Haryana

Panchkula

CC/97/2016

B.D KALIA. - Complainant(s)

Versus

DR.REETU CHAUDHARY. - Opp.Party(s)

SONIA SAINI

11 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                  

Consumer Complaint No	:	97 of 2016
Date of Institution	:	28.04.2016
Date of Decision	:	11.07.2016

                                                                                          

 

Sh.B.D.Kalia, aged 75 years, R/o House No.419, Sector-12, Panchkula (Haryana).

                                                                                          ….Complainant

Versus

 

Dr.Reetu Chaudhary, Hearing & Speech Clinic, SCO No.98, G.F.Swastik Vihar, Mansa Devi Complex, Panchkula.

 

                                                                         ….Opposite Party

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri, Member.

                            

For the Parties:     Ms.Sonia Saini, Adv., for the complainant. 

Mr.O.P.Sharda, Adv., for the Op.

 

ORDER

(Dharam Pal, President)

 

1. The facts, in brief, are that Sh.B.D.Kalia, complainant filed the consumer complaint against the Ops with the averments that he purchased a Videx hearing AID Set for both ears from the Op on 19.04.2013 vide bill No.391 for an amount of Rs.65,000/- after getting ears and hearing capacity tested from the clinic of the OP. The Op assured the complainant that the ear is all right and it would function effectively. The complainant used the hearing aids regular as per Op’s guidance but he faced some problems and the same were brought to the notice of the Op vide letter dated 10.10.2013. The Op rendered the complainant some advice but again after following the OP’s advice, the hearing aids did not serve the purpose of complainant. The Op had made some adjustment and advised the complainant to bear it as it would function favorably, slowly and slowly. Thereafter, the Op had got it repaired from the firm. After repair, the complainant used the aids again and reporting to OP its deficiency of hearing and thereafter, it came to stand still. The Op again got it repaired but the complainant did not hear clear messages on the mobile phone. Even, the complainant could not hear clear words on verbal conversation although the complainant could hear better without aids. In the month of September, 2015, the complainant again visited the Op with the complaint of hearing aids. After checking the aids, the Op handed over the aid to the complainant and told him that it could neither be repaired nor exchanged with new one. The complainant requested the Op to repair the hearing to which the Op refused and told that the hearing aids could not be repaired. Thereafter, the complainant requested the Op to refund the price of the machine videx hearing aids but the Op refused for the same. The complainant served legal notices dated 03.01.2016 and 02.02.2016 but to no avail. This act of the opposite party amounts to deficiency in service on its part. Hence, this complaint.
2. Alongwith the complaint, the complainant filed an application, for condonation of delay of 370 days, in filing the same. It was stated that after occurring to the problem, the complainant contacted the OP time and again vide various letters dated 03.09.2015 and phone calls on 21.09.2015, 31.10.2015, 17.11.2015, 21.11.2015 and 30.11.2015 and by personally visiting to the office of the OP but the OP always prolonging the matter on one pretext or the other by saying that soon he would redress the grievances of the complainant hence, the delay of 370 days has caused. He further stated that delay is not intentionally. Accordingly, the prayer, referred to above, was made, by the complainant.
3. Opposite Party filed the reply to the application, in which he stated that the product purchased on 19.04.2013 and the complainant made a complaint in the month of September, 2015. It is stated that a letter has also been received vide letter dated 03.09.2015 which could not come to the aid of the complainant, for purpose of condonation of delay of 370 days. It is stated that there was no defect in the hearing aid and as such the complainant did not have any problem previously. It is further stated that besides the mobile conversations, the complainant was hearing fine. It is further stated that the complainant himself admitted in the letters that the Op attended and handled the complainant with humbly besides adjusting the hearing aids. It is stated that at the time of purchase, the complainant had made it clear that hearing aid could not replace the original hearing power. It is stated that the facts mentioned in the application fortify that neither the complaint has been filed within period of limitation nor any justification nor just cause much less sufficient cause has been shown explaining the delay of 370 days in filing the present complaint. It is stated that due to delay of 370 days, it is liable to be dismissed.
4. We have heard learned Counsel for the parties and have gone through the record of the case, carefully.
5. The Counsel for the complainant, submitted that the earlier complaint was filed by the complainant was withdrawn, with liberty to file afresh. She further submitted that, as such, there was sufficient cause for the condonation of delay of 370 days, in filing the complaint. She further submitted that, even otherwise, it is settled principle of law, that a liberal approach should be adopted, by the Courts, and the Foras, in condoning the delay, in filing the complaint or appeals, so that meritorious cause/case may not suffer, only on account of technicalities. She further submitted that, when the technicalities and the substantial justice, are pitted against each other, then the latter shall prevail over the former.
6. The question, that arises for consideration, is, as to whether, the Forum can decide the complaint, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 370 days (as per the complainant), in filing the complaint. The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India vs. B.S.Agricultural Industries (I) II (2009) CPJ 29(SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under:-

Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

•  

 

20.  

 

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

 

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the compliant has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

7. The principal of law, laid down, by the Apex Court in State Bank of India’s case (supra), is applicable to the facts of the instant case. In case, this Forum, decides the complaint, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of Indias case (supra).
8. For the reasons recorded above, the application for condonation of delay of 370 days (as per complainant), being devoid of merit, must fail, and the same is dismissed. Consequently, the complaint under section 12 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to cost.
9. Certified copy of this order, be sent to the parties, free of charge and file be consigned to record room, after due compliance.

 

Announced

11.07.2016       S.P.ATTRI          ANITA KAPOOR        DHARAM PAL

                         MEMBER           MEMBER                     PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

 

 

                                                          DHARAM PAL

                                                          PRESIDENT