Andhra Pradesh

East Godwari-II at Rajahmundry

CC/14/2015

VVV. Satyanarayana Murthy - Complainant(s)

Versus

The Honda Cars limited Represented - Opp.Party(s)

S.G. Shankar

24 Aug 2016

ORDER

                                                                                                                     Date of filing:   23.02.2015

                                                                                                                     Date of Order: 24.08.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                                    PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                 Wednesday, the 24^th day of August, 2016

 

C.C.No.14 /2015

Between:-

 

V.V.V. Satyanarayana Murthy, S/o.late Appa Rao, Hindu,

Aged 59 years, residing at Flat No.12 (RB), Karnataka Apts,

Shambu Nagar, Rajahmundry.                                                                                       …  Complainant

 

                                                And

 

1)  The Honda Cars Limited, Represented by its Managing

      Director, Old No.26, New No.46, Opposite to ICICI Bank,

      Industrial Estate, Ambattoru, Chennai-600058.

 

2)  The Sundaram Motors, Rep. by its Managing Director,

      Corporate Office, 180, Anna Salai, Chennai-600006.

 

3)  The Branch Head, Sundaram Honda Division, Sundaram Motors,

      Opp. To D.V. Monar Hotel, Vijayawada (Krishna District).

 

4)  Senior Sales Manager, Sundaram Honda Division, Sundaram

     Motors, Opp. To D.V. Monar Hotel, Viajayawada, (Krishna Dist).

 

5)  Sales Officer, Sundaram Motors, Honda Division, NH-5,

     Manchukonda Gardens, Visakhapatnam.

 

6)  The Branch Head, Elite Honda, Honda Showroom, Lalacheruvu,

      N.H., Rajahmundry.                                                                                                   … Opposite parties

 

 

            This case coming on 11.08.2016 for final hearing before this Forum in the presence of Sri S.G. Shankar, Advocate for the complainant and Sri Ch.V. Prasad, Advocate for the    3^rd opposite party and Sri P. Nanda Kishore, Advocate for the 6^th opposite party and the  1^st, 2^nd, 4^th & 5^th opposite parties having been set ex-parte, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Smt.H.V. Ramana, President(FAC)] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties 1 to 6 to pay Rs.3,00,000/- with interest @ 24% p.a. from the date of payment made to 3^rd & 4^th opposite parties till the date of realization or in the alternative to arrange pre owned car subject to the satisfaction of the complainant and pay damages of Rs.50,000/- for the breach of contract.

2.         The case of the complainant is as follows:- It is submitted that he was in service and in the capacity of procurement Manager purchased one Honda Car and two Ford cars on behalf of Factory through the 5^th opposite party whether the company could arrange pre owned Honda cars for the complainant’s personal use. The 5^th opposite party expressed his inability due to lack of pre owned cars in their showroom and directed the complainant to approach the showroom of the 3^rd opposite party and the 5^th opposite party in the presence of the complainant had a tele talk with 3^rd and 4^th opposite parties and advised the complainant to approach the 3^rd opposite party in their showroom at Vijayawada. Accordingly, the complainant went to the opposite parties showroom at Vijayawada in the month of November, 2012. Since the pre owned cars in accordance to the requirement of the complainant is not readily available in the showroom of the 3^rd and 4^th opposite parties, both the 3^rd and 4^th opposite parties promised to arrange the pre owned car to the complainant very soon. In the said process of making arrangement to provide pre owned car to the complainant, the 4^th opposite party being the Senior Sales Manager of Sundaram Honda Division collected an amount of Rs.3 lakhs towards advance payment for supply of pre owned Honda Jazz car of 2009 model and acknowledge the receipt of the same dt.27.11.2012. Later, the 4^th opposite party in his letter dt.2.12.2012 informed the complainant to inspect the vehicle in the Sundaram Motor Showroom of Raniganj at Hyderabad. Accordingly, the complainant along with his son went to Hyderabad and he expressed his consent to the 4^th opposite party on 4.12.2012. Though more than a month has been elapsed inspite of repeated demands, the opposite parties 3 or 4 did not respond. The complainant got issued a legal notice dt.9.1.2013 to the opposite parties. The opposite parties 2 to 5 received the notice, but the 2^nd opposite party gave reply on 25.1.2013 referring the matter to their advocate for further advice, but no progress till date. Hence, the complaint.

