Delhi

New Delhi

CC/972/2011

Neeraj Kumar Tripathi - Complainant(s)

Versus

M/S. Skoda Auto India Pvt.Ltd. - Opp.Party(s)

07 Mar 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110002.

Case No.CC/972/2011                                                                   Dated:

IN THE  MATTER OF :-

 

Sh. NEERAJ KUMAR TRIPATHI,

S/o Sh. A.K. Tripathi,

88D, Shipra Suncity,

Indirapuram,

Ghaziabad-201010,

Uttar Pradesh.

……COMPLAINANT

Versus

 

1.       M/S Skoda Auto India Pvt. Ltd.

          601, Akash Deep Building,

          26A, Barakhamba Road,

          New Delhi-110001.

 

Also At:

 

Skoda Auto India Pvt. Ltd.

A-1/1, Shendra,

Five star Industrial Area, M.I.D.C.,

Aurangabad-431201

Maharashtra

 

2.       Nawab Motors Pvt.Ltd.

F-16, Shanker Market,

Connaught Circus,

New Delhi-110001

 

Also at:

 

Nawab Motors PvtLtd.

E-11, Sector-11,

Noida-201301 Uattar Pradesh

 

 

       .... OPPOSITE PARTIES

 

PRESIDENT: S.K. SARVARIA

ORDER

 

The complainant has filed the present complaint under Section 12 of The Consumer Protection Act, 1986 (in short, Act) alleging, in brief that he purchased a car model "SKODA FABIA FL. Ambiente 1.2 TDI CR" bearing engine number CF. W. 146,860 from OP 2 on 20/6/2011 for an amount of Rs. 599,900/-. The said car is a product manufactured by OP 1. The complainant also paid an amount of Rs. 10,408 /- towards registration of the said vehicle, and accordingly, Registration number. DL 6, CJ-9704 was allotted to the said vehicle. On 20/7/2011, the complaint brought the said vehicle to OP 2 for repair of the site. The rearview mirror and same was rectified and accordingly the said vehicle was delivered to the complainant on 21/7/2011.

 

 On 23/7/2011 the complainant brought the said vehicle to the OP 2 as the said vehicle was emitting white smoke from the exhaust pipe. The engineers of the OP-2 suggested leaving the said vehicle, at the workshop, so that a thorough checkup of the said vehicle can be done. The complainant left the said vehicle, and regularly followed up about status of the vehicle. On 30/8/2011, the said vehicle was returned to the complainant after rectifying the defect as stated by OP 2. Even a quick look at the invoice will reveal the fact of manufacturing defect in the said vehicle. Majority of parts were changed in the said vehicle, that too within almost one month of purchase of the said vehicle, moreover, the said vehicle could run only 2671 km in the entire period. The fact that majority of the parts were changed speaks of manufacturing defect in the said vehicle. OP 2 took 40 days to repair the vehicle.

 

OP 1 follows a rule of compensating the owner of vehicle. In case the vehicle is kept at the workshop for a specified period. Accordingly, the OP 2, issued a cheque for an amount of Rs. 31,200/- as a loner amount in favour of the complainant for 26 days only at the rate of Rs. 1200/- per day, whereas, the vehicle was kept by OP 2 for 40 days. At the time of taking delivery of the said vehicle, post repairs complainant noticed that engine of the said vehicle was vibrating as if it was not properly tuned and the said vehicle had starting problem. These points were raised to the engineers of the OP 2 also, to which they replied that these problems are due to the new parts and have been replaced in the engine and it will get tuned automatically when the same will put to use.

 

