Haryana

Ambala

CC/46/2014

RAVEL SINGH - Complainant(s)

Versus

MAHINDER & MAHINDRA - Opp.Party(s)

PARDEEP BATRA

28 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 46 of 2014

                                                          Date of Institution         : 05.02.2014

                                                          Date of decision   : 28.08.2017

 

                    Ravel Singh son of Sh. Kartar Singh, resident of house No.233/354,                            Gobind Vihar, Ambala City.

……. Complainant.

 

1. Mahindera – Mahindra Ltd. Swaraj Division, Phase-IV, Industrial Area, SAS Nagar, Mohali-PB, through its Managing Director.
2. Himachal Tractors- Peer Sihaan, Pinjor Road, Nalagarh-HP, through its Manager.
3. Mukal Tractor Agency, Baldev Nagar, Ambala city through its Manager/prop.

 ….…. Respondents.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER                   

                   MS. ANAMIKA GUPTA, MEMBER       

 

Present:       Sh. Pardeep Batra, counsel for complainant.

                   Sh. Narinder Singh, counsel for OP No.1.

                   Sh. Vikas Arora, counsel for OP No.2.

                   Sh. Mohd Naim, counsel for OP No.3.

 

ORDER:

                   In nutshell, brief facts of the present complaint is that the complainant had purchased one swaraj tractor bearing engine No.4301020/SNF-4613 from OP No.2 and 3 vide bill No.256 dated 29.05.2010 for sum of Rs.4,70,000/- and same was insured from TATA-AIG vide cover note No.WM 10728651 on 29.05.2010. Further submitted that the said model swaraj-744 tractor is having double clutches as described in the voucher and warranty policy but after inspection of the said tractor, it was found that the tractor is having only one clutch, the cost of which is also Rs.4,30,000/- and the OPs in order to cheat and part with the amount of Rs.40,000/- has received Rs.4,70,000/- instead of Rs.4,30,000/- which his actual price of single clutch tractor. In this way, the OPs have done unfair practices. Hence, the present complaint.

2.                Upon notice, OPs No. 1, 2 and 3 appeared and contested the complaint by filing their separate replies.  OP No. 1 in his written statement submitted that as a matter of fact that the OP No.2 and 3 are different dealers of the OP No.1 and having separate area to sell the products manufactured by the OP No.1 and OP No.2 cannot sell and deliver the tractors within the area of the OP No.3 and the OP No.3 cannot sell and deliver the tractors in the area of the OP No.2, as such the allegations leveled by the complainant regarding the delivery of tractor in the area of the OP No.3 which was purchased from the OP No.2 are totally false and fabricated. Further submitted that the cost of the tractor with single clutch or double clutch a hardly cost difference of Rs.2900/- and it is also pertinent to mentioned here that after taking the delivery in the year 2010 the complainant did not raise any objection regarding the same tractor for more than three years. Further submitted that the complainant never approached the OP No.1 for repair of this tractor regarding clutch nor did he got repaired the same from any of the authorized dealers of the Op No.1 at Ambala or Nahan. Further submitted that the said tractor was sold by the OP No.2 on 29.05.2010 and the complainant had no objection in price, working or specifications of the same for more than three years, as such the present complaint is badly time bared. So, OP No.1 has prayed for dismissal of the present complaint.

                   OP No. 2 in his written statement submitted that as a matter of fact that the OP NO.2 and 3 are different dealer of the OP No.1 and having separate area to sell the products manufactured by the OP NO.1 and OP No.2 cannot sell and deliver the tractors within the area of the OP No.3 and the OP NO.3 cannot sell and deliver the tractors in the area of the OP No.2, as such the allegation leveled regarding the delivery of tractor in the area of the OP No.3 which was purchased from the OP No.2 are totally false and fabricated. Further submitted that after taking the deliver in the year 2010 the complainant did not raise any objection regarding the said tractor for more than three years. So, counsel for OP No.2 has prayed for dismissal of the present complaint.

                   OP No.3 in his written statement submitted in the preliminary objection that this Forum has no jurisdiction to entertain for decide the present complainant as no cause of action has been taken place within this jurisdiction. On merit, he took the stand that as matter of facts that OP NO.2 and 3 are different dealer of the OP No.1 and having separate area to sell the produce manufactured by OP NO.1 and he also denied that the complainant never approached to the answering OP for repairing of the tractor regarding clutch nor did he got repair the same from any of the authorized dealer of OP NO.1, Ambala or Nalagarh. Further submitted that it is pertinent to mention here when the OP NO.3 is selling the tractors at Ambala city then there was no occasion for the respondent NO.3 to get the same billed through the OP NO.2. So, counsel for OP NO.3 has prayed for dismissal of the present complaint.

3                 To prove his version complainant tendered his affidavit as Annexure C-X along with documents as annexure C-1 to C-14 and close his evidence. On the other hand, counsel for OP No.1 has also tendered affidavit as Annexure R1-Y alongwith documents Annexure R-1 to Annexure R-14 and counsel for OP No.2 has also tendered affidavit as Annexure R2-X alongwith documents Annexure               R2-1 and closed his evidence. Counsel for OP No.3 has also tendered a statement that his written statement may kindly be read in his evidence.

4.                We have heard learned counsel for the parties and gone through the case file very carefully. At the very outset, the first and foremost question arises before us for consideration is “Whether this Forum has jurisdiction to entertain the complainant or not?.

