State Consumer Disputes Redressal Commission
Commercial Motors vs Vijay Prakash Joshi on 27 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 104 / 2010
Commercial Motors
Bareilly Road, Haldwani
District Nainital
......Appellant / Opposite Party
Versus
Sh. Vijay Prakash Joshi S/o Sh. Gopal Dutt Joshi
R/o Village and Post Office Jajardeval
Tehsil and District Pithoragarh
......Respondent / Complainant
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. Arun Uniyal, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusum Lata Sharma, Member
Dated: 27/08/2013
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 22.03.2010 passed by the District Forum, Pithoragarh in consumer complaint No. 23 of 2007, whereby the District Forum has allowed the consumer complaint and directed the appellant - opposite party to pay compensation of Rs. 50,000/- to the respondent - complainant together with litigation expenses of Rs. 10,000/-, within a month from the date of the order, failing which the above amount was directed to carry interest @6% p.a. from the date of the order till payment.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had taken a loan of 2 Rs. 10,50,000/- from Almora Urban Cooperative Bank Limited, Pithoragarh for purchasing a tipper and the said amount was paid to the appellant through draft on 24.01.2007 and sum of Rs. 40,000/- was given to the representative of the appellant on 17.11.2006 towards earnest money. It was alleged that the vehicle was not provided by the appellant to the complainant and the complainant had to pay interest on the loan amount. Alleging deficiency in service on the part of the appellant, the complainant filed a consumer complaint before the District Forum, Pithoragarh.
3. The appellant filed written statement before the District Forum and pleaded that the appellant is the authorised distributor of Tata Motors Limited; that the complainant does not fall under the definition of consumer; that the District Forum, Pithoragarh has no territorial jurisdiction in the matter; that the complainant had taken the quotation from the appellant and deposited the earnest money through bank draft; that the delivery of the chassis and engine of the vehicle was taken by the complainant on 19.06.2007; that the complainant did not deposit the balance amount; that after adjustment of the amount, draft of Rs. 502/- was sent to the complainant and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 22.03.2010 in the above terms. Aggrieved by the said order, the appellant has filed this appeal.
5. We have heard the learned counsel for the parties and have also perused the record.
36. Learned counsel for the appellant, referring to the provisions of Section 11(2) of the Consumer Protection Act, 1986, submitted that in the present case, the District Forum, Pithoragarh had no territorial jurisdiction in the matter and that the District Forum erred in entertaining the consumer complaint and deciding the same on merit and also erred in not taking into consideration the specific plea taken by the appellant in the written statement in that regard and has not recorded any finding in this respect.
7. We find force in the said submission advanced by the learned counsel for the appellant. It is not in dispute that the appellant does not actually and voluntarily resides or carries on business or has a branch office or personally works for gain within the territorial jurisdiction of District Forum, Pithoragarh. Learned counsel for respondent - complainant submitted that the District Forum, Pithoragarh had territorial jurisdiction in the matter on account of the fact that the loan for purchase of the vehicle was taken by the complainant from Almora Urban Cooperative Bank Limited, Pithoragarh and the draft of the said bank was given to the appellant. We see no force in the said submission. Merely because the finance for the purchase of the vehicle was provided to the complainant by the bank situated at Pithoragarh, it can not be said that the District Forum, Pithoragarh had territorial jurisdiction in the matter. We are supported in our view by the decision of the Hon'ble National Commission rendered in the case of Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd.; 2004 NCJ 60 (NC). In the reported decision, the consumer complaint was filed within the territorial jurisdiction of the bank through which payment for debentures was made or interest was received by the opposite party, who was not carrying on any business within the jurisdiction of that Forum. It was held by the Hon'ble National Commission that the bank is only a 4 facilitator to accept the money and the District Forum within whose jurisdiction the bank is situated, can not have territorial jurisdiction in the matter.
8. Learned counsel for the appellant cited a decision dated 01.12.2006 of this Commission given in the case of M/s Mega Motors Vs. Sh. Bhuwan Chandra Joshi. The facts of the said case, more or less, tally with the facts and circumstances of the instant case and in the said case, it was held that the District Forum, Bageshwar had no territorial jurisdiction in the matter and the plea taken by the appellant with regard to the territorial jurisdiction was accepted.
9. From the perusal of the impugned order, it is evident that the District Forum did not consider the specific plea taken by the appellant in para 10 of the written statement to the effect that the District Forum, Pithoragarh has no territorial jurisdiction in the matter and the District Forum also fell in error in not recording any finding on the said plea, which goes to the root of the matter in controversy. When a specific plea in regard to the lack of territorial jurisdiction was taken by the appellant before the District Forum, the District Forum was obliged to take up that issue and pass an appropriate order on it, which in the present case, the District Forum did not do. This apart, the perusal of the consumer complaint also does not show as to how the District Forum, Pithoragarh had territorial jurisdiction in the matter. From the perusal of the consumer complaint, it is further evident that the complainant has arrayed, "Owner / Manager, Commercial Motors, Bareilly Road, Haldwani, District Nainital" as opposite party in the consumer complaint, which also goes to show that the appellant is not having any branch office or is not carrying on any business within the territorial jurisdiction of District Forum, Pithoragarh and all the transaction between the respondent -
5complainant and the appellant - opposite party took place at Haldwani, where the appellant is carrying on the business.
10. Thus, the appeal deserves to be allowed and the order impugned is liable to be set aside.
11. Further, on merits, from the material available on record, it is evident that the chassis and engine of the tipper had been delivered to the complainant by the appellant on 19.06.2007 and from which, he was fully satisfied and had voluntarily signed a letter dated 19.06.2007 (Paper No. 32) in that regard in favour of the appellant. When the complainant was fully satisfied with the delivery of the chassis and engine of the vehicle and had received the same to his full satisfaction, no deficiency in service can be attributed to the appellant. However, since the District Forum, Pithoragarh had no territorial jurisdiction in the matter, the order impugned can not legally be maintained and is liable to be set aside.
12. For the reasons aforesaid, appeal is allowed. Order impugned dated 22.03.2010 passed by the District Forum, Pithoragarh is set aside. However, the respondent - complainant, if he so wishes, may file a consumer complaint before the District Forum having territorial jurisdiction in the matter. No order as to costs.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K