State Consumer Disputes Redressal Commission
Rajat Kumar vs L& T(Komatsu) Ltd. & Ors. on 16 June, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. ---- ORIGINAL COMPLAINT NO.02/2008. DATE OF DECISION:16.6.2009. In the matter of: Rajat Kumar son of Shri Mahender Singh, Resident of Village Chanjyar, P.O. Dhawali, Tehsil Sarkaghat, District Mandi, H.P. Complainant. Versus 1. L&T (Komatsu) Limited, Yalahanka Building, No.29/2, Crescent Road, Bangalore-1, through its Chief Executive Officer. 2. The Area Manager (Sales) L&T Ltd. Post Box No.14, Sector 26-D, Madhya Marg, Chandigarh. 3. The Territory Manager, L&T Ltd.,SCO-32, Sector 26, Madhya Marg, Chandigarh-19. 4. M/S Suchitra Sales Private Ltd., SCF 381, Motor Market, Manimajra Chandigarh through its Incharge. 5. M/S Suchitra Sales Private Ltd., Opposite Kuka Motors, Ner Chowk, District Mandi, H.P. through its Incharge. Opposite Parties. ------------------------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President Honble Mrs. Saroj Sharma, Member. Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes For the Complainant : Mr. Peeyush Verma, Advocate. For the Opposite Parties :Mr. R.L. Sood, Senior Advocate with Mr. Sanjeev Kumar, Advocate. ------------------------------------------------------------------------------------------------------------- O R D E R
Justice Arun Kumar Goel (Retd.), President.
1. Facts on which learned Counsel for the parties were not at variance at the time of hearing are, that a L&T 72 CK Excavator, manufactured by opposite party No.1 was purchased by the complainant. Its cost was Rs.30,15,000/-. This machine according to the complainant was suffering from inherent manufacturing defects since the date of its purchase. Further case of the complainant is that OP No.1 was having its Area as well as Territory Office at Chandigarh. They have been arrayed as opposite parties 2 & 3, whereas opposite party No.4 is alleged to be the authorised dealer of opposite party No.1 at Chandigarh who was having its local office at Nerchowk, District Mandi, who has been arrayed as opposite party No.5. Opposite parties 1 to 5 (hereinafter referred to as the OPs), have been sued through their Chief Executive Officer, Area Manager (Sales), Territory Manager, Incharge respectively. They being responsible for managing their affairs at respective levels were carrying on business and after sale service of heavy machinery. Thus, all of them were providing service as defined under the Consumer Protection Act, 1986, hereinafter referred to as the Act. Excavator was purchased on 13.12.2006 and according to complainant it was booked with OP No.5 at Mandi who forwarded the order to its Head Office at Chandigarh, wherefrom this order was further placed with opposite party No.1, the manufacturer.
2. Excavator machine was admittedly supplied according to learned Counsel for the parties by OP No.1. With a view to confer jurisdiction on Fora in the State of Himachal Pradesh, according to the complainant machine was supplied at Mandi at his residence after the order had been placed with OP No.5. However, contrary to all assurances, the machine being defective, it had to be taken to OP No.5 who took it to OP No.4. OP No.4 temporarily removed the defects and made it functional.
Since there were manufacturing defects of which he came to know in March-April, 2007 and on each day thereafter, OPs failed to make the Excavator functional, hence this complaint.
3. Another fact that needs to be noted here is, that the complainant filed Complaint No.5 of 2008 before the District Forum, at Mandi. It was disposed of in the following terms on 5.3.2008:-
5.3.2008 Present:
Complainant Rajat Kumar in person with vice Counsel Sh. Narinder Kaundal Advocate.
Sh. Narinder Kumar Advocate Ld. Vice counsel for the opposite parties No.1 to 5.
Heard.
