Sri Swapan Kumar Mahanty, President.
This is an application u/s.12 of the C.P. Act, 1986.
The brief facts of the case as per the complainant are that on 08-02-2014 complainant had purchased a Swift VXI car bearing chassis No.MA3EHKD1S00576975MD and Engine No. from OP3. Starburst Motors Private Ltd., an authorized dealer of OP1 Maruti Suzuki India Ltd. at a price of Rs.5,75,000/- after obtaining car loan from State Bank of India, Dum Dum Branch. The car was manufactured in the year 2013 though it was ensured by the OP3 that the subject car was manufactured in the year 2014. The car was defective and fuel is leaking from the tank due to fuel filler neck problem. The matter was brought to the notice of the OP3 and according to their direction the complainant had been to the dealer’s showroom at Kalyani but they expressed their inability to solve the problem.
Further case of the complainant is that he had been to the showroom of OP4 Sahei Motors (P) Ltd., an authorized dealer of OP1 for servicing the car but OP4 did not solve the problem. In the meantime OP1 recalling its popular models Ertiga, Swift and Dzire manufactured between November 12, 2013 and February 4, 2014 to replace faulty fuel filler necks. Accordingly, the complainant had been to the workshop of OP3 with the car for remedial action but the OP3 fails to rectify the defects. Finding no other alternative, complainant issued legal notice dated 12-09-2017 to the OPs 1 and 2 through his Advocate but received no reply. Complainant is a consumer within the definition of C.P. Act, 1986. The conduct of the OPs tantamount to deficiency in service. Hence, the instant consumer complaint has been filed by the complainant.
The OPs1 and 2 have contested the case by filing written version denying all the material allegations of the complainant. The specific case of the answering OPs is that the complaint is barred by limitation as prescribed u/s.24A of the Consumer Protection Act, 1986. The answering OPs are not privy to the transaction alleged to have happened between the complainant and the OP3. The dealer sells the vehicles to their customers under their own invoice and sale certificate as per the terms and conditions settled between the dealer and its individual customer. The relationship between the Maruti Suzuki India Ltd. and its dealers is governed by the provisions of Dealership Agreement executed between them and is founded on the principal to principal basis. The complainant has failed to set out any case for deficiency in service or manufacturing defect or unfair trade practice as against the answering OPs. Accordingly, the answering OPs have prayed for dismissal of the complaint with exemplary costs.
OP4 resisted the complaint by filing a written version. They have denied all the material allegations of the complainant. The specific case of the answering OP4 is that the complainant brought the subject car to their service centre for servicing on 28-03-2014, 02-09-2014 and 09-05-2015 and the answering OP4 made necessary service of the car. The answering OP has no laches and/or deficient in rendering services to the complainant. Complainant purchased the subject car from OP3, an authorized dealer of OP1 and the answering OP is in no way connected in selling the subject car. Accordingly, the OP4 has prayed for dismissal of the complaint with costs.
In spite of service of notice the OP3 did not contest the case.
In the light of the above pleadings the following points necessarily came up for determination :
- Is the complaint barred by limitation?
- Have the OPs deficient in rendering services to the complainant?
- Have the OPs indulged in unfair trade practice?
- Is the complainant entitled to get the relief as prayed for?
Decision with Reasons
Point No.1 :
In course of argument the Ld. Advocate for the OPs 1,2 and 4 contended that the complaint is barred by limitation u/s.24A of the Consumer Protection Act, 1986 on the ground that the last visit of the car in question to any Maruti Suzuki authorized workshop was on 09-05-2015 and, thereafter, the complainant did not report about the defect of fuel filler neck to any Maruti Suzuki authorized workshop till 11-09-2017. He further contended that complainant purchased the subject car on 08-02-2014 and warranty also continued till 07-02-2016. Complainant was silent till 11-09-2017 and the instant complaint has been filed on 21-11-2017. Ld. Advocate vehemently argued that the legal notice dated 12-09-2017 does not create any cause of action. In support of his contention the Ld. Advocate for the contesting OPs have cited a decision reported in J.T.2009(4) S.C. 101 (State Bank of India – vs. – B. S. Agricultural Industries).
