West Bengal

Paschim Midnapore

CC/25/2012

Sk. Mafijul Islam - Complainant(s)

Versus

Anjali Automobiles - Opp.Party(s)

27 Feb 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.25/2012                                                         Date of disposal: 27/02/2013                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

    For the Complainant/Petitioner/Plaintiff : Mr. S. Ghosh. Advocate.

    For the Defendant/O.P.S.                           : Mr. S. Dutta, Mr.S.Chakraborty & Mr.S. Guin.

                                                                            Advocate.

          

                 Sk. Mafijul Islam, S/o-Sk. Moula Box of Vill. Kalika Kundu, P.S.-Barageria, P.S.-

                 Pingla Dist-Paschim Medinipur …………………………………………Complainant.

                                                              Vs.

1. Anjali Automobiles, service through its Manager, having its office at 651/2, Saradapally, Inda, Kharagpur, Dist-Paschim Medinipur
2. New Holland Tractors India Pvt. Ltd., at Industrial Plot No.3, Udoyg Kendra, Goutam Buddha Nagar, Grater Noida, Uttat Pradesh, Pin-201306
3. Magma Finance Ltd. branch at Inda, Kharagpur, P.O.-Inda, Dist-Paschim Medinipur
4. Magma Finance, Ltd., 24, Park Street, Kolkata-700016……………………………Ops.

      Unnecessary details apart, the case made out in the complaint is that being attracted by an advertisement by the Op. no.2, the complainant contacted the Op. no.1, the dealer of the Op. no.2 who is the manufacturer of the tractor of Model no.3230. Having been satisfied about the efficiency of the said model of tractor as demonstrated by the men of the Op. no.1, the complainant booked the tractor of Model no. 3230 on 21/12/2009. Thereafter from time to time the complainant made payment. The total price of the tractor was Rs.5,19,330/- out of which the complainant made down payment of Rs.1,54,230/- and the rest amount of Rs.3,65,100/- was financed by the Op. no.3 and 4 on condition of repayment of the loan amount by 60 installments of Rs.10,490/- each. The tractor was delivered to the complainant on 01/01/2010. After purchasing the tractor the complainant noticed that the tractor failed to plough with eleven coulters when the complainant brought the matter to the Op. no.1 and then the complainant came to know although in the advertisement made by the Op. no.2 that the model no.3230 was of 45 H.P. but in fact it was of 42 H.P. for which the tractor was not functioning with eleven coulters. However after purchasing the matter with the Op. no.1 on several occasions the Op. no.1 in consultation with Op. no.2 assured that the defect in the tractor would be cured and the complainant would be delivered a tractor of

Contd…………..P/2

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45 H.P.with no extra payment. However, the Op. no.1 did not keep his promise. According to the complainant, the complainant after paying higher amount of money for the tractor of 45 H.P., got the tractor of 42 H.P. whose cost was much lower. The complainant having received no positive result within a reasonable time, sent notice through his Ld. Lawyers on 14/07/2010 to the Ops. but no effect. Therefore the complainant complained of adopting unfair trade practice by the Op. and claimed for replacement of the tractor and refused to the excess amount paid by the complainant.

      The Op. contested the case by filing separate written objections.

      The Op. no.1 in his written objection denied the allegations of the complainant but admitted that the bill and tax-invoice was prepared showing the tractor to be of 45 H.P. However, the specific contention of the Op. no.1 is that the Op. no.1 is the dealer of the Op. no.2 who is the manufacture of the tractor and provided all brochures, catalogue, specifications etc. of the product and as per direction of the Op. no.2 the Op. no.1 has been carrying out his business. So the Op. no.1 prayed for dismissal of the case.

                    The Op. no.2 in his written objection also denied the material allegations made in the petition of complaint and categorically stated that the complainant is not the consumer as per the definition of the consumer under the Consumer protection Act and that the case is barred by limitation as he took delivery of the tractor on 01/01/2010 having been satisfied about the performance demonstrated by the Op. no.1 and cultivating with the tractor since purchase but this case has been filed well after period of two years. The Op. no.2 further contended that during the time of demonstration the complainant was satisfied with the performance of the tractor and its function with II times spring loaded cultivation and only after being satisfied about the function the complainant booked the tractor and took its delivery on 01/01/2010. The Op. no.2 further contended that in the leaflets never it was mentioned that the said model no.3230 was of the power of 45 H.P. It was shown in the leaflets that the said model was of the category of 45 H.P. and there was no existence of tractors of 45 H.P. The tractor of model no.3230 which was purchased by the complainant can very well plough with II times spring loaded cultivator and the complainant was not right in saying that the tractor in question was not capable of cultivating with II times spring loaded cultivators. On this ground the Op. no.2 prayed for dismissed of this case. The Op. no.3 and 4, the financer, in their written objection contended specifically that they are a non-banking                   financier company and on being approached by the complainant for financial assistance, they granted loan to the complainant a sum of Rs.3,35,100/- which was to be repaid by the complainant in 60 consecutive monthly installments at the rate of Rs.10,490/- each commencing from 28^th February  2010 to 28^th January 2015. But the complainant has so far paid only 30 full installments and so far a sum of Rs.3,15,891/- (including delay payment charges and insurance) is due from the complainant

Contd…………..P/3

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which the complainant is bound to pay. These Ops. specifically denied of their liability regarding  the alleged defect of the tractor. So these Ops. also prayed for dismissal of this case.

