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Saya Automobiles Ltd. v/s Anil Sharma & Others

    First Appeal No. 497 of 2012

    Decided On, 19 September 2018

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, THE HONOURABLE MR. N.P. KAUSHIK
    By, JUDICIAL MEMBER

   



Judgment Text


M/s. Saya Automobiles Ltd., A-21/21, GT Karnal Road Industrial Area, Delhi-110033 the Appellant/OP1 has filed the present appeal against orders dated 13.3.2012 passed by the learned District Forum (North-West) Shalimar Bagh, Delhi-110088. Vide impugned orders learned District Forum passed the following directions against the Appellant/OP1:

“The complaint against OP2/OP3 is dismissed.”

2. Facts which are necessary for adjudicating upon the appeal and not in dispute are that the respondent No. 1/complainant Sh. Anil Sharma purchased a Maruti Omni Ambulance from the Appellant/OP1 vide sale letter/invoice dated 15.10.1996. An amount of Rs. 1,52,000 was paid to the Appellant/OP1. The deal for the purchase of vehicle was made with an understanding that the respondent No. 1/ complainant Sh. Anil Sharma and would get 25% rebate on excise duty as per Maruti Sales Policy Bulletin dated 24.8.1996. Complainant Sh. Anil Sharma was running a nursing home under the name Capital Nursing Home and Hospital at C-3/7A, Rana Pratap Bagh, Delhi-110007. The vehicle was delivered seven months after the booking and on a further payment of Rs. 56,405 by respondent No. 1/complainant. Maruti Udyog Limited, Gurgaon and Excise Department, Govt. Of Haryana were arraigned as OP2 and OP3 respectively in the complaint before the learned District Forum. Application for rebate of excise duty was forwarded by the Appellant/dealer to MUL Gurgaon, for further consideration by Excise Department, Government of Haryana. Assistant Commissioner (Excise) rejected the application on the grounds that the same was barred by time. As per central Government’s notification a manufacturer is required to file claim for refund (of excise duty) within 3 months of the clearance of the motor vehicle from the factory. As per policy framed by MUL Gurgaon the requisite documents must reach MUL Gurgaon within 45 days of issuance of MUL invoice to the dealer. A customer is required to furnish the documents to the dealer within 60 days from the date of dealer’s invoice.

3. In the present case, as per defence raised by MUL Gurgaon OP2, it received documents for seeking refund only on 6.10.1998. These were received vide letter dated 24.9.1998 sent by the complainant.

4. Let us now have a look at the chain of events that caused delay in presentation of the case before the Excise Authorities. Initially the complainant had handed over his nursing home registration certificate to Appellant/OP1 at the time of the purchase of the vehicle. Respondent No. 1/complainant approached Appellant/OP1 in January 1997 and inquired about the excise rebate. He was informed that the documents stood submitted to the Manager, MUL, Gurgaon. Complainant was provided with copy of the letter dated 22.10.1966 in this behalf. He was asked to enquire after 15 days. On an inquiry after 15 days, respondent No. 1/complainant was informed that the cheque towards refund of excise duty had not been received. After making few more inquiries from Appellant/OP1, respondent No. 1/complainant visited the office of Manager (Excise Cell), MUL, Gurgaon. Respondent No. 1/complainant was informed that the papers received from Appellant/OP1 had been sent back in January 1997. Papers had been sent back for the reason that the same were not notarised. Copy of the said letter was given to the respondent No. 1/ complainant. Respondent No. 1/ complainant again took-up the matter with Appellant/OP1. Now, Appellant/OP1 admitted the receipt of such papers from MUL, Gurgaon (OP2) and stated that due to some clerical error papers could not be re-submitted to MUL, Gurgaon (OP2). Appellant/OP1 asked for the documents in original. The same were given by respondent No. 1/complainant on 22.4.1997. On an inquiry respondent No. 1/ complainant was informed that the papers had been submitted to MUL, Gurgaon on 29.4.1997. Respondent No. 1/complainant submitted a letter dated 8.1.1998. To his shock he was informed that the papers had not been submitted till then to MUL, Gurgaon (OP2) by Appellant/ OP1. Respondent No. 1/complainant again approached Appellant/OP1 and found that it had not taken up the matter with MUL, Gurgaon (OP2). After a great persuasion a refund claim was submitted to Excise Department by MUL Gurgaon. Claim was rejected on the grounds that it was barred by time.

5. Defence raised by Appellant/OP1 was that the respondent No. 1/complainant was not a ‘consumer’. Another objection was raised stating that the complainant’s nursing home was not a registered one. Appellant/OP1 also submitted that it was the respondent No. 1/complainant himself who had prepared his case for the refund of the claim amount. Delay, if any, was on the part of the respondent No. 1/complainant.

6. Plea raised by MUL, Gurgaon (OP2) was that the delay had occasioned only because it did not receive the documents in time. These were received only on 6.10.1998. It filed claim for refund of excise duty on 9.10.1998. OP2 thus claimed that there was no ‘deficiency in service’ on his part.

