RAJINDER KUMAR vs DADA MOTORS LIMITED

THIS complaint was initially instituted in the Punjab State Consumer Disputes Redressal Commission, Chandigarh and subsequently it was transferred to this Commission by the Hon''ble National Commission.

BRIEFLY stated the facts are that the complainant purchased a new bus LP 1510/42 of Tata Company make from M/s. Dada Motors Ltd., Ludhiana on 5.6.1999 against payment of Rs. 4,85,865 less Rs. 2000 as discount. The said bus was purchased by him to earn his livelihood. It was next averred that body of the bus was got manufactured from Govind Body Builders, Bhadaur, District Sangrur at a cost of Rs. 2.00 lacs and thereafter he obtained registration certificate of the bus on 2.7.1999 and route permit from the Regional Transport Office, Hamirpur on 10.7.1999. Registration number of the bus is HP-22-8540.

It was further averred that on plying the bus, it was found that the average of the bus was 2 kilometre per litre of diesel as against 3 kilometres per litre in hilly area and he conveyed this fact to respondent No. 1 and also took the bus to M/s. Malhotra Industries Gutkar, Mandi (HP), which was an authorized service station and charged Rs. 3,488 although claim was within warranty and further assured that after plying for about 3000 kms, there would be no complaint but the problem continued and he brought this fact to the notice of M/s. Sikand and Company, Barmana (Bilaspur) (HP) who referred him to Swami Motors, Barmana, who were authorized dealers of Mico and removed certain snags and assured that there will be no problem afterwards but diesel consumption and oil consumption remained on the higher side. Ultimately, he took the bus to respondent No. 1 on 30.7.1999 and it charged Rs. 1,732 as labour charges in spite of the fact that the warranty period has not expired but the problem was not solved.

ALLEGING deficiency in service, the complaint was filed claiming Rs. 19,60,000 as cost of chassis along with body of the bus, damages and interest as mentioned in para 18 of the complaint. Respondent No. 1 contested the complaint and filed written reply. It stated that no part of cause of action had arisen within the jurisdiction of Consumer Disputes Redressal Forum, Una Camp at Hamirpur as the complainant had purchased the bus from Dada Motors, Ludhiana and if there was any dispute regarding the vehicle, then the cause of action had arisen at Ludhiana and not within the jurisdiction of District Forum, Una camp at Hamirpur. On merits, it denied the allegations and stated that the complaint had been filed only to get money under the garb of present complaint, although vehicle was running smoothly and perfectly as per his satisfaction. It further stated that all the defects were rectified with the consent of complainant upto his full satisfaction. It denied that there was more consumption of diesel and mobile oil than required. It further stated that the complainant came to the workshop of respondent No. 1 on 14.9.99 and the complainant carried out road test of the vehicle and after thorough checking and entire satisfaction, took delivery of the vehicle and gave satisfactory note and affidavit by stating that the vehicle had been set right in all respects. It, therefore, prayed that the complaint should be dismissed.

PARTIES adduced their evidence by way of affidavits. The District Consumer Forum, Kangra at Dharamshala vide order dated 31.5.2001 accepted the complaint and directed respondent No. 1 to replace the vehicle with new chassis along with body within a period of 30 days, after the receipt of order, falling which respondent shall pay Rs. 2,500 per day to the complainant as income of the bus till the vehicle is replaced. Respondent No. 1 was also burdened with costs of Rs. 10,000 which were to be paid within 30 days, failing which it will pay interest @ 18% p.a. from the date of decision till the amount of costs is paid. Aggrieved by the said order, M/s. Dada Motors Limited filed appeal with the H.P. State Consumer Commission, Shimla, which accepted the appeal vide order dated 27.8.2002 and held that there was lack of pecuniary as well as territorial jurisdiction in filing the complaint and as such set aside the order of District Consumer Forum and the complaint was dismissed. However, liberty was reserved to the complainant to approach the appropriate forum/commission for redressal of his grievance and the time taken in pursuing the complaint in the wrong Forum and including the time of the pendency of the appeal was held not to act as a bar of limitation for this purpose. Accordingly complaint was filed in the Punjab State Commission on 9.10.2002 which was subsequently transferred to this Commission.

WE have heard Counsel for complainant Mr. Gurdev Singh, Counsel for respondent No. 1 Sh. Rajesh Sood. Respondent Nos. 2 and 3 were not parties to the complaint and could not have been impleaded in the appeal for the first time. No reason has been mentioned as to why they were impleaded as parties. However, Mr. Rajesh Sood appeared on behalf of all respondents.

