Punjab

StateCommission

CC/12/108

Simarpreet Kaur - Complainant(s)

Versus

Toyota Kirloskar Motor Pvt. Ltd. - Opp.Party(s)

Chandan Nayar

12 Apr 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.108 of 2012

 

                                                          Date of Institution: 17.12.2012  

                                                          Date of Decision :  12.04.2016

 

1.       Simarpreet Kaur widow of Shri Harpal Singh Bhatia.

2.       Harsimran Kaur minor daughter of Shri. Harpal Singh Bhatia.

3.       Bawneet Singh minor son of Shri Harpal Singh Bhatia, through their     mother complainant no.1 who is their natural guardian all               R/o 77,   Golden Avenue Amritsar.

                                                                             …..Complainants

                                                Versus

 

 

1.       Toyota Kirlosakar Motor Pvt. Ltd., Plot No.24,10th Floor, Canberra      Block, Vittal Mallya Road, Banglore 560 001, through its Managing       Director.

2.       Capital vehicles Sales Pvt. Ltd. 15-A, Institutional Area, Iffco     Chowk, Sector 18, Gurgaon 122006, through its  General     Manager/Managing Director/Officer Incharge.

3.       Castle Toyota Motors, GT Road Amritsar, District Amritsar.

 

 

                                                                             ….Opposite Parties

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri H.S Guram, Member.

Present:-

          For the complainant                   :  Sh.Chandan Nayar, Advocate

          For opposite parties no.1&2       :  Sh.S.R Bansal Advocate

          For opposite party no.3              :  Ms.R.K.Manaise, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant no.1, who is widow and complainant no.2 and 3 who are minor children of Harpal Singh Bhatia (since deceased) have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that complainant no.2 and 3 are the minors and this complaint on their behalf has been filed by complainant no.1 being their mother and natural guardian, who has no adverse interest against them. Harpal Singh Bhatia (since deceased) was a business partner with M/s M.H Trading Co. at present 84, Bazar Harnam Dass, Tahli Sahib Amritsar. He was doing the business of cloth and his income was Rs.50,000/- per month. He was an active leader of Congress Party. Convinced with executive of Toyota motors to purchase Fortuner with Air Bag Safety System. M/s M.H Trading Co. purchased one vehicle Fortuner make Toyota bearing registration no.CHO1- AM - 1823 Engine No. IKD6820401 Chassis No. MBJ11JV5105021517 Model 2011 through Kulwinder Singh its partner from OPs, as per invoice. It was registered by Registering & Licensing Authority Chandigarh. On 16.12.2011 Harpal Singh Bhatia (since deceased) accompanied by Kulwinder Singh and driver Gaurav Mittal was proceeding from Amritsar to Delhi in the above Fortuner make Toyota belonged to M/s H.H Trading Co.  When they reached near P.S Alipur Delhi, it met with an accident resulting into injuries to Harpal Singh Bhatia, Kulwinder Singh and Gaurav Mittal. Harpal Singh Bhatia had died in Jaipur Golden Hospital Delhi, where he succumbed to injuries on 20.11.2011. FIR No.423 dated 17.12.2011 was registered at police station Alipur outer District Delhi for the offences under Sections 279/337 IPC. Life of Harpal Singh Bhatia could have been saved, if the Air Bag Safety System in the vehicle had opened at appropriate time. The death of Harpal Singh Bhatia took place due to non-functioning of Air Bag Safety System in the vehicle. The damaged vehicle was not inspected by OPs, which shows sheer negligence and carelessness on their part. The complainants have, thus, filed the complaint being legal representative of Harpal Singh Bhatia claiming compensation of Rs.50,000/- for accidental death of Harpal Singh Bhatia due to non-functioning of Air Bag Safety System in the vehicle.

