- (1.) THIS complaint under sec. 12 of the Consumer Protection Act, 1986 (Act No. 68 of 1986) (for short' 'the Act' herein) has been filed by the complainant. It was received on June 8, 1989. The complainant put his signatures on it on 25-7-89. It was alleged by the complainant that he purchased truck chassis No. DAJ DAE 00044 Engine No. 354 S. 22867 for Rs. 2,26,256. 41 P. vide debit memo dated 23-9-80. Its financers were Bank of Baroda, Jodhpur. The above Truck was plied by the complainant for a few months and thereafter it became defective. The defects developed to such an extent that it was impossible to repair it. It has been stated in the complaint that the truck chassis purchased by the complainant was got inspected by Shri Kishan Singh Deora and he detected several manufacturing defects. It has been stated in para 2 of the complaint that the inspection report is submitted herewith. It may be mentioned that the Inspection Report submitted by the complainant relates to Truck No. RRN 2, which belongs to Nathu Singh Bhanwarlal. Some of the defects pointed out are mentioned in para 2 of the complaint. The complainant has said that the opposite-parties failed to supply spare parts. They did not arrange for its repair and servicing and as a result of that the truck completely went out of order on account of which, he suffered damages. The details of the damages/compensation claimed by the complainant are: (i) price of the chassis-Rs. 2,26,256. 41p. , (ii) cost of erecting body-Rs. 23,000/ -. (iii) expenses incurred on repairs-Rs. 2,09,000/-; (iv) interest on loans of banks Rs. 3,17,000/-; (v) Driver tax, insurance Rs. 87,000/- (vi) compensation on account of mental torture etc. Rs. 1,15,000/-, Total Rs. 9,77,256. 41p. Writ Petition No. 2012/87 was filed under Art. 226 of the Constitution of India which was decided on Feb. 3, 1989. According to the complainant, the High Court ordered that the complainant should file claim for compensation before the Consumer Protection Forum. Hence, this complaint in pursuance of the order of the Rajasthan High Court. As there were certain defects in the complaint, the complaintant removed them and filed the copies of the documents. On August 23, 1989, we directed the complainant to satisfy us as to how the claim made by him in the complaint is within limitation. He prayed for two days' time which was allowed. On 26-8-89, he submitted written arguments. We orally heard the parties on the question of limitation.
(2.) BEFORE examining the question of limitation, it may be mentioned that the HIGH COURT OF RAJSTHAN , in its judgment dated 3/2/1989, has, inter-alia, stated as under : "Apart from this, if any defective vehicle has been supplied by respondent no. 3 to any of the purchasers, the obvious remedy is to file appropriate proceedings for recovery of damages/compensation." The writ petition was dismissed as it had no force. The truck chassis was purchased by the complainant on 23/9/1980. A few months after it developed defects and gradually it became so bad that repairs could not be affected. The complainant did not get truck inspected by Shri Kishan Singh Deora as alleged by him in para 2 of the complaint. He has submitted Inspection Report Ford 1210-D dt. 21/4/1989. This pertains to vehicle No. RRN 21 belonging to Shri Nathu Singh Bhanwarlal. The fact remains until the date of the filing of the complaint, the complainant did not get his vehicle inspected from Shri Kishan Singh Deora as alleged by him. No inspection report of the vehicle purchased by the complainant has been placed on record. In the letter dt. 6-2-83, which was sent to Rajendra Rice and General Mills the New India Insurance Company Ltd. stated that they are not accepting the insurance of Ford trucks because of the bad market of the vehicle and the general break down of the same. Chapters I, II and IV of the Act came into force from April 1, 1987. Chapter III of the Act came into force from July 1, 1987. The Act does not make any provision for limitation. The Limitation Act, 1963 (Act No. 36 of 1963) has not been made applicable to the complaints filed under the Act. Material part of Sec. 29 of the Limitation Act, 1963 reads as follows : "29 (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (IX of 1872 ). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by such special or local law. There is no question of applicability of Sec. 30 of the Limitation Act, 1963, which relates to provisions for suits etc. for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908. This complaint relates to the refund of purchase price and damages/compensation, the details of which have been mentioned in para 3 of the complaint. In the written arguments on behalf of the complainant, three points have been mentioned, which are as under : (1) that the provisions of the Limitation Act do not apply as the Act by necessary implication excludes the applicability of Limitation Act. Further that the complaint filed by the complainant is neither a suit nor an appeal nor an application and so there is no limitation prescribed by the Limitation Act; (2) that in the alternative, if the provisions of the Limitation Act apply, it is Art. 137 of the Limitation Act which is attracted which prescribes a period of three years to be computed when right to apply accrues. According to the complainant right to apply under the Act accrued in 1988; (3) that there is a continuous cause of action and every day fresh period of limitation starts and so the claim made in the complaint is within limitation. The question whether the provisions of the Limitation Act, 1963 are applicable to the complaint filed under the Act arose before the National Commission New Delhi in Oswal Fine Arts Vs. H. M. T. (Petition No. 1/1988, decided on 27-4-89 ). (The decision is reported in 1989 (MRTP1) (1 ). To quote from the report : "First and the formost, the complaint is highly belated one, inasmuch as the purchase of the machine took place in the year 1979. Any claim for damages or compensation arising out of the said contract had become time barred under the Law of Limitation, long prior to the coming into force of the Consumer Protection Act. In such a case, this Commission will not entertain such stale claim." The principle laid down in this decision is that if any claim for compensation/ damages has become barred by limitation under the provisions of the Limitation Act; it cannot be entertained and decided though it is within limitation from the date when Chapter III of the Act came into force. The claim that had already become time barred prior to the coming into force of the Act will not stand revived simply on the ground that it has been filed within the time prescribed under the Limitation Act after the Act had come into force. In the case on hand, the truck chassis was purchased on 23-9-80. According to the complainant ...[Vernacular Text Ommited]... The complainant is said to have repaired the truck. Nothing has been stated in the complaint as to when the repairs were effected and on what repairs the amount was spent as alleged by him. Sec. 12 of the (Indian) Sale of Goods Act, 1930, deals with Conditions and Warranties. It reads as follows : "12. (1) A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty; (2) A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated; (3) A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated; (4) Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract." Whether the complainant on account of the defects which the truck had developed a few months after on account of breach of conditions could repudiate the contract or to claim damages on account of the defects, nothing has been stated by him. The complainant has claimed, amongst others, return of the sale price amounting to Rs. 2,26,256. 41p. A perusal of the details of the compensation claimed by him shows that they are in the nature of compensation/ damages as such. Various items of claim have been combined in the complaint, if it is to be treated as suit, it is Art. 113 and if it is treated as an application it is Art. 137, which are applicable. Both the Articles are as under : 113. Any suit for which no period of limitation is provided elsewhere in this Schedule. Three Years When the right to sue accrues. 137. Any other application for which no period of limitation is provided elsewhere in this Division. Three Years When the right to apply accrues. Whether Art. 113. or 137 of the Limitation Act is applicable, one thing is clear that three years are to be counted either when the right to sue accrues or when the right to apply accrues. The other important condition is that for suit or application, no period of limitation should have been prescribed in the First Schedule of the Limitation Act. In this case, the cause of action accrued to the complainant on 23-9-80 when the truck chassis was purchased or at any date a few months after when the truck developed certain defects. The complainant could neither file suit nor make an application for claim made by him under the Limitation Act on the date, he filed the complaint. As three years had already expired long before the coming into force of Chapter III of the Act and when such claim had become barred by time at the time of the coming into force of the Act, it cannot be entertained within three years from the date of coming into force of the Chapter III of the Act. The complaint as stated above was received on June 8, 1989. The claim made therein had become barred under the Law of Limitation. The facts in Oswal Fine Arts case (supra) are more or less identical with the facts of the present case. We respectfully follow it and hold that the complainant's claim for compensation which he had demanded in the complaint is time barred under the Law of Limitation. As it is a stale claim, it cannot be entertained. This disposes of first and second points mentioned in the written arguments submitted by the complainant.
(3.) THE third point has already been mentioned above. It relates to recurring cause of action. Sec. 22 deals with continuing breaches and torts. THE present case is not that of a continuing breach of contract or a continuing tort. Ordinarily cause of action for a suit for damages for breach of any contract arises when the contract is broken or (when there are successive breaches) when the breach in respect of which the suit instituted occurs or (where the breach is continuing) when it ceases. In this case, there is no question of continuous cause of action as stated in the written arguments submitted on behalf of the complainant. A perusal of the complaint filed by the complainant shows that he has claimed quantified compensation. Nothing has been stated in the complaint about limitation in respect of the various amounts claimed under different heads. Once he has claimed the refund of the price of the chassis and the cost of the body built by him and also the expenses incurred on its repairs, the question of continuing breaches and torts does not arise. We may mention that the writ petition was filed in the HIGH COURT OF RAJSTHAN in the year 1987 when the claim had already become time barred inasmuch as the truck was purchased on 23-9-80. The writ petition was decided on Feb. 3, 1989 and it was dismissed. That also does not furnish any cause of action inasmuch as the claim had already become barred by time when the writ petition was filed. The above discussion clearly shows that the claim for compensation filed by the complainant on the basis of the purchase made by him on 23-9-80 is beyond the period of limitation. It is a stale claim and cannot be entertained. ;