Full Judgment Text
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CASE NO.:
Appeal (civil) 1771-1772 of 2002
PETITIONER:
M/S. KERALA AGRO MACHINERY CORPORATION . LTD
Vs.
RESPONDENT:
BIJOY KUMAR ROY & ORS
DATE OF JUDGMENT: 28/02/2002
BENCH:
D.P. Mohapatra & Brijesh Kumar
JUDGMENT:
BRIJESH KUMAR, J.
Leave granted.
Heard the learned counsel for the parties.
This appeal has been preferred against the order passed
by the National Consumer Disputes Redressal Commission,
New Delhi dated August 5, 1999 dismissing the Revision
petition filed by the appellant against the orders passed by the
State Consumer Disputes Redressal Commission West Bengal.
The complainant, who is respondent No.1 in this appeal
purchased a Kuboto power tiller on 21.4.1988 from the
appellant, namely Kerala Agro Machinery Corporation Limited
at its Malda branch, through its dealer, West Bengal Agro
Industries Corporation. According to the respondent No.1, the
Power Tiller started giving trouble within the warranty period,
in respect whereof he made a complaint for repairs and
replacement of certain parts, but the complaint was not
considered nor defects removed, hence ultimately he filed a
complaint before the District Consumer Forum Malda on
16.6.1994.
The District Consumer Forum, Malda by order dated
15.9.1994 allowed the claim of respondent No.1 and directed
that the Power Tiller be replaced by a new one. A
compensation of Rs.2,000/- and all costs were also awarded to
the complainant. The District Consumer Forum observed that
once the opposite parties to the claim Petition had admitted the
defects of the parts as claimed by the complainant,
subsequently they could not deny the same as an after thought.
The prayer made on behalf of the Kerala Agro Machinery
Corporation for filing a reply to the claim was rejected by the
District Forum, it is though observed that both the parties were
heard at length but no plea of the present petitioner has been
mentioned or discussed in the order. An appeal preferred
against the order of the District Forum was dismissed by the
State Consumer Redressal Commission, West Bengal. The
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case of the appellant inter alia was that the claim was barred by
limitation. In this connection, the State Commission observed
that the claimant had been writing letters and reminders to the
manufacturers and dealers and the last one on 5.4.1994, but
since no effective steps were being taken by the manufacturers
for removing the defects, the complainant had to file the claim
ultimately on 27.6.1994. It is further observed that complainant
was only getting assurances for removal of the defects but the
manufacturer took no final decision in the matter, therefore, the
delay occurred on the part of the complainant in filing the
claim. The claim thus could not be said to be barred by
limitation, which was two years after the amendment of the Act
in 1993 and prior to that it was as provided under the General
Law. With these observations the State Commission upheld the
order passed by the District Forum. The National Commission
rejected the Revision observing that the manufacturer
specifically did not deny its liability to repair or replace the
Tiller and the State Commission rejected the plea of bar of
limitation, therefore, at this stage there was no question of
interference in the order passed by the State Commission on the
point of limitation. It is also observed real cause of the delay
was the assurances given by the dealer to get the defects
rectified.
Learned counsel for the appellant submitted that its case
has not been properly considered on the point of limitation or
otherwise by any of the three Forums dealing with the matter.
Learned Counsel for the appellant has taken us through the
conditions of warranty which indicates that the warranty period
is one year from the date of delivery or 500 hours of operation
whichever is earlier provided servicing and maintenance of the
power Tiller have been strictly observed as per operators
manual. Clause 4( c) indicates that damage due to inadequate
maintenance and servicing or due to ignorance of operators
would not be covered by the warranty. Clause 7 of the
warranty provides that it ceases immediately the power tillers
suffers an accident. He has then drawn our attention to P-2
dated 2.5.1988 written by the Claimant to the dealer indicating
that the Tiller had over turned on 2.5.1988 and was damaged a
little. It was made workable for the time being on the repairs
carried out by the mechanic.
The claim seems to have been lodged by the complainant
with the dealer on 20.2.1989. Learned counsel for the appellant
has taken us through the correspondence between the parties
to indicate that defect in respect of only one item at. S. No.V
was admitted, which was replaced as per despatch postal
receipt dated 13.7.1989. This fact is also indicated in the letter
of the appellant dated 9.7.1993. It was also said in the letter
that the claimant was raising very old claims, which had
become about 4 years old. We do not think it necessary to go
into further details of the matter. As it is clear that the claim
was lodged with the appellant in February 1989 in pursuance
whereof one admitted defective part had been replaced as
indicated earlier and other complaints are said to have been not
accepted or appropriately attended to. The counsel for the
appellant submitted that the needful was done even though an
accident was reported by the claimant himself on 2.5.88 and the
servicing schedule was also not adhered to. On behalf of the
respondent No.1 there is no denial of the fact that one part was
replaced by the manufacturer. The claim relating to defects was
lodged with the appellant in February 1989, in respect whereof
claim petition was filed in June, 1994 i.e. to say more than 4
years after lodgment of the claim with appellant.
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We find that the question of limitation has not been
considered seriously at any stage. There is no dispute that the
claim petition was barred by limitation. The National
Commission has only observed that the delay was due to the
assurances given by the dealer to get the defects rectified, but
surprisingly no letter has been particularly indicated in the
order much less within limitation, by which liability may have
been acknowledged by the appellant. The Commission further
observed that "at this stage", there could not be any question of
interference in the order of the State Commission on the point
of limitation. There seems to be no justification for negating
the plea of limitation with such cursory and passing
observations. The question of stage of the proceeding has no
relevance so far question of limitation is concerned. The claim
has been filed beyond the period of limitation say more than
four years after defects were pointed out.
Learned counsel appearing for the respondent No.1 also
could not indicate anything or document to show that the
complaint was filed within time. We agree with the submissions
made on behalf of the appellant that the claim of the respondent
No.1 was not entertainable by the District Consumer Forum
being barred by limitation.
In the result the appeals are allowed and the judgment
and orders passed by the District Forum, the State Commission
and the National Commission are set aside and the claim of the
claimant respondent No.1 is rejected.
There will be no order as to costs.
..J
(D.P. MOHAPATRA)
.J
(BRIJESH KUMAR)
February 28 , 2002