NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISIONPETITIONNO.2335OF2011
(From the orderdated11.4.2011inFirst Appeal No.1986/2006
ofthe State Commission,Maharashtra, Circuit Bench Aurangabad)
Dr.PannabenPadamsiAsar,
R/oNitalPathological Laboratory
Desipura,Nandurbar
Tq.Distt.Nandurbar(Maharashtra)…Petitioner
Vs.
Mr. VilasRamdasBorane,
R/o 27-B,VrundavanColony
Nandurbar,
Tq. &Distt.Nandurbar
(Maharashtra)...Respondent
BEFORE:
HON’BLE MR.JUSTICEV.B. GUPTA, PRESIDING MEMBER
For the Petitioner:In person
For the Respondent:Mr. Rajesh, Advocate
Pronounced on: 3rdDecember, 2012
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed against order dated 11.4.2011, passed by Maharashtra State Consumer DisputesRedressalCommission,Aurngabad(for short ‘State Commission’) vide which appeal of the petitioner/complainant against order dated 9.8.2006, passed by District Consumer DisputesRedressalForum,Nandurbar(for short ‘District Forum’) was dismissed.
2.Brief facts of the case are that petitioner/complainant, who is a Doctor by profession, purchased a plot inVardhamanNagar Hosing Society. After getting sanctioned the plan for construction by Municipal Council, she approached respondent/opposite party, a contractor for construction of house.Petitionerentered into an agreement with the respondent on 8.11.1997. It is agreed that petitioner is to pay Rs.3,40,000/- in total for the said construction. It is alleged by the petitioner that respondent recovered amount of Rs.3,88,354/- when it was decided that amount of Rs.3,40,000/- is only to be paid.Though the amount as agreed was recovered by the respondent, but the construction was not completed. Therefore, petitioner filed (complaint case No.7/2000) which was decided in her favour by District Forum on 6.11.2003. During pendency of said complaint it was found by the petitioner that though construction was said to be completed it was not as per quality expected and agreed by her. Therefore,civilengineerShriAnsari was appointed to inspect the said house. Accordingly, report ofShriAnsari was produced before the Forum. But as the complaint was for the excess amount andnon completionof construction within stipulated period, the District Forum did not find anything about defective construction in report ofShri.Ansari..After taking possession of house,itwas found that construction is of very inferior quality. Many defects had been committed by the respondent such as, the flooring was not in good, levelling was not doneproperly,walls were separated by slab etc. Petitioner approached Civil EngineerShri.PrasadKulkarniatDhulefor inspecting the construction of her house.ShriKulkarni,accordingly inspected the house and gave report in respect of same. It is alleged bythepetitionerthat according to said report the defects in construction were beyond repair. Therefore entire house is to be demolished or rebuilt. It is alleged that petitioner was to run pathology laboratory in the said house and was to use as residential house also. But due to the defective construction she could not shift in her house. Therefore, she suffered professional loss also. On 11.1.2005, petitioner issued legal notice to respondent. Said notice was not replied by the respondent. Therefore,petitionerapproached the District Forum and demanded Rs.3 lakhs for reconstruction of house and Rs.2 lakhs for mental agony and financial loss with 18% interest.
3.Respondent appeared before the Forum and resisted the claim. On 3.5.2005,respondentmade an application and objected to the complaint on the ground of Res Judicata. The said application was dismissed by the District Forum on 12.8.2005. Thereafter,respondentfiled his written version on 23.9.2005 and denied all the allegations made by petitioner. It is submitted by the respondent that petitionerhadfiled(complaint case No.7/2000)with the same allegations. Therefore,petitioneris not entitled to file another complaint on the same cause of action. It is further stated that after decision of the (complaint No.7/2000) respondent paiddecretalamount to the petitioner.It is further stated that after getting completion certificate fromtheMunicipalCouncil,petitioner started residing in the newly built house.
4.District Forum, in its order held that in the absence of expert report about defective construction, complaint is not maintainable and it dismissed the complaint.
5.Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission which was also dismissed, vide impugned order.
6.Hence, this revision petition.
7.Petitioner has argued the caseonher own. Whereas,ShriRajiv, Advocate,hasargued on behalf of respondent. I have gone through the record.
8.It is contended by thepetitionerthatcomplaint is maintainable without the expert opinion for defective construction, since it is visible even to the naked eye that the construction is of very inferior quality. Thus it amounts to deficiency in service on the part of the respondent. Petitioner has also placed on record photographs of the defective construction, which apparently shows the situation and it is self-sufficient to establish the case of the petitioner.Thus, theorder passed by theForabelow areliable to be set aside.
