PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it did not deliver the air pistol to the addressee as alleged by the Complainant.
The facts of this complaint as stated by the Complainant are that, the Complainant is the range officer of Maharashtra Rifle Association MRS shooting ranges, Worli sea face, Mumbai. Though it is not mentioned in the complaint, it appears that, one Shri. Ashok Pandit is the office bearer of the above said MRA Shooting Range. He wanted to send his air pistol to his friend Mr. Ashok Raina at his residence at Agra. Therefore, Mr. Ashok Pandit told the Complainant to send the said air pistol at the residential address of Mr. Ashok Raina at Agra.
2) Accordingly, the Complainant went to the Opposite Party Post Office at Kalbadevi on 15/04/09 and booked the Parcel No.A-6689 containing the above said 177 bore pardini Air Pistol and its accessories. It weighed 2790 and the Complainant paid Rs.116/- to the booking clerk for sending the said parcel at the address of the said Shri. Ashok Raina, at Agra.
3) On 18/04/09, the parcel reached at the residence of Shri. Ashok Raina. However, the parcel being lighter in weight he suspected that it may not contain the said pistol therefore, he refused to accept the same.
4) On 25/04/09 the parcel was returned to the Complainant. Hence, the Complainant informed the same to the Worli Police Station. Thereafter, the Complainant alongwith the officer of the Worli Police Station, went to Worli B.D.D. chawl post Office where, the parcel was opened before the officers of the Worli B.D.D. Chawl Post Office. It was found that the said air pistol was missing from the parcel. The Complainant has been in correspondence with postal department since the incident but the postal department is avoiding the liability. Therefore, the Complainant has demanded compensation of Rs.65,000/-, Rs.50,000/- for mental & physical harassment and Rs.10,000/- as a cost of this complaint.
5) The Complainant has attached the xerox copies of the following documents alongwith his complaint –
a) Letter dtd.04/04/2011 from the Complainant.
b) Letter dtd.27/09/2010 from the Complainant.
c) Letter dtd.21/12/2010 from the Complainant.
d) Letter dtd.09/06/2010 from the Complainant.
e) Letter dtd.13/06/2009 from the Opposite Party.
f) Letter dtd.29/10/2010 from Postal Service.
g) Letter dtd.03/10/ from Postal Department.
h) Inventory dtd.25/04/2009.
i) F.I.R. No.111/2009 dtd.24/05/2009.
6) The complaint was admitted and notice was served upon the Opposite Party. The Opposite Party filed its written statement, affidavit of evidence sand written argument wherein it has denied the deficiency in service and has stated the Complainant has no locus standi to file this complaint as he has not booked the parcel. The Complainant is not a owner of the air pistol which was allegedly missing form the parcel. The Complainant has stated before Worli Police Officer in his F.I.R. that on 15/04/09 he was on leave and hence, the son of Shri. Ashok Pandit Mr. Romel Pandit Aged 21 years had booked this parcel and handed over the parcel to Opposite Party for onward sending to Agra to Mr. Ashok Raina. The Complainant has filed his affidavit of evidence and written argument wherein he has reiterated the facts mentioned in his complaint.
7) We heard the Complainant in person and Ld.Advocate Shri. H.D. Rathod, for the Opposite Party. We also perused all the documents filed by both the parties and our findings are as follows.
8) From the F.I.R. No.111/09, dtd.25/04/09, recorded by Worli Police Station and filed by the Complainant it is clear that the parcel containing the air pistol was booked on 15/04/09 at Opposite Party Post Office by one Mr. Romel Pandit, age 21 years by paying Rs.116/-. The Complainant Mr. Anil Ganpat Raskar was on leave on 15/04/09. Therefore, the Complainant is not a consumer within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. The Complainant is also not a Complainant within the meaning of Sec. 2(1)d(b) of the Consumer Protection Act, 1986.
The amended provisions of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 are as under – The relevant portion is -
(d) “consumer” means any person who –
(ii) [Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose].
The definition of the term complainant is as under –
“Complainant means -
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government;
[(iv) one or more consumers, where there are numerous consumers having the same interest;]
[(v) in case of death of a consumer, his legal heir or representative,] who or which makes a complaint;
9) Therefore, in our candid view the Complainant does not have any locus standi whatsoever to file this complaint before this Forum.
10) On 25/04/09, the consumer dispute arose when the parcel was opened and it was found that the air pistol was missing from the parcel and, the Complainant knew that the Opposite Party has not performed their part by sending the parcel of its destination and there was a deficiency in service on its part. The complaint has been filed before this Forum on 28/06/2011. Therefore, the complaint was not filed within 2 years of the date on which the cause of action arose or the consumer dispute arose. On 15/07/2011 i.e. after filing the complaint the Complainant has filed an application for condoning the delay in filing the complaint. In this application the Complainant has explained the reason for delay as, there was continuous correspondence with the postal department and hence, at least the complaint was filed before this Forum. It is established principle of law that the correspondence between the parties does not extend the period of limitation. In this case the cause of action has arisen on 25/04/2009. The complaint should have been filed on or before 25/04/2011. It has been filed on 28/06/2011. There is a delay of more than two months for which no satisfactory reason was tendered by the Complainant. Hence, the complaint is also barred by limitation under Sec.24A of the Consumer Protection Act, 1986.
11) There is no document on record to show that the stolen air pistol belongs to Mr. Ashok Pandit. There is no document to show, from where he has purchased/obtained the same. The Complainant has demanded the price of the said air pistol as Rs.65,000/-. However, he has failed to produce any document to show that the cost of the air pistol was Rs.65,000/-.
12) Therefore, taking into consideration the above facts and circumstances of this case we are of the candid view that the Complainant being not a consumer and a Complainant as envisaged under the Consumer Protection Act, 1986, this Forum has no jurisdiction to entertain this complaint, as well as the complaint is barred by law of limitation under Sec.24A of the Consumer Protection Act, 1986. Hence, we pass the order as follows -
O R D E R
1. Complaint No.207/2011 is hereby dismissed as it is not maintainable as well as it is barred by law of limitation under Section 24A of the Consumer Protection Act, 1986.
2. Certified copies of this order be furnished to the parties.