The complainant used the said vehicle for about 5-6 days, but the problem instead of going away automatically aggravated further on  8/9/2011, while driving the said vehicle complainant was shocked and astonished when the said vehicle started vibrating in the middle of the road and the complainant somehow managed to drag it is to the roadside. The complainant then called the OP 2 seeking road assistance. It was informed by OP 2 that problems in the said vehicle will be rectified very soon. Even after four days of delivery of the vehicle for repairs, the OP 2 failed to provide either the fault in the said vehicle or the duration to rectify the problem with the said vehicle. The complainant was left with no option but to come back after facing humiliation and harassment caused by OP 2. The complainant being aggrieved with the OP 2 sent email to OP 1. On 13/9/2011, the complainant received an email from OP 1 as an acknowledgement of receipt of email dated 12/9/2011, whereby it was assured that the concerns of complainant will be attended to, on priority. On 13/9/2011 the complaint submitted complete history of the said vehicle to the OP 1, however, they have preferred to lend a deaf ear to the problem faced by the complainant. OP 1 failed to provide any solution. The complainant approached customer care manager of OP 1. Mr Rahul Kulkarni on 20/9/2011 apprising him about the complete details of the case, however, the complainant was again left unattended to face the harassment and humiliation caused by opposite parties due to their unfair trade practices and deficiency in services. The complainant's all hopes were shattered to get the said vehicle back when on 22/9/2011 the OP 2, apprised that said vehicle's engine has major problem and the repair of same would not be covered under warranty. The opposite parties demanded that either the complainant paid  Rs. 2,50,000/- for the repair work or the complainant is free to take back the vehicle in non-working condition. Despite two years warranty given by the opposite parties in the contract of sale, the vehicle was not repired as per warranty. The complainant has prayed for the following reliefs:

1. Direct the OPs to replace the said vehicle with a new vehicle, without any manufacturing defects;
2. Direct the OPs to release loner amount lfoar the balance 14 days with respect to the initial period;
3.     Direct the OPs to release loner ;amount at the prescribed rate from 8/9/11 till the date of delivery of said vehicle;
4. Direct the OPs to pay damages & compensation of Rs. 6,00,000/- on account of mental harassment, agony and financial loss;
5. Direct the OPs to refund the complete amount taken by OPs towards sale of the said vehicle, alongwith interest @ 24% P.A.
6.     Cost of litigation i.e. Rs. 21,000/-
7. Or pass such other order(s) as this Hon’ble Forum deems fit in the interest of justice.

The notices of the complainant were issued to the opposite parties. The OP 1 contested the application by filing reply/written objections with the preliminary objections that the complaint without mechanical inspection of subject vehicle is not maintainable and OP 1 gives unconditional willingness to get the vehicle and/or affected components, subject to examination, or otherwise seek assistant of an independent expert. Under Section 13 (1) (c) of the Act. According to OP 1 subject damages to the vehicle is the immediate consequence of improper use and/or external factors beyond realm of control of OP 1. The user of adulterated fuel and/or damage consequent thereto is beyond the periphery of manufacturers' warranty. The vehicle post examination reveals whole fuel system thereof (comprising of tank fuel pump, fuel filter, additional fuel filter, high pressure pump, supply line from high-pressure pump to fuel rail, fuel rail, this certainly implies a cascading effect to have followed affecting one component after another, eventually bringing the whole system to a grinding halt and leaving it irreparable. According to OP 1, the use of adulterated fuel being root cause the complainant has a valid cause of action against the fuel filling station, who has instead chosen to file a claim against the manufacturer in addition to the authorised Selling and Servicing Dealer.

 

According to OP 1, the vehicle in question on 8/9/2011, based on feedback as obtained from OP 2 was found to have logged in excess of some 4100 odd kilometers over 50 days from date of purchase thereof on 20/6/2011. According to OP 1, the claim, if true, would not have allowed the vehicle to log such mileage over 50 days from date of purchase thereof. The OP1 denied that the complainant as on the date and time of delivery of said vehicle complained of vibration and/or starting trouble. OP 1 also denied that the defects and/or complainants claimed to have been posted by complainant, post repair were ignored.

 

According to OP 1, the claim of repair under manufacturer's warranty was rejected, and the consent has been withheld by the complainant, since the subject vehicle lies abandoned at work premises of OP 1's servicing dealer, the said vehicle continues to remain in the unrepaired condition following unabated and sustained refusal on the part of complainant to undertake delivery thereof as such, and in the alternate to consent to necessary repairs, thereupon on costs. According to OP 1 the necessary repairs upon subject vehicle would include revamping and/or overhauling of goods fuel system which would include repair and/or replacement and/or overhauling of necessary components, including tank fuel pump, fuel filter, additional fuel filter, high-pressure pump, supply line from high pressure pump to fuel the rail, fuel rail, supply line from fuel rail to fuel injectors and all injectors. OP-1 has denied that the complainant was entitled to get the vehicle repaired under manufacturer's warranty. OP 1 has denied other facts stated in the complaint and has prayed for its dismissal.

