State Consumer Disputes Redressal Commission
Roop Chand vs Roop Singh on 17 September, 2013
1
First Appeal No.573 of 2009
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No.573 of 2009
Date of institution: 22.04.2009
Date of Decision: 17.09.2013
Roop chand aged 75 years, son of Nava Ram, R/o Village Chahlan Patti,
Bhiwanigarh, Tehsil and District Sangrur.
...Appellant/complainant
Versus
Roop Singh S/o Argun Singh R/o Baba Bishan singh Nagar, Street No.2,
Bhiwanigarh, Tehsil and District Sangrur.
...Respondent/OP
First Appeal against the order dated 27.03.2009
of the District Consumer Disputes Redressal
Forum, Sangrur.
Before:-
Shri Gurcharan Singh Saran,
Presiding Judicial Member.
Shri Piare Lal Garg, Member.
Shri Jasbir Singh Gill, Member.
Argued by:-
For the appellant : Sh. P.S.Sekhon, Advocate
For respondent : Sh. Dinesh Kumar, Advocate
J.S.GILL, MEMBER:
This appeal has been filed by the complainant/appellant against the order dated 27.03.2009 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short 'the District Forum') in Consumer Complaint No.287 of 2008 whereby the complaint of the complainant was dismissed as complicated questions of law and facts are involved with liberty to the complainant to seek his remedy before the Civil Court.
2. The complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (for short 'Act') against the OP on the allegations that he purchased a plot at Badial Road, Bhawanigarh. He approached the OP who is working as a mason and a contractor, for the purpose of construction of his house. In the month of May 2007, the OP started construction work. As per 2 First Appeal No.573 of 2009 agreement, it was the responsibility of OP to arrange the labour for the work of construction and to pay labour charges from his own pocket. At the time of agreement, it was settled between the parties that the complainant would provide construction material as per choice of the OP. Complainant's grievance is that the OP did not carry out the construction of lintel property, with the result, when shuttering was removed, the roof caved in, of which OP was complained. Thereafter, OP agreed to reconstruct the lintel after making good the loss of the raw material, with the result, complainant had to purchase raw material such as, cement, sand, iron rods, crusher, stone and electric fittings etc and also paid rent for the shuttering, and thus spent a sum of Rs.70,000/-. After completing the construction work, complainant demanded from OP a sum of Rs.70,000/- as damages, which OP failed to pay. Thus, alleging deficiency in service on the part of the OP, the complainant filed the present complaint with a directions to OP to pay to the complainant a sum of Rs.70,000/- as damages for loss of material, Rs.50,000/- as compensation for mental agony, pain and harassment, Rs.10,000/- as litigation expenses.
3. Upon notice the OP replied that he was engaged for the construction of complainant house. But, it was denied that the Op worked on contract basis as a contractor. Rather, OP's case is that OP was engaged on daily wages. It was also denied that the OP was responsible for arranging labour and making payment to them from his own pocket. OP's case is that, though, complainant was bound to provide the raw material as per their requirement, but he always provided the building material of his own choice. The allegation of lintel having caved in was also denied. According to the OP, the present complaint is a counter blast, as complainant approached him to pressurize to resile his own statement in a compliant of Schedule Caste and Schedule Tribes Prevention of Atrocity Act read with Section 323 & 324 IPC filed by one Jarnail Singh against the complainant's work.
3First Appeal No.573 of 2009
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations the complainant filed affidavit Ex.C-1 of Sh. Roop Chand Ex.C-2 to Ex.C-5 are the bills, Ex.C-6 to Ex.C-13 are the photographs, Ex.C-14 to Ex.C-17 are the bills, Ex.C-18 to Ex.C-25 are the photographs, Ex.C-26 to Ex.C-33 negative of the photographs and Ex.-34 affidavit of Sh. Bant Singh. On the other hand, the OP tendered into evidence affidavit of Sh. Roop Singh as Ex.R-1, Ex. R-2 is the order, Ex.R-3 is the order, Ex.R-4 & Ex.R-5 are the affidavits of Sh. Balwant Singh and Sh. Gulab Singh.
6. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum dismissed the complaint as complicated questions of law and facts are involved with liberty to the complainant to seek his remedy before the Civil Court.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal on the ground that damage amount of Rs.70,000/- of raw material due to negligence of the OP who had not paid any amount uptil, which is a clearly deficiency on the part of the OP. Further stated that the roof had to be demolished and the same was again constructed by the OP and the photographs also make it clear that the entire roof was demolished but the learned District Forum has not considered the evidence on record and found an easy path to dismiss the complaint only on the gorund that complicated questions of law and facts are involved and that a criminal matter is pending against the son of the complainant and in that case OP is witness. Accordingly, prayed for acceptance of the appeal.
8. We have heard the arguments of the Learned Counsel for the parties and have perused the record.
9. As per the order of the learned District Forum if any case, require elaborate enquiry and through probe by examination and cross-examination of witness including expert which cannot be done in summary proceedings before 4 First Appeal No.573 of 2009 Fora having limited jurisdiction. However, in our view, the Court/Forum of the District Forum is presided over by the Senior Judicial Officer of the rank of District Judge, therefore, he can very well distinguish between the correct and wrong evidence on the record; to record the findings. It was so held by the Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287. In that case - plea was that it involves complicated questions of act and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. It was held by the Hon'ble Kerala State Commission, Thiruvananthapuram in case "Manuel Sons Investment and Leasing Company Ltd. versus K.T. Sebastian",, III (2005) CPJ 468 that "complaint dismissed by the Forum as complicated questions of law and facts involved which cannot be adjudicated in summary proceeding - Fora not justified in relegating the dispute to Civil Court - Matter remitted back with directions to adjudicate upon the dispute on the basis of evidence." It was further held by the Hon'ble Supreme Court in case "CCI Chambers Co-op Housing Society Vs. Development Credit Bank Ltd.", III (2003) CPJ 9 (SC). Complaint was dismissed by the District Forum as complicated questions of law and facts are involved, which cannot be adjudicated in summary proceedings. It was observed that Fora was not justified in relegating the dispute to the Civil Court-matter remanded with directions to adjudicate the dispute on the basis of evidence after relying upon the judgment of the Hon'ble Supreme Court referred above. It was also observed by the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 that:-
'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a 5 First Appeal No.573 of 2009 case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'.
9. It was held that in these circumstances the matter should not be relegated to the Civil Court.
10. In view of these circumstances, we are of the opinion that the order passed by the learned District Forum dismissing the complaint of the complainant and relegating the matter to the Civil Court being complicated questions of law and facts is not a correct order. Therefore, we accept the appeal. The impugned order is set-aside and the case is remanded back to the learned District Forum.
12. The parties through their counsel are directed to appear before the learned District Forum on 29.10.2013, who will decide the matter in accordance with law as both the parties have already completed their evidence.
13. Copy of the judgment alongwith record of the District Forum be sent back forthwith.
14. The arguments in this appeal were heard on 11.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member (Jasbir Singh Gill) Member September 17, 2013 Rashmi