BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD

F.A.No.844/2013 against C.C.No.228/2013, Dist. Forum-II,Hyderabad.

Between:

G.S.R.Deekshitulu,
S/o.G.L.N.Sastry,
Aged about 58 years , Occ:Advocate,
R/o.H.No.1-1-530,B-7,5th Floor,
Indian Bank Flats, Golconda Cross Roads,
Hyderabad – 500 080. … Appellant/
   Complainant
       And

CDR Good  Health Club,
A Division of
Emed.Com Technologies  Ltd.,
Regd. Office 3-6-287,Hyderguda,
Hyderabad – 500 029,
Rep. by its Managing Director.  …   Respondent/
      Opp.party

Counsel for the Appellant          :   M/s. J.Srinivas Reddy.

Counsel for the respondent       :    Notice served.

QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HON’BLE MEMBER ,

   SRI T.ASHOK KUMAR, HON’BLE MEMBER,
AND
                     SRI S.BHUJANGA  RAO, HON’BLE MEMBER.
            WEDNESDAY, THE TWENTY SECOND DAY OF JANUARY,
                           TWO THOUSAND  FOURTEEN.
Oral Order: (Per  Sri S.Bhujanga Rao, Hon’ble Member)
      ****
The unsuccessful complainant filed this  appeal   against the order dt.14.08.2013 of the  District Consumer Forum-II, Hyderabad  made in C.C.No.228/2013.
The appellant is  the complainant  and the respondent herein is the  opp.party   in C.C.No.228/2013.  For the sake of convenience, the parties are described as arrayed in the complaint.
The brief facts of the case    as set out in the complaint are as  follows:
CDR Industries Ltd. having its   registered office at  Hyderabad  was    running a multi specialty  hospital known as CDR  Hospital and   the said hospital offered   medical services i.e. consultancy services, laboratory services and other tests  and  operations etc. to the general public, at a discount prices to the holders  of Sanjeevini  Arogya Pathakam. The complainant joined the said scheme  vide Membership Card no.SAP-III 03/99 301670 under which, concession of  Rs.20,000/-  towards hospitalisation, Rs.10,000/- towards out  patient diagnosis  and Rs.2,500/- towards out  patient consultation per year and the validity period  was until 20th  March, 2004.   The said facility was extended   to the complainant and also his  family members i.e. his wife and his only son. 
The  CDR Industries  after  accepting membership fee amount of Rs.9,000/-   under Membership fee receipt no.MB SAP 142  dt. 27.03.1999,   issued  refundable membership  fee receipt to the complainant.  In the said  receipt it was specifically stated   that the   health plan  was Sanjeevani Arogya Pathakam  and the period  is for 5 years i.e. till 25.03.2004    for an amount of Rs.9,000/-.     Under the said receipt,  opposite party is obliged to refund the membership fee of Rs.9,000/-  along with stipulated interest after 30 days  from the date of completion of 5 years period.   Subsequently, on 22.03.2004 the opp.party    received the original refundable membership fee receipt from the complainant vide receipt bearing no. MR SASP 142  maturing on 25.03.2004  for  Rs.9,000/-   for the purpose of refunding the deposit amount  to the complainant. Even though, the complainant went  around the opp.party several times, requesting them to refund the said deposit amount with stipulated  interest thereon, the opposite party  did not make any payment.  Hence, the   complaint seeking direction to the opposite party  to refund Rs.9,000/- along with interest @ 18% p.a.  from 22.03.2004  upto 01.04.2013 and thereafter 12% p.a.  from 01.04.2013  till the date of realisation to the complainant towards  the  refundable membership fee receipt No.SAP III/03/99  301670  dated 27.03.1999, to pay compensation of Rs.10,000/- towards mental agony  and to pay costs of Rs.5,000/-.     
Though   the opposite party was served with notice, it did not choose  to contest the case and was  called absent.    The complainant filed evidence   affidavit and   got marked Exs.A1 to A3.   The District Forum found that the complaint is barred by limitation and dismissed the complaint  as barred by limitation. 
Aggrieved by the said order, the complainant  preferred this appeal  stating that the  District  Forum ought not to have dismissed the complaint  by referring to Sec.24-A  of Consumer Protection Act,  without  deciding the entire  material on record,  regarding the claim made by the complainant against opp.party.  Even  though,  no decisions are relied upon by the appellant/complainant or by the  respondent/opp.party, the Dist. Forum relied upon the decisions  and  dismissed the complaint, without  giving  any opportunity  to explain about the relevancy of the said  decisions, to the facts of the present case,  which is clearly contrary to law.      The Dist. Forum ought  to have considered  the fact that the  appellant/complainant deposited an amount of Rs.9000/-  on 27.3.1999 and maturity date  is 25.3.2004  and originals were returned to the  respondent/opp.party  even on 22.3.2004,  for the purpose of refund. The respondent/opp.party   falsely promised  that deposit will  be refunded to the appellant/complainant  as and when the appellant/complainant  demanded.    But  from time to time, the respondent/opp.party postponed  refund of deposit amount for a period of 9 years,  every time,  when the appellant/complainant  demanded for refund  and ultimately  the appellant having  no other option filed complaint  in the month of April 2013.   Hence, cause of action  arises   every time as and when  the appellant/complainant demanded   for refund and the  respondent/opp.party  postponed  the  refund from time to time. Ultimately the   appellant/complainant filed the complaint  in the month of March,2013  and hence the District Forum ought  to have considered that it is a continuous cause of action  and the complaint is within the   period of limitation.
  Heard  the counsel for the appellant and perused the  entire material placed on record.
Now the  point for  consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The learned counsel for the appellant/complainant  submitted that   the appellant/complainant deposited an amount of Rs.9,000/- on 27.03.1999  for a period of five years and the maturity date of refundable deposit is 25.03.2004  and  all the originals were already returned  by the appellant/complainant  to the respondent/opp.party  even on 22.3.2004  for the purpose of refund, but the respondent/opp.party was   falsely  promising    that deposit would be refunded to the appellant/complainant, as and when the appellant/complainant  demanded   and from time to time, the respondent/opp.party  postponed the refund of the deposit amount for  a period of nine years and  ultimately the appellant/complainant,  having no alternative,  filed the complaint before the District Forum in the month April, 2013.  
The  learned counsel further submitted that the refund is to be considered as a continuous cause of action  and the cause of action arises every time  as and when the appellant/complainant demanded for refund and the respondent/opp.party  postponed the refund from time to time and ultimately during the month of March, 2013  when the  appellant  last time demanded for refund  and on failure of the respondent to refund, the complaint was filed, as such, the District Forum ought to have considered that it is a continuous cause of action   and that the complaint is within  the  period of limitation.      The District Forum dismissed the complaint  only on the ground that the complaint is barred by limitation and without deciding the entire material on record regarding the complaint made by the complainant  against the opp.party. Therefore, the impugned order of the District Forum is liable to be set aside.
  In order to    appreciate    the submissions of the learned counsel for the appellant/complainant,  it is necessary to extract Sec.24-A  of the Consumer Protection Act, 1986 which reads as under:
“  24-A.Limitation period:-(1) The District Forum , the State Commission or the National Commission shall not admit  a complaint  unless it is filed within two years from the date on which the cause of action  has arisen.
(2) Notwithstanding anything contained in sub-section (1)  a complaint may be  entertained after the period specified in sub-section (1) if the complainant  satisfies the District Forum, the State Commission,  as the case may be, that he had sufficient cause for not filing the compliant  within such period.
Provided that no such complaint shall be entertained unless  the National Commission or the District Forum, as the case may be, records its  reasons for condoning such delay.“

