KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

  APPEAL  NO:805/2006

                            JUDGMENT DATED: 18-09-2010

PRESENT

SHRI.M.V. VISWANATHAN                                  : JUDICIAL MEMBER

SRI.M.K. ABDULLA SONA                                   : MEMBER

M/s Attokaran Super Shoppe,

P.O.Road, Thrissur,                                               : APPELLANT

R/by its Power of attorney holder-

Smt.Lini Febin, W/o Febin.J.Attokaran.

(By Adv:Sri.George Cheriyan Karippaparmbil)

            Vs.

Mr.Paul T.Kurian,

Thuruthummel House,                                          : RESPONDENT

Puthiya Road, Vadacode.P.O,

Kangarapady.

(By Adv:Sri.Roy Carghese)

                                      JUDGMENT

SHRI.M.K. ABDULLA SONA : MEMBER

This appeal prefers from the order passed by CDRF, Ernakulam in CC.142/06 dated:16/8/2006.  The appellant is the 1^st opposite party and the respondent is the complainant in the above mentioned CC.  This appeal prefers under the direction of the Forum below to refund Rs.11,100/- being the price of pump set to the complainant by the 1^st opposite party but the complainant surrendering the same before the 1^st opposite party.  The 1^st opposite party is also directed to pay Rs.5000/- as cost to the complainant.  The Forum below passed the impugned order without considering the evidence of both sides.  The complaint is in connection with purchase of ¾ HP pump set for Rs.11,000/- from the 1^st opposite party manufactured by the 2^nd opposite party and warranty card was also issued but the pump set stopped working are on a certain on 7/7/2005.  The complainant further contacted the 1^st opposite party on several occasions directly and over phone neither of the opposite party has done neither of the opposite party has done anything to cure the defects.  According to the complainant the acts of the opposite parties amounts to unfair trade practice and deficiency of service.  The complainant stated that due to the deficiency of service on the part of the opposite parties he was not able to proceed with the construction work at the site and had to hire costly machines to substitute water supply.  Hence the complaint.

2. First opposite party appeared and filed his version much after the time stipulated for filing the same and there was no petition to accept the same.  Later the 1^st opposite party filed I.A.184/06 to accept version which was allowed by the Forum below on terms of cost of Rs.250/- to the complainant.  The Forum below found that thereafter this order passed in I.A.184/06 there was no representation for the 1^st opposite party on the subsequent 4 posting dates of the case.  Version of the 1^st opposite party was not considered as the cost ordered was not paid.   But the same time the complainant filed I.A.166/06 for deleting the 2^nd opposite party from the party array, which was allowed by the Forum below and 2^nd opposite party was deleted.  The complainant filed proof affidavit and documents produced by him in support of his case were marked as Exts.A1 to A4.  Ext.A1 is true copy of the bill issued by the 1^st opposite party which shows that the complainant has purchased a pump set from the 1^st opposite party for Rs.11000/-.  Ext.A2 is the copy of the warranty card from which it is clear that the pump set is warranteed for a period of 12 months from the date of purchase by the 1^st user on 18 months from the date of commissioning which ever is earlier.  As opposite party has not taken any interest in contesting the matter by paying the costs ordered.  The only inference that could be drawn is that they have nothing to say against the case of the complainant.  In the circumstances Forum below found that the complainant is entitled for refund of the price of the pump set. The Forum below passed the impugned order on the strength of the above finding.  The appellant/1^st opposite party prefers this appeal from the above impugned order.

3. On this day when this appeal came before this commission for final hearing, the counsel for the appellant is present and there is no representation for the respondent/complainant.  We heard in detail and perused the available documents in the LCR.  It is clearly seeing that the Forum below not at all considered the primary question of law, the territorial jurisdiction to entertain this complaint. The counsel for the appellant submitted that in the complaint and in the proof affidavit or in nowhere in the documents mentioned that any cause of action or part of the cause of action incidented within the territorial jurisdiction of the Ernakulam Forum.  Another contention taken by the appellant is that the manufacturing defect if any found by the Forum below is not at all liable by the dealer, the manufacturer/2^nd opposite party is only liable for the compensation.  The manufacturer was deleted from the complaint by the complainant in I.A.168/06.  Further the Forum below illegally and irregularly ordered to pay a refund of Rs.11,000/- being the price of the pump set by the appellant/1^st opposite party (dealer) and cost of Rs.5000/-.  Hence the impugned order passed by the Forum below is illegal and irregular and without jurisdiction, the impugned order is liable to be set aside.

4. It is an admitted fact that the Forum below passed the order in I.A.184/06 to accept version of the 1^st opposite party on terms of cost of Rs.250/- to the complainant.  But thereafter there was no representation for the 1^st opposite party on subsequent 4 posting dates.  In this circumstance the version of the 1^st opposite party was not considered due to the costs ordered was not paid.  But the appellant/1^st opposite party taken a strong contention that the Forum below is not having any territorial jurisdiction to entertain this complaint because the entire transactions occurred within the jurisdiction of the Thrissur District Forum.  We are also seeing that the Forum below even without raised a point, as a question for consideration is in dispute.  In the prima-facie, this complaint is not entitled to get admission in the Forum below.  In normal case it is the duty of the Chief Ministerial Officer of the Forum below to return the complaint with a direction to file it before the appropriate Forum.  It is the duty of the Forum below, that means the Forum below acted beyond their jurisdiction.  It is nothing but a illegality and irregularity Act.  In such circumstances the Forum below will not be obtained the legal protection or immunity of the Consumer Protection Act. In other words it is quite unfair to entertain this complaint without jurisdiction.  Even from the filing date of the complaint to the date of the order passed by the Forum below.  They did not consider this as an important question of law.  In the circumstances we are seeing that the order passed by the Forum below is illegal and irregular and without legally territorial jurisdiction.  But at the same time the appellant/1^st respondent did not obey the order of the Forum below.  He cannot deserve my sympathy.  In such a circumstance they have any right to raise any submission  before this appellate tribunal.  But we cannot entertain a case not in accordance with the provisions of the Consumer Protection Act.

In the result this appeal is allowed and directed the appellant/1^st respondent to pay Rs.500/- in the account of the Legal Aid Fund of this Commission and this order passed by the Forum below is hereby set aside.  We are taking a lenient view towards the complainant if he so desires, he can taken back the complaint from the Forum below and to file the complaint before the CDRF, Thrissur within one month after the receipt of this judgment.  The delay of filing the complaint before the proper Forum is condoned.  Both parties are directed to suffer their own respective costs.

This judgment is subject to the payment of Rs.500/- by the appellant with Legal Aid Fund of this Comission.

The office is directed to forward the case file to the Forum below immediately.

The points of the appeal are answered accordingly.

M.K. ABDULLA SONA: MEMBER

M.V. VISWANATHAN: JUDICIAL MEMBER

VL.