Chandigarh

StateCommission

FA/17/2012

Bhupinder Gupta - Complainant(s)

Versus

Exide Industries Ltd. - Opp.Party(s)

Sh. Rajesh Gupta, Adv.for the appellant

27 Mar 2012

ORDER


The State Consumer Disputes Redressal CommissionUnion Territory,Chandigarh ,Plot No 5-B, Sector No 19B,Madhya Marg, Chandigarh-160 019
FIRST APPEAL NO. 17 of 2012
1. Bhupinder GuptaS/o Sh. Ram Chander Gupta, H.No. 278, (First Floor), Sector 33-A, Chandigarh ...........Appellant(s)

Vs.
1. Exide Industries Ltd.through its Area Manager 1st Address: SCF 1012, 1st Floor, Motor Market, Manimajra, Chandigarh. 2nd Address: 24/4, Industrial Area, Phase-2, Chandigarh2. M/s Shiva TyresRopar Road, Nalagarh-Distt. Solan, Himachal Pardesh 1741013. Exide Industries Ltd.Corporate Office, Exide House, 59E, Chowringhee Road Kolkata -700020 ...........Respondent(s)


For the Appellant :Sh. Rajesh Gupta, Adv.for the appellant, Advocate for
For the Respondent :Ms. Surbhi, Adv. proxy for Sh. Manish Joshi, Adv. for resp. no.1 & 3. Resp. no. 2 dispensed with vide order dt. 1.3.2012. , Advocate

Dated : 27 Mar 2012
ORDER

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.

:

17 of 2012

Date of Institution

:

13.01.2012

Date of Decision

:

27.03.2012

 

Bhupinder Gupta S/o Sh.Ram Chander Gupta, H.No.278 (First Floor), Sector 33-A, Chandigarh.

 

                                         ……Appellant/complainant

V e r s u s

1.  Exide Industries Ltd., through its Area Manager

1st Address : S.C.F. 1012, 1st  Floor, Motor Market, Manimajra, Chandigarh.

2nd Address : 24/4, Industrial Area, Phase–2, Chandigarh.

2.  M/s Shiva Tyres, Ropar Road, Nalagarh-Distt. Solan, Himachal Pradesh – 174101.

       (Service dispensed with vide order dated 01.03.2012).

3.  Exide Industries Limited, Corporate Office, Exide House, 59E, Chowringhee Road, Kolkata – 700020.

 

              ....Respondents/Opposite Parties

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.

              MRS. NEENA SANDHU, MEMBER.

              SH.JAGROOP SINGH MAHAL, MEMBER.

                  

Argued by:  Sh.Rajesh Gupta, Advocate for the appellant.    

              Ms.Surbhi, Advocate proxy for Sh.Manish Joshi,                      Advocate for respondents No.1 and 3.

              Service of respondent No.2 dispensed with                       vide order dated 01.03.2012.

 

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 17.11.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), solely on the ground,  that it was barred by limitation, by one day.

2.               The facts, in brief, are that the complainant purchased one Exide Battery bearing No.MHD350L, for a sum of Rs.3700/- (infact Rs.3400/-), vide invoice No. 16452 dated 8.4.2009,  from Opposite Party No.2, authorized agent of Opposite Parties No.1 & 3. According to the complainant, the said battery was having a manufacturing defect, from the first week of its purchase, as it was not giving proper voltage. The complainant approached Opposite Party No.2, on 15.4.2009, 13.5.2009 and 10.6.2009, with regard to problem, in the battery, but to no avail. Thereafter, the complainant approached the office of Opposite Party No.1 on 15.7.2009, with the same problem, in the battery. Opposite Party No.1, retained the said defective battery, and supplied the service battery to him, vide Van Service Sheet C.I.S.No.114 dated 15.7.2009, with an oral assurance, that the battery would be replaced with a new one, within 2 to 4 weeks. The complainant again visited the office of Opposite Party No.1 on 11.8.2009, 10.9.2009, 22.10.2009, 18.11.2009, 12.1.2010 and 23.3.2010, but the battery was not replaced, though the same was within warranty period.  A legal notice dated 29.3.2010, was also served upon the Opposite Parties, which was replied by Opposite Party No.1 vide letter dated 27.5.2010, Annexure C-4, stating therein, that, as there was a gap, between the date of manufacture and the date of sale for more than 3 months, the warranty would not be applicable. After the receipt of reply dated 27.5.2010, the complainant, went to the office of Opposite Party No.1, for redressal of his grievance, but neither the Opposite Parties, replaced the battery, in question, nor refunded the amount to the complainant. Opposite Party No.1, rejected the claim of the complainant, vide letter dated 27.5.2010, referred to above.  It was stated that the battery was still with Opposite Party No.1. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.               Opposite Parties No.1 and 3, in their joint version, pleaded that the complaint was not maintainable. It was stated that the complaint was barred by time. It was further stated that the Consumer Fora, had no jurisdiction to entertain and decide the complaint. It was admitted that the complainant, purchased the battery, in question, from Opposite Party No.2, on 8.4.2009. It was stated that, as per Clause 18 of the warranty card, the battery was not covered under the warranty. It was further stated that the complainant, approached Opposite Party No.1, on 15.7.2009, with some problem, in the battery, and the service battery was issued to him, which he was using till date.  It was further stated that Opposite Party No.1, told the complainant, that it would replace the battery, within a few days. However, the complainant,  never turned up to take the battery, and also to return the service battery, provided to him. It was further stated that, as such, the complainant, was liable to pay Rs.20/- per day, from 15.7.2009, till date, for using the service battery. It was denied that the complainant came to the office of Opposite Party No.1, after 15.7.2009, till date. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               Opposite Party No.2, was duly served, but no authorized representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte vide order dated 23.8.2011.

