Chandigarh

StateCommission

A/296/2015

M/s Kulja Industries Limited - Complainant(s)

Versus

The General Manager (Complaints), Skoda Auto India Pvt. Ltd. - Opp.Party(s)

Aditya Sharda, Piyush Khanna, Adv.

23 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	296 of 2015
Date of Institution	06.11.2015
Date of Decision	23.12.2015

M/s Kulja Industries Limited, Plot No. 1, Industrial Estate, Chambaghat, Solan 173213, through its Managing Director Sh. Bhawani Dutt

                                        …..Appellant/Complainant.

                                Versus

1.     The General Manager (Complaints), Skoda Auto India Pvt. Ltd. A-I/1, M.I.D.C. Five Star, Industrial Area, Shendra, Aurangabad-431201.

2.       M/s Krishna Auto Sales, 177-E, Industrial Area, Phase-1, Chandigarh 160002, through its Authorized Representative.

                                …..Respondents/Opposite Parties.

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Aditya Sharda, Advocate for the appellant.

Sh.Jagvir Sharma, Advocate for the respondents.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 10.09.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short the Forum only), vide which, it dismissed Consumer Complaint bearing No. 159 of 2014, filed by the complainant, being barred by limitation.

2.             The facts, in brief, are that the complainant purchased a vehicle i.e. Skoda Superb from the Opposite Parties, which was subsequently allotted registration No.HP-14A-0065 from Registering Authority, Solan, Himachal Pradesh. The said vehicle developed a manufacturing defect and, as such, it was taken to the workshop of the Opposite Parties, a number of times for rectification of the problem of steering oil leakage and air conditioner in the said vehicle but nothing had been done and the problem is still subsisting, as a result of which, the complainant was unable to ply the said vehicle. It was stated that the driver of the complainant brought the aforesaid vehicle in the workshop of Opposite Party No.2 on 09.06.2012 for the repair of air conditioner and steering oil pipe vide job card No.068643 but the pipe required for the repair of the air conditioner was not available in its stock. However, Opposite Party No.2 replaced the steering oil pipe and charged an amount of Rs.1690/- for the same vide invoice dated 12.06.2012 but the said problem remained as it is and, as such, the vehicle was again sent to the service station of Opposite Party No.2 on 13.06.2012 who gave the tentative estimate of Rs.50,000/- for its repair. It was further stated that the vehicle of the complainant remained in the service station of the Opposite Parties on account of non-availability of the spare parts required for repair of the said vehicle. It was averred that the Opposite Parties were requested to rectify the defects, in the said vehicle, or if the same were beyond repairs, to replace the same (vehicle), with a new one, but to no avail. Ultimately, the complainant served a legal notice dated 16.07.2012 (Annexure C-8) to the Opposite Parties, but to no avail.  Therefore, 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.             In its written statement, Opposite Party No.2, stated that the complaint was barred by time. It was pleaded that the Forum had no territorial jurisdiction, to entertain and decide the complaint. It was further pleaded that since the vehicle, in question, was purchased by the Company, meaning thereby for commercial use, the consumer complaint was not maintainable. It was denied that there was any manufacturing defect, in the vehicle, in question. According to Opposite Party No.2, the complainant was asked a number of times to get the vehicle repaired on payment of the requisite amount but to no avail. It was further pleaded that the complainant was bound to make the payment for repairs to be carried out, after the expiry of the period of warranty. The vehicle had covered more than 1,10,000 kilometers, during the period of six years. It was further stated that since the vehicle, was beyond the warranty period, as such, an estimate of repairs to the tune of Rs.50,000/-, for replacement of various parts, was given, but the same was not approved by the complainant, and, as such, the same (vehicle) was lying in the workshop of the Opposite Parties. 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.

4.             Opposite Party No.1 did not file any separate reply and adopted the reply and evidence, as filed by Opposite Party No.2 vide statement and order dated 06.06.2014.

5.             The complainant, filed rejoinder, to the reply of Opposite Party No.2, wherein, he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Party No.2.

6.             The parties led evidence, in support of their case.

7.             After hearing the Counsel for the parties and on going through the evidence, and record of the case, the Forum, dismissed the complaint being barred by limitation, as stated above. 

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

9.             We have heard the Counsel for the appellant, Counsel for the respondents, and have gone through the evidence and record of the case, carefully. 

10.           The Counsel for the appellant/complainant submitted that the Forum failed to appreciate that the complaint is well within the limitation because the Forum failed to see that the defect in the vehicle is continuing one and has been raised before the dealer from time to time. He further submitted that the Forum took 19.12.2011 as the last date of communication raised through its legal notice (Annexure A-2) but failed to see the fact that subsequent to the said legal notice, various complaints and request for ratification on different dates had been made to the dealer, which have been raised vide legal notice dated 16.07.2012 (Annexure A-4). So, the period of limitation in the instant case starts from 16.07.2012 only as cause of action in the case under reference is continuing one.  He further submitted that even assuming a delay in the complaint, the Forum erred in punishing the appellant for the act of the Counsel and ignoring the well settled proposition of law that the client should not suffer for the negligence of the Counsel. He prayed for allowing the appeal and setting aside the impugned order.

