Delhi

New Delhi

CC/488/2016

Tahira Begum - Complainant(s)

Versus

M/s Shiva Auto Car India Pvt. Ltd & Ors - Opp.Party(s)

24 Oct 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

Case No.C.C./488/2016                                                                                                       Dated:

In the matter of:

TAHIRA BEGUM

W/o Sh. Nasir Ahmed,

R/o 2 B/4, I.P. Estate,

Near Vikas Minar, I.T.O.,

New Delhi-110002.

 

……..COMPLAINANT

 

VERSUS

1.       SHIVA AUTO CAR (INDIA) PVT. LTD.

          Through its Managing Director

          90, 88 F-I-E, Opp. EDM Mall,

          Near HDFC Bank, Patparganj Industrial Area,

Delhi-110092

                                                           

2.      MAHINDRA & MAHINDRA LTD.

          Through

          Managing Director/Chairman

          Corporate Office at:-

          Mahindra Towers Media Cube,

          G.M. Bhosle Marg, Worli,

`        Mumbai, Maharashtra-400018

          Regional Office at:-

          30, Gopal Das Bhawan,

          Connaught Lane, Barakhamba Road,

          New Delhi-110001.

         

 

Also at:-

          Mahindra & Mahindra Ltd.

          2-A, Mahindra Tower, 1^st Floor,

          Bhikaji Kama Palace,

          Delhi-66

          ........... OPPOSITE PARTIES

 

MEMBER : H.M VYAS

 

ORDER

The present complaint is filed by the complainant alleging in brief that she purchased a silver colour Mahindra XUV 500 car in March 2012 bearing Registration number HR 26-BR-4533. On 7/8/2015 a person came from service Centre of the OP 1 and took the car and to return the same after 10 to 15 days by doing repair and the estimated bill of Rs. 26,000/– was raised. 5/10/2015. The complainant was informed by OP 1 that her car has been stolen. The complainant sent a complaint to the SHO police station, IP Estate. The opposite party them. Neither returned the car of the complainant not reimburse the complainant despite repeated requests and demands by the complainant. The complaint has prayed for the following reliefs:

(a)     Direct the OPs to return the complainant’s silver cololur Mahindr DUV 500 Car bearing Registration No. HR 26-BR-4533, Manufacturing M. & Year 1/2012, Engine No. HJC4A15693, Chasis No. MA1YL4HJUC6A72553, No. of Cylinder’s: 4, type of body: SALOON, Makers Name: MAHINDRA AND MAHINDRA LTD or compensate her with a new car as there is deficiency in service on the part of the OPs or;

(b)     Direct the OPs to pay the cost of the above men tined car which is about Rs. 16 lakhs alongwith 24 % interest from 7/8/2015 till its realization and;

(c)     To direct the OPs to pay the damages, business, financial and status losses and torture and mental agony and litigation charges etc. of about Rs. 3,50,000/- alongwith 24% interest from 7/8/15 till its realization to the complainant in the interest of justice.

(d)     Pass any other further order/direction which this Hon’ble Commission may deem fit and proper in favour of the complainant in the interest of justice.

 

We have heard the learned counsel for the complainant and have gone through the record of the case and relevant provisions of law. The question of jurisdiction of this District Forum also cropped up during the arguments.

 

Section 11 of the Act, deals with jurisdiction of the District Forum. Subsection. (1) of this legal provision deals with pecuniary jurisdiction, which is not relevant here. The subsection (2) of section 11 deals with territorial jurisdiction. Clauses (a) and (b) of subsection (2) of section 11 deal with territorial jurisdiction on the ground of one or more of opposite parties living, working for gain, carrying on business or having branch offices within the territorial jurisdiction of the District Forum to attract jurisdiction of that District Forum. The clause (c) of Sub Section. (2) pertains to attracting jurisdiction of District Forum within territorial area of which the cause of action has wholly or partly has arisen. Vide Notification No. F.50(47)/96-F&S/CA dated 20.4.1999, the Hon’ble Lieutenant Governor of GNCT of Delhi has divided Delhi into 10 districts for the purpose of entertaining consumer complaints in respect of different local areas of the police stations falling in each of the Consumer District Forum. In Mahesh Ramnath's case decided by Honourable State Consumer Disputes Redressal Commission, it was observed that whole of Delhi is one district and jurisdiction of the District Fora in Delhi is specified for administrative reasons so complaint can be filed by the complainant before any of the District Forum. To challenge the order of Hon’ble  State Commission. The complainant/appellant filed Revision Petition bearing REVISION PETITION NO. 2816 OF 2012 before Honourable National Consumer Disputes Redressal Commission. Honourable National Commission passed orders on different dates, which shows that it took a serious view of the matter of entertaining the consumer complaints by the District Consumer Disputes Redressal  Forums in violation  of the said Notification dated 20/4/1999 of the honourable Lieutenant Governor of GNCT of Delhi. This is reflected in the following orders passed by Honourable National Commission:

