Samaresh Prasad Chowdhury, Presiding Member
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the Judgment/final order dated 29.04.2015 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, ‘Ld. District Forum’) in Consumer complaint No. 460 of 2013. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondents under Section 12 of the Act with the following directions upon the appellants, viz.-
“The O.P.s are directed jointly or severally to deliver “B’ schedule garage in complete condition in favour of the complainants within three months from the date of the order.
The O.Ps are directed jointly and severally to do the unfinished jobs mentioned in the prayer of the complaint i.e. (i) to (xiii) to the complaint within three months from the date of this order.
The O.Ps are directed to take proper steps in the matter of tilted building and lift cave and in case of failure to remove such defect, in that case the O.Ps be directed to make separate provisions of flats of same nature and size in the same area or in the building as being constructed by the O.Ps in nearby place and position to the complainants within three months from the date of this order. Alternatively, the O.Ps are directed to refund the consideration money at the present market price of that area to the complainants within three months from the date of this order.
The O.Ps are directed jointly and severally to pay an amount of Rs. 1,00,000/- and Rs. 10,000/- to the complainants as compensation on account of mental agony, pain and unnecessary harassment and as litigation cost within three months from the date of this order, failing which OPs shall have to pay sum of Rs. 500/- per day from the date of this order till it realization, as punitive damages which shall be deposited by the OPs in this State Consumer Welfare Fund.”
The respondents herein lodged the complaint before the Ld. District Forum stating that on 19.06.2011 they entered into an agreement with the Opposite Parties to purchase of a self-contained flat measuring about 820 sq. ft. super built up area on the 2nd floor and one covered garage of 130 sq. ft on the ground floor in a complex christened ‘Airport Garden’ lying and situated at holding No. 548, Motilal Colony (Pulin Avenue), P.S- DumDum, Dist- North 24 Parganas within the local limits of DumDum Municipality at a total consideration of Rs.18,49,000/-. As per terms of the agreement the Opposite Parties were under obligation to handover the subject flat and the garage space within 6 months from date of execution of agreement. On payment of entire consideration amount, the Opposite Parties had executed the deed of conveyance in favour of the complainants on 11.11.2011 and handed over the possession of the flat. At the time of execution of the sale deed the OPs requested the complainants to take possession of the flat with a promise to complete the incomplete jobs within a short span of time. However, in spite of such assurance, it was noticed by the complainants that the OP Nos. 1 and 2 was disinterested rather reluctant to complete the incomplete job for which the complainants could not use the flat in meaningful way. The complainants have pointed out the defects noticed by them at the time of taking possession of flat which are - (i) the lift is not completed for use; (ii) nothing was done with regard iron Grill with brick works and gate on the front side as the Brochure and the boundary wall on the Northern side; (iii) reservoir was not done; (iv) care taker room and common toilet/bathroom was not made; (v) supply of drinking water from the Municipalities’ existing tap of the building which was settled to be extended near the entrance to the lift and then upto the underground reservoir by the pipe line; (vi) community Hall with required number of A.C.’s is not done; (vii) landscape Garden was not provided; (viii) name the building was not displayed; (ix) car parking / Garage marking was not done; (x) pre-cast slabs on the entry road to the building up to the entry gate to the building was not done; (xi) gap between phase I and phase II of the building was required to be given to extent of 21 feet; (xii) to give details of the amount of Rs. 25,000/- which was received from the flat owners for electricity was not placed etc.”
