The complainants Sri Triloki Nath Bharti, and Ashok Kumar Giri, have filed this complaint petition against Mr. P. Pradhan and 5 other’s (o.ps) for realisation of Rs. 40,000/- for loss in between 02-01-1997 to 10-05-1997, Rs. 15,000/- for loss of loading and unloading and freight charge of another tanker Rs. 10,000/-as advance paid to driver and assigned tanker, Rs. 3,000/- for repairing charge of chassis, Rs. 6,000/- for replacement charge of chassis, Rs. 3,40,000/- as loss incurred in between 22-11-1997 to 07-08-1998 40,000 per month (8 ½ Months) Rs. 30,000/- as National permit tax paid and other expenditure in between 22-11-1997 to 07-08-1998., Rs. 3,000/- as Transportation charge in Patna, Rs. 9,000/- as replacement of chassis and labour cost. and Rs. 10,000/- as Driver and Cleaner salary paid total Rs. 4,66,000/-
The, brief, facts of the case are that the complainants are an unemployed educated person. The further case is that complainant no.2 Ashok Kumar Giri purchased Tata Diesel vehicle bearing chassis no.- 360324ASQ102349, Engine no. 697D23 ASQ103790 through their dealer phooltas Auto Ltd. Patna on 02-01-1997 vide sale certificate no.- 796. It was financed by M/s. Installment Supply Ltd. 46 Janpath, New Delhi. The further case is that after purchase of the said vehicle, the manufacturer given road worthiness in the month of April 1997 i.e. after 4 month of purchase, hence registration of the vehicle took place on 10-05-1997 with Guwahati in Assam and the vehicle no. was As-25-7219. It has been further alleged that due to delay of time worthiness certificate, complainant sustained loss of Rs. 40,000/- interest purchase cost of the vehicle Rs. 7,50,000. The further case is that after sometime, chassis was broken under warranty period when the vehicle was loaded with molasses at Pipra Kothi for transporting the same to Kolkata. The further case is that the complainant informed the manufacturer and the manufacture send his Engineer who inspected the chassis of the vehicle at Pipra Kothi on 22-11-1997 and written his report on service book of the vehicle. The further case is that after inspection of the Engineer, the material was unloaded in another tanker. The cost of unloading and loading in another tanker was incurred Rs. 1000/- and freight of another tanker was Rs. 14,000/.-The complainant also paid his driver as advanced for way expenses of Rs. 10,000/-The further case is that as per report of the engineer the said vehicle was paid brought to Muzaffarpur for repairing of chassis and the same was repaired. Repairing charge was Rs. 3000/-and Rs. 6000/- respectively. The further case is that repairing of chassis was not successful and the chassis was again broken on 22-12-1997. The complainant intimated the o.p and the financer on 26-02-1998. The further case is that the chassis was supplied to the complainant on 07-08-1998. and the transportation cost of the vehicle was paid by the complainant. The further case is that the complainants have heavy loss of business during pick season. The further case is that the complainant written a letter to the o.p to pay the damages of the complainant and he also informed the financer. But the financer reposed the vehicle in the month of October 2000. The loss of the complainant due to late delivery of chassis was Rs. 3,40,000/- into Rs. 40,000/- per month. The further case is that the complainant already paid National permit cost, insurer cost and other expenditure of Rs. 30,000/- which was in vain. The further case is that the complainant already paid transportation charges of Rs. 3,000/- replacement of chassis and labour cost of Rs. 90000/-. The complainant also paid driver and cleaners salary of Rs. 10,000/- The further case is that complainant no.1 Triloki Nath Bharti sold the aforesaid vehicle to the complainant no.2 Ashok Kumar Giri, hence payment will be made in favour of the complainant no.2
The complainant has filed the following documents with the complaint petition - Letter of the Installment Supply Ltd. to Trilokinath Bharti for remittance of due amount due on 17-04-1997 and 17-05-1997 to 17-06-1997 annexure-1-, photocopy of Form-20 annexure-2-, photocopy of form- 21 sale certificate annexure-3-, photocopy of form no. 22 annexure-4, photocopy of letter of Installment Supply Ltd. dated 22-04-1997 annexure-5, Service book of the vehicle annexure-6, voucher of Rs. 14,000/- of Mithila Road Lines dated 28-11-1997 annexure-7, receipt of payment of labour annexure-8, voucher of Rs. 10,000/- dated 04-11-1997 of Mithila Road such Muzaffarpur annexure-9, Voucher of Rs. 3,000/- of Mithila Road Line Muzaffarpur annexure-10, voucher of Rs. 6,000/- of Mithila Road Line annexure-11, Carbon copy of letter dated 26-02-1998 annexure-12, Workshop Spare Invoice (cash) of Phooltas Auto Ltd. annexure-13, Kolkata monthly profit report for a tanker for a month annexure-14-A & B, letter dated 17-08-1997 from the carrier pioneer in oil and chemical Transport to IFB Agro industries Ltd. Kolkata annexure-14 (C) Bill dated 01-11-1997 & 2-11-1997 annexure – 14 D and (E) receipts of the oriental insurance company annexure- 15 to 17. Photocopy of form certificate of registration annexure-18, National Permit annexure 19 A, 19 B , Bill form dismantling dated 15-09-1998 annexure-20, Voucher of Rs. 7,000/- of Mithila Motors annexure-21, statement of payment to installment supply Ltd. annexure-22, letter dated 19-08-1998 by Mithila Road Line to M/S installment supply Ltd. new Delhi annexure-23.