 

"Dated : 27 Sep 2012

ORDER

 

“Mr. Shakti Bangar, Assistant Director, Department of Consumer Affairs, Government of NCT of Delhi, ispresent pursuant to the summons issued to the Commissioner and Secretary, Department of Consumer Affairs,Government of NCT of Delhi. He has filed a copy of the Delhi Gazette Extraordinary (Part IV) Notification No.F50(47) 96F&S (CA) dated 20.04.99 issued by the Directorate of Consumer Affairs. A perusal of which would show that for the purpose of territorial jurisdiction, the NCT of Delhi has demarcated the allocation ofbusiness amongst various District Consumer Forums functioning in Delhi with reference to the Police Stations pertaining to the area of which such District Forum can entertain and decide the complaints.

 

2. Report as called for from the Delhi State Consumer Disputes Redressal Commission, has not been received but an interim reply has been received stating that the Registrar of the Commission is on child care leave and therefore, preparation of the report may take some more time. We are not happy with the kind of response we have received from the State Commission because it cannot be said that in absence of one single officer, the State Commission has been rendered totally non-functional. Registrar shall call the report from the Delhi State Commission by the next date fixed.

 

3. Territorial jurisdiction of various District Consumer Forums of Delhi is a matter of great public importance, and, therefore, we direct that the Secretary and Commissioner, Department of Consumer Affairs, Government of NCT of Delhi to appear in person before this Commission on 10.10.2012 so that the position on the subject is clarified and the implementation of the above referred notification is ensured. Mr.Shakti Bangar, Assistant Director assures us that he will communicate the directions of the Commission to the officer concerned for compliance.

 

4. Counsel for the petitioner seeks time to file copy of the order passed by the Delhi High Court in the writ petition filed by the counsel for the petitioner. Adjourned to 10.10.2012."

 

"Dated : 10 Oct 2012

ORDER

 

“A communication has been received from the office of the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi stating therein that due to his preoccupation in certain official functions, he is unable to appear today. Acceding to his request, we direct him to appear before this Commission on the next date of hearing, i.e., 18.10.2012. 2. A report has been received from the Delhi State Consumer Disputes Redressal Commission, New Delhi along with notification. Since the position is not very clear and some Advocates have brought to our notice that the said notification relating to demarcation of the jurisdiction of various Consumer Fora functioning in Delhi is not being followed in its letter and spirit, we consider it appropriate to issue notice to the President of NCDRC Bar Association, New Delhi to assist this Commission in the matter. Notice shall be handed over to the concerned functionary by tomorrow. Ms. Rekha Aggarwal, Advocate, one of the functionaries of the NCDRC Bar Association is present and she has been apprised of the order."

 

"Dated : 18 Oct 2012

ORDER

 

Even today, Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi is not present. Mr. Shakti Banger, Assistant Director appears for the Department and submits that recently there has been change in the incumbent of the Post of Commissioner-cum-Secretary and the process of handing over and taking over the charge of the post will be completed within one or two days. We, therefore, adjourn the matter to 05.11.2012 for the personal appearance of the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi. The summons shall also be issued in the name of Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi besides Mr. Shakti Bangar assures that he would bring the directions of this Commission to the notice of the new incumbent to the post as soon as the new incumbent joins. Mr. J.B. Mudgil, Advocate, President of the NCDRC Bar Association is present in pursuant to the notice given to the said Bar Association. On his request, we direct the Registry to furnish him a copy of the Delhi Gazette Extraordinary (Part IV) Notification No. F.50(47)96 F&S (CA) dated 20.04.99 issued by the Directorate of Consumer Affairs, forthwith. In the meantime, we direct the Department of Consumer Affairs, Government of NCT of Delhi to obtain reports from all the District Forums functioning in the NCT of Delhi as to whether they are strictly following the above referred notification and if not they will give the number of cases which have been entertained, decided contrary to the stipulations contained in the said notification. The reports shall be filed along with an affidavit of a Senior Officer within ten days. List on 05.11.2012. A copy of this order be given dasti to Mr. Shakti Bangar for ensuring compliance."