7. Learned District Forum relied upon the findings of this Commission to the effect that the complainant was a ‘consumer’ (orders dated 13.4.2007). In relation to the objection that the complainant’s nursing home was not a registered one, learned District Forum relied upon the letter dated 17.2.2011 issued by Directorate of Health Services Government of NCT of Delhi. Vide said letter nursing home in question was stated to be a registered one.

8. Learned District Forum referred to the correspondence that took place between the Appellant/ OP1 and OP2 and observed that the Appellant/ OP1 failed in its duty to process and submit the relevant documents to OP2. Appellant/ OP1 did not bother to see that the documents sent by it to OP2 were returned to it. Only when the respondent No. 1/ complainant brought this fact to the knowledge of Appellant/ OP1, it found that it had received the documents back. On the contrary, Appellant/ OP1 gave in writing to the respondent No. 1/ complainant that it had resubmitted the documents. The said information was false.

9. In his present appeal, Appellant/OP1 submitted that the learned District Forum failed to appreciate that the complaint was barred by time. Contention of the Appellant/OP1 is that the cause of action accrued immediately after 45 days of the letter dated 29.4.1997 sent by him. Appellant/OP1 has relied upon the case of V.N. Shrikhande (Dr.) v. Anita Sena Fernandes, IV (2010) CPJ 27 (SC)=VII (2010) SLT 648=(2011) 1 SCC 53.

10. I have heard at length the arguments addressed by the Counsel for the Appellant/ OP1 Mr. Vipin Singhania and Counsel for the respondent No. 1/complainant Ms. Suman Kapoor. The Apex Court in the case of V. N. Shrikhande (Dr.) (supra) laid-down that the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date of accrual of cause of action. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed. In case the complainant is able to show that there was sufficient cause for not filing the complaint within the stipulated period, delay has to be condoned. Apex Court also noticed the case of SBI v. B.S. Agriculture Industries, II (2009) CPJ 29 (SC)=II (2009) SLT 793=(2009) 5 SCC 121.

11. It was on 27.4.1999 that the Excise Department, Government of Haryana, Gurgaon rejected the claim as time barred. Complaint in the learned District Forum was filed on 12.1.2000. Complaint before the learned District Forum was, therefore, clearly within the period of limitation of two years. Recently in the case of National Insurance Company Ltd. v. Hindustan Safety Glass Works Ltd. & Another, II (2017) CPJ 1 (SC)=III (2017) SLT 518, in Civil Appeal No. 3883/2007 decided on 7.4.2017, the Apex Court made the following observations:

* That when a claim is made by the insured that itself is actionable. There is no question of requiring the insured to approach a Court of law for adjudication of the claim. This would amount to the encouraging avoidable litigation which certainly cannot be the intention of the insurance policies and is in any case not in public interest.

* That in the event that caused the loss or damage to the insured occurred on 6th August, 1992 when due to heavy incessant rain in Calcutta, the raw materials, stocks and goods, furniture etc. of the insured were damaged. On the very next day, the insured lodged a claim with National Insurance. In response, National Insurance first appointed N.T. Kothari & Co. to assess the loss suffered by the insured and a report was given by this surveyor after more than one year. Thereafter, for reasons that are not at all clear, National Insurance appointed a second surveyor which also took about one year to submit its report and eventually gave an addendum to that report thereby crossing one year in completion of its report along with the addendum. In other words, National Insurance itself took more than two years in surveying or causing a survey of the loss or damage suffered by the insured. Surely, this entire delay is attributable to National Insurance and cannot prejudice the claim of the insured, more particularly when the insured had lodged a claim well within time.

* That in a dispute concerning a consumer, it is necessary for the Courts to take a pragmatic view of the right of the consumer principally since it is the consumer who is placed at a disadvantage vis-a-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficient legislation in the form of the Consumer Protection Act was enacted by Parliament.

* That the provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim.”

12. Now a question arises as to whom the delay in filing the claim in the present case is attributable. As per discussion above, it is Appellant/OP1 alone who did not present the papers to MUL Gurgaon for onward transmission to Excise Department. Learned District Forum rightly held the Appellant/OP1 guility of ‘deficiency in service’.

13. In view of the law laid down by the Supreme Court and the fact that the complaint is within the period of limitation, I am of the considered opinion that the plea raised by the Appellant/OP1 is of no avail.

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r />14. Coming to the objection of the Appellant/OP1 that the respondent No. 1/ complainant’s nursing home is not a registered one, Government of NCT of Delhi vide its letter dated 17.2.2011 stated that the nursing home was duly registered with the Directorate. Relevant para of its letter reads as under: “Capital Nursing Home, C-3/7A, Rana Partap Bagh, Delhi-110007 was registered with this Directorate on 29.5.1968. No cancellation order in r/o. Registration of the said hospital has ever been issued by this office.” Perusal of the letter dated 17.4.2011 shows that the nursing home in question continued to remain registered w.e.f. 29.5.1968. In the circumstances the plea raised by OP1 does not hold water. Moreover claim of the respondent No. 1/complainant has not been rejected by the Excise Department on the grounds of non-registration of the nursing home. As discussed above claim was rejected for the only reason that the same was barred by time. 15. In view of the reasons given above, I am of the considered opinion that the appeal is devoid of merits. The same is hence dismissed. File be consigned to records. Appeal dismissed.
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