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Birla Medical Technologies v/s Chatrapati Shivaji Maharaj General Hospital Govt. of Maharashtra

Company & Directors' Information:- BIRLA CORPORATION LIMITED [Active] CIN = L01132WB1919PLC003334

Company & Directors' Information:- BIRLA TECHNOLOGIES LIMITED [Strike Off] CIN = U99999MH2000PLC128315

Company & Directors' Information:- MEDICAL TECHNOLOGIES LIMITED [Amalgamated] CIN = U85110GJ1993PLC019685

Company & Directors' Information:- R B MEDICAL TECHNOLOGIES PRIVATE LIMITED [Strike Off] CIN = U29297DL2004PTC130209

    Revision Petition No. 4710 of 2013

    Decided On, 22 December 2016

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Petitioner: Shipra Mathur, Advocate. For the Respondent: Ankur Gupta, Advocate.

Judgment Text

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 24.10.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. CC/04/85, vide which, miscellaneous application No. 1829/2004, filed by the complainant/respondent, seeking condonation of delay of 501 days in filing the complaint in question, was allowed and the matter was listed for admission hearing on 04.12.2013.

2. The facts of the case are that the complainant Chatrapati Shivaji Maharaj General Hospital Solapur, (hereinafter called as Hospital) is a state-owned general hospital of the Government of Maharashtra and under the administrative control of the said hospital is V.M. Medical College, Solapur. The complainant floated tenders for the supply of an equipment called, Blood Gas Analyser for the V.M. Medical College in the year 1999, for which the petitioner/opposite party (OP) respondent offered to supply a Hong Kong-made machine for a price of US$ 30,000 ex-ware house Hong Kong, vide their letter dated 09.04.92. After seeking approval from the Government, the complainant placed an order for the purchase of the said equipment with the respondent vide their letter dated 22.04.92 and the cost payable for the said instrument was Rs.9,59,879/-. An agreement was signed between the parties on 27.04.92 as acceptance of the offer and as stated in the consumer complaint, theequipment was to be supplied within 10 weeks from the opening of letter of credit by the complainant. The complainant opened the letter of credit with State Bank of India, Solapur by depositing a sum of Rs.8,23,000/- vide letter dated 29.05.92. The Bank issued irrevocable letter of credit dated 14.07.92 in favour of M/s. Instrumentation Laboratories (Far East) Limited USA, which was later amended at the request of the contractor to be payable at Hong Kong. The equipment was to be supplied within 10 weeks from the opening of LOC, i.e., by 21.09.1992, but the same was supplied on 18.11.92, i.e., with a delay of 8 weeks. The complainant had to pay an extra amount of Rs.40,975/- towards difference in exchange rate, due to late delivery. After several requests from the complainant, the contractor sent their service engineer to install the machine on 04.02.93, but even at that time, it was noticed that some regulator was malfunctioning. Even after the repair of the said regulator, the machine did not function properly. The facts were brought to the notice of the contractor many times. Vide letter dated 29.04.93, the contractor requested the complainant to permit them to transport the Gas I cylinder which had leaked due to faulty regulator. He also undertook to replace the regulator. In their consumer complaint, the complainants have given details of the correspondence exchanged between them and the opposite party during the years 1993 and 1994, regarding the problems encountered by them in the functioning of the machine. Thereafter, on 05.10.1998, the complainant asked the respondent to replace the equipment, in response to which they sent a letter dated 21.10.98, saying that they were reviewing the entire case and would respond to the complainant. It is stated that various letters were sent by the complainant from time to time as a follow-up of their request to replace the machine, but appropriate action was not taken by the opposite party. The letters sent on 03.04.2002 and 04.06.2002 were received back undelivered. The consumer complaint in question was then filed in August 2004, after getting permission from the Government, seeking directions to the OP/respondent to pay a sum of Rs._28,60,439.42_ps., being the total cost of blood gas analyser, including interest @18% p.a. on the amount in question. Alongwith the complaint, an application for condonation of delay was also filed before the State Commission, giving details of the correspondence made by the complainant with the OP/respondent. Vide impugned order dated 24.10.2013, passed by the State Commission, after hearing both the parties, the Miscellaneous Application No. 1829/2004, seeking condonation of delay of 501 days has been allowed. It is against this order that the OP/respondent is before this Commission by way of the present revision petition.

