PARVATHY PADMANABHAN vs V.G.PANNEERDAS AND CO.

THIS appeal is directed against the order dated 12th day of August, 1997 in O.P. No. 458/1996 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the complainant while the respondents are the opposite parties. Necessary and requisite facts as culled out from the materials placed on record may in brevity be stated in order to understand the crux of the issue arising for consideration in this action.

The complainant, it appears purchased a washing machine from one M/s. V.G. Panneerdas & Co., 18, Jeenis Road, Saidapet, Madras-600 015 (first opposite party) on 25.2.1991 for a sum of Rs. 15,540/-. The delivery of the said machine was effected on 9.3.1991. The first opposite party, it is said, is a dealer of M/s. Sumeet Machines Limited, 601-C, Poonam Chambers, Shivsagar Estate, Dr. Annie Besant Road, Bombay-18 (second opposite party), the manufacturer. M/s. Sekar and Sagar, No. 1, Whites Road, Tansi Buildings, Royapettah, Madras-14 (third opposite party) is the service agent.

THE washing machine so purchased by the complainant from the first opposite party dealer, it is said, got rusted in the bottom portion within six months from the date of purchase. Such a defect was intimated to the opposite parties 1 and 2. THEreafter, the complainant was advised by them to deliver the machine to the third opposite party for effecting the repairs. It was delivered to the third opposite party for effecting repairs under Job Card No. 1816 during the month of September, 1991. THE washing machine so handed over to the third opposite party was not at all returned to the complainant after effecting the necessary repairs. The second opposite party manufacturer by their letter dated 12.3.1993 intimated to the complainant that the complaint she had made with regard to the defective nature of the washing machine was still pending with them. By their said letter, the second opposite party further intimated to the complainant that they were arranging to replace the housing for the washing machine before 31.3.1993. They also concluded the letter by assuming that their services would always be available to the complainant at all times. Though such an assurance was given by the second opposite party manufacturer, there was no improvement in the sense of the complainant getting the necessary relief from them. Consequently the complainant, it appears, approached the Tambaram Consumer Protection Society, which in turn, wrote a letter dated 4.8.1994 to the second opposite party, manufacturer. The contents of the said letter read as below : "I am herewith sending you a xerox copy of the letter from Mrs. Parvathi Padmanabhan. Her investment is huge and the response to her representation from your side is rather cold. It is hard to believe that a Company of your standing and reputation will treat the customer this way. I will be happy if you can settle the matter amicably with her within a week''s time and report to us."

THE second opposite party manufacturer, in turn, sent a reply dated 9.4.1995 to the Tambaram Consumer Protection Society and the contents of the letter read as under : "We refer to your letter dated 9th April along with a copy of letter dated 15th March written by Mrs. Parvathi Padmanabhan addressed to you. We wish to assure you that we, too, are concerned about the washing machine of Mrs. Padmanabhan. By a copy of this letter, we are advising our Madras branch to update us regarding the position of the machine and also the reasons for not returning the machine to Mrs. Padmanabhan. We indeed regret the inconvenience caused to Mrs. Padmanabhan and assure you that, as per the traditions of Sumeet Machines Ltd., we will ensure that she, like others, is a happy customer. For this purpose, even if replacement by a new machine is warranted since her own machine is not traceable, we shall do the same. However, we request you to give us some time to gather the information immediately, after which we will revert."

Even subsequent to such a letter from the second opposite party manufacturer, the complainant was not at all given relief in the sense of returning the washing machine after effecting repairs or effecting delivery of a washing machine free from defects. Consequently the complainant caused a legal notice dated 30.10.1995 issued to the opposite parties 1 to 3. To such a notice, it appears, the second opposite party manufacturer alone sent a letter dated 13.11.1995. In the said reply, the second opposite party manufacturer had stated as below in crystal clear terms : "In the above circumstances my client hereby request you Sir, to advise your client to give consent for the replacement of the machine. Even after this if your client approach the Court of law, my client is not responsible for that and my client will meet that at your client''s cost and risk."

