Supreme court enhanced award of compensation and said it cannot go restrictive just because the victim is from poor and rural background

by admin | Aug 1, 2021 | Consumer Rights and Laws

Supreme court enhanced award of compensation and said it cannot go restrictive just because the victim is from poor and rural background

The Supreme Court awarded an additional Rs 10 lakh in a medical negligence case to a lady who was not immediately attended to and was snubbed with the retort that the people from hilly areas make unnecessary noise. The petitioner Shoda Devi had filed the plea before the apex court seeking enhancement of the amount of compensation with reference to the disablement and loss suffered by her due to the negligence of the doctors, which led to the amputation of her right arm above the elbow.

In the instant case, the appellant Shoda Devi, who had been suffering with abdomen pain and menstrual problems, approached Deen Dayal Upadhyay Hospital – a government hospital at Shimla where she was examined by the Doctor. The lady, who was from a very poor and rural background, had suffered the medical negligence leading to amputation of her right arm, at the age of 45. The National Consumer Disputes Redressal Commission, found that it was a case of medical negligence quantified the amount of compensation only at Rs. 2,00,000. The lady approached the Apex court seeking enhancement of compensation.

The Apex court bench observed that, the National Commission, even after appreciating the troubles and trauma as also disablement and disadvantage suffered by the woman, had been too restrictive in award of compensation. It said that the award of compensation cannot go restrictive when the victim is coming from a poor and rural background.

The bench observed ordinarily, the general damages towards pain and suffering as also loss of amenities of life deserve to be considered uniformly for the human beings and the award of compensation cannot go restrictive when the victim is coming from a poor and rural background rather, in a given case like that of the appellant Shoda Devi, due to her disablement and reduced contribution, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to Shoda Devi and to her family.

The bench said that granting of reasonability higher amount of compensation in the present case would serve dual purposes. One, to provide some assistance and support to the appellant Shoda Devi against the hardship and disadvantage due to amputation of right arm; and second, to send the message to the professionals that their responsiveness and diligence has to be equi-balanced for all their consumers and all the human beings deserve to be treated with equal respect and sensitivity. The Bench further added that they are impelled to make these observations in the context of an uncomfortable fact indicated on record that when the appellant was writhing in pain, she was not immediately attended at and was snubbed with the retort that ‘the people from hilly areas make unnecessary noise’. Such remarks, obviously, added insult to the injury and were least expected of the professionals on public duties.

The bench said that, given her background, the amount of compensation ought to be of such level as to provide relief in reasonable monetary terms to her and to her family. It then enhanced the compensation by an amount of Rupees Ten Lakhs, over and above the amount awarded by the State Commission and the National Commission.

If there are deficiencies in your flat, complain within 2 Years of possession

by admin | Aug 1, 2021 | Real Estate

If there are deficiencies in your flat, complain within 2 Years of possession

Any complaint against the builder must be made within 2 years of taking possession of the flat. If the buyer delays in filing of case against the builder for late delivery or other shortcomings in the flat, it is bound to be dismissed on the grounds of limitation. The law prescribes two years’ limitation from the date on which the cause of action arises.This matter was settled in favour of DLF with regard to the flats in its Gurgaon township, called New Town Heights, at the National Consumer Commission. On 23 February 2018, the National Consumer Disputes Redressal Commission (NCDRC) dismissed two revision petitions seeking compensation from DLF Home Developers Ltd. Two appeals had been filed under Section 19, read with Section 21 (a) (ii) of Consumer Protection Act, 1986, against the impugned order dated 29.09.2016 passed by the Delhi State Consumer Disputes Redressal Commission.

The complaints

The complainant Piyush Goel had purchased a residential flat constructed by DLF Home Developers Ltd in their project New Town Heights at Gurgaon, Haryana, for which an apartmentbuyers’ agreement was entered into by the parties on 08.10.2008. The possession of the constructed flat was to be delivered within 36 months of the date of the agreement – that is, by 07.10.2011. As per the complainant’s claims, the actual delivery of the said flat took place on 11.10.2013. The conveyance deed for the property was executed on 10.09.2015.

Alleging unfair trade practice on the part of the OPs owing to the late delivery of the property, the complainant filed the consumer complaint in question, seeking compensation from DLF Home Developers Ltd by way of interest on the amount deposited for the period of delay and also claiming refund of the amount charged for increase in super area and parking space. The complainant demanded a sum of Rs 5,340,724 with future interest @18% p.a. and a sum of Rs 266,653 towards increase of super area and Rs 600,000 paid as parking charges.

In the second complaint, filed by Virendra Arya and others, possession of the flat was delivered on 15.10.2013 and the sale deed was executed on 15.03.2015. A sum of Rs 6,689,545 was demanded as interest on delayed payment, plus future interest @18% p.a. including a sum of Rs 100,000 for mental agony, etc. A sum of Rs 316,553.13 was demanded as refund for payment charged for increase in super area, in addition to Rs 600,000 for parking charges.

Thus, the complainants claimed compensation for the delay by over two years in possession of flats and also claimed a refund of the “amount charged for an increase in super area and parking space”. The developers, on the other hand, argued that the issue should have been raised before the possession was handed over to them; now, as the complainants were already in possession of the flats, they were not liable to claim compensation.

The builders further alleged that since possession had been duly taken over by the complainants and the sale deeds had also been executed, the relationship of customer and service provider between the parties had already come to an end.

The verdict

The State Commission, vide impugned order dated 29.09.2016, held that the complaints filed on 05.09.2016 were barred by limitation because the possession of the flats had been obtained by the complainants in the year 2013. Whatever lacunas there were in the said flats came to their knowledge at the time of delivery of possession and, hence, they should have filed the complaints within the period prescribed under Consumer Protection Act, 1986.

The National Commission said that the main consideration in these two cases was whether or not the consumer complaints were barred by limitation. It has been stated in the consumer complaints itself that the possession of the properties in question was delivered on 11.10.2013 and 15.10.2013, respectively. The sale deeds for the said properties were executed during the year 2015. The complainants in both the cases were not able to explain what prevented them from filing the complaints within the period of two years of the cause of action, as prescribed in Section 24A of Consumer Protection Act, 1986.

The National Commission stated that there was no reason to differ from the conclusion arrived at by the State Commission that at the time of taking possession of the flats, the complainants were expected to be well aware of any lacuna in the said properties. They should have taken steps to file the consumer complaints in question at that time. The National Commission concluded that both the complaints were barred by limitation and dismissed the complaints.

Consumer voice’s advice to consumers

Homebuyers must raise issues pertaining to deficiencies in the flat at the time of possession or soon thereafter. They should note down the important points and do due diligence before taking the possession so that there is no room left for deficiencies after the possession. One way is to engage a chartered civil engineer to inspect the premises and provide a report on the deficiencies point by point. Such a report may cost a reasonable sum but can be helpful in explaining the deficiencies as well as the delay in filing the case. The buyer may be intimidated by the builder and/or feel that the conveyance deed may not be executed, or have other apprehensions if s/he goes to court. In such cases, it is advisable to write to the builder to bring the grievance on record and request for remedial action to be taken. It may be advisable to have the matter taken to mediation. This can help to explain the delay in filing the case. Each day of delay in filing the case beyond limitation has to be explained.

Such a situation can also be handled by filing a complaint under Real Estate Regulatory Authority (RERA). In the cases mentioned in this article, RERA was implemented after the cause of action arose and was therefore not applicable.

Case Studies: Flat buyers can unite as one party against builders under Section 12 of CPA Act

by admin | Aug 1, 2021 | Real Estate, resources

Case Studies: Flat buyers can unite as one party against builders under Section 12 of CPA Act

This article will showcase case studies on flat buyers who can unite as one party against builders under section 12 of CPA Act.In a major relief for aggrieved homebuyers, justices Dipak Misra, AM Khanwilkar and MM Shantanagoudar of the Supreme Court have ruled (in an order dated 21 February 2017) that flat buyers can now approach the National Commission in case of a dispute with a builder, where the aggregate value exceeds Rs 1 crore. This ruling should bring to an end the spell of contradictory orders that were being passed by various benches of the National Consumer Disputes Redressal Commission (NCDRC) on this subject in recent times.

Amrapali Sapphire Developers Pvt. Ltd had filed an application seeking dismissal of complaint primarily on the ground that since the sale consideration for each flat was lessthan Rs 1 crore, National Commission lacked the pecuniary jurisdiction to entertain the complaint. Another contention made by the builder was that the flat buyers could not club the individual causes of action. The Commission had taken the view that Section 12 (1) (b) of Consumer Protection Act did not preclude the recognised consumer association from filing a composite complaint on behalf of more than one consumer having a common interest or similar grievance against the builder. In fact, if they were allowed to file multiple complaints in respect of several consumers, that would result only in multiplicity of proceedings without serving any purpose.

ln this regard, National Commission had referred to the judgement passed by the Supreme Court in a civil appeal in Atharva Towers Owners Association versus Mis Raheja Developers Ltd, where it had ruled that it would not be correct to say that a complaint by a voluntary consumer association on behalf of more than one consumer, having a similar cause of action against the same seller of goods or provider of services, would not be maintainable. The only requirement would be to direct each and every allottee on whose behalf the complaint was filed to file an affidavit concerning the prayers to the extent that they pertained to his individual grievances.

The National Commission further said that once it was accepted that a consumer complaint on behalf of more than one consumer could be filed by a recognised consumer association, it could hardly be disputed that it was the aggregate value of the services which had to be taken for the purpose of determining the pecuniary jurisdiction of the consumer forum before which the complaint was filed. The Commission had further simplified the process of deciding pecuniary jurisdiction and said that the aggregate quantum of compensation claimed in the petition would determine the question of jurisdiction, and when the complaint was filed in representative capacity on behalf of severalconsumers, the total amount of compensation claimed by the representative body on behalf of all the persons whom it represented would govern the valuation of the complaint petition for the purposes of jurisdiction.

ln the order dated 30 August 2016, National Commission member Justice VK Jain had ruled in favour of the 43 flat owners in Amrapali’s Sapphire housing project and said that they could form an association to achieve the pecuniary limit of Rs 1 crore for approaching the Commission directly.

Talking of Rules

The above ruling of National Commission was challenged by Amrapali Sapphire Developers by taking the plea that as per the provisions of Consumer Protection Act, if the disputed amount was less than Rs1 crore, the complainant had to file the case in District Forum. Amrapali Sapphire Developers had taken shelter behind this rule to contend that the 43 flat buyers were not eligible to file a joint plea before the National Commission. The counsel for Amrapali Sapphire Developers argued that the 43 flat buyers had shown that the cost of flats was above Rs 1 crore by joining hands in order to maintain their plea in National Commission.This was against the rule, the counsel contended.

However, the bench consisting of justices Dipak Misra, AM Khanwilkar and MM Shantanagoudar observed the intention of the counsel for the builder group, who wanted the complainants to go through the lengthy process of approaching the District Forum, then the State Commission, and finally the National Commission. The bench saw through the mala fide intention, which was to delay the mechanism of justice so that they could buy time for completion of delayed housing projects.

The bench rejected the appeal of Amrapali Sapphire Developers challenging the NDCRC decision and thereby upheld the order of the National Consumer Disputes Redressal Commission (NCDRC) that flat buyers could jointly approach it in case of a dispute with a builder.

Contradictions in Orders

In the past, we have seen that many conflicting orders have been passed by the benches of the National Commission. Here’s an example, in Shubhechha Welfare Society versus Mls Earth Infrastructure Pvt. Ltd, the National Commission (in the order dated 6 December 2016) held that a recognised consumer association could file a complaint on behalf of a single consumer, whether or not that consumer was a member of that association, but a recognised consumer association could not file one complaint on behalf of many allottees by clubbing sale consideration for making pecuniary jurisdiction of the National Commission. Further, it was held that National Commission did not have pecuniary jurisdiction to entertain complaints, and that complaints had to be filed by complainant before the State Commission having pecuniary jurisdiction to entertain the complaint.

On the other hand, in Ambrish Kumar Shukla versus Ferrous Infrastructure Pvt. Ltd it was held that if the aggregate of the value of the goods purchased or the services hired or availed by all the consumers having the same interest and the total compensation, if any, claimed for all of them came to more than Rs 1 crore, the pecuniary jurisdiction would rest with the National Commission alone. The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed in respect of one individual would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a complaint.

In the case of ALP Social Welfare versus Mls Amrapali Leisure Valley Developers Pvt. Ltd, ALP Social Welfare had filed a case on behalf of 85 flat buyers. The subject was maintainability of the complaint – whether ALP Social Welfare was eligible to file the case on behalf of 85 flat buyers. The National Commission explained the purpose of Section 12 (1) (b) and said that only a recognised consumer association could file a complaint highlighting the grievance of aggrieved consumers. Further, the Commission explained the meaning of a ‘recognised’ consumer association and referred to the aims and objectives of ALP Social Welfare to ascertain whether the complainant was a voluntary association. On reading the aims and objectives, the Commission held that the complainant association had been formed and registered for social welfare programmes and for resolving common problems of the people. There was no reference to consumer welfare or consumer disputes in the aims and objectives; therefore, the association could not be termed as a voluntary consumer association and the complaint was not maintainable under Section 12 (1) (b). Unlike in the case of Shubhechha Welfare Society versus Mls Earth Infrastructure Pvt. Ltd, where the National Commission had held that a recognised consumer association could file a case on behalf of a single consumer and not numerous consumers, in thiscase it did not raise any issues on the representative capacity of the complainant – rather, it was on maintainability of the complaint under Section 12 (1) (b).

As is apparent, there has been inconsistencies in the orders passed by the National Commission.The latest order passed by Supreme Court in the case of Amrapali Sapphire Developers versus Amrapali Sapphire Flat Buyers Welfare Association clearly draws the line on the subject of pecuniary jurisdiction. The apex court’s ruling comes as a breather for flat buyers stuck with delayed flats, they now know that they can come together and approach the apex consumer commission. They can take on the resourceful realtors who use their money and power to exploit the common man.

Homebuyers can seek higher compensation than what is mentioned in agreement for delayed flat: National Commission

by admin | Aug 1, 2021 | Consumer Rights and Laws, resources

Homebuyers can seek higher compensation than what is mentioned in agreement for delayed flat: National Commission

Recently, the Apex Consumer Court has passed an encouraging order for consumers whereby it held that builders can’t take advantage of the builder-buyer agreement to pay Rs. 5 per sq. feet per month as compensation for delay in handing over flats for unreasonable period. The buyers have the option to seek higher compensation after taking possession of the property or seek refund of the amount paid. The compensation would also be in addition to the refund amount with interest.

The National Commission heard an appeal filed by Emaar MGF challenging an order passed in August, 2016 by the State Commission, Chandigarh. One Govind Paul entered into a builder-buyer agreement with Emaar MGF for a property at Mohali Sector 105 which had to be delivered in three years. When the builder delayed the possession by 20 months, Paul approached the State Commission, Chandigarh. The State Commission in 2016 ordered the builder to refund Rs. 39,88,056/- with interest rate at 15%, along with Rs 3,00,000/- compensation and Rs 25,000 as litigation cost. Aggrieved with the order of the State Commission, the builder moved to the Apex Consumer Court.

A bench of S.M. Kantikar and Dinesh Singh analysed the applicability and effect of the provisions of the agreement which speaks about time period during which the possession would be delivered and compensation to be paid in case of default from the builder. The Court observed that in case there is some short reasonable delay in offering possession, the builder would pay compensation for such short reasonable delay @ Rs. 5/- per sq. ft. per month of the super area till the date of notice of possession. And the compensation for delay provided in agreement i.e. Rs. 5/- per sq. ft. p.m. cannot be for an unreasonably protracted period or indefinite, at best it can be for a short period that would appear to be reasonable per se and would be acceptable as such to a reasonable man. The Commission further stated that provision laid down in agreement by builder for compensation for delay implies that the delay could be for any period above 36 months, short or protracted, reasonable or otherwise, and the compensation for delay provided in agreement could be paid indefinitely for any period above 36 months is misconceived.

The National Commission said that the clear reading of the agreement reflects that the possession would be handed over not later than 36 months and for a short reasonable delay beyond 36 months a (somewhat token) compensation would be paid. To say that the possession can be delayed indefinitely or unreasonably and a token compensation for delay can be paid indefinitely or for an unreasonably protracted period is erroneous. Indefinite or unreasonable delay with token compensation for delay cannot continue as such situation would be absurd.

While disposing off the appeal, the National Commission stated that the compensation prescribed in the agreement, at the rate of Rs. 5 per sq. ft. per month till the date of handing over the possession cannot be for an unreasonably long period of time.

The NCDRC, while stating that the buyer has option of seeking higher compensation or obtaining possession of the unit, enhanced the compensation to Rs. 5,00,000/- over and above the refund apart from increasing refund for the litigation cost to Rs. 50,000/-.

The National Commission concluded by saying that creating yet further harassment, uncertainty and difficulty for the consumer by delaying payments or making reduced payments etc. (if the adjudication is not stayed or quashed or modified by a higher authority / court) will be an unacceptable situation, to be viewed seriously. The harassment, uncertainty and difficulty of the consumer should end promptly and fully, the chapter should close. Therefore, if the builder delays the adjudicated payments beyond the time stipulated, it would and should attract higher / penal interest and other compensation / costs.

How to Use a Debit Card Online Safely: Debit Card Safety Tips You Mustn’t Ignore

by admin | Jul 31, 2021 | credit card

If you have never used a debit card before and you have questions like how to use a debit card online or how to use a debit card online safely, then you must read on. Here you can know the basics of debit card use and learn valuable debit card safety tips.

According to stats, the transaction value in digital payments segment was more than USD 50,000 million in 2018 in India, and it is expected to reach more than USD 127,000 by 2023. It can be estimated that transactions worth millions of USD are done by debit cards as well because it is a popular online payment method in India.

How to use a debit card online?

The answer of how to use a debit card online is mentioned below:

Visit the website where you wish to shop for products or services
Select the products you want to buy or services you want to avail
Add the products/services to the cart and visit the checkout page
When provided with payment options, select debit card as the preferred mode of payment
Provide basic details like debit card number, CVV, the expiry date of the card
Provide a one-time password or a 6 digit 3D secure PIN

How to use a debit card online safely?

If you want to learn how to use a debit card safely online during every transaction, then do remember these simple debit card safety tips.
Try to do online transactions on your personal computer that has a quality security software. Avoid public networks and computers whenever possible.
Type in the name of the URL and double check the spellings. Avoid URLs with http and opt for URLs that start with HTTPs.
Never save your debit card information on the browser you use. It might be vulnerable to hackers, and even other people who use your computer can misuse it.
Never share your debit card information in an email because scammers only request for such information via email. A reputed brand will never do that.
Enable SMS alert for each of your debit card transactions. It will allow you to know as soon as a transaction is made and you will be able to recognize whether you approved a transaction or not.
Check your banking emails, account statements and passbook regularly to detect any unauthorized transactions.
In case you find an unauthorized transaction, make sure that you report it to the bank as soon as possible. You can also get the police involved if the amount is too big or the bank is not helping you.

The answers to how to use a debit card online and how to use a debit card online safely are quite simple for those who want to learn the process. Only a few simple debit card safety tips can ensure that your debit card is ever misused and you don’t lose any money just because you opted for a convenient and time-saving way of shopping.