On issuance of summon o.ps no.1 to 4 appeared and filed their w.s. on 11-08-2005 with prayer to dismiss the complaint petition with exemplary cost. It has been mentioned in the w.s. that the complaint petition is not maintainable and the same is fit to be dismissed on the issue of mis-joinder and non-joinder of necessary parties. It has been further mentioned in the w.s. that complainant no.1 Triloki Nath Bharti who runs Mithla Road Line had taken delivery of the said vehicle which was sold to the financer M/S installment supply Ltd., new Delhi . It has been further mentioned that the complainant no.1 had taken delivery from the said financer on the basis of hire purchase agreement . Therefore the true owner of the vehicle was the said financer and only position was with the complainant no.1 as hire purchase agreement . It has been further mentioned in the w.s. that Trilok Nath Bharti as a fleet owner and oil transport, who runs the business in the name of Mithla Road Line (MRL) having its office interalia at Bhagwanpur, National Highway – 28 Muzaffarpur. It has been further mentioned that the complainant had taken delivery of the vehicle on commercial basis having a fleet of vehicle. It has been further mentioned in the w.s. that the complainant on its own saying employs drivers and other persons and it is purely a commercial venture, as such he is not a complainant within the meaning of consumer protection Act. It has been further mentioned that the complaint is hopelessly barred by law of limitation. It has been further mentioned that admittedly, the cause of action arose to the complaint if any, prior to 07-08-1998 when the chassis frame was replaced free of cost. The assertions in the complaint itself show that all loss/ cost claimed by him is for a period to the said date that is 07-08-1998. It has been further mentioned that admittedly on the complainant no.1 own showing he had sold the vehicle to complainant no. 2 on 13-11-1999 long before lodging of the complaint and also be caused of the financer M/S installment Supply Ltd., have already repossessed the vehicle in October, 2000. It has been further mentioned that in view of warranty friendly Note 10”as clearly specified in the operators Manual supplied to the complainant on transfer of vehicle a warranty stipulations and claim there under stands immediately terminated, as such the complaint is fit to be dismissed. It has been further mentioned that o.p has denied the delay in supply of Road worthless certificate. It has been further mentioned that all the papers were duly handed over to the financer M/S. installment supply Ltd at time of delivery of the vehicle in question. It has been admitted that on 22-11-1997 It was noticed that the chassis frame had cracked. It has further mentioned that at the point of time it was repairable and accordingly so directed. It has further mentioned that the warranty stipulation warranty is limited to replacement of defective parts and not all ‘consequential claims much less the claims sought to be raised by complainant. It has been further mentioned that the complainant was defaulter in payment of the hire chassis from very first month itself, and accordingly vehicle was repossessed in October 2000 by Finance . Other facts as stated in complaint has been denied.
Complainant made o.p no.6 M/S installment supply Ltd. 46 Janpath New Delhi as o.p. no.6 after raising objection as none joinder and miss joinder of the parties. On issuance of process he didn’t appear so vide order 02-01-2010, forum proceeded Ex. Party against him.
