DOF 8.10.2003

DOO./27/7/ 2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 27^th    day of July  2010

C.C.No.329/2003

V.P.Soman,

Valiya purayil,

Thayyil,

P.O.Thayyil, Kannur 3.

(Rep. by Adv.P.P.Venu)                                         Complainant

1. Thomas,

   Proprietor,

   PolyFlex Fiber Products,

   P.O.New Mahe, Chalakkara.

   (Rep. by Adv.Shyampadman)

2. Marykutty Alex,

   Karukamalil House,

   P.O.Vengari,

   Kozhikode 672 010.

3. Ashok Leyland Ltd,

    Annasalai, Chennai 600035.                                    Opposite Parties

4. Vinayaka Agencies,

    115, II Cross,

    Pon Nagar, Trichi 620 001.

5. North Malabar Gramin Bank,

   Thayyil Branch,

   P.O.Thayyil

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay Rs.5, 00,000/- as compensation.

            The facts of the case in brief are as follows: Complainant is the leader of a group of 24 Fishermen including the complainant who were collectively fishing in mechanized engine fitted boat. The group were constituted in the name of “N.Abdulla Group” Members in the group were fishermen eking out their livelihood by directly engaged in fishing. The 1^st opposite party approached the complainant on 5.3.03 at his residence at Thayyil, Kannur  knowing that the group has planned to purchase a new boat and offered to supply the engine fixed boat for least price. He had fraudulently represented that he was the authorized dealer of Marine Engine of Ashok Leyland Company. Believing the representation made by the opposite party he was asked to give quotation and he brought for a total amount of Rs.15,24,821/- which includes Rs.3,94,821/- as the price of Ashok Leyland Marine Engine and Rs.1,80,000/- towards fitting and accessories and Rs.9,50,000/-as cost of the Vallam. The complainants group availed loan from the North Malabar Gramin Bank, Thayyil Branch with the assistance of Edakkad Matsia Thozhilali Development Welfare co. operative society and purchased the boat from 1^st opposite party and took delivery on 25.4.03. The complainant paid Rs.1, 25,000/- directly and Rs.13, 99,851 was paid through North Malabar Gramin Bank, Thayyil Branch by way of DD. While taking delivery the opposite party did not give the invoice or bill of the boat. On persistent demand 1^st opposite party had given only two invoices Viz. the first for Rs.2, 27,250/- issued by 4th opposite party to Mr.Abdulla and the other for Rs.69, 000/- issued by Mapssons & Co. in favour of Mr.Thomas. Opposite party has not issued any invoice of their concern to the complainant. Afterwards complainant could understand, on enquiry that the opposite parties were never the dealer of Ashok Leyland Company. The engine started showing trouble during fishing. On two occasions engine turned off from deep see and the fishermen in the boat had been saved by fishing department after tedious rescue operation. When again repeated trouble complainant sought assistance of engine mechanic and experienced insurance surveyor Sri.Mr.Chandran who is a technical expert in mechanical engineering and got examined the engine. On examination it is understood that the 1^st opposite party had fixed an old re-conditioned engine on the boat under the pretest of the new Ashoka Leyland Marine Engine. Complainant and other member of the group suffered great financial loss and mental and physical sufferings due to this unfair trade activity of 1^st opposite party. Complainant suffered a loss of Rs.5,00,000/-. The fishermen group had not been able to go for fishing many days due to the Engine trouble. Complainant met an expense of more than 1, 00,000/- for Engine repair and hence this complaint.

