State Consumer Disputes Redressal Commission
Sri Joydip Chakraborty, Jalpaiguri vs Sri Utpal Paul, Jalpaiguri on 17 October, 2012
DRAFT State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.FA/19/2011 (Arising out of order dated 16/12/10 in Case No.72/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) DATE OF FILING:14/01/11 DATE OF FINAL ORDER:17/10/12 APPELLANTS : 1) Sri Joydip Chakraborty S/o-Sri Paritosh Chakraborty 2) Smt. Poulomi chakraborty W/o-Sudip Chakraborty Both reside at Natun Para, P.S. Kotwali P.O. & District-Jalpaiguri 3) Global Construction Thana Road, Opposite to UBI P.S. Kotwali P.O. & District-Jalpaiguri (Appelants for all the appeals) RESPONDENT : Smt.
Minati Rani Dey W/o-Late Mihir Ranjan Dey School Para P.O. & P.S. Nagrakata Another address Ram Krishna Sarda Apartment Flat No.4/E, 3rd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/20/2011 (Arising out of order dated 16/12/10 in Case No.68/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Pabitra Kumar Sarkar S/o-Late Shyamapada Sarkar Ram Krishna Sarda Apartment Flat No.4/A, 3rd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/21/2011 (Arising out of order dated 16/12/10 in Case No.69/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Dr. Sibaji Roy S/o-Late Pravat Kumar Roy Ram Krishna Sarda Apartment Flat No.2/A, 1st Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/22/2011 (Arising out of order dated 16/12/10 in Case No.70/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENTS : 1) Sri Amaresh Sarkar S/o-Late Naba Kumar Sarkar
2) Smt. Daya Sarkar W/o- Sri Amaresh Sarkar Both are residing at Ram Krishna Sarda Apartment Flat No.3/B, 2nd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/23/2011 (Arising out of order dated 16/12/10 in Case No.71/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Smt. Mallika Banerjee W/o-Late P. K. Banerjee Ram Krishna Sarda Apartment Flat No.2/F, 1st Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/24/2011 (Arising out of order dated 16/12/10 in Case No.73/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Supriya Kundu S/o-Satyendra Kumar Kundu Ram Krishna Sarda Apartment Flat No.3/F, 2nd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/25/2011 (Arising out of order dated 16/12/10 in Case No.74/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Barun Prasad Basu Majumder S/o-Late Kamakshya Prasad Basu Majumder Ram Krishna Sarda Apartment Flat No.4/B, 3rd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/26/2011 (Arising out of order dated 16/12/10 in Case No.75/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Sushil Kumar Chakraborty S/o-Late Girish Chandra Chakraborty Ram Krishna Sarda Apartment Flat No.3/D, 2nd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/27/2011 (Arising out of order dated 16/12/10 in Case No.76/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Utpal Paul S/o-Late Umesh Chandra Paul Ram Krishna Sarda Apartment Flat No.4/F, 3rd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/28/2011 (Arising out of order dated 16/12/10 in Case No.77/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Dilip Kumar Halder S/o-Late Rakhal Chandra Halder Ram Krishna Sarda Apartment Flat No.1/B, Ground Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/29/2011 (Arising out of order dated 16/12/10 in Case No.78/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Rajat Kumar Saha S/o-Late Ranjit Kumar Saha Ram Krishna Sarda Apartment Flat No.3/C, 2nd Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 S.C. CASE NO.FA/30/2011 (Arising out of order dated 16/12/10 in Case No.81/2010 of District Consumer Disputes Redressal Forum, Jalpaiguri) RESPONDENT : Sri Barun Chandra Pal S/o-Late Debendra Nath Pal Ram Krishna Sarda Apartment Flat No.2/B, 1st Floor Ashram Para P.O. & District-Jalpaiguri PIN-735 101 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANTS : Mr. Sukanta Mukherjee Ld. Advocate FOR THE RESPONDENT : Mr. P. R. Sinha Sarkar Ld. Advocate : O R D E R :
No.9/17.10.12 HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT These appeals governed by the same judgment are directed against the judgment and order passed by Learned District Forum, Jalpaiguri allowing the complaint and directing the OPs to remove the defects and also do the incomplete construction work/repairing work including installation of the lift and to remove the garbage and rubbish etc. as per prayer of each of the complainants within one month from date.
The OPs were also directed to pay compensation @ Rs.20,000/- to each of the complainants within one month from date failing which the entire amount will carry interest @ 10% per annum from the date of default till realization. The Learned District Forum has also directed that the concerned flat owners who agreed to pay the sum of Rs.10,000/- towards charge of installation of lift and have not yet paid, shall pay the same to the OPs after installation of the lift and if such payment is not made after installation, the same would be adjusted from the amount of compensation.
