DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 90 of 09-04-2007<br /> Decided on : 16-07-2007<br /> <br /> Jangir Singh aged about 38 years S/o Sh. Gurdial Singh, R/o V. Dhapali, Tehsil Phul, District Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> 1. Pasco Motors, N.H. 21, Village Khabra Opp. Solkhian Gurdwara, District Roop Nagar (Punjab) Ropar, through its Managing Director.<br /> 2. Managing Director, PASCO Motors, N.H. 21, Village Khabra, Opp. Solkhian Gurudwara, Distt. Roop Nagar (Punjab), Ropar: <br /> 3. Tata Motors Limited at Bihar through its Managing Director.<br /> 4. ICICI Bank Limited, Branch Office, Bathinda, through its Branch Manager. ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member <br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Navdeep Singh, Advocate.<br /> For the Opposite parties : Sh. Jagsir Singh Dhillon,Advocate for opposite parties No. 1 to 3 <br /> Sh. Sanjay Goyal Advocate for opposite party No.4 <br /> <br /> O R D E R <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Complainant had purchased one Tata Vehicle LPS-4018 bearing engine No. 60M62529429 Chasis No. 447207MTZ301926 (HMV MMV) model 2007 from opposite parties No. 1 & 2 who are authorised dealers vide invoice No. 897 dated 22.1.07. The vehicles of this kind are manufactured by opposite party No. 3. It was got financed from opposite party No. 4 under higher purchase agreement. Besides Invoice, opposite parties No. 1 & 2 also issued Sale Certificate, Temporary Registration Certificate bearing Registration No. PB-12-G-4671(T) valid for 30 days from 23.1.2007 and Form No. 22 etc. At the time of sale, opposite parties No. 1 & 2 had disclosed the manufacturing year of the vehicle as 2007. Documents issued also show that it is of 2007 model and its manufacturing year is 2007. In the column of year of manufacturing in the sale certificate, year has been recorded as 2007 by opposite parties No. 1 & 2. Vehicle was got passed from the Motor Vehicle Authority, Bathinda. It transpired that the year of the manufacturing of the vehicle is 2006 instead of 2007. It is of 2006 model. Motor Vehicle Authority passed it as of 2006 model. Accordingly Registration Certificate bearing Registration No. PB-03-P-9465 has been issued by District Transport Officer, Bathinda. He alleges that he has been duped and fraud has been played. He got served registered A.D. legal notice dated 14.2.07 upon opposite parties No. 1 & 2 through his counsel. An application has also been moved by him against opposite parties No. 1 & 2 and its officials on 19.2.07 to Senior Superintendent of Police, Bathinda for initiating criminal action against them. He requested opposite parties No. 1 to 3 to admit his rightful claim and to replace the vehicle with a new one of the model of 2007, but to no effect. They refused to accept his legal and genuine request. Act and conduct of opposite parties No. 1 to 3 amount to unfair trade practice and deficiency in service. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986(Here-in-after referred to as `Act') has been preferred by him seeking direction from this forum to opposite parties No. 1 to 3 to replace the vehicle with a new one of the model of 2007; pay Rs. 5.00 Lacs as compensation on account of mental and physical tension besides cost of the complaint.<br /> 2. On being put to notice, opposite parties No. 1 & 2 filed their version taking preliminary objections that complaint is not maintainable as complainant is not consumer; complainant has no cause of action and this forum has got no territorial jurisdiction to entertain and try the complaint. Some authorities on these aspects of the matter have also been referred by them. On merits, their plea is that vehicle was bought by the complainant for commercial purposes as it was obtained neither for earning livelihood nor for private purposes. They admit that vehicle was purchased vide Invoice No. 897 dated 22.1.07. Mistake in recording the year of manufacture in sale certificate as 2007 is unintentional and typographical. Complainant was duly told that vehicle was of the model of 2006. There is a period of almost one month in which the manufactured vehicle from the manufacturer reaches them. In this case, vehicle in question was received from the manufacturer vide invoice dated 21.1.07 and on 22.1.07 through invoice of even date, it was supplied to the complainant. It was not retained by them for more than a day. Even in the Sale Invoice, the invoice of the manufacturer Tata Motors bearing No. 915054766 dated 21.1.07 has been mentioned. It is not a case where complainant has been defrauded and there is any mis-representation. He was supplied with a freshest lot available. Their representative has without any malafide intention or mis-representation has generated Sale Certificate of the vehicle in question from the computer on the basis of the invoice received from the manufacture and year of the manufacture has been shown as 2007. Complainant was not made to believe that vehicle is of the model of 2007. They admit the receipt of the notice and deny the remaining averments in the complaint.