State Consumer Disputes Redressal Commission
Milan Shah, Managing Director,Neptune ... vs Suresh Pandharinath Bhandarkar on 18 January, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/05/2195
(Arisen out
of Order Dated 06/08/2005 in Case No.94/1995 of District Forum, Amravati)
1. Milan Shah,
Managing Director,
Neptune Equipment Private Ltd.,
12, Western India
House, 2nd Floor,
Sir
P.M. Road, Fort, Mumbai- 400 001.
2. Neptune
Equipment Private Ltd.,
407, G.I.D.C. Indl. Estate,
Odhav, Ahmedabad- 382 415.
..... Appellant(s)
Versus
Suresh Pandharinath Bhandarkar,
Prop. M/s Swagat Services
Badnera
Road, Amravati,
Tah. & Distt. Amravati (M.S.) .....
Respondent(s)
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
PRESENT:
Adv. Mr. Solat
......for the Appellant
Adv. Mr. Pounikar
......for the Respondent
ORDER
(Delivered on 18/01/2012) PER SHRI S.M.SHEMBOLE, HON'BLE PRESIDING MEMBER.
1. This appeal is directed against the judgment and order dated 06/08/2005 passed by the District Consumer Forum, Amravati in Complaint No.94/1995 partly allowing the complaint and directing the appellant/opponent to replace the machinery or alternatively to repay an amount of price of machinery with interest at the rate of 9% p.a. with transportation charges at Rs.3312/- and cost of proceeding etc. Further opponents are directed to pay compensation at Rs.10,000/- for causing mental and physical torture and Rs.1000/- towards cost of the proceedings.
2. Brief facts giving raise to this appeal are that, Respondent / complainant - M/s. Swagat Services, Amravati is a proprietary firm. It is a Dealer and service centre of Maruti cars. Opponent No.1 Shri Milan Shah is a Managing Director of opponent No. 2/appellant No. 2 Neptune Equipment Pvt. Ltd. who is manufacturer of Wheel Aligner and Wheel Balancer equipment. (For the sake of brevity original opponents hereinafter called as appellant and original complainant as respondent). In the first week of Janurary,1991 the respondent had purchased Bossbarth Wheel Aligner model Microline 1800 along with standard accessories and the Wheel Balancer Microtec 500 from the appellants for consideration of Rs.3,50,000/-. The delivery of the machine was given at Amravati in the month of June-1991. The respondent received the delivery in the presence of Shri Prashant Bhandekar and Sandip Chavan, who were officers of appellant No. 2 -M/s Neptune Equipment Pvt. Ltd. At the same time machines were found in rusty and shabby condition. Therefore, immediately thereafter this fact was brought to the notice of appellant No.1- Shri Minal Saha on telephone and also it was confirmed in writing letter dated 09/07/1991 and delivery of the machine was accepted under protest and with a clear understanding that the machines will be replaced by new machines, etc. After verifying the condition of the machine through the representative of the appellant, the appellant No.1 assured to replace the machine within 2-3 weeks. Thereafter, by letters dated 16/08/1991 and 20/08/1991 the respondent requested the appellants to replace the machines but the appellants avoided to replace the machines. Thereafter, by letter dated 23/09/1991 the respondent informed the appellant about the inconvenience and loss caused to his business. Thereafter, in the first week of the November, 1991, once Shri Shashi Pille, representative of the appellants, took trial of the wheel aligner and verified the condition of wheel aligner. However, he told that it may be due to the problem of electricity, etc. and did not take proper action. The respondent again and again requested the appellants to replace the machines, he has also sent reminders but since the appellants did not give any response, he has filed the complaint before the District Consumer Forum, Amravati.
3. In response to the notice the appellant appeared before the District Consumer Forum, Amravati and resisted the complaint vide their written version dated 02/04/1995. They have denied the claim mainly on 3 grounds viz (1) The District Consumer Forum has no jurisdiction to entertain the complaint, as the complainant does not fall within the definition of Section 2 of Consumer Protection Act. (2) The complaint is barred by limitation and (3) there is no deficiency in service on the part of appellant, etc. It is denied that the machines, in question, were rusty and were not functioning as allege. It is contended that the machine were damaged due to electricity problem. It is submitted to dismiss the complaint.
4. On hearing both the sides and considering the documents on record, the District consumer Forum, Amravati held that there was deficiency in service on the part of appellants. The District Consumer Forum, Amravati negativated the contention of the appellants that the machines were purchased by the respondent for commercial purpose and it has no jurisdiction to entertain the complaint, etc. The District Consumer Forum, Amravati has also negativated the contention that the complaint is barred by limitation.
5. In keeping with these findings, the District Consumer Forum, Amravati allowed the complaint, directing the appellants to replace the machines or in the alternative to repay an amount of price of machinery to the complainant/respondent which he has paid towards the price of machines and also transportation charges with interest at the rate of 9% p.a. Further appellants are directed to pay compensation at Rs.10,000/- to the respondent for causing mental and physical torture and amount of Rs.1000/- to the respondent towards cost of proceedings.
6. Feelings aggrieved by the same judgment and order opponents/appellants have preferred this appeal.
7. We heard counsel for both the sides and perused the copy of impugned judgment and order, copy of complaint, written version and other documents produced along with appeal memo.
8. Mr. Solat, Ld. Counsel for the appellants vehemently argued that since, undisputedly, the respondent/complainant is running a business namely, Dealer and Service Centre of Maruti Cars, the complaint itself is not maintainable as contemplated under section 2(d)(i) of Consumer Protection Act. According to Mr. Solat, Ld. Counsel for the appellants; the machines, in question, were purchased by the respondent for business purpose and therefore, he is not a consumer, etc.