            Pursuant to the notice opposite parties 1 to 5 filed version separately. The case of the 1^st opposite party in brief is as follows: Complaint is not maintainable. The purchase is for commercial purpose. Complainant never intimated or complained of any defects to this opposite party as seen now raised. This Forum has no territorial jurisdiction to entertain the complaint since there has been no cause of action aroused within the jurisdiction of this Forum. Complainant has suppressed material facts. The name of Mr. Thomas is wrongly shown in the cause title and he is not the proprietor of M/s.Poly Flex Fiber Products. The allegation is fraud and cheating which cannot be adjudicated under Consumer Protection act and dispute relating to the pricing will also be not a consumer dispute. Complainant representing himself to be the leader of ‘N Abdulla’, a group of fishermen had approached the opposite party for the purpose of purchasing a mechanized fibre glass boat. The complainant also requested for arranging the required engine. Opposite party agreed to procure an Ashok Leyland engine from the authorized dealer M/s.Vinayaka Agencies, Trichy and fit the same in the boat. The probable cost of construction of the Fibre glass boat was Rs.9,50,000/- besides the fittings and accessories charges Rs.1,80,000/- to make it sea worthy for fishing. The total cost for Ashoka Leyland Engine, Marine Gear Box assembly, transportation and fitting and Engine alignment besides labour charges would come to Rs.3,94,821/-. Thus opposite party establishment had given a quotation for Rs.15, 24,821/- for the said fibre glass boat and finally complainant had placed the order. On 23.5.03 it was delivered and purchased to the satisfaction of the complainant and the financing agency, the bank. After making the entire payment regarding the boat complainant requested for a loan of Rs.1, 75,000/- stating to be for purchasing fishing net. Thus complainant received a loan amount of Rs.1, 75,000/- on 23.5.03 agreeing to repay it within 4 months. It was also agreed that all the original bills and invoices need only be given after the said amount was repaid. Complainant failed to repay and the cheque dishonoured. Opposite party instituted criminal prosecution under section 138 of N.I.A before JFC M, Kozhikode and the same is pending. All the transactions took place from the work shop of the opposite party at West Hill, Calicut. This opposite party never claimed to be a dealer of M/s.Ashoka Leyland Ltd. Mapponsons & Co. Auto Pvt.Ltd. has issued the bill in the name of the opposite party. All the documents relating to the Vellam was agreed to be handed over only upon paying the amount of Rs.1, 75,000/- borrowed from the opposite party. Opposite party dined all the allegations charged against their establishment. The alleged report of the expert is not proper and sustainable besides inadmissible in evidence. The alleged document seen produced as MOS 10 to 36 are admitted to be true. Witness shown is also close associates of complainant. Complainant is trying to create false evidence. Claims for compensation are baseless. There is no deficiency of service on the part of this opposite party. If at all there is any manufacturing defect in the engine the same is liable to be attended by the manufacturer. Hence to dismiss the complaint.

            The 2^nd opposite party filed version contending that the complaint is not maintainable since the purchase is for commercial purpose. This Forum lacks territorial jurisdiction since the cause of action not arisen within the jurisdiction of this Court. Complainant has suppressed true facts and set out misleading allegations. The proprietor of M/s.Poly Flex Fibre Products is not Mr.Thmas as seen wrongly shown in the cause title. The allegation is fraud and cheating which is not maintainable under consumer protection Act. A dispute relating to the pricing will also not coming under the Act. The matter involves intricate and complicated factual and legal issues requiring elaborate evidence which cannot be adjudicates in summary procedure. The complainant representing himself to be the leader of ‘N.Abdulla’ group of fisherman approached M/s.Poly flex Fibre Products, Chalalkara, Mahe of Pondichery state for the purpose of purchasing a mechanized fiberglass boat and also to arrange required engine. The opposite party agreed to procure an Ashoka Leyland engine from the authorized dealer MsVinayaka Agencies, Trichur and fitted to the boat. The probable cost of the construction of the Fibre glass boat was Rs.9, 50,000/- besides it also required fittings and accessories worth of Rs.1,80,000/- to make it see worthy for fishing. The total cost for the Ashoka Leyland Engine, Marine Gear Box assembly transportation and fitting and Engine alignment besides labour charges would come to Rs.3,94,821/-. Opposite party thus given a quotation for Rs.15, 24,821/-. Complainant placed order as per the said quotation Opposite party constructed the fibre glass boat and supplied. Complainant had taken delivery of the boat after being completely satisfied about its quality and seaworthiness. After making the entire payment complainant approached opposite party establishment for a loan of Rs.1, 75,000/- for purchasing fishing net. With assistance of repayment within 4 months the amount was advanced. Complainant received the amount on 23.5.03. Complainant but failed to repay the amount and the cheque issued by him dishonored. Criminal prosecution initiated under section 138 and the same is pending as CMP.319/2004 before the JFCM II, Kozhikode. This complaint is an attempt to escape from the liability. This opposite party did not approach the complainant in his residence at Thayyill claiming to be a vendor. The transaction took place from the work shop of the opposite party at West hill, Calicut. This opposite party had never claimed to be a dealer of M/sAshoka Leyland Ltd., Mappson & co. Auto Pvt. Ltd.  Had issued the bill in the name of the opposite party. The allegation that opposite party neglected to issue bills are not proper. All the documents relating to Vallam was agree to be handed over only upon the repayment of the loan amount Rs.1, 75,000/-. The allegations that the engine was found to be old and worn-out, that there is discrepancy in the number shown that the opposite party had given an old and fake engine etc. are false. There is no deficiency in service or unfair trade practice on the part of opposite party. It is therefore prayed to dismiss the complaint.

