JUDGMENT P.S. Rana, (R) President 1. Appeal No.300/2016 & Appeal No.313/2016 filed against the same order passed by learned District Forum in consumer complaint No.170/2014 title Amar Chand Versus Subhash Chand. Both appeals are consolidated for disposal in order to avoid conflicting orders. Brief facts of consumer complaint: 2. Sh. Amar Chand filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant and opposite party executed an agreement dated 30.10.2013 for the construction of cemented retaining wall approximately 50 feet in length and 09 feet in height. It is pleaded that opposite party agreed that opposite party would construct the RCC pillar wall. It is further pleaded that rate was fixed at Rs.90/-(Ninety) per square feet and amount was to be paid in three installments. It is pleaded that first installment was to be paid at the time of starting of work and second installment was to be paid after completion of half work and remaining amount was to be paid after the completion of whole construction work. It is further pleaded that complainant supplied construction material to opposite party. It is pleaded that opposite party did not construct the retaining wall properly and cracks developed in the retaining wall. It is pleaded that complainant sustained loss to the tune of Rs.294000/-(Two lac ninety four thousand). It is further pleaded that complainant issued legal notice to opposite party. Complainant sought relief of payment of Rs.294000/-(Two lac ninety four thousand). 3. Per contra version filed on behalf of opposite party pleaded therein that complaint is legally and factually not maintainable. It is pleaded that complainant has no cause of action and locus standi to file the consumer complaint. It is further pleaded that complainant is estopped by his own act, conduct and acquiescence to file the consumer complaint. It is pleaded that consumer Forum has no jurisdiction to adjudicate the controversy inter se parties. It is further pleaded that opposite party did not commit any deficiency in service and complainant has suppressed material facts from the Forum. It is pleaded that opposite party constructed the retaining wall and total labour expenses came to Rs.175000/-(One lac seventy five thousand). It is further pleaded that complainant did not pay balance amount of Rs.150000/-(One lac fifty thousand) to opposite party. It is pleaded that opposite party engaged three masons and nine labourers to execute the construction work. It is pleaded that opposite party constructed the retaining wall and total labour expenses came to Rs.175000/-(One lac seventy five thousand). It is further pleaded that complainant did not pay balance amount of Rs.150000/-(One lac fifty thousand) to opposite party. It is pleaded that opposite party engaged three masons and nine labourers to execute the construction work. It is pleaded that opposite party constructed retaining wall as per dimension, instructions and directions to opposite party by complainant. It is further pleaded that cracks if any appeared in the retaining wall were due to supply of inferior quality of construction material by complainant to opposite party. It is further pleaded that complainant has not paid labour charges to opposite party and opposite party did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought. 4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite party to pay Rs.71500/-(Seventy one thousand five hundred) so as to enable complainant to repair the retaining wall. Learned District Forum further ordered that opposite party would pay the amount within 30 days from the order failing which it would carry interest @ 9% per annum from the date of complaint till actual payment. Learned District Forum further ordered that opposite party would pay Rs.8000/-(Eight thousand) as compensation for mental harassment and Rs.3000/-(Three thousand) on account of litigation costs. Feeling aggrieved against the order passed by learned District Forum complainant Amar Chand filed appeal No.300/2016 and opposite party Subhash Chand filed appeal No.313/2016 before H.P. State Commission. 5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 6. Following points arise for determination in present appeals. 1. Whether appeal No.300/2016 title Amar Chand Versus Subhash Chand is liable to be accepted as mentioned in memorandum of grounds of appeal. 2. Whether appeal No.313/2016 title Subhash Chand Versus Amar Chand is liable to be accepted as mentioned in memorandum of grounds of appeal. 3. Final order. Findings upon point No.1 with reasons relating to F.A. No.300/2016 : 7. Complainant filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent and opposite party entered into agreement executed on 30.10.2013 for construction of cement retaining wall approximately 50 feet in length and 9 feet in height. 3. Final order. Findings upon point No.1 with reasons relating to F.A. No.300/2016 : 7. Complainant filed affidavit Ext.CW-1 in evidence. There is recital in affidavit that deponent and opposite party entered into agreement executed on 30.10.2013 for construction of cement retaining wall approximately 50 feet in length and 9 feet in height. There is recital in affidavit that opposite party agreed that opposite party would construct RCC pillar and rate was fixed at Rs.90/- per square feet. There is further recital in affidavit that entire amount was to be paid within three installments. There is recital in affidavit that first installment to the tune of Rs.25000/-(Twenty five thousand) was paid by complainant to opposite party at the time of starting of construction work. There is recital in affidavit that second installment was to be paid after the completion of half construction work and remaining installment was to be paid after the completion of entire construction work. There is further recital in affidavit that construction material was supplied by complainant to opposite party. There is recital in affidavit that crack developed in retaining wall constructed by opposite party and complainant sustained loss to the tune of Rs.294000/-(Two lac ninety four thousand). There is recital in affidavit that deponent also issued legal notice to the opposite party. 