BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 29^th DAY OF JANUARY 2021

CONSUMER COMPLAINT NO.894/2018

PRESENT:                                                          

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.             ….        MEMBER

Mr.Avinash S.Jain,

Aged about 45 Years,

“Shanti Prasad”,

No.S-2, 5^th Cross,

Surabhi Residency,

Kirloskar Colony,

Basaveshwara Nagar,

(Rep by Sri.C.R.Ravishankar, Adv)

V/s

OPPOSITE PARTIES:

1. M/s Anant Cars Auto Private Limited,

No.151, Doraisanipalya,

Opp.IIM, Bannerghatta Road,

Rep by its Manager.

(Opposite Party No.1 placed Ex-parte)

2. M/s Mahindra & Mahindra Limited,

Auto Division, Plot No.A-1,

MIDC Phase IV,

Chakan Industrial Area,

Taluk:Khed, Pune-410501,

Maharastra State,

Represented by Managing Director.

(Opposite Party No.2 Sri.Rishabha Raj Thakur, Adv)

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

******

//ORDER ON I.A.NO.1 AND ON MAIN MATTER//

1. The Opposite Party No.2 by filing application under Section-11(1) of Consumer Protection Act, 1986 dt.01.10.2019 requests the then Forum to dismiss the complaint for want of Pecuniary Jurisdiction.

2. It is stated in the supporting affidavit that the Complaint has been filed for relief of either to refund the value of the vehicle Rs.16,34,254/- or provide new vehicle same model, interest at 2% p.m on this amount from the date of purchase till realization and compensation of Rs.2,00,000/-.  Accordingly, even interest at 2% p.m is calculated on Rs.16,34,254/- from the date of purchase on 12.05.2017, till filing the complaint on 23.05.2018, interest portion would be Rs.3,92,220/-.  The Complainant also claims Rs.2,00,000/- as compensation.  Therefore, the Opposite Party contends that the total claim on the date of filing the complaint would be Rs.22,26,474/- i.e., cost of the car Rs.16,34,254/-, Rs.3,92,220/- interest portion till filing the complaint and Rs.2,00,000/- towards compensation on the date of filing the complaint this Forum had Pecuniary Jurisdiction upto Rs.20,00,000/-.  Therefore, Opposite Party No.2 requests this Forum to dismiss the complaint. 

3. Despite sufficient opportunity granted to the Complainant, the Complainant fails to file objection to this IA as could be seen from order dt.14.11.2020. 

4. The Complainant claims the following relief in the complaint;

1. Directing the Opposite Parties to either to replace the defective Mahindra W10 Car bearing Registration No.KA-05-MV-3989 with a new good working, hassle-free road safety Mahindra W10 car for the use of the Complainant or alternatively to refund the value of the above said Mahindra Car together with interest thereon at 2% p.m from the date of purchase of car till the date of realization and also compensation of Rs.2,00,000/-, for the hardship, loss of interest and mental agony suffered by the Complainant and such other relies. 

5. The case of the Complainant in brief is as under:

The Opposite Party No.1 is the Dealer of M/s Mahindra Brand Cars and Opposite Party No.2 is the Manufacturer of such car.The Complainant has purchased a new Mahindra W10 Car bearing Reg.No.KA-05-MV-3989 on 12.05.2017 from Opposite Party No.1.Even though 1^st service was done after running of 5000 Kms, but Opposite Party No.1 failed to carry out all the required service.Subsequently, Opposite Party No.1 failed to attend the require problems and Opposite Party No.1 & 2 for sold defective car to the Complainant.The Complainant had put to most inconvenience due to the gross negligence and deficiency of service on the part of the Opposite Parties.Hence this complaint has been filed.

6. In response to the notice, the Opposite Party No.1 failed to appear before the Forum and Opposite Party No.1 has been placed                       ex-parte.

7. The Opposite Party No.2 files version.  The Opposite Party No.2 contends that the complaint has been filed with an intention to abuse of process of Court.   There are baseless allegations about manufacturing defect.  Whenever, the Complainant pointed out required repairs, Opposite Party No.1 had attended the same.  Infact, the Complainant’s above car travelled around 20,058 kms during 1^st year period from 12.05.2017 to 25.05.2018.  The Complainant has not obtained expert opinion.  There is no deficiency of service and negligence on the part of the Opposite Parties.  There is no manufacturing defect in the vehicle.  Therefore, Opposite Party No.2 requests this Commission to dismiss the complaint.

8. The Complainant has filed affidavit evidence and relies on 8 documents. The affidavit evidence of Authorized representative of Opposite Party No.2 has been filed.

9. Heard the arguments of both side.  We perused the records.

10.  The points that arise for our consideration are;

1. Whether this Forum had Pecuniary Jurisdiction to entertain the complaint on the date of filing the complaint on 23.05.2018?

