KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.41/2022

ORDER DATED: 16.11.2023

(Against the Order in I.A.No.296/2021 in C.C.No.260/2019 of DCDRC, Kannur)

PRESENT:

REVISION PETITIONER/OPPOSITE PARTY:

(by Adv. G.S. Kalkura)

Vs.

RESPONDENT/COMPLAINANT:

(by Adv. R. Suja Madhav)

O R D E R

SRI. AJITH KUMAR  D. : JUDICIAL MEMBER

          This Revision is filed under Section 17(b) of the Consumer Protection Act, 1986 challenging the order of the Consumer Disputes Redressal Commission, Kannur (the District Commission for short) in rejecting I.A.No.296/2021 in C.C.No.260/2019 on the file of the District Commission.

          2.       The brief facts stated in the petition are that the petitioner is a Civil Engineer who is the Managing Partner of the “G.S. Group” doing the business of construction/contract.  On 01.08.2016 an agreement was entered into between the petitioner and the complainant for constructing a residential house in the property of the complainant.  As per the stipulation in the agreement the Revision Petitioner had to complete the structural work according to the plan and do the plastering of the walls as well as the ceiling on rough finish.  It was also stipulated that in case of leaking in the concrete roofing, the same shall be repaired by the Revision Petitioner on his expenses.  All the works were carried out by the petitioner and the respondent was satisfied with the work carried out.  An amount of Rs.6,05,000/-(Rupees Six Lakhs Five Thousand) was kept in balance.  To avoid the payment of the said amount, a complaint was filed before the District Commission.  An Advocate Commissioner was deputed to inspect the property.  Sri. Rajan Azhikodan was also appointed as an Expert to assist the Commissioner.  He is a competent builder at Kannur doing construction work in the name “Azhicons Constructions”.  The date of inspection was scheduled on 19.12.2019.  But the petitioner had received notice from the Advocate Commissioner in the afternoon on 19.12.2019.  The inspection was carried out in the absence of the petitioner and a report was also filed.  The petitioner had filed an application to set aside the report filed by the Advocate Commissioner.  The District Commission had rejected the petition stating that the intention of the petitioner was to protract the proceedings.  It also reached a conclusion that the petitioner must have received the notice on 12.12.2019 as the complainant had received the notice on that date.  The District Commission further observed that the petitioner had purposefully remained absent at the time of inspection and accordingly, the petition was dismissed.

          3.       The respondent/complainant had appeared before this Commission on receipt of notice.  The records from the District Commission were called for.  Heard the counsel for both parties.  We have carefully perused the records received from the District Commission.  The petitioner had caused production of a document issued by the Superintendent of Post Office, Kannur Division which was a document received by the petitioner as per the provisions of the Right to Information Act.  As per the document it could be seen that the registered envelope issued by the District Commission was delivered to the addressee on 20.12.2019.  So the observation made by the District Commission in the impugned order that the petitioner might have received the notice on 12.12.2019 as the complainant had received notice on that day is against the real state of affairs.  On further verification of the records received from the District Commission, it could be seen that while appointing an Advocate Commissioner and the Expert, notice was not given to the petitioner.  The petition was not filed as an emergent one by dispensing the notice to the opposite party.  Even then, an Expert was appointed from a panel filed by the complainant.  The petitioner still has serious objection against the appointment of the Expert for the reason that the Expert is also a professional engaged in the construction of buildings.  So the petitioner anticipates bias in the deeds of the Expert.  It was infact an exparte order passed by the District Commission in appointing the Expert.  In such a situation it was obligatory on the part of the Commissioner to serve notice to the opposite party/revision petitioner prior to the date of inspection. 

4.       The materials on record would go to show that the Revision Petitioner was not served with notice so as to enable him to appear before the Commissioner on the date of inspection.  If the Expert was not sure that the notice was not served on the opposite party the examination could have been postponed to another date so as to enable the opposite party to be present on the work site.  These legal issues are not seen addressed by the District Commission and it reached a conclusion that the intention of the Revision Petitioner is only to protract the proceedings and accordingly the petition filed by the Revision Petitioner was dismissed.  The order passed by the District Commission is apparently wrong.  When an examination is sought to be conducted, the Expert Commissioner should ensure that a notice has been served on the opposite party.  Here such a mandatory requirement was not complied with.  The District Commission, without considering these vital issues and merits of the matter had dismissed the petition.  So we find that the order passed by the District Commission is unsustainable.

          In the result the order passed by the District Commission in I.A.No.296/2021 dated 20.04.2022 is set aside and the matter is remanded back to the District Commission with a direction to pass an order afresh by taking into account of the observations made by the Commission in the aforesaid paragraph.

SL