Bharatkumar Pandya, Member

1. This appeal is filed by complainant against the order of the State Commission, Tamil Nadu, Chennai, in Consumer Complaint No. 127 of 2016, vide its impugned order dated 04.01.2022, which only partially allowed the complainant's claims. The Respondent-Builder has neither come in appeal before us nor has put in further appearance in this appeal filed by the original complainant despite appearance of one Mr. Abhijit Negi, Advocate, who on 26.04.2023 informed this commission that he has got the instruction from the respondent and that the vakalatnama shall be filed within three weeks. Neither vakalatnama has been filed nor anyone else thereafter has appeared. The brief facts of the case of the complainant-Appellant are that she booked Flat No. 14-H in the "SkyPark Residencies" project at Zamin Pallavaram, Chennai, from M/s Vishwakarma Real Estate and Constructions (India) Pvt. Ltd. on 14.02.2014, for a total consideration of Rs.86,78,627/-, which she paid in full. Although the construction agreement promised delivery of the completed flat by 31.03.2014, the developer severely delayed the project and failed to provide basic, promised infrastructure, including a mandatory Occupancy Certificate, covered car parking, and functional recreational and utility amenities and forcing the complainant to take possession under protest more than two years late on 09.06.2016. The Respondent-OP contended that the complaint was legally unsustainable, barred by limitation, and invalid due to a binding arbitration clause within the construction agreement. The developer argued that the delay in delivering the project was entirely caused by unforeseen force majeure conditions, including severe local water shortages and administrative bottlenecks, while asserting that the project was legally completed as evidenced by a Completion Certificate obtained from the CMDA on 04.09.2015. Furthermore, the OP maintained that because the complainant took physical possession of the flat on 09.06.2016, and signed a possession letter certifying the unit was "free from all defects," she had voluntarily waived all rights to claim subsequent service deficiencies or compensation.

2. After hearing both parties, the State Commission held that the developer was guilty of a deficiency in service for a project delay of over two years and ordered a lump sum compensation of Rs. 2,00,000/- for mental agony and hardship, along with Rs. 5,000/- towards litigation costs, which would carry an interest rate of 6% p.a. if not paid within six weeks. However, the State Commission dismissed all of the complainant's claims regarding the 26 specific structural defects and missing amenities, holding that these deficiencies could not be legally sustained because the complainant had failed to file an application to appoint an Advocate Commissioner or a qualified Engineer to officially inspect and verify the physical condition of the property. The order dated 04.01.2022 of State Commission is reproduced herein below:

                   "8. With regard to the relief of delayed delivery and handing over the possession to the complainant it is an admitted fact that the possession though agreed to be handed over on 31.03.2014 but the same was handed over only on 09.06.2016 i.e. with more than 2 years delay. As per the Construction Agreement dt. 14.02.2014, the opposite party had admitted under clause 8 as follows:-

                   In the event of any delay in handing over the schedule "E" Apartment by PARTIES OF THE SECOND PART to the PARTIES OF THE FIRST PART, for reasons other than those elucidated in clause-7 above, the PARTIES OF THE SECOND PART undertakes to pay a sum @ Rs. 5/- per sq. ft. per month of the constructed area mentioned in Schedule "E" for such delayed period as liquidated damages. The PARTIES OF THE FIRST PART agrees to strictly adhere to the payment schedule as above and other terms and conditions stated in this agreement"

                   9. Thus, we could find that even the Construction Agreement provided for the payment of compensation in the form of liquidated damages to the complainant in the event of delay in handing over. Thus we are of the view that the complainant is entitled for compensation for the 2 years delay caused in handing over the possession by the opposite party during which the complainant was put to hardship. The complainant had also submitted the Calculation Memo with regard to the damages. In the facts and circumstances, we deem it would be appropriate to award Rs.2,00,000/- towards compensation to the complainant for the delay caused by the opposite party in handing over the possession as also the opposite party had not come forward to produce any evidence to show that they are not at fault for the delay caused in the completion of the flat and handing over the same to the complainant. Thus, we hold that the opposite party had committed deficiency in service in causing delay in handing over possession and that the complainant is entitled to be compensated for the same. The point is answered accordingly.

                   In the result, the complaint is allowed in part. The opposite party is directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs only) towards compensation for the mental agony and hardship with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant within six weeks from the date of receipt of copy of the order failing which, the same would carry 6% interest p.a. from the date of complaint till realization."

3. We have heard learned counsel for the complainant-Appellant at length and have carefully perused the entire material placed on record. Counsel for the complainant has submitted that the State Commission has, as a matter of fact, found that the allegation of deficiency in the services of the Respondent-Builder is well founded in as much as there is delay of around two years in handing over the possession. The appellant has obtained the possession on 09.06.2016 when it was due on 31.03.2014. As recorded by the State Commission in para 8 and 9, the clause 8 of the construction agreement its self provided for liquidated damages for such delay. However, the Appellant is aggrieved on account of the fact that lump sum compensation of Rs.2 lakhs as against the claim of Rs.23,81,259/- (page 185) computed at 18% on the amounts deposited for the period of dates of deposits upto 31.05.2016, as granted by the State Commission is disproportionately low. The complainant placed a reliance on Rajnesh Sharma vs. Business Park Town Planners Ltd. MANU/SC/1322/2025, wherein the apex court was pleased to observe in para 19 to 21 of the said decision that even the award of delay compensation even at the rate of 9% was not justified and awarded compensation at the rate of 18% per annum of delay.

4. We note that the complainant had booked the unit and made the first payment only during February 2014, when the scheduled date of possession was March 2014. As a matter of fact, not only the payments continued till June 2015, the actual possession had been obtained within a year thereafter. Though there is technical delay, there is no, •5 palpable long delay or any "long wait" as was the case in the decision relied upon by the complainant. Moreover, the said case pertained to the compensatory interest with the grant of refund as was offered by the builder. In the present case the complainant-Buyer has obtained the possession within two years of booking. Therefore, we do not agree with the submission that the compensatory rate for such delay has to be 18%. Grant of such a high rate would indeed unduly tilt the balance in favor of the-complainant at the cost of the builder. At the same time, however, we are aware of the decision of the apex court in Wing Commander Arifur Rehman v. DLF Southern Homes Pvt Ltd (2020) 16 SCC 512, wherein grant of 6% rate for delay compensation has been considered to be fair. Accordingly, we hold that the State Commission has erred in granting a lump sum compensation only of Rs.2 lakhs without any reference to either the amounts which stood deposited, or to the period of delay or to the rate at which the compensation has to be computed. We therefore, deem it proper to modify the directions in the order of the State Commission for quantum of compensation. We direct that the compensation shall be quantified by applying simple interest of 6% on the amounts of deposits made from the respective dates of deposits for the period of delay i.e., 01.04.2014 to 09.06.2016. Going by the table on page no. 185, such compensation would come to Rs.7.93 lakhs, which can be rounded off to Rs.8 lakhs.

5. Accordingly, modifying the State .Commission's order, we direct that the Respondent-Builder shall pay an amount of Rs.8 Lakhs towards compensation and Rs.25,000/- as cost. The failure of the Respondent-OP in paying the whole or part of the amount on or before 25.09.2026 shall result into interest at 5% per annum on the amount remaining unpaid as on 25.09.2026.

6. Appeal is partly allowed.