State Consumer Disputes Redressal Commission
M/S.D.D.Builders Ltd. vs Tri Star Motors & Ors. on 11 July, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2018/07
Instituted on : 08.03.2018
M/s D.D. Builders Limited,
Through : Director Subrat Agrawal, Aged 34 years,
S/o Shri Damrudhar Agrawal,
House No.C-22, South Avenue, Choubey Colony,
Raipur (C.G.) ... Complainant
Vs.
1. Tristar Motor,
(Unit of) M/s Vaidahi Motors Private Limited,
Through : Manager / Director,
Address : City Mart, Plot No.10 (P) 12 (P),
Baramunda, Bhubaneshwar (Odisha)
2. Mercedes Benz India Private Limited,
Through : Manager / Director,
Address : E/03, Phase - 03, Chakan Industrial Area,
Kuruli and Nighoje Taluka, Chakan,
Pune (Maharashtra) Pin 410501
3. M/s Auto Hanger India Pvt. Ltd.,
Authorized Dealer Mercedes Car,
Through : Manager / Director,
Address : Ring Road No.1,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES:
Shri Vikas Agrawal, Advocate for the complainant.
Shri Saurendra Rautre, Advocate for O.P. No.1.
Shri Jitendra Sahu, Advocate for O.P. No.2.
None for the O.P. No.3.
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ORDER
Dated : 11/JULY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs seeking following reliefs :-
(01) The OPs be directed to provide new vehicle in place of the vehicle in question or to pay the cost of the vehicle Rs.82,55,836/- (Rupees Eighty Two Lakhs Fifty Five Thousand Eight Hundred Thirty Six), Rs.1,18,409/- (Rupees One Lakh Eighteen Thousand Four Hundred Nine) for insurance, Rs.4,02,317/- (Rupees Four Lakhs Two Thousand Three Hundred Seventeen) for R.T.O. registration and interest. (02) The OPs be directed to pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards compensation for mental agony. (03) The OPs be directed to pay a sum of Rs.20,000/- (Rupees Twenty Thousand) towards cost of litigation. (04) Any other reliefs, which this Commission deems fit, be awarded to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the O.P. No.1 and O.P. No.3 are authorized dealers of Mercedes Benz Car (O.P. No.2). The O.P. No.1 and 3 are selling and doing servicing of the Mercedes Car in India, under O.P. No.2 and as per guidelines of the // 3 // O.P. No.2. For the act of the O.P. No.1 and O.P. No.3, the O.P. No.2, is responsible and liable. The complainant had purchased a new Mercedes Benz Car bearing Model No.G.L. 350//C.D.I. on 11.04.2016 at the cost of Rs.82,55,836/- with the financial assistance of H.D.F.C. Bank Limited. The registration number of the above vehicle is O.D.-07-N-0009, engine No. is 64282641695916 and chassis No. is W.D.C.166823 M 007672. The complainant had paid a sum of Rs.4,02,317/- for R.T.O. Registration and Rs.1,18,409/- for insurance. When the complainant started to drive the vehicle, then firstly the problem was occurred in the tyres, the tyres are looking old and at the time of driving vehicle it was feeling that the vehicle was being used prior to date of its purchase. The old car was sold to the complainant. The complainant made complaint to the O.P. No.1, then the O.P. No.1 realized his mistake and replaced three tyres of the car in the month of August, 2016. After two months of purchasing the vehicle, the complainant came to Raipur to meet his relative then there was some machinery/technical problem in the vehicle, then the complainant went to the O.P. No.3 for necessary test, then the O.P. No.3 informed him that it is an old car and the warranty of the car has been expired. The above vehicle was earlier sold to M/s S. Chanchala Combines Pvt. Ltd. Through N.K. Das, At P/O. Chakrathirtha Road, Puri, Odisha. The manufacturing date of the vehicle in question is 20.062015. After knowing the above facts, the complainant was shocked and he suffered mental agony. He came to know that he was cheated. The complainant made complaint in this regard to R.C. Sahu, who is working in the establishment of O.P. No.1 and demanded sale invoice of the // 4 // vehicle in which the date of manufacturing of the vehicle is mentioned 20.06.2015 wherein the sale invoice provided to the complainant, the manufacturing year is mentioned 03/2016. The complainant several times requested to the O.P. No.1 to replace the vehicle and to provide new vehicle, but the O.P. No.1 avoided