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S.K. Mafijul Islam v/s Anjali Automobiles & Others

    First Appeal No. 346 of 2013

    Decided On, 17 July 2015

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. TARAPADA GANGOPADHYAY PRESIDING MEMBER & THE HONOURABLE MR. JAGANNATH BAG MEMBER

    For the Appellant: Barun Prasad, Subrata Mondal, Advocates. For the Respondent: Souvik Chatterjee, Bholanath Sarkar, Prasanta Banerjee, Prasanta Banerjee, Advocates.



Judgment Text

Tarapada Gangopadhyay, Presiding Member

The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been preferred against the judgment and order dated 27.2.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur, in Complaint Case No. 25/2012, dismissing the Complaint on the ground of its being barred by limitation.

Facts of the case, as emerging from the materials on record, are, in short, that the Appellant/Complainant purchased from the Respondent No. 1/OP No. 1, being the distributor of Respondent No. 2/OP No. 2, a tractor of Model No. 3230 (Engine No. C24126 and Chassis No. 3128797), which was allegedly advertised to be of 45 HP (Running Page-20 of Memo of Appeal), for a total price of Rs. 5,19,330/- , and accordingly, paid Rs. 1,54,230/- with the terms of making balance payment in 60 instalments of Rs. 10,490/- each to be financed by the Respondent Nos. 3 & 4/OP No. 3 & 4-Financing Company. The said tractor was taken delivery of by the Appellant/Complainant on 1.1.2010 and before taking such delivery the Appellant/Complainant had got the occasion to inspect the said tractor. A few days after taking delivery, the Appellant/Complainant found that the said tractor failed to plough ‘eleven coulters’ and came to know on enquiry that the said tractor was of 42 HP and not of 45 HP as the Appellant/Complainant was informed by the Respondent No. 1/OP No. 1 at the time of purchase. Upon noticing such difference in HP of the tractor in question, when the Appellant/Complainant contacted the Respondent No. 1/OP No. 1, who, in turn, contacted the Respondent No. 2/OP No. 2, the Appellant/Complainant was assured that he would be handed over a tractor of 45 HP at the same price. After such assurance the Appellant/Complainant vigorously pursued the Respondent No. 1/OP No. 1 and finally served Advocate’s Notice dated 14.7.2010 requesting the Respondent No. 1/OP No. 1 to replace the tractor of 42 HP in question by one of 45 HP as assured by the Respondent No. 1/OP No.1, but without any success. Thus, having got no redressal from the Respondent Nos. 1 & 2/OP Nos. 1 & 2, the Appellant/Complainant moved the Ld. District Forum with the Complaint, which passed the order dismissing the Petition of Complaint on the ground that the same was barred by limitation of time as provided u/s 24A of the Consumer Protection Act, 1986. Dissatisfied with such order, the Complainant has filed the instant Appeal.

The Ld. Advocate for the Appellant/Complainant submits that the limitation of time is to be counted from the date when the defect in the said tractor first came to the knowledge of the Appellant/Complainant, i.e. from 11.5.2010, vide Complainant’s letter dated 11.5.2010 to the Respondent No. 2/OP No. 2, but not from the date of delivery, i.e. 1.1.2010.

It is also submitted by the Ld. Advocate that as the complaint was filed on 9.3.2012 and as the Complainant came to know about the defect in the tractor first on 11.5.2010, the Complaint Case was filed within two years from the date of first knowledge of the defect in the tractor and hence, the case is not barred by limitation.

The Ld. Advocate concludes that in view of the submission so put forward, the impugned judgment and order should be set aside, the same being bad in law and improper.

On the other hand, the Ld. Advocate for the Respondent Nos. 3 & 4/OP Nos. 3 & 4 submits that cause of action first arose on 1.1.2010 when the tractor in question was taken delivery of on prior inspection of the same on the same date as is evident from the document dated 1.1.2010 in respect of inspection of the tractor before delivery (Running Page-22 of Memo of Appeal) when the specification of the tractor in detail including the HP first came to the knowledge of the Appellant/Complainant.

The Ld. Advocate further submits that the date of delivery after inspection, i.e., 1.1.2010, was the first date of knowledge of the Appellant/Complainant about the defect, if any, in the tractor, and hence, as the Complaint Case was filed on 9.3.2012, i.e., after expiry of two years from 1.1.2010, the same is barred by limitation of time as provided under Consumer Protection Act, 1986.

The Ld. Advocate also submits that the limitation of time as prescribed u/s 24-A of the Consumer Protection Act is mandatory in nature and that such mandatory limit of time cannot be extended by representation or correspondence as the Ld. Advocate for the Appellant/Complainant has resorted to. In this connection, the Ld. Advocate has relied on the recent decisions of the Hon’ble National Commission in Smt. Harbhajan Sharma Vs. Haryana Urban Development Authority, reported in 2015 (1) CPR 558 (NC) and also in M/s. Global Ispat Ltd., Through Director Kushal Aggarwal Vs. Oriental Insurance Ltd., Through its Divisional Manager, reported in 2015 (1) CPR 153 (NC), wherein it was respectively held that mere writing of letter to the Respondent/OP would not extend the period of limitation and time-barred Complaint cannot be entertained.

The Ld. Advocate for the Respondent Nos. 1 & 2/OP Nos. 1 & 2 adopts the aforesaid submission of the Ld. Advocate for the Respondent Nos. 3 & 4/OP Nos. 3 & 4 adding further that the Appellant/Complainant moved the Complaint only to cover up his lapses in respect of default in payment of the EMI of the loan.

The Ld. Advocate for the Respondents/OPs concludes that in view of the submission aforesaid the impugned judgment and order should be sustained, there being no illegality or infirmity therein.

We have heard both the sides, considered their respective submission and perused the materials on records.

The document dated 1.1.2010 related to inspection of the tractor in question by the Appellant/Complainant before taking delivery of the same, as available on record (Running Page-22 of Memo of Appeal), reveals that the Appellant/ Complainant had the occasion to gather knowledge about the specification including HP of the tractor in question in course of inspection of the same on 1.1.2010 and that too before taking delivery of the same on the same date. Therefore, 1.1.2010 was the date of accrual of cause of action and not 11.5.2010 when the correspondence was made as argued by the Ld. Advocate for the Appellant/Complainant.

In this matter, position of law is well settled that after accrual of cause of action the party cannot get the time of limitation extended indulging any correspondence or representation. In this context, reliance is placed on a decision of the Hon’ble Supreme Court in Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. and another, reported in III (2009) CPJ 75 (SC).

The expression ‘shall not admit a complaint’ as occurring in Section 24-A of the Consumer Protection

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Act, 1986 is a sort of legislative command to the Consumer Fora to examine whether the Complaint has been filed within the period of limitation as prescribed thereunder. On the above facts and evidence on record we are of the view that the Complaint was barred by limitation of time as prescribed under the Consumer Protection Act, 1986. Keeping in view the facts and circumstances of the case, we find that the impugned judgment and order of the Ld. District Forum is in accordance with the law laid down in the Consumer Protection Act, 1986 as well as the decision of the Hon’ble Apex Court as referred to hereinbefore. In the result, the Appeal is dismissed. The impugned judgment and order is affirmed. No order as to costs.
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