DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

DEOGARH

Shri P. C. Mahapatra, Member and Smt. Jayanti Pradhan, Member

Rajesh Kumar Bhoi,

Aged about 24 Years.

S/O – Rama Chandra Bhoi,

Resident of Village – Bhitiria Sahi,

PO/PS/Dist.- Deogarh,

                                                                             …        Petitioner.

Royal Automobiles,

Plot No.245-2530/2658,

Lewis Road, Gouri Nagar Chhak,

Bhubaneswar-751002                                        …        Opposite Parties.

CD Case No.34/2015

Date of hearing 03.08.2016   Date of Order 02.09.2016

Counsel for the parties:

               For the Complainant           :         D.K. Guru, Advocate.

               For the Opposite Parties     :         Nemo

O R D E R

PRATAP CHANDRA MAHAPATRA, MEMBER –  The factual matrix of the case in hand according to the averment made in the complaint petition and Ammendment Petition being supported with verification and affidavit is that the complainant being a permanent resident of Bhitiria Sahi, PO/PS – Deogarh in the district of Deogarh purchased a Royal Enfield – Classic- 500cc Motor Cycle bearing Engine No. U5S5FOFF111120 and Chasis No. ME3U5S5F1FF054543  from Royal Automobiles,81,Budha Nagar, Bhubaneswar - 751006 under agreement of Hypothecation with Andhra Bank, Main Market, Deogarh represented through OP on 29.08.2015 vide Invoice No.2681 worth of Rs.1,88,500/- (One lakh eighty eight thousand and five hundred) on road. Also, at the time of delivery, OP has collected the Road Tax, Fees for Registration, Insurance premium etc. and had assured to handover the R.C. Book relating to the Motor Cycle within 15 days from the date of purchase, has failed to handover the R.C. Book till date. At the insistence of OP, Petitioner presented his Motor Cycle for First Servicing at the nearest Servicing Centre at Rourkela on 07.09,2015 and while coming back to Deogarh some 40 kmtrs distant from Rourkela, the said Motor Cycle developed Starting Problem and with much difficulty Petitioner returned back to Deogarh and immediately the day after i.e. on 08.09.2015 intimated the fact to OP over telephone who assured to get the defect rectified within fifteen days. OP failed to get repaired the impugned Motor Cycle within 15 days, even not within the period till the date of filing of this Petition. As such, the petitioner having the Motorcycle with starting problem and no RC Book with him is deprived of plying the Motorcycle on road and on the other hand paying the EMI to the financing Bank regularly. Hence the present petition seeking relief in the shape of passing of order directing OP (i) to replacement of the Motor Cycle with a new one; (ii) to handover the R.C. Book immediately; (iii) to pay Rs.2,00,000/- towards compensation for mental pain and agony and (iii) to pay Rs.10,000/- towards litigation cost.

The list of documents relied and adduced during different stages of the proceeding of the case by the Petitioner is tabulated as follows:

2. On behalf of OP, who is the Proprietor of Royal Automobiles, Plot No.245-2530/2658, Lewis Road, Gouri Nagar Chhak, Bhubaneswar-751002ted, Sambalpur Branch, one Sumit Kumar Swain working as Service Manager, M/S- Royal Automobiles, Budha Nagar, Bhubaneswar filed a notarized Written-Statement on 04.01.2016 in answer to petition filed by the petitioner, wherein, interalia, maintainability of the complaint in this Forum has been challenged on the ground of jurisdiction. Besides OP has stated:

