BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.27/2016

                 Date of filing: 11/02/2016

                                                                  Date of disposal: 15/09/2018

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “OP”) directed to take back the Sofa set and the central table at his costs and return the sale consideration of Rs.75,000/- which is the costs of the products sold by the OP and pay Rs.10,000/- towards mental agony and inconvenience  and pay Rs.5,000/- towards cost of the litigation & any other reliefs etc.,

 2.     The facts of the case in brief are that;

           The case of the complainant is that, the complainant has purchase the Sofa set and central table for Rs.75,000/- to the OP and OP has issued order No.838 on dtd: 11.06.2012 and issued receipt No.450 on dtd: 11.09.2012 at the same date and time for the reasons best known to him, which has been observed by the complainant at the time of issuing the notice to the OP and further the complainant is unable to under stated why the OP has put different dates for the order and the receipt when both of them were issued to the complainant on the same day and time of the purchase of the said sofa set and central table and further the OP has agreed to deliver the purchased articles to the complainant’s address at Bagalkot for which the complainant made separate payment of Rs.2,500/- to the transporter.

          It is further contended that, the complainant has used the purchased furniture’s with the firm belief that, they were made up of good quality wood, springs and other materials with leather upholstery after domestic usage of the material for about 2 ½ years, Cracks started appearing on the often used sofa set of 1 and 2 seats. Within a period of 2 months, the cracks exhibited themselves that, the upholstery was not of leather as canvassed by the OP and believed by the complainant, but of the Rexene material of the cheapest order. The springs have risen up making out cracking sounds and have spoiled the shape of the sofas making them unfit for usage. Then, the materials sold by the OP has exhibited their inherent defect in his nature and quality of the materials canvassed and sold by the OP. The quality of material i.e. wood, springs and upholstery are not at all fit for even the ordinary domestic usage leaving aside the high canvassing and representation of the OP as leather sofa sets. Thus by an act of  blatant unfair trade practice of the OP has cheated the complainant by misrepresentation about the quality of his products and has exercised un fair trade practice.

Finally, the complainant got issued the legal notice through his counsel on dtd: 22.06.2015 and again on 26.11.2015 to the OP, the notice was duly served to the OP, but OP has turned a deaf ear, due to these attitude and acts of the OP, the complainant has suffered mental torture, stress and harassment and thereby the OP has rendered themselves liable to pay compensation and damages to the complainant. Hence, the complainant is constrained to file this complaint.

3.      After issue of notice to the Opponent, the OP has appeared through his Counsel and resisted the claim of the complainant by filing his written version and contented that, the complaint filed by the complainant is barred by limitation and further contended that, the complainant has purchased the sofa set of Rs.56,138.12 and center table of Rs.9,371.68 and Vat Rs.9,498.92, thus totaling of Rs.75,000/- and further contended that, after used the said sofa set for more than 3.5 years and because of the usage some stitches have got opened and inside springs are poking out, this requires re-stitching of opened stitches, the OP has offered to repair the sofa, but complainant has preferred to bring this Forum and further the OP has never offered any warranty on the sofa purchased by the complainant.

          OP further contended that, the transaction took between complainant and OP in respect of sofa set was at Hubli jurisdiction, since the OP Show room is situated at Hubli and it is clear from the complainant itself that, the complaint of the complainant is hit by the point of territorial jurisdiction and there is no deficiency of service on the part of OP and prayed for dismissed the complaint with costs.  

4.      Both the parties have filed their affidavits in support of their case, the complainant has produced 7 documents, which are marked as Ex.P-1 to Ex.P-7, as against this, the OP has not produced any documents. Heard the arguments of both side. 

5.      Now, on the basis of these facts, the following points that would arise for our consideration:

1. Whether the complainant is proves that the

   complaint is come under this Jurisdiction ?

2. Whether   the   complaint   is   barred   by

   Limitation U/s 24 (A)  of C.P. Act  1986 ?

3. What order?

6.     Answer to the above Points:-

            01.  In the Negative.               

           02. Affirmative.

3.  As per final Order.

R E A S O N S

7.   Point No.1:-  We have gone through the pleadings of both parties and affidavit evidence and documents on record placed by the complainant. The case of the complainant is that, the complainant has visited the shop of the OP and purchased the Sofa set and Centre Table cost of Rs.75,000/- on dtd: 11.06.2012 and OP has issued receipt No.450 on dtd: 11.09.2012 and further contended that, the said Sofa set within a period of 2 years cracks exhibited themselves that, the upholstery was not of leather as canvassed by the OP and believed by complainant, but of the Rexene material of the cheapest order. In order to prove the said contention, the complainant has failed to produce the documentary evidence to prove that, the said transaction between the complainant and OP within the transaction here we have to observe that;

Section 11 sub section (2) (a) says that;

The Opposite party or each of the opposite party, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business. (or has a branch office or) personally works for gain; or

(b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business (or has a branch office), or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business, (or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

          On perusal of all the documents on record, we find that, the Shop of OP in Hubli, which is out of jurisdiction of this Forum. Hence, come to the conclusion that, this complaint does not fall within the Jurisdiction of this Forum. Hence, we answer to Point No.1 in the Negative.

8.      Point No.2:-       The complainant has purchased the Sofa set on dtd: 11.06.2012 after the 2 months of purchase actually cause of action arises from the date of purchase i.e. on 11.06.2012, but complainant has issued legal notice on dtd: 26.11.2015 after lapse of more than 3 years.

 In view of citation reported in CPJ (2015) 691 (NC) the important points reads as hereunder:

               “ii) Limitation correspondence reminder legal notice etc. do not extend the time.”

In view of citation reported in I (2016) CPJ 190 (NC) National Consumer Disputes Redressal Commission, New Delhi (Jansatta Sahkari Awas Samiti Ltd. V/s Kone Elevators India Pvt. Ltd. & Another). It reads as hereunder: 

                “(i) Consumer Protection Act, 1986 – Sections 24A, 21 (a) (i) – Limitation – agreement executed to install lifts – Non-installation – Accrual of cause of action – Cause of action arose when two letters sent by opposite party insisting on complainant to place purchase order for supply of missing part from site – complainant’s plea that cause of action arose when legal notice sent to opposite party cannot be accepted – Merely sending a notice does not constitute a cause of action nor does it extend period of limitation – As no application for condonation of delay has been filed there is no occasion to examine whether there was sufficient cause for delay or not – Complaint is time barred.”

The above citation is issuance of legal notice do not extended the time. Hence, we are of the view that, the present complaint is barred by law of limitation and as such the complaint. Hence, we answer to Point No.2 in the Affirmative.

9.  POINT NO.3:  On the basis of the findings given on the Point No.1 & 2, we proceed to pass the following:

//ORDER//

1. The Complaint filed by the complainant is hereby dismissed. No order as to costs.
2. Send the free copies to both the parties.

(Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 15^th day of September, 2018).