Agro Machinery Corporation . Ltd Vs. Bijoy Kumar Roy & Ors  Insc 99 (28 February 2002)
Mohapatra & Brijesh Kumar Brijesh Kumar, J.
the learned counsel for the parties.
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.
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.
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.
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 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.
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.
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.
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.
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.
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
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.
will be no order as to costs.