1. The complainant admittedly purchased the vehicle in question from M/S Royal Automobiles, Bhubaneswar. The complainant’s further admitted case is that the OPs office is at Bhubaneswar and they do not have any branch office at Deogarh or anywhere within the territorial jurisdiction of Deogarh Forum. As it appears from the complaint, although the complainant filed the case but has not satisfied about the jurisdiction of the forum to admit the complaint for disposal in accordance with law particularly when the OP shown to have their place of work at Bhubaneswar. Hence complaint does not disclose that any part of cause of action has arisen within the territorial jurisdiction of the Hon’ble Forum. That, the complaint in the present from is not maintainable both on facts and in the eyes of law and absolutely no cause of action and / or actionable claim arises in favour of the complainant so as to file the present complaint.
2. That, the complaint is not a consumer within the meaning and definition of Section 2 (d) of C.P. Act as no qualifying averments incorporated in the complaint justifying defect in the alleged motor cycle and / or  deficiency in service on the part of the answering opposite party. The complainant neither assert that the motors cycle in question was ever deposited/delivered to the answering OP nor the complainant has submitted any documents in support of delivery of the alleged motor cycle to the answering OP for verification and necessary action. The complainants averments in the complaint that he had reported the answering OP about  the defect in the motor cycle is false , as the complainant has not averred when did he intimate about such defect and has also not annexed any document or any evidence to that effect . The span between the alleged date of purchase and alleged date of defect and K.M run as per the averments of complainant conclusively proves that the motor cycle had no manufacturing defect as the same rendered service for a considerable period. Thus it goes without saying that the complainant has cooked up a story to gain wrongfully. The conduct of the complainant further indicates that the motor cycle had no manufacturing defect , The answering OP emphatically asserts that Motor cycle as per the description in the complaint petition was never received at its office from the complainant, therefore it was not proper on the part of the complainant to implead answering OP as party to the dispute . As such, the dispute is bad for mis-joinder of party and thus liable to be dismissed on the said sole ground. No tenable allegation having been made it in the complaint against the answering OP it was not proper and fair on the part of the complainant to implead them to the regours of litigation.
3. That, the dispute is bad for non-joinder of party and thus liable to be dismissed on the said sole ground., The warranty is offered by the manufacturer and the present OP is merely a dealer and sales the vehicle manufactured by its manufacturer in consideration of a small amount of dealer commission . Needless to say that the warranty undertaker (manufacturer) is to settle the warranty claims after examining the truthfulness , nature , character and admissibility of the warranty defects complained and the dealer is the carry out the instruction of its principal .Therefore no complaint involving warranty liability can be decided in absence and participation and hearing the manufacturer . As the manufacturer is not a party to this case the adjudication is bad and the case is liable to be dismissed on the said ground. That, save and except that has been admitted the entire complaint does not aver even a trace of allegation against any manufacturer or other defect in the products supplied or any deficiency in service rendered by the answering OP so as to tempt the complainant to file the present complaint against the, . Hence, the complaint against the answering OP is not maintainable.
4. While contending that, the present complaint has been filed on the basis of averment’s beyond the knowledge of OP is bad in law and not maintainable, OP has stated that the complainant has not come before the Hon’ble forum with clean hands and has suppressed the correct and material facts for the purpose of wrongful gain out of the litigation which is devoid of merits and the same has been lodged by the present complainant with an intention to mislead the present Hon’ble forum and the same is required to be dismissed for want of cause of action, maintainability and jurisdiction.
5. That, the Hon’ble forum lacks jurisdiction to entertain and dispose of the complaint in accordance with law and may be pleased to dismiss the complaint with cost as not maintainable while dealing with the preliminary issue. Without prejudice to whatever is stated herein above, the OP now proposes to deal with the complaint of the complainant paragraph wise as under:-

1. That, the averments of paras – 1 & 2 need no comment.
2. That, the averments of Paras – 3,7,8,10 & 13 are not within the knowledge of the answering OP and hence refrain from commenting.
3. Alleging the averments of the Para - 4 as incorrect and untrue OP has contended that the complainant had never sought any appointment for getting his motorcycle serviced. The complainant is required to prove the allegation.
4. That, in reply to the averment of Para – 5 it is submitted that the answering OP has never advised the complainant to get his motorcycle serviced at Rourkela. However as per the norms of the manufacturer the purchase of a royal Enfield motorcycle can avail the facility of free servicing at the service dealer of the company located throughout India.
5. That, the averments of par-6 to the extent of “instruction of the OP ” are denied. The rest part of the same para is not within his knowledge and hence refrain from commenting.
6. Declaring the averment of Para – 9 as incorrect and untrue, OP has contended that had the complainant delivered the motorcycle in question the OP would have rectified the defect if any however the complainant had never deposited his motorcycle at the service center of the OP as such the complainant is guilty of his own latches.
7. That, the averment’s of Para 11 are false, frivolous and malicious. The complainant having not deposited his motorcycle in the service center of the OP situated at Budha Nagar, Bhubaneswar for examining any defect through its qualified and experienced technicians to ascertain its nature and character, it is improper and derogatory to allege that the OP did not take any steps or removed the alleged defect.
8. That, the averment’s of para -12 are false, frivolous and vexatious as the same are based on unsubstantiated hypothesis.

