BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, EAST SIKKIM AT GANGTOK

CONSUMER COMPLAINT CASE NO.14 OF 2018

(through video-conferencing)

{PRESENT:-              1. Prajwal Khatiwada, President

                                                2. Anita Shilal, Member

                                                3. Rohit Kumar Pradhan, Member}

Arun Oberoi,

S/o Late Tirtharam Oberoi,

R/o New Market, M.G.Marg,

Gangtok, East Sikkim

                                                                                             ......COMPLAINANT

                                                          -Versus-

1. Managing Director,

 M/s Jia Auto Sales Pvt. Ltd.,

 2/3 Judges Court Road,

 Divine Blish Building,

 Kolkata, PIN-700026

2. Skoda Auto India Pvt. Ltd.,

 A-1/1, M.I.D.C, Five Star Industrial Area,

 Shendra, Aurangabad,

 Maharashtra, 431201

                                                                             ....OPPOSITE PARTIES

FOR THE COMPLAINANT: Ld. Counsel Shri Sudhir Prasad                                                               (through video-conferencing)

FOR THE OPPOSITE                     :                     ex parte

PARTY NO.1

FOR THE OPPOSITE                    : Ld. Counsel Ms. Ranjeeta Kumari

PARTY NO.2                      (through video-    conferencing)

O-R-D-E-R

1. This is to decide a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 claiming  deficiency in service on the part of the Opposite Parties(OPs) particularly, the OP No.1. He has, accordingly, prayed for compensation/damages.
2. Briefly stated, it is the case of the complainant that he is a permanent resident of New Market, M.G.Marg, Gangtok, East Sikkim and a businessman by occupation. He had purchased a Skoda vehicle(manufactured by the OP No.2) from the OP No.1 on 27.03.2009 from its showroom located at 6^th Mile, Tadong, East Sikkim.
3. Sometime during December 2013 - January 2014 he wanted some minor servicing to be done in respect of his vehicle. On contacting the OP No.1, the latter asked him to bring the vehicle to its Siliguri Service Center(West Bengal) as it had closed its showroom at Gangtok. The complainant had, however, not been informed about such closure.
4. The complainant, accordingly, took the vehicle to the above Service Center of the OP No.1 at Siliguri sometime in the month of December 2013. He was told by the OP No.1 that it would take about a month to repair the vehicle as the main servicing-staff was at Kolkata.
5. However, despite the expiry of two months from the date of such delivery the complainant did not receive any call from the OP No.1. He, accordingly, went to its Service Center at Siliguri. To his surprise, he was told that his vehicle had been taken to Kolkata. His consent was, however, not obtained in that regard. The complainant, accordingly, lodged a complaint before the Matigara Police Station(PS), Siliguri. He also contacted the OP No.2 who in turn asked the OP No.1 to bring back the vehicle to Siliguri.
6. The OP No.1, on its part, however started asking the complainant to deposit the bill amount for servicing. Though the complainant was ready to deposit the bill amount and to take the delivery of his vehicle from Siliguri, the OP No.1 again started claiming that it was not in a position to bring back the vehicle to Siliguri. Instead, it asked the complainant to go to Kolkata for bringing back the vehicle.
7. Though the complainant requested to the OP No.1 that the vehicle be delivered to him at Siliguri the OP did not take any step in that regard. The complainant even approached the State Consumer Helpline as well as the National Consumer Helpline with regard to the matter but it too was to no avail.
8. Accordingly, claiming gross deficiency in service on the part of the OPs the complainant would pray for the following reliefs:-

         A) An order directing the OPs to pay ₹ 5,70,000/- to him;

         B) Order directing the OPs to pay pendente lite interest at the rate of 20% per annum on the above amount until full and final payment;

         C) Order directing the OPs to pay compensation of ₹ 2,00,000/- to him for causing harassment since the year 2013;

         D) Order directing the OPs to pay the cost of litigation, legal fee, et cetera; and

         E) Any other relief to which he may be found entitled to.