The complainants have stated that they requested the Opposite Parties to appoint an engineer to come to a decision at least for the satisfaction of the complainants and other flat owners but the OPs initially declined to the same and ultimately on repeated approach and requests, the building was examined and the parties to the proceeding called a meeting and in such meeting the OPs undertook to do such jobs which were in incomplete position and even the OPs acknowledged the matter of tilting of the building in question as well as the matter of tilting of the lift cave and in this regard a meeting was held on 20.05.2012. The complainants have alleged that in spite of such decision taken in the meeting held on 20.05.2012, no fruitful steps excepting fixing of wooden covering of the handle with stair case railing and demolition of latrine near deep boring water source, no other steps have been taken to remove the defects. Hence, the respondent’s approach the Ld. District Forum with prayer for following reliefs, viz.- (a) the O.P. Nos. 1 and 2 be directed to deliver ‘B’ schedule garage in complete position in favour of the complainants; (b) the O.P. Nos. 1 and 2 jointly or severally be directed to do the following unfinished jobs, i.e.- (i) completion of the lift and ot make the lift running ; (ii) to do iron Grill with brick works and get on the front side and to make boundary wall on the Northern side; (iii) to make Reservoir; (iv) to construct Care taker room and common toilet/bathroom. (v) to make arrangement for drinking water from the Municipalities’ existing tap of the building which was settled to be extended near the entrance to the lift and then upto the underground reservoir by the pipe line; (vi) Community Hall, (vii) Landscape Garden; (viii) to display the name of the building; (ix) to do car parking/ Garage marking.;(x) to do pre-cast slabs on the entry road to the building up to the entry gate to the building; (xi) to maintain gap between phase I and phase II of the building to the extent of 21 feet; (xii) to give details of the amount of Rs. 25,000/- which was received from the flat owners for electricity. (xiii) to take decision with regard to refund of excess amount of 33,516/- as was taken by the O.P.s to keep their commitment as was given in the meeting held on 20.05.2012; (c) the O.P. Nos. 1 and 2 jointly or severally be directed to take proper steps in the matter of tilted building and lift cave and in case of failure to remove such defect, in that case the OPs may be directed to make separate provisions of flats of same nature and size in the same area or in the building as is being constructed by the O.P.s in nearby place and position and/or to refund the consideration money at the present market price of that wherein the present flats situates so that the complainants may purchase the same type of flat in that area by not investing further amount from their pocket; (d) the O.P. Nos. 1 and 2 jointly or severally be directed to pay an amount of Rs.5,00,00/- as compensation to the complainants on account of mental agony, pain, anxiety and unnecessary harassment; (e) the O.P. Nos. 1 and 2 jointly and severally be directed to pay a sum of Rs. 20,000/- to the complainant as litigation cost, (f) the O.P. Nos. 1 and 2 and their men and agents be restrained by an interim order in the shape of injunction so that the O.P.s may not dispossess and / or oust the complainants from the flat in question and may not do any illegal acts and also may not do any mischief in any manner till disposal of this case, (g) any other interim order, (h) any other relief to which the complainants are entitled to get under law equity and natural Justice;”
The Appellants/Opposite Parties by filing written version have admitted the factum of titling the building by 1.5 feet towards the North coupled with the lift cave refer in the paragraph 25 are the consequences of lowering down of the lair of the earth and there has been no negligence on the part of them and the same is under repair for quicker reliefs towards the complainants. However, the OPs have stated that as there was no deficiency of services on the part of them the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned judgment/final order allowed the complaint with the certain directions upon the Opposite Parties, as indicated above. To assail the said order, the Opposite Parties have come up in this commission with the instant appeal.
Mr. Sabyasachi Sen, Ld. Counsel appearing for the Appellants has submitted that the value of the complaint admittedly exceeded the pecuniary jurisdiction of the Ld. District Forum as the aggregate value of the flat and the compensation claimed is Rs.23,44,000/- and as the value exceeds the pecuniary jurisdiction of the Ld. District Forum, in accordance with the provisions of Section 12(3) of the Act, the Ld. District Forum should have rejected the complaint in order to enable the complainants/respondents to file the complaint in this Commission in accordance with Section 17(1) of the Act. Ld. Advocate for the appellants has submitted that the appellants/OPs should have raised this point in the nascent phase of the proceedings before the Ld. District Forum but due to fault on the part of the conducting Advocate of the OPs, the matter could not be brought to the notice of the Ld. District Forum. However, he has invited our attention to Order No.07 dated 02.08.2016 in EA/298/2015 where the appellants/J.Drs. raised the issue that the decree is a nullity and not executable for want of pecuniary jurisdiction. In the said order, the Ld. District Forum has observed that when the complainant intentionally suppressed the valuation of the case and this Forum overlooked such fact, the J.Drs. should be given a chance to agitate the point before the Higher Forum. In that perspective, the Ld. District Forum recalled the W.A. against the J.Drs. in order to give an opportunity to the J.Drs. to move in this Commission by filing an appeal.