The above provision of Sec.24(A) of the Consumer Protection Act,  made it clear that a complaint under Consumer Protection Act is to be filed, within two years since accrual of cause of action.
The case of the appellant/complainant  as per the complaint  is  that the complainant   joined as a member  in “Sanjeevani Arogya Pathakam” floated by  the opposite party,  by paying fees of Rs.9,000/-  under membership fee receipt no.MB SAP 142 dt.27.03.1999,  which is a refundable membership fee receipt, for a period of five years, which expired  on 25.03.2004, i.e.  the maturity date.   The complainant entrusted the original documents to the opposite party, for refund of the amount,  under the original of Ex.A1 on 22.03.2004.          Therefore,  the cause of action in this case arose by the date of maturity i.e. 25.03.2004.   But the complainant filed this complaint on 30.03.2013 after nine years, much  beyond two years.     Except the submission of the learned counsel for the  appellant/complainant   that  the subsequent demands made by the complainant to refund the amount  and postponing of the refund of the amount by the opposite party,  till the date of filing of the complaint  constitute continuing  cause of action, the appellant/complainant did not  draw our attention to any provision of law or ruling of either National Commission or  any High Court  or Supreme Court of India.  In the absence of any legal position, we are not inclined to accept the above said submission of the learned counsel for the appellant/complainant.  The District Forum  is right  in dismissing the complaint without considering the case of the complainant on merits, when it came to the conclusion that the complaint is barred by limitation by virtue of Sec.24-A of  the Consumer Protection Act.
For the aforesaid facts and circumstances, we do not find any grounds, much less valid grounds to interfere with the impugned order of the District Forum. Hence the appeal fails.
In the result, the appeal is dismissed, confirming the order of the District Forum.  In view of the facts and circumstances of the case  there shall be no order as to costs.     
MEMBER

MEMBER

MEMBER
Pm* Dt. 22.01.2013