5.               The complainant, and Opposite Parties No.1 and 3, led evidence, in support of their case.

6.               After hearing the Counsel for the complainant, as also Opposite Parties No.1 and 3, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.  

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.               We have heard the Counsel for the appellant, respondents no.1 and 3, and have gone through the evidence and record of the case, carefully. 

9.               The Counsel for the appellant, submitted that the District Forum was wrong, in coming to the conclusion, that the complaint was barred by limitation. He further submitted that cause of action arose to the complainant on 27.05.2010, when his claim was rejected by respondents no.1 and 3/Opposite Parties no.1 and 3 vide Annexure C-4. He further submitted that, even if it is assumed, as held by the District Forum, that cause of action arose to the complainant, to file a complaint, on 15.07.2009, then that day(date), was required to be excluded, and the period of limitation started running from 16.07.2009. He further submitted that the complaint, having been filed, on 15.07.2011, could be said to have been filed within 2 years, from the date of alleged accrual of cause of action. He further submitted that, even according to Annexure C-4 dated 27.05.2010, vide which, the claim of the complainant was rejected, it was admitted by the Opposite Parties that the battery was received on 16.07.2009. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

10.            On the other hand, the Counsel for respondents no.1 and 3, submitted that, no doubt, the battery, in question, was purchased by the appellant, from Opposite Party No.2. She further submitted that, according to the complainant, it was having a manufacturing defect, and the battery was given to Opposite Party No.1,  for repairs/replacement on 15.07.2009, when the service battery was provided to him (complainant). She further submitted that the District Forum was, thus, right in coming to the conclusion, that the complaint was barred by time.

11.            The only question, that falls, for consideration, is, as to whether, the complaint was barred by time, or not. According to Section 24A of the Act, a Consumer Complaint could be filed within 2 years, from the date of accrual of cause of action. The battery, in question, as per the averments, in the complaint, was handed over to Opposite Party No.1, on 15.07.2009, for rectification of the defect, when he was provided the service battery. The claim of the complainant was rejected by Opposite Parties No. 1 and 3, on 27.05.2010, vide Annexure C-4. The cause of action, thus, arose to the complainant, to file a consumer complaint on 28.05.2010, after excluding, the day(date) i.e. 27.05.2010, when his claim was rejected. The District Forum, in our considered opinion, was wrong, in coming to the conclusion, that the cause of action, accrued to the complainant, on 15.07.2009,  and the complaint, having been filed on 15.07.2011, was barred by limitation, by one day.

12.            Even if, it is assumed, for the sake of arguments, that the cause of action, accrued to the complainant, to file a complaint, on 15.07.2009,  then, that day(date), was required to be excluded, for the purpose of computing the period of limitation. Once that day(date), is excluded, the complainant could file a complaint within 2 years, from 16.07.2009. The complaint, having been filed, on 15.07.2011, could, thus, be said to have been filed within 2 years, as envisaged by Section 24A of the Act. The order of the District Forum, thus, being illegal and invalid, is liable to be set aside, and the complaint deserves to be remanded back, for fresh decision, on merits.

13.            No other point, was urged, by the Counsel for the parties.

14.            For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order of the District Forum, is set aside. The complaint is remanded back, to the District Forum, with a direction, to decide the same afresh, on merits, in accordance with law, after affording the parties, an opportunity, of being heard.

15.            The parties are directed to appear before the District Forum, on 17.04.2012 at 10.30.a.m.

16.            The District Forum record, be sent back immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.       

17.            Certified Copies of this order, be sent to the parties, free of charge.

18.            The appeal file be consigned to Record Room, after completion

Pronounced.

27.03.2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

 

 

Sd/-

[NEENA SANDHU]

MEMBER

 

 

 

 

Rg

 

 


HON'BLE MRS. NEENA SANDHU, MEMBERHON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT ,