| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 208 of 24-03-2014 Decided on 04-08-2015 Karam Chand Sharma S/o Om Parkash Sharma aged about 34 years R/o H. No. 263, Kamla Nehru Colony, Bathinda (Punjab). …...Complainant Versus Maruti Suzuki India Limited, 1 Nelson Mandela Road, Vasant Kunj, New Delhi 110070. M/s. C M Auto Sales Private Limited, plot No. 17, Industrial Area, Phase-1, Chandigarh. Varun Kumar, Sales Executives, M/s. C M Auto Sales Private Limited, Plot No. 17, Industrial Area, Phase-1. Chandigarh. M/s. Tara Automobiles, Opposite ITI, Mansa Road, Bathinda. Track on Courier, through its Office Incharge, Regional Office, SCO-108, Sector 47-C, Chandigarh.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh. Pahwa, President Smt. Sukhwinder Kaur, Member Sh. Jarnail Singh, Member Present : For the Complainant : Sh. Avikal Goyal, counsel for complainant. For the opposite parties : Sh. Subhash Chand Garg, counsel for OPs No. 2 & 3. Sh. A S Sekhon, counsel for OP No. 4. Opposite parties No. 1 & 5 exparte. O R D E R M. P. Singh Pahwa, President This complaint has been filed by Karam Chand Sharma, complainant under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Maruti Suzuki India Limited and others (here-in-after referred as “opposite parties'). Briefly stated, the case of the complainant is that prompted through various advertisements appearing in Media and pamphlets, complainant decided to purchase another car, although complainant was maintaining one car, and contacted opposite party No. 3 who is selling agent of opposite party No. 2, which in turn is authorized dealer of opposite party No. 1. After discussions over phone, opposite parties agreed to sell car with delivery date as 16-01-2014. Complainant paid Rs.10,000/- as booking amount. After booking, complainant again discussed the matter over phone with the opposite parties regarding change of model of car i.e. from Swift VDI to Swift Desire VDI. The opposite parties offered Swift Desire VDI at price of Rs. 6,80,309/- and later on agreed to sell car at Rs. 6,78,809/- with same delivery date. The complainant had also detailed price of the car, VAT and other charges, the break-up of which is not considered relevant at this stage. It is further pleaded that few days before delivery date i.e. 16-01-2014, the complainant started inquiring status of delivery of the car. The opposite parties started giving excuses for delivery of the car on agreed date and ultimately gave massage that car can be delivered only after 21-01-2014. Bowing down before the malpractice of the opposite parties on 15-01-2014, the complainant thought to cancel the booking and contacted the opposite parties for the same. However, the opposite parties immediately informed that they are going to allocate a car to the complainant with agreed delivery date i.e. 16-1-2014, which can be confirmed only in the evening. It is alleged that to further harass the complainant, at about 2.00 p.m. on 15-01-2014, the opposite parties again asked to take delivery of Swift VDI instead of Swift Desire VDI. It was clarified by the complainant that booking was for Swift Desire VDI Car. At 2.30 p.m. complainant called back to the opposite parties and inquired about availability of car to which it was informed that car will be delivered to the complainant on 16-01-2014. It is further alleged by the complainant that later on the opposite parties agreed and admitted deficiency in service on their part and categorically admitted that they used to do this with every customer and delivery of the car is confirmed only when consumers due to slipshod behaviour of the opposite parties decided for cancellation of booking of car. As per complainant, on 16-01-2014 he visited the opposite parties for taking delivery of the car. Time for delivery of car was fixed as 11.30 a.m. It was also displayed on notice board installed at CM Auto Sales and register maintained for same. Name of complainant was appearing at Sr. No. 3 in said register and display board. The complainant reached the office of opposite parties at about 11.15 a.m,. and deposited Rs. 6,68,809/- (after deducting Rs. 10,000/- which has already been paid) and requested the opposite parties that car may be delivered as per committed time i.e. 11.30 a.m., so that he can reach Bathinda well before fall of night. It is also alleged that 16-01-2014 was very cold day in Punjab and had Zero visibility due to dense fog. However, paying little heed to genuine request, car was delivered at about 4.00 p.m. The opposite parties later on agreed and categorically admitted that delay in delivery of car on said day was due to deficiency in service on their part. The complainant reached home at about 9.15 p.m. in very dense fog and dark night of winter. The complainant further alleged that at the time of delivery of car no material documents like invoice and sales certificate (Form No. 21) were issued to him. It was stated that said documents will be delivered only on 18-01-2014 though as per law said documents are required to be delivered with car. As the documents were not delivered by 18-01-2014, complainant again discussed the matter with opposite parties. Ultimately, after vigorous follow ups, invoice