State Consumer Disputes Redressal Commission
M/S Mega Motors vs Sh. Bhuwan Chandra Joshi And Others on 1 December, 2006
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL - 6 - STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARANCHAL DEHRA DUN FIRST APPEAL NO. 142 / 2005 M/s Mega Motors, Tikonia, Nainital Road, Haldwani, District Nainital. ......Appellant Versus 1. Sh. Bhuwan Chandra Joshi, S/o Sh. Murlidhar Joshi, R/o Kotmanya, District Bageshwar. 2. Tata Engineering and Locomotive Co. Ltd., Passenger Car Business Unit, Unit No. 402, IV Floor, Tower-A, Signature Towers, South City-I, NH-8, Gurgaon (Haryana). 3. M/s Mega Motors, Regional Office, Rampur Road, Bareilly. .....Respondents Sh. Deepak Ahluwalia, Learned Counsel for the Appellant Sh. Rajeev Acharya, Learned Counsel for the Respondent No. 1 Sh. S.K. Gupta, Learned Counsel for the Respondent No. 2 None for Respondent No. 3 Coram: Hon'ble Justice Irshad Hussain, President Ms. Luxmi Singh, Member Dated: 01.12.2006 ORDER
(Per:
Mr. Justice Irshad Hussain, President):
Dealer, who had sold a Tata Spacio vehicle to the complainant Sh. Bhuwan Chandra Joshi and which was registered and plied as a taxi filed this appeal against the order dated 13.04.2005 passed by the District Forum, Bageshwar in Consumer Complaint No. 06 of 2004; Sh. Bhuwan Chandra Joshi Vs. Mega Motors and others, whereby the said dealer was directed to pay sum of Rs. 43,000/- as amount of excise duty, which was refundable, to the complainant in view of the exemption granted on the vehicle being registered and plied as taxi and Rs. 2,000/- as litigation expenses, total being Rs. 45,000/- within the stipulated period, failing which the amount was to carry interest @8% p.a. The said dealer was given a liberty to recover the said amount either from O.P. No. 2 or O.P. No. 3, as the case may be.
2. The legality of the order of the District Forum being impugned in this appeal, has been challenged on the grounds inter-alia that the appellant was not liable for refund of the excise duty under the relevant exemption notification of the Government; that the application made in that regard by the complainant had been sent to the manufacturer - O.P. No. 3, who was obliged to prosecute the matter according to the procedure prescribed for refund of excise duty; that the District Forum, Bageshwar had no territorial jurisdiction to entertain and decide the complaint preferred before it by the complainant as neither the appellant, nor the respondent Nos. 2 or 3 actually and voluntarily resides or carries on business or has a branch office or personally works for gain within the jurisdiction of the District Forum, Bageshwar, nor the cause of action wholly or in part, arise within the jurisdiction of the said Forum and that the District Forum has made an illegality in not considering the legal plea and went on to decide the consumer complaint erroneously against the appellant.
3. We have heard the learned counsel for the appellant and the respondent Nos. 1 and 2, none appeared on behalf of the respondent No. 3 and have carefully considered their submissions in the light of the legal aspects of the matter in issue. It cannot be disputed that the plea as regards lack of jurisdiction goes to the root of the matter in controversy before the District Forum and when a specific plea in regard to the lack of territorial jurisdiction had been taken by the appellant, the District Forum was legally obliged to take up that issue and pass an appropriate order on it. Perusal of the impugned order dated 13.04.2005 reveal that the District Forum has not cared to decide the dispute as to the territorial jurisdiction raised at the earliest opportunity by the appellant. This is the reason that the plea has been pressed and reiterated in this appeal also and rightly so because when the law provide that the consumer dispute need to be entertained and decided by a Forum which has pecuniary as well as territorial jurisdiction in the matter, the spirit behind the legislative intent should not be diluted, rather it should be made to prevail so that the aggrieved parties could repose confidence in the legal machinery of the redressal forum and which in turn make endeavour to maintain the practical efficacy of the remedial system. Learned counsel for the appellant, therefore, rightly urged that when the plea as regards the lack of territorial jurisdiction of the District Forum has not been waived, the same need to be taken note of and considered on merit at the appellate stage itself so that justice may also seems to have been done in the case. We, therefore, proceed to take up the plea in that regard at the outset.
4. Section 11(2) of the Consumer Protection Act, 1986 provide that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-
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 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 the cause of action, wholly or in part, arises.
5. From above, it is abundantly clear that a complaint cannot be filed before the District Forum within whose jurisdiction no part of cause of action arose or opposite party did not carry on business. It is not in dispute that none of the O.P.'s in the consumer complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain within the territorial jurisdiction of the District Forum, Bageshwar. Learned counsel for the complainant - respondent No. 1 argued that the District Forum, Bageshwar has had territorial jurisdiction in the matter as part of cause of action had arisen within the jurisdiction of District Forum, Bageshwar on account of the fact that the finance for purchase of the vehicle (taxi) was provided by Almora Nainital Kshetriya Gramin Bank, Branch Dharamghar, District Bageshwar. We see no merit in the submission of the learned counsel because none of the O.P.'s in the consumer complaint were privy to the contract of advance of finance to the complainant by the said bank and, therefore, merely on the basis of the finance having been provided by the bank having a branch at Bageshwar, it could not legally be accepted that the cause of action in part had arisen for the relief claimed in the consumer complaint from the O.P.'s within the jurisdiction of the District Forum, Bageshwar. We are fortified in our conclusion by the reported decision of the Hon'ble National Commission in the case of Puran Chand Wadhwa Vs. Hamil Era Textiles Ltd.; 2004 NCJ 60 (NC). In the case before the Hon'ble National Commission, the consumer complaint was filed within the jurisdiction of the bank through which payment for debentures was made or interest was received by the O.P. who was not carrying on any business within the jurisdiction of that Forum and it was held that the bank is only a facilitator to accept the money and the District Forum within whose jurisdiction the bank is situate, cannot have territorial jurisdiction in the matter of consumer dispute pertaining to non-payment of amount of debentures etc.
6. In the case of Starline Motors Vs. Naval Kishore Chiman Lal Bhartia and another; I (1998) CPJ 79 (NC), the consumer dispute arose on account of non-delivery of the vehicle for which booking was made at Bombay and the amount was paid initially by a demand draft to be paid at Bombay. The complainant gave his address of Akola while booking the car and filed consumer complaint before the District Forum, Akola. It was held that the District Forum, Akola had no jurisdiction in the matter as neither the Starline Motors who was to delivery the vehicle, had any office, nor were they carrying any business through a branch office at Akola. In view of above and the admitted fact that neither none of the O.P.'s carried on business within the jurisdiction of District Forum, Bageshwar, nor cause of action or part thereof had arisen within the jurisdiction of the said Forum, the complaint could not have legally been entertained and decided by the District Forum, Bageshwar and, therefore, the impugned order suffers from lack of jurisdiction and being legally erroneous, cannot legally be maintained. We need not, therefore, enter into merit of the case of the parties as the complaint has to be returned to the complainant to be presented before the District Forum having territorial jurisdiction in the matter in controversy. For the reasons aforesaid, the appeal succeed and is to be allowed accordingly.
7. Appeal is allowed. Order dated 13.04.2005 of the District Forum is set aside. The complaint is directed to be returned to the complainant to be presented before the Forum having territorial jurisdiction to entertain the same and decide the consumer dispute raised by the complainant. Let the record of the District Forum be returned forthwith to the District Forum for compliance at the earliest. No order as to cost.
(MS.
LUXMI SINGH) (JUSTICE IRSHAD HUSSAIN)