11.           The Counsel for the respondents/Opposite Parties submitted that the appellant/complainant purchased the vehicle on 25.03.2006 and warranty of 2 years for replacing any part, which was found defective, was available to the complainant upto 25.03.2008. He further submitted that the complaint was clearly barred by limitation and, as such, the Forum rightly dismissed the complaint on this ground. He prayed for dismissal of the appeal, filed by the complainant. 

12.           After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded, hereinafter.

13.           The core question, that falls for consideration, is, as to whether, the Forum rightly dismissed the complaint being barred by limitation. The answer, to this question, is in the affirmative. It is, no doubt, true, that earlier the complainant had filed a complaint against the Opposite Parties on 14.09.2012 before the District Consumer Disputes Redressal Forum, Solan, District Solan (HP) and the said Forum vide order dated 10.01.2014 returned the said complaint to the complainant for its presentation before the appropriate Forum having jurisdiction over the matter, if the complainant desires to do so after retaining certified copies thereof.

                Thereafter, the complainant filed a Consumer Complaint bearing No.159 of 2014 before District Consumer Disputes Redressal Forum-II, UT, Chandigarh, on 31.03.2014.

                 It is also pertinent to mention here that earlier the said consumer complaint was dismissed in default by the concerned Forum, at Chandigarh, vide order dated 02.01.2015 due to non appearance of the complainant, for which, the complainant filed First Appeal No.24 of 2015 before this Commission and this Commission vide order dated 02.03.2015 set aside the impugned order and complaint was remanded back to the Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed in default, and decide the same, afresh, on merits, in accordance with the provisions of the Act. However, the complainant was burdened with costs of Rs.5,000/- for causing delay, in the disposal of the complaint, afresh, on merits. The payment of costs, in equal shares i.e. Rs.2500/- each, to Opposite Parties No.1 and 2, shall be a condition precedent, which was, thereafter, paid by the complainant.

14.           It is relevant to mention here that the complainant sent a legal notice dated 04.02.2012 (Annexure C-3) to the Opposite Parties, in which, letters dated 29.10.2009, 17.11.2011, 12.12.2011 and 19.12.2011 (wrongly mentioned by the Forum as 19.11.2012) had been referred to show the continuity of its grouse against them. We are of the view that the Forum rightly considered the last communication dated 19.12.2011, to be the cause of action against the Opposite Parties to file the present complaint raised through its legal notice dated 04.02.2012 and the limitation period to file a complaint limited to a period of 2 years, as per the Act, therefore, the complaint filed before the District Consumer Disputes Redressal Forum, Solan (HP) was well within the limitation period. The Forum, while passing the impugned order, rightly held that at the time of returning the complaint on 10.01.2014 by District Consumer Disputes Redressal Forum, Solan (HP), for its presentation before the appropriate Forum having jurisdiction, the limitation period had already expired and further held that “Even if we consider that after the passage of the order dated 10.1.2014, there was a grace period after the return of the complaint till the same was presented before another appropriate Forum, such grace period could not be limited to 30 days time”. We are of the view that if the District Consumer Disputes Redressal Forum, Solan (HP) ordered to return the complaint vide its order dated 10.01.2014, it was the duty of the complainant to timely present the complaint before the appropriate Forum within a period of 30 days, but he filed a complaint before the Forum, at Chandigarh, on 31.03.2014 i.e. after about 2 ½ months and not only this, no application for condonation of delay was filed by the complainant to condone the delay. So, the plea taken by the appellant, at this stage that the client should not suffer for the negligence of the Counsel, has no value at all. Even the Forum rightly held that they are bound by the law settled by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as “Agari Enterprises Vs. Sesappa Saphaliga & Anr.-I(2013) CPR 101 (NC)”, vide which, it had opined that any period of time that has been wasted by the complainant by approaching a wrong Forum would not entitle him any grace in the period of limitation on such score and any such delay cannot be condoned.

15.          Keeping in view the facts and circumstances of the case, we are of the considered view that the Forum was right, in dismissing the complaint being barred by limitation, as stated above. Hence, the order passed by the Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

16.           For the reasons recorded above, the appeal, filed by the appellant/complainant, being devoid of merit, must fail, and the same is dismissed,  with no order as to costs. The order of the Forum is upheld.

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

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

Pronounced.

23.12.2015                                                         Sd/-         

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

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