BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER C.C No: 184/2008 Filed on 13/08/2008 Dated : 15..04..2009 Complainant:
G. Asokan, Therikunnathu Veedu, Palottuvila, Malayinkeezhu, Thiruvananthapuram.
(By Adv. K. Satheesh Kumar)
Opposite parties:
M/s. Asian Motors, Room No.243(H), Puthenpeedika, Omalloor – P.O., Pathanamthitta – 689 647.
(By Adv. Narayan. R) M/s. Escorts Ltd., (Head, All India Sales), 18/4, Mathura Road, Faridabad – 121 007.
(By Adv. N.C. Joseph)
This O.P having been heard on 25..03..2009, the Forum on 15..04..2009 delivered the following:
ORDER
SMT. S.K.SREELA, MEMBER:
Alleging deficiency in service and unfair trade practice, the complainant has filed this complaint for compensation pleading that the Tractors purchased by the complainant which were supplied by the 1st opposite party are found to be fitted with duplicate/sub-standard parts and some of the essential parts/components as per the terms of full option are not fitted. The 1st opposite party has filed a petition to hear the maintainability of the complaint on the following grounds: The complainant is not a consumer as defined in Section 2(1)(d)(i) of the Consumer Protection Act, as he had purchased 2 tractors from the 1st opposite party for commercial purpose. This Forum has no territorial jurisdiction to entertain this complaint. There is joinder of cause of action besides the fact that the complainant suffers from non-joinder of necessary parties, as the manufacturer of Atlas Copco Compressors have not been made a party to this complaint.
The 2nd opposite party has also raised a preliminary objection in their version with regard to the territorial jurisdiction.
Considering the above objections, the issue of maintainability of the complaint was heard as a preliminary issue.
One of the main contentions raised by the 1st opposite party is that, this Forum has no territorial jurisdiction to entertain this complaint, as the complainant had purchased the tractors from Pathanamthitta, the payments were made in Pathanamthitta and the 1st opposite party is carrying on his trade and occupation at Pathanamthitta. Furthermore, the documents produced as 1 & 2 by the complainant would also show that the Courts at Pathanamthitta alone shall have jurisdiction to entertain disputes, if any, between the purchaser and the dealer. The learned counsel for the 1st opposite party vehemently argued that no part of the cause of action has arisen within the jurisdiction of the Thiruvananthapuram Consumer Disputes Redressal Forum and prayed for dismissal of the complaint on this ground.
The 2nd opposite party in their version has taken the very same contentions raised by the 1st opposite party with regard to the contention of territorial jurisdiction.
From the complaint it is evident that the 1st opposite party is at Pathanamthitta and the 2nd opposite party is at Faridabad. There is no case that these 2 opposite parties have branch offices at Thiruvananthapuram. The 1st opposite party's contention that the documents produced by the complainant as 1 & 2 would show that courts at Pathanamthitta alone shall have jurisdiction to entertain disputes is not acceptable since it is well settled position by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. At this juncture, what is to be looked into is whether any part of the cause of action has arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram.
The complainant has pleaded in para 7 of the complaint that this Forum is vested with jurisdiction to entertain this matter for the complainant/petitioner resides at Palottuvila, Malayinkeezhu, the money/DD transaction took place at Malayinkeezhu (KSFE, Malayinkeezhu being the financier for the purchase of the machineries/tractors) and the quarry is situated at Manali, Malayinkeezhu where the tractors are located; that all in Trivandrum District.
As per Sec. 11(2) of the Consumer Protection Act
(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.
Accordingly, the complainant has not filed the complaint in a place as stipulated in Sec 11(2) (a) or (b) as it has been admitted in para 7 of the complaint itself. The only aspect for consideration is with regard to Sec 11 (2) (c). Whether the money/DD transaction which took place at Malayinkeezhu forms part of the cause of action. The KSFE is not an opposite party in this case. Moreover, the complainant has pleaded in the complaint itself that KSFE, Malayinkeezhu is the financier for the purchase of the tractors. It is a settled position that even though the D.Ds were obtained at Thiruvananthapuram for payment to be made at Palottuvila, it cannot be said that the part of the cause of action did arise in Thiruvananthapuram. Moreover, the document pertaining to the DD transactions reveals that the DD has been enclosed along with the same, which is seen addressed to the 1st opposite party who is at Pathanamthitta. Though the complainant had argued that the representative of the 1st opposite party called on the complainant's residence in Malayinkeezhu and negotiated the sale, there is no pleading with regard to the same in the complaint. No amount of evidence can be looked into upon a plea which has not been pleaded in the complaint.
Considering the above discussions we find that this Forum lacks territorial jursidiction to entertain the complaint and hence other issues require no consideration.
