State Consumer Disputes Redressal Commission
Gola Ganpati vs Parvez Mirja on 10 August, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 273 / 2011
Gola Ganpati Motors
Goraparao, Haldwani
District Nainital
......Appellant / Opposite Party No. 1
Versus
1. Sh. Parvez Mirja S/o Sh. Mirja Bakkar Ali
R/o 58, Lala Bazar
Almora
......Respondent No. 1 / Complainant
2. Tata Motors, Passenger Car Unit
8th Floor, Centre No. 1
World Trade Centre, Cafe Parade
Mumbai - 400005
......Respondent No. 2 / Opposite Party No. 2
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Deepak Ahluwalia, Learned Counsel for Respondent No. 1
Sh. S.K. Gupta, Learned Counsel for Respondent No. 2
AND
FIRST APPEAL NO. 07 / 2012
Tata Motors Limited, Passenger Car Unit
8th Floor, Centre No. 1
World Trade Centre, Cafe Parade
Mumbai
......Appellant / Opposite Party No. 2
Versus
1. Sh. Parvez Mirja S/o Sh. Mirja Bakkar Ali
R/o 58, Lala Bazar
Almora
......Respondent No. 1 / Complainant
2. Gola Ganpati Motors
Goraparao, Haldwani
District Nainital
......Respondent No. 2 / Opposite Party No. 1
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. Deepak Ahluwalia, Learned Counsel for Respondent No. 1
Sh. M.K. Kohli, Learned Counsel for Respondent No. 2
2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 10/08/2015
ORDER
(Per: Justice B.C. Kandpal, President):
These two appeals, one by the opposite party No. 1 - Gola Ganpati Motors and another by the opposite party No. 2 - Tata Motors, filed under Section 15 of the Consumer Protection Act, 1986, arise out of the order dated 30.11.2011 passed by the District Forum, Almora in consumer complaint No. 18 of 2010, whereby the District Forum has allowed the consumer complaint and directed the opposite party No. 1 to refund the amount of Rs. 25,836/- to the complainant, which was received in excess from the complainant. The District Forum has further directed the opposite parties to pay a sum of Rs. 50,000/- each as compensation to the complainant. Since both the appeals arise out of the same order passed by the District Forum, therefore, these are being disposed of by this common order.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that relying upon the advertisements issued by the opposite party No. 1 - Gola Ganpati Motors, the complainant had purchased a Tata Indigo CS LS TDI model from the opposite party No. 1 on 23.09.2009. The complainant was assured that he had been granted required rebate / discount in the cost price of the vehicle. However, after purchase of the vehicle, when the complainant tallied the invoice, he found that he had been charged sum of Rs. 4,52,470/-, whereas the cost of the vehicle was Rs. 4,21,000/-. When the complainant asked the opposite party No. 1 for refund of the excess amount charged from him, the opposite party No. 1 did not pay any 3 heed. It was alleged that the opposite party No. 2 - Tata Motors was also providing bonus of Rs. 5,000/- to the customers who were already having a vehicle manufactured by Tata Motors, but no such bonus was given by the opposite party No. 1 to the complainant. The complainant sent several letters to the opposite party No. 2 in this regard, but all in vain. Thereafter, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Almora.
3. The opposite party No. 1 - Gola Ganpati Motors filed written statement before the District Forum and pleaded that no loss has been caused to the complainant; that no excess amount has been charged from the complainant; that the learned District Forum, Almora has no territorial jurisdiction in the matter as the opposite party No. 1 is not having any branch office at Almora and that there is no deficiency in service on their part.
4. The opposite party No. 2 - Tata Motors filed written statement before the District Forum and pleaded that no cause of action has arisen in favour of the complainant to file the consumer complaint against the opposite party No. 2; that the opposite party No. 1 is not their dealer; that there was no privity of contract between the complainant and the manufacturing company; that the learned District Forum, Almora has no territorial jurisdiction in the matter and that there is no deficiency in service on their part.
5. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 30.11.2011 in the above terms. Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 273 of 2011 and whereas the opposite party No. 2 has filed First Appeal No. 07 of 4 2012, thereby assailing the propriety and legality of the impugned order passed by the District Forum.
6. We have heard the learned counsel for the parties and have also perused the record.
7. Section 11(2) of the Consumer Protection Act, 1986 deals with the territorial jurisdiction of the District Forum to entertain the consumer complaint instituted before it and to decide the same on merit. The said Section reads as under:
"(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."5
8. A bare perusal of the provision of Section 11(2) of the Consumer Protection Act, 1986 indicates that it would be necessary for attracting the jurisdiction of the District Forum that the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, should actually and voluntarily reside or carry on business or has a branch office or personally work for gain within the local limits of its jurisdiction. In the instant case, the opposite party No. 1 is situated at Haldwani and whereas the opposite party No. 2 is situated at Mumbai, as would be evident from the array of the opposite parties mentioned by the complainant himself in his consumer complaint (Paper Nos. 10 to 12 on the record of First Appeal No. 273 of 2011).