9. As against the submission of Ld. Counsel for the appellant, Mr. Pounikar, Ld. Counsel for the respondent submitted that though the goods, in question, were purchased by the respondent/complainant for the purpose of his business and not for sale so as to gain any profit and therefore, same can not be considered as commercial purpose.
10. We find much force in the submission of Mr. Pounikar, Ld. Counsel for the respondent/complainant; because, undisputedly, the machines, in question, were purchased by the respondent/complainant for the use of his business and not for resale so as consider it as commercial purpose, as contemplated under section 2 (1)
(d) (i) of the Consumer Protection Act. Hence, we are unable to accept the arguments advanced by Adv. Mr. Solat for the appellant.
11. Mr. Solat, Ld. Counsel for the appellants contended that the District Consumer Forum, Amravati has no jurisdiction to entertain the complaint and therefore, the impugned order being passed without jurisdiction, is not maintainable in law, etc. According to him, since, undisputedly, the appellants No.1 is residing at Mumbai and appellant No.2 at Ahamdabad and they are running their business in respective places only and not at Amravati, the District Consumer Forum, Amravati has no jurisdiction to entertain the complaint.
12. It is denied by the Mr. Pounikar, Ld. Counsel for the respondent / complainant and submitted that since the delivery of the goods was given at Amravati and business of respondent is in Amravati, the meeting dated 16/07/1991 held at Amravati where assurance was given by the appellant through their representative to replace the machines, the District Consumer Forum, Amravati has jurisdiction to entertain the complaint.
13. We find little force in the submission of Mr. Pounikar, Ld. Counsel for the respondent / complainant. Because though the delivery was received at Amravati and assurance for replacement given by the representative of the appellants to the respondent at Amravati, same cannot be considered. Since, undisputedly the appellants No. 1 & 2 are running their business at Mumbai and Ahamadabad respectively and their offices are at their respective place only, the respondent / complainant ought to have filed their complaint at Mumbai or Ahamadabad. However, since this objection was not raised before the District Consumer Forum, the same cannot be considered in this appeal. However, Mr. Solat, Ld. Counsel for the appellants pointing out the para No. 2 from the copy of written version tried to point out that the appellants have already raised such objection about jurisdiction, etc. But on perusal of para No. 2 from the written version it manifests that the opponents/appellant have raised objection on the point of jurisdiction contending enter alia that the District Consumer Forum has no jurisdiction as the complainant is not a consumer etc., It does not reflect that the objection raised is about territorial jurisdiction of the District Consumer Forum, Amravati. Hence, the arguments advanced by Mr. Solat, Ld. Counsel for the appellants about this point cannot be considered. It is well settled law that the legal objection in respect of jurisdiction, limitation, etc. should be raised at initial stage of the proceeding only and if it is not raised, it should be considered acquiesce as per proviso under section 11(2) (b) of Consumer Protection Act. In the present case, since the objection about territorial jurisdiction of the District Consumer Forum, Amravati was not raised before the District Consumer Forum, Amravati, the same cannot be agitated in appeal. Hence, the arguments advanced by Mr. Solat, Ld. Counsel for the appellants, are not being sustainable in law, cannot be accepted.
14. Now the let us proceed to consider law point about limitation. It is not disputed and cannot be disputed that as per the provision of section 24 A Consumer Protection Act that the complaint should be filed within 2 years from the date of cause of action. From the undisputed facts to the present case, it is obvious that the defect in the machines in question, were pointed out since immediately after the delivery of the machine in the month of June-1991. Therefore, Mr. Solat, Ld. Counsel for the appellants submitted that the cause of action arose in the month of June-1991 and hence, the complainant/respondent ought to have filed the complaint within 2 years from the month of June-1991 but he has filed the complaint on 08/03/1995 i.e. after 4 years which is not maintainable, etc. But we find little force in the submission of Mr. Solat, Ld. Counsel for the appellant because though the defects in the machines were noticed in the month of June-1991 the same cannot be a cause of action for filing the complaint. The date of cause of action should be considered when the opponents denied the claim. Mr. Pounikar, Ld. Counsel for the respondent/complainant pointed out from letter dated 09/07/1991 sent by the respondent/complainant to the appellant No.1, that the appellants assured respondent to replace the machines. Not only that the appellants by letter dated 20/08/1991 informed the complainant/ respondent confirming their decision for replacement of wheel aligner computer and wheel balancer parts, etc. Not only this, by letter dated 18/01/1993 the appellants expressed their regret to despatch the wheel balancing weights as outstanding Rs.6608.75 due to respondent, etc. If there were such outstanding dues, they would have informed the same to the complainant / respondent earlier. Therefore, Mr. Pounikar, Ld. Counsel for the respondent submitted that in order to avoid to replace the machines appellants sent the letter showing outstanding due, etc. and therefore, the complainant / respondent was required to issue notice dated 12/09/1994 to the appellant No.1 for causing loss to his business due to non-functioning of machines, in dispute, but no reply was given by the appellant and therefore, the complainant was constrained to file the complaint.
15. We find much force in the submission of Mr. Pounikar, Ld. Counsel for the respondent and hold that there was continuous cause of action and cause action occurred on letter dated 12/09/1994. Thus it can not be accepted that the complaint is barred by limitation.
16. For the foregoing reasons, District Consumer Forum has rightly partly allowed the complaint. We find no error or infirmity in the impugned order. Hence, no interference is warranted.
17. In the result, appeal is being devoid of any merit, liable to be dismissed. Hence, the following order.
ORDER
1. Appeal is dismissed.
2. No order as to cost.
3. Copy of this order be supplied to the parties.
Dated-18/01/2012.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay