MALKIAT SINGH vs Paramjit Walia

THIS revision petition has been filed by the petitioner/OP against the order dated 1.6.2007 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission '') in Appeal No. 405 of 2004 - Paramjit Walia Vs. Malkiat Singh by which, while allowing appeal, order of District forum dismissing complaint was set aside.

BRIEF facts of the case are that complainant/respondent engaged OP/petitioner for extension of roof of two rooms. OP carried out work at complainant ''s house from 6.4.1999 to 14.4.1999. OP put lintel on the roof of the said house. Complainant incurred expenditure of Rs.5,000/ for the material and Rs.4950/ for labour. On 26.4.1999, the lintel of the roof was opened. It was found that lintel was uneven and not at the level of old construction. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint; denied allegations made in the complaint and submitted that he had done the work according to his skill and intelligence. It was further submitted that complaint has been filed to deprive OP for payment of the labour work done by him. It was further submitted that complainant fixed the rate of labour wages @ Rs.170/ per day and not Rs. 150/ per day. It was further submitted that OP never opened lintel, it was opened by the complainant himself without consent of OP and OP is not responsible for the loss in such circumstances and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint along with cost of Rs.5,000/ . Appeal filed by the complainant was allowed by learned State Commission vide impugned order and directed OP to pay Rs.9950/ and further awarded Rs.5,000/ for mental agony against which this revision petition has been filed. None appeared for the respondent, though, on earlier dates, Counsel for the respondent appeared.

HEARD petitioner in person and perused record.

PERUSAL of record reveals that District Forum dismissed complaint for want of expert evidence as well as substantive evidence to substantiate the case. Learned State Commission while allowing appeal held that there was no necessity to lead expert evidence because the defects in the lintel are patent and visible and can be ascertained on examination with naked eyes. Perusal of record reveals that learned State Commission has placed reliance on paragraph 4 of the complaint and written statement and on that basis appeal was allowed. Learned State Commission observed that OP nowhere denied stand of complainant in paragraph 4 of the reply, but paragraph 4 of written statement runs as under: "That para no. 4 of the complaint is absolutely wrong and denied. The lintel was never opened by the respondent or his labourers, he has got it opened with his own will and without the consent of the respondent. So, the respondent is not liable for any loss as alleged."

THUS , it becomes clear that OP denied allegations of paragraph 4 and further submitted that lintel was never opened by the OP or his labourer, but it was opened by the complainant without consent of the OP. This denial cannot be presumed to be admission on the part of OP that mason work was defective.

COMPLAINANT has not led any evidence except his own affidavit and in the absence of any supporting evidence it cannot be presumed that work done by the OP was defective and roof was uneven when OP denied allegation in affidavit. Thus, it becomes clear that learned District Forum did not commit any illegality in dismissing complaint and learned State Commission has committed illegality in allowing appeal and impugned order is liable to set aside.

CONSEQUENTLY , revision petition filed by the petitioner is allowed and impugned order dated 1.6.2007 passed by learned State Commission in Appeal No. 405 of 2004 - Paramjit Walia Vs. Malkiat Singh is set aside and complaint stands dismissed with no order as to costs.