O r d e r The complainant had instituted complaint under section 12 of the Consumer Protection Act, 1986 against the opposite parties. This complaint was resisted by the opposite parties on the ground of pecuniary jurisdiction of this Forum. It was stated that the complainant had sought relief of the amount exceeding Rs.20,00,000/-. The complainant stated that in view of the objection of the opposite parties he be permitted to withdraw the complaint. The complainant shall institute appropriate proceedings against the opposite parties before the appropriate Forum. In view of the statement of the complainant, the complaint is dismissed as withdrawn with liberty reserved to the complainant to institute appropriate proceedings against the opposite parties before the appropriate Forum.
2. Copy of this order be supplied to the parties free of cost as per Rules.
3.
File, after due completition be consigned to the Record Room.
Since the Machine is not required to be registered under the Motor Vehicles Act, 1988, per learned Counsel for the parties, it was submitted on behalf of the complainant, that he was registered under the Central Sales-Tax (Registration And Turnover) Rules, 1957 and copy of Certificate of Registration in Form B is OP/B. OP/C is the brochure of the machine in question and OP-D gives the warranty for Hydraulic Excavators. OP/E colly:
are the details of bills from 6.7.2007 to 27.2.2008 issued by OP No.5. OP/F colly:
are the bills issued by Larsen & Toubro Limited from Nagpur.
OP/E & F are issued in favour of the complainant.
4.
In the aforesaid background, complainant has asked for refund of Rs.30,15,000/- being the consideration paid for the machine, Rs.2,50,000/- having been spent on the repairs, Rs.2,00,000/- per month being the damage suffered, with interest @ 18% per annum from February, 2007 till payment, besides Rs.50,000/- as compensation for mental torture, harassment etc., as also cost of litigation in the sum of Rs.25,000/-.
5. When put to notice, complaint has been seriously contested and resisted by the OPs. Alongwith the reply filed to the complaint, M.A. No.375/2008, under Section 11 of the Act was also filed with a prayer to return the complaint to the complainant for want of territorial jurisdiction for being presented before the appropriate Commission/Forum at Bangalore, because it alone has the territorial jurisdiction in the matter.
On 16.5.2008 this application was filed and on the next date i.e. 19.6.2008, it was ordered that this application will be dealt with first after pleadings as well as evidence is completed by the parties.
6. By way of preliminary objections OPs challenged the territorial jurisdiction of this Commission in the matter, as according to them the Courts at Bangalore alone had the jurisdiction in the matter. It was also pleaded that in the face of the dismissal of the Complaint Case No.5/2008 vide orders extracted above, present complaint was not maintainable. No documents were purposely annexed alongwith the complaint which was material suppression of facts, and therefore the complaint was liable to be dismissed under Section 26 of the Act with exemplary costs. Complaint was not properly verified, nor was it supported with a proper affidavit. Besides this the affidavit was false. Complainant had no cause of action against the Ops, nor any case for alleged deficiency in service or unfair trade practice was made out under Section 2(1)(o) and (r ) of the Act. Excavator having been purchased for commercial purpose, as such the complainant was not a consumer and the complaint was bad for mis-joinder of OPs 4 & 5.
Complaint involves highly disputed questions of fact, as such matter needs to be determined by a civil Court alone.
7. On merits, it was pleaded that OP.1 was having its registered office at L&T House, Ballard Estate, Mumbai and its works at Bellary Road, Bangalore and it does not have any office at Yalashanka Building No.29/2, Crescent Road, Bangalore-1. Allegations of OPs 2 & 3 being the Area and Territorial office of OP No.1 were denied, whereas OP No.4 was the only authorised dealer of Larsen & Toubro Limited, but there was no dealer at Mandi. For its own convenience sake, OP No.4 had independently opened its sub office at Mandi for sale of spare parts and providing after sales service. Both these OPs have their separate identity in law and have nothing to do with Ops 2 & 3.
They were not under their management and control. OP No.1 alone was asserted to be the manufacturer of the equipment in question.