9. In para 9 of the consumer complaint, the complainant has averred that since in the advertisement issued, the contact number of dealer at Almora and Ranikhet was given and since the insurance certificate in respect of the vehicle was issued at Almora and since the loan installments were paid at Central Bank of India, Almora and hence the cause of action for filing the consumer complaint has arisen in favour of the complainant at Almora and the District Forum, Almora has territorial jurisdiction in the matter.
10. We are unable to agree with the said averment made by the complainant in his consumer complaint. The reason being that in the advertisement got published by the opposite party No. 1 - Gola Ganpati Motors in the newspaper dated 13.10.2009 (Paper No. 29 on the record of First Appeal No. 273 of 2011) as well as Paper No. 5ka/1 of the original record, there is only mention of contact numbers of different places, in order to show that the persons residing in the said places can contact the said persons in order to have any inquiry about the vehicle they desire to purchase. There is no such 6 mention in the said advertisement that the opposite party No. 1 - Gola Ganpati Motors is also having a branch office at the said places and there is no such mention in the said advertisements.
11. This apart, there is no dispute with regard to the fact that the vehicle was purchased by the complainant from the opposite party No. 1 - Gola Ganpati Motors at Haldwani. Had the opposite party No. 1 - Gola Ganpati Motors having any branch office at Almora, as pleaded by the complainant, there was no occasion for the complainant to go to Haldwani at the opposite party No. 1's place in order to purchase the vehicle. If the opposite party No. 1 - Gola Ganpati Motors was having any branch office at Almora as pleaded by the complainant, the complainant should have impleaded the said office of the opposite party No. 1 as a party to the consumer complaint and purchased the vehicle from there. Even otherwise, there is nothing on record to show that the opposite party No. 1 - Gola Ganpati Motors is having any branch office at Almora or carry on any business or work for gain at Almora, so as to give territorial jurisdiction in the matter in issue to the District Forum, Almora.
12. Merely because the vehicle was financed and the loan installments were paid by the complainant at the bank situated at Almora, the same will not create the territorial jurisdiction with the District Forum, Almora to entertain and decide the consumer complaint on merit.
13. Learned counsel for Gola Ganpati Motors cited a decision dated 08.08.2014 of this Commission given in First Appeal No. 322 of 2013; The New India Assurance Company Limited Vs. Smt. Vibha Yadav, which also deals with the territorial aspect of the matter. In the said decision, this Commission had relied upon its 7 earlier decision dated 27.08.2013 rendered in First Appeal No. 104 of 2010; Commerical Motors Vs. Sh. Vijay Prakash Joshi, wherein the complainant had taken a loan from Almora Urban Cooperative Bank Limited, Pithoragarh for purchasing a tipper. It was held that the District Forum, Pithoragarh had no territorial jurisdiction in the matter. Learned counsel also cited a decision of the Hon'ble National Commission in the case of Indusind Bank Ltd. Vs. Avtar Singh; III (2013) CPJ 336 (NC). In the said case, the loan documents were executed either at Chandigarh or at Jalandhar. The Head Office of the bank was at Jalandhar while the Branch Office was at Chandigarh. No transaction took place within the territorial jurisdiction of District Mandi. It was held that the District Forum, Mandi had no jurisdiction to deal with the complaint. In the case in hand also, no transaction had taken place between the parties within the territorial jurisdiction of District Forum, Almora and hence no cause of action has arisen in favour of the complainant at Almora, so as to file the consumer complaint before the District Forum, Almora. Learned counsel further cited another decision of the Hon'ble National Commission in the case of Melanie Das Vs. Royal Sundaram Alliance Insurance Company Ltd. and another; I (2014) CPJ 302 (NC), wherein it was held that the mere existence of branch office of the company would not ipso facto be determinative of territorial jurisdiction and the cause of action must also arise at that place. In the instant case, as is stated above, there is even no branch office of opposite party No. 1 - Gola Ganpati Motors situated at Almora.
14. The District Forum has not properly considered the territorial aspect of the matter and has wrongly held that it has got territorial jurisdiction in the matter in issue. Since we have held that the District Forum, Almora had no territorial jurisdiction in the matter and the consumer complaint was not maintainable before the District Forum, 8 Almora, the order impugned passed by the District Forum can not legally be maintained and is liable to be set aside. In view of the above legal situation, we need not enter into the merit of the case.
15. For the reasons aforesaid, both the appeals are allowed. Order impugned dated 30.11.2011 passed by the District Forum, Almora is set aside. However, the complainant, if he so wishes, may file a consumer complaint before the District Forum having territorial jurisdiction in the matter and in that event, he may seek exclusion of the time for the purposes of limitation in the light of the judgment of the Hon'ble Apex Court given in the case of Laxmi Engineering Works Vs. PSG Industrial Institute; (1995) 3 SCC 583. No order as to costs.
16. Let the copy of the order be kept on the record of First Appeal No. 07 of 2012.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K