Per Shri S.R. Khanzode – Hon’ble Presiding Judicial Member: (1) These two appeals take an exception to an order dated 1.12.2008 passed in Consumer Complaint No.643/2005, Sau.Sindhu Kailas Gawade V/s. Gurudatta Construction, Prop.Maruti Balu Thite, by the Additional District Consumer Disputes Redressal Forum, Pune (‘the Forum’ in short). (2) The consumer complaint pertains to alleged deficiency in service on part of the Civil Contractor engaged in construction of the house of Complainant - Sau.Sindhu Kailas Gawade. The complaint pertains to not carrying out the construction as agreed and by using inferior quality of material, not carrying the water proofing work etc. The Forum partly allowed the consumer complaint and awarded compensation of `2,00,000/- to the Complainant and if the amount of compensation awarded is not paid within a period of eight weeks, said amount is to carry interest @6% per annum till realization. Feeling aggrieved thereby, the builder preferred First Appeal No.138/2009 while for enhancement of the compensation awarded, the Complainant preferred Appeal No.371/2010. (3) Undisputed facts are that Complainant entrusted job of civil work to Opponent Gurudatta Construction (hereinafter referred to as ‘the contractor’) for construction of her house as per the architect plan and which inter alia includes construction of area of 3420 sq.ft. divided in between two floors. The agreed charges payable to the Contractor were `9,20,000/- and the work was to be completed within a period of six months. The agreement is witnessed by a document dated 25.11.2002. (4) It is the contention of the Complainant that while doing the civil work the contractor used inferior quality of building material. There is seepage of water in the hall and the bedroom. Contractor had constructed walls with 6” width in bricks instead of 9” width. The sand used of inferior quality and therefore, there were cracks in the roof, the windows were of inferior quality and the doors were not properly fixed. The floors stone sheets (pharashi) were of inferior quality and the water proofing work was not properly carried out. The Complainant, therefore, filed the consumer complaint on 23.12.2005 inter alia claiming the following reliefs: “ a) Our complaint be allowed with cost. b) the Respondent contractor be directed to pay the total amount that will require to undertake and to do all kinds of incomplete and defaulty works amounting to `5,00,000/- mentioned in Exh.1 declaring the negligence, arrogantness and deceptive nature of the Respondent Contractor. c) We leave our crave behind to amend the complaint. d) To take fresh measurements of Built-up Area and to calculate the cost of house again and respondent should present the bills of extra works done. e) -------------- f) -------------- g) For safeguarding the public interest the License of the Respondent contractor be cancelled or suspended.” (5) The Contractor resisted the consumer complaint as per its written version dated 11.09.2007 and denied all the adverse allegations made against it. It is further submitted on their behalf that the construction was carried out as per the wishes and desires of the Complainant. The external wall was of 9” width, however the first floor’s west and south walls were of 6” width because of technical problem and which the contractor had communicated to the Complainant and to which Complainant agreed. The construction work was supervised by the Complainant and at no point of time there was any grievance made about the thickness of the walls or use of inferior quality of material including quality of sand while constructing the slabs. (6) In the instant case both the parties did not tender any evidence on affidavit as per the provisions of Section 13(4) of the Consumer Protection Act, 1986 (‘the Act’ for the brevity). The affidavit of the Complainant is by way of verification of the contents of the complaint. (7) The Forum while considering the material placed before it, relied upon a report DATED 10.03.2008 of Court Commissioner - Mr.Jaydeep Yargop, a Civil Engineer. In fact to collect the evidence in this fashion is not contemplated and the report of the Court Commissioner cannot be taken as the evidence for the purpose, particularly when both the parties did not agree to it and for one or other reason had even filed their respective say/objection to the said report. Say/objection of the Complainant is dated 16.04.2008 while that of Contractor is dated 17.06.2008. It is basic responsibility of the parties to the lis to lead their respective evidence as provided under section 13(4) of the Act and at the most local inspection could be carried out either through Commissioner or by the Forum itself, only for the purpose of proper assessment of the evidence led by the parties and for no other purpose. Therefore, the Forum committed an error-in-law while settling the dispute. (8) From the receipt of the payment on record it can be seen that under receipt dated 19.08.2003, a final payment of `22,000/- was made to the Contractor. Thus, it can be seen that by that time the work was over and hence, the final payment was made. Therefore, cause of action, if any, which is not specifically stated in the complaint, would arise on or before 19.08.2003. The Complainant has filed this consumer complaint beyond the period of two years i.e. on 23.12.2005 and admittedly without any application for condonation of delay. Therefore, in view of the Apex Court judgement in the matter of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., reported in 2009 CTJ 951(SC)(C.P), it is for the Forum to apply its mind to the issue of limitation even if either of the parties failed to raise the said point and the Forum in the absence of any application for condonation of delay could not have entertained the consumer complaint, which is filed beyond the period of two years i.e. when the cause of action arose. The Forum failed to discharge its legal obligation in this respect and thus, the impugned order cannot be supported. (9) Coming to the other aspects of the case, it can be seen that the report of the Court Commissioner – Mr.Jaydeep Yargop for the reasons mentioned earlier cannot be looked into as evidence for the alleged deficiency in services on the part of the Contractor. Bedroom had no leakages as emerged from the undisputed facts. The leakage to the gallery is explained by the Contractor in his written version, which he further explained under which circumstances the alteration of work was carried out and the deviation from the Architect plan was made, to which as per the rejoinder the Complainant had said that she was not interested to go on with the inferior quality of the work and compromise the safety with the construction. We find this cannot be answer to the cause. It is further emerges to undisputed facts that either the Complainant herself or her husband were looking to the progress of the construction and even if it is alleged that husband of the Complainant was present when the slab was led, at no point of time there is a grievance made in writing to the Contractor on behalf of the Complainant about the inferior quality of the material used or deviation from the Architect plan, particularly in respect of reducing the width of two walls. No grievance is made about the plastering or quality of the sand used. This speaks in volume and it can be said that only after the construction work was completed and after some dispute between the parties arose about the dues payable by the Complainant, the grievance surfaced. Therefore, considering the preponderance of probabilities, we do not accept the case of the Complainant in respect of the alleged deficiency in service on part of the Contractor. (10) Considering all these aspects, we hold accordingly and pass the following order: O R D E R (i) First Appeal No.371/2010 filed by the Complainant – Sou. Sindhu Kailas Gawade stands dismissed. (ii) First Appeal No.138/2009 filed by the Contractor – Gurudatta Construction is hereby allowed. (iii) Impugned order dated 14/12/2008 passed by the Forum in Consumer Complaint No.643/2005 is hereby quashed and set aside. In the result, Consumer Complaint No.643/2005 stands dismissed. (iv) Parties to bear their own costs. Pronounced on 17th April, 2012. | 