<br /> 3. Opposite party No. 3 filed separate reply. Like opposite parties No. 1 & 2, it has taken the pleas that complaint is not maintainable as complainant is not consumer and that this forum lacks jurisdiction to entertain and try it. According to it, complainant has no cause of action against it nor is it liable in any manner as it is the manufacturer of the vehicle purchased by the complainant from opposite parties No. 1 & 2 and that relationship between it and opposite parties No. 1 & 2 is on principal to principal basis. Vehicle sold by opposite parties No. 1 & 2 was purchased by the complainant for commercial purposes. It has no vicarious liability for the actions of opposite parties No.1 & 2. Its allegation is that it has been arrayed in the complaint with ulterior motive and malafide intention to cause harassment. It is a company of long standing high repute. It refutes the remaining averments in the complaint.<br /> 4. Opposite party No. 4 filed separate reply admitting the fact that vehicle was financed by it. According to it, para No. 3 to 8 of the complaint have no concern with it. Remaining averments in the complaint are denied by it.<br /> 5. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), copy of legal notice (Ex. C-2), Postal receipt (Ex. C-3), photocopy of application dated 19.2.07 (Ex. C-4), photocopy of Insurance Cover Note (Ex. C-5), photocopy of Temporary Registration Certificate (Ex. C-6), photocopy of Form No. 22 (Ex. C-7) photocopy of sale certificate (Ex. C-8) and photocopy of R.C. of vehicle (Ex. C-9).<br /> 6. In rebuttal, on behalf of the opposite parties No. 1 to 3 two affidavits of S/Sh. Mahesh Singh Chittoriya and M.S Pardeep (Ex. R-1 & Ex. R-2) respectively and on behalf of opposite party No. 3 affidavit of Sh. Ashish Bansal, Collection Manager (Ex. R-3) have been tendered in evidence.<br /> 7. We have heard the learned counsel for the parties. Besides this, we have gone through the record and written briefs of arguments submitted on behalf of the complainant and opposite parties No. 1 to 3.<br /> 8. Opposite parties No. 1 to 3 have taken preliminary objections in the replies of the complaint that complaint is not maintainable as complainant is not consumer as Tata Vehicle LPS-4018 bearing engine No. 60M62529429, chassis No. 447207MTZ301926 (HMV MMV) was purchased by the complainant for commercial purposes and that this Forum lacks territorial jurisdiction to entertain and try the complaint.<br /> 9. Arguments pressed into service by the learned counsel for the complainant is that complainant is consumer as defined under the Act and that this Forum has got the jurisdiction to entertain and try the complaint as complainant is resident of Village Dhapali, Tehsil Phul, District Bathinda and that cause of action has accrued to him to present this complaint within the jurisdiction of this forum. Moreover fact that vehicle was of model 2006 instead of 2007 came to the knowledge of the complainant when it was got passed from the Motor Vehicle Authority, Bathinda and also when complaint was filed against opposite party No. 1 & 2 to the Senior Superintendent of Police, Bathinda, copy of which is Ex. C-4.<br /> 10. Mr. Dhillon, learned counsel for opposite parties No. 1 to3 vehementally argued that complainant has not proved at all that he has purchased the vehicle for the purpose of earning his livelihood by means of self-employment or for a private purpose. No part of the cause of action has arisen within the jurisdiction of this forum.<br /> 11. We have given our thoughtful consideration to the rival arguments and we feel ourselves inclined to agree with the learned counsel for opposite parties No. 1 to 3. Consumer has been defined in Section 2 (1)(d) of the Act. It is reproduced as under :-<br /> “Consumer” means any person who -<br /> (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; <br /> (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment,when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.<br /> Explanation – For the purposes of this clause “Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.” <br /> 12. Their Lordships of the Hon'ble Supreme Court in the case of Cheema Engineering Services Vs. Rajan Singh (1997)1 Supreme Court Cases 131 has held that burden of proving applicability of explanation in the definition of Consumer is on the person seeking to invoke it for his claim of being a consumer. It has been held by the Hon'ble National Commission in the case Interfreight Services Private Limited Vs. Usha International and Others 1995(2) CLT 112 that the intention of Parliament in excluding persons purchasing goods for commercial purposes from the definition of the expression `consumer' is to impose a restriction that the special remedy before the Consumer Forum can be invoked only by ordinary consumers purchasing goods for their private and personal use and consumption and not by business organizations buying goods for commercial purposes.