                            

OP 2 has filed separate written statement to the complaint. The question of territorial jurisdiction is raised by OP 2 by alleging that the vehicle was sold from Gautam Buddha Nagar , Uttar Pradesh. But the complaint is filed in Delhi. OP 2 submitted that the said vehicle was reported to OP 2 on 20/7/2011, providing job number 2962 for accidental repair against Bajaj Allianz insurance and/or was done as per invoice number 1598 dated 21/7/2011. Second was by job number 3001, dated 23/7/2011 to check white smoke in car. OP 2 stated that as per instructions of OP 1 manufacturer OP 1, replaced the parts by invoice number 2162 and delivered the car on 30/8/2011 on warranty basis. OP 2 has taken the additional, plea that the said car was reported on 20/7/2011 and job was done for accidental repair against Bajaj Allianz Insurance. Again, the said car came to workshop at NOIDA, 8/9/2011. Then OP-2  consulted with Skoda Technical Team, who informed the OP 2 to check the vehicle. The OP 1 rejected the request of OP 2 for approval of estimate. Since then OP 2 had been approaching claimant through phone and mail, but no response was given to the OP 2. Thus complainant is liable to parking charges at the rate of Rs. 250/- per day and it was clearly mentioned through mail, dated 10/12/2011. OP 2, claimed that there was no deficiency on its part and OP 2 is only a dealer so OP 2 has prayed for dismissal of the complainant.

 

In support of his complaint, the complainant has filed affidavit in evidence. On behalf of opposite parties the affidavit in evidence of Sh. Rohit Raghav, Sr. Manager, Technical M/s Volkswagen Group Sales India Private Ltd. is filed. The affidavit in evidence of Mr. Nagesh S. Sangle, Manager Legal of OP-1 is filed.  The complainant and OP 1 have filed written arguments.

 

We have heard the complainant in person and have gone through the written arguments filed on behalf of OP 1, record of the case and relevant provisions of law. None appeared for oral arguments on behalf of OP 1 and OP 2, when the arguments were addressed by the complainant on date fixed.

 

The question of territorial jurisdiction is raised by OP 1 and OP 2. In addition OP 1 has filed an application for rejection of complaint on the ground that this District Forum has no territorial jurisdiction to entertain and adjudicate the present complaint. Therefore, before deciding other issues raised in the case from both sides, the question of jurisdiction needs to be decided first.

 

The question directly, arose before the Hon’ble National Consumer Disputes Redressal Commission in the case titled as  Wg. Com. P. Kosalairaman versus Chief Executive M/S Whirlpool of India Ltd. and others in Revision Petition No. 1567 of 2012, wherein the State Commission of Coimbatore on the facts that the alleged defective item was purchased in Bhatinda has held that Bhatinda Court has jurisdiction to try the complaint case. In holding this State Commission Coimbatore relied upon the decision of Apex Court in Sonic Surgical versus National Insurance Co. Ltd reported in 1V. (2009) CPJ. 40 (SC) wherein it was held that in order to invoke jurisdiction against the branch office, cause of action should have arisen within the territorial jurisdiction of that Consumer Forum, where the branch office of the O.P. is available. The Ho'ble National Commission in P. Kosalairaman's case (supra) holding that the provisions of CPC have limited application so far proceedings of Consumer Protection Act, 1986 are concerned confirmed the order of State Commission that the fora  at  Coimbatore has no jurisdiction to entertain the complaint. It was also held that complaint, be returned to the complainant, who was also given liberty to file the complaint before District Forum at Bhatinda.

 

In Sonic Surgical versus National Insurance Co. Ltd Civil Appeal No. 1560 of 2004 decided by Hon’ble Supreme Court on 20/10/2009, relied on behalf of OP-1, the following observations were made:

 

“Ld.Counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17 (2) t he complaint could have been filed in Chandigarh.  We regret, we cannot agree with the Ld.Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence.  If the contention of the Ld.Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated.  We cannot agree with this contention.  It will lead to absurd consequences and lead to bench hunting.  In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.  No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.  [vide G.P.Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]

In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

 

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 Jansatta Sehkari Awas Samiti Ltd versus Kone Elevator's India Private limited, and another I (2000. 16) CPJ 190 (NC), the plea of the complainant that cause of action arose when, legal notice was sent to opposite party was not accepted, and it was held that merely sending a notice does not constitute a cause of action, nor does it extend the period of limitation.

