PROVINCIAL AUTOMOBILES CO. LTD. vs RANJAN, S/O RAMPRAKASH PATHAK

THIS order will dispose of F.A. No. 303/93 and F.A. No. 304/93 both of 1993 as both have been filed by the aggrieved parties against the order dated 13th May, 1993 passed by the State Consumer Disputes Redressal Commission, Maharashtra at Bombay. By the impugned order, the State Commission allowed the complaint filed by the present respondent No. 1, Ranan Pathak and directed the Appellants of the present two appeals to replace the defective jeep lying with M/s. Provincial Automobiles Company Ltd. (who is Appellant in Appeal No. 303/93) with a new vehicle of the same description free from defects to the complainant. The replacement was ordered to be made within 30 days from the date of the order failing which the complainant was held entitled to recover from the opposite parties jointly and severally the amount of Rs. 1,11,887/- with interest at the rate of 18% from 14th November, 1986 till repayment. The opposite parties were also directed to pay jointly and severally a sum of Rs. 10,000/- as compensation the complainant. Here it may be mentioned that the opposite parties are Appellants herein.

IT is not necessary to go in detail into the facts of the case for the purpose of the disposal of these appeals as we are of opinion that the complaint filed by the complainant was hopelessly time barred. The complainant purchased a Canvas Jeep on 14th November, 1986 manufactured by M/s. Mahendra and Mahendra Ltd. (Appellant in Appeal No. 304/93) through M/s. Provincial Automobiles Co. Pvt. Ltd. who is the dealer for a consideration of Rs. 1,11,887/-. According to the complainant the Jeep was having manufacturing defects. It was sent to the workshop of the dealer for repairs but the same were not properly carried out. In April, 1987 the jeep was left at the workshop of the dealer and it is still lying there. As the opposite parties did not replace the defective vehicle inspite of repeated requests of the complainant, he did not take delivery of the Jeep. The complainant, therefore, prayed that the opposite parties be directed to replace the jeep and pay jointly and severally Rs. 95,854/- as compensation. The details of the amount claimed as compensation are given in paragraph No. 7 of the complaint.

THE complaint was contested by both the opposite parties by filing separate counters. Both the opposite parties pleaded that the complainant was duly informed that the vehicle was ready for delivery after rectification of the defects but despite that delivery was not taken. It was further pleaded by them that the complaint was barred by time as it was filed more than 3 years after the alleged defects were noticed in the vehicle. We may mention here that the complaint was filed in August, 1992.

WE have heard the parties and gone through the records of the case. As noticed above, the Jeep has been left by the complainant with the dealer in April, 1987 and since then it is lying there. Admittedly the complaint was filed more than 5 years after the vehicle was left with the dealer. The plea of limitation was raised by both the opposite parties before the State Commission and it was rejected. The State Commission observed as follows : "In order to examine the point of limitation, it is to been seen that the complainant had filed the Special Civil Suit No. 433/87 in the year 1987; and vide application, dated 27.7.92, sought the leave of the Court to approach the State Commission for filing the complaint. The Civil Court, by an order, dated 23rd July, 1992, allowed the withdrawal of Suit. It is important to note from the Document No. 12, the order of the Civil Court, that the learned Advocate for the defendant (the present opposite parties No. 2) fairly conceded the permission for withdrawal of the suit with a leave for approaching the other Courts. Immediately, thereafter, the complainant filed his complaint within a month before this Commission. In our view, therefore, the complaint of the complainant is not ''barred by limitation'', on the basis of the facts mentioned above. The time lost by the complainant in pursuing the remedy in the Civil Court has been satisfactorily explained. On this ground also, the complaint is perfectly maintainable, as within limitation".

We are of opinion that there is manifest inaccuracy in the above observation of the State Commission. The opposite party No. 2''s Counsel in the suit did not concede before the Civil Court that permission be granted to the complainant to withdraw the suit with leave to approach other Court. The order passed by the Civil Court which is at page 107 of Appeal No. 303 runs as follows: "Heard Advocate Athar for plaintiff and Advocate Thakur for the defendants. Plaintiff is seeking withdrawal of the suit, however, he (leave) is sought of this Court to file claim before State Consumer Forum. Learned Advocate for the defendant fairly conceded that permission for withdrawal of the suit be given instead of giving any leave for approaching to the other Courts. I find it is not necessary. In view of this submission to pass any speaking order in respect of leave sought. Accordingly plaintiff is to be allowed to withdraw the suit, nothing can be observed about the leave. Secondly, the counter claim of the defendant is to continue, plaintiff to attend it."