Further it has been contended by OP that the averments of the complaint make manifestly clear that the OP is not involved in unfair trade practice but the complainant has attempted for wrongful gain and put the OP to wrongful loss to gain wrongfully by filling false and vexatious complaint. Also it has been submitted by OP that without prejudice to  wherever stated hereinabove and reserving the right to challenge its maintainability on any other ground and answering OP legal right to claim of compensation for the complainant for bringing vexatious case. In view of the aforesaid facts and circumstances the OP submitted that the complaint is liable to be dismissed with exemplary cost since devoid of merit.

f)    In response to the Amendment Petition filed by the Complainant, challenging its maintainability, the OP, although have submitted that they have already filed their version affidavit in the present case and has also prayed therein to dispense with their further appearance and to dispose of the case on the basis of the version affidavit together with documents and citations filed by them and form part of the case record, reiterating his prayer for disposal of the case on the basis of written version and other documents already filed and any further objection etc. submitted/to be submitted by the OP, the OP sought to file the objection to the petition for amendment received in this Forum on 16.07.2016 and the objection runs as follows :

(i).   That, the petition U/S.6 Rule 17 is defective and liable to be rejected on the technical ground that the same is not supported by affidavit.

(ii)   That, the proposed amendment if allowed shall change the nature and character of the case.

(iii)  That, the Consumer Protection Act prescribes its procedure and the Civil Procedure Code has limited application and the C.P. Act does not grant scope for amendment of complaint as such the petition for amendment is liable to be dismissed at its threshold.

(iv)  That, the amendment is bad and liable to be rejected on the ground that it is belated and the averment sought to be inserted could have been incorporated at the time of filing of the complaint. It is ascertainable from the nature and character of the proposed amendment that those have not been development subsequent to filling of the case but prior to filling of the case.

(v)   That, the proposed amendment is meant to harass the OP and subject them to pecuniary loss by pursuing the case pending in a wrong forum which is at a faraway place from the OP place of business .

(vi)  That, the OP has challenged the maintainability of the present dispute on the jurisdictional ground and the complainant being aware of the fact that the case is not maintainable at Deogarh forum has filed the petition after a long period and particularly at the fag end of the case when the case is liable for disposal on the basis of the plea and reply of the OP in version affidavit supported with documents and case law by treating it as the arguments of the OP.

(vii) That, the averments sought to be inserted by way of amendment is malicious in view of the fact that as per the norms of registration the selling dealer is responsible to collect the one time road tax and registration fees from the purchaser and deposit the same within 24 hours of sale. In the instant case the OP collected the one time road tax and registration fees etc. from the complainant and deposited the amount through online payment on 29.9.2015 and handed over the online payment receipt to the complainant. As the complainant was interested for a choice number by paying extra amount of fees, he undertook the responsibility to take up the matter with the registering authority in respect of allotment of registration number in his favour. The work of a dealer is only to ensure payment of taxes and fees within prescribed period of sale and depositing it in the registration office. The registration office never delivers the R.C to the dealer but sends it to the vehicle owner through post as per the rules and practice. Had the complainant not received the R.C he ought to have persuaded the matter with R.T.O office, Bhubaneswar without blaming the OP at a belated stage. Thus the averment sought to be inserted has no significance and the complainant cannot held the OP responsible for his own latches. The copy of the online payment receipt having been delivered to the complainant together with all other documents he needs to persuade the matter with the R.T.O office instead of making unjust allegation against the OP. The delivery of the R.C was neither a service falling within the scope and ambit of the Consumer Protection Act nor the OP can be directed to cause delivery of the same by interfering with the administ6rative and or statutory function of R.T.O .Copy of the payment receipt is enclosed herewith for kind perusal.

(viii)That, the law is well settled that no amendment can be entertained at the far end of the case i.e. at the stage of argument. The OP relies on the decision of the Hon’ble National Commission reported in Ind Law Lib/877494 9 (also reported in (2014) 2 CPJ 180: (2014) 2 CPR 228). Similarly M.P. State Commission in the case of Chief Engineer, MPEB V. Hanumant Singh and others. (1995) I CPJ 225, held that the order allowing the amendment to bring the complaint within its jurisdiction is bad in law and could not have been allowed.

(ix)  That, admittedly the matter which is sought to be inserted could have inserted at the time of filing but having not been inserted and the case being in the stage of arguments and the jurisdiction of the forum having been questioned and prayed to be decided as preliminary issue the learned forum may not incline to deal the amendment petition and may consider dismissal of complain t on the ground of deficient jurisdiction of Deogarh Forum.

