STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 02.07.2018
Date of final hearing: 06.07.2023
Date of pronouncement: 18.08.2023
First Appeal No.825 of 2018
IN THE MATTER OF:-
Union of India, through Post Master, Head Post Office: Hisar.
....Appellant
Versus
Shiv Kumar, age 52 years, S/o Sh. Nikka Ram, earlier resident of Ganesh Market, Hisar, now R/o H.No. 416, Sector-40, Near Shopping Centre, Gurugram.
…..Respondent
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Alankrit Bhardwaj, counsel for the appellant along with Sh. Kuldeep Singh, Inspector, Post Office, Hisar.
Sh. Rose Gupta, counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal No.825 of 2018 is invited by opposite party (OP)/Union of India through Post Master, Head Post Office-Hisar to the legality of order dated 24.05.2018 passed by District Consumer Disputes Redressal Forum-Hisar (In short “District Consumer Commission”) in complaint case No.425 of 2017 vide which complainant’s complaint has been accepted.
2. Complainant has alleged that he had purchased Indira Vikas Patras (for short hereinafter as ‘IVPs’) from Head Post Office-Hisar bearing Nos.66C-881421 to 881500 on 13.06.1998. These were to mature after 5½ years and he was entitled to double of amount. To promote small savings, through post offices; Directorate of Small Savings-Haryana issued coupons along with these IVPs to him bearing 413301 to 413340 in his name and numbers of IVPs are mentioned in those 40 coupons. Unfortunately, IVPs of complainant were lost, along with many other IVPs Holders, on 30.07.1999 on way from Hisar to Narwana and one Shri Vivek Bansal was carrying these IVPs and some other IVPs of his relatives. Matter was reported to police of Police Station: Sadar Narwana. DDR dated 10.10.1999 was recorded. IVPs have not been traced out. In order to avoid encashment of these IVPs by some bad elements; matter was brought to the notice of addressee by way of legal notice. Coupons pertaining to said IVPs were also got lost by him and he could not be able to find out the same. He was searching for his IVPs but could not found. He tried to contact Head Post Master-Hisar to pay maturity amount, but OP said that: wherever coupons of IVPs will be found, he (complainant) will be entitled to maturity amount on these IVPs. Coupons were found by him in his house, in which, number of IVPs were mentioned and accordingly he went to office of OP, but they, made excuse on one ground or the other. He sent legal notice to OP for issuing duplicate IVPs, or to pay maturity amount, but in vain. He filed complaint for issuance of direction to OP/appellant herein to pay him maturity amount, along with interest, as per term and conditions of IVPs in question from 13.12.1998, till final realization and to pay Rs.5,000/- as cost of complaint.
3. OP/appellant in its defence, has submitted objections that: complainant having no cause of action; complaint being bad for mis-joinder and non-joinder of necessary parties; complainant has no locus standi; complaint not maintainable and complainant having not exhausted departmental channel available to him and there being no provision in rule to issue duplicate IVPs against lost, stolen or destroyed, vide Rule 57(10) of SB Manual Volume II. Serial No. of IVPs were written in legal notice as 66 CC 88142170424 to 66 CC 88142170500, whereas, in complaint Sr. No. of IVPs mentioned as 66 C-881421 to 881500, which is contradictory. While replying on merits, it has been submitted that IVPs were issued by Head Post Office-Hisar on 13.06.1998, but no record of name and address of purchaser is maintained by post office as per rule. Coupons issued by State Govt. are not legal proof of rightful holder, because these can be issued to anyone who produces IVPs for that purpose, to State Saving Authority. Maturity of IVPs is paid only, when original certificates (IVPs) are produced. According to India Post Rule; while issuing IVPs; name of holder does not mention on certificates, so anybody can take payment of IVPs, if he has original certificate(s). It is pleaded that legal notice, received on 03.11.2017 was replied on 07.11.2017. By denying other allegations, dismissal of complaint has been prayed.
4. Parties to this lis led their respective evidence, before District Consumer Commission-Hisar.
5. On subjectively analyzing rival submissions, pleas and evidence; learned District Consumer Commission-Hisar vide order dated 24.05.2018 has accepted the complaint, thereby directing OP/appellant to pay maturity amount of IVPs in question to complainant, with @9% interest p.a. from the date of maturity i.e. 13.12.2003, till its payment on furnishing indemnity bond by complainant. Complainant has also been awarded compensation of Rs.3,000/- for harassment and mental agony and Rs.2,000/- as litigation expenses.
6. Feeling aggrieved; OP-appellant has preferred this appeal. Vide interim order dated 10.08.2018 passed in this appeal; implementation of the impugned order has been stayed.
7. Learned counsel for appellant has urged, by way of preliminary contention that: complaint, as has been originally filed before learned District Consumer Commission, was hopelessly time-barred and this aspect has not been considered at all by forum below. On merits of appeal, it has been urged that complainant’s integral allegations are based on fact that: his IVPs were lost. In this regard, it is urged that Clause 7(2) of Indira Vikas Patra Rules, 1986 expressly provides that: if a certificate is lost, it will be not be replaced by any Post Office. Learned counsel has further urged that maturity value of IVPs is disbursed to holder of IVPs, only when those IVPs are produced in original at the time of maturity. Coupons issued by State Govt. will not establish that complainant herein has become rightful holder of lost IVPs. It is urged that since appellant had acted purely in terms of Rules; therefore, there is no deficiency in service on its part. Learned counsel has relied upon judgment of Hon’ble Apex Court in case titled as “Central Govt. of India and others versus Krishnaji Parvetesh Kulkarni, (2006) 4 SCC 275 and on two cases titled as “Superintendent of Post Office-Bolangir Division, Bolangir, Odisha Versus Jambu Kumar Jain” and “Superintendent of Post Office-Bolangir Division, Bolangir, Odisha Versus Chhangan Kumar Jain” AIR 2020 (SC) 1432 (both these two cases were decided together by Hon’ble Apex Court) to stimulate his contentions.
8. Per Contra, learned counsel for respondent has contended that impugned order dated 24.05.2018 passed by learned District Consumer Commission is justified on given facts and evidence and same does not warrant any interference in this appeal. While refuting the preliminary contention of appellant on aspect of limitation in filing of original complaint; it is urged that loss suffered by complainant is a recurring and continuous loss which provides fresh cause of action to complainant, on each passing day.
9. This Commission has critically analyzed above rival submissions put before it.
10. At first, it would be apt to deal with the aspect of limitation. Complaint before the District Consumer Commission at Hisar was filed on 05.12.2017. Averment in the complaint reflects that: IVPs (80 in numbers) bearing No.66C-881421 to 881500 were purchased on 13.06.1998. These were to mature after 5½ years and complainant, as per averment was entitled to receive amount increased on IVPs on expiry of 5½ years i.e. on or after 13.12.2003. On 30.07.1999, complainant allegedly lost his IVPs and reported the matter to police, where DDR was recorded on 10.10.1999. As per further averment; complainant found coupons of his IVPs in October-2017 and sent legal notice to appellant/OP which is dated 07.11.2017 and exhibited as Ex.C-3. Reply to legal notice is Ex.C-4. Complainant in his complaint has pleaded cause of action on the pedestal that nature of his case provides him continuous and recurring cause of action which had accrued to him in month of October-2017, when he found coupons of his IVPs. He also made averment that lost of IVPs were reported to the police and since matter is pending with police.
11. Above facts as pleaded in complaint, clearly demonstrates that: at least on 30.07.1999 complainant must had acquired an express knowledge regarding loss of his IVPs. May be, he reported the matter to police promptly and DDR was lodged, but still he conveniently, obviously in his own wisdom, had slept over his rights for long span of 17 years. One fine morning (October-2017), when he happened to trace coupons of IVPs in his house, he had chosen to issue legal notice to Union of India through Post Master General, Head Post Office-Hisar on 07.11.2017. Issuance of this legal notice, would not, by any stretch of legal interpretation bring his complaint, to be within limitation period. Even if, it is taken for the sake of arguments that date of maturity of IVPs which was somewhere around 13.12.2003, after expiry of period of 5½ years reckoned from date of issuance of IVPs (13.06.1998), would give cause of action to complainant, still limitation period of two years as provided under Section 24-A of Consumer Protection Act, 1986 (Old Act) to file complaint had expired, as far back as on December-2005. Despite that: complainant had filed complaint on 05.12.2017. Complainant cannot be taken to be too novice and neophyte of the limitation period of two years meant for filing complaint, as he has pretended himself to be. Just because, matter regarding loss of IVPs was allegedly reported to police in year 1999 and DDR was lodged on 10.10.1999, still complainant has filed complaint on 05.12.2017. It is difficult to swallow the credence of averments in complaint, for the purpose of limitation that matter is pending with police. Such like plea is not tenable in legal parlance.