 

 

"Dated : 05 Nov 2012

ORDER

 

Interim report in terms of the order dated 18.10.2012 has been filed by the Department of Consumer Affairs, Government of NCT of Delhi. More time is sought for filing the final report. Let the complete report in respect of all the District Consumer Disputes Redressal Forums, functioning in the territory of NCT of Delhi be filed within two weeks. Mr. S. Kumaraswamy, Commissioner cum Secretary, Department of Consumer, Food & Civil Supplies, Government of NCT of Delhi is present. We have apprised him about the concern of this

Commission in regard to the exercises of territorial jurisdiction by ten Consumer Fora established and functioning within the territory of NCT of Delhi. He has assured us that requisite action will be taken to ensure that the various District Fora working in the territory of NCT of Delhi exercise their jurisdiction and powers strictly in accordance with the demarcation of their respective jurisdiction in terms of the Government of Delhi, Directorate of Consumer Affair, Gazette Extraordinary (Part IV) Notification No. F.50 (47) 96F&S (CA) dated20.04.99 and any subsequent notification issued in that behalf. This is otherwise necessary to avoid forum shopping by the parties to consumer dispute. List on 27.11.2012 for awaiting the final report. On that date it will not be necessary for the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi to remain present in the Commission, once he has given the above assurance to the Commission."

 

 

"Dated : 27 Nov 2012

ORDER

 

Mr. Shakti Bangar, Assistant Director of Consumer Affairs intends to file a further report, which may be filed in the Registry during the course of the day. The officer also submits that the report from the New Delhi District Forum is still awaited. The same shall be obtained from the said District Forum within next one week and filed in the Commission. The officer undertakes to comply with the directions. He also seeks time to file all subsequent notifications issued from time to time after the Notification No. F.50(47)96F&S/CA dated 20th of April, 1999 was issued."

 

 

In the letter No. F50 (21)/2003/F&S/CA/1053-1054, dated 7/11/2012 by Director, Consumer Affair, Government of NCT of Delhi, Department of Food and Supplies and Consumer Affairs addressed to, the Registrar, State Consumer Disputes Redressal commission, it is stated, amongst other things, that the National Commission had summoned the Secretary, Commissioner, Food, Supplies and Consumer Affairs on 5/11/2012. The National Commission took a very serious view and stated that in spite of order promulgated by the Government of NCT of Delhi vide Gazette Extraordinary (Part IV) Notification NoF.-50 (47) 96-F&S (CA), dated 20/4/1999, clearly demarcating the jurisdiction District wise, the District Consumer Disputes Redressal Forums are violating the said order. The Honourable National Commission has directed the Secretary, Commissioner, Food, Supplies and Consumer Affairs, GNC T of Delhi to enforce the said order in letter and spirit. Therefore, Registrar, State Commission was requested by Director, Consumers Affairs to bring the proceedings of the Honourable National Commission to the notice of, Hon’ble President of the State Consumer Disputes Redressal Commission to bear in mind the above, notification and issue suitable instructions to all the District Consumer Disputes Redressal Forums to follow the said order of the GNCT of Delhi, dated 20/4/1999 . The copy of the said letter of Director Consumer Affairs, along with notification of Lieutenant Governor was sent by Registrar, Delhi State Consumer Disputes Redressal Commission to all the, Presidents of District Consumer Forum in Delhi with advise of the, Hon’ble President of State commission for strict compliance of the directions of National Commission.  The said letter No. F.1(misc)/SC/2012/5045 dated 3.11.12 sent to President of this Distt. Consumer Forum enclosing copy  of said notification and copy of letter of Director, Consumer Affairs issued to Registrar of State Commission.

 