In course of advancing, Ld. Advocate for the appellants has contended that the ratio of decision of the Hon’ble Supreme Court reported in (2005) 7 SCC 791 [Harshed Chiman Lal Modi – Vs. – D.L.F. Universal Ltd. & Anr.] should not be followed in a pedantic manner in a consumer complaint inasmuch as the said decision was made while disposing an appeal preferred from an order passed by the Hon’ble High Court of Delhi in a Civil Revision affirming an order of the Additional District Judge, Delhi, ordering return of plaint to the plaintiff in a suit for Specific Performance of Contract and Recovery of Possession. Ld. Advocate for the appellants has submitted that the Hon’ble Supreme Court by the said judgement interpreted the provisions of Section 21 of the Civil Procedure Code which is not principally applicable in a Consumer Dispute, particularly in view of the provisions of Section 13(4) of the Act. In this regard, the Ld. Advocate for the appellants has drawn our attention to a decision of the Hon’ble National Commission reported in I (2013) CPJ 387 [Country Colonisers Pvt. Ltd. – Vs. – Priti Kapoor & Ors.] wherein it has been held – “In our view, the District Forum, Ropar lacked inherent pecuniary jurisdiction going by the provisions of Section 11 of the Consumer Protection Act, 1986, the value of the subject matter of the complaint being more than Rs.20 lakhs. Although the consumer dispute has been answered by the Fora below but it is manifest with that the order passed by the District Forum which had no pecuniary jurisdiction to entertain and try the claim is a nullity for the above state reasons. Consequently, order passed by the State Commission in appeal will also be treated as nonest/nullity”. Ld. Advocate for the appellants has also invited our attention to Paragraph-22 of a decision of Division Bench of Andhra Pradesh High Court reported in AIR 2005 AP 118 [M/s. Eureka Estate Pvt. Ltd. – Vs. – A. P. State Consumer Disputes Redressal Commission & Ors.] which is set out below –
“22. It is thus clear that a reading of conspectus of provisions of the Act and the Rules framed thereunder makes it clear that Code of Civil Procedure, 1908, as such, are not applicable to the proceedings before the District Forum or State Commission, as the case may be except to the extent indicated in sub-section (4) of Section 13 of the Act. The Consumer Disputes Redressal Agencies, which are not vested with the powers of Civil Court, are not entitled to exercise the review jurisdiction as envisaged under Section 114 of the Code of Civil Procedure”.
Ld. Advocate for the Appellants has finally drawn our attention to Rule 26 of the Consumer Protection Regulations, 2005 and submitted that in all the proceedings before the Consumer Forum, endeavour shall be made by the parties and their Counsel to avoid the use of provisions of the Code of Civil Procedure meaning thereby if there is inherent defect in filing the complaint, the proceeding will become non-est and the same cannot be cured subsequently. Therefore, the Ld. Advocate for the appellants has submitted that when the Ld. District Forum had no inherent jurisdiction to entertain the complaint and subsequently, the Ld. District Forum realised the same and there is a reflection to that effect in Order No.07 dated 02.08.2016 in the execution proceeding and there was an observation that the respondents/complainants suppressed the valuation of the complaint, the appeal should be allowed and the petition of complaint should be rejected in order to enable the respondents/complainants to file the complaint in the appropriate Forum having jurisdiction to entertain the same.
Mr. Tarun Jyoti Banerjee, Ld. Advocate for the Respondents/Complainants, on the other hand has submitted that challenging the Order No.07 dated 02.08.2016 the appellants/J.Drs. preferred an appeal in this Commission being FA/726/2016 and by a final order/judgement dated 12.06.2018, the said appeal was disposed of wherein it has been observed –
“Needless to say, an order passed by a Court/Forum without any competence is a nullity. The jurisdiction means the authority of a Court/Forum to administer justice subject to the limitation imposed by law, which are three-fold, viz.- (a) as to subject matter; (b) as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes any order without any competence the said order would be a nullity. However, it is well settled that the question of territorial and pecuniary jurisdiction has to be raised at the initial stage or in the nascent phase of the proceeding. In a decision reported in (2005) 7 SCC 791 [Harshad Chiman Lal Modi – vs. – DLF Universal Ltd. & Anr.] the Hon’ble Supreme Court has observed that the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before the Court/Forum where the suit/complaint has been instituted and not in an appellate stage. Therefore, the question of lacking pecuniary jurisdiction of Ld. District Forum cannot be entertained in an appeal”.
Ld. Advocate for the Respondents has also referred a decision of the Hon’ble Supreme Court reported in AIR 1954 SC 340 [Kiran Singh & Ors. – Vs. – Chaman Paswan & Ors.] wherein it has been observed –
“It is fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject matter of the action, strikes at the very authority of the Court to pose any decree and such a defect cannot be cured even by consent of parties”.
Ld. Advocate for the Respondents has also referred a decision of the Hon’ble Supreme Court dated 06.08.1981 in Civil Appeal No.564/1970 [Koopilan Uneens daughter Pathumma & Ors. – Vs. – Koopilan Uneens son Kuntalan Kutty dead by L.Rs. & Ors.] wherein it has been held that an objection as to territorial jurisdiction should be taken in the Court of first instance.
Ld. Advocate for the Respondents has submitted that the Ld. District Forum has passed the impugned order on the basis of admission made by the appellants and the question of pecuniary jurisdiction was not raised at the time of hearing and it was only raised at the time of execution proceeding which has also been dismissed in an appeal under Section 27A of the Act and as such the same cannot be entertained in an appeal under Section 15 of the Act. Ld. Advocate for the respondents has finally submitted that keeping in view the avowed object behind the legislation of the Act, a Forum constituted under the Act should not be bogged down by hyper-technicalities and as such the impugned order should not be interfered with.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the Ld. District Forum enjoys pecuniary jurisdiction to the extent of Rs.20 lakhs in view of the provisions of Section 11 (1) of the Act. In the instant case, if the value of the flat and the compensation claimed are added together, it exceeds the pecuniary jurisdiction of the Ld. District Forum. Section 12(3) of the Act provides –
“(3). On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected”.
It implies that a Forum constituted under the Act has an obligation to see at the first instance as to whether it has jurisdiction to entertain the complaint. The record speaks that the Ld. District Forum did not consider that aspect and proceeded with the complaint. But at the same time, after entered appearance, the appellants/OPs also did not raise the point before the Ld. District Forum about the shortcoming of the Ld. District Forum in entertaining the complaint. The appellants/OPs was sitting idle and they started hue and cry as and when notice of execution proceeding, more specifically W.A. had been issued against them.
Ld. Advocate for the Appellants has given emphasise to the provisions of Section 13(4) of the Act which reproduces below –
“(4) for the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-
(i) the summoning an enforcing the attendants of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness;
(vi) any other matter which may be prescribed”.
Rule 26(1) of Consumer Protection Regulations, 2005, as referred on behalf of appellants, is reproduces below –
“(1) In all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil Procedure, 1908 (5 of 1908);
Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder”.
Therefore, a question arises as to whether the principles of law laid down in the case of Harshad Chiman Lal Modi (supra) will be applicable in a complaint under the Act. We have gone through the decision referred by the Ld. Advocate for the appellant in the case of Country Colonisers Pvt. Ltd. (supra). In the said decision, the Hon’ble National Commission did not consider the decision of Hon’ble Supreme Court in the case of Harshad Chiman Lal Modi (supra) and did not discuss whether the provisions of the Civil Procedure Code will apply mutatis mutandis in an issue over the matter.
In this regard, it would be pertinent to quote the observation of the Hon’ble Supreme Court reported in (1994) 1 SCC 243 [Lucknow Development Authority – Vs. – M.K. Gupta] where in Paragraph No.13, the Hon’ble Apex Court has observed thus –
“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interests of the consumers. Use of the word ‘protection’ furnishes key to the minds of the makers of the Act. Various definitions and provisions .........”.
Therefore, the Act being a social beneficial legislation, if two things are possible which one is tilting towards the consumer, should be accepted.
In the case of Koopilan Uneens daughter Pathumma & Ors. (supra), the Hon’ble Supreme Court referring to the provisions of Section 21(1) of the Civil Procedure Code has observed that in order to entertain an objection regarding the place of suing by an Appellate or Revisional Court, the fulfilment of the following three conditions is essential:
(i) the objection was taken in the Court of first instance;
(ii) it was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement;
(iii) there has been a consequent failure of justice.
The Hon’ble Supreme Court has further proceeded to observe that all these conditions must co-exist. It has been specifically mentioned that it was further necessary that a case of failure of justice on account of the place of suing having been wrongly selected was made out. Therefore, the said decision, though related to a civil suit yet the principles of law laid down in the said case, in our view will be applicable in the facts and circumstances of the case.
The decision referred by the appellants in the case of M/s. Eureka Estates Pvt. Ltd. (supra) has no manner of application in our case because in the said case, it has been held that unlike the provisions of Section 114 of Civil Procedure Code, a District Forum or State Commission cannot exercise review jurisdiction. Therefore, the said decision does not help the appellants in any way.
The decision of Hon’ble Supreme Court in the case of Kiran Singh & Ors. (supra) is also distinguishable with our case because in the said case, a question arose regarding construction of Section 11 of the Suits Valuation Act. In fact, the appellants instituted the suit for recovery of possession before the Ld. Subordinate Judge, Monghyr showing the valuation at Rs.2,950/- and the said suit was dismissed. The appellants preferred an appeal against the said decision before the Ld. District Judge of Monghyr, who dismissed the appeal. The plaintiffs took up the matter in second appeal in the High Court at Patna where the correct valuation of the suit was determined at Rs.9,980/-. The plaintiffs paid the additional Court fees required of them and then raised the contention that on the revised valuation, the appeal from the decree of the Subordinate Judge would be not to the District Court but to the High Court. The Hon’ble High Court has held that the decision could be reversed only if the appellants could establish prejudice on the merits and folding that on a consideration of the evidence, no such prejudice had been shown dismissed the second appeal.
Needless to say, a consumer complaint is meant for disposal of the same in a summary way for a limited purpose and in the process, a Forum constituted under the Act should not be bogged down by hypertechinicalities and certainly, a Forum under the Act must see whether the order passed by the Ld. District Forum has caused miscarriage of justice. Keeping in view the broad aspect of legislation behind the enactment of the Act, it can be safely said that though all the provisions of Civil Procedure Code are not applicable before a Consumer Forum yet which one will protect the interests of a ‘consumer’ and expedite the litigation should be accepted unless it causes failure of justice.
Admittedly, the Respondents had entered into an Agreement for Sale with the appellants to purchase of a self-contained flat and a covered garage in a complex named ‘Airport Garden’ lying and situated within the territorial jurisdiction of the Ld. District Forum and paid the entire consideration amount and on payment of the entire amount, Deed of Conveyance has also been executed. However, after taking possession, the respondents found that the building in question has been tilted 1.5 ft. towards the north coupled with the lift cave. The appellants/developer in their written version admitted the same. The complaint has been filed before the Ld. District Forum within the period of limitation. Therefore, the case of the respondents/complainants about the alleged deficiencies in rendering services within the meaning of Section 2(1)(g) read with Section 2 (1)(o) of the Act has been proved beyond any shadow of doubt.
In that perspective, the Ld. District Forum was quite justified in passing the order directing the appellants to take proper steps in the matter of tilted building and lift cave and in case of failure, to remove such defect to make separate provisions of flat of same nature and size in the same location within three months from the date of order, alternatively to refund the consideration money at the present market price of that area to the complainants within three months from the date of order.
The Ld. District Forum is also justified in awarding a compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- in the facts and circumstances of the present case and therefore, we do not find any reason to interfere with the same.
However, we do not find any occasion on the part of the Ld. District Forum to direct the appellants/OPs to do the unfinished jobs mentioned in the prayer of the complaint i.e. (i) to (xiii) to the complaint within three months from the date of this order. On perusal of the prayer clause of the petition of complaint, it would appear that those prayers are relating to common facilities or common benefits. In other words, those prayers can only be entertained by initiating a ‘class action’ as provided in Section 12(1)(c) of the Act. For appreciation of the situation, it would be worthwhile to reproduce the provisions of Section 12(1)(c) which is set out below:-
"Manner in which complaint shall be made.
1. A complaint in relation any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –
c. One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of or for the benefit of, all consumers so interested”.
The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon’ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. – vs. – Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon’ble Commission has observed thus –
“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in
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our view, could not have the legislative intent. The term ‘persons interested’ and ‘persons having the same interest’ used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words ‘all consumers so interested’ and ‘on behalf of or for the benefit of all consumers so interested’, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider”. The materials on record indicate that the complainants have not filed any application for permission of the Commission to lodge the complaint in a representative capacity in accordance with the provisions of 12(1)(c) of the Act which is a pari materia to Order 1 Rule 8 of the Civil Procedure Code. In the building in question, there are so many flat owners and in order to obtain relief unless a complaint is lodged in the representative capacity, no such relief could be granted. Therefore, that part of the order being not sustainable in the eye of law should be set aside. The Ld. District Forum while passing the order has observed that in the event of failure on the part of the appellants/OPs to pay the sum within three months from the date of order, they shall be liable to pay sum of Rs.500/- per day from the date of order till its realisation as punitive damages. However, we do not find any reason for imposition of punitive damages of Rs.500/- per day. In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages is permissible?. In answering to the question, the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded”. Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the appellants were aware that any such claim is to be met by it and the appellants having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of punitive damages imposed by the Ld. District Forum is also not sustainable in the eye of law. In view of the above, the impugned Judgement/Final Order is modified to the extent that the appellants/OPs shall have no liability to do the unfinished jobs mentioned in the prayer clause of the petition of complaint i.e. (i) to (xiii) in respect of removal of defects and to pay the amount of Rs.500/- per day imposed as punitive damages. However, the other part of the order is maintained. With the above observations, the instant appeal stands disposed of. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.