was delivered at Bathinda on 20-01-2014 by courier and sale certificate (Form No. 21), without which nobody can claim ownership of vehicle and get same registered, was delivered on 27-01-2014 through 'Trackon courier' at residential address of the complainant. These documents were issued in back date i.e. 16-01-2014. The complainant has mentioned that on receiving the bill, it was observed that price of car was mentioned as Rs. 5,84,262.71 and further opposite parties have given less benefit to the tune of Rs. 3,599/- on account of VAT refund. The complainant suffered loss to the extent of Rs. 19,090/-. The complainant immediately filed a complaint through e-mail dated 23-01-2014 with the opposite parties, but to no effect except admitting deficiency on above counts. On this backdrop of facts, the complainant has alleged malpractice on the part of the opposite parties and has claimed Rs. 19,090/- with interest @ 18% p.a. and Rs. 1,00,000/- as compensation in addition to litigation expenses amounting to Rs. 10,000/-. Upon notice, opposite parties No. 1,2,3 & 4 appeared through their respective counsel and contested the complaint by filing separate written versions. In written version, the opposite party No. 1 raised legal objections that complainant is not consumer; the complainant did not enter into contract for sale or hire any service for consideration with OP No.1; the complaint is bad for mis-joinder of parties. That complaint is not maintainable against opposite party No. 1. It is manufacturer of Maruti Suzuki range of vehicles and did not sell the vehicles manufactured by it directly to any individual customer. The dealer sells the vehicles to their customers under their own invoice. The opposite party No. 1 is not liable for any act or omission or commission on the part of opposite party No. 2 as the transaction of sale is independent between opposite party No. 2 and its customer. The relationship between opposite party No. 1 and its dealers including opposite party No. 2 is governed by the provisions of dealership agreement and is based on principal-to-principal basis. The opposite party No. 2 is a separate and independent legal entity to carry on its business of sale of Maruti Suzuki range of vehicles with their customers. Other legal objections are that complainant has not disclosed in what manner his allegation is covered by the term complaint ; there is no allegation covering one or more of the aspects referred to under Section 2(1)(1)(c) of the 'Act'. That the complaint is not maintainable as the answering opposite party has not committed any deficiency in service or involved in unfair trade practice. That the relief claimed by the complainant falls outside the ambit of the '
Act'. On merits also, this opposite party controverted all the material averments and reiterated its stand as set up in preliminary objections and detailed above. The opposite parties No. 2 & 3 in their joint written version also raised legal objections that complaint is not maintainable as complicated questions of law and facts are involved in the complaint, which requires oral as well as documentary evidence; this Forum has no jurisdiction to entertain and decide the complaint; complainant has no locus standi to file the complaint ; there is no deficiency in service on the part of the opposite parties. The complainant had contacted for purchase of Maruti Swift VDi model and paid booking amount for the same on 9-1-14. Thereafter complainant himself changed his mind and asked to change the model of the car from Maruti Swift VDI to Swift Desire VDI. At that time complainant was informed regarding date of delivery of Swift Dezire VDI i.e. 16-01-2014. The complainant visited the office of opposite parties on 16-1-14 in the after noon and deposited the remaining agreed amount for the Maruti Dezire VDI model. Upon request of the complainant, the opposite parties explained the complainant that it will take minimum 3-4 hours for delivery of his car. Car was delivered alongwith all the documents. That the complainant has filed this complaint to grab compensation from the opposite parties; complainant has no cause of action; complaint is bad for misjoinder of necessary parties; this Forum has no territorial jurisdiction to entertain the present complaint as no cause of action has taken place within the jurisdiction of this Forum; opposite party No. 4 has no connection with opposite parties No. 2 & 3. On merits, the opposite parties No. 2 & 3 denied all the material averments. It is admitted that complainant agreed for purchase of car and opposite parties took booking amount of Rs. 10,000/- for Swift VDI model. The opposite parties No. 2 & 3 have reiterated their version as taken in preliminary objections and detailed above. In the end, the opposite parties No. 2 & 3 prayed for dismissal of complaint. Opposite party No. 4 in its written version also raised legal objections regarding maintainability of complaint and locus standi of complainant against this opposite party. It is further pleaded that complainant never visited show room of opposite party No.4. The opposite party No. 4 has not sold the car in question. The complainant has not claimed any relief against this opposite