Shashi Nandkeolyar, Member

1. These two cross-appeals, being First Appeal No. 425 of 2017 and First Appeal No. 167 of 2018, arise out of and are directed against the common order dated 31.01.2017 [Impugned Order] passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai [State Commission] in Consumer Complaint No. RBT/15/511 in CC/03/131 (Complaint No. 131 of 2003), whereby the State Commission partly allowed the complaint filed by S. Ravi Kumar and directed M/s Kavisha Fine Homes (P) Ltd. to pay compensation of Rs. 5,00,000/- together with costs of Rs. 10,000/-.

2. In First Appeal No. 425 of 2017, the Appellant, M/s Kavisha Fine Homes (P) Ltd. [Developer], is a private limited company carrying on the business of real estate development, having its registered office at Akhalwaya Building, 1st Floor, 42/44, Agiary Lane, Bazar Gate Street, Fort, Mumbai-400001, and was the Opposite Party before the State Commission. The Respondent in this appeal, S. Ravi Kumar ["the Complainant"/"the home-buyer"], was the original Complainant before the State Commission, and is stated to be a resident of Navi Mumbai who, at the relevant time, purchased a row house from the Developer for residential use.

3. In First Appeal No. 167 of 2018, the array of parties stands reversed: S. Ravi Kumar is the Appellant, aggrieved by the inadequacy of the compensation awarded to him, while M/s Kavisha Fine Homes (P) Ltd. is arrayed as the Respondent. This appeal has been filed along with I.A. No. 1845 of 2018 seeking condonation of delay in its filing.

4. Both First Appeal No. 425 of 2017 and First Appeal No. 167 of 2018 assail one and the same impugned order dated 31.01.2017 passed by the State Commission in Consumer Complaint No. RBT/15/511 in CC/03/131. The Developer, in FA/425/2017, seeks to have the entire award of compensation set aside on the ground that no deficiency in service was ever established against it, whereas the home-buyer, in FA/167/2018, seeks enhancement of the very same compensation on the ground that it is grossly inadequate having regard to the loss actually suffered by him. The two appeals are, therefore, classic cross-appeals: they proceed from a shared factual matrix, rely upon the same pleadings, the same evidence (including the report of the Court Commissioner) and the same impugned findings of the State Commission, and, if allowed independently of each other, are capable of yielding inconsistent outcomes on an identical record. The parties themselves have treated the two matters as connected written synopses have been filed jointly captioned for both appeals, hearings have proceeded on a common date, and the record of one appeal repeatedly cross-refers to pleadings filed in the other. For these reasons and in the interest of a consistent and comprehensive adjudication, this common judgment is being pronounced disposing of both First Appeal No. 425 of 2017 and First Appeal No. 167 of 2018.

BRIEF FACTS OF THE CASE IN CHRONOLOGICAL ORDER

5. In October, 1995, the Developer floated a scheme for the development of a residential complex known as "Manas Sarovar" at Village Dhairy, Pune, and invited applications from the public for booking of row houses and flats against an advance payment of Rs. 30,000/- per unit.

6. The Complainant applied for and was allotted Row House No. RA-5, admeasuring 1225 sq. ft., and paid the booking advance of Rs. 30,000/- to the Developer.

7. On 21.06.1997, an Agreement for Sale was executed between the Developer and the Complainant for the said row house for a total sale consideration of Rs. 6,12,500/-, in addition to which the Complainant was liable to pay approximately Rs. 1,25,000/- towards development charges, society expenses, etc., and a further sum of Rs. 1,42,500/- for additional open space under clause 13 of the Agreement. Under the Agreement, possession was to be handed over within 24 months, i.e., on or before 21.06.1999. Construction of the row house commenced only in November, 1997.

8. In April/May, 1999, the Complainant took possession of the row house. It is the case of the Developer that possession was taken of a duly completed unit, prior to the stipulated date, while a sum of Rs. 1,62,126/- remained unpaid by the Complainant. It is the case of the Complainant that possession was taken reluctantly, of an admittedly incomplete unit lacking basic amenities, on the Developer's assurance of early completion of the balance work.