 

In the light of the above case law. It is amply clear that the complainant is required to file the complaint before the District Forum within whose territorial jurisdiction the cause of action arose coupled with the fact that head office and  the branch office of the company in question is also situated. Mere sending of a legal notice or one or two letters to the head office of OP one would not constitute cause of action or attract the territorial jurisdiction of this District Forum. In the light of a Rajan Kapoor's case (supra) and Jansatta Sehkari Awas Samiti Ltd's case (supra).

 

Coming to the case in hand OP 1 has raised the question of territorial jurisdiction in the reply, so also OP 2 and OP 1 has raised the following points in the application challenging the jurisdiction of this District Forum:

 

(a). The breakdown ( on the basis whereof complaint stands filed) occurred  beyond the territorial jurisdiction of this Forum . And

(b). The vehicle in question stands offered for repair beyond territorial jurisdiction of this Forum; the OP 2 has its repair premises in NOIDA.

(c). The vehicle in question continues to be held by servicing dealer at NOIDA due to deliberate refusal of the complainant to confront to proposed repair, thereupon;

(d). The vehicle stands purchased from OP 2 at NOIDA.

(e). The delivery of the vehicle was done at NOIDA; and

(f). The payment of the vehicle was made at NOIDA; and

 

On the strength of the above points, the contention on behalf of the opposite parties is that no part of cause of action arose within the territorial jurisdiction of this District Forum. So it has no territorial jurisdiction to entertain and adjudicate the present complaint. We find tremendous force in the above arguments raised on behalf of the opposite parties.

        The contention on behalf of the complainant is that in the invoice of vehicle purchased by complainant it is stated that the dispute between the parties are subject to jurisdiction of Delhi courts, so this District Forum has jurisdiction to entertain and adjudicate the present complaint. It is also stated that the objection to jurisdiction is not taken at the initial stage, but is taken in the application filed after 11 months of filing reply by OP 1. But we are not convinced with these arguments taken on behalf of complainant, in reply to the application for rejection of the complaint on the ground of want of territorial jurisdiction. In the reply to the complaint by OP 1 in paragraph number 19 OP 1 has denied the territorial and pecuniary jurisdiction of this District Forum. No doubt, the application for rejection of complaint on the ground of want of territorial jurisdiction of this District Forum is filed afterwards but since the territorial jurisdiction is denied in the reply to the complainant also, it cannot be said that the question of territorial jurisdiction was not raised by OP 1 at the earliest opportunity.

As regards the contention on behalf of the complainant that in the invoice, it is specified that dispute between the parties are subject to jurisdiction of Delhi courts, this contention needs, rejection on two counts. One, the condition in the invoice pertains to courts in Delhi and there essentially is a difference between the civil courts where the same dispute can be raised by complainant and the consumer fora which are more like Tribunal's and not like then city civil courts. Two, there can be no denial to the fact that parties to the lis can by agreement chose one of the different Forum having jurisdiction to adjudicate their dispute. But such a clause is  valid only in those cases where jurisdiction of more than one fora is concurrent. In the present case in the light of the foregoing points (a) to (f)  raised on behalf of OP 1, the cause of action and jurisdiction of NOIDA Consumer Forum arises. Therefore, in the light of Sonic Surgical's case (supra) this District Forum has no territorial jurisdiction to entertain and adjudicate this complaint. Therefore, jurisdiction cannot be foisted upon this District Forum under the garb of alleged term and condition in the invoice of the car in question.

 

In the light of above discussion, we are of the firm view that this District Forum has no territorial jurisdiction to entertain and adjudicate  the present complaint. Therefore, there is no need to go into other arguments raised from both sides on this complaint for want of territorial jurisdiction of this District Forum. Hence, we direct that the complaint along with documents filed with the complaint by the complainant, be returned to the complainant against receipt, by keeping a set of copies of documents and copy of complainant so that the complainant may be able to file this complaint before the competent Consumer Disputes Redressal Forum having territorial jurisdiction to adjudicate the present complaint. Thereafter, the file be consigned to record room. A copy of this order each be sent to the parties by post free of cost. This final order be sent to server (www.confonet.nic.in ).

File be consigned to the record room.

   Pronounced in open Forum on                                    .

 

 

(S K SARVARIA)

PRESIDENT

 

                                  (NIPUR CHANDNA)                                            (H M VYAS)

                                           MEMBER                                                   MEMBER