to provided new car, then the complainant sent notice to the O.P. No.1 through his advocate on 25.08.2016. When the O.P. No.1 did not take any action in respect of the complaint made by him, then he made complaint regarding cheating before Police Station Khandgiri, Bhubaneshwar (Odisha). Thereafter on 09.09.2016, the Police recorded offence under Section 420 IPC against the Manager Arindam Dev and C.R. Sahu, and the Offence No. is 440. The act of the O.P. No.1 comes in the category of unfair trade practice and deficiency in service. Hence the complainant filed instant complaint and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The O.P. No.1 has filed its written statement and averred that the entire transaction between the complainant and the O.P. No.1 took place in Bhubaneshwar where the complainant as well as the O.P. No.1 have their offices. The sale of the car in question has been effected at Bhubaneshwar, the financing has been done at the behest of the Complainant from HDFC Bank at Bhubaneshwar, the Insurance Cover Note has been issued at Bhubaneshwar. Thus, the present complaint is liable to be returned on the doctrine of Forum non conveniens. As per this doctrine, an appropriate Forum, even though competent under the law, may divest itself of jurisdiction if, for the convenience of the litigants // 5 // and the witnesses, if it appears that the action should proceed in another forum in which the action might originally have been brought. The said doctrine is applicable in Consumer Cases under the Consumer Protection Act. Thus, on the ground of Forum non conveniens, the present complaint is liable to be returned for presentation before the appropriate Forum in Bhubaneshwar. The complainant has filed the present complaint on the unfounded allegation of sale of old car to the complainant by O.P. No.1. In order to have a conclusive proof of such allegation, the complainant has not filed any old registration details with any of the Regional Transport Department (R.T.O.) to show that the Engine Number and the Chassis Number of the car in question has been registered elsewhere. Thus, in absence of such records, the present complaint is speculative in nature and liable to be dismissed at threshold. The present complaint is tainted with malafides and has been filed before this Commission only to harass and extort the O.P. No.1. The complainant has not approached this Commission with clean hands and has concealed material facts. The complainant has not placed on record true and correct facts, which are necessary for fair adjudication of the present complaint. The true and correct facts are as under :-
A. The car in question having Engine Number 64282641695916 and Chassis Number WDC1668236M007672 was finalized to be sold to one M/s. S. Chanchala Combines Pvt. Ltd. by the O.P. No.1. Accordingly, the billing was done, however, the transaction could not be concluded due to some personal // 6 // reasons beyond the knowledge of the O.P. No.1. Since the transaction could not be concluded, the car was never registered not the possession of the car was delivered to M/s. S. Chanchala Combines Pvt. Ltd.
B. In March/April, the complainant with a desire to purchase a Mercedes Benz GL 35OCDI Model approached the O.P. No.1 at its show room in Bhubaneshwar, Odisha. C. After verifying and inspecting the car at showroom at Bhubaneshwar, the complainant agreed to purchase the car in the month of April, 2016.
D. The O.P. No.1 M/s. Tristar Motors is the official Mercedes Benz Dealer in the city of Bhubaneshwar and responsible for the sales and service of the vehicles manufactured by the O.P. No.2.
E. The O.P. No.1 raised a retail purchase order on 08.04.2016.
The complainant on being completely satisfied with the car paid the price of the vehicle as per the retail purchase order along with a deposit of an amount of Rs.4,03,489.00/402347 towards the car registration fee as per the Motor Vehicle Act.
F. The complainant had intimated the O.P. No.1 that their car shall be registered with the Ganjam RTO and that they shall take the delivery of the car on a temporary registration since // 7 // they desired to take a VIP Number. Therefore the complainant sought to take the delivery of the car on a temporary registration.
