Rajesh Kumar Sah vs Managing Director, Kores India Ltd

Challenge in this Revision Petition is to the Order dated 08.02.2008 passed by the Bihar State Consumer Disputes Redressal Commission at Patna (hereinafter referred to as ‘the State Commission’) in First Appeal No.582 / 2006, whereby the State Commission allowed the Appeal filed by the Kores (India) Limited (hereinafter referred to as the Respondent Company) by setting aside the Order dated 22.06.2006 passed by the District Consumer Disputes Redressal Forum, Bhagalpur (hereinafter referred to as ‘the District Forum’) by which the District Forum had allowed the Complaint.

The Revision Petition pertains to the year 2008.  The Revision Petition was dismissed in default on 05.04.2017.  M.A. No. 168 of 2017 for restoration was filed.  The Revision Petition was restored to its original number vide Order dated 15.06.2017.

Concisely narrated, the facts leading to the filing of the Complaint are that the Rajesh Kumar Sah (hereinafter referred to as the Complainant), being an unemployed youth, applied for loan from the State Bank of India, Bhagalpur in 1996 for installation of Automatic Plain Paper Copier (in short, the photocopier machine) under the "Prime Minister Rojgar Yojna". A loan was sanctioned for a sum of ₹98,500/- for installation of the photocopier machine through the State Bank of India, Bhagalpur City Branch. The Branch Manager, State Bank of India, City Branch Bhagalpur issued supply order to Opposite Party No. 2, i.e., the Dealer of Respondent Company, to supply Kores 1101 photocopier Machine manufactured by Kores (India) Ltd. Business Machine System Division manufactured by the Respondent Company to the Complainant. The Opposite Party No.2 installed the said Automatic Plain Paper Copier Modal KS 1101 Sr.1 Q 4085 at the business premises of the Complainant at Railway Station Chauk, Bhagalpur near Govt. Bus Stand on 29.2.1996.  Before installation, the Sales Executive of Respondent Kores (India) Ltd. wrote a letter dated 18.12.1995 to the Complainant for providing services through Service Engineer posted at Bhagalpur. After the installation of the said photocopier machine, the Opposite Party bestowed good services till 1997. The Maintenance Agreement entered into between the Opposite Party and the Complainant for the contract period of 19.02.1997 to 18.02.2002, for which Annual Maintenance Charge was paid to the Opposite Party No. 2. In 1997, the Opposite Party closed the Maintenance Service, for which the Complainant made telephonic talk several times from Patna office as well as the present dealer Shiv Priya Agencies, Bhagalpur. In this connection the Sales Executive, Kores (India) Ltd., Patna wrote a letter dated 25.03.1997 to the Respondent Company expressing his inability to bestow Services to the Complainant as Mr. B.K. Singh, Service Engineer of Kores (India) Ltd. posted at Bhagalpur has been terminated. As per telephonic talk with the Company, they do not intend to post any service Engineer at Bhagalpur. The said Shiv Priya Agencies, Bhagalpur also wrote a letter dated 18.11.1997 to the Complainant in compliance to his letter dated 10.11.1997 expressing his inability to bestow service to him on the same grounds. The Copier Machine is not in working condition due to lack of maintenance service, consequently, the Complainant could not pay the instalment against the aforesaid loan to the State Bank of India, City Branch Bhagalpur since September 1998. The Complainant had paid ₹41,313/- only in total including the subsidy amount till August 1998. Due to lack of maintenance service, the Complainant has suffered irreparable loss of ₹5,00,000/- (Rupees five lacs). The Opposite Party violated the terms of Maintenance Agreement entered into between the parties and the Opposite Party is liable to compensate the loss suffered by the Complainant.

The Complainant filed had Complainant Case No. 238/2000 against the Opposite Party in the year 2000, which was dismissed for default on 09.10.2002 as the lawyer of the complainant could not appear as he was hospitalized due to heart attack. Miscellaneous Application filed by the Complainant for restoration was also rejected by the District Forum vide order dated 17.12.2003.

Therefore, the Complainant filed a fresh Complaint on 27.12.2003 before the District Forum. The Opposite Party contested the Complaint by filing the Written Statement and vehemently opposed the Complaint by contending that the Complaint does not fall within the limitation because the Complainant had purchased the machine on 26.02.1996 and the present complaint has been filed on 27.12.2003. The machine was in order for one year and worked properly for one year. The Complainant has not filed the Complaint because of the disorder of the machine, but it has been filed on account of not providing maintenance service of the machine. It was also contended that there was no agreement executed between the Respondent Company and the Complainant.  The agreement was executed by the Opposite Party No.2 with the Complainant. The Complainant has specifically stated that there had been a Maintenance Agreement with Opposite Party No. 2, who is no more the employee of the Respondent Company. It was further stated that they did not act negligently in providing service to the Complainant and therefore, prayed that the Complaint is liable to be rejected qua the Respondent Company.

The District Forum, after taking into consideration the material on record and also the written statement, allowed the Complaint in following terms:

“Thus the opposite party no.1 is directed to make the second new machine available to the complainant in place of the aforesaid machine within a period of 30 days from the receipt of the order else the opposite party no.1 would be liable to pay the complainant the price of machine with interest at the rate of 12% per annum till the date of payment. The opposite party no. 2 is directed to pay the maintenance amount of the agreement along with interest at the rate of 12% per annum from the date of agreement till the date of payment. If the Opposite Party No.2 violates the order, the opposite party no.1 has to be responsible and it would be the responsibility of the opposite party no.1 to get the opposite party no. 2 to comply the order because the opposite party no. 2 is the dealer of the opposite party no.1. There has been no negligence on behalf of the opposite party no. 3 and hence the opposite party no. 1 and 2 are also directed to pay ₹50,000/- on account of loss and compensation and ₹10,000/- on account of the cost of complaint else the same will be liable to be paid with interest at the rate of 12% till the date of payment. No other kind of any expenses are liable to be paid.”

