BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,
ERNAKULAM.
Date of filing : 23/11/2013
Date of Order : 28/11/2013
Present :-
Shri. A. Rajesh, President.
Smt. V.K. Beena Kumari, Member.
C.C. No. 810/2013
Between
Dr. P.C. Sunil, | :: | Complainant |
S/o. P.J. Cherian, ’Anurag’, Chembumukku, Ernakulam District. | | (By Adv. Biju. N.T., Mega Arcade, Near High Court of Kerala, Power House Road, Ernakulam – 18.) |
And
1. Tata Engineering and Locomotive Co. Ltd., | :: | Opposite Parties |
Passenger Car Division, 26th Floor, World Trade Centre, Cuff Parade, Mumbai – 400 005, Maharashtra. 2. Benz Motors, Benz Towers, Edappally, Ernakulam, Now Focus Automobiles, Focus Towers, Edappally Ernakulam, Cochin – 24. | | (Notice not sent) |
O R D E R
A. Rajesh, President.
1. The present complaint is preferred by the complainant seeking direction against the opposite parties to refund the price of the car, which he had purchased from the 2nd opposite party on 03-05-2000, which was manufactured by the 1st opposite party.
2. Admittedly, the complainant had filed O.P. No. 1000/2001 before this Forum seeking the very same reliefs against the opposite parties. It is stated that which had been agitated and on filing of a compromise petition, adjudicated on 14-06-2002. The complainant filed E.P. No. 90/2002 to execute the order of this Forum dated 05-04-2004. This Forum directed the opposite parties to execute the said order against which the opposite parties preferred Appeal No. 284/2004 before the Hon’ble State Commission. Consequently, the same was dismissed by the Hon’ble State Commission. Later, the complainant filed S.T. No. 01/2011 in this Forum and on 07-12-2012 the 2nd opposite party/accused was convicted and fined Rs. 10,000/- under Section 27 of the Consumer Protection Act in having failed to comply with the order of this Forum.
3. Heard the learned counsel for the complainant and went through the documents on records. The learned counsel for the complainant submitted that the principles of res-judicata is not applicable in this case, since there was no adjudication in the previous complaint.
4. Indisputably, at the instance of the complainant vide order in S.T. 01/2011 dated 07-12-2012, this Forum had convicted the 2nd opposite party under Section 27 of the Consumer Protection Act, since the 2nd opposite party failed to comply with the order of this Forum in the previous complaint and the 2nd opposite party had complied with the order in S.T. 01/2011. The maxim “memo debet bis vexari pro una at eadem causa” (no man should be vexed twice over for the same cause) is pertinently applicable here. If such were to be allowed, there would be no end to litigation.
5. The first complaint was filed on 23-10-2001 and this complaint is filed on 23-11-2013, which is barred by limitation as per Section 24 A of the Consumer Protection Act.
6. The Hon’ble Supreme Court of India in the case of State Bank of India Vs. B.S. Agricultural Industries (I) – (2009) 5 SCC 121, while interpreting Section 24 A of the Consumer Protection Act 1986 has held as follows :-
“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 24 A is sort of a legislative command to the consumer forum to examine on its own whether the complaint 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 24 A 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. Having regard to the considered view of the maxim stated and the law of the land referred to above, we are of the view that the plea of res-judicata is applicable in the instant complaint.
8. Resultantly for lack of bonafides substantiated, we are only to dismiss this complaint in limine. Ordered accordingly.
Pronounced in the open Forum on this the 28th day of November 2013.
Forwarded/By Order., Sd/- A. Rajesh, President.
Sd/- V.K. Beena Kumari, Member.
Senior Superintendent.
