IMPORTANT POINT
Consumer Forum competent to requisition report of analysis or test from appropriate Laboratory or other relevant source.

V.K. Jain, Presiding Member — Vide order dated 15.9.2014, passed in pending CC/55/2013, the concerned State Commission appointed an Advocate as the Court Commissioner to note down the physical features of the subject flat bearing No.109 in Rohini Tower-II, house No.6-3-1238 and 1238/R situated at Rajbhawan Road, Hyderabad with specific reference to the pending works as mentioned in the complaint. His fee was fixed at Rs.10,000/- which was to be paid by the complainant. The aforesaid order came to be passed on account of the complainant alleging a number of deficiencies in the flat purchased by him and seeking direction to the petitioner to pay a sum of Rs.35,89,660/- towards the cost of carrying out the interior works in the flat.

2. The main contention of learned counsel for the petitioner is that no power to appoint a Local Commissioner vests in the State Commission either under Section 13 of the Consumer Protection Act or any other provision of the said Act.

3. Section 13 (4) of the said Act reads as under:

“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:-

i. The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath,

ii. The discovery and production of any document or other material object producible as evidence,

iii. The reception of evidence on affidavits,

iv. The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source,

v. Issuing of any commission for examination of any witness, and

vi. Any other matter which may be prescribed”.

4. It would thus be seen that neither all the powers given to a Civil Court under the Code of Civil Procedure nor the power to appoint a Local Commissioner for carrying out a local investigation, which is available to a Civil Court under Order 26 Rule 9 of CPC has been expressly conferred by the Statute upon a Consumer Forum. In the absence of such a power, it would be difficult to sustain an order appointing an Advocate as a Court Commissioner to carry out a local investigation for the purpose of elucidation in the matter of any dispute such as inspection of a property to ascertain whether it suffers from any defects in its construction or whether the construction of the building is complete in all respects. The impugned order therefore, is liable to be set aside.

5. However, in terms of Clause (iv) of Section 13 (4) of the CP Act, a Consumer Forum is competent to requisition the report of the analysis or test either from the appropriate Laboratory or from any other relevant source. The aforesaid provision envisages appointment of an expert to carry out a test, which in an appropriate case would also include local inspection, followed by a test and/or analysis if felt necessary by the said expert. If an Architect or Engineer is appointed to inspect a property and report the defects/ deficiencies, if any, found therein or to report whether the construction of the building is complete or not, such an order, in our view, would be well within the competence of the Consumer Forum, since the Engineer/Architect, so appointed by the said Forum, is an expert in the relevant field and if necessary he also has to carry out tests or analysis in order to submit an appropriate report in terms of the order of the Consumer Forum. Therefore, while setting aside the impugned order, we grant liberty to the State Commission to appoint a qualified Engineer/or Architect to carry out investigation followed by tests/analysis if felt necessary by him, and to report the physical features of the subject flat, including as to whether one or more of the works mentioned in the complaint are still pending execution/completion or not.

The Revision Petition stands disposed of accordingly.

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