Hence the complaint is dismissed with liberty to the complainant to approach the appropriate Forum for redressal of his grievances.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of April, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER. ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER C.C No: 184/2008 Filed on 13/08/2008 Dated : 15..04..2009 Complainant:
G. Asokan, Therikunnathu Veedu, Palottuvila, Malayinkeezhu, Thiruvananthapuram.
(By Adv. K. Satheesh Kumar)
Opposite parties:
M/s. Asian Motors, Room No.243(H), Puthenpeedika, Omalloor – P.O., Pathanamthitta – 689 647.
(By Adv. Narayan. R) M/s. Escorts Ltd., (Head, All India Sales), 18/4, Mathura Road, Faridabad – 121 007.
(By Adv. N.C. Joseph)
This O.P having been heard on 25..03..2009, the Forum on 15..04..2009 delivered the following:
ORDER
SMT. S.K.SREELA, MEMBER:
Alleging deficiency in service and unfair trade practice, the complainant has filed this complaint for compensation pleading that the Tractors purchased by the complainant which were supplied by the 1st opposite party are found to be fitted with duplicate/sub-standard parts and some of the essential parts/components as per the terms of full option are not fitted. The 1st opposite party has filed a petition to hear the maintainability of the complaint on the following grounds: The complainant is not a consumer as defined in Section 2(1)(d)(i) of the Consumer Protection Act, as he had purchased 2 tractors from the 1st opposite party for commercial purpose. This Forum has no territorial jurisdiction to entertain this complaint. There is joinder of cause of action besides the fact that the complainant suffers from non-joinder of necessary parties, as the manufacturer of Atlas Copco Compressors have not been made a party to this complaint.
The 2nd opposite party has also raised a preliminary objection in their version with regard to the territorial jurisdiction.
Considering the above objections, the issue of maintainability of the complaint was heard as a preliminary issue.
One of the main contentions raised by the 1st opposite party is that, this Forum has no territorial jurisdiction to entertain this complaint, as the complainant had purchased the tractors from Pathanamthitta, the payments were made in Pathanamthitta and the 1st opposite party is carrying on his trade and occupation at Pathanamthitta. Furthermore, the documents produced as 1 & 2 by the complainant would also show that the Courts at Pathanamthitta alone shall have jurisdiction to entertain disputes, if any, between the purchaser and the dealer. The learned counsel for the 1st opposite party vehemently argued that no part of the cause of action has arisen within the jurisdiction of the Thiruvananthapuram Consumer Disputes Redressal Forum and prayed for dismissal of the complaint on this ground.
The 2nd opposite party in their version has taken the very same contentions raised by the 1st opposite party with regard to the contention of territorial jurisdiction.
From the complaint it is evident that the 1st opposite party is at Pathanamthitta and the 2nd opposite party is at Faridabad. There is no case that these 2 opposite parties have branch offices at Thiruvananthapuram. The 1st opposite party's contention that the documents produced by the complainant as 1 & 2 would show that courts at Pathanamthitta alone shall have jurisdiction to entertain disputes is not acceptable since it is well settled position by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. At this juncture, what is to be looked into is whether any part of the cause of action has arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram.
The complainant has pleaded in para 7 of the complaint that this Forum is vested with jurisdiction to entertain this matter for the complainant/petitioner resides at Palottuvila, Malayinkeezhu, the money/DD transaction took place at Malayinkeezhu (KSFE, Malayinkeezhu being the financier for the purchase of the machineries/tractors) and the quarry is situated at Manali, Malayinkeezhu where the tractors are located; that all in Trivandrum District.
As per Sec. 11(2) of the Consumer Protection Act
(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.
Accordingly, the complainant has not filed the complaint in a place as stipulated in Sec 11(2) (a) or (b) as it has been admitted in para 7 of the complaint itself. The only aspect for consideration is with regard to Sec 11 (2) (c). Whether the money/DD transaction which took place at Malayinkeezhu forms part of the cause of action. The KSFE is not an opposite party in this case. Moreover, the complainant has pleaded in the complaint itself that KSFE, Malayinkeezhu is the financier for the purchase of the tractors. It is a settled position that even though the D.Ds were obtained at Thiruvananthapuram for payment to be made at Palottuvila, it cannot be said that the part of the cause of action did arise in Thiruvananthapuram. Moreover, the document pertaining to the DD transactions reveals that the DD has been enclosed along with the same, which is seen addressed to the 1st opposite party who is at Pathanamthitta. Though the complainant had argued that the representative of the 1st opposite party called on the complainant's residence in Malayinkeezhu and negotiated the sale, there is no pleading with regard to the same in the complaint. No amount of evidence can be looked into upon a plea which has not been pleaded in the complaint.
Considering the above discussions we find that this Forum lacks territorial jursidiction to entertain the complaint and hence other issues require no consideration.
Hence the complaint is dismissed with liberty to the complainant to approach the appropriate Forum for redressal of his grievances.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15th day of April, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER.
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
