BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint Case No.33 of 2018.
Date of institution: 18.01.2018.
Date of decision:05.07.2019.
Hardeep Singh son of Sh. Joginder Singh r/o Village Mandi Sadran, Tehsil Guhla, District Kaithal.
…Complainant.
Versus
- Tata Motors Ltd. Jamshedpur (Jharkand) through its Managing Director.
- M/s. Daisy Motors, 12 KM Stone, Delhi Bypass, near TP Gate 1, Hisar, 125005 (Haryana) through its Owner/Proprietor/Partner/Director (Mobile No.91-222801, 098969-10849).
- M/s. Daisy Motors (Commercial Vehicle Dealer), Jind Bye Pass, near Delhi Public School, Rohtak through its Owner/Proprietor/Partner/Director.
- HDB Financial Services, Cheeka, District Kaithal through its Branch Manager.
- United India Insurance Company Ltd., Kaithal Branch through its Branch Manager.
….Respondents.
Before: Sh. D.N.Arora, President.
Sh. Rajbir Singh, Member.
Smt. Suman Rana, Member.
Present: Sh. Hem Raj Wadhwa, Advocate, for the complainant.
Sh. Sanjeev Saini, Advocate for the OP.No.1.
Ops No.2 to 4 exparte.
Sh. M.R.Miglani, Adv. for Op No.5.
ORDER
D.N.ARORA, PRESIDENT
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986 with the averments that the complainant is running transport at Cheeka and has already LPT Tanker for transport of Indian Oil. It is alleged that the Ops No.1 to 3 met the complainant on 30.12.2017 to purchase a Tata LPT 1613 and assured that the Op No.2 will provide loan facilities from the Op No.4. The Op No.2 told the total sale price of said tanker to the tune of Rs.13,30,000/-. The Op No.4 issued D.O. to the Op No.2 for sanctioning of the loan to the complainant and the Op No.2 has taken Rs.15,000/- as advance amount through RTGS/NEFT from the account of complainant in favour of account of Op No.1 and the Op No.2 assured that the said amount will be adjusted in the sale price of said tanker. After receiving the amount of Rs.15,000/, the Op No.2 has sent message by mentioning the chassis No.MAT373360H2P24479 and Engine No.75NY111475 of the said tanker. It is further alleged that as per the instructions of Ops No.2 to 4, the complainant has insured the said tanker bearing temporary registration No.HR99-TP-6546 with the Op No.5 for the period from 30.12.2017 to 29.12.2018 and the complainant has paid Rs.49,757/- to the Op No.4. The complainant has given an advance of Rs.50,000/- for built of body on the said tanker to M/s. Jeeta Body Maker, Rohtak Road, Jind. The complainant has also given an amount of Rs.1,00,000/- to Vishwakarma Welding Works, Ambala Chandigarh Road,Lalru Mandi vide receipt dt. 02.01.2018. It is further alleged that the complainant visited the Ops several times but the Ops did not deliver the vehicle in question to the complainant. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint. Hence, this complaint.
2. Upon notice, the OPs No.1 & 5 appeared before this Forum, whereas Ops No.2 to 4 did not appear. Ops No.2 & 4 were proceeded against exparte vide order dt. 12.10.2018, whereas Op No.3 was proceeded against exparte vide order dt. 10.01.2019. Ops No.1 & 5 contested the complaint by filing their replies separately. Op No.1 filed the reply raising preliminary objections that the present complaint is without any cause of action against the answering Op. It is apparent from the pleadings in the complaint that no cause of action has arisen for filing of complaint against the answering Op; that this Forum has no territorial jurisdiction to entertain and try the present complaint. It is submitted that the answering Op is not having any office within territorial jurisdiction of this Forum; that the present complaint is bad for mis-joinder of parties. It is submitted that the answering Op is the manufacturer of the Tata make vehicles, has nothing to do with the present controversy; that there is no deficiency in service on the part of Ops. On merits, the objections raised in the preliminary objections are reiterated and so, prayed for dismissal of complaint.