9. By letters dated 09.02.1999 and 08.03.1999, and thereafter by letter dated 19.11.1999, the Complainant corresponded with the Developer regarding completion of outstanding work and amenities in the complex.

10. On 08.02.2002, the Complainant, through his advocate, issued a legal notice to the Developer calling upon it to complete the outstanding work and pay compensation of Rs. 10,00,000/-.

11. On 04.04.2003, having received no response, the Complainant instituted Consumer Complaint No. 131 of 2003 before the State Commission, claiming Rs. 20,77,000/- towards compensation, expenses, loss, damages and mental agony on account of alleged deficiency in service by the Developer.

12. On 09.07.2003, the Developer filed its written statement before the State Commission, denying deficiency in service and contending, inter alia, that the complaint was barred by limitation and that a sum of Rs. 1,62,126/- remained due and payable by the Complainant.

13. During the pendency of the complaint, the State Commission appointed a Court Commissioner to inspect the row house and verify the defects alleged by the Complainant. (It is on record that this was the second Court Commissioner so appointed, the first having failed to discharge the task.) The Court Commissioner, Mr. Umesh V. Bhonsale, inspected the premises and, by report dated 15.04.2006, furnished a detailed and itemised list of defects spanning plumbing, electrical, flooring/tiling, staircase, woodwork, seepage/leakage/cracks, architectural execution, and other common issues in the housing complex and estimated that a sum of Rs. 8,20,000/- would be required to carry out the necessary repairs.

14. By order dated 15.05.2010, the State Commission dismissed the complaint solely on the ground that it was barred by limitation.

                          "7. Complainant has tried to plead that society was not formed within stipulated time, occupation certificate was not procured and that workmanship in the construction of road was not proper, there was no proper electricity supply and water and on all these counts he claimed compensation of Rs.10 Lakhs. All these could have been considered by us only if he would have filed the consumer complaint within two years from the date of possession of the row house. Since he had taken possession in May-1999 and he had filed consumer complaint in April, 2003, the grievances of complainant about deficiencies in service or defects in workmanship of the row house is not tenable in law and they have got to be ignored. Under the circumstances, we do not want to discuss the lacunae found in the constriction of row house or defects noticed by the complainant which has been magnified by the complainant in his pleadings and thus, we find that the complaint is not filed within limitation. In the circumstances we have no option but to hold that complaint is barred by limitation. Hence, we pass the following order:-

                          :-ORDER-:

                          1. Complaint stands dismissed.

                          2. Parties are left to bear their own costs.

                          3. Copies of the order herein be furnished to the parties as per rules.

15. Aggrieved thereby, the Complainant preferred First Appeal No. 82 of 2011 before this Commission. By order dated 24.03.2015, this Commission allowed the appeal, set aside the order dated 15.05.2010, and restored the complaint to the file of the State Commission for fresh adjudication on merits, holding that since correspondence between the parties regarding outstanding defects had continued up to the Complainant's letter dated 28.05.2001, the complaint filed within two years thereof was not barred by limitation.

16. In the interregnum, in the year 2005, the Developer had instituted Civil Suit No. 789 of 2005 before the Court of the Civil Judge, Senior Division, Pune, seeking termination of the Agreement dated 21.06.1997 on the ground of the Complainant's alleged non-payment of dues. By judgment dated 17.08.2013, the said suit was dismissed by the trial court recording that the Developer had itself admitted receipt of Rs. 7,38,000/- from the Complainant, an amount in excess of what was payable under the Agreement. The relevant portion of the order is reproduced below:-

                          "13. In cross examination of plaintiff, plaintiff had admitted that defendant paid Rs.7,38,000/-. He has paid more than amount mentioned in agreement. In such circumstances, plaintiff failed to prove that Rs.2,07,126/- is due at him. Hence, he is not entitled to recover the same alongwith interest. Hence, I answer Issue No.4 in the negative and pass following order :

                          ORDER Suit is dismissed with costs.

                          Decree be drawn accordingly.

                           Pune

                           Date 17.8.2013 (A.P.Kulkarni)

                           6th Jt. C.J.S.D., Pune"

17. The Developer's Civil Appeal No. 687 of 2013 against the said judgment was also dismissed by the District Judge, Pune, by judgment dated 02.08.2016, affirming that no arrears remained due from the Complainant and that he had not committed any breach of the Agreement. The relevant portion of the order is reproduced below:-

                          "08. On the point of recovery of amount is concerned, PWI Ravindra (Exh.15) has stated that plaintiff has received 5,20,625/- from the defendant. The document (Exh.42) clearly goes to show that there is no outstanding against the defendant on 25/08/1998. No extract of account is produced on record. Exh.34 goes to show that various amounts has been deposited by the defendant with the plaintiff from 06/02/1996 to 21/05/1999. PW1 admitted that Rs.30,000/- were paid by defendant on 28/05/2001. However, it is not mentioned in the letter. He has further admitted in the cross-examination that Rs.7,38,000/- were received by the plaintiff. It means that more than consideration amount has been received by the plaintiff. However, this witness tried to give explanation that extra land was surrounding to flat of defendant and therefore he has to pay extra costs. However, no such agreement or understanding is produced on record. Thus, admission of the plaintiff clearly goes to show that there are no arrears against the defendant. So Clause 20 of the agreement is also not violated.

                          09. In view of the above reasonings, I find that there is no breach of conditions and hence plaintiff is not entitled for any relief. The learned Civil Judge has properly appreciated the facts and law and hence no interference is necessary in the impugned judgment. Hence, by answering the points accordingly I hold that appeal is liable to be dismissed. In the result, I pass the following order :

                          ORDER

                          i. Appeal is dismissed with costs.

                          ii. The judgment and decree passed by learned Civil Judge, Sr.Division, Pune in Spl.

                          Civil Suit No.789/2005 dated 17.8.2013 is confirmed.

                          iii. Decree be drawn up accordingly.

                          (R.B. Agarwal) 2.8.2016 Adhoc District Judge - 1,Pune"

18. On remand, the State Commission heard the parties afresh and, by the impugned order dated 31.01.2017, partly allowed the complaint, holding that deficiency in service on the part of the Developer stood established, and directing payment of compensation of Rs. 5,00,000/- together with costs of Rs. 10,000/-.

19. The relevant findings and the operative directions contained in the impugned order dated 31.01.2017 of the State Commission read as under:

                          "[9] ... As per the Report of the Court Commissioner amount of Rs. 8,20,000/- will be required for those repairs. In this case, it is particular to note that the cost of the Row House itself was of Rs. 6,12,500/- along with other incidental charges. Under such circumstances, it will not be proper to grant more amount than the amount of consideration to the complainant for repair purposes. However, as there were defects in the Row House of complainant, complainant is entitled to get compensation from the Opposite Party. Looking to the facts and circumstances of these case we are of the opinion that if compensation of Rs. 5,00,000/- is given to the complainant for making repairs of the Row House, then that will meet the ends of justice. Hence, we answer point No.3 accordingly and proceed to pass following order-

                           ORDER

                           1] Complaint is partly allowed.

                           2] Opposite Party is directed to pay compensation of Rs. 5,00,000/- [Rupees

                          Five Lakh only] to the complainant for making repairs of Row House, within a period of one month from the date of this order. Failing which, Opposite Party will have to pay penal interest on this amount @ 6% p.a. till realisation of amount. 3] Opposite party is directed to pay an amount of Rs. 10,000/- [Rupees Ten Thousand only] to the complainant towards costs of litigation. 4] One set of complaint compilation be retained and rest be returned to the complainant."

20. Aggrieved by the quantum of compensation awarded, the Developer preferred First Appeal No. 425 of 2017 on 06.03.2017, along with an application for stay, seeking to set aside the impugned order in its entirety. By order dated 27.03.2017, this Commission granted interim stay of execution of the impugned order subject to the Developer depositing 50% of the awarded amount with the State Commission.

21. The Complainant, on his part, preferred First Appeal No. 167 of 2018 seeking enhancement of the compensation to the full claimed amount of Rs. 20,77,000/- together with interest @ 18% per annum, along with I.A. No. 1845 of 2018 for condonation of delay in filing the appeal. The Complainant's explanation for the delay is that he came to know of the impugned order only in July, 2017, upon receipt of the paper-book of the Developer's appeal, having been away from his residence and having received no prior communication of the order from the State Commission despite correspondence addressed to the Registrar of the State Commission on 24.07.2017, 07.09.2017, 20.12.2017 and 05.01.2018 under the Right to Information Act, 2005. The Developer, in reply, disputes this explanation and contends that the delay of 333 days has not been sufficiently explained and that the appeal has been filed only as a counterblast to the Developer's own appeal.