9. After notices were issued to the OPs, the OP No.2 appeared before this forum. The OP No.1, however, failed to appear despite various processes issued to it. In fact, the notice issued to it was also caused to be published in two local dailies having wide circulation in its locality. Despite such publication it failed to appear before us. It was, accordingly, proceeded ex parte vide order dated 16.09.2019 of this forum.
10. The OP No.2 filed its written version in the matter. It would assail the maintainability of the complaint on various grounds. According to it, this forum has no jurisdiction to entertain the present complaint as no cause of action or any part thereof has arisen within the jurisdiction of this forum. Further, its registered office is at Aurangabad and as such this forum even lacks the territorial jurisdiction to entertain the present complaint. It would also claim that the complainant has no grievances against it. On the contrary, his grievances are against the OP No.1.
11. The OP No.2 would also claim that as per the History Card of the above vehicle it had been given due servicing from time to time. Further, major servicing was done along with running repairs in February, 2014. It would, accordingly, pray for dismissal of the complaint.
12. The following points were framed for determination after hearing the complainant and the OP No.2 through their Counsel and on careful consideration of their pleadings as well as the various documents filed in the matter. The onus of proof was also fixed:-

         1) Whether the complaint is maintainable?(opc)

         2) Whether there has been any deficiency in service on the part of the OP No.1 or OP No.2 in respect of the concerned vehicle of the complainant?(opc)

         3) Whether the OP No.2 is a necessary party in the present proceedings?(opc)

         4) Whether the complainant is entitled to the reliefs prayed for by him?(opc)

13. The complainant examined himself and his son Anand Oberoi(CW2). They filed their evidence-on-affidavits in the matter i.e., Exhibits 2 & 5. The OP No.2 did not lead any evidence despite opportunity being given in that regard.
14. Ld. Counsel for the complainant and the OP No.2 were also heard in the matter. Ld. Counsel Shri Sudhir Prasad, appearing for the complainant, mostly reiterated the submissions of the complainant above. It was contended that the complainant has been able to prove deficiency in service on the part of the OP No.1. His claims and evidence in that regard have remained uncontroverted as the OP No.1 never cared to appear before this forum despite issuance of various processes to it. It was, however, fairly conceded that the complainant has no cause of action against the OP No.2.
15. It may be mentioned here that on clarifications being sought by this forum with regard to its territorial jurisdiction to entertain the present complaint in view of the fact that the cause of action in the matter seemingly arose in Siliguri, West Bengal where the vehicle was delivered to the OP No.1 who in turn took it to Kolkata without the consent of the complainant, Shri Prasad invited our attention to Section 34 of the Consumer Protection Act, 2019 as per which a complaint can now be instituted in the District Commission within the local limits of whose jurisdiction 'the complainant resides or personally works for gain'. It was, accordingly, contended that this forum has the jurisdiction to entertain and decide the present complaint.
16. Ld. Counsel Ms. Ranjeeta Kumari, appearing for the OP No.2, on the other hand, contended that even if the complaint is taken at face value there is no cause of action against the OP No.2 as rightly conceded by the complainant's Counsel. Insofar as the territorial jurisdiction of this forum to entertain and decide the present complaint, Ld. Counsel submitted that the present complaint having been filed under the provisions of the Consumer Protection Act, 1986 this forum has no territorial jurisdiction in the matter in view of Section 11 of the said Act. According to Ld. Counsel Ms. Ranjeeta Kumari, no cause of action has arisen in Sikkim. Instead, going by the claims of the complainant it has only arisen in Siliguri, West Bengal. As such, it is only the District Forum at Siliguri which has the territorial jurisdiction over the matter. It was also contended that Section 34 of the Consumer Protection Act, 2019 would not be attracted here as the said provision is clearly prospective and as such would not be applicable to pending proceedings under the Consumer Protection Act, 1986. Reliance was placed on the recent order dated 16.03.2021 passed by the Hon'ble National Commission in Ms. Narinder Chopra, Complainant v. M/s Jaiprakash Associates Limited, Opposite Party Consumer Complaint No.3258 of 2017 in support of the above submissions.
17. We have given our anxious and thoughtful consideration to the submissions put forward by the Counsel for the above parties and have also carefully gone through the evidence/ materials placed before us. The decision cited before us has also been carefully perused.
18. The point No.1) shall be taken up first as it goes to the root of the case.

      “1) Whether the complaint is maintainable?(opc)”

19. As seen above, it is the case of the complainant that he had purchased the concerned vehicle from the showroom of the OP No.1 located at 6^th Mile, Tadong on 27.03.2009. It was in a roadworthy condition. Sometime during December 2013-January 2014 he wanted some minor servicing of his vehicle. On being contacted the OP No.1 asked him to deliver the vehicle at its Siliguri Service Center as it had closed its showroom at Gangtok, East Sikkim. The complainant accordingly delivered the vehicle at the Siliguri Service Center. The OP No.1 told him that it would take about a month to repair the vehicle as the main servicing-staff was at Kolkata. However, despite the passage of about two months the complainant did not get any call from the OP No.1. Accordingly, he went to Siliguri where he came to know that his vehicle had been taken to Kolkata without his consent and knowledge. He, accordingly, filed a complaint regarding the matter before the Matigara PS and even informed the OP No.2 about it on which the latter asked the OP No.1 to return the vehicle to Siliguri. The OP No.1, accordingly, demanded that the complainant first deposit the bill amount of servicing. Though the complainant was willing to deposit the amount and take the delivery of his vehicle the OP No.1 started claiming that it was not in a position to deliver the vehicle at Siliguri. Instead, it asked the complainant to come all the way to Kolkata and take the delivery of the vehicle. The OP No.1 has till date not handed over the vehicle to him. He would, accordingly, claim deficiency in service on the part of the OP No.1. It is worthwhile to mention here that though the complainant has made the above claims primarily against the OP No.1 we fail to understand as to how the present complaint could lie before this forum. Though the OP No.1 never cared to appear before this forum the fact remains that the vehicle was delivered to the Service Center of the OP No.1 for service/minor repairs at Siliguri, West Bengal from where it was taken by the OP No.1 to Kolkata. The main grievances of the complainant are thus twofold. Firstly, his vehicle was taken to Kolkata from Siliguri without his consent and knowledge and secondly, that the OP No.1 failed to deliver the vehicle at Siliguri. This would obviously mean that the cause of action for filing the present complaint entirely arose in Siliguri, West Bengal. It is not a case where the vehicle was taken over by the OP No.1 for servicing/ repairs at Gangtok or within the jurisdiction of this forum. It is also not a case where the grievances of the complainant are with regard to the purchase(or manufacturing defect) of the vehicle which was made from the showroom of the OP No.1 which was earlier located at 6^th Mile, Tadong, Gangtok, East Sikkim. As a matter of fact, the complainant would himself claim that the vehicle was in road-worthy condition and did not give any problem to him until, of course, December 2013-January 2014. Further, it is also not a case where there was any agreement between the OP No.1 and the complainant or any undertaking on the part of the OP No.1 at the time of the purchase of the vehicle that in case of any future requirement of servicing/ repairs the OP No.1 would take the responsibility in that regard irrespective of whether its showroom was still functional at 6^th Mile. Furthermore, it is also not a case where the OP No.1 and the complainant had agreed that in case of any dispute between them this forum would have jurisdiction over the matter. In these circumstances, it is difficult to hold that this forum has any jurisdiction over the matter. Section 11 of the Consumer Protection Act, 1986 clearly provides for circumstances under which a District Forum would have jurisdiction over the consumer dispute. The same is reproduced hereunder:-

       “11. Jurisdiction of the District Forum. – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.

                    (2) A complainant 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.”

20. Coming back to the case in hand, on the date of filing of the present complaint no office/branch office/service center of the OP No.1 was/is located within the jurisdiction of this forum. Further, as mentioned above no cause of action, whether wholly or in part, has arisen within the jurisdiction of this forum. In the said situation, it is clear that this forum has no jurisdiction over the present complaint. We may also refer to the case of Ram Agency, Petitioner v. Ashok Chandmal Bora, Respondent I (1995) CPJ 36 (NC) wherein the Hon'ble National Commission would hold that where the grievances of the complainant against the OP(s) such as harassment with regard to his vehicle had taken place at one place(in that case Pune), in such a situation the District Forum at another place(in that case Ahmed Nagar) would not have jurisdiction to adjudicate upon the case.
21. As pointed out above, Ld. Counsel for the complainant had invited the attention of this forum to Section 34 of the Consumer Protection Act, 2019 as per which a complaint can now be instituted in the District Commission within the local limits of whose jurisdiction 'the complainant resides or personally works for gain'. The same was not the position under Section 11 of the Consumer Protection Act, 1986 as seen above. Be that as it may, the decision of the Hon'ble National Commission in Ms. Narinder Chopra's case supra would make it clear that Section 34 is clearly prospective in operation and retrospective. In fact, the following observations of the Hon'ble National Commission, at paragraph 50, of the above case would also be relevant here:-

                   “50...The Complaints instituted before the coming into force of the Act 2019 shall adjudicated by the District Commission, the State Commission and the National Commission in accordance with the provisions regarding jurisdiction contained in Section 11 … of the Act, 1986 under which the Complaints were instituted.”

22. The point No.1) is, accordingly decided in the negative.
23. Points No.4), 3) & 2)

“4) Whether the complainant is entitled to the reliefs prayed for by him?(opc)

3) Whether the OP No.2 is a necessary party in the present proceedings?(opc)

2) Whether there has been any deficiency in service on the part of the OP No.1 or OP No.2 in respect of the concerned vehicle of the complainant?(opc)”

24. In view of the findings arrived at by us with regard to the point No.1) above, even if the complainant's claims are taken at face value this forum has no jurisdiction to entertain and decide the same. This forum clearly lacks the jurisdiction to delve into the points No.4), 3) & 2). It is well-settled that a defect of jurisdiction, whether it is pecuniary or territorial, strikes at the very root and authority of a court/tribunal/forum to pass any effective order or decree in the matter. We may refer to the case of Kiran Singh & Ors., v. Chaman Paswan & Ors., AIR 1954 SC 340 in this regard.
25. Resultantly, the complaint is returned to the complainant for its presentation before the appropriate forum having territorial jurisdiction over the matter. Parties shall bear their own costs.

PRONOUNCED THROUGH VIDEO-CONFERENCING          

      (Anita Shilal)                (Rohit Kumar Pradhan)           (Prajwal Khatiwada)            

           Member                                  Member                                          President

    DCDRF(E) at Gangtok      DCDRF(E) at Gangtok                 DCDRF(E) at Gangtok

         (through VC)                       (through VC)                                 (through VC)

LIST OF WITNESSES EXAMINED BY THE COMPLAINANT

01.        CW1     -  Arun Oberoi(Complainant)

02.        CW2     -  Anand Oberoi(Complainant's witness)

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANT

01.        Exhibit 1    -  Certificate of registration/blue book

02.        Exhibit 2 -         Evidence-on-affidavit of the complainant

03.        Exhibit 3    -     Original intimation letter

04.        Exhibit 4    -  -do-

05.        Exhibit 5    -   Evidence-on-affidavit of Anand Oberoi

06.        Exhibit 6    -   Copy of the legal notice

07.        Document A – Copy of the car delivery receipt

08.        Document B – Copy of similar intimation letter     

09.        Document C - Copy of the legal notice

10.        Document A - Statement of account

                                                              LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTY NO.2

                                                                                                                   NIL

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTY NO.2

NIL

   Anita Shilal)                (Rohit Kumar Pradhan)                (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRF(E) at Gangtok      DCDRF(E) at Gangtok                 DCDRF(E) at Gangtok

         (through VC)                       (through VC)                                 (through VC)