(x)   That, the petitioner filed by the complainant being devoid of merit and not in accordance within law is liable to be dismissed with cost.

3.  In view of the prayer made by OP in his written version to dispense with their further appearance and to dispose of the case on the basis of the version affidavit together with documents and citations filed by them and from part of the case record, Complainant’s version was heard on 03.08.2016. Learned Advocate for Complainant submitted that Cost of the Motor Cycle has been paid by the complainant to the OP in shape of a bank cheque drawn on ANDHRA BANK, MAIN MARKET, DEOGARH. Hence part of the cause of action lies at Deogarh and as such the instant case is maintainable in this Forum and concluded complainant’s case. Afore stated prayer of OP in relation to dispose the case on the basis of Written Version deems to have concluded OP’s case.

4. Heard and perused documents filed by either parties to the instant case and before doing away any further it is felt necessary to deal skeptically the following questions:

       A. Whether the case suffers from lack of jurisdiction?

       B. Whether Complainant is a Consumer?

       C. Whether complaint suffers from non-joinder of party?

A.   Whether the case suffers from lack of jurisdiction?  Section 11(2) of Consumer Protection Act, 1986 reads as hereunder:

“11. Jurisdiction of the District Forum.—

( I) 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.”

Beyond doubt the provisions contained in Sec.11(2)(a) &(b) as extracted above, the territorial jurisdiction of a district forum is within reference to the residential qualification of the opposite party and not with reference to that of the complainant but provision Sec.11(2)(c) curtails such an interpretation and may extend to the domain of complainant since cause of action has not been defined in any legislation. Cause of action is a bundle of facts, the fact that has given rise to action against other party is called the cause of action.

Further "Cheque". Has been defined in Sec.6 of the Negotiable Instruments Act, 1881 as "cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand” and on presentation of such a cheque or bill of exchange before any Bank other than the Bank on whom such cheque or Bill of exchange is drawn, is sent to that Bank on whom drawn for collection and only after such amount is received by the Bank where it is presented for payment, it is paid to the person presenting. This provision of collection establishes that payment is being materialized by the bank on whom such cheque or bill of exchange is drawn.

Since, in the instant case payment of consideration of this transaction i.e. sale of Royal Enfield – Classic- 500cc Motor Cycle bearing Engine No. U5S5FOFF111120 and Chasis No. ME3U5S5F1FF054543 by Royal Automobiles, 81, Budha Nagar, Bhubaneswar – 751006 to the Complainant as evident from Exbt-P/1  is materialized by and from ANDHRA BANK, MAIN MARKET, DEOGARH, it can not be denied that part of the cause of action does not accrue at Deogarh. Hence maintainability of the case in hand in this Forum can not be assailed on the ground of Jurisdiction.

On the other hand, ratio of the cases cited by OP (i) “Mrs.Sailendri S.Ramajeevan –Vrs-Air India and another, (2000 1 CPJ 164 TNSC);  and (ii) Starline Motors Vrs. Naval Kishore Chimanlal Bhartia and another (1998 1 CPJ 79) do not fit to the instant case in as much as the fact that the former case relates deficiency in providing service (travel by air and loss of luggage during flight) and the case in hand is for sale of goods and providing service thereafter and in the later case though it relates to sale of goods the difference is that the consideration is in the shape of Demand Draft to be paid at Bombay, where Starline Motors have his office and Show room and in the instant case payment of consideration is in shape of a Cheque drawn on Bank at the place where complainant resides.

B.   Whether Complainant is a Consumer ?  Sec.2(d)(ii) of the CPAct reads as :

“2.(d) "consumer" means any person who-

(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; or

(ii) hires or avails of any services 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 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 of with the approval of the first mentioned person; but does not include a person who avails of such services of any commercial purpose;

Explanation.-For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;”

In the instant case complainant has purchased the Royal Enfield – Classic- 500cc Motor Cycle bearing Engine No. U5S5FOFF111120 and Chasis No. ME3U5S5F1FF054543  from Royal Automobiles,81,Budha Nagar, Bhubaneswar – 751006 who has also admitted it in his Written Version. Hence it shall be prejudiced to the complainant if submission of OP in Para-11 (B) is accepted.