Aggrieved by the Order dated 22.06.2006 passed by the District Forum, the Respondent Company preferred an Appeal before the State Commission. The State Commission allowed the Appeal and set aside the order passed by the District Forum by observing as under:-

“7. From the facts discussed above, we find that the machine was purchased and installed on 26.02.96 and till 1997 good services were bestowed and after that maintenance services were not provided.  Hence part of cause of action arose on 26.02.96 and thereafter after expiry of 1997 when services were not provided.  Therefore, the complaint ought to have been filed within two years, i.e., at best by December, 1999 which has not been done and Complaint has been filed in the year 2003 and is hopelessly barred by limitation.  The Complaint filed in the year 2000 dismissed for default, does not save the limitation in any way.

We further find from the perusal of the Complaint that no allegation or deficiency in service is alleged against the Bank and no relief has been claimed against SBI, Bhagalpur Branch, Hence the SBI, Bhagalpur was not a proper party and we accept the contention of learned lawyer for the Appellant that bank was made party only to give jurisdiction to District Forum, Bhagalpur.  Hence, we are of the view that District Forum, Bhagalpur has no jurisdiction to entertain the Complaint as OP No.1 and 2 both reside and carry on business beyond the jurisdiction of the learned Forum.

It has been claimed that the machine was purchased for business/commercial purpose and therefore, the Complainant was not a consumer.  However, it is clear that Complainant being an unemployed person, for his livelihood though a loan under PMRY Scheme, he purchased the machine and therefore the Complainant was a consumer within C.P. Act.

The Complainant neither filed annual maintenance contract nor the receipt showing payment of ₹6,000/- as annual maintenance charge for any particular year. During argument an offer letter for annual maintenance was produced on behalf of the respondent which is not the annual maintenance contract. Hence, the O.P. No.1 and 2 have no liability to provide maintenance service after the expiry of warranty and probably two years servicing facility given in the warranty which expired on 25.2.98. Hence, we find merit in the appeal and appeal is allowed and impugned order is set aside.”

Being aggrieved by the Order dated 08.02.2008 passed by the State Commission, the Petitioner/Complainant had filed the present Revision Petition before us.

Mr. Jay Kishore Singh, learned Counsel appearing on behalf of the Petitioner/Complainant submitted that the State Commission had erred while arriving at conclusion that the District Forum, Bhagalpur has no jurisdiction to entertain the Complaint and had completely misconstrued the provision of section 11 of the Consumer Protection Act. It is submitted that on a bare reading of section 11 of the Act, it appears that the District Forum, Bhagalpur has rightly entertained the Complaint of the Petitioner/Complainant as the cause of action wholly arose at Bhagalpur and the Respondents were carrying out their business at Bhagalpur through their Servicing Agent or Dealer; the State Commission went wrong in holding that the Complaint was barred by limitation. It is submitted that the Maintenance Agreement which stipulates the period from 19.2.1997 to 18.2.2002 was subsisting between the Petitioner and the Respondents and during this period, the Respondents were under obligation to provide service to the Petitioner; the State Commission erred in holding that the Petitioner did not file any annual Maintenance Contract and receipts thereof. However, the Annual Maintenance Contract was filed with the written statement and the same was taken on the record.  It was prayed that the Order passed by the State Commission be set aside and the Revision Petition be allowed.

Per contra, Ms. Deepa Chacko, learned Counsel for the Respondent, supported the Order passed by the State Commission as according to her the State Commission had passed a well-reasoned and justified order, which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.

We have heard Mr. Jay Kishore Singh, learned Counsel for the Petitioner, Ms. Deepa Chacko, learned Counsel appearing on behalf of the Respondent/Complainant and given a thoughtful consideration to the various pleas raised by them.

It is not in dispute that the photocopier machine was purchased and installed on 26.02.96 and till 1997 good services were bestowed and after that maintenance services were not provided.  Therefore, part of cause of action arose on 26.02.96 and thereafter after expiry of 1997 when services were not provided.  Therefore, the complaint ought to have been filed within two years, i.e., at best by December, 1999.  The Complainant filed Complaint, i.e. CC No. 238 of 2000 before the District Forum on 07.11.2000, which was dismissed for non-prosecution on 09.10.2002.  The Complainant filed Miscellaneous Application for restoration which was also rejected on 17.12.2003.  Against that Order the Complainant did not file any Appeal, consequently, the Order dated 09.10.2002 dismissing the Complaint and Order dated 17.12.2003 rejecting the Application for restoration, attained finality.  The Complainant filed fresh Complaint, i.e. CC No. 148 of 2003 on 27.12.2003 against the same cause of action which has partly arisen in the year 1996 and thereafter in 1997, with a huge delay of almost 2191 days and the State Commission has rightly held that the Complaint was hopelessly barred by limitation.   From the perusal of material available on record, we also do not find any receipt showing payment made towards Annual Maintenance charges by the Complainant as has been rightly observed by the State Commission in the Impugned Order.

We do not find any illegality, material irregularity or jurisdictional error in the Impugned Order dated 08.02.2008 passed by the State Commission warranting our interference in revisional jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. The Revisional Jurisdiction of this Commission is extremely limited as has been held by the Hon’ble Supreme Court in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ [Civil Appeal No. 432 / 2022 Order dated 21.01.2022]  by observing as under:-

“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”

For the reasons stated hereinabove, the impugned Order passed by the State Commission is upheld and the Revision Petition is dismissed.  Keeping in view the facts and circumstances of the case, there shall be no order as to costs.