8. Complainant also filed affidavit of Shri Rajinder Kumar in evidence. There is recital in affidavit that deponent was appointed as supervisor by complainant. There is recital in affidavit that agreement was executed inter se parties and opposite party did not mix material in a proper manner. There is further recital in affidavit that crack developed upon retaining wall due to non mixing of material in machine properly. There is further recital in affidavit that mixture machine of opposite party was defective. There is further recital in affidavit that complainant has paid Rs.25000/- (Twenty five thousand) to opposite party at the time of starting of construction work. 9. Complainant also filed affidavit of Shri Amit Sharma Ex.CW3 in evidence. There is recital in affidavit that deponent is Junior Engineer (Civil). There is recital in affidavit that crack developed in the walls, beams constructed by opposite party. There is further recital in affidavit that deponent has submitted construction report. 9. Complainant also filed affidavit of Shri Amit Sharma Ex.CW3 in evidence. There is recital in affidavit that deponent is Junior Engineer (Civil). There is recital in affidavit that crack developed in the walls, beams constructed by opposite party. There is further recital in affidavit that deponent has submitted construction report. There is recital in affidavit that column footings were not found in uniform size and shape and there was no foundation at one side of retaining wall. There is recital in affidavit that beams were not found in alignment and poor quality of work was done by contractor. There is recital in affidavit that mixing of material was not done properly through the mixing machine by opposite party. There is further recital in affidavit that cracks have developed in retaining wall due to defective mixture machine used by opposite party. There is recital in affidavit that opposite party did not mix sand, cement and concrete in a proper manner. State Commission also perused all annexures filed by complainant carefully. 10. Opposite party filed affidavit of Subhash Chand Ex.OPW-1 in evidence. There is recital in affidavit that opposite party agreed to construct a retaining wall having dimension of 50 feet X 09 feet. There is recital in affidavit that dimensions were subsequently increased to 50 feet X 13 feet. There is further recital in affidavit that opposite party agreed to construct the retaining wall. There is recital in affidavit that payment was to be made in three installments. There is recital in affidavit that complainant had paid first installment of Rs.25000/-(Twenty five thousand) at the time of starting of construction work. There is recital in affidavit that construction work was started on 18.10.2013 and was completed on 15.12.2013. There is recital in affidavit that total labour charges of retaining wall and pillars worked out to Rs.175000/-(One lac seventy five thousand). There is further recital in affidavit that complainant did not pay balance labour charges to the tune of Rs.150000/-(One lac fifty thousand) to opposite party. There is recital in affidavit that opposite party engaged three masons and nine labourers to execute the construction work. There is further recital in affidavit that cracks have developed due to supply of inferior quality of construction material by complainant to opposite party. There is recital in affidavit that opposite party engaged three masons and nine labourers to execute the construction work. There is further recital in affidavit that cracks have developed due to supply of inferior quality of construction material by complainant to opposite party. There is recital in affidavit that opposite party did not commit any deficiency in service and complainant is liable to pay an amount of Rs.150000/-(One lac fifty thousand) to opposite party. 11. Opposite party also filed affidavit of Shri Joginder Pal Ward Panch Ex.OPW-2 in evidence. There is recital in affidavit that deponent is elected ward member of Gram Panchayat. There is recital in affidavit that on dated 06.01.2014 deponent visited the spot. There is recital in affidavit that no defect was occurred in construction work conducted by opposite party and dispute inter se parties was relating to payment of labour charges to the tune of Rs.150000/-(One lac fifty thousand). There is further recital in affidavit that cracks have developed in the retaining wall due to supply of inferior quality construction material by complainant to opposite party. State Commission also perused entire annexures filed by opposite party. 12. Submission of learned Advocate appearing on behalf of complainant that learned District Forum has not properly appreciated the oral as well as documentary evidence placed on record and on this ground appeal filed by complainant be allowed is decided accordingly. Learned District Forum has awarded Rs.71500/-(Seventy one thousand five hundred) to complainant so as to enable the complainant to repair retaining wall in question. Learned District Forum also granted interest @ 9% per annum to complainant till payment. Learned District Forum also ordered opposite party to pay Rs.8000/-(Eight thousand) as compensation for mental harassment and also ordered opposite party to pay Rs.3000/-(Three thousand) as litigation costs. Complainant did not place on record the exact expenditure of repair. No report of any expert placed on record relating to repair expenditure. In the absence of repair expenditure report from the expert State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. 