HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This revisional application is at the instance of the revision petitioners and is directed against the order No. 7 dated 15.02.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit IV at Sealdah ( in short, ‘the District Commission’) in connection with complaint case No. CC/162/2022 whereby an application for appointment of an engineer commissioner was rejected and M.A. Application being No. M.A./26/2023 was disposed of.
- Heard the Learned Advocate appearing for the revision petitioners at length and in full.
- It is submitted by the Learned Advocate appearing for the revision petitioners that Hon’ble District Commission has failed to appreciate the facts and law and has proceeded to pass an erroneous order which is not sustainable in law and is liable to be set aside. He has further submitted that Learned District Commission has passed the impugned order erroneously and beyond the purview of the Consumer Protection Act. Learned District Commission without considering the deficiency in service on the part of the respondents erroneously disposed of the application being No. M.A./26/2023 arising out of complaint case No. CC/162/2022. He has further submitted that the impugned order dated 15.02.2023 is bad in law and is liable to be set aside.
- Having heard the Learned Advocate appearing for the revision petitioners and on perusal of the record it appears to us that the revision petitioners as complainants filed a case before the Learned District Commission below on the allegation of deficiency in service and negligence on the part of the opposite parties. It appears to us that the opposite parties entered appearance in the said case and were contesting the case by filing written version and denying the material allegations against them. The opposite parties filed written objection against the M.A. application being No. 26/2023. After hearing both sides Learned District Commission below dismissed the M.A. Application by the impugned order.
- Being aggrieved by and dissatisfied with the said order, the present revisional application has been filed by the revision petitioners. It appears to us that the complainants prayed for an order for appointment of an engineer commissioner for investigation of the flat of the complainants mentioned in the schedule of the plaint on the points as mentioned in the petition being No. M.A. /26/2023. According to the complainants the plaster of the walls is coming out and there is damage of roof and bath and privy of the suit flat. We think that for the purpose of ascertaining the extent of damage, there is no need of appointment of an engineer commissioner. Sub section 9 of section 38 of the Consumer Protection Act, 2019 runs as follows :-
“for the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely :-
a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
b) requiring the discovery and production of any document or other material object as evidence;
c) receiving of evidence on affidavits;
d) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
e) issuing of commissions for the examination of any witness, or document; and
f) any other matter which may be prescribed by the Central Government.”
- From the above it is clear that the Commission shall have all powers as are vested in Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the above mentioned matters and all the provisions of the Code of Civil Procedure are not applicable.
- The act provides for the summary disposal of the complaints within the time frame mentioned therein. All the complaints where the sample alleged defective goods is not sent to the appropriate laboratory are to be decided within three months whereas the complaints, in which the sample of defective goods are so sent to the appropriate laboratory, are to be decided within five months. If the Commissions are to resort to the appointment of a Commissioner for local inspection, it will certainly result in the delay of disposal of the complaints and it appears that keeping in view of the above position, such a power of the Civil Court was not conferred upon the Commission by the legislation. The Commission can order for appointment of an expert for local inspection where noting down of physical features by competent person is essential for proper adjudication of the dispute and also in the interest of justice. But this is not the case here.
- From the record it also appears to us that the present case is at the stage of recording evidence. It also appears from the record that the opposite parties have agreed to make necessary repair work in the schedule flat and Learned Commission below was pleased to direct the opposite party to make necessary repair work in the schedule flat on urgent basis. As such, Learned Commission below thought that there was no requirement at all to appoint of an engineer commissioner as prayed for by the complainants.
- On perusal of the said order under challenge, we find that there is no incorrectness, illegality or impropriety in the impugned order passed by the Learned District Commission.
10. In view of the matter, we 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 merit. It is, therefore, dismissed.
11. Considering the facts and circumstances of this case there will be no order as to costs. The Learned District Commission is directed to dispose of this case as early as possible preferably within a period of two months from the date of passing of this order.
12. Let a copy of this order be sent to the Learned District Commission below at once.
13. Office to comply.