2.      Upon notice, OP no.1 filed written reply and admitted that it is manufacturer of Toyota brand automobiles. Mr. Shrinivas P. Gotur has been authorized to defend the case. OP no.1 is prominent manufacturer of cars in the automobile industry, which is known for its quality and reliability. It was averred in preliminary objections that complaint is not maintainable. OP no.1 has registered office in the State of Karnatka and it has no branch office nor carries any business within the territorial jurisdiction of this Commission. No cause of action has accrued within the territorial jurisdiction of this Commission and hence this Commission has no jurisdiction to try the complaint. The vehicle was purchased by M/s M.H Trading Company and it was used for commercial purposes to earn profits only and Harpal Singh Bhatia is not a 'consumer' of the OPs. In the absence of privity of contract between complainant and OPs, the complainant does not lie. The complaint is alleged to be bad for mis joinder and non joinder of the necessary parties. He further averred that only Motor Accident Vehicles Claim Tribunal could adjudicate this matter. The Air Bag System consists of three parts, an air bag module, crash sensors and a diagnostic unit. When a crash occurs, the vehicle rapidly decelerates, while its structure absorbs the majority of the crash force. Unbelted occupants continue to move forward at the vehicle's original speed until the vehicle's interior (the steering wheel, instrument panel, windshield etc) stops their movement. On merits, OP no.1 controverted the averments of the complainant. It was admitted that M/s M.H Trading Company purchased the vehicle for commercial purposes. It was further averred that the airbag would deploy in severe frontal collisions only and deployment of the same is dependent on various factors. OP No.1 prayed for dismissal of the complaint.

3.      OP No.2 filed its separate written reply by raising preliminary objections that complaint is not maintainable for want of territorial jurisdiction of this Commission. The complaint is not maintainable as only Motor Accident Claim Tribunal is competent to decide the matter. Any manufacturing defect in the vehicle was rejected by OP no.2. It was averred that Harpal Singh Bhatia was not original consumer because vehicle was purchased by M/s M.H Trading Company Sector 45-D Chandigarh. The complainants are legal heirs of Harpal Singh Bhatia (since deceased) and have no locus standi to file complaint against OP no.2. On merits, OP no.2 controverted the averments of the complainant and prayed for dismissal of the compliant.

4.      OP no.3 filed its separate written reply by raising preliminary objections that complaint is not maintainable. The vehicle in question is registered in the name of Firm M/s M.H Trading Company, as such it is being used for commercial purposes only. The complaint is bad for mis joinder of necessary parties, as OP no.3 is the dealer of OP No.1 but OP no.3 has no liability at all, as OP no.3 is neither the manufacturer nor the seller of the said vehicle. This Commission has no territorial jurisdiction to entertain and try the complaint. The vehicle in question was purchased from OP no.2 at Gurgaon and the alleged accident took place at Delhi and, thus, no part of cause of action arose in the State of Punjab.  On merits, OP no.3 controverted the averments of the complainant and prayed for dismissal of the compliant.

5.      The complainant tendered in evidence affidavit of Simarpreet Kaur widow of Harpal Singh Bhatia her husband Ex.C-A, affidavit of Kulwinder Singh Ex.C-B along with copies of documents Ex.C-1 to Ex.C-6. As against it, OPs tendered in evidence affidavit Sh. Shrinivas P. Gotur Deputy General Manager of OP no.1 Ex.OP-1/A, affidavit of Anil Kumar Dyal on behalf of OP no.2 Ex.OP-2/A.

6.      We have heard learned counsel for the parties and have also examined the record of the case.

7.      The primary controversy falling for adjudication in this case before this Commission is whether this Commission has territorial jurisdiction to try the complaint or not ? We have examined the pleadings of the parties on the record. Specific objection has been raised by OPs regarding lack of territorial jurisdiction of this Commission to try this complaint. Evidence is required to be referred as above on the record by us to settle this controversy in this case. Ex.C-1 is the invoice showing that M/s M.H Trading Co. purchased the vehicle for Rs.20,14,800.00 from OP No.2. Registration certificate of the vehicle is Ex.C-2 in the name of Gaurav Mittal, which was issued by Registering Authority Chandigarh on 24.06.2005. Death certificate of Harpal Singh is Ex.C-3 on the record. The postmortem report of Harpal Singh is Ex.C-4, which was issued by Babu Jagjivan Ram Memorial Hospital Delhi. Copy of FIR is Ex.C-5 on the record. Photograph of accidental vehicle is Ex.C-6 on the record.

8.      To counter this evidence, OPs tendered in evidence affidavit of Sh. Shrinivas P. Gotur Deputy General Manager of OP No.1 Ex.OP-1/A, affidavit of Anil Kumar Dayal Ex.OP-2/A. This is only evidence brought on record by OPs.