13. It is proved on record that measurement of retaining wall was 50 X 13 feet i.e. 650 Square feet. 13. It is proved on record that measurement of retaining wall was 50 X 13 feet i.e. 650 Square feet. It is also proved on record that construction of retaining wall was to be done @ Rs.90/- per square feet. Hence it is held that total labour charges came to 65o X 90 i.e. Rs.58500/-(Fifty eight thousand five hundred). It is proved on record that opposite party has received an amount of Rs.25000/-(Twenty five thousand) from the complainant. In view of the above stated facts it is held that order passed by learned District Forum is in accordance with law and is in accordance with proved facts. Point No.1 is decided accordingly. Findings upon point No.2 with reasons relating to F.A. No.313/2016: 14. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of opposite party that order of learned District Forum is contrary to law and contrary to proved facts and on this ground appeal be allowed is decided accordingly. It is proved on record that opposite party agreed to construct the retaining wall. It is proved on record that complainant filed affidavit of Sh. Amit Sharma J.E. (Civil). J.E (Civil) has specifically mentioned in the affidavit that he has personally inspected the spot and submitted the report to the effect that (1) Column footings were not found in uniform size and shape. (2) That there was no foundation at one side of retaining wall. (3) That beams were not found in alignment. (4) That cracks developed in retaining wall due to defective mixing of sand cement and concrete. (5) That there was poor quality of work done by contractor. 15. State Commission is of the opinion that affidavit filed by Sh. Amit Sharma J.E (Civil) is trustworthy, reliable and inspire confidence of State Commission. There is no reason to disbelieve the affidavit filed by Sh. Amit Sharma J.E. There is no evidence on record in order to prove that Amit Sharma has hostile animus against opposite party at any point of time. Opposite party has not filed counter expert report. Expert report submitted by complainant Ex.CW3 remained unrebutted on record and expert has mentioned in a positive manner that work of contractor was of poor quality. 16. Opposite party has not filed counter expert report. Expert report submitted by complainant Ex.CW3 remained unrebutted on record and expert has mentioned in a positive manner that work of contractor was of poor quality. 16. Submission of learned Advocate appearing on behalf of opposite party that complainant has no cause of action and locus standi to file the present complaint is decided accordingly. It is held that complainant has cause of action against opposite party because opposite party took the consideration amount from the complainant for construction of retaining wall and thereafter constructed defective retaining wall due to which cracks developed at several places in retaining wall constructed by opposite party. 17. Submission of learned Advocate appearing on behalf of opposite party that complainant is not consumer is also decided accordingly. It is held that opposite party has received consideration amount for the construction of retaining wall. It is held that complainant was aggrieved by the construction work done by opposite party and complainant was legally entitled to file consumer complaint before District Forum relating to defective construction done by opposite party. 18. Submission of learned Advocate appearing on behalf of opposite party that complainant has suppressed the true and material facts from District Forum is also decided accordingly. Onus to prove that complainant has suppressed true and material facts from the Forum was upon opposite party. Opposite party did not adduce any cogent, reliable and positive evidence on record in order to prove that complainant has suppressed true and material facts. Hence plea of opposite party that complainant has suppressed true and material facts from the Forum is defeated on the concept of ipse dixit (An assertion made without proof). 19. Submission of learned Advocate appearing on behalf of opposite party that complainant is estopped to file consumer complaint by his own act, conduct and acquiescence is also decided accordingly. Onus to prove that complainant is estopped by his act, conduct and acquiescence was upon opposite party. Opposite party did not adduce any cogent, reliable and positive evidence on record in order to prove that complainant is estopped to file consumer complaint by his act, conduct and acquiescence. Hence plea of opposite party is defeated on the concept of ipse dixit (An assertion made without proof). Opposite party did not adduce any cogent, reliable and positive evidence on record in order to prove that complainant is estopped to file consumer complaint by his act, conduct and acquiescence. Hence plea of opposite party is defeated on the concept of ipse dixit (An assertion made without proof). In view of the fact that opposite party did not file any counter expert report relating to construction work and affidavit filed by expert Sh. Amit Sharma Ex.CW3 remained unrebutted on record it is held that it is not expedient in the ends of justice and on the principle of natural justice to interfere in the order passed by learned District Forum. Evidence of Sh. Joginder Pal Ward Panch is not helpful to opposite party because Ward Panch is not expert witness and he did not obtain civil engineer qualification from competent authority. See NC Percy Fernandes & Ors. Versus B. Nithyananda Shetty & other , 2006 4 CPJ 175. See NC Subramanyan Versus Siddaraja , 2006 4 CPJ 201. Point No.2 is decided accordingly. Point No.3 : Final Order 20. In view of findings upon points No.1 & 2 both appeals i.e. F.A. No.300/2016 and F.A. No.313/2016 are dismissed. Order passed by learned District Forum is affirmed. Certified copy of order be placed in the file of F.A. No.313/2016 forthwith. Parties are left to bear their own litigation costs before State Commission. Affidavit Ext.CW-3 filed by Sh. Amit Sharma J.E. (Civil engineer) will form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Both Appeals i.e. F.A. No.300/2016 & F.A. No.313/2016 are disposed of. Pending application(s) if any also disposed of.