The complainant, it appears, did not at all give any consent to the second opposite party manufacturer, for the replacement of the machine. She, however, chose to knock at the doors of the Forum below for the reliefs as prayed for in the complaint.

THE first and the second opposite parties filed separate versions. One of the contentions among others snatched by them was that the complaint as filed is barred by time. THEy would also take a position that there was no deficiency in service on their part.

THE third opposite party, however, remained ex-parte. During the course of enquiry, the complainant remained absent. She has also filed any proof affidavit. She was rest content in filing certain documents relatable to this case along with the complaint.

The Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the opposite parties inasmuch as no evidence had been placed on record by the complainant to prove such a deficiency. The further finding that was recorded by the Forum below was that the complaint as filed is barred by limitation.

AGGRIEVED by the order as above, the complainant resorted to the present action by engaging a Counsel of her choice namely, learned Counsel Mr. S. Natana Rajan. On service of process, the first respondent/first opposite party alone entered appearance through a Counsel of their choice namely, learned Counsel Mr. R. Edwin Solomon. The respondents-2 and 3/opposite parties 1 and 2 did not choose to enter appearance through a Counsel of their choice and they were virtually remained absent.

WHEN the matter came up for hearing before us today, even learned Counsel Mr. R. Edwin Solomon representing the first respondent/first opposite party is called absent and no representation is made on his behalf. The fact that there was no representation on behalf of the first respondent/first opposite party, does not mean that we cannot dispose of the appeal on merits, of course, after hearing learned Counsel Mr. S. Natana Rajan appearing for the appellant/complainant and on perusal of the materials placed on record and that is exactly what we have done in this case. Even at the outset we may point out that the Forum below did not at all sift, scan or analyze the materials placed on record in the proper perspective and that perhaps was the reason for the Forum below to have rendered an erroneous order impugned in this action. No doubt true it is that the complaint was not bodily present during the course of enquiry. It is also true that the complainant did not file any proof affidavit. What is available on record in relation to the case she has projected before the Forum below is the averments of the complaint and the documents she has filed along with it. The first and second opposite parties simply filed separate versions and they did not choose to place any documents before the Forum below. They did not also file any proof affidavit. In such a situation, it goes without saying that the Forum below was placed in a predicament situation of consideration of a version and a counter version filed by the parties. It is the consistent case of the complainant that she purchased a washing machine for valid consideration from the first opposite party dealer, manufactured by the second opposite party. It is a further case that the machine so purchased was defective and not functioning properly within a period of six months from the date of its purchase. It is only, according to the complainant, on the advice of the opposite parties 1 and 2; the defective machine had been handed over to the third opposite party, Service Agent. During the month of September, 1991 and the machine so taken by the third opposite party was not at all returned to the complainant after effecting the necessary and requisite repairs. This sort of a case as projected by the complainant is not at all denied by the opposite parties 1 and 2. But what they would say is that there is no deficiency in service on their part. The second opposite party manufacturer even in his reply notice dated 13.11.1995, he had stated that he even was prepared to replace the washing machine by a new machine in case the complainant gave a consent letter for the replacement of such a machine. This apart the second opposite party manufacturer by their letter dated 19.4.1995 addressed to the Tambaram Consumer Protection Society practically admitted their liability for the replacement of the defective washing machine by a new machine. The factum of such an admission itself sufficient to come to the conclusion that there was deficiency in service on the part of the opposite parties 1 and 2. As such, for the Forum below to say that there was no sufficiency of evidence relating to deficiency in service on the part of the opposite parties, we rather feel, cannot be acceded to on the facts and in the circumstances of the case

TO the view of the Forum below that the complaint as filed is barred by limitation, we are unable to affix our seal of approval on the facts and in the circumstances of the case. The reasons are rather obvious and manifold. No doubt true it is as already indicated, the washing machine had been purchased by the complainant for a valid consideration on 25.2.1991 and the delivery of the machine had been effected to the complainant on 9.3.1991. According to the complainant, the said machine became defective within a period of six months from the date of its purchase, which event happened on 25.2.1991. This sort of a defect, the complainant would say, had been brought to the notice of the opposite parties 1 and 2. Therefore, the cause of action in such a situation must be stated to have commenced on and from 25.8.1991. No doubt true it is, the complaint had been filed on 1.3.1996. The Forum below in such a situation was observed with a view that the complaint filed is definitely barred by time under Section 24-A of the Consumer Protection Act, 1986 (for short, "the Act") inasmuch as two years period calculated from 25.8.1991 would get terminated on 25.8.1993 and the complaint having been filed on 1.3.1996 was barred by time. The view so taken by the Forum below is the consequence of misappreciation of factual and legal position.