Allegations of the complainant that the Excavator was supplied to the complainant at his residence at Mandi were specifically denied. Similarly allegations of the complainant having spent Rs.2,50,000/- for making the Excavator functional were false according to the OPs because no repairs were effected by the dealer or by the OPs 1 to 3 nor any payment was received by them. Further case of the OPs was that no defects were pointed out during the period of warranty.
Averments made regarding territorial jurisdiction of this Commission were specifically denied while replying to paragraph 5 of the complaint where it was so averred by the complainant.
It was further pleaded that complaint was barred by limitation and after dismissal no liberty could be reserved in favour of the complainant. Matter related to highly disputed questions of fact which could only be adjudicated upon by a civil court of competent jurisdiction. With a view to advance its case on the question of jurisdiction alongwith M.A. No.375/2008, annexure R.1, is the copy of proforma invoice dated 21.11.2006. R.2 is the letter from the complainant of the same date wherein he confirmed the order and Annexure R.3 is the invoice for removal of Excisable Goods from a factory or Warehouse on Payment of Duty (Rule 8 & 11 of Central Excise Rules, 2002) qua the Excavator in question.
8. In rejoinder, averments regarding this Commission lacking territorial jurisdiction, complaint being time barred, complainant having no cause of action, Commission at Bangalore alone having exclusive jurisdiction were denied. Annexure A.1 to A.9, Relieving Certificates were placed on record. Annexure A.10 are the photographs numbering 18 attached with the rejoinder to show the defective parts of the Excavator machine in question. Averments made in the reply which were contrary to the contents of the complaint were denied being incorrect and in rejoinder corresponding paras of the complaint were reiterated besides denying the preliminary objections collectively.
9. In the aforesaid background, we will deal with the objection regarding territorial jurisdiction of this Commission to entertain this complaint.
10. Legal position in this behalf is by now well settled by a catena of authorities of the Honble Apex Court as well as of the High Court of Himachal Pradesh. that where a Court lacks inherent jurisdiction, then either by consent or by agreement parties cannot confer jurisdiction on such court. At the same time where two courts have the jurisdiction, then by consent parties can confer exclusive jurisdiction upon one by excluding the jurisdiction of the other. On this legal proposition learned Counsel for the parties were not at variance.
11. Learned Senior Counsel appearing for the OPs submitted, that OP No.1 on one hand, OPs 2 & 3 on the other as well as OPs 4 & 5 were three distinct entities under law i.e. the Companies Act, 1956. OP No.1 was the manufacturer of the Excavator machine which was purchased by the complainant from the said OP at Bangalore.
In this behalf he referred to Annexure R.1, the proforma invoice dated 21.11.2006. In this invoice it is clearly mentioned in it, SUBJECT TO BANGALORE JURISDICTION ONLY From OP.2, it is clear that on receipt of proforma invoice, the complainant confirmed the order for the machine in question and besides other things, this order was placed with the OP No.1 at Bangalore.
12. As per Annexure R.2, the Transit Insurance was to be arranged by OP No.1 and it was to be borne by the complainant.
Complainant had asked the said OP No.1 to pay Rs.1,05,000/- to his authorised transporter for transporting the machine from its woks to the site detailed in the said Annexure. Annexure R.3 shows that customer and consignee is the same person i.e. the complainant. Mr. Sood thus submitted that in these circumstances, the complaint is liable to be returned to the complainant for being presented before the Commission at Bangalore.
13. All these pleas were seriously contested and resisted by Shri Peeyush Verma, learned Counsel for the complainant. According to him, with a view to determine the question of jurisdiction averments made in the complaint are only to be seen and he laid great emphasis on paras 2 & 5 of the complaint. While disputing Annexures R.1 and R.3 filed alongwith the application under Section 11 of the Act with a view to oust the jurisdiction of this Commission, he submitted that his client is not a signatory to both these documents, and therefore he is not bound by those. In this behalf Shri Verma also urged that the alleged ouster clause is in very fine print, and unless the complainant was expressly made aware of it, no benefit can be derived by the OPs from the said clause even if this plea on behalf of the OPs is accepted.
