal interest @18% P.A., on the amount of Rs.70,000/-. The penal interest awarded by the District Forum @18% P.A., in our considered opinion, is also on the higher side. The penal interest, if reduced to 9% P.A., would meet the ends of justice.
15. No other point, was urged, by the Counsel for the parties.
16. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellant/Opposite Party is directed to pay interest at the Savings Bank rate, on the amount of Rs.70,000/-, from 04.12.2010 (i.e. one month after the draw of lots, wherein the complainant, was not successful) to 19.03.2012 (the date when the actual payment was received by her).
ii. The appellant/Opposite Party shall pay compensation, to the tune of Rs.20,000/-, for mental agony and physical harassment, caused to the complainant, instead of Rs.30,000/-, awarded by the District Forum, within 45 days, from the date of receipt of a certified copy of the order.
iii. The appellant/Opposite Party shall also pay cost of Rs.10,000/-, awarded by the District Forum.
iv. The amount mentioned in Clause (i) shall be paid by the appellant/Opposite Party, within a period of 45 days, from the date of receipt of a certified copy of the order, failing which, it shall be liable to pay the same, alongwith interest @9% P.A., from 04.12.2010, till realization, besides making payment of compensation and costs, referred to above..
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion Pronounced.
June 6, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg