Mr.Melwyn Sequeira,

Aged about 40 years,

S/o. Thomas Sequeira,

R/A. Sequeira Compound,

Padamale Post, Neermarga,

Mangalore. …….. COMPLAINANT



(Advocate: Sri. S.K. Ullal).



VERSUS



1. Otto Bock India Private Limited,

“Sai Sathkar” 2 (Old 16),

Rest House Crescent,

Behind Times of India,

M.G. Road,

Bangalore – 560 001,

Represented by its Centre Manager.



2. Otto Bock India Private Limited,

Head Office, Mumbai.

Represented by its centre Manager.

3. Otto Bock Health Care Products GmbH,

Kaiserstra Be 39 – 1070,

Wien – Austria. ……. OPPOSITE PARTIES

The Complainant submits that, he has lost his hand in an accident which occurred on 22.2.2006 at Dubai and his left hand amputated and doctors advised to have myo electric above elbow prosthesis with ergo arm electronic plus elbow with sensor hand speed. Opposite Party No.3 is the manufacturer of the above said product and Opposite Party No.2 is the main distributor in India and Opposite Party No.1 is the main dealer at Karnataka State.

The Complainant submits that he had ordered the above said product through Opposite Party No.1 and paid Rs.7,45,000/- and on 30.8.2006 the Opposite Parties have supplied the above said product and immediately after receiving the above said product it was fitted to Complainant’s hand. It is alleged that during the fitment the Complainant felt problems with the prosthesis and the same was brought to the knowledge of the Opposite Parties and they have advised the Complainant to return the same to them for rectification and thereafter Opposite Parties sent to Germany as there was defect in auto grip function and thereafter they returned the above said product to the Complainant stated that the defect was rectified. But it is alleged that within a short time after fitment of the prosthesis for the 2nd time again Complainant felt that prosthesis was not functioning properly and again he approached the Opposite Parties they have found defects in the wiring of the elbow joint of the prosthesis and to rectify the same the Opposite Parties demanded payment of Rs.25,000/-.

It is alleged that the above said product is the sub-standard and has manufacturing defect and thereafter the Complainant issued a legal notice to the Opposite Parties to refund the money but the Opposite Parties failed to supply the same and hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.7,45,000/- the cost of the machine along with interest at 18% p.a. and also to pay Rs.5,06,000/- as compensation and cost of the proceedings.

2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version and admitted that the 1st Opposite Party is the branch office of Opposite Party No.2 and Opposite Party No.3 is the manufacturer and it is admitted that the Complainant purchased the above elbow prosthesis and after satisfaction the same has been delivered to the Complainant along with the warranty card. It is submitted that in the warranty card it has mentioned that the parts are not covered under warranty.

And it is further submitted that the Opposite Party before implanting/fitting to the Complainant they had given training to the customer at Bangalore and the Complainant purchased the elbow prosthesis in Bangalore and this Hon'ble Forum has no territorial jurisdiction to entertain the complaint and also contended that there is no manufacturing defect in the above said product on account of the misuse, negligence and lack of care damage caused to the said prosthesis and got it damaged.

The warranty does not cover the physical damage done to the prosthesis and further submitted that the prosthesis was repairable on which estimate was given to the Complainant for which the Complainant has reluctant to pay therefore the same is unusable. And further submitted that the Opposite Parties have offered free of repair to the Complainant as a goodwill gesture but the Complainant refused to respond and submitted that there is no deficiency in service whatsoever and prayed for dismissal of the complaint.


3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether this Forum has territorial jurisdiction to entertain the complaint?

(ii) Whether the Complainant proves that Trans Humeral Myo Prosthesis (artificial hand) supplied by the Opposite Parties suffers from manufacturing defect?

(iii) If so, whether the Complainant is entitled for the reliefs claimed?

(iv) What order?

4. In support of the complaint, Mr.Melwyn Sequeira (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C3 were marked for the Complainant as listed in the annexure. One Sri.Chitrasagar Shetty (RW1), Centre Manager/Officer/Authorized Representative of the Opposite Party No.1 to 3 filed counter affidavit and answered the interrogatories served on him. Both parties have produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Negative.

Point No.(ii) & (iii): As per the final order.
Reasons

5. Point No. (i):

In the present case, the first point raised by the Opposite Party is that whether this Forum has Territorial jurisdiction to entertain the complaint before this FORA? Before discussion on the point, we hereby reproduce Section 11 of the Consumer Protection Act for better appreciation:

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

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

From the above definition it is very clear that the complaint shall be instituted in a FORA within the local limits of whose jurisdiction the Opposite Party/Opposite Parties actually and voluntarily resides or carries on business or has a branch office or personally works for gain or any of the parties where there are more than one actually and voluntarily resides or carries on business or has a branch office or the cause of action wholly or in part arises.

In the instant case, admittedly the Complainant purchased the myoelectric above Elbow Prosthesis with Ergo Arm Electronic Plus Elbow with Sensor Hand Speed from the 1st Opposite Party. It is admitted by the Complainant that the 1st Opposite Party is the main dealer in Karnataka state situated at Bangalore and the 2nd Opposite Party is the main distributor of the above products situated at Mumbai and the above said product was manufactured by Opposite Party No.3 situated at Wein-Austria. It is undisputed fact that there was no branch offices of the Opposite Parties carries on business within the jurisdiction of this Forum we can say in Dakshina Kannada District. Before implanting/fitting the above product (artificial hand) the Complainant has taken training with the 1st Opposite Party in Bangalore and the same was fitted to the Complainant’s hand in Bangalore.

The Complainant in the present case contended that Rs.7,45,000/- payment was made to the 1st Opposite Party to purchase the above said product and demand draft was drawn in Mangalore and hence it is contended that this FORA has jurisdiction. No doubt, the demand draft has drawn in Mangalore but the payment was made we can say demand draft was payable at Bangalore. Demand draft can be drawn any where in India the same will not attract the jurisdiction but the only point for consideration is that the demand draft is payable at particular place is considered as the place of cause of action. But in the present case, the demand draft drawn in Mangalore but the amount payable at Bangalore and the entire cause of action arose in Bangalore not within this jurisdiction. And further we have noted that the Complainant can very well approach the territorial jurisdiction where the Opposite Party carries on business and it will be more easier to the Complainant to execute the order in later stage if at all the complaint is considered.

In view of the above discussions, we are of the considered opinion that this FORA has no territorial jurisdiction to consider the complaint and the entire cause of action arose outside the territorial jurisdiction of this FORA. In view of the above findings, we close the complaint with the direction to the Complainant to present the complaint before the proper authority for the adjudication of the matter. No order as to costs.

Since this FORA has no territorial jurisdiction we have not discussed rest of the issues.

The time spent before the FORA to be condoned under Section 14 of the Limitation Act.

6. In the result, we pass the following:

ORDER

The complaint is closed. The Complainant is hereby directed to present the complaint before the proper authority for the adjudication of the matter. No order as to costs.