G. Pursuant to the payment of the total amount as per the Retail purchase order along with the car registration fee, the O.P. No.1 issued a Sale Certificate on 08.04.2016. Thereafter, O.P. No.1 paid the registration amount with the Ganjam R.T.O. through on line payment and thereby received a temporary registration number for the said car as desired by the complainant. The said sale certificate clearly states the month and year of manufacturing of the said car as 20.06.2015. It is pertinent to mention as per the Motor Vehicles Act / Rules, the O.P. No.1 had filed Form 20 by attaching the sale certificate vide Form 21 which states clearly the manufacturing month and year to be 6/2015 and the same has been relied by the complainant in the present case and thereafter the car was delivered to the complainant with all the requisite documents as well a delivery acknowledgement note dated 08.04.2016 signed by the complainant which states that car had run for 80 kms only.
I. The complainant has categorically stated to have examined and test driven the said car before taking delivery in as much as the complainant also confirms the receipt of the said car in good and satisfactory condition. The // 8 // complainant further confirms the receipt of the Mercedes Benz warranty terms and conditions and having understood the same accepted the same by putting his signature on delivery acknowledgement note.
J. The complainant had insured his vehicle himself and has manipulated the month and year of the manufacturing date of the car deliberately. A perusal of the Cubic Capacity of the car clearly reflects that the insurance document is not based on any written document from the O.P. No.1. The complainant has relied upon the said insurance copy. K. Pursuant to the delivery of the vehicle by the O.P. No.1 on 11.04.2016 with a temporary registration, the complainant took all further steps himself to get his car registered with the Ganjam R.T.O. The complainant on 12.04.2016 ha deposited Rs.10,000/- with the Ganjam RTO to get the VIP number and receipt of the same has already been annexed and relied upon by the complainant. On the basis of such false representation made by the complainant, the R.T.O. Ganjam (Odisha) wrongly mentioned the date of manufacture of the car to be March, 2016 instead of June 2015.
L. The complainant was very much aware of the manufacturing year of the car, which is evident from the documents issued by the O.P. No.1 and relied upon by the // 9 // complainant hence the said complaint has no legs to stand and has been filed with a motive to repay the outstanding amount demanded by the HDFC Bank (Financer). The said loan account has become bad due to non-payment EMI by the complainant.
Every dealer of Mercedes Benz has a territorial jurisdiction in which it has to operate and the said fact is evident from the fact the parties to the sale of instant vehicle in question have consciously agreed to confine the jurisdiction of any disputes arising between the parties to the Courts at Bhubaneshwar (Odisha). The complainant asked the O.P. No.1 to replace the original tyres with the tyres provided by him. The said fact is evident from the service report, which states that the tyres have been replaced being provided by the complainant. The complainant took delivery of absolutely new vehicle having odometer reading at 80 Km. The said fact is evident from the delivery acknowledgement note dated 08.04.2016 being signed by the complainant. The vehicle was brought to the O.P. No.3 Service Centre for the first time on 13.07.2016 for replacement of the damaged wipers and not otherwise as alleged by the complainant wherein he has knowingly and with deceptive motives has alleged the purpose to visit to the O.P. No.3 was due to some machinery problem. Though the vehicle was originally billed to M/s S. Chanchala Combines (P) Ltd. but due to some personal constraint of the said company the sale could not be completed and hence no sale certificate was generated. The vehicle was never delivered to the said company and hence consequently // 10 // the sale was never complete. The O.P. No.1 had informed Mr. Ramesh Agrawal of the complainant company about the error in the system of Mercedes Benz India (P) Ltd. which still shows the name of M/s S. Chanchala Combine (P) Ltd. and that the reversal of invoicing did not happen which is being attended to and that O.P. No.1 has already escalated the said issue with O.P. No.2. Hence the assumption of the complainant that the vehicle being old is far from true and the allegation of cheating are not tenable, in fact the complainant has not relied upon a single piece of evidence establishing that the said car is old/used while there are adequate material available in public domain had the car been registered in any other person's name. The complainant has made a false submission that the sale invoice bears the date of manufacture of the vehicle to be 3/2016. The complainant is cooking up a story of the vehicle being old and pre owned by virtue of his own deliberate wrong entries made before the RTO, Ganjam as well as the insurance. The demand for refund of the cost of vehicle along with refund of other charges or change of the vehicle on the premises of the vehicle being old being