C. Whether the complain suffers from Non-Joinder of party ?  In consideration as to whether the complaint suffers from Non-Joinder of Manufacturer as a party we refer to the case of electro Audio vision – Versus- M/S Diddan construction [2014 (1) C.L.T.428 (M.L)]  Hon’ble Meghalaya State consumer Redressal Commission have held as hereunder:

“6. It is well settled that a necessary party is that in whose absence the court cannot pass an effective decree. At the very highest the original manufacturer, ay be a proper party in this case. Merely because the manufacturer may be an possible party is no ground for holding in the reverse that he is a necessary party whose non-joinder would be fatal to the whole proceedings. Apart from the above, the Consumer Protection Act, 1986, is a beneficial statute enacted for the better protection of the interests of consumers, it is not to be shackled with intricacies and niceties and technicalities of the Civil Procedure. The proceedings under the CP Act are primarily simple and summary in nature.”

 “9. It may be further added here that the Appellant is an independent dealer and not an agent of the manufacture of the mobile phone in question. Had he been an agent, the matter would have been otherwise. Hence he cannot wash off his hands after making a sale and shift his burden to the manufacture nor can he insist that the manufacturer be added as a party to the proceedings. A consumer is primarily connected with the person from whom he buys the goods, as privity of contract is between them and not with the manufacturer. Ordinarily, it is for the Appellant dealer to take care of the complainant’s concerns, where after he can take up the matter with the manufacturer for securing his own interests. Otherwise, the Consumer Protection Act,1986 would become totally unworkable and for very small complaint a consumer would have to involve the manufacturer, who, although no doubt is a proper party, is not a necessary party.”

Hence we feel there is no bar in the instant case to proceed with even if Manufacture has not been made a party to the case.

4. Since strict principles of Civil Procedure Code are not applicable in these summary proceedings. Further, the objection to amendment petition filed has been signed by one Asit Kumar Rana under the seal of the OP and by designation Service Manager without any supporting affidavit while Written Version filed against complaint verified and signed and affidavit sworn by one Sumit Kumar Swain, Service Manager. Since the Consumer Protection Act, 1986, is a beneficial statute enacted for the better protection of the interests of consumers, it is not to be shackled with intricacies and niceties and technicalities of the Civil Procedure and the proceedings under the CP Act being primarily simple and summary in nature, belated objection to amendment petition, signed by a separate person than the authorized signatory in the instant case adducing no affidavit to the effect, so filed is not taken care of at this stage. Our findings are as follows:

1. Complainant has purchased one Royal Enfield – Classic- 500cc Motor Cycle bearing Engine No. U5S5FOFF111120 and Chasis No. ME3U5S5F1FF054543  from OP, who is a dealer appointed by the manufacturer under hypothecation to Andhra Bank, Main Market, Deogarh.
2. Consideration of this sale is paid through a cheque bearing No.48078 of dated 28.08.2015 drawn on Andhra Bank, Main Market, Deogarh for Rs.1,88,500/-.
3. It is very much clear that the vehicle was not produced at the Service Centre of the OP at Bhubaneswar for after sale maintenance servicing and at the same time complainant has failed to establish that he has been directed by OP to present the vehicle for first servicing at authorized service center at Rourkela by documentary evidence.  This very well evinces that so far providing after sale services OP has not been ever made entangled.
4. So far as providing the Registration Certificate by OP within 15 days is paradoxical since at present Fees are paid online to the Registering authority and such authority on receipt of fees etc. use to dispatch the smart card etc. related to registration of vehicle direct to the purchaser in the address furnished by post. Saler/Dealer has the limited liability to collect the fees etc. at the time such sale is effected from the purchaser and deposit it with the Registering authority. In the instant case it has been done so by OP and non-receipt of documents related to registration is not lacuna of OP.

              Hence we find OP has acted upon justly and his activity suffers from no deficiency of services liable for payment of compensation to the petitioner for mental agony and harassment. Accordingly on the foregoing observations we are deciding the case in terms of the signed order as under:

O R D E R

The complaint petition being devoid of merit no relieves sought for are allowed. OP being the Dealer with whom the complainant has the privity of contract, he shall rectify defects of the vehicle sold to the complainant on presentation before him at his Service Center at Bhubaneswar excluding the period from 04.12.2015 to 03.09.2016 while computing the warranty period.

Office is directed to supply the free copies of the order to the parties keeping acknowledgement of the receipt thereof.

Order pronounced in the open court today i.e. 2nd day of September 2016 under my hand and seal of this forum.

                                          I   agree,

                                         MEMBER (W)                                                 MEMBER.            

Dictated and Corrected

          by me.

       MEMBER.