14. In this behalf Shri Verma further submitted, that so far ouster clause in Annexure R.1 is concerned, it only relates to civil disputes intra parties and the nature of proceedings under the Act being not civil in nature, therefore no advantage can be derived by the OPs from the so called ouster clause. At this stage Shri Verma also urged that ouster clause is to follow the terms, and it does not have to be other way round.
15. Sale and purchase of the machine as already noted is not in dispute between the complainant on one side and OP No.1 on the other. With a view to confer the jurisdiction on the Foras under the Act in the State of Himachal Pradesh, averments made in the complaint are, that order was placed with OP No.5 at Nerchowk, Mandi, who forwarded it to its Head Office at Chandigarh and it was thereafter that the machine in question was supplied. This position was denied specifically in their reply by the OPs. In rejoinder while reiterating the averments made in the complaint documents, Annexures A.1 to A.9 have been placed on record. Preliminary objections of the reply have been replied collectively by the complainant in the rejoinder. In all fairness, complainant was supposed to, and in fact should have filed Annexures A.1 to A.9 alongwith the complaint. Why those were not filed, learned Counsel for the complainant had no answer.
16. From the perusal of Annexures A.1 to A.9, it is evident that service was carried out by the OPs other than OP No.1 of the machine in question. None of these documents suggests that they were duly authorised service agents of OP No.1 qua the machine in question for its after sale-service. Even if they are held to be the authorised after sale service agents of OP No.1 for the sake of argument, still there is no material on record and none could be pointed out on behalf of the complainant, that order was placed with any one of these OPs, i.e. No.4 &
5. Though Shri Verma persisted with vehemence that the relevant facts are set out in the complaint as well as in the rejoinder by his client and those need to be accepted..
17. Here independent corporate character of these OPs assumes significance. In this behalf when reference is made to OP/E, Party Ledger alongwith Vat Invoice, issued by Mandi Branch of OP No.4 vide invoices dated 27.2.2008 and 3.4.2008, it is clearly mentioned in these that all disputes were subject to Chandigarh jurisdiction. Legality, existence or otherwise of OP/E could not be disputed on behalf of the complainant. Similarly, Annexure OP/F colly: are the two copies of invoices dated 15.2.2007 and 5.3.2007. These are issued by Larsen & Toubro Limited, Nagpur. These are the invoices to the complainant as customer who is also the consignee of the goods mentioned in both.
None of these documents either suggests or indicates any connection between OP No.1 one side and the OPs 2 to 5 on the other.
18. Faced with this situation, Shri Verma on behalf of the complainant submitted that part of cause of action accrued to his client within the meaning of Section 11 of the Act in the territorial jurisdiction of District Mandi in the State of Himachal Pradesh, and since claim is of more than Rs.20,00,000/- , as such this Commission has got the territorial jurisdiction to entertain and try the complaint. For the reasons to be recorded hereinafter, we reject this submission.
19. Annexure R.1 (supra,) was the offer given by OP No.1 from Bangalore to the complainant. It is admitted by the complainant that he conveyed his acceptance of offer to OP No.1 at its works at Bangalore by means of Annexure R.2. In these circumstances we have no hesitation in coming to the conclusion that as per Annexure R.1, transaction was SUBJECT TO BANGALORE JURISDICTION ONLY. This clause in Capital letters can by no stretch of imagination be said to be in fine print as was forcefully argued by Shri Verma with reference to it. In case complainant did not agree to this clause, he could have said something in that behalf while placing order vide Annexure R.2 vide which he accepted the offer made by the OP No.1 to him. When we specifically asked learned Counsel for the complainant what he has to say in this behalf, he had no answer save and except that part of cause of action accrued to his client at Mandi in the State of Himachal Pradesh.