3.         The 3^rd opposite party filed its written version and denied all the allegations made by the complainant and the complaint is not maintainable either under law or on facts. This opposite party submits that the complaint is not within time from the date of alleged payment i.e. 27.11.2012 and as such the complaint is barred by limitation. This Hon’ble Forum has no territorial jurisdiction to entertain the C.C. as no part of the alleged cause of action took place within the jurisdiction of the Hon’ble Forum and as such the complaint is not maintainable in this Hon’ble Forum. It is not correct to allege that the 4^th opposite party sent any letter dt.5.3.2013 to settle the issue with showroom at Rajahmundry. The same is only pressed into service to create jurisdiction to this Forum. The complaint does not fall within the ambit of Consumer Protection Act and as such the same is not maintainable. The complaint is bad for non-joinder of proper and necessary party. This opposite party submits that the delinquent      C. Srinivas worked in the branch of this opposite party as Asst. Manager from 19.11.2009 to 10-30 A.M. on 13.12.2012. The description of 4^th opposite party as Senior Sales Manager in the complaint is not correct. This opposite party conducted business in pre-owned cars i.e. “Exchange of Cars” i.e. a customer can sell his old cars to the company to the price agreed by both and the customer can buy a new vehicle from it by paying the balance amount and another system of “park N sell” i.e., any private customer can park his car on his own risk to sell the same in second hand along with other customers and if the buyers selects the said car and shows interest to purchase, the buyer shall pay the remuneration directly to the concerned car owner and both the parties [seller and buyer] shall pay the necessary service charges to this opposite party. Both the systems do not require any payment by the intending purchaser in advance, much less to its representative. In case of any payment by the intending purchaser, it shall be only to this opposite party directly, but not otherwise. As such payment of Rs.3,00,000/- alleged to have been made to C. Srinivas does not bind this opposite party. The alleged advance was not brought to book of this opposite party. The complainant also did not inform about the alleged payment to this opposite party. The alleged payment by the complainant does not bind this opposite party or its Principal. On complaints about the fraud and cheating by the delinquent Srinivas, this opposite party was constrained to lodge a complaint on 18.12.2012 with SHO, Krishnalanka Police, Vijayawada. He was absconding from duty since 13.12.2012. This opposite party submits that it has nothing to do with the alleged payment made to C. Srinivas, as no such advance payment is contemplated as per the scheme in the sale and purchase of pre-owned cars. It is a transaction perse in between the complainant and C. Srinivas, but has nothing to do with the business of this opposite party. It does not create any liability on this opposite party or the other. The remedy of the complainant if any is to proceed against Srinivas personally, and he cannot have any remedy against other opposite parties. There was no contract at all in between this opposite party and the complainant and as such the question of breach of contract does not arise. The complainant is not entitled any reliefs against the opposite parties. Hence, there is no deficiency of service on the part of this opposite party and the complaint is liable to be dismissed with costs.

4.         The 6^th opposite party filed its written version and denied all the allegations made by the complainant in this complaint against the 6^th opposite party are all false. It is submitted that there is no agreement or nexus to the 6^th opposite party with the complainant. No assurance was given by the 6^th opposite party to the complainant. No legal notice was issued prior to filing of the present O.P. It is submitted that the complainant made false and frivolous allegations against the 6^th opposite party with a malafide intention and approached this Hon’ble Forum with un-clean hands. The complainant is not the consumer within the definition of the Consumer Protection Act, 1986 and there is no cause of action for filing this complaint against the 6^th opposite party. As such the complaint is not maintainable under law and on facts. Therefore, this opposite party prays that the Hon’ble Forum to dismiss the complaint with costs.

5.         The proof affidavit filed by the complainant and Exs.A1 to A10 have been marked for the complainant. The proof and additional affidavits filed by the 3^rd opposite party and Exs.B1 & B2 have been marked for the 3^rd opposite party. The 6^th opposite party filed proof affidavit.

6.         Heard the complainant and the opposite parties 3 & 6. The complainant filed written arguments.

7.         Points raised for consideration are:

 

1. Whether this Forum is having jurisdiction to entertain the complaint?

2. Whether there is any deficiency in service on the part of the opposite parties?

            3. Whether the complainant is entitled for the reliefs asked for?

            4. To what relief?

 

