Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short). Parties hereinafter were arrayed as the complainants and OPs as per their nomenclature before the learned District Forum.
3. The unfolded story of the complainant is that the complainant has purchased a mobile handset from OP No. 1 on payment of consideration of Rs.8,900/-. There was warranty period for the mobile set. It is alleged inter alia that just after eight months of purchase, the complainant found defect in the mobile set and brought the same to the knowledge of OP No. 1 for rectification of same defect. After repairing complainant found same defect and thereafter, he approached all the OPs for many occasions for rectification of defects. Since defects are not removed, he filed the complaint.
4. OP No. 1 did not appear.
5. OP No. 2 filed written version stating that the complainant has not produced independent expert opinion to find out he manufacturing defect in the mobile set. Therefore, OP No. 2 prayed to dismiss the complaint. So, there is no deficiency in service on the part of OP No. 2.
6. After hearing both the parties, the learned District Forumpassed the following order:-
“xxx xxx xxx
Keeping in view the above discussion, the opposite party No. 2 is directed to refund Rs.8,900/- (Rupees Eight thousand nine hundred only) the cost of the mobile handset within 30 days on receipt of a copy of this order. The opposite party No. 2 is further directed to pay to the complainant Rs.5,000/- (five thousand) as compensation and Rs.1000/- (one thousand) as litigation expenses within a period of thirty days from the date of receipt of copy of this order failing which the OP No. 2 is liable to pay Rs.50/- per day of default.”
7. Learned counsel for the appellant submitted that the learned District Forum has not decided the jurisdiction of the learned District Forum, Malkangiri to hear the case because no occurrence took place at Malkangiri nor it was purchased from Malkangiri but the case was filed at Malkangiri. He submitted that the complaint is barred by section – 11 of the Act. Further, he submitted that the appellant has no relationship with the complainant because appellant is the manufacturer and he has never sold the mobile set to the complainant. Therefore, he submitted to set aside the impugned order by allowing the appeal.
8. Considered the submission of learned counsel for the appellant and perused the DFR including impugned order.
9. It is admitted fact that the complainant has purchased the mobile set from OP No. 1 on payment of due consideration. It is also revealed from the statement of the complainant that mobile set went out of order after use of eight months and subsequently, he took the mobile set to OP No. 1 who expressed inability to repair same. Complainant is required to prove the case and deficiency in service on the part of the OPs. Complainant filed the complaint case before the learned District Forum, Malkangiri but it appears from the complaint petition and the documents that the cause of action arose at Jeypore because of its purchase form Jeypore. It is also admitted fact that after the defect occurred same was taken to Jeypore for repairing but OP No. 1 did not do so. Thus, the cause of action arose at Jeypore. Section – 11 (2) of the Act states as follows:-
“xxx xxx xxx
(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.”
10. In M/s Sonic Surgical vs. National Insurance Company Ltd. in Civil Appeal No. 1560 of 2004 disposed of on 20.10.2009, the Hon’ble Apex Court observed that the expression branch office is amended u/s 17(2) of the Act where the cause of action arises where main office or branch office of OP is situated. In the instant case, the cause of action arose at Jeypore and there is branch office at Jeypore. So the case should have been filed at Jeypore. Moreover, the concerned branch office of OP No. 2 Company has not been made a party.
11. Be that as it may, the complaint is not maintainable due to lack of territorial jurisdiction as per provision u/s 11(2) of the Act. So far merit is concerned, the mobile set if at all being defective that ought to have received the job card to show that the mobile set reached with OP No.1 but no such document is filed. No expert opinion is also filed. Therefore, the complainant also failed to prove that OPs failed to remove defect for that complainant has failed to prove its case and deficiency in service of OPs.
12. In view of aforesaid discussion, the learned District Forum passed the impugned order without going through the records for that it is not sustainable in law. Therefore, the impugned order is liable to be set aside and is set aside.
13. The appeal stands allowed. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