In Mahesh Ramnath's case (supra) the Honourable State Consumer Dispute Redressal Commission has decided the appeal of the appellant and has held that the appellant did not raise any consumer dispute between him and the Secretary-cum-Commissioner (Transport). Earlier decisions of Hon’ble State Commission were relied upon, wherein It was also held   that every District Forum has jurisdiction over every case, and if any District Forum takes final decision in the matter, irrespective of having no administrative territorial jurisdiction, the order cannot be set aside or held invalid and the matter was remanded back to concerned District Forum to record a finding in respect of territorial jurisdiction, after considering the decisions of Honourable State Commission. Although Mahesh Ramnath's Revision Petition was dismissed for non-prosecution on 9/9/2014 on account of absence of the Petitioner before Honourable National Commission, but the question of territorial jurisdiction, in our view, stood decided before that by Honourable National Commission by its order’s dated 27/9/2001 by observing that Territorial jurisdiction of various District Consumer Forums of Delhi is a matter of great public importance, and, therefore, direction was issued so that the Secretary and Commissioner, Department of Consumer Affairs, Government of NCT of Delhi may appear in person before Learned Commission on 10.10.2012 so that the position on the subject is clarified and the implementation of the Notification No. F.50(47)/96-F&S/CA dated 20.4.1999  is ensured. The further directions of Honourable National Commission dated 5/11/2012 show that Hon’ble National Commission apprised learned Commissioner cum Secretary, Department of Consumer, Food &Civil Supplies, Government of NCT of Delhi about the concern of Hon’ble  National Commission in regard to the exercise of territorial jurisdiction by ten Consumer Fora established and functioning within the territory of NCT of Delhi. The learned Commissioner, Consumer Affairs, GNCT of Delhi has assured Honourable National Commissions that requisite action will be taken to ensure that the various District Fora working in the territory of NCT of Delhi exercise their jurisdiction and powers strictly in accordance with the demarcation of their respective jurisdiction in terms of the Government of Delhi, Directorate of Consumer Affair, Gazette Extraordinary (Part IV) Notification No. F.50(47)96/F&S (CA) dated20.04.99 and any subsequent notification issued in that behalf.  According to Honourable National Commission this is otherwise necessary to avoid forum shopping by the parties to consumer dispute. Therefore, by passing these directions, the honourable National Commission has overruled the view taken by Honourable State Commission in Mahesh Ramnath's case regarding territorial jurisdiction of District Consumer Disputes Redressal Forums in Delhi. These Orders passed by Honourable National Commission have impliedly overruled the other decisions of honourable State Commission regarding territorial jurisdiction of District Consumer Disputes Redressal Forums in Delhi. It would be appropriate now to have a look at the principle of per incurium based on cases decided by Hon’ble Apex Court.

 

Section 30 of Consumer Protection Act, (herein after referred as Act)  empowers Central Govt. by Notification  to make rules for carrying out the provisions of the  Act.  Section 2 also empowers the State Govt. to make the Rules for carrying out the provisions of Consumer Protection Act vide notification No. F.50(131)/86-F&S/CA dated 29.9.1987, Govt. of NCT of Delhi, in exercise of powers framed Rules called “Delhi Consumer Protection Rules, 1987”.  Rule 4(1) is relevant for the decision of this case”.

 

By virtue of provisions of Rule 4(i) of Delhi Consumer Protection Rules, 1987 referred to above Hon’ble Lieutenant Governor of Delhi in supersession of its earlier order No. F.50(47)/96-F&S/CA/242/ dated 1.6.1998 and in exercising of his powers under the provisions of rule 4(i) of the Delhi  Consumer Protection Rules, 1987 framed under the Consumer Protection Act, 1986 (68) of 1986), issued a fresh Notification No. F.50(47)/96-F&S/CA relevant part of which is as follows :

 

 NOTIFICATION

Delhi, 20 April, 1999  

No.F.50(47)/96-F&S/CA : In supersession of the Govt. of NCT of Delhi’s order No. F.50(47)/96-F&S/CA/242 dated 1.6.1998 and in exercise of the powers under the provisions of Rule 4 of the Delhi Consumer Protection Rules, 1987 framed under the Consumer Protection Act, 1986 (68) of 1986, the Lieutenant Governor of National Capital Territory of Delhi is pleased to order that the allocation of business amongst the District Forum - North, District Forum-Central, District Forum-South West, District Forum-West, District Forum- North East, District Forum-East, District Forum-North West, District Forum-New Delhi, District Forum-South, shall with effect from the date of notification in the official gazette, be regulated and the relevant part of Notification so for in relevant New Delhi CDRF VI is  as follows :

 

 

Name of the District  Forum	Jurisdiction	Police Station : District New Delhi
District Forum : New Delhi	Cases pertaining to Police Station falling within New Delhi Distt.	1.Parliament Street, Mandir Marg, Cannaught Place, Tilak Marg, Chankya Puri, Tughlak Road and any other Policy Station which may be created in future in the District.

 

This Government’s order earlier order No. F.50(47)/96/F&S dated 1^st June, 1968 is hereby cancelled.