            3^rd  opposite party separately filed version, the brief facts of which are as follows: There is no privities of contract between the complainant and 3^rd opposite party, Ashok Leyland Ltd., The allegation that Thomas came to Thayyil and was introduced himself as the authorized  dealer and he is the authorized dealer of this opposite party are false. There is no privity of contract between the complainant and 3^rd opposite party. The allegation that complainant incurred a loss of Rs.5, 00, 000/- is false and baseless. 1^st opposite party is not an authorized dealer of 3^rd opposite party and 3^rd opposite party is not responsible for any sale by him. This opposite party has not appointed 1^st opposite party as a dealer or as a distributor. 1^st opposite party is a stranger to 3^rd opposite party. On enquiry after receiving notice from the Forum found that the Engine No.C.412.Part No. EA.8286100 and the Engine No.MVE.372772 was invoiced by this opposite party to 4^th opposite party vide invoice  N o.800973 dt.28.2.03 and delivered from opposite party’s Ennore Warehouse. On enquiry with 4^th opposite party it is learnt that subsequently the above engine has been sold by the 4^th opposite party to one Abdullah in Tamilnadu, vide their invoice No.250 dt.9.5.03 for auto application. The 3^rd opposite party is not responsible for the conversion of the engine for any other purpose and it is to authorize by this opposite party and denies any knowledge of such conversion. There is no cause of action for filing this complaint against this 3^rd opposite party as there are no privities of contract between the complainant and this opposite party. This opposite party had sold only auto engine to his dealer, the 4th opposite party. From the recitals in the petition itself, it is clear that the engine No. etc. are not in proper place and the engine owned and possessed by the petitioner seems to be of a second hand machine converted to a marine engine. This opposite party is manufacturing and selling marine engines itself and hence there is no need to sell auto engine for conversion. As per terms of warranty of this opposite party’s company there would not be any warranty for the converted engine. Also, there is no warranty for second sale. Neither this opposite party nor any of its authorized service centre has repaired the engine of the complainant. There are no privities of contract between Ashoka Leyland Ltd, the 3^rd opposite party and the complainant. This opposite party is wrongly impleaded    and thus not responsible for any of the transaction between the complainant and the 1^st opposite party. This complaint is not maintainable against this answering opposite party. Hence to dismiss the same.

            4^th opposite party in his separate version denying the main allegations contended as follows: The complainant is a total stranger and there is no business transaction between the complainant and 4^th opposite party, Vinayaka agencies. This opposite party is a business magnet selling vehicular engines and other mechanical systems in and around Tamil Nadu having its registered office at Trichi. The first opposite party is not a dealer of this opposite party. This opposite party neither appointed the first opposite party as a dealer or a distributor nor authorized him to make any sale of any of the product marketing by this opposite party. This opposite party is an authorized dealer of the company /products of 3^rd opposite party. Ashoka Leyland especially for marketing the industrial engines for the last more than10 years. This opposite party never sold marine engine to any of their customers by violating the contract between this opposite party and 3^rd opposite party. On verification of records after receiving notice from the Forum it is found that Engine NO.412, part No. A 8286100 was the engine involved by the 3^rd opposite party to this opposite party as per vide invoice No.800973 dt.28.2.03. This opposite party is unaware of the engine No.MVE.372772 as alleged in the complaint. This opposite party never invoiced and sold such an engine from 3^rd opposite party. On further enquiry this opposite party found that the Engine No.412, Part A 8286100 was then purchased by one Abdulla in Tamil Nadu, as per vide invoice No.250 dt.9.5.2003 for  industrial application. More over, the engine was sold to Abudulla for his own use, but not for further sale and it was mentioned in the invoice itself. This opposite party is totally unaware how this engine came in the hands of complainant through the first opposite party. He was  also unaware of the conversion of the engine application from industrial to marine. There is no privity of contract between the complainant and this opposite party. Complainant is not a customer of this opposite party. Hence to dismiss the complaint.

