These two appeals are directed against the single order and judgment dated 10/8/2018 delivered by Ld. DCDRF, Dakshin Dinajpur in connection with CC Case no. 50 of 2018. The subject matter of the case is a motor vehicle which was purchased by the respondent Manoj Agarwal  of the two appeals who happens to be the consumer complainant in CC case no. 50 of 2018. The complainants case is that he has purchased the said Vehicle for the purpose of business for running Rice Mill as the Director of Renault India Private limited, under PO and PS Balurghat. He has purchased the said vehicle from the authorised dealer of Renault Private Limited at  Siliguri, Darjeeling in the year 2014. He was using the said vehicle for his journey from his residence to his factory located at Balurghat. The said vehicle was met with an accident on 21/11/2017 for which the vehicle was badly damaged and at the time of mechanical examination of the vehicle, after accident, it was detected that the ABS system of the vehicle was not properly functioning and working which was nothing but manufacturing defect since the time of purchasing of said vehicle in the year 2014. The authorised dealer and the manufacturer of the said vehicle was requested by the complainant for immediate removal of the defects but neither the manufacturer nor the authorised dealer that is OP no. 1 and 2 of the consumer complainant case did not make any bother upon the request of the complainant.so he approached the Ld. DCDRF, Dakshin Dinajpur for redressal of his grievances. The consumer complaint was admitted by the Ld. DCDRF, Dakshin Dinajpur. The notice was issued upon the Opposite Parties. The Opposite parties did not record their presence in the said case and also did not contest the case by filing any written version. As a result the Ld. DCDRF, Dakshin Dinajpur has heard the consumer dispute ex-parte against the Op no. 1 and 2 and allowed the prayer of the complainant and delivered the impugned ex-parte order against the Op no. 1 and 2.

Being aggrieved with this said judgment and order, the OP no. 1 that is Managing Director of Renault India Private Limited has preferred the appeal bearing No. A/44/2018 and the OP no. 2 that is authorised Dealer of Renault India Private Limited, Siliguri has preferred the appeal bearing no. A/53/2018. The subject matter of the two appeals are the same. The parties are the same and both the appeal are preferred against the single judgment and order and for that reason the two appeals were placed for hearing togetherly  and analogously and the two appeals to be disposed of by a single judgment and order by this appellate Commission. The appeal no. A/44/2018  was admitted after condoning the delay. The appeal No. A/53/2018 was filed after some days since the date of filing of appeal no. A/44/2018.

So, the appeal no 53/2018 was admitted provisionally subject to hear the condonation of delay petition at the time of final hearing in presence of respondent. The notice of two appeals was sent to the respondent M Agarwal through Post and he has received the said notices of the two appeals. But in spite of that he did not come before the commission or to appoint any legal representative to conduct his case.

The proforma respondents of the two appeals has contested the case. Several opportunities were given to the respondent M. Agarwal for hearing. But he did not avail the opportunity of hearing before this Commission.

So, the appeals are heard in presence of Ld. Advocate  of the appellant and Ld. Advocate of the respondent No. 2.

Decision with reasons

After going through the final order and judgment of the Ld. DCDRF, Dakshin Dinajpur dated 10/8/2018 in CC No. 50 of 2018, we find that the Ld. Forum was not confirmed at the time of passing this final  order whether the defect of ABS system of the vehicle was revealed within the warranty period or not. The Ld. Forum has decided the consumer dispute ex-parte but at the time of passing the final order, it is mentioned that the case be and the same, succeeds on contest. So, this judgment and final order is very much self-contradictory. The respondent M Agarwal in the Consumer complaint clearly mentions that his company is registered under company Act, having a rice factory and he runs the said factory as director where many persons as workers and day labourers are engaged in the day to day affairs of the said company. The Ld. Forum at the time of adjudication of the dispute has not come to a conclusion that the said factory is run by the complainant exclusively for the purpose of earning his livelihood by means of self-employment. The question is whether the complainant is a consumer or not in this particular case is a mixed question of law and facts and the Forum has to come in a conclusion with the scanning of evidences and to hold clearly and categorically that the vehicle was used not for commercial purpose. After going through the record very carefully, we find that the OP no. 1 of the consumer case is the manufacturer of the vehicle, have the registered office at Chennai and the authorised dealer that is OP no. 2 from whom the vehicle was purchase, are situated in Siliguri and the purchased of the vehicle was held at Siliguri.

So, both the Opposite Parties of this case are the resident of different place and having its office beyond the territorial jurisdiction of Ld. DCDRF, Dakshin Dinajpur. The defect of ABS system was detected while it was plying within the territorial jurisdiction of Ld. DCDRF, Dakshin Dinajpur. So regarding the point of territorial jurisdiction it has to be clearly and elaborately discussed in the body of judgment. But in this case the Ld. Forum has avoided the said responsibility to hold whether the territorial jurisdiction of the dispute lies upon the Ld. DCDRF, Dakshin Dinajpur or not. From the judgment and order of the Forum it is also revealed that the Ld. Forum based its findings only on the basis of consumer complaint whereas the sub clause (II), of Clause B of Sub-Section 2 under Section 13 of CP Act, 1986, there is categorically mentioned that the District Forum shall proceed to settle the consumer dispute ex-parte on the basis of evidence brought to its notice by the complainant. Another defect revealed in this judgment where Ld. Forum has opined that at the time of argument the Ld. Conducting Advocate  of the complainant has mentioned some documents and cited some rulings but the same was not furnished before the Ld. Forum and Ld. Forum could not get any opportunity to have a look upon the said documents and judgments. So after hearing the Ld. Advocates of appellant and the respondent No. 2, it is clearly and categorically established that Ld. Forum has committed a serious blunder at the time of adjudicating the dispute which is not vested to the law and this order and judgment should be interfered at the Appellate Forum otherwise the mis courage of justice should be upheld. Both the appellants in these cases, has mentioned that the case should be remanded back to the ld. Forum and the appellants of these two cases should get an opportunity of filing WV and to contest the matter before the Ld. Forum and the Ld. Forum should pass a fresh order after hearing both side and after appreciating evidences very carefully.

After considering all aspects, this Commission find it necessary to set aside the final order of the Ld. Forum which is challenged in the appeal and  both side should get an opportunity to have a hearing before the Ld. Forum.

Hence it is,

Ordered,

That the appeal NO. 53 of 2018 and appeal no. 44 of 2018 are hereby allowed on merit without imposing any cost.

The judgment and order passed by Ld. DCDRF, Dakshin Dinajpur in CC no. 50 of 2018 dated 10/8/2018 is hereby set aside.

The Ld. DCDRF, Dakshin Dinajpur is also hereby requested to accept the WV if any, to be submitted by the Opposite Parties of this consumer complainant if felt necessity within 30 days before the Ld. Forum from this day and after recording evidence and after hearing both sides, Ld. Forum shall pass a final order after considering all aspects including territorial jurisdiction, cause of action, warranty period etc.

A free copy of this judgment of this appeal to be handed over to the parties free of cost and also to be sent to the Ld. DCDRF, Dakshin Dinajpur by E-mail.