22. Both appeals thereafter proceeded before this Commission; replies and written submissions were exchanged by the respective parties, and the matter was listed for final hearing, culminating in the present common judgment.

EXTRACTION OF THE PRAYER CLAUSE IN THE ORIGINAL COMPLAINT AND IN BOTH THE APPEALS

23. The prayer clause in Consumer Complaint No. 131 of 2003, as originally filed before the State Commission, reads thus:

                          "The Complainant, therefore, prays -

                          (a) That this Hon'ble Forum be pleased to order and direct the Opposite Parties to pay Rs. 20,77,000/- (Rupees Twenty Lacs Seventy Seven Thousand only) to the Complainant towards the compensation, expenses, loss, damages and compensation for mental agony and harassment caused to the Complainant due to the deficiency of services of the Opposite Parties.

                          (b) That the Opposite Parties be ordered and directed to pay a sum of Rs. 10,000/- for the cost of this Complaint.

                          (c) The delay if any, in filing the complaint be condoned.

                          (d) For such further relief as this Hon'ble Forum may deem fit and proper."

24. The prayer clause in First Appeal No. 425 of 2017 filed by the Developer reads thus:

                          "It is therefore most respectfully prayed that the Hon'ble National Commission be pleased to:

                          1. Allow this Appeal setting aside order dated 31.01.2017 passed by State Consumer Dispute Redressal Commission, Maharashtra Mumbai in Consumer Complaint No. RBT/15/511 IN CC/03/131 awarding compensation of Rs. 5,00,000/-           (Rupees Five Lacs) and cost of Rs. 10,000/- (Rupees Ten Thousand) to the respondent; and/or II. Pass such other and further order as this Hon'ble Commission may deem fit in the interest of justice."

25. The prayer clause in First Appeal No. 167 of 2018 filed by the Complainant/home-buyer reads thus:

                          "That in view of the above mentioned facts, circumstances and contentions raised by the Appellant, it is humbly prayed that this Ld. Commission may be graciously pleased to:-

                          a) Allow the Appeal;

                          b) Pass an order enhancing the compensation granted to the Appellant and order the Respondent to pay Rs. 20,77,000/- (Rupees Twenty Lakhs Seventy Seven Thousand only) as compensation along with interest @18% from the date of the consumer complaint till the date of realization;

                          c) Pass such other further orders as the court deems necessary in the facts and circumstances of the present case in favour of the Appellant."

WRITTEN SUBMISSIONS ON BEHALF OF M/S KAVISHA FINE HOMES (P) LTD. (APPELLANT IN FA/425/2017, RESPONDENT IN FA/167/2018)

26. It has been submitted on behalf of the Developer that there is no proof of any deficiency of service, that possession of a duly completed unit was in fact handed over to the Complainant prior to the stipulated time at the Complainant's own request, and that the Complainant's letters dated 09.02.1999 and 08.03.1999, far from disclosing any deficiency, in fact evidence the availing of additional facilities by the Complainant.

27. It has further been submitted that the unexplained delay of nearly four years between taking possession (May, 1999) and filing the complaint (April, 2003) betrays an afterthought and mala fide intent on the part of the Complainant, who had in the meanwhile let out the property to a tenant and earned rental income, and filed the complaint only to avoid making the balance payment due under the Agreement.

28. As regards the report of the Court Commissioner, it has been contended that the same is not "evidence" and cannot substitute proof of deficiency; that it is based on an inspection carried out more than five to seven years after possession was handed over, is silent on whether the defects noted therein are attributable to normal wear & tear, non-maintenance, or subsequent alteration by the Complainant, rather than to any default of the Developer; and that several of the items listed do not fall within the amenities promised under Annexure C to the Agreement.