        Now it is for our consideration as to whether there was any unfair trade practice on the part of Op. no.1 and 2 and whether the complainant is entitled to get the relief claimed in view of the facts and circumstances of this case.

Decisions with reasons

          This main allegation of the complainant in this case is that the complainant was given the tractor bearing model no. 3230 manufacture by the Op. no.2 describing the same to be of 45 H.P. whereas the said model was in fact was of 42 H. P. and as such the Op. no.2 being the manufacture and the Op. no.1 being the dealer, adopted unfair trade practice.

         The specific contention of the Op. no.1 and 2 was that the case is barred by limitation. They contended that after being satisfied about the performance of the tractor which was demonstrated to the complainant, the complainant purchased the tractor on 01/01/2010 and since after purchase he started ploughing work with the tractor and subsequently raised allegation of under performance of the tractor and other matters and filed this case well after two years of purchase. So the case is barred by limitation.

          During hearing, Ld. Lawyer for the Op. nos. 1 and 2 gave much stress on the point of limitation and submitted that the case is hopelessly barred by limitation U/S 24A of the Consumers Protection Act 1986 and as such the complainant is not entitled to get any relief and even the case can not be decided on merit if it is found that the case is time barred. In support of his argument Ld. Lawyer for the Op. no.2 relied upon the decision of the Hon’ble Supreme Court in the case of Hariyana Urban Development Authority Vs. B. K. Sood (IV2005) CP J.I. (S.C.), State Bank of India Vs. M/S-B.S. Agricultural Industries (AIR-2009 S.C. 2210(1)) and Kandimualld Raghuvaiah and Co.-Vs. National Insurance Co. and another (2010 AIR S.C.W.2528).

          In reply, Ld. Lawyer for the complainant submitted that the cause of action has arisen with effect from the date of notice given by complainant through Ld. Lawyer i.e. on 14/07/2010 and not from 01/01/2010. So according to the Ld. Lawyer for the complainant the case is not at all time barred.

           Since the point of limitation has been specifically agitated, we think that the said point to be decided at first before going into the other aspect of the case.

           This is an admitted position that the tractor in question was taken delivery by the complainant from the Op. no.1 after its functions and efficiency were demonstrated and the complainant was satisfied about the same. The date of delivery was on 01/01/2010. The complainant although stated of under performance of the tractor but in the petition of complainant there is no whisper as to the date on which the alleged under performance came to the notice of the

Contd…………..P/4

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complainant. In the case of Hariyana Urban Development Authority Vs.- B.K. Sood (Supra) the Hon’ble Supreme Court held that the cause of action arose when the respondent received possession of the booth. In the case of State Bank of India Vs.- M/S- B.S. Agri Cultural Industries, the Hon’ble Supreme Court held that the letter sent by the complainant to the bank and the Banks reply there to are of no help to the complainant because the bank has not by their reply acknowledged its liability. In the case at our hands, the date of purchase of the tractor was on 01/01/2010. So, the case should have been filed within two years from that date but the present case has been filed on 09/03/2012 i.e. well after the period of two years from the date of purchase. By no stretch of imagination it can be said that the cause of action arose from 14/07/2010 i.e. from the date of sending Lawyers notice by the complainant. This is more so because there was no reply to the lawyer’s notice, far to speak of acknowledging giving the defect of the tractor. In view of the facts and circumstances of the present case the complaint should have been filed the case within two years from the date of purchase. The ratio of decisions in the cases upon which the Ld. Lawyer for the Op. no.2 relied as referred to herein before is fully applicable in this case and lend support to our views as aforesaid.

           In the present case there in no prayer for condonation of delay. The case has not been filed within the period prescribed U/S-24A of the Consumer Protection Act.

           So the case appears to be dearly barred by limitation.

           In the cases of State Bank of India –Vs.- M/S. B.S. Industries and Kandimualld Raghavaiah and Co. –Vs.- national Insurance Company and another (Supra) the Hon’ble Supreme Court has clearly held that as a matter of law the Consumer Forum must deal with the complaint on merit only if the complaint has been filed within two years from the date of accrual of the cause of action. We would like to reiterate that then cause of action in this case arose on and from 01/01/2010 and this case has been filed on 09/03/2012 i.e., well after the prescribed period of 2 years. Therefore not only the case is barred by limitation there is no scope or necessity for going into the merit of this case.

          Therefore the case should fail being barred by limitation.

           Hence,

                       It is ordered,

                                             that the case been dismissed on contest but considering the circumstances without cost.

                   

Dic. & Corrected by me

              

         President                                Member              Member                                  President

                                                                                                                              District Forum

                                                                                                                          Paschim Medinipur.