<br /> 13. In para No. 1 of the complaint, complainant has averred that he is consumer as defined under the Act. Admittedly Tata Vehicle LPS-4018 purchased by him is a heavy vehicle which is generally used for commercial purposes. In view of the observations of their Lordships of the Hon'ble Supreme Court , it was for the complainant to prove that big truck was purchased by him for the purpose of earning his livelihood by means of self-employment. His evidence to prove this fact is lacking. In his affidavit Ex. C-1, he has not stated at all that vehicle purchased by him was to be used/is used by him exclusively for the purpose of earning his livelihood by means of self-employment. There is no evidence that vehicle was to be used by him or his family members for self-employment to earn livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen. Hence, explanation in Section 2(1)(d) is not attracted and complainant is not consumer.<br /> 14. As regards territorial jurisdiction of this forum, it is worth mentioning that admittedly vehicle was purchased from opposite party No. 2 at Ropar. It was delivered to the complainant at Ropar itself where alleged mis-representation is said to have been made regarding selling of the vehicle of 2006 model by stating it to be of 2007 model. Cause of action is a bundle of facts. Mere fact that complainant is residing in the area of District Bathinda does not attract the jurisdiction of this Forum in favour of the complainant. No relief has been claimed against opposite party No. 4. There is no averments of the complainant that opposite parties No. 1 to 3 have any branch office at Bathinda. Facts and circumstances do no establish that cause of action wholly or in part arose at Bathinda. Evidence led by the complainant does not confer territorial jurisdiction of this Forum. Averments that model 2006 came to his knowledge at Bathinda and that he has moved to the Senior Superintendent of Police, Bathinda, cannot give cause of action to the complainant to present the complaint before this forum. In the case of Indian Airlines Corporation and Others Vs. Consumer Education and Research Society AHM Dadar and Another CPC 1992 page 139 (NC), it has been held by the Hon'ble National Commission that the Forum before which a complaint is filed should have either nexus or accrual of the cause of action within its territory or the location or the principal office of the Corporation within its territory. It is no so in this case. Mere use of the vehicle in the area of Bathinda does not give a cause of action to the complainant to file complaint before this Forum. For this reference may be made to the authority Hari Chand Vs. Bayer India Ltd., 2000(1) CPC 69 where the facts were that insecticides were purchased from Mukatsar which were found defective and complainant being resident of Ferozepur had used the same at Ferozepur. It was held that opposite party was not having head office or branch office in District Ferozepur and no cause of action had arisen in District Ferozepur, therefore, District Forum had no territorial jurisdiction to entertain the complaint. In the case of Yash Pal Vs. Durga Seed Stores and Another 2007(1) CPC 100, papaya seeds were purchased by the complainant from Chandigarh and were sown at Village Shahpur District Panchkula. Due to defect only 30% of the seeds had germinated/grown. It was held that complaint at Panchkula is not maintainable because cause of action has accrued at Chandigarh from where seeds were purchased.<br /> 15. When the vehicle in question has been purchased at Ropar; opposite parties No. 1 & 2 have their offices at Ropar; it has not been proved that opposite party No. 3 has its branch office at Bathinda and cause of action has not wholly or in part arisen within the area of District Bathinda, complaint before this Forum is not maintainable due to lack of its territorial jurisdiction.<br /> 16. For the reasons recorded above, complaint before this Forum is not maintainable. Hence, merits of the case are not being touched. Compliant is, therefore, dismissed with no order as to cost. Before parting with this order, it is made clear that complainant is at liberty to approach competent civil court/Forum for getting his grievances redressed, if so advised and permitted by Law.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room.<br /> Pronounced :<br /> 16-07-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br />