On the contrary, the Ld. Advocate for the complainant contended that cause of action has been continuously running from the date of delivery of the subject car. He further submitted that in a dispute concerning a consumer, it is necessary for the Forum to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. According to him, the provision of limitation act cannot be strictly construed to disadvantage a consumer in case where a supplier of goods or services, itself is instrumental, in causing a delay in the settlement of the Consumers’ claim. In support of such contention the Ld. Advocate for the complainant cited a decision of the Hon’ble Supreme Court decided on 07-04-2017 in Civil Appeal Nos.3883 of 2007 and 1156 of 2008.
We have heard the submission of both sides and also perused the entire record. It remains undisputed that the complainant purchased a Swift VXI car bearing Chassis No.MA3EHKD1S00576975MD, Engine No.K12MN1347396 from the OP3 on 08-02-2014, an authorized dealer of OPs 1 and 2. It is also true that OP4 is a service centre of OPs1 and 2. The fact remains that the warranty of the subject car has elapsed on 07-02-2016 due to efflux of time. Complainant brought the subject car to the service centre, OP4 on 28-03-2014, 02-09-2014 and 09-05-2015 for servicing. The OP4 made necessary job work of the subject car. No document is forthcoming on the part of the complainant that he reported any defect as alleged in the complaint to the OPs prior to issue legal notice dated 12-09-2017. It is also true that the complainant last visit of subject car to OP4 on 09-05-2015 and, thereafter, complainant did not report about the defect of faulty fuel filler neck of the subject car to any authorized Maruti Suzuki Workshop till the date of filing complaint.
It is well settled principle of law that any relief can be claimed under the act is to be filed within 2 years from the date on which the cause of action accrues.
Section 24A of the Act deals with the situation which is reproduced as under :
“24A, Limitation period – (1) 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 :
(2) 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 sufficient 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 such delay.”
The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.
In State Bank of India vs. B.S. Agricultural Industries, J.T. 2009 (4) SC 191, the Hon’ble Apex Court while dealing with the same provision, has held : - 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 24A 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 24A 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.”
In National Insurance Co. Ltd. – vs. – Hindustan Safety Glass Works Ltd. with National Insurance Co. Ltd. – vs. Kanaria Chemicals & Industries Ltd. decided on 07-04-2017 in Civil Appeal Nos.3883 of 2007 and 1156 of 2008 the Hon’ble Supreme Court while dealing with the same provision has held that in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the act cannot be strictly constructed to disadvantage a consumer in a case where the supplier of goods or services itself is instrumental of the consumers’ claim. We have gone through the above referred decision. The facts of the above referred decision is different from the facts of the instant case.
It is settled that by serving the legal notice or making representation, the period of limitation cannot be extended by the complainant. In the instant case, complainant purchased the subject car on 08-02-2014 from OP3, an authorized dealer of OPs 1 and 2 and its warranty period elapsed on 07-02-2016 by efflux of time. Complainant also brought the subject car to the OP4 service centre of OPs 1 and 2 on 28-03-2014, 02-09-2014 and 09-05-2015. Thereafter, complainant was silent till 11-09-2017 and on newspaper publication the complainant woke up and prays for refund of the whole amount of Rs.5,75,000/- including compensation of Rs.12,00,000/- for harassment, mental agony and Rs.30,000/- as litigation cost. The instant case has been filed on 21-11-2017. Complainant’s plea is that cause of action arose when legal notice dated 12-09-2017 sent to the OPs 1 and 2 cannot be accepted. Merely sending of legal notice does not continue a cause of action nor extends the period of limitation. Admittedly, the complainant has not filed any application for condonation of delay. The complainant remains inactive for about 20 months and suddenly sent legal notice to the OPs 1 and 2. This cannot entitle the complainant for waiver of limitation period by making any representation. Any correspondence cannot also extent limitation period. In the light of above aspect, we are of the view that complaint is barred by limitation. Thus, point No.1 answered in the negative.
Points No.2 to 4 :
In view of determination of Point No.1 we are of the considered opinion that remaining points under determination are not require to be discussed and decided because in all occasions the complainant will not get any relief as claimed in points no.2 to 4.
In the result, the complaint fails.
Hence,
Ordered
That the Complaint Case be and the same is dismissed on contest against the OPs 1,2 and 4 and also dismissed ex parte against OP3.
No cost is imposed upon any of the parties.
