M/s. Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy & Ors.
Email(Arising out of S.L.P. (C) Nos.18378-79 of 1999)
(From the Judgment and Order dated 5.8.99 of the National Con-sumer Disputes Redressal Commission, New Delhi in R.P. No. 947-48 of 1996)
(Arising out of S.L.P. (C) Nos.18378-79 of 1999)
(From the Judgment and Order dated 5.8.99 of the National Con-sumer Disputes Redressal Commission, New Delhi in R.P. No. 947-48 of 1996)
Mr. Somnath Mukherjee, Advocate for the Respondents.
Consumer Protection Act, 1986
Deficiency in service – Delay in filing claim for compensation – When a complaint is barred by limitation – Respondent purchas-ing power tiller from the appellant government corporation in April, 1988 – Tiller developing troubles within the warranty period, respondent making complaints to appellant for repairs and replacement but without any success – Complaint filed before district forum in June, 1994 – District forum ordering replace-ment of the tiller and awarding costs to respondent – State commission upholding the order of district forum and dismissing the appeal, rejecting the plea of bar of limitation – National Commission also rejecting the revision, holding, since the manu-facturer did not deny its liability to repair or replace, and state commission having rejected the plea of bar of limitation, there was no question of interference on the question of limita-tion at that stage – Whether the complaint preferred by the respondent in 1994 was barred by limitation – Whether the state commission and National Commission justified in rejecting the plea of bar of limitation. Held, there was no justification for negating the plea of limitation with cursory and passing ob-servations. State of the proceeding has no relevance on the question of limitation. The complaint of the respondent lodged with the appellant corporation in 1989 having been attended to by accepting certain claims and replacing a part and rejecting other claims, the claim filed after four years in 1994 before the district forum was beyond the period of limitation. Rejecting the claim of the respondent orders passed by the district forum and state and National Commissions set aside.
We find that the question of limitation has not been considered seriously at any stage. There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that the delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much less within limitation, by which liability may have been acknowledged by the appellant. The commission further observed that “at this stage”, there could not be any question of interference in the order of the state commission on the point of limitation. There seems to be no justification for negating the plea of limitation with such cursory and passing observations. The question of stage of the proceeding has no relevance so far question of limitation is concerned. The claim has been filed beyond the period of limitation say, more than four years after defects were pointed out. (Para 8)
In the result, the appeals are allowed and the judgment and orders passed by the district forum, the state commission and the national commission are set aside and the claim of the claimant respondent no.1 is rejected. (Para 10)
1. Leave granted.
2. Heard the learned counsel for the parties.
3. This appeal has been preferred against the order passed by the National Consumer Disputes Redressal Commission, New Delhi dated August 5, 1999 dismissing the revision petition filed by the appellant against the orders passed by the State Consumer Dis-putes Redressal Commission, West Bengal.
4. The complainant, who is respondent no.1 in this appeal, pur-chased a Kuboto power tiller on 21.4.1988 from the appellant, namely Kerala Agro Machinery Corporation Limited at its Malda branch, through its dealer, West Bengal Agro Industries Corpora-tion. According to the respondent no.1, the power tiller started giving trouble within the warranty period, in respect whereof, he made a complaint for repairs and replacement of certain parts, but the complaint was not considered nor defects removed, hence ultimately he filed a complaint before the district consumer forum, Malda on 16.6.1994.