8.  POINT Nos.1 & 2:  The complainant submitted that he paid an amount of Rs.3,00,000/- to one C. Srinivas, who is an authorized signatory of Sundaram Motors vide Ex.A1. The complainant further submitted that he received a letter dated 2.12.2012 from C. Srinivas that the complainant can visit the Ranigunj Showroom and look into the Honda Jazz 2009 model car and in case, if the complainant likes the said vehicle, C. Srinivas will inform to their Chennai office and confirmed the deal for the acceptable price. The complainant wrote a letter to one V. Srinivasa Raju, Branch Head dated 26.12.2012 and sent the copy of the receipt and letters written by C. Srinivas. As per the telephonic conversation between the complainant, 3^rd and 4^th opposite parties, the complainant approached Vijayawada showroom in the month of 2012. The complainant further submitted that he and his son went to Hyderabad and inspected the vehicle and had a test drive of Honda Jazz 2009 model with sky blue colour at Ranigunj Showroom at Hyderabad on 4.12.2012 and he expressed his desire to take the said car and informed the 4^th opposite party and requested him to make the assessment of the selling price of the said car.  The complainant made repeated demands to arrange pre-owned Honda Jazz car as offered to him or to refund the amount of Rs.3,00,000/- paid as advance to the opposite parties 3 & 4. The complainant got issued a legal notice to the opposite parties vide Ex.A4 and the same is acknowledged by the opposite parties vide Ex.A5.  Exs.A6 & A7 are the returned acknowledgements and Exs.A8 & A9 are returned registered covers. The complainant also filed another letter which is written by C. Srinivas, the authorized signatory vide Ex.A10.

            The 3^rd & 6^th opposite parties denied the allegations made by the complainant and informed that C. Srinivas left their office by doing fault and therefore, they lodged a complaint against him filed under F.I.R. (Sections 408, 420 I.P.C.) vide Ex.B1 and they also filed a charge sheet before the 2^nd ACMM Court, Vijayawada vide Ex.B2.             

            After perusing the material on record, it is observed that the 3^rd opposite party conducted business in pre-owned cars i.e. exchange of cars in Vijayawada showroom. The said showroom is not within the jurisdiction of this Forum and the complainant has not filed any piece of document that the part of cause of action arose within the jurisdiction of this Forum as per the documents filed by the complainant, except issuance of notice i.e. Ex.A4. Mere issuance of notice will not confer the jurisdiction to the complainant. As per the documents of 3^rd opposite party, it is observed that the business of 3^rd opposite party is situated in Vijayawada and they registered a case against C. Srinivas in Krishnalanka P.S., Vijayawada and they also filed the charge sheet before the Hon’ble court i.e. 2^nd ACMM, Vijayawada. As per the complainant’s contention, C. Srinivas who received the amount from him wrote a letter from Vijayawada i.e. Ex.A10, in which he requested the complainant to visit their Rajahmundry showroom and selected the vehicle readily available. But, the said letter is dated 5.3.2013, by this date, the said C. Srinivas was not in service since 13.12.2012 of the 3^rd opposite party and also the 3^rd opposite party lodge a complaint against C. Srinivas in Krishnalanka Police Station and the charge sheet also filed against him.  

            It is also clearly established under Section 11 of Jurisdiction of the District Forum: (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs]

(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 works for gain, as the case may be, acquiesce in such institution; or

            (c) the cause of action, wholly or in part arises.  

            Therefore, as per the documents and the above provision, it is clearly establishes that this Forum has no jurisdiction to file the complaint before this Forum. Hence, we are not going to the merits of this case and not considering the other points as there is no jurisdiction to entertain the complaint.    

 

9.   POINT No.3:  In the result, the complaint is dismissed, without costs and the complainant is at liberty to approach the appropriate Forum for redressal.

Typed to dictation, corrected and pronounced by us in open Forum, on this the  24^th day of August 2016.

    

                  Sd/-                                                                                             Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

Ex.A1    Receipt dt.27.11.2012 issued by the 4^th opposite party to the complainant for

  Rs.3,00,000/-.

Ex.A2    Letter dt.2.12.2012 addressed by the 4^th opposite party to the complainant.

Ex.A3    Copy of E mail dt.26.12.2012 addressed to the 3^rd opposite party.

Ex.A4   Copy of the legal notice dt.9.1.2013.

Ex.A5    Reply letter dt.25.1.2013 from the 2^nd opposite party.

Ex.A6    Postal acknowledgement from the 2^nd opposite party.

Ex.A7    Postal acknowledgement from the 3^rd opposite party.

Ex.A8    Regd. notice refuses with acknowledgement due of the 4^th opposite party.

Ex.A9    Regd. notice refuses with acknowledgement due of the 5^th opposite party.

Ex.A10  Letter dt.5.3.2013 from the 4^th opposite party to the complainant.

 

FOR 3^rd OPPOSITE PARTY:-  

Ex.B1    Copy of the F.I.R. in Crime No.790/2012 on the file of Krishnalanka Police Station,

            Vijayawada.

Ex.B2    Copy of the Charge sheet in CC No.468/2014 on the file of Second Addl. Chief

     Metropolitan Magistrate, Vijayawada.

 

                      Sd/-                                                                                                   Sd/-

                 MEMBER                                                                                       PRESIDENT(FAC)