The order clearly shows that the Counsel for the defendants opposed the prayer of the plaintiff for the leave being granted to the then plaintiff for approaching other Courts. The Counsel only agreed to the withdrawal of the suit. The Court also remarked "nothing can be observed about the leave". Thus the plaintiff was not permitted to withdraw the suit with permission to file his claim before a Forum constituted under the Consumer Protection Act, 1986 (for short the ''Act''). We have not been able to understand how the plaintiff (now complainant) can be permitted to exclude the period spent by him before the Civil Court in pursuing his suit while computing the period of limitation for filing the complaint under the Act. It cannot be said that the Civil Court before whom the suit was pending had no territorial or pecuniary jurisdiction to decide the suit. The Court was fully competent to decide the suit filed by the Plaintiff. The Plaintiff himself withdrew the suit with the intention of filing a complaint before a Consumer Forum.

THOUGH the Limitation Act does not apply to the Complaint filed before a Forum constituted under the Consumer Protection Act, but such FORA have been applying the general principles laid down in the Limitation Act so that stale claims may not be filed before them. It is not disputed before us that the claim like the present one could have been filed under the Limitation Act within three years from the date when cause of action arose. Admittedly, the cause of action accrued to the complainant in April, 1987 when he left the Jeep for repairs with the dealer. Thus, the complaint filed in August, 1992 was hopelessly barred by time. It may be mentioned here that in 1993 the Act was amended and period of limitation of two years has since been laid down for filing complaints under the Act.

WE may notice here the case "S.L. Somani v. Chairman, Raj as than Housing Board and Anr. (Revision Petition No. 16 of 1990 decided on 4.4.90) reported in 11(1992) CPJ 441 (NC) relied upon by the learned Counsel for the complainant-respondent. She argued that in that case Suit No. 100 of 1980 was pending when the State Commission had dismissed the complaint on the ground of the pendency of the suit and this Commission remanded the case to the State Commission as while the Revision Petition was pending the complainant assured this Commission that the suit filed by him would be withdrawn. In those circumstances this Commission ordered that in the interest of justice liberty should be reserved to the said complainant to move the District Forum afresh with a fresh complaint on the same set of facts and the same cause of action seeking identical relief. That case has been relied upon to show that in that case the suit of 1980 was pending and the complainant was permitted by this Commission to file fresh complaint on the same set of facts and the same would have been definitely barred by time by the time it was filed. We do not agree with this submission. We have seen the original record of that Revision Petition. There is a typographical mistake in the reporting of that order. The suit that was withdrawn was Suit No. 100 of 1988. Thus it is possible that by the time and complaint was to be filed the cause of action might not have become time barred. The above order of this Commission does not in any way help the present complainant for making a submission that the Consumer FORA can entertain stale complaints after withdrawing a suit. Further, it is the case of the opposite parties now appellants that vide letter dated 8th May, 1987, the complainant was informed that the vehicle was ready for delivery after rectification of the defects. We fail to understand why the complainant is not prepared to take the vehicle in question after it is said to have been duly repaired. The complainant ought to have taken the delivery of the vehicle and run it and if any defect was found the complainant could have brought it to the notice of the opposite parties. This conduct of the complainant cannot be appreciated.

MR . Joseph Vellapally, Senior Advocate appearing for the Manufacturer, M /s. Mahendra and Mahendra Ltd. has given an assurance before us that the Jeep in question will be delivered in perfect running condition to the complainant. We hope that the manufacturer will fulfill this assurance while giving delivery of the vehicle to the complainant which is lying in the workshop of the dealer for the last so many years.

IN the light of the above discussions, we accept both the above appeals and set aside the impugned order of the State Commission and dismiss the complaint. In the circumstances of the case we leave the parties to bear their own costs throughout.