12. Admittedly, no defence has been raised by OP/appellant in its written statement filed before learned District Consumer Commission regarding bar of limitation. However, specific averment in memorandum of appeal (para 12 thereof) has been raised regarding bar of limitation. Resultant lapse in not specifically pleading, in the written version, about bar of limitation, in filing of complaint will not create any legal impediment before this Commission to suo motu consider this plea of limitation, particularly when an express averment in this regard has been in grounds of appeal. Still further, in view of mandate of Section 3 of Limitation Act; this Commission can adjudicate on preliminary contention regarding limitation to non-suit the complainant, right away. In any case, it is a legal issue and can be raised at any stage of the proceedings and present appeal is nothing else, but continuation of original complaint.
13. Hon’ble Apex Court in case titled as “M/s Kerala Agro Machinery Corporation Limited versus Bijoy Kumar Roy” 2002(2) RCR (Civil) Page 333, while adjudicating on Section 24-A of Consumer Protection Act, 1986 held that: Plea of limitation cannot be brushed aside lightly. Question of stage of proceedings has no relevance so far question of limitation is concerned. In that case, complaint was filed after 4 years of lodging the claim with OP. It was held to be time-barred. In the present case, before this Commission; it is visible from record that there is no proof of any claim having been lodged by complainant with OP/appellant. In another case titled as “Kandi Malla Raghavaiah & Co. Versus National Insurance Company and others” 2009(3) RCR (Civil) 888; Hon’ble Apex Court has again dwelled on the provision of Section 24-A of Consumer Protection Act and observed as under in para 11 of its Judgment:-
“11. Section 24A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date of which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action has arisen.”
The record of learned District Consumer Commission reflects that there is no application in terms of Section 24-A (2) of Consumer Protection Act (Old Act), moved along with complaint for seeking condonation of delay in filing of complaint. Complaint filed beyond period of limitation is legally no complaint in the eyes of law and District Consumer Commission is not obliged to adjudicate upon such time-barred complaint. In view of above, it is held that complaint, as originally filed before District Consumer Commission, is legally time barred. Thus, it should not have been adjudicated upon by District Consumer Commission. By adjudicating on time barred complaint and eventually allowing it through import of impugned order dated 24.05.2018, which sans any discussion on aspect of limitation in filing of complaint; a gross illegality has been committed by District Consumer Commission, which would attire cloth of un-sustainability to impugned order dated 24.05.2018.
14. It is well settled legal adage that laws come into assistance of the vigilant and not of the sleepy. It is manifest from the pleadings raised in complaint that there is no promptness on complainant’s part, once he had acquired knowledge that his IVPs had been lost and he filed DDR in this regard. Equally, there is no promptness on his part till reaching at date of maturity of IVPs which was 13.12.2003 and for further period thereafter.
15. As a sequel thereto, by taking strength on above referred cardinal principles and by applying the ratio of law laid down in above referred pronouncements to facts of present case; this Commission is of firm opinion that complaint, as instituted before learned District Consumer Commission, is time barred. It should have been dismissed as such by learned District Consumer Commission, being time barred which was not done. Now, this Commission, through present judgment/order dismisses the complainant’s complaint, being time barred. It is accordingly ordered. As a legal corollary so flowing, impugned order dated 24.05.2018 cannot stand at legal pedestal and same is set aside. Consequently, present appeal is allowed.
16. Statutory amount of Rs.2,500/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
17. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
18. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
19. File be consigned to record room.
Date of pronouncement: 18th August, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
