Date of Filing – 15.06.2016
Date of Hearing – 11.05.2017
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainants to assail the Order No.5 dated 16.05.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 149/2016 whereby the complaint lodged by the appellants under Section 12 of the Act was dismissed being barred by limitation and the complainants being not ‘consumer’ under the purview of the Act.
The appellants herein being Complainants lodged the complaint before the Ld. District Forum stating that they booked six letters through registered post with A/D at Kalighat Post Office on 07.01.2013 as per order of Ld. 4th Civil Judge (Sr. Division) at Alipore for serving the summons upon OP nos. 7 to 12 in Misc. Case No.05 of 2017 arising out of T.S. No.40 of 2003, who are all private limited companies having their offices at 37B, Chakraberia Road (North), P.S.- Bhawanipore, Kolkata – 700020. The said letters retuned undelivered on 17.04.2013 with remarks ‘left India’. In the month of November, 2014 the complainants came to know from the sources that the said remarks are not true and thereafter they have made several applications, appeals, second appeals etc. under the Right to Information Act, 2005 and ultimately, lodged the complaint before the Ld. District Forum with prayer for compensation of Rs.11,700/- with interest thereon @12% p.a., Rs.40,000/- for publication in newspaper, Rs.15,000/- as litigation cost etc. etc.
The Respondents as opposite parties after entered appearance filed an application challenging the maintainability of the proceeding against which a written objection has been filed.
After considering the submissions advanced by the Ld. Advocates appearing for the parties and on perusal of the record, the Ld. District Forum by the impugned order dismissed the complaint on two grounds viz. (1) the complainants are not consumer as per provisions of the Act and (2) the complaint is barred by limitation in view of Section 24A of the Act.
The appellant no.2 Sri Tarakeswar Dubey, who appeared in person for himself and on behalf of other appellants has submitted that the Ld. District Forum has wrongly observed that the appellants are not consumer as per provisions of Section 2(1)(d) of the Act. The appellant no.2 reading out the provisions of Section 2(1)(d) and 2(1)(o) of the Act submits that in view of the decision of the Hon’ble Supreme Court reported in AIR 1996 SC 550 (Indian Medical Association – vs. – V.P. Shantha & Ors.) the complainants should have been considered as ‘consumer’ within the meaning of Section 2(1)(d) of the Act.
Ld. Advocate for the respondents has contended that the service was related to a summons issued by a competent Civil Court and it was returned with the remark ‘left’ and not ‘left India’ as mentioned by the complainants and when the complaint is based on falsehood, the Ld. District Forum has rightly dismissed the complaint.
For appreciation of the situation, it would be worthwhile to reproduce the definition of Section 2(1)(d) of the Act which provides -
“Consumer means any person who –
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised.
Section 2(1)(o) of the Act defines service which is reproduces below –
“Section 2(1)(o) – Service means service of any description which is made available to the potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service”.
In the case of Indian Medical Association (supra), the Hon’ble Supreme Court has observed – “The use of the word ‘any’ in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word ‘potential’ is again very word. In Oxford Dictionary, it is defined as ‘capable of coming into being, possibility’. In Black’s Law Dictionary, it is defined ‘existing in possibility but not in Act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalment or payments on a contract or engagement already made”. In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus, very wide and extends to any or all actual or potential users”.
The materials on record indicate that the appellants had booked six registered letters with acknowledgement due at Kalighat P.O. on 07.11.2013 certainly on payment of consideration which came back on 17.04.2013 with certain remarks. The fact remains that when the appellants booked the registered letters in the post office, certainly they became consumer and the postal authority has become service provider. Therefore, the appellants should have been construed as ‘consumer’ within the meaning of Section 2(1)(d)(ii) of the Act. Therefore, I cannot share the view of the Ld. District Forum that the complainants are not ‘consumer’ under the purview of the Act.
Now, we shall deal with the other point i.e. on the point of limitation. In Paragraph-32 of the petition of complaint, the appellants have mentioned that the cause of action arose in the month of November, 2014 when the complainants came to know from the sources that the postal remarks were not true. Admittedly, the appellants booked the letters on 07.01.2013 and it was returned with postal remark on 17.04.2013. The fact remains that the complaint was lodged before the Ld. District Forum on 16.03.2013 i.e. after clear three years from the date of receipt of the registered letters which were unserved. If the contents of Paragraph-32 of the petition of complaint is accepted, then certainly the complaint has been filed within two years from the date of the accrual of cause of action but if the date of returning of undelivered registered documents is considered, then the complaint is barred by limitation.
For appreciation of the dispute, it would be worthwhile to reproduce the provisions of Section 24A of the Act which runs as follows –
“24A. Limitation period:- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contend in sub-section(1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay”.
The above provisions is clearly peremptory and mandatory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been within the stipulated period of two years from the date of cause of action. In a decision reported in 2009 (4) CPR 17 (Kandimalla Raghavaiah & Co. – vs. – National Insurance Co. Ltd. & Anr.) the Hon’ble Supreme Court after adopting the view of the observations of the Hon’ble Apex Court reported in 2009 (3) CPR 107 (State Bank of India –vs- B.S. Agricultural Industries) has observed – “As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.
In Paragraph-13 in the decision of Kandimalla Raghavaiah & Co. (supra) it has been observed –
“13. The terms ‘cause of action’ is neither defined in the Act or in the code of Civil Procedure, 1908 but is of wide import. It has different meanings in different context that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as ‘bundle of facts’, which it proved or admitted, entitled the plaintiff to the relief prayed for. Pithily stated, ‘cause of action’ means the cause of action for which the suit is brought. ‘Cause of action’ is cause of action which gives occasion for and forms the foundation of the suit ....”.
In the instant case, it is quite clear that the registered letters which returned undelivered on 17.04.2013 is the main cause for which the action has been brought before the Ld. District Forum. The appellants in their BNA has referred Section 9 of the Limitation Act, 1963 but the said provision will not apply in this case because in this context there is specific provision under Section 24A of the Act. In Paragraph-14 of the BNA, the appellants have stated – “The appellants received the postal truck reports on 17.04.2013 but the said postal truck reports do not reflect any deficiency in service, as such no cause of action arisen on 17.04.2013. It is in November, 2014 when the appellants came to know from the sources that the said remarks in postal report ‘Left India’ are not true ......”.
Considering the entire facts and circumstances, it would be quite apparent that the return of unregistered letters dated 17.04.2013 is the cause of action which gives occasion to this complaint. Therefore, when the complaint was not lodged within two years from the date of accrual of cause of action i.e. on 17.04.2013 and further no prayer for condonation of delay has been filed, I am in agreement with the Ld. District Forum that the complaint is hopelessly barred by limitation.
Consequently, the appeal fails as the complaint is time barred.
The impugned order is hereby affirmed so far as point of limitation is concerned.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
