AJIT KOSSAMBE vs GOMAKANT MAHAMBE

THIS revision has been filed against the order dated 12.2.2004 in Complaint No. 8/2003 by the District Forum North Goa, dismissing the application of the revision applicant/complainant for appointment of Commissioner.

HEARD the Counsel for the revision applicant/complainant and the Counsel for the opposite parties/respondents. During the course of the order the District Forum for dismissing the application of the complainant has stated as follows: "We are of the opinion that this Fora has the powers to appoint a Commissioner, however there is a procedure provided in the "Consumer Protection Act" which provides for such applications at an appropriate stage. Both the parties at this stage have already filed their affidavit-in-evidence and the evidence has been closed and matter is kept for final argument. The complainant''s case being of deficiency in service against the opposite parties, the complainant who is being represented by an Advocate should have been aware that such an application for appointment of Commissioner should have been made at the time of filing of his affidavit-in-evidence and not now when the matter is posted for final argument. This Fora does not have the powers to change the procedure fixed in the Consumer Protection Act and reopen the evidence to lapses on the part of the complainant to follow up his case.

The learned Counsel for the opposite parties has strongly submitted that in view of the reasons given by the District Forum there is no provision under the Consumer protection Act to permit the complainant to make application for appointment of Commissioner after closing evidence on the side of both the parties. The Consumer Protection Act, Section 13 Clause 4 enumerates as follows: "For the purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under Code of Civil Procedure 1908 (5 of 1908) while trying a suit in respect of the following matters, namely Clause (4)(v) issuing of any commission for examination of any witness and Clause 4(vi) any other matters which may be prescribed.

IT has been seriously urged by the learned Counsel for the opposite parties, if at this stage the complainant is permitted to get appointed a Commissioner it amounts to laying down bad precedent of procedure which is not governed by the principles of the Consumer Protection Act. No doubt the learned Counsel for the revision applicant has submitted many rulings. Under Order 26 Rule 9, Civil Procedure Code, for appointment of Commissioner, the condition is that the Court at any stage can appoint a Commissioner if it is for just and convenient for the purpose or deciding the matter in issue.

THE Counsel for the revision applicant has relied on the ruling in National Consumer Disputes Redressal Commission, New Delhi, I (1995) CPJ 4 (NC)=Revision Petition 106 of 1994 in Branch Manager, LIC of India and Another v. Smt. Zareena Sulaiman, it has been stated during the course of the order, even though the Consumer Forums are not governed by all the provisions of the Civil Procedure Code yet the sound principles of the law and procedure embodied in that Code are followed by the Forums. It has been submitted that before the District Forum in the allegations of the complainant that the reports of some experts had been taken to substantiate the allegations of deficiency for which also the opposite parties have filed reports of some experts who have inspected the spot. Now the main grievance of the complainant seems to be that an independent person be appointed as Commissioner to establish the contentions and allegations in the complaint about deficiency. No doubt the application has been made at a highly belated stage and that application has been rejected by the District Forum. In revision the State Commission has limited scope to deal with the matter whether the order passed by the District Forum suffers from illegality or irregularity.

IN our considered opinion while the order does not suffer from any illegality but somehow we feel there is some irregularity in the sense that the complainant should have been provided an opportunity to appoint a Commissioner at the expense of the complainant himself so that he may have a report of real facts available at the spot being possible to prove the allegations of the complaint. IN that view of the matter, in our opinion the present revision petition is to be allowed. It is made clear the order given in this revision petition will not be a precedent. It is only applicable to the facts and circumstances of the present case. Accordingly we allow the revision petition and set aside the order passed by the District Forum dated 11.2.2004 in Complaint No. 8/2003 and direct the District Forum to appoint a Commissioner who has technical knowledge to inspect the spot and submit report.

IN the above view of the matter, the revision applicant to suggest the name of the Commissioner and also parties to give memo of instructions for local inspection in the above terms. The revision application is allowed and the entire records have been directed to be sent back to the District Forum, North Goa forthwith.

The District Forum is directed, to dispose of the matter at the earliest.

BOTH the parties are directed to appear before the District Forum North Goa on 15.7.2004 without notice and without fail. The matter to be expedited. Office is directed to send back the file immediately to the District Forum North Goa. Revision Petition allowed.