Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) These are the bunch of appeals filed by the original Opponent No.1 against the judgement and award passed by District Consumer Disputes Redressal Forum, Kolhapur in Consumer Complaint Nos.277/2011, 278/2011, 279/2011, 280/2011, 282/2011, 283/2011, 284/2011, 285/2011, 286/2011, 287/2011, 288/2011 and 289/2011 by common order dated 23.12.2011.
(2) The bunch of complaints filed by 12 persons were allowed by the impugned order by the District Forum and Opponent Nos.1 and 2 were directed to execute Conveyance deed in favour of the Complainants and they were directed to remove various defects in the construction made by the Opponent Nos.1 and 2. They were also directed to remove mobile tower installed on the terrace of the said building. They were further directed to construct protection wall and main gate at the entrance of the said building in which all the Complainants were having their residential units. They were further directed to pay each of the Complainant Rs.10,000/- towards mental harassment and Rs.1,000/- towards costs. It is this order which has been challenged by filing these appeals by original Opponent No.1 – Smt.Surekha Kashinath Bhogam.
(3) We heard submissions of Advocate Mr.Wayangankar, for the Appellant. Mr.S.C. Mangle, Advocate for the Respondent No.1 and Mr.S.Y. Amare, Advocate for the Respondent No.2.
(4) It was tried to be contended by Counsel for the Appellant that the complaints as filed by the Complainants were beyond limitation as agreements of sales were executed on 14.12.2005 and Sale Deeds were to be executed within one month from the date of agreement of sale and therefore complaints as filed by the Complainants were absolutely barred by limitation. The Ld.Counsel for the Respondent No.1 contended that there were many defects of inherent nature left by the appellant in the construction of the building and therefore, the consumer complaints as filed by the Respondents/Complainants were tenable in law and the complaints could not be dismissed on the ground of limitation. Bur, we are finding that in this case the Complainants had not filed affidavits in evidence at all. The Court Commissioner was appointed during the pendency of the complaint and Court Commissioner gave report and based on the Court Commissioner’s report the Consumer complaints were allowed though the Appellant had objected to the said report. We are of the view that no complaint can be disposed of merely on the report of Court Commissioner. The report of the Court Commissioner should be filed along with the affidavit of the Court Commissioner and Complainants should have filed their individual affidavits in evidence before complaints were allowed by the District Forum. Ld.Counsel for the Appellants submitted before us vehemently that the complaints were allowed by the District Forum simply in terms of Court Commissioner’s report but there was no affidavit of evidence filed by the Complainants. When this was so argued, we asked Advocate for the Respondents/Complainants Mr.Mangle, whether they had filed affidavits in evidence in support of their complaints. He fairly conceded that Complainants had not filed affidavits in evidence and still the District Forum was pleased to allow the complaints and passed the order against the Appellant.
(5) In our view, this is not the correct approach resorted to by the District Forum. Ld.District Forum while deciding the consumer complaint has to direct both the parties to file affidavit in evidence in support of their complaints and if Affidavit in evidence is not filed by the Complainant then complaint cannot be allowed in favour of the Complainant. Under Section 13(2)(b)(i) of the Consumer Protection Act, 1986, the complaint has to be decided on the basis of evidence brought to its notice by the Complainant and the Opposite Party, where the Opposite Party denies or disputes the allegations contained in the complaint. So, it is the duty of the District Forum under Section 13(2)(b)(i) to ask parties to file evidence and only on the basis of evidence adduced by the parties the complaint will have to be decided by the District Forum. If there is no evidence of the parties then the Forum ought not to have allowed the complaints in favour of the Respondents/Complainants. In this case it was fairly conceded by the Counsel for the Respondent No.1 that they had not adduced affidavit in support of their complaints and simply on the basis of Court Commissioner’s report the District Forum was pleased to allow the complaints in their favour. This is nothing but the high handedness on the part of the Ld.District Forum. The Ld.District Forum should have fixed the complaints for filing of affidavits in evidence after written version was filed by the original Opponents. The District Forum ought to have insisted the Complainants to file affidavits in evidence before proceeding further to pass award. The Ld.District Forum, therefore, in our view, erred in law in allowing the complaints in the absence of affidavits in evidence filed by the original Complainants. As such the said judgement and award passed by the District Forum in all these complaints is not sustainable in law and it will have to be set aside. Thus, we are inclined to remand all these complaints back to District Forum for permitting parties to lead their evidence on affidavits before the District Forum and direct District Forum to decide the complaints afresh in the light of the evidence which would be adduced on affidavits by rival parties. In the circumstances, we are inclined to pass the following order:
O R D E R
(i) The appeals are allowed.
(ii) Impugned common order passed by the District Forum in Consumer Complaint Nos. 277/2011, 278/2011, 279/2011, 280/2011, 282/2011, 283/2011, 284/2011, 285/2011, 286/2011, 287/2011, 288/2011 and 289/2011, is hereby quashed and set aside, as against this appellant only.
(iii) In the result all the complaints are remitted back to District Forum for fresh disposal.
(iv) Both parties are directed to appeal before the Forum on 18/10/2012 and from the stage of evidence the District Forum shall proceed further and after allowing both the parties to lead evidence, the District Forum shall conclude the hearing of the complaints within three months from 18/10/2012.
(v) Both parties are left to bear their own costs.
(vi) Copies of this order be sent to both the parties.
Pronounced on 22nd August, 2012.