IT is an admitted fact that the complainant had purchased new bus LP 1510/42 of Tata company make from M/s. Dada Motors Ltd. on 5.6.1999 against full and final payment of Rs. 4,85,865 less Rs. 2,000 as discount and thereafter, got body of the bus manufactured from Govind Body Builders, Bhadaur, District Sangrur after spending Rs. 2.00 lacs. Thus, no part of cause of action had arisen within the jurisdiction of District Consumer Forum, Una Camp, Hamirpur (HP) where the complaint was initially filed. IT is not the case of complainant that respondent No. 1 was actually and voluntarily carrying on business or had a branch office or personally worked for gain within the territorial jurisdiction of the District Consumer Forum, Una or District Forum, Kangra at Dharamshala where the complaint was subsequently transferred and it accepted the complaint vide order dated 31.5.2001. IT has mentioned very flimsy ground to hold that it had got jurisdiction to try the complaint by stating that the agreement and all kinds of settlements had been made in Himachal Pradesh, so, it had got jurisdiction to try the complaint. IT is not the case of complainant that any agreement or settlement had taken place in Himachal Pradesh, within the jurisdiction of District Forum, Una or Hamirpur. IT is a new ground which the District Consumer Forum, Kangra at Dharamshala had made in order to vest itself with the jurisdiction. IT is further mentioned in the order that the complainant had taken the bus again and again to the workshop of respondent at Ludhiana but the defects in the vehicle could not be removed, therefore, vehicle was purchased at Ludhiana and it was taken for repair at Ludhiana and payment for purchase of vehicle was made at Ludhiana and there is no evidence that any kind of settlement or agreement had taken place at Una or within the State of Himachal Pradesh, so, no cause of action had arisen within the State of Himachal Pradesh. District Consumer Forum, Kangra at Dharamshala had wrongly decided the case that it had got jurisdiction to try the complaint. The Himachal Pradesh State Commission even had mentioned at page 5 of the judgment that the president of the District Consumer Redressal Forum, Una happended to be representing the complainant in this case as his Counsel at an earlier stage, as such the complaint was subsequently transferred to District Forum, Kangra at Dharamshala for disposal, which shows that there was some hanky panky. In our opinion, plying of the bus in the jurisdiction of District Consumer Forum, does not vest jurisdiction to file complaint at Una. If the complainant or his Counsel had seen Section 15 of the Consumer Protection Act, then he would immediately came to know that no part of cause of action had arisen within the territorial jurisdiction of the District Forum, Una or any other District Forum in Himachal Pradesh. Respondents had no branch office in Himachal Pradesh and did not carry any business in that State and, thus, the complaint was filed not in a bona fide manner but intentionally to harass the respondents.

Section 14 of the law of Limitation Act states about exclusion of time spent in proceedings pursued bona fide in a Court without jurisdiction. According to this section, if a matter in issue is prosecuted in good faith in a Court which ''form defect of jurisdiction or other cause of a like nature'' is unable to entertain it, then in computing the period of limitation, the time spent in prosecuting those proceedings could be excluded. But there is lack of good faith or bona fide in the present case.

IN our opinion, HP State Commission was not competent to exclude the time which the complainant had spent in the wrong Forum as well as the time during which complaint remained pending in appeal before the State Commission and to state further that it will not act as a bar of limitation because the Himachal Pradesh State Commission could give such a direction to its Forum and not to State Commission of another State. The Authority Manoj Nair v. Jaipur International Institute of Technology and Others, III (2005) CPJ 782=2005 (3) CON.LT 568, cited by the learned Counsel for complainant is not applicable to the facts of the present case as it relates to amendment in the statute which came into force w.e.f. 15.3.2003 and the main point was whether amendment was applicable to the pending complaints or not and it was held that amendment was applicable to the pending complaints.

IN Zafar Khan and Others v. Board of Revenue, UP and Others, AIR 1985 Supreme Court 39, the Hon''ble Apex Court has observed that in order to attract application of Section 14, the parties seeking its benefit must satisfy the Court that (i) the party as the plaintiff was prosecuting another civil proceeding with due diligence, (ii) that the earlier proceeding and that later proceeding relate to the same matter in issue, and (iii) the former proceeding was being prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. However, in the present case, there is no evidence that the complainant was prosecuting the complaint in the Fora of Himachal Pradesh with due diligence or in good faith but the same was being prosecuted in the State of Himachal Pradesh just to harass the respondents in a mala fide manner. There is another aspect of the matter. The order was made by HP State Commission on 27.8.2002 but the present complaint was filed in the Punjab State Commission on 9.10.2002. The copy of the judgment was delivered to the complainant on 4.9.2002. It is not explained as to why the complainant took one month and five days to file complaint at Chandigarh after getting certified copy. There is no explanation of delay of this period. It is settled law that each day''s delay was to be explained. In view of the discussion above, the period during which the complainant had been prosecuting the complaint in the State of Himachal Pradesh or the period of one month and five days from the date of receiving copy of the judgment of HP State Commission, cannot be excluded. Therefore, the complaint is hopelessly time-barred as it should have been filed maximum up to 5.6.2001. Hence, the same is dismissed.

COPIES of this order be communicated to the parties, free of charge. Complaint dismissed.