Dated: 24.02.2023

O R D E R

BY HON’BLE Mr. JUSTICE HULUVADI G RAMESH : PRESIDENT

1. This Appeal filed by OP2 and OP3 under Section 41 of Consumer Protection Act, 2019, aggrieved by an order dated 17.07.2015, passed in CC/1099/2013 by IV Additional District Consumer Disputes Redressal Forum, Bengaluru (herein after referred as District Forum and the parties arrayed as in the consumer complaint)

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsel for appellant. Commission also perused the contents of affidavit sworn-in by Shravani Sasturkar, Authorized Representative of OP2 and OP3 enclosed to the IA to condone delay in filing the appeal, thereby found satisfied to condone delay if any in filing the appeal for the reasons stated in the affidavit and also found satisfied to dispense with issuance of notice of this appeal to be served on respondents to avoid further delay.

3. Learned counsel for appellants submits that without giving an opportunity to file objections to the IA filed by complainant under Order XXVI Rule 9 and 10a of CPC, the Forum below on 23.02.2015 passed an order permitting complainant to appoint Court Commissioner for inspection of the vehicle in question. Further on 07.03.2015 OP1 filed application under Order IX Rule 7 R/w Section 151 of CPC to recall order dated 23.02.2015 and permit OPs to file their statement of objection.  This IA came to be dismissed on 17.07.2015.  Aggrieved by the said order OPs filed WP/37335/2015 (GM-PES) before Hon’ble High Court of Karnataka.  On 13.12.2022 the Hon’ble High Court of Karnataka observes - “the petitioners are having an efficacious remedy under Section 15 of Consumer Protection Act, 1986; the writ petition is dismissed as not maintainable”.  Thus OP2 and OP3 preferred this appeal before this Commission to set aside the order dated 17.07.2015.  Commission perused the order sheet of the Forum below.  It is seen that Forum below after filing IA by complainant for appointment of Court Commissioner, allowed this IA on 23.02.2015 without giving an opportunity to OPs to file objections to the said IA.  Further when OPs filed IA to recall the said order, the Forum below after hearing on the said IA on various dates, dismissed the IA filed by OPs on 17.07.2015 with no cost, which in our view is contrary to facts and law.  No doubt the Court Commissioner is appointed to elucidate any matter in dispute or to ascertain the amount of damages caused, through investigation.  But before appointing Court Commissioner, in our view, the Forum below has to give reasonable opportunity to both parties of being heard and decide in a judicious and sound manner and not whimsically, while appointing the Court Commissioner. Thus in such view of the matter, it would be just and proper to direct Commission below to allow OPs to file objections to the IA filed by complainant for appointment of Court Commissioner and decide the matter in accordance with law.  Accordingly, proceed to allow this appeal.  Consequently, set aside the order dated 17.07.2015 passed by IV Additional District Consumer Disputes Redressal Forum, Bengaluru. The cost of this appeal shall be cost in the cause.

4. Send a copy of this Order to the District Commission and parties to the appeal.

Lady Member                         Judicial Member                                             President

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