            The North Malabar Gramin Bank who is opposite party NO.5 filed version separately contending as follows: Complainant together with others had obtained  Farm loan for the purpose of purchasing fishing  boat and engine worth Rs.15,24,821/- and fishing net worth Rs.1,48,028/-. The total amount of loan availed was Rs.14, 96,000/-. The loan was advanced on the basis of the quotation issued by op-posit party dt.9.3.03. The entire amount was disbursed to the 1^st opposite party supplier of the boar and engine and he was directed to furnish the original bill. Since it was not materialized a letter (dt.20.6.03) was sent to 1sty opposite party requesting to produce original bills. Letter was sent again on 25.7.03. But `1y opposite party did not sent the bills but sent a letter dt.7.8.03 informing the Bank that the original bills will be handed over to the complainant and other problems are being settled through mediators. But original bills were never furnished by the first opposite party. There is no deficiency in service on the part of this opposite party hence to dismiss the complaint against this opposite party.

            On the above pleadings the following issues have been taken for consideration.

1. Whether the complaint is maintainable?

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

3. Whether the complainant is entitled for any relief as prayed for?

4. Relief and cost.

            The evidence consists of oral testimony of the PW1, PW2, DW1 and CW1 and E+xts.A1 to A10 and B1 to B12.

Issue No.1

            Admittedly complainant, the leader of a fishermen Group on the basis of quotation given by1st opposite party, purchased a boat and the same was taken delivery on 25.4.03.

            The first point to be discussed is whether there is territorial jurisdiction for this Forum to entertain the complaint or not? The complainant’s case is that 34 fishermen including the complainant constituted a group in the name as “N.Abdulla Group”. They were collectively fishing for eking their livelihood. This group planned to purchase a new boat with engine as their own for fishing and decided accordingly. 1^st opposite party knowing this fact approached the complainant on 5.3.03 at the residence at Thayyil (Kannur 3) and offered to supply the engine fixed boat by fraudulently representing that he was the authorized dealer of Marine Engine of Ashok Leyland company and he will supply the boat. Believing the 1^st opposite party complainant asked for quotation and as per the quotation obtained from opposite party complainant purchased the boat for a total price of Rs.15, 24,821/- and taken delivery of the same on 24.4.03. The question to be answered is whether or not cause of action arose within the jurisdiction of this Forum. Opposite parties 1 and 2 contended that they don’t have any office or branch nor do they work for gain anywhere within the territorial jurisdiction of this Forum. Opposite parties case is that no cause of action or part thereof has arisen within the jurisdiction of this  Forum. Opposite party further contended that the allegation of the complainant that the opposite party had approached the complainant at his residence at Thayyil on 5.3.03 at 9 a.m claiming to be a vendor of mechanized Vallam and an authorized dealer of M/s.Ashoka Leyland selling their marine engine are not proper, correct or sustainable, besides being false even to the knowledge of the complainant himself.

