Date of Filing :27.05.2024
Date of Disposal :14.06.2024
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED:14.06.2024
PRESENT
Mr K B. SANGANNANAVAR: JUDICIAL MEMBER
(DIST. & SESSIONS JUDGE (R)
Mrs DIVYASHREE M: LADY MEMBER
APPEAL No.1356/2024
1. The Housing Commissioner
Karnataka Housing Board
4th Floor, Kaveri Bhavan
Bengaluru-560009
2. The Assistant Executive Engineer
Karnataka Housing Board
Sub Division, KHB Complex
Sholapur Road, Vijayapura
(By Mr R A Kulkarni, Advocate) Appellant
-Versus-
Sri Rajashekar
S/o Subashchandra Jalageri
34 years
Occ: Private Work
House No.408, Basav Nilaya
S.R. Colony, Beside Navaras Dance Class
Vijayapura – 586 109 Respondent
-:ORDER:-
Mr. K B. SANGANNANAVAR: JUDICAL MEMBER:
1. This is an Appeal filed under Section 41 of Consumer Protection Act 2019 by OPs aggrieved by the Order dated 03.04.2024 passed in Consumer Complaint No.01/2019 on the file of District Consumer Disputes Redressal Commission, Vijayapur (for short, the District Commission).
2. The Parties to this Appeal will be referred to as the rank assigned to them by the District Commission.
3. The matter is set to hear on admission.
4. The Commission examined the impugned order, grounds of Appeal, Appeal papers and heard learned counsel for Appellant. Now the point that arises for consideration of this Commission would be:
Whether the Appeal on the order dated 03.04.2024 has to be entertained by this Commission and if so, what would be the Order?
5. Learned counsel for Appellant submits that the State Commission in Appeal No.794/2021 on 11.01.2023, while remanding back the Consumer Complaint No.01/2019, held, in Para 3, 5 and 6, house in question was allotted and sale deed was executed ‘as is where is’ . The Commission below accepted Ex-P14, expert’s opinion and had directed to pay as concluded, without appreciating the date of sale deed and the date of complaint. The commission below in to-to accepted the report of expert, as to the allegation about cracks and leakage. Be it as the case may be, since it is shown that Mr. S.S.Menasagi, Litigation Conducting Officer died due to Covid-19 and counsel Mr. V.V.Kadi, Advocate also died on 18.05.2021, as per copy of certificate of death in respect of Menasagi Shankarappa, who died on 02.06.2021 and Mr. V.V.Kadi, as per certificate died on 18.05.2021. In such circumstances, remitted back the matter to the Commission below to reconsider the case to decide afresh affording opportunity to the OPs to submit affidavit evidence of present litigation conducting officer and documents to enable to appreciate and rebut the materials placed on record by the complainant in accordance with law. In this regard learned counsel submits, while passing the impugned order dated 03.04.2024 in Para 11, while recording findings on point No.1 and 2, the District Commission held, after remanding the case, notice issued to both the parties and appeared through their Advocates and Complainant filed further evidence and filed an application for appointment of Court Commissioner under Order XXVI Rule-9, 10A(1) of CPC R/w CPC, the same was allowed and Assistant Engineer PWD is appointed as Court Commissioner and the Court Commissioner submitted his report, however nothing is on record to show that such report is submitted by the Court Commissioner-Assistant Engineer, PWD. Learned Counsel submits that what the District Commission had referred to in the impugned order is Ex-P14 expert opinion and not the report of the court commissioner. It is shown by appellant from Ex-P14 we could not find the name of the expert. The report begun with – ‘Herein the owner of property approached me and asked me for expert opinion by inspecting the building and to tell the exact present condition, any damages, aspects which adhere to spoil the dwelling. He also told me that whether the building is repairable, and can be made good for livelihood and the cost to be incurred for all the repair works. It was also told whether the building can sustain for a further period of 75 years as per Indian Construction Standards’ which in fact was not considered by the State Commission and while remanding back the matter, specifically directed the District Commission to decide the case afresh affording an opportunity to the OPs and when an application under Order XXVI Rule-9 of CPC came to be filed to appoint Assistant Engineer, PWD as Court Commissioner, to obtain his report and then to decide the case repeating the earlier order once again accepting the experts opinion marked as Ex-P14 is not at all appreciated, since the said issue is still to be rebutted by the parties to the complaint and deciding before is nothing but premature decision which is not sustainable under law.
In view of the above such discussions, we hold issuance of notice of this Appeal to be served on Respondent would cause inconvenience to the complainant, hence we dispense with notice, to avoid further delay and we are of the view that, matter has to be remanded back to the District Commission to reconsider the case afresh. Accordingly, proceed to allow the Appeal. Consequently, set aside the impugned order dated 03.04.2024 passed in Consumer Complaint No.01/2019 on the file of District Consumer Disputes Redressal Commission, Vijayapur and directed the District Commission to readmit the CC No.1/2019 and obtain Commissioner’s report from Assistant Engineer, PWD/the Court Commissioner and allow the parties to rebut the said report and the expert report already marked as Ex-P14 obtained at the instance of complainant, which is in undated.
6. Amount in deposit is directed to refund to the Appellant on proper identification by his Advocate.
7. Send copy of this Order to the District Commission and the parties concerned.
Lady Member Judicial Member
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