3. It has been stated in the grounds of revision petition as well as during arguments from the petitioner, that the complaint was hopelessly barred by time, because the cause of action had arisen as early as in the year 1993, when the delay in the installation of the equipment had been alleged by the complainant. The cause of action could not be extended merely by exchange of letters between the parties. The complaint was, therefore, in complete violation of section 24A of the Consumer Protection Act, 1986, because as per that provision, the complaint could be filed only within 2 years of the cause of action. The petitioner/OP submitted that Birla Medical Technology (BMT) was a division of GMM Co. Ltd. and was merely a supplier and not the manufacturer of the medical equipment and hence, they could not be made liable for any manufacturing defect in the said equipment. The said BMT was closed in the year 2002, after tapering down of its business activities. The complaint was filed in the year 2004, i.e., 12 years after the time of placing the order for the machine. Moreover, the State Commission took more than 8 years for sending notice of the same to them, since the filing of the complaint. After the lapse of 12 + 8 = 20 years and in the absence of any record or details pertaining to the case, the petitioner/OP could not be expected to defend itself. No reason had been shown by the complainants to indicate as to why they could not file the consumer complaint within 2 years of the cause of action. The order passed by the State Commission condoning the delay of 501 days, which in fact was more than that, was not based on sound legal footing and deserved to be set aside and the complaint deserved to be dismissed. The petitioner/OP had also filed a detailed reply before the State Commission on the lines stated above vide their affidavit dated 27.06.2012, requesting that the application for condonation of delay need to be dismissed.

4. In reply, Ld. Counsel for the respondent / complainant stated that a perusal of the order passed by the State Commission indicated that the complainant had been able to provide a day-to-day account of correspondence with the OP and hence, there was sufficient cause for the condonation of delay. The order passed by the State Commission was, therefore, in accordance with law.

5. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

6. Section 24A of the Consumer Protection Act, 1986 lays down as follows:-

'Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.'

7. As per the version given by the complainant, which is a general hospital owned by the Government of Maharashtra, the blood gas analyser was delivered to them on 18.11.92 and it was installed on 04.02.93 by the service engineer of the OP, but it was not functioning properly from the very beginning. As stated by them, they had detailed correspondence with the OP from time to time and ultimately in the year 1998, vide their letter dated 05.10.98, asked them to replace the equipment. However, the consumer complaint in question, was filed in August 2004. It is not understood as to what prevented a responsible government-run institution to file a consumer complaint against the OP, well in time in accordance with the provisions of the Consumer Protection Act, 1986. It is very clear that the cause of action arose when the machine was not functioning properly. The cause of action also arose when in response to their letter dated 05.10.98, the OP sent a reply dated 21.10.1998, saying that they were reviewing the entire case. It was the duty of the complainant to have filed the consumer complaint latest within 2 years of the letter from the OP on 21.10.98. In their application for condonation of delay, although the complainants have given details of the correspondence with the OP since the year 1992–93, but they have failed to explain as to why they refrained themselves from filing any complainant against the OP, even when they felt that no positive steps had been taken by them to redress their grievance. The complainants have also stated that their letters dated 03.04.2002 and 04.06.2002 sent to the respondent were received back unclaimed. It was, therefore, their duty to take steps to file the consumer complaint immediately, rather than waiting till August 2004.

8. The State Commission have stated in the impugned order that the complainant had given chronological report from 05.10.98 to 19.05.2004, explaining the abnormal delay in filing the consumer complaint. This argument given by the State Commission cannot be accepted because it is clearly made out from the version of the complainants that there was never any response from the OPs after their letter of 21.10.98. The letters sent in the year 2002 were returned unclaimed. It is not understood, therefore, as to what stopped them from moving the appropriate forum for redressal of their grievance in accordance with law. There does not appear to be any convincing or cogent explanation for the condonation of the said delay.

9. The matter regarding the applicability of section 24A of the Act has been considered by the Hon’ble Supreme Court in the case of 'State Bank of India v. B.S. Agriculture Industries (I) [(2009) 5 SCC 121]', it has been stated therein as follows:-

'It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, 'shall not admit a complaint' occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.'

10. The matter has further been considered in the case of 'Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd. [(2009) 7 SCC 768]' in which it has been stated as follows:-

'Section 24-A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.'

11. As per the law laid down in the judgment

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s quoted above, it is the duty of the consumer fora to examine the issue of limitation before admitting a consumer complaint and then to record reasons for extension of time, if there were sufficient grounds to do the same. Looking at the chronology of events in the present case, there does not seem to be any sufficient reason showed by the complainant for condoning the inordinate delay on the part of the complainant in moving the consumer fora. 12. Another interesting feature of the case is that after filing the complaint in August 2004, the notice was sent to the OPs by the State Commission for the first time in March 2012, i.e., after a period of 8 years for the reasons best known to the State Commission. 13. The contention raised by the petitioner that after the lapse of huge time of 20 years, they were unable to lay hands on the concerned papers and defend the case properly, seems to be based on logical reasoning. 14. Based on the foregoing discussion, it is held that the order passed by the State Commission condoning the delay in filing the consumer complaint is not in accordance with law. The said order is, therefore, set aside and this revision petition is allowed. Consequently, the consumer complaint, in question, stands dismissed. There shall be no order as to costs.