            Complainant filed affidavit evidence in lieu of chief examination in tune with their pleadings. It is stated in affidavit evidence that “ aÕy _Ô-\-¯n\p kz-´-ambn Hcp b{´-h-XvIrX hf-fT hm§m-\mbn Btem-Nn¨p Xocp-am-\n-¨-t]mÄ Cu hnh-cT Andªv 5.3.200-þ3 XobXn cmhnse  9 aWn¡v FXnÀI£n ]cm-Xn-¡m-c³ Xma-kn-¡p¶  X¿n F¶ Øe-¯p-ff  Xsâ  ho«n hcn-I-bpT FXnÀI£n Xm³ b{´-hÂIrX hf-fT hn¡p¶ AT-Ko-IrX hym-]m-cn-bm-sW-¶pT AtimIv eb-eâv IT-]-\n-bpsS ssasd³-F³Pn hnÂ]\ sNbvXp-h-cp¶ IT-]-\n-bp-sS-Xs¶ AT-Ko-IrX Uoedm-sW-¶pT AXn\m b{´-hÂIrX hf-f-¯n-hvi-y-amb FÃm km[-\-§-fpT ]c-am-h[n hne-Ip-d¨v hnÂ]-\-sN-¿m-sa-¶pT Xm³  C{]-Im-cT hf-fT hn¡p-¶-A-dn-b-s¸-Sp¶ Uoe-dm-sW-¶p-T-]-cm-Xn-¡m-cs\ ]dªv hni-z-kn-¸n-e-¡p-I-bp-­mbn“. So the case of the complainant is that the 1^st opposite party came to his residence at Thayyil, Kannur The case of the opposite parties are on the other hand is that the allegation of complainant that“the opposite party had approached the complainant at his residence at Thayyil on 5.3.03 at 9 a.m, claiming to be a vender of mechanized Vallam and an authorized dealer of M/s.Ashoka Leyland selling their marine engine are false. The complainant is straining himself to some how or other to create false cause of action by setting out untrue and untenable allegations and claims within the territorial jurisdiction of the Hon’ble Forum”.

            Except the interested testimony of PW1 there is no other evidence supporting the case of the complainant that 1^st opposite party had visited the complainant in his house at Thayyil, Kannur. Though it is only one day visit that is very important since it is the determining factor as far as territorial jurisdiction of the case in hand is concerned. Hence the decision upon this aspect can only be taken only ensuring the visit of opposite party to the residence of complainant. One thing is certain even according to complainant all the other events and transactions had taken place out of the jurisdiction of this Forum. Even the payment of advance has taken place not within the jurisdiction of this Forum. Complainant pleaded that “Iz-t«-j³ {]Im-c-ap-ff kT-J-y-bn 1,25,000/þ cq] FXr-I£n ]cm-Xn-¡m-c-\n \n¶pT t\cn-«pT _m¡n kT-Jy 13,99,851 cq] _m¦n \n¶p Xh-W-I-fm-bpT ssI¸-äp-I-bpT Ahbv¡v bYm-k-a-bT FXr-I£n ckoXv \ÂIp-I-bp-ap-­mbn“. Complainant does not stress the point that the payment had been taken place within the jurisdiction of this Forum. In affidavit evidence PW1 repeated the same sentence in his proof affidavit. In cross examination PW1 deposed thus “Thomas \mWv ]WT sImSp-¯-Xp. _m¦v Un.Un F\n-¡vX-¶p. Rm³ tXma-Ên\p tImg-¡-t¡mSv sIm­p-sIm-Sp-¡p-I-bmWv sNbvXXv“. Hence it is clear that advance payment made not within the jurisdiction of this Forum. In the cross examination PW1 answered to the question of 1^st opposite party that “Poly Flex Fibre, Kozhikdoe \p I®q-cn bmsXmcp Øm]-\-§-fp-an-Ã.                 “Poly Flex Fibre product\pth­n 1þ#mT FXr-I£n Fsâ ASp¯v   order  hm§m³ h¶-Xp-sIm-­mWv Cu tImS-Xn-bn tIÊv sImSp-¡m³ Imc-WT . Complainant is on the point that 1^st opposite party came to his residence and taken order from there. To another question put to the mouth of witness PW1 he has deposed that “Poly Flex Fibre Products                         F¶ Øm]-\-¯n \n¶mWv ss^_À tXmWn-bpT  AXnsâ accessories\pT HmÀUÀ sImSp-¯n-«p-f-f-Xv. AXv Nme-¡c \yq-am-ln-bn-emWv F¶p-]-d-ªm icn-b-Ã. tImgn-t¡mSv ]pXn-b-§m-Sn-bn-emWv ØnXn sN¿np-¶Xp.]-Wn-XoÀ¶ t_m«v ]pXn-b-§mSn IS-¸p-d¯v sh¨mWv sUen-hdn Xcp-¶Xp. From the above deposition of the PW1 it is made clear that order placed before the Poly Flex Fibre products at Kozhikode. It is the same witness who deposed that “ Fsâ Asp¯v HmÀUÀhm-§m³h-¶-Xp-sIm-­mWv Cu tImS-Xn-bn tIkvsIm-Sp-¡m³ Imc-WT“ It is quite contrary to his earlier statement. This contradictory statement gives further indication to look into the convincing evidence to ascertain the visit of opposite party to the residence of complainant. But complainant gives no other evidence except his own statement in evidence affidavit.

