State Consumer Disputes Redressal Commission
Sh. Sanjay Jaswal. vs Dr. S.K. Nanda. on 10 January, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Revision Petition No.: 80/2018
Date of Presentation: 21.08.2018
Order Reserved On : 04.12.2019
Date of Order : 10.01.2020
......
Sanjay Jaswal son of Shri Rashpal Singh R/o Badoh Tehsil Ghanari
District Una (H.P).
...... Revisionist/opposite party
Versus
Dr. S.K. Nanda C/o Nanda Hospital Hamirpur Road Una Tehsil
and District Una (H.P).
......Non-revisionist/complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr. R.K. Verma Member
Whether approved for reporting?1 Yes.
For Revisionist : Ms. Leena Guleria Advocate.
For Non-revisionist : Mr. Pawan K. Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R:-
Present revision petition is filed against interim order 09.04.2018 passed by learned DCF/DCC in consumer complaint No.101/2013 titled S.K. Nanda Versus Sanjay Jaswal wherein learned DCF/DCC dismissed application filed by revisionist for oral cross examination of (1) Sh. K.S. Mandhotra Senior Hydrologist (2) Sh. D.S. Saini 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018 Superintending Hydrologist & (3) Complainant Dr. S.K. Nanda.
Brief facts of consumer complaint:
2. Dr. S.K. Nanda filed consumer complaint under Consumer Protection Act pleaded therein that complainant is professional doctor and is running hospital with name and style Nanda Hospital and Diagnostic Centre Hamirpur Road Una District Una (H.P). It is pleaded that complainant has agricultural land in village Jankaur Tehsil and District Una (H.P). It is pleaded that opposite party approached complainant to hand over water tube well work to opposite party and assured the complainant that opposite party would work to the satisfaction of complainant. It is further pleaded that agreement dated 10.12.2012 was executed inter se parties. It is pleaded that complainant paid consideration amount of Rs.51000/-(Fifty one thousand) to the opposite party in advance and thereafter opposite party started the water tube well work at site and after few days opposite party requested complainant to supply pipe of 6 feet for lowering the same in the tube well bore. It is pleaded that complainant provided requisite pipe to opposite party and also provided other raw material demanded from time to time. It is pleaded that despite legal notice opposite party did not perform its part.
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3. Complainant sought relief to the effect that opposite party be directed to log the tube well bore and to provide mineral water and also to pay Rs.1000000/-(Ten lac). In addition complainant also sought litigation costs to the tune of Rs.5500/-(Five thousand five hundred). In addition complainant sought additional compensation to the tune of Rs.20000/-(Twenty thousand) on account of pain and agony suffered by complainant due to deficient service of opposite party. Prayer for acceptance of consumer complaint sought.
4. Per contra opposite party filed version pleaded therein that opposite party has filed civil suit before Civil Judge (Sr. Divn.) Court No.1 Una titled Sanjay Kumar Versus S.K. Nanda which is pending for adjudication. It is pleaded that complainant has not come to the Forum with clean hands and complainant is estopped to file present consumer complaint by his own act and conduct. It is further pleaded that complainant did not pay settled rate amount deliberately and intentionally to harass the opposite party. It is pleaded that opposite party has completed whole of the work in the month of March 2013 and 112 meter bore of 12 inches has been drilled in the ground. It is pleaded that opposite party after completion of work has given detailed bill on dated 07.03.2013, 20.03.2013 and 24.03.2013 for a consideration amount of Rs.400464/-(Four lac four hundred sixty four) 3 Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018 after deduction of Rs.51000/-(Fifty one thousand) advance as per terms and conditions of agreement. It is further pleaded that opposite party also served legal notice to complainant to pay an amount of Rs.400464/-(Four lac four hundred sixty four) on dated 22.08.2013. It is pleaded that complainant in order to avoid payment filed the present consumer complaint. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted allegations mentioned in the consumer complaint. During pendency of consumer complaint opposite party filed application for cross examination of (1) Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) Central Grounds Water Board Ministry of Water Resources Government of India SCF-40 1st Floor Industrial Area Phase-7 Mohali & (3) Dr. S.K. Nanda. Complainant resisted the application. Learned DCF/DCC dismissed the application.
6. Feeling aggrieved against interim order passed by learned DCF/DCC revisionist filed present revision petition before State Commission. We have heard learned Advocate appearing on behalf of parties and we have also perused entire record carefully.
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7. Following points arise for determination in present revision petition.
1. Whether revision petition filed by revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition and whether it is expedient in the ends of justice and on the principles of natural justice to send written interrogatories in lieu of oral cross examination under Consumer Protection Act.