5. The district consumer forum, Malda by order dated 15.9.1994 allowed the claim of respondent no.1 and directed that the power tiller be replaced by a new one. A compensation of Rs.2,000/- and all costs were also awarded to the complainant. The district consumer forum observed that once the opposite parties to the claim petition had admitted the defects of the parts as claimed by the complainant, subsequently they could not deny the same as an afterthought. The prayer made on behalf of the Kerala Agro Machinery Corporation for filing a reply to the claim was rejected by the district forum, it is though observed that both the parties were heard at length but no plea of the present petitioner has been mentioned or discussed in the order. An appeal preferred against the order of the district forum was dismissed by the State Consumer Redressal Commission, West Ben-gal. The case of the appellant inter alia was that the claim was barred by limitation. In this connection, the state commission observed that the claimant had been writing letters and remin-ders to the manufacturers and dealers and the last one on 5.4.1994, but since no effective steps were being taken by the manufacturers for removing the defects, the complainant had to file the claim ultimately on 27.6.1994. It is further observed that complainant was only getting assurances for removal of the defects but the manufacturer took no final decision in the mat-ter, therefore, the delay occurred on the part of the complainant in filing the claim. The claim thus could not be said to be barred by limitation, which was two years after the amendment of the Act in 1993 and prior to that it was as provided under the general law. With these observations, the state commission upheld the order passed by the district forum. The National Commission rejected the revision observing that the manufacturer specifical-ly did not deny its liability to repair or replace the tiller and the state commission rejected the plea of bar of limitation, therefore, at this stage there was no question of interference in the order passed by the state commission on the point of limita-tion. It is also observed that real cause of the delay was the assurances given by the dealer to get the defects rectified.
6. Learned counsel for the appellant submitted that its case has not been properly considered on the point of limitation or other-wise by any of the three forums dealing with the matter. Learned counsel for the appellant has taken us through the conditions of warranty which indicates that the warranty period is one year from the date of delivery or 500 hours of operation whichever is earlier, provided servicing and maintenance of the power tiller have been strictly observed as per operator’s manual. Clause 4(c) indicates that damage due to inadequate maintenance and servicing or due to ignorance of operators would not be covered by the warranty. Clause 7 of the warranty provides that it ceases immediately after the power tillers suffers an accident. He has then drawn our attention to P-2 dated 2.5.1988 written by the claimant to the dealer indicating that the tiller had overturned on 2.5.1988 and was damaged a little. It was made workable for the time being on the repairs carried out by the mechanic.
7. The claim seems to have been lodged by the complainant with the dealer on 20.2.1989. Learned counsel for the appellant has taken us through the correspondence between the parties to indicate that defect in respect of only one item at S. No.V was admitted, which was replaced as per despatch postal receipt dated 13.7.1989. This fact is also indicated in the letter of the appellant dated 9.7.1993. It was also said in the letter that the claimant was raising very old claims, which had become about 4 years old. We do not think it necessary to go into further details of the matter. As it is clear that the claim was lodged with the appellant in February, 1989 in pursuance whereof one admitted defective part had been replaced as indicated earlier and other complaints are said to have been not accepted or appropriately attended to. The counsel for the appellant submitted that the needful was done even though an accident was reported by the claimant himself on 2.5.88 and the servicing schedule was also not adhered to. On behalf of the respondent no.1, there is no denial of the fact that one part was replaced by the manufacturer. The claim relating to defects was lodged with the appellant in February 1989, in respect whereof claim peti-tion was filed in June, 1994 i.e. to say more than 4 years after lodgment of the claim with appellant.
8. We find that the question of limitation has not been consid-ered seriously at any stage. There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that the delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much less within limitation, by which liability may have been acknowledged by the appellant. The commission further observed that “at this stage”, there could not be any question of interference in the order of the state commission on the point of limitation. There seems to be no justification for negating the plea of limitation with such cursory and passing observations. The question of stage of the proceeding has no relevance so far question of limitation is concerned. The claim has been filed beyond the period of limitation say, more than four years after defects were pointed out.
9. Learned counsel appearing for the respondent no.1 also could not indicate anything or document to show that the complaint was filed within time. We agree with the submissions made on behalf of the appellant that the claim of the respondent no.1 was not entertainable by the district consumer forum being barred by limitation.
10. In the result, the appeals are allowed and the judgment and orders passed by the district forum, the state commission and the national commission are set aside and the claim of the claimant respondent no.1 is rejected.
11. There will be no order as to costs.