9.      From appraisal of above-referred evidence on the record, we have come to this conclusion that the vehicle was purchased by M/s M.H Trading Company Sector 45-D Chandigarh. The registration certificate issued by Registering Authority Chandigarh of this vehicle, is Ex.C-2 on the record. Death certificate of Harpal Singh has been issued by National Capital Territory of Delhi Ex.C-3. Death report is Ex.C-4 issued by Babu Jagjivan Ram Memorial Hospital Govt. of N.C.T of Delhi. FIR was lodged at police station Alipur Ex.C-5 on the record. OP no.1 is manufacturer of the vehicle and its head office is at Banglore. OP No.2 is authorized dealer of the vehicle and its office is at Gurgaon. OP No.3 is Castle Toyota Motors at GT Road Amritsar. The vehicle was purchased by M/s M.H Trading Company from OP no.2 at Gurgaon. It was manufactured by OP No.1 at Banglore. M/s M.H Trading Company got the vehicle purchased at Gurgaon and it was registered at Chandigarh. The alleged accident took place in the area of Delhi. Mere residence of the complainant within territorial jurisdiction of this Commission does not confer any right on the complainant to institute this complaint.

          Section 17(2) of the Consumer Protection Act 1986 is         reproduced as under:-

          (2) A complaint shall be instituted in a State Commission within        the limits of whose jurisdiction:-

          a) the opposite party or each of the opposite parties, where     there was 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 work for gain, provided that in such case   either the permission of the State Commission 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.

10.    It is, thus, evident from perusal of Section 17(2) of the Act that the complaint can be instituted in State Commission within limits of whose jurisdiction either OP or each of OPs, 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 cause of action, wholly or in part, arises. In this case, the cause of action neither wholly nor in part arose within the jurisdiction of this State Commission. The submission of counsel for complainant is that branch office of OP no.2 is at Amritsar, which is OP no.3 and as such this Commission has jurisdiction to try the complaint. We do not find any force in the submission of counsel for the complainant because Hon'ble Supreme Court in  case titled as "Sonic Surgical versus National Insurance Company Ltd," reported in 2010 CTJ 2 (SC) (CP) has held as under :-

          "9. Moreover, even if it had application, in our opinion, that will          not help the case of the appellant. Learned counsel for the       appellant submitted that the respondent-insurance company   has a branch office at Chandigarh and hence under the    amended Section 17(2) the complaint could have been filed in         Chandigarh. We regret, we cannot agree with the learned           counsel for the appellant. In our opinion, an interpretation has        to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of           the learned counsel for the appellant is accepted, it will mean        that even if a cause of action has arisen in Ambala, then too    the complainant can file a claim petition even in Tamil Nadu or     Guwahati or anywhere in India where a branch office of the           insurance company is situated. We cannot agree with this       contention. It will lead to absurd consequences and lead to     bench hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office           where the cause of action has arisen. No doubt this would be          departing from the plain and literal words of Section 17(2)(b) of      the Act but such departure is sometimes necessary (as it is in   this case) to avoid absurdity. (Vide G.P Singhs Principles of        Statutory Interpretation, Ninth Edition, 2004 P. 79).

          In the present case, since the cause of action arose at Ambala,       the State Consumer Disputes Redressal Commission, Haryana    alone will have jurisdiction to entertain the complaint. "

11.    It is, thus, evident from perusal of this authority of the Apex Court that where no part of cause of action accrued within the area of State Commission; mere existence of branch office of OPs would not confer any jurisdiction because it would lead to absurd consequences and lead to bench hunting. The Apex Court has held that in the mandate of Section 17(2) of the Act branch office would mean that office where the cause of action has arisen. In view of the mandate of law laid down by Apex Court in Sonic Surgical versus Insurance Company Ltd (supra), no part of cause of action accrued within the territorial jurisdiction of this Commission and mere existence of branch office without any accrual cause of action  would not confer any jurisdiction on this State Commission, as held by Apex Court (supra).

12.    As a result of our above discussion, we hold that this State Commission has no territorial jurisdiction to try this complaint. The complaint is ordered to be returned to complainant for its presentation before competent Forum having territorial jurisdiction to try it in accordance with law. Hence, the complaint is not maintainable before State Commission and is ordered to be returned to complainant against proper receipt. 

13.     Arguments in this complaint were heard on 08.04.2016 and the order was reserved. Now the order be communicated to the parties.

14.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                            (HARCHARAN SINGH GURAM)

                                                                                MEMBER

 

April 12, 2016                                                                

(ravi)