Haryana

Kurukshetra

188/2018

Parawara Singh - Complainant(s)

Versus

Tracon Couurier - Opp.Party(s)

13 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                                Complaint case No.188 of 2018.

                                                Date of Instt. 4.9.2018.

                                              Date of Order: 13.6.2019.

 

Sh. Parwara Singh son of Sh. Lal Singh, resident of H.No. 632, Sector-3, Urban Estate, Kurukshstra, Distt. Kurukshetra.

 

                                                                … Complainant.

                Versus

1. Trackon Couriers Pvt. Ltd., Mohan Nagar Chowk, Pipli Kurukshetra road, Kurukshetra, Distt. Kurukshetra through its responsible person Mr. Nagpal.
2. Mahindera Emporium Pvt. Ltd. Kala Dungi Road, Crossing Haldwani, Distt. Nainital (Utrakhand)

                       

… Opposite parties.

 

Before:      Mrs. Neelam Kashyap, President.

                   Sh. Sunil Mohan Trikha, Member

                   Mrs. Neelam, Member       

           

Present :       Sh. Suresh Saini, Advocate for complainant.

Sh. Mohit Tayal, Advocate for opposite party no. 1.

Opposite party no.2 already exparte.

              

                                         

ORDER

 

                      By this order, we shall dispose of an application for dismissal of complaint at the preliminary stage on the ground of jurisdiction moved on behalf of op no.1.

2.             It is averred in the application that this Forum has got no jurisdiction to entertain and try the present complaint as alleged missing article was booked by op no.2 from Haldwani as alleged by the complainant and article sent through answering op by complainant had already been delivered to op no.2 which is admitted by complainant in his complaint. The answering op only the franchise office of Trackon Couriers Pvt. Ltd. It is further averred that complainant has no locus standi to file the present complaint on missing article sent/ booked by op no.2 from Haldwani. It is further averred that op no.2 is not residing/ working within the territorial jurisdiction of this Forum and the alleged missing article was booked from Haldwani and as such this Forum has no jurisdiction.

3.             In reply to the application filed on behalf of complainant, it is submitted that application is not maintainable and that same has been filed only to linger on the matter. It is further submitted that this Forum has jurisdiction to entertain and try the present complaint. Remaining contents of the application are also denied and prayer for dismissal of complaint made.

4.             We have heard learned counsel for the parties and have perused the case file carefully.

5.             The complainant has filed the present complaint with the allegations that complainant purchased high standard frame and glass of optical from op no.1 in the month of February 2016 for an amount of Rs.6250/-. At the time of purchasing the said article, the op no.2 provided guarantee/ warranty for three years. After two years, the said frame and glass of optical became defective and complainant returned the same for repair to op no.2 on 5.2.2018 through op no.1 vide receipt no.1343493070 and op no.2 after repairing the said optical sent back the same to complainant through op no.1 vide receipt no.1103517315. The complainant contacted to op no.1 for receiving his article but op no.1 postponed the matter on one pretext or the other and has caused harassment and loss to the complainant. It is further averred that there is great deficiency in service on the part of ops and ops adopted mal practices by not providing the best courier services to the complainant. Hence, this complaint.

6.             Admittedly, the complainant purchased frame and glass of optical from op no.2 at Haldwani in the month of Feburary 2016. It is further admitted fact that complainant sent the said product to op no.2 at Haldwani for repair through courier service of op no.1. After repair of optical, the op no.2 sent the same to the complainant through courier service from Haldwani but the product has not been delivered to the complainant. Since the product has been delivered to op no.2 by op no.1 and op no.2 sent the product to complainant through courier services from Haldwani which has not been delivered to complainant, this Forum has no territorial jurisdiction to decide the present complaint as op no.2 is carrying on its business at Haldwani and sent the product to the complainant from Haldwani. The op no.1 has discharged its duty by sending the product to op no.2. Either op no.2 or branch of courier company at Haldwani may be responsible for the loss of product of complainant against which this Forum lacks territorial jurisdiction. Moreover, branch of courier company of Haldwani is not a party to the present complaint. It cannot be said that for the lapses of same courier company’s branch, the op no.1 which is a branch at Kurukshetra is responsible for the loss of product. In this regard, we are fortified with the observations of the Hon’ble Supreme Court in case titled as M/S. Sonic Surgical vs National Insurance Company Ltd, CA No.1560 of 20014 decided on 20 October, 2009 in which it has been observed as under:-

“Learned counsel for the appellant then invited our attention to the amendment brought about in Section 17(2) of the Act in the year 2003. The Amended Section 17(2) of the Act reads 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 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 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;

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

 

The aforesaid amendment came into force w.e.f. 15.3.2003 whereas the complaint in the present case has been filed in the year 2000 and the cause of action arose in 1999. Hence, in our opinion, the amended section will have no application to the case at hand.

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 Gauhati 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. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

7.             In view of our above discussion, law laid by the Hon’ble Supreme Court and as per provisions of Section 11 of the Consumer Protection Act, 1986 this Forum has no territorial jurisdiction to try the present complaint. As such the application moved on behalf of op no.1 for dismissal of complaint is hereby allowed and resultantly, the present complaint is dismissed for want of jurisdiction. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.

 Announced in open Forum:

Dt.: 13.06.2019.                                          (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.