2. Whether the Complainant proves deficiency of service and negligence on the date of the Opposite Parties ?

3. Whether the complainant is entitle to reliefs claimed in the complaint ?

4. What order? 

11. Our findings on the above points are as under:-

1. POINT NO.1           : Negative
2. POINT NO.2 & 3     : Do not survive for consideration
3. POINT NO.4            : As per the final order for

                                the following;

:REASONS:

12. POINT NO.1:- This point touches the question of ascertainment of value for pecuniary jurisdiction as well as I.A.No.1.  Even though, the Complainant has not shown the value of the car which he has purchased on 12.05.2017 in the complaint.  However, the Opposite Party after the evidence filed an Invoice showing value of the car worth of Rs.16,34,254/-.  The Complainant does not dispute this valuation. 

13. The Complainant claims either new car in replacement of defective car or alternatively to refund value of the car with interest at 2% p.m from the date of purchase, till filing the complaint and Rs.2,00,000/- as compensation.  It means the total claim of the Complainant would be Rs.22,26,474/- i.e., value of the car + Rs.3,92,220/- interest from the date of purchase till filing the complaint and Rs.2,00,000/- as compensation.  In order to appreciate the contention of the respective parties.  It is relevant to refer Section-11(1) of Consumer Protection Act, 1986 which reads thus;

 “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 rupees twenty lakhs”. 

14. The car is a movable goods and as per the provision of Consumer Protection Act, 1986, the consideration paid for the car was Rs.16,34,254/-.  The adding of the value of the price of the car interest at 2% p.m from the date of purchase, till filing the complaint + compensation amount would be more than Rs.20,00,000/-.  It means on the date of filing the complaint, this Forum had no pecuniary jurisdiction to entertain this complaint.  The question arises, whether this complaint can be returned by this Commission in view of new Consumer Protection Act, 2019 which had come into effect from 20.07.2020.  We are of the considered opinion that the new Act, 2019 has no retrospective effect to retain the complaint.  Eventhough, valuation for the purpose of pecuniary jurisdiction exceeds Rs.20,00,000/-.  When the 2019 Act has no retrospective effect, the Complaint can be returned for presentation before proper Commission.  This reasoning of us is supported by the order of the Hon’ble National Commission in the matter between M/s Sahyog Homes Limited and others V/s Manoj Shah and connected matters Diary No.13929-13932/NCDRC/2020, dt.12.10.2020.  This order has been circulated to this Commission.  The Hon’ble National Commission considering the earlier judgements of the Hon’ble Supreme Court of India upto 2017 categorically held that Consumer Protection Act, 2019 which had come into effect on 20.07.2020 has no retrospective effect. 
15. It is true that the Consumer Protection Act, 2019 had come into effect from 20.07.2020.  The Hon’ble National Commission reported in M/s Sahyog Homes Limited and others V/s Manoj Shah and connected matters while referring Section-107 of Consumer Protection Act, 2019 and Section-6 of the General Clauses Act categorically ruled that the Consumer Protection Act, 2019 has no retrospective effect.  It is relevant to refer Section-6 of the General Clauses Act which reads thus;

6.Effect of repeal-Where this Act, or any or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect:or

(b)affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder;or

(c) affect any right, privilege obligation or liability acquired, accrued or incurred under any enactment so repealed;or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed;or

(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

Any such investigation, legal proceeding or remedy may be instituted, continued or enforce, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 

16. It is also relevant to refer Section-107 of Consumer Protection Act, 2019 which reads thus;

107.Repeal and Savings-(1) Consumer Protection Act, 1986 (68/1986) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(3) The mention of particular matters in sub-section(2) shall not be held to prejudice or affect the general application of section-6 of the General Clauses Act, 1897 (10/1897) with regard to the effect of repeal.

17. As per Section-107(2) of 2019 Act anything done under the old Act will not be disbursed by the New Act, Section-6(b) of General Clauses Act also indicates that the new act will not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder.

18. All these aspects have been taken into consideration by the Hon’ble National Commission and held that new Act 2019 has no retrospective effect.  Under such circumstances, the total value of the claim made by the Complainant is Rs.22,26,474/-.    Eventhough, Section-34 of Consumer Protection Act, 2019 increases the jurisdiction of this Commission upto one crore.  On the date of new Act this proceeding was pending for consideration.  Therefore, even the pecuniary jurisdiction this Commission has been enhanced upto one crore with effect from 20.07.2020, but it does not give a right to this Commission to retain this proceedings.  As the new Act has no retrospective effect.  It is relevant to refer the observation of Hon’ble National Commission.  The relevant portion of Para-19 reads thus;

“from the date of filing of the complaint before the appropriate for a under the 1986 Act be it the District Consumer Disputes Reddressal Forum, the State Consumer Disputes Redressal Commission or the National Consumer Disputes Redressal Commission, unless the modification which has been made subsequently in the 2019 Act has been made retrospective in operation.In the present cases, the Provisions of the Second Proviso of Sub-Section(1) of Section-51 of the 2019 Act has not been made retrospective in operation and in view of the Sub-Section 3 of Section 107 of the 2019 Act as also Section-6 (c) and (e) of the General Clauses Act, 1897.

