HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. Challenge is to the order dated 04.10.2021 passed by the Learned District Consumer Disputes Redressal Commission, Unit – III, Kolkata ( in short, ‘the District Commission’) in connection with consumer case No. CC/326/2018 thereby rejecting the application being No. M.A./147/2021.

2. The complainant / respondent Dipa Saha herein instituted a consumer case being No. CC/326/2018 against the revisionist and others under section 12 of the Consumer Protection Act, 1986 praying for the following reliefs :-

“i) Directing the opposite party to refund from the consideration amount, introspect of short fall of 176 Sq.ft.super built up area, out of 600 sq. ft. schedule mentioned marble flooring flat amount to Rs.4,54,080/- (Rupees four lacs fifty four thousand and eighty) being the present market value of the said short fall area.

ii) Directing the opposite party to pay compensation of Rs.4,00,000/- (Rupees four lacs) only for selling the schedule mentioned flat with a short fall of 176 sq. ft. super built up area intentionally by way of fraud, coercion and falsely pertaining the area of the said flat being 600 Sq.ft. super built up area, which amounts to mental agony, huge monetary loss and injury.

iii) Directing the opposite party to pay a cost amounting to Rs.50,000/- (Rupees fifty thousand) only.

iv) Directing the opposite party to execute one fresh amended Sale Deed after rectifying the area of the schedule mentioned flat, at the expenses of the opposite party.

v) Directing the opposite party to issue one fresh amended possession letter, completion certificate and sewerage certificate in respect of the schedule mentioned flat.

vi) Directing the opposite party herein to rectify the site plan of the said flat from the K.M.C. Building Department and to issue one new rectified site plan.

vii) And Your Honour may pass such other order or orders as it may deem fit and proper.”

3. The opposite party Nos. 1,2 & 3 entered appearance in this case and filed an application for appointment of an Engineer Commissioner and the said application was rejected by the Learned District Commission below by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the revisionist has preferred this revisional application. Now, the question is whether the impugned order should be sustained. The Learned Advocate appearing for the revisionists has urged that the Learned District Commission below failed to appreciate the order of the Hon’ble National Commission.

5. He has further urged that the Learned District Commission below failed to appreciate that the revisionists were not present on 27.02.2020 and they had no opportunity to examine the report which was filed in sealed envelope on prior date.

6. He has further urged that the Learned District Commission below failed to appreciate that the opposite parties did not get opportunity to file written objection against the report of the Engineer Commissioner dated 21.01.2020. So, the present revisional application should be allowed and the application being No. M.A./147/2021 should be allowed and an Engineer Commissioner should be appointed for holding local inspection for the second time.

7. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that the revisionists / opposite parties filed a petition for appointment of an Engineer Commissioner on 04.04.2019 and the Learned Commissioner after the measurement submitted his report on the points on 22.01.2020. The minutes of the proceeding annexed with the report indicates that the measurement was done in presence of both the parties. The signatures of the parties appear therein. After the report was submitted by the Learned Engineer Commissioner the same was fixed by this Commission for acceptance but the opposite parties / revisionists did not raise any objection against the report submitted by the Engineer Commissioner. As such, the report submitted by the Engineer Commissioner was accepted by the Learned District Commission. Moreover, I find that the report of the Commissioner for local inspection substantially complied with the warrant of Commission and there is no question for appointing of second Commissioner. Moreover, I find that the opposite parties have filed the M.A. Application being No. M.A./147/2021 for appointment of Engineer Commissioner for the second time for the purpose of collection of evidence. The object of local inspection is not to collect evidence which can be adduced in court. As per section 38 of the Consumer Protection Act, 2019 evidence on affidavit can be received by the Commission under the Act which may be affidavits by experts including civil engineer. Therefore, I may conclude that the Learned District Commission below has rightly dismissed the M.A. Application being No. M.A./147/2021.

8. On perusal of the said order under challenge it appears to me that there is no incorrectness, illegality and / or impropriety in the impugned order passed by the Learned District Commission.

9. In view of the above, I hold that the order of the Learned District Commission below should not be disturbed. Therefore, there is nothing to interfere with the impugned order. So, the revisional application is without any merits. It is, therefore, dismissed.

10. Considering the facts and circumstances of the case there will be no order as to costs.  The Learned District Commission below is directed to dispose of the case as early as possible preferably within a period of two months from the date of passing of this order.

11. Let a copy of this order be sent to the Learned District Commission below at once.

12. Office to comply.