THE Forum below committed an obvious error of law in applying the salient provisions as adumbrated under Section 24-A of the Act. Section 24-A of the Act was inserted by Consumer Protection Amendment Act, 1993 with effect from 18.6.1993. THErefore, the case on hand is not governed by the provision of Section 24-A of the Act. Previous to the insertion of Section 24-A, there was no express provision in the Act to provide for period of limitation. THErefore, the Fora constituted under the Act namely, the District Forum, State Commission and National Commission had been following the period of limitation for filing the complaint as three years from the date on which the cause of action arose as laid down in the Limitation Act, 1963. Period of three years limitation if applied to the factual matrix of the case on hand, the cause of action which commenced on 25.8.1991 must have to get terminated by the elapse of three years, which event will happen on 24.8.1994. THE second opposite party manufacturer by their letter dated 12.3.1993 as had been referred to in the submission of facts clearly admitted their liability for replacing the housing for the washing machine before 31.3.1993. Adding three years to the date of acknowledgement of liability that is to say adding three years to 12.3.1993, the period of limitation of three years will get terminated by 11.3.1996. THE complaint had been filed on 1.3.1996 as evidenced by the seal affixed with the docket-sheet of the complaint. Since the Limitation Act, 1963 is made applicable, it goes without saying that the provisions as adumbrated under Section 18 thereof will also be applicable. Sub-section (1) of Section 18 thereof prescribes that where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.

The acknowledgement in the instant case had been signed by the second opposite party on 12.3.1993. We have also stated that the period of three years limitation would get terminated on 11.3.1996, which is only subsequent to the date of filing of the complaint which event happened on 1.3.1996. The complaint as such cannot at all be stated to have been filed beyond the period of limitation.

FOR the reasons as above, the appeal deserves to be allowed by setting aside the order of the FORum below. The complainant in the relief column prayed for the repayment of the purchase price of the machine namely, Rs. 15,540/- and also prayed for payment of a sum of Rs. 15,000/- by way of damages for hardship and mental agony suffered by the complainant as a consequent of non-delivery of the rectified machine even after a period of 4 years, besides payment of costs in an appropriate sum. Under Section 14 of the Act, it is permissible to direct the opposite parties either to replace the goods with new goods of similar description which shall be free from any defect; or to return to the complainant the price, as the case may be, the charges paid by the complainant. The complainant has specifically prayed for the return of the price paid by her and not the replacement of the washing machine by a new one free from defect. The reason for such a course adopted by the complainant, rather appears to be very reasonable on the facts and in the circumstances of the case. She had already burnt her fingers many a time with the opposite parties in the sense of the promise made by the opposite parties not having been kept in supplying the replacement of a machine either rectifying the defects of the old washing machine and delivering it or giving a new machine free from defect without any conditions. In such a situation, we also feel, the best course to be adopted is to issue a direction to the opposite parties 1 to 3 to return to the complainant the price of the washing machine namely, Rs. 15,540/- and we accor-dingly do so. The said amount is to be paid by the opposite parties 1 to 3 will carry interest at the rate of 12% per annum from 25.2.1991, the date on which the price had been paid by the complainant to the opposite parties.

IN view of a direction for the payment of interest on the price of the washing machine ever since the date of its purchase, we are not ordering payment of any compensation for the mental agony and anguish suffered by the complainant. We, however, make it crystal clear that the complainant would be at liberty to invoke the provision of Section 27 of the Act in case the opposite parties are unable to comply with the order as above within a month from the date of receipt of our order. We, however, make no order as to costs on the facts and in the circumstances of the case. The appeal is thus disposed of. Appeal disposed of.