Telangana

Mahbubnagar

CC/11/38

R.Raja Sekhar S/o Malli karjuna Swamy - Complainant(s)

Versus

Maruthi Suzuki India Limited, Hyderabad & another - Opp.Party(s)

Sri R Rajashekar

29 Jul 2011

ORDER

                                         BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Friday, the 29^th day of July, 2011

                                              Present:-  Sri  P. Sridhara Rao, B.Sc., LL.B., President

        Sri A.Veerupakshi, B.A., LL.B., Member

      Smt.D.Nirmala, B.Com., LL.B.,Member

I.A. No.100 of 2011 in C.C.No.38 of 2011

Between:-

Maruthi Suzuki India Limited, Rep. by its Regional Officer, O/o Regional Maruthi Udyog Limited, H.No.3-6-363 and 3-6-1/1, Chambers No.101 and 102, 1^st Floor, Liberty Square Stanza, Himayat Nagar, Hyderabad.                      …Petitioner/OP-1

And

1. R. Raja Sekhar S/o R. Mallikarujuna Swamy, aged 41 years,

Occ: Legal Practitioner, R/o H.No.5-1-270, Station Road, Mahabubnagar.                                   … Respondent-1/complainant

 

2. Gem Motors (India) Pvt. Ltd., Rep. by its Manager, Situated at Sy.No.64, Kondapur, Madhapur, Hyderabad.                                                                            …Respondent/OP-2

 

This petition coming on before us for final hearing on 18-07-2011 in the presence of Sri Sivanna, Advocate, Mahabubnagar for the petitioner and Sri R. Raja Sekhar, Advocate, Mahabubnagar for OP-1 and  Sri Nagender Raju, Advocate, Mahabubnagar for OP-2 and having stood over for consideration till this day, this Forum delivered the following:

                                                                                           O R D E R

1. This is a petition filed U/s 11(2) of C.P. Act by the OP-1 in C.C.No.38/2011 to dismiss the main complaint outrightly for want of territorial jurisdiction by this Forum to try the complaint so as to avoid further exercise calling upon the opposite parties to file reply, written statement, affidavit evidence etc. 

2. The facts leading to the present application are that the   respondent-1/complainant filed complaint in C.C.No.38/2011 against the petitioner herein/OP-1 and another/OP-2 alleging deficiency claiming compensation for non delivery of Maruthi Swift VDI Car -2011 model car in time though he had made payment to them long back.  The contention of the learned counsel for the petitioner/OP-1 is that if the alleged vehicle in question in the matter was delivered to the complainant and after that it suffers from any defect or for the rendering of any service and that too within the warranty period and the same has not been attended by the opposite parties in time then the complainant will be at liberty to seek jurisdiction of this Forum in filing the complaint against the present petition and another/OPs.1 and 2, but according to the complainant the alleged vehicle in question has not yet been delivered to him in time, as such the very complaint filed by the complainant itself is not maintainable and liable to be dismissed. In support of his contentions the learned counsel for the petitioner relied upon 1) an order dated 22-7-2010 passed by the Hon’ble Supreme Court of India, Civil Appellate Jurisdiction, in Civil Appeal No.708 of 2007 (Maruti Suzuki India Ltd., Vs. Purusotham Lal (HUF) & Another) and other batch of Civil Appeals, 2) I (2010) CPJ 136 (Braham Prakash Manav Vs. Vikas Yadav & Another) dated 4.2.2009. 

3. On the other hand, the learned counsel for the  respondent-1/complainant while relying upon a decision reported in 2009 (3) ALT 634 (D.B.) (B. Mohanlal Naik (Dr.) Vs. District Consumer Forum constituted under Consumer Protection Act, 1986, rep. by its Presiding Officer, Mahabubnagar and others) contended that the complainant issued legal notice to both the parties from Mahabubnagar and after that the OP-2 has replied to the legal notice to the complainant, and that the advance amount of Rs.50,000/- was paid to OP-2 through cheque and the said amount was debited from S.B.H., Mahabubnagar branch only and therefore this Forum is having jurisdiction to try the case and thus the present petition is liable to be dismissed with costs.  

4.  So the point for consideration now is whether the complaint filed by the complainant under the above said circumstances is maintainable?

5. As stated above, according to the complainant the vehicle in question was not yet delivered to him even after making his advance payment to the opposite parties.  But in view of the principles laid down in the decision relied upon by the learned counsel for the petitioners reported in (1994) 4 Supreme Court Cases 711 (Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others) we find that mere service of notice on the petitioner and another herein will not give rise to cause of action within the territorial jurisdiction of this Forum unless the service of such notice was an integral part of the cause of action. The respondent/complainant also not placed any material to show that issuance of such notice is an integral part of the cause of action. Further as stated above, it is the allegation of the complainant that inspite of making advance payment the opposite parties did not deliver him the Car in question and such act on the part of the opposite parties amounts to deficiency of service.  In the decision of the Hon’ble Supreme Court made in Civil Appeal No.708 of 2007 (Maruti Suzuki India Ltd., Vs. Purusotham Lal (HUF) & Another) and other batch of Civil Appeals, wherein it is observed as follows:   

“The Consumer Protection Act, 1986 (for short ‘the Act’) is a special Act and it gives remedy to the consumer in certain circumstances.  Before the consumer can get any remedy against the appellant from the fora set up under the Act, it must establish that there is some deficiency of service by the appellant.  Both the concepts ‘deficiency’ and ‘service’ have been defined under Section 2(g) and 2(o) of the Act.  After going through those definitions carefully, we do not find that the complaint for alleged non-delivery vis-à-vis the appellant is covered under Sections 2(g) and 2(o) of the Act.  The question of defect in the car cannot arise since the cars were never delivered to the complainant”.  In another decision relied upon by the learned counsel for the petitioner reported in I (2010) CPJ 136 (Braham Prakash Manav Vs. Vikas Yadav & Another) dated 4.2.2009,  it is observed as follows:  

“It is settled law that whenever any application is moved challenging the territorial jurisdiction or as to the maintainability of the complaint being beyond the jurisdiction of the District Forum, the said application has to be decided first, so as to avoid further exercise calling upon the parties to file reply, written statement, affidavit or evidence etc”.

6. Likewise, in an another decision reported in II (2010) CPJ 547 (C. Chandra Shekar Vs. Telco Construction Equipment Company Limited & Others) of A.P. State Commission it is observed that in case of contract for Sale of Goods a complaint can be filed under the C.P. Act, only if the goods supplied suffer from any defect or for the rendering of any service so as to attract the concept of deficiency in service.  It is also further observed that Sections 57 and 58 of Sale of Goods Act make it abundantly clear that in case of breach of contract for sale of goods the remedy for specific performance or recovery of sale consideration lies in the Civil Courts.  In view of the said principles laid down in the decisions referred to above and in view of the above said facts and circumstances and so also for the reason stated above, we hold that this Forum has no jurisdiction to entertain the complaint and therefore the complaint is not maintainable before this Forum and is liable to be dismissed at this initial stage itself.      

7. In the result, the petition is allowed and the main complaint is dismissed as not maintainable.  No order as to the costs.          

      Pronounced by us in the open Forum on this the 29^th day of July, 2011.

 

 

MEMBER                              MEMBER                               PRESIDENT