            Complainant could have at least examine a single eye witness who saw 1^st opposite party when he approached the complainant. Since Thayyil is a residential area of fishermen where in the usual course number of persons would watch in case a new person comes to the locality. Anyhow it is not a secret visit. At least the neighbors would see him. Some one should have been examined for the purpose of proving his visit since it is the question of jurisdiction without which the complainant could be entertained.

            Even the notes of argument submitted does not take this aspect serious and not elaborated anything more except repeating the pleading. Complainant did not even attempt to bring out the source from where opposite party happened to know the plan of fishermen group to purchase the new boat. 1^st opposite party came to meet complainant by knowing this plan and not by inviting by the complainant or his men. Then the complainant could have attempted to draw a picture of possibility of source of knowledge. Though DW1 was elaborately cross examined even a single question put to the mouth of witness with respect this aspect touching territorial jurisdiction. DW1 is an important witness as far as this aspect of territorial jurisdiction is concerned since it is his visit to the residence of complainant that brings territorial jurisdiction that enables this Forum to entertain the complaint in hand.  Since it is so important that the complainant should have taken enough seriousness to elicit answers to bring down him within the jurisdiction of this Forum, which he ignored and thereby failed to establish the territorial jurisdiction the essential legal requirement of present case.

            In the above circumstances the available evidence on record does not permit us to hold that any cause of action or part thereof has arisen within the jurisdiction of this Forum. Hence we are of opinion that this Forum has no jurisdiction to entertain the complaint for want of jurisdiction. This issue is found against complainant.

            In the light of the above finding we feel that it is unnecessary to get in to other issues in the absence of jurisdiction.

            In the result, the complaint stands dismissed for want of jurisdiction. No cost.

                                          SD/-                          Sd/-                 Sd/-

      President                  Member           Member

Appendix

Exhibits for the complainant

A1.Copy f the quotation issued by 1^st OP dt.9.3.03

A2.Receipts issued by 1at OP

A3.Deliverynote dt.25.4.03

A4.Certiifed copy fo leter isused dt.19.4.03

A5 & 6..Copy of invoice dt.10.5.03 and 3.5.03 issued by Mapson & Co. andVinayaka Agencies

A7.Copyof quotation

A8. Cash Bills

A9.Certificate dt.24.7.03 issued by M.R. Chandran  Automobile Engineer

A10.Copy of the complaint filed before Judicial 1t class Mag.,Kozhikode

Exhibits for the opposite parties

B1.Dealership certificate issued by OP3 to oP4.

B2.GP cum Invoice issued by OP

B3.Copy of deposition of PW1 in CC.542/04 of JFM, Kannur

B4.Copy of the order in CC.542/04 of  “     “

B5.Copy of deposition of PW4 in CC.542/04 of JFM.II, Kannur.

B6.Certificate issued by Vinayaka  Agencies

B7.Copy of lawyer notice dt.5.12..03

B8.Copy of final report of Kannur City police 184/03

B9 to 11.Copy of deposition of PW2,PW3 and PW5 in CC.542/04

B12.Copy of deposition of DW1 in ST.359/04 of JM of I class IV,Kozhikode

Exhibits for the court

C1.Commisison report

Witness examined for the complainant

PW1.Complainant

PW2.M.R.Chandran

Witness examined for the opposite party

DW1.K.C.Thomas

Witness examined for the  court

CW1.Dineshan Puthalath

/forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur