H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.

Appeal No. 284/2008.

Reserved on 27.7.2009.

Date of Decision 11.8.2009.

In the matter of:



The Solan District Truck Operators Coop. Transport Society Ltd.,

Darlaghat, Tehsil Arki, Distt. Solan, HP through its President,

Sh. Rattan Mishra.

… … Appellant/OP No.1.

Versus



1. Sh. Ramesh Kumar Sharma S/o late Sh. Lal Chand Sharma

R/o VPO Basantpur, Distt. Shimla, HP

… … Respondent/Complainant.



2. M/s Gujarat Ambuja Cement Ltd., Darlaghat, Distt. Solan

through its Senior Vice President.,



3. M/s Joginder Singh Negi & Brothers, VPO Moorang, Distt. Kinnaur,

HP through its Proprietor.

… … Respondent/ OPs 2 & 3.





Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting? No.



For the Appellant: Mr. Sanjeev Thakur, Advocate vice

Mr. R.P. Singh, Advocate.



For the Respondent. No.1: Mr. Swaran Sharma, Advocate



For the Respondent No.2: Mr. J.L. Sharma, Advocate vice

Mr. Peeyush Verma, Advocate.



For the Respondent No.3: Mr. Shashi Bhushan Singh Chandel,

Advocate.



O R D E R



Justice Arun Kumar Goel (Retd.), President.



Vide its order dated 18.8.2008 in Consumer Complaint No. 81/2004, while allowing the complaint of respondent No.1, District Forum below has directed the appellant to pay Rs. 10,310/- to respondent No.1 alongwith interest @ 9% per annum from the date of filing of the complaint, i.e. 15.3.2004 till full payment was made and cost of Rs. 1500/-. This amount has been ordered to be paid within 45 days after the receipt of copy of the order. Complaint against respondents 2 and 3 was dismissed.

2. Appellant is the Co-operative Society through whom cement is given for carriage by respondent No.2-Company. From the averments made in the complaint, it is clear that on 8.4.1998 vide GR No. SD-98002039, truck bearing registration No. HPS-7134 owned by respondent No.1 was loaded from the factory premises of respondent No.2 for being delivered to respondent No.3 at Moorang, District Kinnaur. According to respondent No.1, appellant after deducting its commission was held liable to pay Rs. 10,310/- towards freight charges to him.

3. What is further revealed from the complaint file is, that respondent No.1 was not paid freight either by the appellant or by any of respondents 2 and 3. He entered into correspondence as per stand of the appellant in this appeal with all of them.

4. Legal notice was also got issued by respondent No.1 to the appellant and its copy was endorsed to respondent No.2-Company when amount was not paid to him, respondent No.1 filed the complaint.

5. When put to notice, complaint was contested and resisted by the appellant, as well as by respondents 2 and 3 who in their separate replies to the complaint contested that there was no consumer dispute because respondent No.1 was not a consumer and neither the appellant nor respondents 2 and 3 were rendering any service. Jurisdiction of the Fora under the Consumer Protection Act, 1986 was also disputed.

6. Appellant and also respondents 2 and 3 specifically raised the plea that the complaint was time barred. A perusal of the impugned order shows that this aspect of the case has not at all been touched by the District Forum below while passing the impugned order and allowing the complaint of the respondent No.1.

7. In the aforesaid circumstances Mr. Thakur submitted that the complaint was not maintainable and in any case not before the Foras under the Consumer Protection Act, 1986. Further according to him complaint was barred by time and in the absence of there being any prayer to condone the delay under Section 24A of the Consumer Protection Act, 1986, District Forum below fell into error while passing the impugned order. It was also submitted that as per goods receipt which has purposely not been placed on record by respondent No.1 alongwith his complaint, freight was to be paid by the consignee-respondent No.3. Stand of respondent No. 3 in reply is that amount was paid to respondent No.1.

8. All these pleas were seriously contested and resisted by Mr. Sharma learned counsel for respondent No.1. According to him appellant was charging commission as service charge, therefore it was providing for service to its members like his client of procuring the carriage business and his client was entitled to the amount from the appellant in accordance with law. Further according to him complaint was not barred by time as the parties were under correspondence with each other, therefore cause of action was continuing an when finally needful was not done the complaint was filed on 15.3.2004. Thus according to him impugned order deserves to be upheld and he prayed for accordingly. This stand on behalf of respondent No1 was seriously disputed by learned counsel appearing for respondents 2 and 3 who amongst other things supported the plea of the appellant that the complaint was time barred and as already noted respondent No.3 pleaded payment, whereas respondent No.2 submitted that it was not liable for payment of any amount because goods were consigned ex-factory premises by it to the consignee-respondent No.3.

9. A perusal of the complaint file shows that neither in the complaint any prayer is made for condoning the delay, nor is there any separate application filed to that effect. Admittedly goods were entrusted for transportation on 8.4.1998. Complaint should have been filed within the period of limitation prescribed for the said purpose under Section 24A of the Consumer Protection Act, 1986. In this behalf learned counsel for the respondent No.1 had no answer, as such in the face of specific plea having been raised, it was the duty of the District Forum below to have dealt with the plea of limitation and then decided the same. By not doing so, it fell into error.

10. So far plea of Mr. Sharma learned counsel for respondent No.1, that his client was in correspondence with the appellant as well as respondents 2 and 3 is concerned, it is no significance muchless consequence, because limitation will not stop once it starts. Complaint was admittedly filed after about more than five and half years when the cement was transported and the payment was not made. Even while filing a time barred complaint a prayer could have been made for condonation of delay by pleading facts to show that it could not be filed because respondent No.1 was prevented by sufficient cause for doing the needful within time. There is not a murmur to that effect. Once this conclusion is arrived at, the decision of this complaint need not detain us. Complaint being time barred, we are of the view that other questions raised need not be gone into.

11. It has become necessary to deal with one aspect of the case that appellant wanted us to take into account documents attached with the grounds of the appeal. Admittedly these were in its possession and were not filed alongwith reply to the complaint before District Forum below. Why, learned counsel for the appellant had no explanation. Any additional/document/material cannot be accepted in appeal unless a case is made out for allowing such a prayer. It cannot be allowed to fill in the lacuna in the case by a litigant like appellant in this appeal before us. As such we have not referred to the documents attached with the grounds of appeal. Complaint being time barred on the admitted facts as set out in the complaint has only been taken note of while dealing with this appeal.

In view of the aforesaid discussion this appeal is allowed and as a result of it, order passed by District Forum, Shimla in Consumer Complaint No. 81/2004, dated 18.8.2008, is hereby set aside and consequently the said complaint is dismissed. Appeal is disposed of in these terms. No costs.

All interim orders passed from time to time in this appeal shall stand vacated forthwith.

Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.



Shimla,

August 11, 2009. ( Justice Arun Kumar Goel ) (Retd.)

President.



(Saroj Sharma)

Member.



( Chander Shekher Sharma )

/Karan/ Member.