2. Final order.
Findings upon point No.1 with reasons:
8. Submissions of learned Advocate appearing on behalf of revisionist that oral cross examination of (1) Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) Central Grounds Water Board Ministry of Water Resources Government of India SCF-40 1st Floor Industrial Area Phase-7 Mohali & (3) Dr. S.K. Nanda complainant are essential in the present matter in order to dispose of consumer complaint properly and effectively and to impart substantial justice inter se parties is decided accordingly. It is proved on record that learned DCF/DCC has appointed Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una as Local Commissioner to submit the report and Shri K.S. Mandhotra has submitted report dated 27.05.2015. There is recital in the report that construction of 5 Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018 tube well is faulty due to defective workmanship and same will affect performance and life of tube well. Counter report of Shri D.S. Saini Superintending Hydrologist (Director Retd.) dated 25.03.2013 also placed on record and there is recital in the counter report that there is no fault in construction, designing and testing of the tube well. There are two contradictory reports of Hydrologist on record.
9. In view of two contradictory written reports of Hydrologist State Commission is of the opinion that interrogatories in lieu of oral cross examination are essential in the present matter. It is well settled law that proceedings under Consumer Protection Act are summary proceedings.
State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice that written interrogatories should be sent to Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una and Sh. D.S. Saini Superintending Hydrologist (Director Retired) Central Grounds Water Board Ministry of Water Resources Government of India and it is expedient in the ends of justice and on the principles of natural justice to seek response of written interrogatories from Shri K.S. Mandhotra Sr. Hydrologist and Sh. D.S Saini Superintending Hydrologist by way of affidavits.
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Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018
10. State Commission is of the opinion that it is also expedient in the ends of justice and on the principles of natural justice to send interrogatories in lieu of oral cross examination to Sh. S.K Nanda complainant who has filed affidavit. See AIR 2017 Gujarat 203 titled Hindustan Coca Cola Beverages Pvt. Ltd. Versus Sonalben M. Dangar & others. See 2011(3) CPR 162 NC titled Neeraj Amarnath Dora Versus Nandan Hospital & Ors.
11. Submission of learned Advocate appearing on behalf of non-revisionist that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts is decided accordingly. State Commission is of the opinion that right of cross examination relating to affidavit filed by complainant and right to cross examine expert report is legal right of a party. It is well settled law that Consumer Protection Act 1986 is a Special Act enacted by Parliament of India in order to protect interest of consumers in accordance with laws and proved facts. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to send written interrogatories to (1) Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) Central Grounds Water Board Ministry of Water Resources 7 Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018 Government of India SCF-40 1st Floor Industrial Area Phase-7 Mohali & (3) Dr. S.K. Nanda complainant in lieu of oral cross examination. State Commission is also of the opinion that it is expedient in the ends of justice and on the principles of natural justice to seek response of (1) Shri K.S. Mandhotra Senior Hydrologist (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) & (3) Dr. S.K. Nanda complainant by way of affidavits to interrogatories. Point No.1 is decided accordingly.
Point No.2: Final Order
12. In view of findings upon point No.1 revision petition is partly allowed. It is ordered that revisionist will file written interrogatories before learned DCF/DCC in shape of cross examination to (1) Shri K.S. Mandhotra Senior Hydrologist Ground Water Organization Irrigation & Public Health Department Una (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) Central Grounds Water Board Ministry of Water Resources Government of India SCF-40 1st Floor Industrial Area Phase-7 Mohali & (3) Dr. S.K. Nanda complainant. Thereafter learned DCF/DCC will send written interrogatories of cross examination to (1) Shri K.S. Mandhotra Senior Hydrologist (2) Sh. D.S. Saini Superintending Hydrologist (Director Retired) & (3) Dr. S.K. Nanda complainant. Thereafter (1) Sh. K.S. Mandhotra (2) 8 Sanjay Jaswal Versus Dr. S.K. Nanda R.P. No.80/2018 Sh. D.S. Saini (3) Sh. S.K. Nanda will file response to written interrogatories sent by opposite party by way of affidavits directly to learned DCF/DCC within stipulated period mention by learned DCF/DCC. Report of Shri K.S. Mandhotra Senior Hydrologist dated 27.05.2015 and report of Sh. D.S. Saini Superintending Hydrologist (Director Retired) dated 25.03.2013 shall form part and parcel of order.
13. Observations will not effect merits of consumer complaint in any manner. Learned District Forum shall dispose of consumer complaint within three months after receipt of copy of order because proceedings under Consumer Protection Act are time bound proceedings. Certified copy of order be sent to learned DCF/DCC forthwith for information and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of cost strictly as per rules. Revision petition is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K. Verma Member 10.01.2020 K.D 9