On behalf of complainant no.1 Triloki Nath Bharti has examined himself on affidavit as AW.1
The o.ps have raised Three objections in their w.s. as well as in his notes of argument which is as follows-
- The complainant purchased the vehicle for commercial purposes, so he is not a consumer within the meaning of 2 1 (d) of Consumer Protection Act.
- The complaint is hopelessly barred by law of limitation.
- This forum has got no territorial jurisdiction to adjudicate the matter as no cause of action arose in the territorial jurisdiction of this forum.
Point No. 1- Learned lawyer for the o.ps has submitted that the complainant is not a consumer within the meaning of section 2 (1)( d) of Consumer ProtectionAct as the vehiclewas purchased for commercial purposes, not for livelihood and the complainantis fleet owner oil transport, who runsMithila Road Lines (MRL) having its office at Bhagawanpur N.H.-28 Muzaffarpur. He has further submitted that the complainanton his owner saying employed drivers and other persons and it is purely commercial venture, as such he is not a complainantwithinthe meaning of the Consumer Protection Act.
Learned Lawyer for complainant has submitted that the service rendered for commercial purposes also comes under the Consumer Protection Act 1986. He relied on the decisions of Hon’ble N.C. Dispute Redressal Commission New Delhi in the case Dr. Vijay Prakash Goyal V/s The Network Ltd. 2006 (1) (CPR) (164) (N.C.) In the above case Hon’ble N.C. has observed as follows – 1. Consumer Protection Act-1986- section 2 (1) (d) Purchaser of Ultrasound Machine for running maternity home that is for commercial purposes- defective during warranty period whether purchaser a consumer? (yes) 1 (1998) CPJ 38 (N.C) have relied .
Fact of the above case also resembles with the facts of this case. As per observations of the Hon’ble N.C. the complainant also cums within the meaning of ‘consumer’ and as such this point is decided against the o.p and in favour of complainant.
Point No.- 2 Complainant is hopelessly barred by law of limitation –Learned Lawyer for the o.ps has submitted that the vehicle was purchased on 02-01-1997 and the complainant continuously using the said vehicle for more than 2 years and the complaint has been filed on 09-07-2001 after lapse of more than 2 years, Period of limitation as prescribed in section 24 A (1) of consumer protection act 1986. He relied on the observations of Hon’ble N.C. given in the case of SBI ;V/s BS agricultural industrialist II ( 2009) (CPJ) 29 SC. This issue has also been raised in the w.s.
Complainant no.1 Triloki Nath Bharti has adduced evidence on this point and tried to explain the delay. This is beyond his pleading so the same cannot be allowed to fulfil the same by adducing evidence which has not been stated in the complaint petition. Admittedly, the vehicle was purchased on 02-01-1997. The chassis was broken under warranty period at the Pipra Kothi. The date of breaking of the same has not been mentioned in the petition. The complainant (AW-1) Triloki Nath Bharti has mentioned the date of chassis broken on 11-11-1997. The same was inspected on 22-11-1997 and repairing /replace on 07-08-1998. So, first cause of action arises on 11-11-1997. The complainant has also charged the damages of loading and unloading and friends for the above date of occurrence. He has further mentioned in the complaint petition that after repairing of the chassis the same further broken on 22-12-1997. So, second cause of action arose on 22-12-1997 and the same was supplied to the complainant on 07-08-1998 so second cause of action arose on 22-12-1997. The complainant has filed this complaint petition on 10-07-2001 after lapse of period of 3 years and 6 days. Section 24 (A) of the Consumer Protection Act 1986 is as follows.
- 24 (A)- Limitation period- 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.
- 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 or the National Commission, as the case may be, that he had suffieint cause for not filing the complaint within such period.
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 as such delay.
On perusal of record it transpires that the complaint was filed after lapse of 2 years but no petition has been filed for condoning the delay.
In the case of SBI V/s B.S. Agricultural Industries cases -I, II(2009) CPJ 29 (S.C) on Hon’ble SC has observed as follows. Consumer Protection Act 1986- Section 24A – Limitation- complaint time-barred-complainant carrying business of manufacturing and supply, sent bills to bank for collection of payment and remittance of proceeds- Instructed bank to return documents, if not honoured by drawee by June 7, 1994- Cause of action accrued on June 7, 1994, when complainant neither received demand draft, nor documents- Limitation began to run from June, 1994—complaint filed on May 5, 1997, apparently time-barred- Letters sent to bank and bank’s reply- No application for condonation of delay filed- No sufficient cause for delay shown- Question of condonation of delay does not arise- Limitation aspect not considered by Consumer Fora although specific plea to this effect taken by bank – Order of National Commission affirming orders of State Commission and District Forum, set aside- complaint dismissed as time barred.