                        Counsel for OP NO.3 has vehemently argued that this Forum lacks jurisdiction to entertain and hear the present complaint.  Counsel for OP No.3 argued that the tractor in question was purchased from OP No.2 i.e. Himachal Tractor Peer Sathana, Pinjore Road, Nalagarh, Himachal Pradesh vide invoice No.256 dated 21.05.2010 as per Annexure C-1 and there is no cause of action arises at Ambala and OP No.3 is a separate dealer of OP No.1 and having a separate identity and he never sold the vehicle to the complainant nor he repaired the vehicle in question and even the office of the manufacturer is situated at Mohali, Punjab. So, this Forum has no jurisdiction to try and entertain the present complaint. In support of his case, counsel for Ops has placed reliance on a judgment delivered by Hon’ble Apex Court in case titled as Sonic Surgical Vs. National Insurance Company Ltd. The counsel also emphasized on Section 11(2) (a)(b) (c) of Consumer Protection Act.   The observation made by the Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Company case (supra) is as under:-

“Incidence of fire in the appellant’s godown at Ambala-complaint claiming compensation from the respondent allowed by the State Commission, Union Territory, Chandigarh-National Commission set aside the said order accepting the  appeal of the respondent on the ground that the State Commission, Union Territory had no jurisdiction to entertain and adjudicate the complaint-Hence, the present appeal-Admittedly no cause of action arose at Chandigarh-Insurance Policy taken at Ambala, Fire broke out in the godown at Ambala and the claim for compensation also made at Ambala-Cause of action arose in1999 and the complaint regarding the same filed in 2000- Amendment to Section 17(2) not to apply as the amended Section came into force with effect from 15.03.2003- Contention that the respondent-insurance company having a branch office at Chandigarh, the complaint could have been filed in Chandigarh under the amended Section 17(2) rejected as unacceptable-It would have led to absurd consequences of bench hunting, meaning thereby that even if a cause of action has arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or Guwahati or anywhere in India- cause of action having arisen at Ambala, the State Commission, Haryana alone to have jurisdiction to entertain the complaint-impugned  order of the National Commission agreed with-Appeal dismissed.

                        On the other hand, counsel for complainant has argued that the complainant is residing of District Ambala and had purchased the tractor from the dealer i.e. OP No.2, it is clearly mentioned in the invoice Annexure C-1 that  all disputes subject to Ambala Jurisdiction”, as such, this Hon’ble Forum has very much jurisdiction to entertain & try the present complaint and dealer of the OP NO.1 i.e. Mahindra & Mahindra is placed at Ambala. In support of their contention, counsel for complainant has placed reliance on case laws delivered by Hon’ble Haryana State Consumer Disputes Redressasl Commission, Chandigarh tilted Kurukshetra University & Ors. Vs. Vinay Parkash Verma reported in II(1993) CPJ-647 Pg. 647 wherein held that : “The objection to territorial jurisdiction is a threshold  question which if not seriously pressed is deemed to be waived. It bears repetition and the record is witness thereto, that though fully represented by counsel, the appellant-university did not press the territorial jurisdiction at the threshold before entering into the merits of the lis. Apart from taking the plea in its pleadings, the university-appellants did not seek the determination of the question from the District Forum at the very portals of the consumer jurisdiction as a preliminary one. As the order under appeal indicates the question seems to have been  raised only at the stage of concluding arguments and it has been so noticed expressly in para 9 thereof. It appears to us that they willingly participated in the trial of the summary consumer lis and it would be inappropriate that the  order under appeal should be set aside on this ground after it has turned against the appellants on merits” and has placed reliance on case laws delivered by Hon’ble Supreme Court of India, Delhi in case title Laxman Prasad Vs. Progigy Electronics Ltd. & anr. 2008(1) CCC 512 (S.C.).

 5.                    In view of above discussion, it is clear that mere, residing of the complainant at Ambala and mentioning the jurisdiction at Ambala in the invoice issued by the dealer do not create any jurisdiction. Forum has to see the facts of the case as well as the provision of the CP, Act but in the present case, there is no cause of action arise at Ambala  and the complainant has never purchased vehicle in question from Ambala.

                        We have gone through the judgment delivered by Hon’ble Supreme Court in case titled Sonic Surgical (supra) and same is fully covered the present case. So, we are of considered view that this Forum has no territorial jurisdiction to adjudicate the present complaint, thus we have no option except to dismiss the same. Accordingly, the complaint is dismissed with no order as to costs. However, complainant is at liberty to file his complaint before the competent court of law having jurisdiction if so advised provided the complainant may approach to the Court of competent jurisdiction within 60 days from the date of receipt of copy of the order.  The period during which the present complaint remained pending before this Forum is exempted for the purpose of limitation in terms of the judgment of Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works Vs. PSG Industrial Institute reported in 1995(3) SCC Pg.583. The complainant can obtain all the original documents, if any, relied upon in this case and Assistant is also directed to hand-over the same, if any attached with the complaint after retaining photocopy of the same on the file. Copies of the order be supplied to the parties concerned, as per rules. File be consigned to record room after due compliance.

Announced on :28.08.2017                                  (D.N. ARORA)

                                                                                       President

 

          (PUSHPENDER KUMAR)

                                                                                       Member

 

            (ANAMIKA GUPTA)

                                                                                         Member