HON'BLE MR.JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The following are the reliefs claims in this complaint: No. Particulars Amount
i. Amount to be paid by the opposite parties afterfinal adjustment by the average adjusters Rs. 87,59,178.23
ii. Interest @ 15% from the date of claim till thedate of filing of the complaint. Rs. 25,18,263.73
iii. Claim towards harassment and mental agony. Rs. 5,00,000.00
iv. Legal expenses Rs. 5,00,000.00 Total Rs. 1,22,77,441.96 (-) Amount received from O.P. No. 1 (as and by way of returned premium) Rs. 7,02,284.11 Rs. 1,15,75,157.85
2. Section 21 of the Consumer Protection Act, to the extent it is relevant, provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs. 1 crore. Since the complainant has claimed less than Rs. 1 crore as the principal amount and the compensation, this Commission lacks pecuniary jurisdiction to entertain this complaint. In taking this view, I am fortified by the decision of this Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance . In the above referred case, the complainant had claimed a sumCo. Ltd. II (2003) CPJ 81 (NC) of Rs. 18,33,000/- + interest @ 18% per annum from the date of the claim. He has also claimed suitable damages without quantifying the said damages. Holding that this Commission lacked pecuniary jurisdiction to entertain the complaint, the Commission inter-alia held as under: Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendent lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commissin had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.03.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.
3. The learned counsel for the complainant refers to the decision of this Commission in Swarn , CC No. 347/2014 decided on 14.08.2015 where, in a case ofTalwar & Ors. Vs. Unitech Ltd. refund of the amount paid by a flat buyer to a builder, compensation in the form of interest was awarded to the complainant. The view taken by this Commission in Swarn Talwar & Ors. was based upon the decision of the Honble Supreme Court in (supra) Ghaziabad Development , where the Honble Supreme Court inter-aliaAuthority Vs. Balbir Singh (2004) 5 SCC 65 observed and held as under:
However, the power to 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... alongwith 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. That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss iniasmuch as he had deposited the money in the hope of getting a flat/plot. He is deprived of that flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.
It would, thus, be seen that the Honble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. The aforesaid decision, in my view, will not apply to a complaint against an insurance company where the claim, including compensation is crystallized in the complaint and interest is claimed on that amount. Since a flat buyer may not be in a position to prove the exact appreciation in the price of real estate purchased by him, compensation in the form of a particular rate of interest may be granted but, in a case of re-imbursement from an insurer, no such disability is attached to the claim since the insured knows the exact loss suffered by him and therefore, in such a case, interest is claimed only as a financial loss on account of the insured having been deprived of the use of the amount which according to him, ought to have been paid to him by the insurer. In any case, the insurer is no more res-integra as far as the complaint against an insurer is concerned, in view of the decision of this Commission in .Shahbad Cooperative Sugar Mills Ltd. (supra)
4. For the reasons stated hereinabove, the original complaint be returned to the complainant to be presented before the concerned State Commission which shall adjudicate the complaint on merits. While adjudicating the complaint on merits, the State Commission will also give its finding on the plea of the opposite party no. 2 that it is not a necessary party to the complaint, it being only a broker. It is also made clear that in case issue of limitation gets involved, it shall be open to the complainant to seek benefit of the proviso to Section 24A(2) of the Consumer Protection Act on the ground that it was bonafidely prosecuting the complaint before this Commission. If any such plea is taken, the opposite parties shall be entitled to take such defence as may be open to them in law. A copy of the complaint be kept on record. ......................J
V.K. JAIN PRESIDING MEMBER