20. So far plea based on fine print as also complainant being not a signatory to R.1 is concerned, we are of the view that this is not correct. Because firstly it is not in fine print but is in capital letters. Secondly R.1 being not signed by complainant does not improve his case. Reason being that this was only an offer to the complainant which he accepted vide Annexure R.2. This document is not disputed on his behalf.
21. In the context of Annexure R.3, learned Counsel for the complainant submitted that it is only in relation to the excise duty under Central Excise Rules and would not exclude the jurisdiction of the Foras under the Act in the State of Himachal Pradesh. In support of his this submission, Shri Verma reiterated his plea that it was in fine print, and his client was never made aware of it, nor is he the signatory to it. Annexure R.3 issued by OP No.1 from its factory Bangalore Works, Bellary Road, Bangalore, mentions complainant to be a customer and also to be a consignee of the machine. This is an additional ground to oust the jurisdiction of the Foras including this Commission.
22. So far plea based on the after sale service having been carried out by OP No.5 at Mandi within the territorial jurisdiction of this Commission is concerned, documents placed on the file as annexures A.1 to A.9 cannot be read in isolation and cannot be divorced from Annexure OP/E wherein it is clearly mentioned that all disputes were subject to Chandigarh jurisdiction. Machine having been taken to Chandigarh is admitted in para 3 of the complaint. There is nothing on record to suggest that OP No.5 is a separate and or distinct corporate entity from OP No.4. In fact it is the own case of the complainant, that he had placed the order with OP No.5 who forwarded it to its Head Office at Chandigarh wherefrom the order was placed with OP No.1. It is a different matter that for want of anything in black and white to that effect as well as in the face of Annexures R.1 and R.2, we have held that no order was placed with OP No.5. That being the position, and no connection having been shown between OP No.1, the manufacturer and supplier of Excavator machine on the one side and OP Nos.4 & 5 on the other, no benefit can be derived by the complainant from repairs etc. having been carried out at Chandigarh/Mandi by these OPs. As such in the face of documents Annexures OP/E, Annexures A.1 to A.9, as well as R.1 & R.2 plea, that this Commission has territorial jurisdiction to entertain and adjudicate this complaint is hereby rejected.
23. With a view to support his submission that his client was not signatory to Annexure R.3 and the clause that it was subject to Bangalore jurisdiction only being in very fine print, Shri Verma placed reliance on a decision of the National Commission in the case of Blaze Flash Couriers (P) Ltd. Versus Rohit J. Poladiya and another, 2008 CTJ 354 (CP) (NCDRC). This plea is again without substance. Reason being that Annexure R.1 is the proforma invoice i.e. offer made by OP No.1 to the complainant, who vide Annexure R.2 conveyed his acceptance and placed order with OP No.1. Therefore no benefit can be derived by the complainant either from the fine print or that he was not a signatory to Annexure R.3,
24. Likewise reliance placed by Shri Verma on the decision of the National Commission in the case of TNT India Pvt. Ltd. Versus Ramesh Sawalkar, 2005 CTJ 1216 (CP) (NCDRC) also does not advance his case in the face of Annexure R.1 and thus is inapplicable to the facts of the present case. In the decision relied upon by Shri Verma, in the case of Blaze Flash Couriers (P) Ltd. (supra), it was held that out of two Courts having jurisdiction over the matter in dispute, it can be tried in one of them by an agreement between the contesting parties and such an agreement would not be contrary to the public policy, however, in case the contract confining jurisdiction to one of these courts is in fine print, it would not bind the other party unless its specific attention was drawn to it. We have already held that when complainant received Annexure R.1, it is not his case that he was not aware of all its contents including the ouster clause above extracted, before placing order vide Annexure R.2 with OP No.1. As such this decision does not advance the case of the complainant.