9.On the other hand, it has been argued by learned counsel for the respondent that, there is no infirmity and ambiguity in the order passed by the State Commission as well as of the District Forum. Present revision petition has been filed just to harass the respondent.The issues raised in the present complaint, have already been decided in the earlier compliant filed by the petitioner.
10.State Commission in its order has observed;
“8.We perused the record and gave our anxious thoughts to the arguments advanced by both the counsels. It is an admitted fact that complainant entered into an agreement with respondent for construction of house. The allegations of complainant that respondent is not qualified engineer cannot be accepted as she after enquiry about the same had entered into an agreement. Construction was completed in the year 1999. Accordingly, completion certificate was obtained from Municipal Council. Thereafter in the year 2000 complaint was filed for recovery of excessive amount accepted by the respondent and duringpendancyof said complaint it was found by complainant that construction was not of proper quality. Therefore she submitted the report of oneShriAnsari. Complaint No.7/2000 was decided in favour of complainant and she receiveddecretalamount from the opponent. Grievance about defective construction was considered in the said complaint. Therefore she filed complaint No.21/05. In the said complaint she filed inspection report of oneShri.PrasadKulkarniwho is Consulting Engineer and builder & developer. According to said report construction made by opponent isofinferiorquality and it must be reconstructed after demolishing. The saidKulkarnidid not file his affidavit neither he offered himself for cross examination by opponent. Therefore there is no authentic evidence about defective construction. It is contended by Adv.Kulkarnithat Order 2 Rule 2 of C.P.C. is not applicable, to proceedings under Consumer Protection Act. But in ‘Dr.PoonamVerma`scase the Delhi State Commission relied onHon`bleSupreme Court`s decision in which it is held by Apex court that complaint on same fact and cause of action is not maintainable. It has come on record thatShri.PrasadKulkarniis not ready to file his affidavit as he is not willing to depose against his professional brother i.e. opponent. Complainant is aware about said fact so she should have filed report of any expert with affidavit to show that construction made by opponent is of inferior quality. Only allegations made by complainant are not sufficient to prove that construction is of inferior quality. Photographer who took photograph has also not filed affidavit in respect of same. Construction work was completed in the year 1999 and possession was taken by complainant in the year 1999. Completion certificate obtained in the year 2001 and complaint about defective construction was filed in the year 2005.
9.In our view when there is no expert evidence to show that construction work is of defective in nature. The report in question cannot go on record in the absence of affidavit. We are not inclined to allow the appeal.Distt.Forum rightly considered all the facts on record and dismissed the complaint.”
11.It is apparent from the record that the construction work was completed in the year 1999. The possession was taken by the petitioner also in thatveryyear. The completion certificate obtained in the year 2001, whereas the complaint about the defective construction was filedonlyinthe year 2005.Therewasno material before theforabelow to reach at the conclusion that the construction work is defective.Admittedly,thereis noreport of any expert engineer or other expert, to show that the construction work is defective in nature.
12.The question as to whether the construction made by the respondent was defective is a question of fact. Both theForabelow have given finding of facts that there is no evidence on record to show that the construction was defective.
13.In view of the concurrent findings of facts given byforabelow, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Consumer Protection Act, 1986. Both theforahavegivencogent reasons in their orders which do not call for any interference nor do they suffer from any infirmity orrevisionalexercise of jurisdiction.
14.Hon’bleSupreme Court inMrs.Rubi(Chandra)DuttaVs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654hasobserved ;
“Also, it is to be noted that therevisionalpowers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.This is not the manner in whichrevisionalpowers should be invoked.In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.It was not a case where such a view could have been taken by setting aside the concurrent findings of twofora.”
15.Recently, Supreme Court inGurgaonGraminBank Vs. Smt.KhazaniAnr., Civil Appeal No.6261 of 2012 decided on 4.9.2012, hasobserved ;
“12.We are of the view that issues raised before us are purely questions of facts examined by the three forums including the National DisputesRedressalCommission and we fail to see what is the important question of law to be decided by the Supreme Court.In our view, these types of litigation should be discouraged and message should also go, otherwise for all trivial and silly matters people will rush to this Court.”
16.Since, twoForabelow have given detailed and reasoned orders, which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby dismissed with costs of Rs.5,000/- (Rupees Five Thousand only).
17.Petitioner is directed to deposit the costby way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within eight weeks, failing which, petitioner shall be liable to pay interest @ 9% p.a. till realization.
