BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY

Present:Sri P.V.Subrahmanyam, B.A.B.L., PRESIDENT

   Smt. Meena Ramanathan, B.Com., Lady Member 

  Sri G. Sreenivas Rao,M.Sc.,B.Ed.,LL.B.,PGADR (NALSAR),

                                                           Male Member

 Wednesday, the 10^th day of November,  2010

C.C. No. 03 of  2010

Between:

Sri. K. Raghotham Reddy S/o K. Bal Reddy,

Aged: 33 years, R/o H.No. 2-30,

Rampur, Raorukala Village, Siddipet(M),

Medak District.                                                                        …..Complainant

And

1. The Manager,

Srei Equipment Finance Pvt.Ltd.,

Technopolis No. T202,1-10-74/B,

Begumpet, Hyderabad. 

2. The Manager,

Srei Equipment Finance Pvt. Ltd.,

Head Office, Trinity Plaza, 84/1A,

Topsia Road (South) Kolkota,

West Bengal -700 046.

3. Suresh, General Manager,

MGB Motors Pvt. Ltd., Rep. by its

Unit Head at Siddipet Branch,

Opp: Forest Office, Hyderabad Road,

Siddipet.                                                                      ….Opposite parties

         This case came up for final hearing before us on 25.10.2010  in the presence of Sri Y. Rajeshwar, Advocate for complainant, Sri Ch. Bhoopathi, Advocate for opposite party Nos. 1 and 2, and Sri. C. Sreenivas, Advocate for opposite part No. 3, upon hearing arguments of both sides heard, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:

O R D E R

(Per Sri. G. Sreenivas Rao, Male Member)

          This complaint is filed under section 12 of C.P. Act, 1986 to direct the opposite party to pay damages of Rs. 3,00,000/- and Rs. 1,00,000/- for mental agony and further Rs. 1,00,000/- for the loss of earnings and other incidental charges incurred with a direction to register the JCB 3DX excavator loader in the name of the complainant.

1. Brief facts of the case:  According to the complainant, he had purchased a JCB 3DX excavator loader (bearing No. 4H2251/0700580 with chasis NO. 1264287) on 04.04.2009 from opposite party No. 1 by paying an initial amount of Rs. 4,00,000/- and also paid monthly EMI’s upto July, 2009 as part of the transaction. It was further alleged that the said JCB was formerly sold by opposite party No. 1 to one S. V. Ramana who failed to pay required EMI’s and the same vehicle was sold to complainant. In his complaint, he also alleged that the opposite party No. 1 failed to register the said vehicle in the name of the complainant. Despite several visits and requests made by the complainant. The opposite party No. 1 failed to register the vehicle on one pretext or the other. So due to non registration, the complainant suffered from penalties imposed by the traffic police and as a result the JCB Excavator tractor was idle without putting into use. The complainant, therefore incurred financial loss and suffered mental agony due to the above reasons. The complainant also submits that he entered into hire purchase agreement with the opposite party No. 1, but the opposite party No. 1 delivered the vehicle without registration, which lead to violation of rights of the purchaser causing deficiency of service. The complainant vexed with the attitude of the opposite party No.1 and made him, to sent a legal notice dated.19.09.2009 to opposite party NO. 1 and 2. After receiving the notices there was a scope for the opposite party No. 1 and 2 to register the vehicle in the name of the complainant, but did not do it, Hence the complainant knocked the doors of this forum with the prayer to direct the opposite party to pay damages of Rs. 3,00,000/- and Rs. 1,00,000/- for mental agony and further Rs. 1,00,000/- for the loss of earnings and other incidental charges incurred with a direction to register the JCB 3DX excavator loader in the name of the complainant.

2)               Before this forum, all the opposite parties vehemently contested the allegations in the complaint.

3 a)            The contentions of the opposite party Nos. 1 and 2 in their written version are that the complaint is not maintainable as it does not constitute any deficiency in services by the opposite parties and also denied the jurisdiction of the forum as opposite parties are not in the local limits of it and additionally submitted that opposite party No. 3 is not the branch office of opposite party No. 1 and 2. Even the legal notice of the complainant was not addressed to opposite party No. 3.

b)               The opposite party Nos. 1 and 2 also denied that the complainant is a consumer as he purchased the commercial vehicle i.e., JCB Excavator to be used for construction activities. In this regard , reliance in placed on the following citation:

                 Laxmi Engineering Works vs. RSG Industrial Institute reported in 1995 – AIR (Supreme court) -0-1428 which confirmed the order of National Commission. “The words for any commercial purpose” are intended to cover cases other than those of resale of the concerned goods.

c).      The learned counsel also submits that the opposite party Nos. 1 and 2 are financial companies and opposite party No. 3 undertakes repair works. The complainant approached the opposite party Nos. 1 and 2 for the purpose of taking loan/credit facilities for purchasing a JCB – 3DX Excavator loader for his business use. The opposite parties No. 1 and 2 promised a loan for Rs. 11,00,000/-. The complainant and guarantor signed and agreed to repay Rs.15,42,520/- (Amount + agreed interest) in 35 EMI’s @ 44,072/- commencing from 01.05.2009. The complainant took possession of JCB and paid the first EMI/installment and part of second EMI but failed to pay further. As per terms of agreement, the opposite parties has the right to terminate the contract and reposses the vehicle in case of default in payment of  EMI’s by the purchaser. Subsequently, the opposite parties No. 1 and 2 sent a lawyer’s notice dated 13.01.2010 for payment of out standing dues of Rs.15,52,988/- and recovery of the equipment / vehicle, duly terminating the agreement.

d).      The counsel of opposite party Nos. 1 and 2 further submits that in the hire-purchase agreement the article 47 states that any dispute or difference arising, shall be referred to the sole arbitrator- Sri Putin Behari Dar of Calcutta. Accordingly the said agreement bearing No. LAK-807 dt. 01.04.2009 had been referred to arbitration proceedings in February,2010 and the arbitral order was passed on 23.02.2010 infavour of opposite party Nos. 1 and 2 and also appointing Miss. Jyothi pandey, Advocate of High court of  Calcutta as custodian in respect of the said equipment/JCB to take possession of the said JCB excavator. Since the arbitral order was already passed and the complainant is not entitled to retain the possession of the vehicle and the present complaint for registration of the vehicle, has become infructuous. Finally the opposite parties No. 1 and 2 prayed the forum to dismiss the case with exemplary costs.

4.        Counsel for the opposite party No. 3 has made strenous effort to submit that the legal notice dated 19.09.2009 issued by the complainant, was addressed to opposite parties NO. 1 and 2 only. Thus there is no cause of action. Similarly the cause title is also incorrect as Mr. Suresh is made in his independent capacity instead of General Manager of MGB Motors Pvt. Ltd., and the opposite party No. 3 as arrayed is mis - joinder to the complaint. He further submits that opposite party NO. 3 is not a party to the transaction of purchase of JCB. The opposite party No. 3 vehemently submitted that he had no knowledge of the allegations of the case. Hence nothing to do with the business affairs between complainant and opposite parties NO. 1 and 2. Finally he expressed no concern for the non registration of the vehicle by opposite party No. 1 and denied deficiency of service on the part of the opposite party No. 3. He also prayed to dismiss the case with exemplary costs.

5.           In support of the claim, the counsel for the complainant filed evidence affidavit and got marked Exs. A1 to A15 documents. The opposite parties No. 1 and 2 also filed evidence affidavit and the documents were marked as Exs. B1 to B3. Whereas the opposite party no. 3 filed affidavit in lieu of the chief examination, further the counsel for the  complainant filed memo to consider the evidence affidavit as written arguments.

6.            We have heard Mr. Y. Rajeshwar, learned counsel for the complainant but had not the advantage of hearing the say of opposite parties No. 1 to 3 as none appeared for them at the time of hearing of the case.

7.       The points, therefore, that arise for consideration are:

i).       Whether this forum has territorial jurisdiction to entertain this complaint?

ii).     To what relief the complainant is entitled?

8. Point(i):

                        The complaint is filed for registration of JCB 3DX excavator loader in the name of the complainant and for damages etc. Though it is not stated in the complaint as to from whom the complainant has purchased the excavator, but on reading the complaint as a whole it is understood that the purchase was made from opposite party No. 1.  Opposite party No. 1 is a finance company carrying on business at Hyderabad having its head office at Kolkota, who is referred as opposite party No. 2.  The complaint does not contain any reference to opposite party No. 3 except in para NO. 11 which deals with jurisdiction. It is stated in the said paragraph that opposite party No. 3 which is authorized showroom to undertake alteration/repair work of the JCB rendering service to opposite parties No. 1 and 2. It is further stated in the said paragraph that the initial transaction between the complainant and opposite parties No. 1 and 2 took place in the Siddipet Town by paying advance through demand draft drawn on APGVB, Siddipet. Whereas the opposite parties contend that this forum has no territorial jurisdiction to entertain this complaint as no part of cause of action arose within the territorial jurisdiction of this forum. 

                   In view of the respective contentions of the parties. It is clear that Sec.11 of The Consumer Protection Act 1986 does not confer jurisdiction where authorized show room is located. Even otherwise as per Sec. 11(2)b the complainant should have obtained prior permission of this forum to institute the complaint, because out of the three opposite parties, opposite party No. 3 is alone carries on business in Siddipet which is within the jurisdiction of this forum. Such permission is not obtained by the complainant before instituting the complaint. Therefore the objection of the opposite parties in this regard sustains and hence the complaint in this forum cannot be said to the maintainable unless atleast some part of cause of action arose within the jurisdiction of this forum as per clause C of sub sec 2 of Sec. 11 of Consumer Protection Act.

                   The complainant has marked as many as 15 documents on his behalf, out of which Exs. A1 to A5 are receipts for payment of some amounts by the complainant to opposite party No. 1. None of them contains anything to show that payment under any of those receipts was made by the complainant at Siddipet. To prove the said aspect the complainant has not produced any material. It is therefore held that the complainant has failed to prove that any part of cause of action has arisen within the territorial jurisdiction of this forum. The point is answered against the complainant. 

Point(ii):

                 In view of the circumstances explained already under the point (i), as this forum has no territorial jurisdiction to entertain this complaint, the complainant is not entitled to any relief.

9.                In the result the complaint is returned, together with the documents filed by the complainant, for presentation to proper forum having jurisdiction.

              Typed to dictation, corrected and pronounced by us in the open forum this    10^th   day of November, 2010.

     Sd/-                                           Sd/-                                           Sd/-

President                               Lady Member                             Male Member

Copy to:

1)   The Complainant                               Copy delivered to the Complainant/

2)   The Opp.parties                                          Opp.Parties On ___________

3)   Spare copy                                        Dis.No.                 /2010, dt