25. So far the other decision of the National Commission in the case of Vinod Sharma Versus Hindustan Motors Ltd. & anr., 2003 CTJ 320 (CP) (NCDRC) relied by Shri Verma is concerned, it deals with the merits of the case that was before the National Commission. Since we are not dealing with the complaint on its merits, as such this decision also does not also advance the case of the complainant in any manner.
26. Reliance placed on behalf of the complainant on the decision of the Honble Apex Court in the case of Bharathi Knitting Company Versus DHL Worldwide Express Courier Division of Airfreight Ltd., ( 1996) 4 CTJ 557 (Supreme Court) (CP), is wholly misplaced according to us in the context of the present complaint, as such no benefit can be derived from it.
27. It may be mentioned here that number of decisions of the Honble Supreme Court and one decision of the High Court of Himachal Pradesh were cited by Shri R.L. Sood, learned Senior Counsel on behalf of the OPs on the proposition of law that where two courts have jurisdiction, parties by consent can always confer jurisdiction on one. In these circumstances the submission of Shri Verma that the mention of SUBJECT TO BANGALORE JURISDICTION ONLY, is firstly vague and secondly it relates to only civil disputes does not hold good. Because the complainant was well aware when he accepted the offer of OP No.1 on receipt of Annexure R.1 and conveyed his such acceptance vide Annexure R.2 and he shall be presumed to be aware that it relates to everything including defects etc. of the Excavator machine for which he had placed the order after receipt of proforma invoice on the terms and conditions contained in the said invoice including the term that it was subject to Bangalore jurisdiction only. In this behalf in Arbitration Case No.358/2003, titled as Satluj Jal Vidyut Nigam Ltd. (formerly known as Nathpa Jhakri Power Corporation Ltd.) Versus M/s.
Continental Foundation Joint Venture (CFJV), decided on 13.4.2005 by the Himachal Pradesh High Court, ouster clause was as under:-
(b) The law to which the Contract is to be subject and according to which the Contract is to be construed, shall be the law for the time being in force in India and within the jurisdiction of New Delhi Courts.
Against the award passed in this case objections were raised by the Satluj Jal Vidyut Nigam Ltd. wherein question of jurisdiction was raised of the High Court of Himachal Pradesh to entertain the objections against the said award on the basis of the above extracted clause by the respondent.
After examining the facts and law governing such cases plea of M/s. Continental Foundation Joint Venture was upheld, and objections were ordered to be returned to the Objector to be presented before the Court at New Delhi. This decision is nearer to the present complaint both on facts as well as on law.
Other decisions cited by Shri Sood are not being referred in the face of the above discussed legal position.
28. What falls from the above discussion is that this Commission has no territorial jurisdiction to entertain, much less adjudicate upon the complaint filed by the complainant against the OPs and it is the Bangalore Commission/Courts alone, who have the jurisdiction to look into any dispute relating to the sale of the Excavator machine in the light of the offer made by the OP No.1 that was accepted by the complainant vide Annexure R.2 dated 21.11.2006, and all the pleas to the contrary are hereby rejected.
29. We may point out clearly here that we have not touched the merits of the case and thus have expressed no opinion any whatsoever, so far questions raised by the parties in their respective pleadings, as the complaint is being disposed of purely on the question of territorial jurisdiction.
30. No other ground was urged.
In view of the aforesaid discussion, while upholding the contention of the OPs, it is held that this Commission lacks inherent jurisdiction to entertain, much less adjudicate upon the complaint and at the same time it is also held that it is the State Commission at Bangalore which alone has the jurisdiction in case the complainant can maintain the same in accordance with law. Accordingly office is directed to return the complaint to the complainant through his learned counsel, Shri Peeyush Verma for presenting the same before appropriate Fora at Bangalore in accordance with law. No costs.
This also disposes of M.A. No.375/2008.
Learned Counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
Shimla, June 16, 2009.
( Justice Arun Kumar Goel ) (Retd.) President ( Saroj Sharma ) Member /BS/ ( Chander Shekhar Sharma ) Member.