As discussed above the complaint has been filed after much delay of two years. The same has not been condoned. They delay has not been properly explained by filing petition. So, we are of the opinion that the complaint case is hopelessly time barred and the same has not been condoned at the instance of complainant at the time of filing of the case. In the circumstances the case is liable to be dismissed on the above ground.
Point- (III) The learned lawyer for complainant has submitted that this forum has got no territorial jurisdiction. He has further submitted that the o.p has no office, nor any cause of action arose within the territorial jurisdiction of this forum. This point has been raised by o.p in his written argument and has submitted that this forum has got no territorial or pecuniary jurisdiction to entertain the claim, as there is no Branch of o.ps in the Muzaffapur and cause of action arises at Pipra Kothi which is in the District of East Champaran, Motihari. Hence the petitioner is not entitled for any relief as prayed for and this learned forum has got no pecuniary & territorial jurisdiction to entertain this case.
Learned lawyer for the complainant has not answered this question during his argument.
AW-1 Triloki Nath Bharti (complainant ) has stated in para-10 of his deposition that Mithla Road Lines is a association of Tanker owners named on territorial ground of which complainant no.1 was Mithila Road Lines of the founder member one complainant no.-2 is the signatory authority of said association and due to this reason the correspondences done by the complainant no.2 with regard to the aforesaid claim, was done on the letter head of the Mithila Road lines”, on the approval and consent of the complainant no.1. He has stated that neither of the o.ps have raised question regarding Locus-stand of complainant no.2 in the instant case, either in their w.s. or in the argument. Therefore it is admitted fact that complainant no.2 is also a consumer within the meanwhile of this Act having locus standi to claim damage for the concerned vehicle in the instant case.
As per complaint petition the vehicle was purchased by complainant no.2 from Tata Diseal vehicle issued through the dealer phooltas Auto Ltd. Patna and the same was financed by M/S Instalment Supply ltd. 46 Janpath New Delhi. The vehicle was registered at Gowahati bearing No. AS-25-7219. The chassis was broken at Pipra Kothi under the district of East Champaran. Place of broken of chassis at 2nd time has not been mentioned in the complaint petition. It has also not been mentioned as to where the vehicle was taken into possession by financer.
Section-11 of Consumer Protection Act 1986 confess jurisdiction of the D.C.F. which is as follows- 1 Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed { does not exceed rupees twenty lakhs}
(2) A complainant shall be instituted in a District Forum within the local limits of whose jurisdiction,-
(a) the opposite party or each 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, 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 cuase of action, wholly or in part arise.
The O.p has denied the fact that he has office at Muzaffarpur. The complainant has not adduced any evidence on the point that at the time of institution of the complaint, o.ps or one of the o.ps reside or carries on business or he works forgain. The complainant has also not adduced any evidence on the point that the cause of action arise wholly or in part in the jurisdiction of this forum.
Act empowers the forum to entertain the petition as per territorial jurisdiction, so if the o.ps does not raise the question of jurisdiction in his w.s., the matter does not effect. It is the duty of the forum itself to ascertain as to whether he has got territorial jurisdiction to entertain the complaint petition.
Learned Lawyer for the o.ps has relied on the observations of the Honble N.C. observed in the case of the Ritu Bhuwania V/s Vatas Corporation Ltd. and another I (1210 ) C.P.J. 27 (N.C.) The observations of the Hon’ble Commission is as follows Consumer Protection Act- 1986- section-11 , 24 A, 27- jurisdiction territorial - Shares purchaser at the Colcutta payment made at Colcutta. No part cause of action arose at Kodarma – mere receipt of shares at Kodarma, will not given rise to any cause of action at Koderma, either wholly or in part complaint not maintainable before respective fora- complainant at liberty to file fresh complaint before appropriate District Forum Time Consumed in these proceedings to be exempted counting limitation.
On the basis of above ruling and provisions, we are of the considered opinion that this fora has got no territorial jurisdiction to entertain this complaint and as such the complaint petition is liable to be dismissed.
Accordingly, the complaint petition is dismissed without cost.