 

By order in the name of the

Lieutenant Governor of National Capital

Territory of Delhi

  Sd/-

(KJR Burman)

Dy. Secretary,

Food, ‘Supplies & Consumer Affairs,

National Capital Territory of Delhi

 

          Copy of above said Notification was received in the office of this Forum vide endorsement NO. F.50(47)/46-F&S/CA/126 dated 20.4.1999. Copy of Notification has been placed on the file.   On perusal of the above said notification it is clear that by virtue of said notification Hon’ble Lieutenant Governor of Delhi has made specific provision in general for allocation of business amongst the various District Forums. We are of the view that the notifications issued by the competent authority under the statutory provisions, viz The Consumer Protection Act, 1986 and/or Rules, Regulations framed under it are covered under the definition of "Law" as per Article 13 of The Constitution of India and the notification of honourable Lieutenant Governor of Delhi has the force of law. In a case, the circular issued by Director-General Civil Aviation under relevant Rules was found valid by honourable Supreme Court (See, Joint Action Committee of Airline Pilots Association of India versus Director General of Civil Aviation; AIR 2011 SC 2220: 2011 (6) JT 24.). 

 

       According to the said notification District Forum - New Delhi is competent to exercise jurisdiction only over cases in which jurisdiction to entertain cases falls in areas falling under Police Station falling in New Delhi District as enumerated therein. Therefore, question of territorial jurisdiction needs to be looked into in the light of the said notification, earmarking and specifying the territories falling under different police stations to each district forum. The cause of action, residence of the OP or if the OP is an artificial person then its head office or the branch office or the area of operation would determine the territorial jurisdiction of each District Forum in consonance with the area specified in the said Notification of Honourable Lieutenant Governor of Delhi. What is more, both the branch office and cause of action partly or wholly should coexist within the territorial jurisdiction of the District Forum to attract its jurisdiction in the light of sonic surgical's case .  In Civil Appeal No. 1560/2004 of M/S. Sonic Surgical Vs. National Insurance Co. Ltd. decided by the Hon’ble Supreme Court on 20/10/2009 it has been held that the jurisdiction of that Consumer Forum would be attracted where the cause of action accrued wholly or partly and the branch office of the OP is situated. 

            In Rajan Kapoor versus Estate Officer and another Revision Petition No. 1100 of 2011 decided by Hon’ble National Commission on 4/11/2011, the following observations were made:

“Having considered the respective submissions of the counsel for the parties and going by the ratio of the decision of the Supreme Court in the case of Sonic Surgical (Supra), there is no escape from the conclusion that no cause of action accrued to the complainant within the jurisdiction of the District Forum of Panchkula, in as much as application for allotment was made by the complainant to the Estate Officer HUDA at Ambala and correspondence was also exchanged with the said Estate Officer.  Even if one or two letters/ representations were addressed by the complainant to the Chief Administrator HUDA, it would not make a difference because by doing so it cannot be said that any cause of action had occurred within the jurisdiction of Panchkula District Forum.  We are, therefore, of the view that order of the State Commission so far as it directed the complainant- petitioner to file a complaint before the District Forum of competent jurisdiction, does not suffer from any illegality, material irregularity or jurisdictional error.  Forum shopping cannot be allowed by a party.”

 

In other words if OP resides or works for gain within the area of any of the Police Stations which come within  the  jurisdiction of  District Forum  (New Delhi)  as enumerated in the notification and if the cause of action wholly or partly has arisen within the area of said Police Stations, only then this Forum will be competent to entertain the complaint.  In the present case , no part of the cause of action has arisen within the Police Stations falling  within territorial jurisdiction of this Forum, work of which has  been allocated to this Forum by the said notification issued by the Hon’ble Lieutenant Governor , nor any of the opposite parties has its address or area of operation within the territorial jurisdiction of this District Forum so this District Forum has no jurisdiction  to entertain the present complaint. Therefore, we hold that this District Forum has no jurisdiction to entertain and adjudicate the present complaint.  Let the complaint be returned alongwith documents and court fee to the complainant along with documents for presenting the same before the competent District Forum.

 

Copy of this order be sent to both the parties free of cost by post.  This order be sent to server (www.confonet.nic.in ).

   File be consigned to record room. 

      Pronounced in open Forum on 24/10/2016.

 

 

(S K SARVARIA)

PRESIDENT

 

                                                     (H M VYAS)                                  (NIPUR CHANDNA)

                                                        MEMBER                                          MEMBER