The case of the respondents/complainants, in short, is that there was an agreement entered into by and between the parties whereby the complainants agreed to purchase the respective flats. It has been alleged that the OPs in spite of several requests did not complete the construction work as per agreement. It has been alleged that the lift has not been installed. Under such circumstances, the complaints were filed before the Learned District Forum.
The W.V. was filed by the OPs/appellants herein denying all the material allegations raised in the complaint.
The Learned Counsel for the appellant has submitted that no opportunity was given by the Learned District Forum to adduce evidence in support of the pleadings. It is contended that the complainant at the time of filing complaint annexed the expert report, but during trial the Learned District Forum did not give opportunity to the appellant herein to cross-examine the expert by filing questionnaire. The Learned Counsel has referred to the provision contained in Section 13(4) of the C.P. Act and submits that the Learned District Forum did not comply with the said provision of the Act. The Learned Counsel has referred to the decisions reported in I (1994) CPJ 301 [Telecom District manager Vs. Acharya Jagdishchandra Harishchandra]; 2009 CTJ 1181 (SC) (CP) [Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. & Ors.]; 2009 CTJ 581 (SC) (CP) [Dr. C. P. Sreekumar, M.S. (Ortho) Vs. S. Ramanujam]; IV (2006) CPJ 213 (NC) [Ponnusamy (DR) & Anr. Vs. Ramakrishnan]. The Learned Counsel for the appellant has submitted that in case no.FA/22/2011 and FA/29/2011 the complainants had already sold out the flats to others and, as such, their complaints are liable to be dismissed.
The Learned Counsel for the respondent has submitted that at the time of filing the complaint the report of the expert was annexed and the OPs did not challenge the expert report in the W.V. It is submitted that for such reason the Learned District Forum was justified in delivering judgment on the basis of the pleadings of the parties. It is further submitted that at this stage the appellants cannot challenge the report of the expert.
We have heard the submission made by the Learned Counsel for the parties. The Learned District Forum has recorded as follows:
On perusal of the pleadings of each of the cases and the document filed therein and after hearing the submissions of both the parties it appears to us that in fact the complainants of each of the cases have prayed for removal of common defect and not any defect of individual flats.
The Learned District Forum further observed:
From the expert report submitted from the side of the complainants it can safely be said that the grievances as raised by the complainants are true. We do not find any reason to disbelieve the said expert report.
In the case of Ponnusamy (DR) & Anr. Vs. Ramakrishnan (Supra) it has been held that as per Section 13 of the C.P. Act if the matter is contested in written version, then parties have to prove their case by evidence. In the case of Dr. C. P. Sreekumar, M.S. (Ortho) Vs. S. Ramanujam (Supra) it has been held by the Honble Apex Court as follows:-
A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.
From the impugned judgment it is clear that the Learned District Forum delivered the impugned judgment on the basis of the pleadings of the parties and in doing so relied on the expert evidence which was filed at the time of the filing of the complaint. It has been contended by the respondents that the expert report has not been challenged in the written version. In Para 29 of the complaint it has been averred that the complainant and other flat owners in order to detect the defects took assistance of well reputed, highly skilled and knowledgeable expert, Mr. S. P. Guha Neogi, Civil Engineer and Geotech Consultant, who inspected the premises and submitted report. Against such averment made in Para 29 of the complaint the OPs/appellants herein have averred in Para 17 of the written version that the statements made in Para 28, 29, 30 and 31 of the complaint were cock and bull story and no such incident had happened as stated in the petition of complaint. Now the contention of the Learned Counsel for the respondents herein is that such averment made in Para 17 of the written version cannot be said to be specific denial and, as such, there was no necessity to given opportunity to the complainants for the cross-examination of the expert. In view of the decisions cited above, we are unable to accept such contention of the Learned Counsel for the respondents. From the materials on record it is clear that the expert was not subjected to cross-examination and there is no finding of the Learned District Forum as to whether opportunity was given to the parties to adduce evidence and for cross-examination. Having heard both sides and on perusal of materials on record we are of the considered view that the parties should be given opportunity to adduce evidence in respect of their respective pleadings and, accordingly, the case is sent back to the Learned District Forum on remand for giving opportunity to the parties to adduce evidence.
In the result, the appeals succeed and the same stand allowed. We set aside the impugned judgment and order. The Learned District Forum will give opportunity to the parties to adduce evidence in support of their respective pleadings. Thereafter the Learned District Forum will dispose of the case on merits according to law. We make no order as to costs. This judgment will govern all the appeals as mentioned above.
MEMBER(SC) MEMBER(L) PRESIDENT