19. It is also relevant to refer the decision of Jammu and Kashmir High Court reported in 2020(4)CPR18(J & K) in the matter between Sajad Ahmad Malik & others V/s Divisional manager, National Insurance Company Limited and another. 

1. Jammu and Kashmir Reorganization Act, 2019- Section 13-Jammu and Kashmir Consumer Protection Act, 1987-Section 17-General Clauses Act, 1897-Section 6(c) and (e)-Appeal Jurisdiction of Court-these appeals arise out of the common order passed by the erstwhile Jammu and Kashmir State Consumer Disputes Redressal Commission in terms of Sectiion17 and have remained pending for adjudication before this Court for the last more than seven years-During pendency of these appeals, Parliament passed Jammu and Kashmir Reorganization Act, 2019, thereby leading to formation of two new Union Territories out of erstwhile State of Jammu and Kashmir, viz.,(i) Union Territory of Jammu and Kashmir with Legislature; and (ii) Union Territory of Ladakh without Legislature-Amendment of a Statute which is not retrospective in operation does not affect pending proceedings, except where amending provision/Act, expressly or by necessary intendment, provides otherwise-When a lis commences, all rights and objections of parties get crystalized on that date-All pending proceedings/appeals arising out of orders or awards passed by erstwhile Jammu and Kashmir State Consumer Disputes Redressal Commission are to continue to be heard and decided by this Court as if un-amended provision/Act is still in force.

2. Insurance Act, 1938 Section 45 Jammu and Kashmir Consumer Protection Act, 1987-Section 17-Insurance Insured building sustained heavy damage in encounter with terrorists-There was evidently a non-disclosure of earlier cover for insurance held by insured-Before a non-disclosure can be utilized as a ground to repudiate, it must pertain to a realm where it can be found that non-disclosure was of a circumstance or fact which would have affected decision of insurer regarding whether or not to grant a coyer-Insured must disclose to insurer all facts material to an insurer’s appraisal of risk which are known or deemed to be known b assured, but neither known or deemed to be known b insurer-Breach of this duty on part of insured, entitles insurer to avoid contract of insurance so long as he/she can show that non-disclosure induced making of contract on relevant terms-Relationship between an insurer and insured is recognized as one where mutual obligation of trust and good faith are paramount. 

20. The principle involved in this decision and order of the Hon’ble National Commission squarely apply to the present case on hand.  When the valuation for the purpose of pecuniary jurisdiction exceeds more than Rs.20,00,000/- on the date of filing this complaint, this Commission has no power to decide even new Act 2019 had come into force with effect from 20.07.2020, in the absence of retrospective effect.  Therefore, the complaint requires to be returned to the Complainant for presentation before Hon’ble State Commission of Karnataka.

21. POINT NO:2 & 3:-  It is settled proposition of law that when particular Court/Forum/Commission had no pecuniary jurisdiction to decide the case, it has no power to decide the case on merits.  Therefore, these two points do not survive for consideration. 

22. POINT NO.4:  In view of the discussion referred above, I.A.No.1 requires to be allowed and complaint requires to be returned to the Complainant for presentation before Hon’ble State Commission.  We proceed to pass the following;

I.A.No.1 is allowed.

The complaint is dismissed.Return the complaint to the Complainant for presentation before Hon’ble State Commission.

Return the original documents and extra copies to the Complainant and Opposite Parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 29^th day of January 2021)                                            

• M.B. SEENA )      (L.MAMATHA)      (K.S.BILAGI)    
•  

//ANNEXURE//

Witness examined for the complainants side:

Sri.Avinash S.Jain, who being the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Tax Invoice for purchase of Car.
2. Registration Certificate of Car.
3. Photographs of the Car.
4. Tax Invoices for Service Charges.
5. Email Communications.
6. Legal Notice dt.22.12.2017.
7. Postal Receipts.
8. Postal Acknowledgements.

Witness examined for the opposite party side:                  

 Sri.Manoj Kumar P, Authorized Signatory of the 2^nd Opposite Party has filed his affidavit.

Documents marked for the opposite parties side:

1. Tax Invoice dt.29.04.2017.
2. Copy of the email dt.01.08.2017.
3. Copy of the Job card dt.18.07.2017 and repair order dt.19.07.2017.
4. Copy of the email dt.19.10.2017 and 21.10.2017.
5. Copy of the relevant extract of terms and conditions of the warranty and Note 2 & Note.3 on warranty.
6. Copy of the job card and repair order dt.25.05.2018 and tax invoice dt.26.05.2018.

• M.B. SEENA )        (L.MAMATHA)              (K.S.BILAGI)    
•