18.List for compliance on 1.2.2013.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
Sg/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISIONPETITIONNO.2468OF2011
WITH
(I.A. NO.1 & 2 OF 2012, FOR STAY & C/DELAY)
(From the order dated27.01.2011inAppeal No. 874/2010
ofthe State Commission,Haryana,Panchkula)
SUB DIVISIONAL OFFICER (OP)
UHBVNL,
INDRI.…Petitioner
Versus
GIAN BHARTI SIKSHA SAMITI
NEAR MATAK MAJRI
INDER GARH (INDRI)
DISTRICT KARNAL
THROUGH ITS CHAIRMAN
ASHWANI KUMAR
SON OF SHRI NET RAM.…Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA,PRESIDING MEMBER
For the Petitioner(s):Mr.AlokSangwan, Advocate
For the Respondent(s):Mr.BhupendraSinghChauhan, Advocate
Pronouncedon :3rdDecember, 2012
ORDER
PER MR. JUSTICE V.B.GUPTA,PRESIDINGMEMBER
Petitioner/opposite party aggrieved by order dated 27.1.2011, passed by Haryana State Consumer DisputesRedressalForum,Panchkula(short, “State Commission”) has filed the present revision petition.Along with present revision petition, an application seekingcondonationof delay of 82 days has also been filed.
2.Brief facts are that respondent/complainantisa consumer of the petitioner having non-domestic connection with sanctioned load of 10 K.W, which is installed in the school premises of the respondent.It is stated that respondent had deposited a sum of Rs.77,815/- withpetitioner as development charges on 31.12.2008, but electric supply to the school of the respondent was being supplied through rural feeder.Petitioner despite repeated request of therespondent,is not shifting the high voltage line which is passing over the school.Thus, alleging it is a case of deficiency of service and unfair trade practice, respondentfiledcomplaintbefore District Consumer DisputesRedressalForum,Karnal(short, ‘District Forum’).
3.In the written statement, petitioner took the plea that if respondent is ready and willing to deposit the amount with respect to line shifting charges,thenthey have no objection in shifting the aforesaid high voltage line.It is further statedthatlocationof respondent’s school fall within the rural area and due to this reason the supply is being provided from the rural feeder.Thus, denying any kind of deficiency in service on its part, petitioner has prayed for dismissal of the complaint.
4.District Forum vide its order dated 26.4.2010, accepted the complaint by granting the followingrelief ;
“In view of the above observation and admission of both the parties since the complainant is ready to deposit Rs.7,553/- shifting charges, so the Ops are directed to shift the high voltage line passing over the school building within one month from the date of deposit of the amount by the complainant.The Ops are further directed to shift electricity supply of the complainant from agriculture feeder to rural feeder within one month from the date of receipt of the copy of this order failing which the Ops shall be liable to pay Rs.100/- per day penalty till the shifting of the line and connection as stated above. The Ops are further directed to ensure the regular supply to the complainant’s school by doing needful to increase the capacity of the transformer from where supply is to be released to the school if required.The orderbecomplied with accordingly.”
5.Aggrieved by the order of District Forum, petitioner filed an appeal which was dismissed by the State Commission.
6.I have heard the learned counsel for the parties and have gone through the record.
7.Taking up the application forcondonationof delay, it is argued by learned counsel for the petitioner that petitioner being a Government department, the file is required to be examined at different level,assuch the delay has occurred only due to procedural system.There is no unintentional delay.Thus, there are sufficient grounds for condoning the delay.
8.On the other hand, it is contended by learned counsel for the respondent that, no ground whatsoever has been shown for condoning the delay.
9.Grounds on whichcondonationof delay has been sought read asunder ;
“3.That the petitioner respectfully submits that delay has occurred in filing the present revision petition within limitation, which has occasioned in process of taking the steps at various levels and in getting the matter approved for filing before thisHon’bleCommission.The delay in filing the appeal was unintentional on the part of petitioner since UHBVNL being a Govt. Department, the file to challenge order of any court needs comprehensive examination and the file moves from one place to another.In this process, the delay has occurred and the same may kindly be condoned.
4.That moreover the petitioners are having their main legal office at Chandigarh.Whenever a court case is decided throughout Haryana, the same is sent to the head office for taking appropriate action.The head office needs some time to examine the merits of the case and then the matter is dealt by the Office of Legal Remembrance who nominates Standing counsel in Delhi for filing the revision petition, if required.The concerned District Officer is then directed to contact the appointed counsel in Delhi for sending him the necessary papers with regard to filing of revision petition.Thereafter, the file is examined by the counsel for the petitioner in Delhi and he drafts revision petition.The drafted petition is thensenttothe District Office for signing affidavits and sometimes the officers are called by the counsel at Delhi for further discussion and then the petition is filed before thisHon’bleCommission.In this process, enough time expires and delay occurs in filing the revision petition.
5.That thepetitioners submitsthat the delay is neither deliberate nor intentional but has occurred in the circumstances stated hereinabove.”
10.It is well settled that “sufficient cause” for non-appearance in each case, is a question of fact.
11.Delhi High CourtinNew Bank of IndiaVs. M/s Marvels (India): 93 (2001) DLT 558,has held;
“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want ofbonafideare clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.”