party. The dispute is regarding sale-purchase of the car. As the opposite party No. 4 has not sold the vehicle, as such there is no privity of contract between the complainant and opposite party No. 4. The complaint is liable to be dismissed qua opposite party No. 4. The complainant is not consumer of opposite party No. 4. It is alleged that complaint is false, frivolous and vexatious. It is also pleaded that this Forum has no jurisdiction to try and entertain the complaint. On merits also, the opposite party No. 4 controverted all the material averments and prayed for dismissal of complaint. Notice of complaint was served upon opposite party No. 5. None appeared on its behalf, as such exparte proceedings were taken against opposite party No. 5. All the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits dated 24-3-13 and 26-6-14 (Ex.C-1 & Ex. C-20 respectively), photocopies of payment receipts (Ex. C-2 & Ex. C-3), photocopy of courier receipt (Ex. C-4), photocopy of sale certificate (Ex. C-5), photocopy of tax invoice (Ex. C-6), photocopies of e-mails (Ex. C-7 to Ex. C-10), photocopy of call and service history record (Ex. C-11), copy of letter dated 17-5-14 (Ex. C-12), CD (Ex. C-13), photocopy of relevant extract of call dated 19-1-14 (Ex. C-14), photocopies of Accu Weather forecast (Ex. C-15 & Ex. C-16), photocopy of invoice (Ex. C-17), photocopy of job Card (Ex. C-18), photocopy of receipt (Ex. C-19), photocopy of courier receipt (Ex. C-21), photocopy of letter (Ex. C-22), photocopies of e-mail (Ex. C-23 to Ex. C-25) and photocopy of tracking status. In order to rebut this evidence, opposite parties No. 2 & 3 have tendered into evidence photocopy of letter (Ex. OP-2/1) and photocopies of documents (Ex. OP-2/2). The opposite party No. 4 has tendered into evidence affidavit of Parshant Bhutani dated 16-7-14 (Ex. OP-4/1). It is worth mentioning that subsequently none appeared on behalf of opposite party No. 1 also. It was also proceeded against exparte vide order dated 16-6-14. The complainant had also submitted written arguments. We have heard learned counsel for the parties and gone through the record and written submissions of the complainant . From the contents of the complaint, it is noticed that contesting opposite parties are from Chandigarh and Delhi. The car in question was purchased by the complainant from Chandigarh. Therefore, before discussing the other points, it is to be seen whether this Forum has territorial jurisdiction to entertain and decide this complaint. So, firstly arguments have been heard on this point. It is submitted by the learned counsel for the complainant that of course complainant is resident of Bathinda. The opposite party No. 4 is also branch of principal opposite party i.e. opposite party No. 2 and principal opposite party is running its business in Bathinda through their selling agents i.e. Tara Automobiles, Bathinda, opposite party No. 4. Moreover, the complainant has pleaded that he discussed the matter over phone and opposite parties agreed to sell the car on phone. Acceptance of the opposite parties was received by the complainant at Bathinda, as such, part of cause of action also accrued to the complainant at Bathinda. Hence, this Forum has territorial jurisdiction to entertain and decide the complaint. To support this submission, learned counsel for the complainant has also cited AIR 1966 Supreme Court 543 case titled Bhagwandas Vs. Girdharilal & Company ; wherein it was observed that in case of proposal and acceptance by telephone conversation, part of cause of action arises within the territorial of court where acceptance was communicated. It is pointed out by learned counsel for the complainant that as per complainant the contract to purchase the car was completed at Bathinda where acceptance of offer of complainant was communicated through telephone. The complainant has also placed on record Call Log Ex. C-11 to prove telephonic conversation between complainant and the representative of the opposite parties. Therefore, part of cause of action accrued to the complainant at Bathinda. Learned counsel for the complainant also cited 2007(4) BomCR 61 case titled Sadhana Arun Kothari Aayush Arun Vs. Mrs. Raj Bhalla Wife of Sh. DN., and Civil Appeal No. 8983 of 2010 decided on 20-10-2010 case titled Dr. V N Shrikhande Vs. Dr. Anita Sena Fernandes to support his submissions. On the other hand, the learned counsel for opposite parties submitted that complaint is to be filed at a place where cause of action arises. Section 11 of the 'Act' clinches the matter. As per this section, complaint is to be filed before District Consumer Forum within the local limits of whose jurisdiction, the opposite party resides or cause of action wholly or in part arises. The main relief is against opposite parties No. 2 & 3. They are residents of Chandigarh. There is no contract between the complainant and opposite parties No. 1 or 4. They have unnecessarily been impleaded. The opposite party No. 4 has been impleaded only to create jurisdiction to this Forum at Bathinda. The car was purchased by complainant from opposite party No. 2 at Chandigarh. The complainant has alleged deficiency in service on the part of opposite parties No. 2 & 3. This deficiency is also allegedly at Chandigarh. Therefore, no cause of action accrued to the complainant at Bathinda. Of course the complainant has placed on record call details and has pleaded that contract was completed at Bathinda, but there is no evidence to prove this fact. The call details does not prove any conversation or acceptance of offer of complainant by the opposite parties. Moreover in the matter of sale of car etc., there is no question of acceptance of offer in manner alleged by the complainant. The complainant has concocted false story to create jurisdiction at Bathinda. It is further submitted by the learned counsel for opposite parties that part of cause of action can be considered accrued at a place where a material, essential or integral part of the cause of action has taken place, but no such act took place at Bathnda. In support of his submissions, learned counsel for the opposite parties 2007(II) SCC 336 case titled Alchemist Ltd., & Another Vs. State Bank of Sikkim and Others . We have carefully gone through the record, case law cited by the learned counsel for the parties and have considered the rival contentions. Section 11 of the 'Act' deals with the territorial jurisdiction. For the sake of convenience, this Section is reproduced as under :- “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 lakh. (2) A complaint 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. Of course Section 11 reveals that complaint is to be filed at a place where all the opposite parties reside or where any of the party resides and the other parties acquiesce in such institution. In this case the complainant has impleaded five parties as opposite parties. The opposite party No. 1 is at Delhi. Opposite parties No. 2, 3 & 5 are at Chandigarh. Opposite party No. 4 is at Bathinda. In such circumstances, the complaint was to be filed at Bathinda only with acquiesce of opposite parties No. 1 to 3 & 5 and that too if OP No.4 was necessary party .In this case, there is no contract between the complainant and opposite party No. 4. The opposite party No. 4 is impleaded only on the allegation that opposite party No. 2 also carries on business at Bathinda through opposite party No. 4. Even if for the sake of convenience, it is accepted that opposite party No. 2 is running business at Bathinda through opposite party No. 4, even then no cause of action accrued to the complainant at Bathinda for this reason. The opposite party No. 2 and 4 are independent entities. Therefore the cause of action does not arise at Bathinda only for the reason that opposite party No. 4 is at Bathinda. In the case of Alchemist Ltd., and another Vs. State Bank of Sikkim and others (supra), it was observed by the Hon'ble Apex court that :- 'The expression 'cause of action' has neither been defined in the Constitution nor in CPC. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgement in his favour. Cause of action thus gives occasion for and forms the foundation of the suit. If there is no cause of action, the plaint or petition has to be dismissed. In further part of the judgement, it was also observed that :- “For the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such facts constitute a material, essential, or integral part of the cause of action. If it is, it forms a part of cause of action. If it is not, it does not form a part of cause of action. In determining the said question, the substance of the matter and not the form thereof has to be considered. Even if a small fraction of the cause of action arises within the jurisdiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be 'part of cause of action' nothing less than that.” In the light of aforesaid discussions, it is to be seen whether the facts alleged by the complainant constitute a material, essential or integral part of the cause of action at Bathinda. In this case, the complainant has pleaded that he discussed the matter over phone and opposite parties agreed to sell car with delivery date as 16-1-2014. The complainant paid Rs. 10,000/- as booking amount. From the contents of complaint also it is not made out that contract was completed at Bathinda. The complainant has placed on record receipt Ex. C-1 to prove the payment of Rs. 10,000/- but this receipt is issued at Chandigarh. There is nothing to show that complainant paid this amount at Bathinda. Of course the complainant has placed on record some call details, but these call details can only prove that complainant made call to the opposite parties on the dates mentioned by the complainant. These call details do not prove that any contract came into existence at Bathinda between the parties to prove any part of cause of action at Bathinda. For the reasons recorded above, this Forum comes to the conclusion that no part of cause of action took place at Bathinda. As such, this Forum has no territorial jurisdiction to entertain and decide this complaint. Hence, this complaint is hereby dismissed for want of territorial jurisdiction. Parties are left to bear their own costs. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 04-08-2015 (M.P.Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh )
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