HON'BLE MR. KAMAL DE, PRESIDING MEMBER

Order No. : 02

Date : 27.03.2019

Parties are present through their Ld. Lawyers.

The instant Appeal is taken up for hearing.

Heard both sides. Considered.

The instant Appeal is directed against the impugned order dated 10.11.2016 passed by the Ld. District Consumer Disputes Redressal, Purulia in Complaint Case No. CC/50/2016.

In filing the Appeal it is ventilated that the trail forum acted illegally with material irregularity in passing the impugned order.

It is also stated that the Ld. Trial Forum acted illegally by considering only the complaint petition supported by verification without calling for evidence.

It is also stated that there is no report of any chattered engineer regarding the civil construction work before the Ld. Trial Forum so as to infer deficiency in service.

It is also stated that there is no evidence appreciated and recorded in the impugned order so as to justify the award made therein.

Appellant has prayed for setting aside the impugned order.

Perused the Memorandum of Appeal and the documents on record including the ex-parte order passed by the Ld. Fora below in C.C. 50 of 2016.

It appears that the complainant moved the trial Forum U/S. 12of 1986 Act, inter – alia, alleging that he had hired the services of the appellant being a Civil construction contractor to build a specific portion of the first floor of his residential house in the month of March 2015. Work was to be completed within June 2015.

It is also stated by the complainant in the petition of complaint that a total sum of Rs. 463000 was paid by the respondent to the appellant. However, the work was not completed.

 Appellant could not contest the case before the Trial Forum. The proceedings were drawn up ex-parte and the impugned order was passed ex-parte against the appellant vide the impugned order. The question remains whether the Ld. Forum below committed any illegality or irregularity in passing the ex-parte order?

It appears that the Trial Forum acted only on the averment stated in the petition of complaint supported by verification without calling for evidence.

We find that there is no evidence taken at all by the Ld. Trial Forum in support of the allegation of the complaint petition.

There was no evidence appreciated and recorded in the impugned order so as to justify the award made therein.

We think that the Trial Forum failed to appreciate that even in any ex-parte proceeding allegation has to be established on the basis of evidence.

We are afraid, that the complainant was not even asked to file examination-in-chief supported by affidavit in corroboration of the case made in the petition of complaint.

We find that the verdict of Hon’ble Apex Court judgement reported in Dr. J.J. Merchant and Ors. VS Shrinath Chaturvedi [2002] Insc 337 (12 August 2002) has not been complied by the Ld. lower Fora.

it is truism of Consumer Law that the complainant as well as defence version should be accompanied by documents and evidence upon which parties intended to rely. Ld. Fora below passed the impugned order without calling for any evidence in the form of examination-in-chief in corroboration of the case of the complainant.

We think that the Ld. Fora below committed illegality and irregularity in passing the impugned order without calling for any evidence on affidavit from the side of the complainant. The impugned order as such cannot sustain and is liable to be set aside.

Hence,

                                                     order

That the instant Appeal being RBR/A/5/2019 is allowed on contest.

Let the case be remanded back to the Ld. Forum below.

Ld. Fora is directed to give opportunities to the complainant to adduce Evidence by way of examination-in-chief.

Ld. Fora is also to see whether appellant/OP had filed any written version within the stipulated period as per C.P. Act and if not filed the law will take its own course. If, filed, OP/appellant shall be entitled to cross examination by way of filing questionnaire and further evidence.

Ld. Fora is also to keep in mind the solemn verdict of the Supreme Court reported in Dr. J.J. Merchant and Ors. VS Shrinath Chaturvedi [2002] Insc 337 (12 August 2002) in disposing the case, even in case of ex-parte hearing.

No order as to cost.