totally false, hence the demand was not fulfilled by the O.P. No.1. The complainant agitated the same issue before Police Station Khandagiri, Odisha, which is pending investigation and nothing has been found true, as alleged. There is actually no cause of action against the O.P. No.1 since the complainant was well aware of the month and year of manufacture of the said vehicle during the period of due diligence, which is prior to the sale of the vehicle. The allegation of the vehicle having old tyres is also vexatious since the complainant of his own choice replaced the tyres. The present // 11 // complaint is not at all maintainable before this Commission since parties to the sale of instant vehicle in question have consciously agreed to confine the jurisdiction of any disputes arising between the said parties to the Courts at Bhubaneshwar (Odisha). The complainant had consciously agreed to subject itself to the jurisdiction of Courts at Bhubaneshwar even prior to the sale when the complainant deposited the initial amount on 02.02.2016, an receipt of which has been relied upon by the complainant in the complaint petition. Even the purchase invoice to which the complainant is a signatory limits the scope of disputes to be triable before the Courts at Bhubaneshwar. The complainant has in fact just in order to maintain this complaint before this Commission and to harass the O.P. No.1 has deliberately arrayed O.P. No.3 wherein he had taken his vehicle for replacement of Wiper. The complainant has annexed an invoice of O.P. No.3 which is totally illegible. In fact the invoice generated by O.P. No.3 also restricts the jurisdiction of any disputes arising out of the service rendered by the O.P. No.3. In fact the complainant has not alleged any deficiency in service against the O.P. No.3 and hence O.P. No.3 is neither a necessary nor a proper party to the present consumer complaint. The real motive of the complainant to harass the O.P. No.1 becomes amply clear from the fact that it has unnecessarily arrayed the O.P. No.3 just in order to maintain this complaint before this Commission against the O.P. No.1. The complaint is liable to be dismissed against the O.P. No.1.
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4. The O.P. No.2 has filed its written statement and averred that the complaint is liable to be dismissed as the same has been filed on behalf of M/s D.D. Builders, a commercial entity which had purchased a vehicle for commercial purpose. Since the vehicle was purchased by a commercial entity and for commercial purpose, the complainant is not a consumer under the Consumer Protection Act. The Consumer Protection Act, encompasses in itself Redressal of the violations of the rights of the aggrieved consumer and is not meant to resolve disputes between the commercial / business entities. The Consumer Court is not the appropriate Forum for resolution of disputes between the commercial companies and the same should not be allowed to take advantage of the same in order to avoid the payment of the court fees. The present complaint is liable to be dismissed as this Commission does not have the jurisdiction to hear the said complaint. The O.P. No.2 has its registered office in the State of Maharashtra, hence this Commission does not have the territorial jurisdiction to hear the said complaint. The present complaint is misjoinder of parties as the O.P. No.2 is not a necessary party for the adjudication of the present complaint. The O.P. No.2 has no role in the present dispute. No averments and allegations have been made against the O.P. No.2. As per the dealer agreement signed between the O.P. No.1 and the O.P. No.2, the relationship between them is on principal to principal basis. Hence the O.P. No.2 is not liable for any alleged misrepresentation done by the O.P. No.1 Under Article 8 of the dealer agreement, it has been clearly stated that the vehicles are sold by the O.P. No.2 on whole sale price in rupees plus charges and taxes // 13 // applicable on the date of delivery of the vehicle by the O.P. No.2 to the O.P. No.1. Thus, once the vehicle is sold by the O.P. No.2 to the end customer, the entire liability is on the O.P. No.1. The Article 6 of the said dealer agreement does not accrue any liability of the O.P. No.2 towards the complainant. The O.P. No.2 further averred that the O.P. No.2 is manufacturer of the vehicle in dispute and the cars manufactured by the O.P. No.2 are sold to the authorized dealer i.e. O.P. No.1 on principle to principle basis. The O.P. No.1 is not an agent or distributor of O.P. No.3. Since the relationship between the said parties is on principle to principle basis, the manufacture i.e. O.P. No.2 cannot be held liable for the misrepresentation, if any, made by the dealer. The liability of the O.P. No.2 is limited to that of Warranty, subject to terms and conditions. The fraud or the misrepresentation alleged is against the O.P. No.1 and no correspondence regarding the same was ever made by the complainant to the O.P. No.2. The alleged misrepresentation was not in the knowledge of the O.P. No.2. The complaint is liable to be dismissed against the O.P. No.2 and cost should be awarded in favour of the O.P. No.2 to be unnecessarily being dragged into this litigation.
5. None appeared for the O.P. No.3 inspite of service of notice, therefore, could not file its written statement, documents and affidavit.
6. The complainant has filed documents. Annexure 1 is Minutes f Board of Meeting of D.D. Builders Ltd. on 15th December, 2017, Annexure 2 is Form 21 Sale Certificate, Annexure 3 is receipt No.313 dated 23.02.2016 issued by Vaidehi Motors Pvt. Ltd., Baramunda, // 14 // Bhubaneshwar, Annexure 3 (A) is receipt No.326 dated 02.02.2016 issued by Vaidehi Motors P. Ltd., Annexure 3 (B) is Form Receipt of Fees/Tax, Annexure 4 is Registration Certificate Particulars of vehicle bearing registration No.OD-07N-0009, Certificate of Registration of vehicle bearing registration No.OD-07-N-0009, Form - Receipt of Fees and Tax, Annexure 5 is insurance policy, Annexure 6 are repairing bill with job card, Annexure 7 is reply to legal notice dated 25.08.2016 sent by Prasad Associates, Advocates and Legal Consultants on 08.09.2016 to Mr. Pravakar Behra, Advocte, Annexure 8 is Written Complaint dated 29.08.2016 against fraudulent sale of used Mercedes Benz Car (GL35OCDI) as a new one by the Authorised Dealer - Tristar Motors, Annexure 9 is First Information Report (Under Section 154 Cr. P.C.), Annexure 10 is repairing bill, Annexure 11 is Form 20, Annexure 12 is email sent by the complainant to O.P. No.2 on 13.09.2016, Annexure 13 is repairing bill of vehicle dated 08.10.2016, Annexure 14 is Aadhaar Card of the complainant, Annexure 15 is repairing bill of the vehicle.
7. The O.P. No.1 has filed documents. The documents are letter dated 30.05.2015 sent by Public Information Office, Regional Transport Officer, Regional Transport Office, Ganjam, Chatrapur, Invoice, Sales conditions, Temporary Certificate of Registration, Form 21, Form 22, Insurance policy, Form 20, Delivery Acknowledgement Note.
8. The O.P. No.2 has filed documents. Annexure R-2/1 is Dealer Agreement dated 03.11.2015 executed between Mercedes Benz India Private Limited and Vaidehi Motors Private Limited (Carrying out // 15 // business in the name of Tristar Motors), Annexure R-2/3 is Warranty Terms and Conditions.
9. Shri Vikas Agrawal, learned counsel appearing for the complainant has argued that the O.P. No.1 & 3 are authorized dealers of Mercedes Benz India Private Limited (O.P. No.2). The O.P. No.2 is manufacturer Mercedes Benz Cars. The complainant had purchased a new Mercedes Benz Car bearing Model No.G.L.350/C.D.I. on 11.04.2016 at the cost of Rs.82,55,836/- with the financial help of H.D.F.C. Bank Limited. The complainant had paid a sum of Rs.4,02,317 for R.T.O. registration and Rs.1,18,409/- for insurance to the OPs. When the complainant started to drive the vehicle, then firstly he came to know regarding problem in tyres, the tyres are looking old and at the time of driving the vehicle, it was feeling that the vehicle was being used prior to date of its purchase. The old vehicle was sold to the complainant. The complainant made complaint to the O.P. No.1, then the O.P. No.1 realized his mistake and replaced three tyres of the car in the month of August, 2016. After two months of purchasing the vehicle, the complainant came to Raipur to meet his relative, then there was some machinery/ technical problem in the vehicle, then the complainant went to the O.P. No.3 for necessary test. The O.P. No.3 informed the complainant that it is an old car and the warranty of the car has been expired. The vehicle in question was manufactured on 20.06.2015. The above vehicle was earlier sold to M/s S. Chanchala Combines Pvt. Ltd. Through N.K. Das, P.O. Chakrathirtha Road, Puri, Odisha. It appears that OPs sold an old car to the // 16 // complainant and misrepresented the complainant. On being misrepresentation given by the OPs, the complainant had purchased the vehicle in question which was having problems. The OPs committed cheating and unfair trade practice with the complainant, therefore, the complainant is entitled to get the reliefs, as mentioned in relief clause of the complaint.
10. Shri Saurendra Rautre, learned counsel appearing for the O.P. No.1 has argued that this Commission has no jurisdiction to take cognizance in the matter. The vehicle in question was purchased by the complainant at Bhubaneshwar (Odisha) and the amount for purchasing the vehicle in question was also financed at Bhubaneshwar (Odisha). The sale of vehicle in question was effected at Bhubaneshwar (Odisha). Merely the O.P. No.3 is dealer of the O.P. No.2 is not sufficient to hold that this Commission is having territorial jurisdiction to take cognizance in the matter. On the above ground , the complaint is liable to be returned to the complainant to file the same before appropriate State Commission, having territorial jurisdiction. So far as merits of the case is concerned, the complainant has utterly failed to prove that an old car was sold to the complainant. Initially the vehicle in question was booked by M/s. S. Chanchala Combines Pvt. Ltd., but the vehicle could not be sold to M/s S. Chanchala Combines Pvt. Ltd.. M/s S. Chanchala Combines Pvt. Ltd. had not purchased the vehicle in question. Thereafter the vehicle in question was sold to the complainant. The allegation made by the complainant is false. The vehicle in question is new vehicle. The invoice // 17 // and Sale Certificate have been given to the complainant, in which the manufacturing date of the vehicle is specifically mentioned. The vehicle in question is not registered in the name of M/s S. Chanchala Combines Pvt. Ltd. Therefore, the complainant has utterly failed to proved that the vehicle in question was old vehicle. The complainant after his satisfaction had purchased the vehicle in question. The Engine No. and Chassis No. of the vehicle in question are mentioned in the bill / invoice. After verifying and inspecting the vehicle in question at showroom at Bhubaneshwar (Odisha), the complainant agreed to purchase the car in the month of April, 2016. The O.P. No.1 raised a Retail Purchase Order on 08.04.2016. The complainant on being completely satisfied with the car, he deposited the amount towards the car registration fees. The complainant had intimated the O.P. No.1 that his car shall be registered with Ganjam R.T.O. and he had taken the delivery of the car on the basis of temporary registration since he desired to take a VIP number, therefore, the complainant sought to take the delivery of the car on temporary registration. The complainant had signed the delivery acknowledgement note. The complainant has not filed any evidence to establish that the car in question is old or used vehicle. The complainant has not filed any expert report, therefore, the complaint is also liable to be dismissed on merits. He placed reliance on First Appeal No.100 of 2009 - Mercedes-Benz India Pvt. Ltd. and Anr. Vs. Intercard (India) Ltd., decided by Hon'ble National Commission on 09.05.2013.
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11. Shri Jitendra Sahu, learned counsel appearing for the O.P. No.2 has argued that the complainant is a builder. The vehicle in question was purchased in the name of M/s D.D. Builders. The insurance policy was also issued in the name of M/s. D.D. Builders. According to the complainant, he is director of M/s D.D. Builders. The complainant has nowhere pleaded that the vehicle in question was purchased by M/s D.D. Builders for personal use of its director, therefore, the complainant is not a consumer and on the basis of above ground only, the complaint is liable to be dismissed. Shri Jitendra Sahu, has also supported the arguments advanced by the learned counsel for the O.P. No.1. He placed reliance on First Appeal No.100 of 2009 - Mercedes-Benz India Pvt. Ltd. and Anr. Vs. Intercard (India) Ltd., decided by Hon'ble National Commission on 09.05.2013.
12. None appeared for the O.P. No.3 on 05.07.2018 in spite of service of notice, when the case is fixed for final hearing.
13. We have heard learned counsels appearing for the parties and have also perused the documents filed by the parties in the complaint case.
14. Firstly we shall examine whether this Commission has territorial jurisdiction to take cognizance in the matter ?
15. The complainant has pleaded that the O.P. No.1 and O.P.No.3 are selling and doing services of Mercedes Cars in India under O.P. No.2 and as per guidelines of the O.P. No.2. The complainant in para 4 of the complaint has pleaded that the complainant after obtaining loan from // 19 // M/s HDFC Bank Limited, purchased Mercedes Benz Car Model No.G.L.350/C.D.I. at the cost of Rs.82,55,836/-, but the complainant has not pleaded that from which place he purchased the car and from where he obtained loan for purchasing the car. It appears that the complainant has deliberately suppressed the fact from which place he purchased the car and from where he obtained loan for purchasing the car. On the contrary, the O.P. No.1 has specifically pleaded that the entire transaction between the complainant and the O.P. No.1 took place at Bhubaneshwar where the complainant as well as the O.P. No.1 have their offices. The sale of the car in question has been effected at Bhubaneshwar, the financing has been done at the behest of the complainant from HDFC Bank at Bhubaneshwar, the insurance cover note has been issued at Bhubaneshwar. The complainant has filed Annexure 2, which is Form 21. In the above document, it is mentioned that "the vehicle is held under agreement of Hire Purchase /Lease/Hypothecation with HDFC Bank Ltd." The name of buyer is mentioned D.D. Builders Limited, Plot No.F/36, First Floor, BJB Nagar, Bhubaneswar India 751014. In Retail Purchase Order also the customer name is mentioned D.D. Builders Limited and against the column Hypothecation "HDFC Bank Ltd." is mentioned. In the Inspection Certificate, also the address of the complainant is mentioned Plot No.F/36, First Floor, BJB Nagar, Bhubaneswar India 751014. Annexure 3 are receipt No.313 dated 23.02.2016 issued by Vaidehi Motors Pvt. Ltd. for Rs.74,99,553/- and receipt No.326 dated 02.02.2016 issued by Vaidehi Motors Pvt. Ltd. for Rs.2,51,987/-, which were issued from Bhubaneshwar. The vehicle in // 20 // question was registered with Regional Transport Office, Ganjam Odisha. The Certificate of Registration was also issued by Odisha Motor Vehicle Department. Annexure 5 is insurance policy which was issued by National Insurance Company Limited at Bhubaneswar. Annexure 6 are repairing bill and job card, in which the customer name is mentioned D.D. Builders Limited and address is mentioned Plot No.F/36, BJB Nagar, Bhubaneswar India 751014. The complainant has not mentioned in his complainant regarding the place from where he purchased the vehicle. All the above fact s were suppressed by the complainant in his complaint. The complainant made the O.P. No.3 as party in the complaint only for bringing his case within territorial jurisdiction of this Commission, whereas all the transactions between the complainant and O.P. No.1 were done at Bhubaneswar.
16. Sub section 2 of Section 11 of the Consumer Protection Act, 1986 runs as follows :-
"(2) A complaint shall be instituted in 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 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 // 21 // parties who do not reside, or carry or 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."
17 In Monto Motors Ltd. Vs. Sri Sai Motors & Anr. IV (2013) CPJ 372 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 21 (b) - Territorial Jurisdiction - Dealership - Dispute regarding refund of security amount - Dealership was granted for Bellary and showroom was also opened at Bellary and security amount was also given for running dealership at Bellary - Complaint can be filed within local limits of District Forum in whose jurisdiction cause of action arises - Merely by mentioning that all disputes are subjected to jurisdiction of Delhi Courts in the letter of intent, jurisdiction of Court at Bellary is not ousted."
18. In Sonic Surgical Vs. National Insurance Company Ltd. IV (2009) CPJ 40 (SC) Hon'ble Supreme Court has observed thus :-
"(i) Consumer Protection Act, 1986 - Section 17 - Jurisdiction -
Territorial - Fire broke out in godown at Ambala - Insurance policy taken at Ambala - Compensation claim made at Ambala - Contention regarding applicability of Amendment Act, 2003 not acceptable - 'branch office' in amended section means, branch office where cause of action arose
- No part of cause of action arose in Chandigarh - Consumer Commission, Chandigarh had no jurisdiction to adjudicate."
"8. ......... In our opinion, the expression branch office in the amended section 17(2) would mean the branch office where the cause of action has arisen..."
// 22 //
19. In Ram Murti Smarak Institute of Medical Sciences & Anr. Vs Radhey Shyam & Anr. III (2015) CPJ 151 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Act, 1986 - Section 21 (b) - Territorial Jurisdiction - Medical Negligence - Complainant took treatment at 'Bareilly' - Pacemaker was implanted by OP-2 / Doctor at SRMS Institute of Medical Sciences, Bareilly - Fora below erred in considering the cause of action in District of 'Shahjahanpur' - District Forum, 'Shahjahanpur' directed to transfer the complaint to District Forum at 'Bareilly' - Complainant is allowed to file expert opinion and OPs may file their written statement subsequent to filing of expert report."
20. In Srei Equipment Finance Pvt. Ltd. & Ors. Vs. S. Natrajan, III (2016) CPJ 389 (NC), Hon'ble National Commission has observed, thus :-
"(ii) Consumer Protection Act, 1986 - Section 21(b) - Territorial jurisdiction - Accrual of cause of action - Maintainability - Agreement was executed in 'Kolkata' whereas complaint was filed in District Forum, 'Salem', Tamilnadu - Merely because OP has a branch at 'Salem', complainant does not get jurisdiction to file complaint at 'Salem' - In spite of specific objection raised by OP neither District Forum nor State Commission dealt with this issue - District Forum, 'Salem' had no jurisdiction to entertain complaint."
21. In the instant case, all transactions between the complainant and O.P. No.1 were done at Bhubaneswar. Merely the service centre of the O.P. No.2 is situated at Raipur (C.G.) is not sufficient to hold that this Commission has territorial jurisdiction to take cognizance in the matter.
// 23 // Therefore, this Commission is not having territorial jurisdiction to take cognizance in the matter.
22. Now we shall examine whether the complainant is "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 ? The O.P. No.2 has specifically pleaded that the complainant has purchased the vehicle in question for commercial purpose. In title sheet the complainant mentioned "M/s D.D. Builders Limited, Through Director Subrat Agrawal. The complainant filed Annexure 1 which is authorisation letter dated 15.12.2017 in which it is mentioned thus :-
"Board Meeting of D.D. Builders Ltd. Held on 15th December, 2017 at its registered office at 306, National Corporate Park, G.E. Road, Raipur. And following resolution has passed by all the Board of Directors :-
Resolved that, Mr. Subrat Agrawal, aged 34 years S/o Mr. Damarudhar Agrawal, is hereby authorised to act and represent on behalf of the company in his capacity as the Director of the Company in all legal matters, suits, complaints, whether civil or criminal to be instituted before Hon'ble State Commission, Raipur, Chhattisgarh and Hon'ble National Commission, New Delhi.
Further resolved that : In pursuance thereof the above Mr. Subrat Agrawal is authorised to sign all the complaints, affidavits pertaining thereto, attestation of all the documents which may be presented in support of our cases on behalf of the company."
23. In Sale Certificate, Retail Purchase Order, Expense Memo, inspection Certificate, Receipts issued by Vaidehi Motor Pvt. Ltd., Form Receipt of Fees/Tax, Registration Certificate Partculars, receipt of fees and tax issued by Odisha Motor Vehicle Department, insurance policy, pre // 24 // order and workshop order, the name of owner/insured/customer is mentioned M/s D.D. Builders Limited. It appears that the vehicle in question was purchased by M/s D.D. Builders Limited
24. The complainant has not pleaded in his complaint that the vehicle in question was purchased by him for personal use of the director or partners of the firm / company. For want of specific pleading, it appears that the vehicle in question was purchased by M/s D.D. Builders Limited for use of the company and not for personal use of any of its director, therefore, it is established that the vehicle in question was purchased by the complainant for the commercial purpose, therefore, the complainant is not a "consumer" under Section 2 (1)(d) of the Consumer Protection Act, 1986.
25. In view of above discussions, we are of the firm view that the complainant has purchased the vehicle in question for commercial purpose, therefore, the complainant is not consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the dispute between the parties is not consumer dispute. This Commission has no territorial jurisdiction to take cognizance in the matter, therefore, the complaint is not maintainable. Therefore, without going into merits of the case, the complaint is liable to be dismissed for want of territorial jurisdiction and that the complainant is not "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986.
// 25 //
26. Therefore, the complaint of the complainant against the OPs, is hereby dismissed. No order as to the cost of this complaint.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel)
President Member Member Member
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