- (1.) IN this complaint under the provisions of the Consumer Protection Act, the complainant prays for a direction to the opponents to refund price of Tata Estate car bearing registration No. GJ -l -K -7132 being 4,23,000.10 with interest @ 18% being Rs. 13,55,747 from the date of the payment till the date of filing the complaint totalling Rs. 17,76,757.89 and further interest from the date of filing till realisation of the amount and also Rs.3,00,000 by way of compensation for mental torture, agony and harassment and cost quantified at Rs. 25,000. In the complaint it is stated that the complainant had purchased Tata Estate car bearing registration No. GJ -l -K -7132 from the opponents; that opponent No. 2 is the dealer of opponent No. 1 who is the manufacturer of Tata Estate cars; that the complainant had filed complaint No. 326 of 1996 before the Consumer Disputes Redressal Forum at Ahmedabad on 6.6.1996 which was dismissed on 6.10.1997 on the ground of want of pecuniary jurisdiction and limitation; that certified copy of the said order is Annexure -A; that being aggrieved by said judgment, the complainant preferred Appeal No. 87 of 1998 before the State Commission which came to be dismissed on 7.2.2003; that copy of the order is Annexure -B; that the complainant filed Civil Misc. Application (Review Application) No. 46 of 2003 for review of the said judgment as the matter was not heard on merits; that the said CMA also came to be dismissed on 12.9.1993 as not being maintainable; that the complainant had purchased Tata Estate car from opponent No. 2 for Rs. 4,23,010.20 on 5.9.1992 which ultimately appeared to be having inherent manufacturing defects beyond repairs; that even before taking delivery of the car when he was called on 3.9.1992 for inspection of the car on superficial inspection, the complainant noticed certain defects and addressed a letter dated 3.9.1992 to the opponent copy whereof is Annexure -D; that upon taking delivery of the car on 5.9.1992 near Aslali Tolnaka, the horn of the car failed; that on the next day while going from Ahmedabad to Mumbai, near Vadodara the brakes of the car failed and near Bharuch the windshield wipers failed; while returning from Mumbai also the car was not working satisfactorily; that the car was shaking at a speed of 80 kms. per hour and the tyres were showing uneven wear due to improper alignment. The air -conditioner of the car was also not working satisfactorily and since the opponent failed to repair, at the instance of the opponents, the complainant took the car to Subros Limited at Noida (New Delhi) and had to remain for two days and spent Rs.2,000 for lodging and boarding; that the complainant also came to know that the battery failure problem in the car was due to defective alternator/regulator supplied by Lucas TVS to the opponents. It is stated that there was oil leakage, Air -conditioner malfunctioning, battery failure, horn failure, door switches not working properly, electrical switches not working and rattling noise, water leakage through windshield during rains, etc.; that number of times complaints were made and repairs attempted to be effected but did not materialise; that the opponents have abandoned the production of said model of car and withdrew the same from market. This fact itself suggests the inherent manufacturing defects in the car, that the complainant was prepared to purchase a better version by paying difference amount. Even the said request of the complainant was not accepted; that the complainant entered into long drawn correspondence with the opponents. The complainant's car repairs were at times attended free of cost even after warranty period till September, 1995 and it was stated that the warranty would not be over till the complainant was satisfied. The complainant, however, received a letter dated 28.9.1995 from opponent No. 2 indicating that henceforth they will not attend the repairs as a matter of goodwill gesture though the inherent manufacturing defects were not removed satisfactorily. All these necessitated filing of Complaint No. 326 of 1996, then appeal and the review application as stated above; that the complainant was not aware of the pecuniary jurisdiction of the learned Forum at the relevant time and in the rejoinder also stated that he was prepared to reduce the claim within the admissible limits of the Honourable Forum but the same was not considered and the complaint came to be dismissed by the learned Forum; that the complainant was prosecuting the proceedings with due diligence firstly in the Honourable Forum and thereafter in the Commission in good faith. He is therefore entitled to exclusion of time bona fide in the Honourable Forum as well as in the Honourable Commission in view of the provision contained in Section 14 of the Limitation Act. On these averments, reliefs reproduced above have been claimed in para 8 of the complaint. Vide reply Exh. 12, opponent Nos. 1 and 2 refuted the claim of the complainant denying the allegations contained in the complaint inter alia contending that the complaint suffers from bar of limitation and the complaint is liable to be dismissed as the same is not filed within the prescribed period of limitation. It is not disputed that the complainant filed Complaint No. 326 of 1996 before the learned Ahmedabad City Consumer Disputes Redressal Forum, which came to be dismissed on the ground of want of pecuniary jurisdiction; that against the order of dismissal of the complaint, Appeal No. 87 of 1998 was filed by the complainant which was dismissed by the State Commission. The complainant preferred Review Application No. 46 of 2003 seeking review of the judgment and order passed in Appeal No. 87 of 1998 which also came to be dismissed by the State Commission; that the complainant is not a consumer and therefore not entitled to file the complaint; that on 11.7.1992 the vehicle was sold to one Shanta A. Tolat and complaints were filed for the said vehicle; that necessary repairs were carried out by the opponent in the vehicle bearing the expenses of repairs to the tune of Rs. 24,800; that thereafter there was no complaint received from Shantaben about the said vehicle. It is denied that the vehicle suffered from any manufacturing defect. Still, however, on the basis of the complaints of Shantaben Tolat at the relevant time repairs to the tune of Rs. 2,48,000 were carried out and body shell of the vehicle was replaced by the opponents and thereafter, no complaint has been received by the opponent.
(2.) IT is submitted by Mr. S.P. Sen, learned Advocate for the complainant that the Tata Estate car was purchased on 5.9.1992; that there was warranty for a period of 18 months from the date of purchase; that even after the warranty period repairs have been carried out by the opponents as a gesture of goodwill; that there were number of defects in the car, that by virtue of the provisions contained in Section 14 of the Limitation Act, the time spent in the previous litigation is required to be excluded and therefore the complaint is within the period of limitation. It is further contended that there were number of defects in the car and the defects were not repairable being manufacturing defects, the complainant be granted the reliefs prayed for in the complaint. As against this, it is submitted by Mr. D.N. Shah, learned Advocate for the opponents that the complaint is barred by limitation inasmuch as according to the complainant the car was defective right from day one and as a gesture of goodwill, the car was repaired even beyond the warranty period; that the complaint is barred by limitation and Section 14 of the Limitation Act would not be attracted in the present case for the purpose of exclusion of time taken in earlier litigation. Before we go to the merits, it would be appropriate to consider the question of limitation and the exclusion of time of proceedings bona fide in the previous complaint considering the provisions of Section 14(1) of the Limitation Act
(3.) IT is not in dispute that the complainant purchased Tata Estate car from the opponents on 5.9.1992 by paying Rs. 4,23,010.20. The delivery of car was taken on 5.9.1992 by the complainant. It is also suggested from the complaint that on 3.9.1992 the complainant was called for the inspection of the car and certain defects were noticed and letter dated 3.9.1992 was addressed by the complainant to the opponent and thereafter the delivery of the car was given on 5.9.1992 to the complainant. Thus, it would be seen that the defects were noticed, according to the complainant, in the car even prior to the taking of delivery of the car on 5.9.1992. According to the complainant, Complaint No. 326 of 1996 was filed on 6.6.1996. Copy of the order passed by the learned Ahmedabad City Consumer Disputes Redressal Forum dated 6.10.1997 in Complaint No. 326 of 1996 is produced at Annexure -A. It is suggested therefrom that the complaint came to be dismissed on two grounds, firstly for want of pecuniary jurisdiction and secondly limitation. The order passed in the complaint was challenged by way of Appeal No. 87 of 1998 before the State Commission. Copy of the judgment dated 7.2.2002 rendered in Appeal No. 87 of 1998 by the State Commission is at Annexure -B. By the said judgment in appeal, the State Commission dismissed the appeal also observing that the learned Forum cannot be said to have fallen into error when it has proceeded to decide the matter with a view to give finality to the order. Also observing that the conclusion rendered by the learned Forum on question, other than the question of pecuniary jurisdiction, will not prejudice the case of the complainant on the merits of the matter that might be presented before the appropriate authority/Court. The order passed in Appeal No. 87 of 1998 was sought to be reviewed by filing Review Application No. 46 of 2003 by the present complainant. Vide order dated 12.9.2003 this Commission dismissed the review application as not permissible under the provisions of Consumer Protection Act, 1986 observing that as far as limitation is concerned, the applicant will get benefit of Section 14 of Limitation Act, 1963. It may be seen that Complaint No. 326 of 1996 was filed on 6.6.1996; and Appeal No. 87 of 1998 came to be dismissed on 7.2.2002. This will show that the time consumed in prosecuting the complaint and the appeal would come to six years and four months and one day. The Review Application No. 46 of 2003 came to be filed, as it appears from Annexure -C on 17.2.2003 and by order dated 12.9.2003, the review application came to be dismissed as not maintainable under the provisions of the Consumer Protection Act, 1986. Thus, the time consumed in prosecuting the Review Application would come to six months and twenty three days. Mr. S.P. Sen learned Advocate for the complainant has placed reliance on the provisions contained in Section 14 of the Limitation Act and contended that the time spent in the proceedings viz. Complaint No. 326 of 1996, Appeal No. 87 of 1998 and Review Application No. 46 of 2003 should be excluded for computing the period of limitation for the purpose of filing this complaint.;