29. It has also been urged that the grant of compensation of Rs. 5,00,000/- against a total sale consideration of Rs. 6,12,500/- which included the cost of land is excessive and arbitrary, since structural defects cannot reasonably account for such a large proportion of the total price, and that the impugned order did not independently apply its mind but merely relied upon the Court Commissioner's report. Reliance has further been placed upon the disparity between the Rs. 10,00,000/- claimed in the legal notice dated 08.02.2002 and the Rs. 20,77,000/- claimed a year later in the complaint, to contend that the claim is inflated and intended to extort money from the Developer.

WRITTEN SUBMISSIONS ON BEHALF OF S. RAVI KUMAR (APPELLANT IN FA/167/2018, RESPONDENT IN FA/425/2017)

30. It has been submitted on behalf of the Complainant/home-buyer that the possession taken in May, 1999 was of an admittedly incomplete row house, taken reluctantly and only upon the Developer's assurance of early completion of the balance work; that basic amenities such as sewage connection, permanent power connection, an adequate water scheme, boundary wall, roads and street-lighting remained unprovided for years thereafter; and that the Complainant was constrained to himself incur expenditure to render the property habitable.

31. It has been submitted that the report of the Court Commissioner dated 15.04.2006 furnishes a comprehensive, item-wise list of defects across plumbing, electrical, flooring, staircase, woodwork and structural heads, and assesses the cost of repair at Rs. 8,20,000/-, which figure the State Commission itself accepted as reliable but arbitrarily scaled down without adequate reasoning to Rs. 5,00,000/-, and further failed to award any amount towards the remaining heads of claim loss of rent, cost of alternate arrangements, travel expenses, loss on account of the Developer's dismissed civil suit, and compensation for mental agony and harassment despite these having been pleaded and particularized in the complaint.

32. Reliance has been placed on the admissions extracted from the Developer's own Civil Suit No. 789 of 2005 (dismissed on 17.08.2013 and upheld in appeal on 02.08.2016), in which the Developer admitted to having received Rs. 7,38,000/- from the Complainant an amount exceeding what was payable under the Agreement to submit that the Developer's persistent plea of non-payment by the Complainant is demonstrably false, and lends further credence to the Complainant's case of deficiency having gone unaddressed for want of bona fides on the part of the Developer.

33. It has further been submitted, placing reliance on the decision of the Hon'ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, that compensation under the Consumer Protection Act must correlate with the loss or injury actually proved and is not confined to an arbitrary or uniform figure; and that, so correlated, the compensation payable to the Complainant ought to have been the full amount claimed, or at the least the sum of Rs. 8,20,000/- assessed by the Court Commissioner, rather than the reduced figure of Rs. 5,00,000/- awarded by the State Commission.

REPLY OF S. RAVI KUMAR TO THE APPEAL OF THE DEVELOPER (FA/425/2017)

34. In reply to FA/425/2017, it has been submitted on behalf of the Complainant that the Developer's appeal is a dilatory tactic and suppresses material facts, in particular the dismissal of the Developer's own Civil Suit No. 789 of 2005 and the Developer's admission therein of having received payment in excess of what was contractually due; that the Developer has not approached this Commission with clean hands; and that the Developer has failed to demonstrate compliance with the interim direction of this Commission dated 27.03.2017 regarding deposit of 50% of the awarded amount. It is submitted that the appeal is devoid of merit and liable to be dismissed.

REPLY OF THE DEVELOPER TO THE APPEAL OF S. RAVI KUMAR (FA/167/2018)

35. In reply to FA/167/2018, it has been submitted on behalf of the Developer that the appeal is highly belated the actual delay being 333 days and not 155 days as claimed that no satisfactory explanation for each day's delay has been furnished, and that the appeal has been filed only as a counterblast upon receipt of notice of the Developer's own appeal, notwithstanding that the impugned order was passed in the presence of the Complainant's own counsel. On merits, it is denied that any deficiency in service survives; it is contended that the Court Commissioner inspected the premises nearly seven years after possession, that ordinary wear and tear over such a period, and want of maintenance by the Complainant and his tenant, account for the defects noted, and that the claim for enhancement is bogus, frivolous and intended to extort money from the Developer. Dismissal of the appeal, with costs, has been prayed for.

CASE LAW CITED BY THE PARTIES

36. The only judicial precedent placed on record by either side is the decision of the Hon'ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, reported in (2004) 5 SCC 65, cited by the Complainant/home-buyer in support of his claim for enhancement of compensation. The relevant extract relied upon reads as under:

                          "However, the power 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. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along 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 and there has been cancellation of scheme without any justifiable cause."

37. This Commission has considered the ratio of the above decision, discussed further below, and finds that far from supporting an enhancement, it in fact reinforces the correctness of the approach adopted by the State Commission in the impugned order.

REASONING AND ANALYSIS

38. Condonation of Delay in FA/167/2018: The explanation offered by the Complainant that he was travelling, that no copy of the impugned order was received by him at the material time, and that he pursued the matter through correspondence and RTI applications addressed to the Registrar of the State Commission promptly upon learning of the order from the Developer's own paper-book in July, 2017 is plausible and is duly corroborated by contemporaneous correspondence placed on the record of FA/167/2018. Consumer fora exist for substantive justice, and this Commission is disinclined to shut out an appeal, otherwise arising from the very same impugned order that is under challenge at the instance of the opposite party, on a technical plea of delay when no real prejudice is shown to have been caused to the Developer, who has had full opportunity to contest the appeal on merits. The delay in filing First Appeal No. 167 of 2018 is, accordingly, condoned, and I.A. No. 1845 of 2018 stands allowed, so that both cross-appeals can be, and have been, considered on their respective merits.

39. On Deficiency in Service: The foundational premise of the Developer's appeal that there was no deficiency in service whatsoever does not survive scrutiny of the record. This very question of continuing deficiency was substantially addressed by this Commission in its earlier order dated 24.03.2015 in FA No. 82 of 2011, where it was found, on a reading of the correspondence between the parties, that defects in the row house were within the knowledge of the Developer and that certain formalities/defects remained to be cured well after possession, the cause of action continuing at least till the Complainant's letter dated 28.05.2001. That finding, rendered between the very same parties on the very same set of correspondence, was not further assailed and has attained finality. It furnishes a firm evidentiary foundation for the State Commission's conclusion on remand that deficiency in service stood established, a conclusion further corroborated, and not supplanted, by the report of the Court Commissioner dated 15.04.2006, which was prepared by an independent expert appointed by the State Commission itself, at the instance of, and after inspection undertaken during the pendency of, the very complaint in question. The Developer's submission that the Complainant's letters of 09.02.1999 and 08.03.1999 show no deficiency does not assist it: on a plain reading, those letters call upon the Developer to complete admittedly outstanding items of work, which is itself indicative of incompleteness at the point of possession rather than of satisfaction with the state of the property.

40. This Commission is also unable to accept the Developer's submission that the delay in filing the original complaint, or the fact that the Complainant let the property on rent, is indicative of mala fides sufficient to displace the finding of deficiency. The question of limitation, which subsumes the question of delay in approaching the Forum, already stands conclusively answered in the Complainant's favour by the order dated 24.03.2015 in FA No. 82 of 2011, and mere use of an admittedly incomplete property, pending its completion by the Developer, cannot by itself extinguish a home-buyer's right to compensation for deficiency that is otherwise established on the record.

41. Further, the Developer's own conduct considerably undermines the theory that the Complainant was withholding payment and had, therefore, fabricated a case of deficiency to escape his obligations under the Agreement. The Developer's Civil Suit No. 789 of 2005, instituted for termination of the Agreement on the ground of the Complainant's non-payment, was dismissed by the Civil Judge, Senior Division, Pune, by judgment dated 17.08.2013, upon a specific finding that the Developer had itself admitted receipt of Rs. 7,38,000/- from the Complainant, an amount exceeding what was payable under the Agreement; this finding was affirmed by the District Judge, Pune, in Civil Appeal No. 687 of 2013 by judgment dated 02.08.2016. These are judgments of civil courts of competent jurisdiction, inter partes, and unreversed, and this Commission sees no reason to take a different view of the very facts that were in issue before those courts. They squarely rebut the Developer's suggestion, repeated in these proceedings, that the Complainant owed monies and filed the complaint only as a pressure tactic.

42. On Quantum of Compensation: That leaves the question of quantum, which is the principal grievance in both appeals the Developer contending that Rs. 5,00,000/- is excessive, the Complainant contending that it is grossly inadequate and ought to be enhanced to Rs. 20,77,000/-, or in any event to Rs. 8,20,000/-, together with interest. Having appreciated the evidence on this record, this Commission is satisfied that the State Commission struck a fair and reasoned balance which does not call for interference either way.

43. Of the Rs. 20,77,000/- originally claimed, only a fraction the items corresponding to plumbing, electrical, flooring, staircase, woodwork and seepage-related repairs stands corroborated by the report of the Court Commissioner, which quantifies the cost of those specific repairs at Rs. 8,20,000/-. The remaining heads of claim loss of rent, litigation and travel expenditure, loss on account of a personal computer, cost of the housing loan, and compensation for mental agony are, on the record before this Commission, either unsupported by independent contemporaneous documentary or expert evidence, or are, in substantial part, consequential claims of a kind that this Commission would ordinarily expect to see proved with far greater particularity than a bare tabulation appended to the complaint. The Complainant has not been able to point to any documentary material, beyond his own assertions, substantiating these heads, and no infirmity has been shown in the State Commission's implicit rejection of them.

44. As regards the sum of Rs. 8,20,000/- assessed by the Court Commissioner for the repair items that are corroborated, the State Commission was conscious that the row house itself had been sold for a total consideration of Rs. 6,12,500/-, and took the view that it would not be equitable to permit a repair-cost award to exceed the sale consideration of the unit itself. This is not, in the facts of this case, an arbitrary approach; it is, if anything, an application of exactly the principle later invoked before this Commission from Ghaziabad Development Authority v. Balbir Singh that compensation must correlate with the loss or injury actually found, rather than being awarded as an untethered lump sum. The State Commission did correlate the award with the loss established through the Court Commissioner's report, while moderating it, for good reason, having regard to (a) the fact that the report was based on an inspection conducted several years after possession, during which period ordinary wear, use and, on the Developer's case, absence of proactive maintenance by the Complainant would also have had some role to play, and (b) the practical proportionality between repair cost and the value of the asset itself. Compensation of Rs. 5,00,000/-, arrived at on this basis, cannot be said to be so unreasonable, perverse or unsupported by evidence as to call for interference by this Commission in its appellate jurisdiction, nor is it shown to be so inadequate, having regard to the corroborated defects, as to warrant enhancement.

45. Neither appeal has been able to demonstrate any error of jurisdiction, any misreading of the record, or any perversity in the impugned order. Both appeals, in substance, invite this Commission to re-appreciate evidence that has already been properly appreciated by the State Commission and to substitute this Commission's own estimate of quantum for that of the State Commission, without any legal infirmity having been shown in the process by which the State Commission arrived at its figure. That is not a course open to an appellate forum absent demonstrated illegality, material irregularity or perversity, none of which has been made out here.

46. For the reasons recorded above, this Commission finds itself in respectful agreement with the reasoning of the State Commission as reflected in the impugned order dated 31.01.2017, both as to the existence of deficiency in service and as to the quantum of compensation awarded, and is of the view that no case for interference has been made out in either First Appeal No. 425 of 2017 or First Appeal No. 167 of 2018.

OPERATIVE ORDER

47. In view of the foregoing discussion, I.A. No. 1845 of 2018 (Application for Condonation of Delay) in First Appeal No. 167 of 2018 is allowed, and the delay in filing the said appeal is condoned.

48. First Appeal No. 425 of 2017, filed by M/s Kavisha Fine Homes (P) Ltd., is dismissed.

49. First Appeal No. 167 of 2018, filed by S. Ravi Kumar, is dismissed.

50. The impugned order dated 31.01.2017 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in Consumer Complaint No. RBT/15/511 in CC/03/131 is affirmed in its entirety.

51. Any amount deposited by the Developer pursuant to the interim order dated 27.03.2017 of this Commission shall be released/adjusted towards satisfaction of the compensation and costs awarded by the State Commission, and the Developer shall, within four weeks from the date of this judgment, pay/deposit the balance of the amount awarded, together with interest as directed by the State Commission, if not already paid.

52. There shall be no order as to costs in either appeal.

53. I.A., if any, pending in either appeal shall stand disposed of.