3. Op No.5 filed the reply raising preliminary objections with regard to maintainability; cause of action; locus-standi and evasively denied all the facts contained in the complaint and so, prayed for dismissal of complaint.
4. The complainant tendered into evidence affidavit Ex.CW1/A and documents Ex.C1 to Ex.C10 and thereafter, closed the evidence.
5. On the other hand, the Op No.1 tendered into evidence affidavit Ex.RW1/A and thereafter, closed the evidence. The Op No.5 did not adduce any evidence despite availing several opportunities, so, the evidence of Op No.5 was closed vide court order dt. 09.05.2019.
6. We have heard the learned Counsel for both the parties and perused the record carefully.
7. From the pleadings and evidence of the case, according to the complainant, the Ops No.1 to 3 met him on 30.12.2017 to purchase a Tata LPT 1613 and assured that the Op No.2 will provide loan facilities from the Op No.4. The Op No.2 told the total sale price of said tanker to the tune of Rs.13,30,000/-. The Op No.4 issued D.O. to the Op No.2 for sanctioning of the loan to the complainant and the Op No.2 has taken Rs.15,000/- as advance amount. After receiving the amount of Rs.15,000/, the Op No.2 has sent message by mentioning the chassis No.MAT373360H2P24479 and Engine No.75NY111475 of the said tanker. The grievance of the complainant is that the Ops did not hand over the delivery/possession of tanker.
The Ops have taken the two objections that the present complaint is not maintainable being commercial transaction and the complainant does not fall within the definition of consumer and another objection is that this Forum has no jurisdiction to entertain and try the present complaint.
8. Before deciding the case on merits, we have to decide the objections taken by the Ops as mentioned above. We have perused the case file. Firstly we take the objection regarding the point of commercial activity. The complainant has himself mentioned in para No.3 of the complaint that he is running transport at Cheeka, Distt. Kaithal and he has already LPT Tanker for transport of Indian Oil. He has not mentioned in his complaint that he was doing the business for earning his livelihood. The admission of the complainant shows that the vehicle has been purchased for commercial purpose. So, we are of the considered view that the complainant is no consumer of Ops as enshrined in Section 2(1)(d) of Consumer Protection Act, 1986 and amended upto date. As per the definition of “Consumer” under Section 2(1)(d) of Consumer Protection Act, 1986, the “consumer” means any person who:
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires (or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires (or avails of) the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purposes).
(Explanation: For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment).
8. Now we come on the other point regarding jurisdiction. The complainant contended that he got financed the vehicle from the Op No.5 and the Op No.5 has its office at Kaithal, so, this Forum has jurisdiction to entertain and try the present complaint. From the pleadings, it is clear that the office of Op No.2 is situated at Hissar and office of Op No.3 is situated at Rohtak. In view of the authority reported as Sonic Surgical Vs. NIC, 2010(1) CLT page 252, this forum at Kaithal has no jurisdiction because in the said authority, it has been observed by Hon’ble Supreme Court that Territorial jurisdiction-Insurance Claim-Cause of action-The fire admittedly broke out in the godown of the appellant at Ambala-The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala-Since no cause of action arose in Chandigarh, the State Consumer Redressal Commission, Chandigarh has no territorial jurisdiction-State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint-Do not see any reason to interfere with the impugned order of the National Commission. According to Section 11(2) of Consumer Protection Act, 1986, the Ops should, at the time of institution of complaint actually and voluntarily reside or carry on business or has a branch office in the jurisdiction of the Forum. Secondly, the cause of action should arise within the limit of this Forum. In the present case, the basic claim of the complainant regarding delivery of vehicle in question from whom he had to purchase the vehicle from the Ops No.2 & 3 but the Ops No.2 & 3 neither actually and voluntarily resides or carries on business or has a branch office within the territorial jurisdiction of this Forum nor the complainant has pleaded that how the cause of action has arisen within the territorial jurisdiction of this Forum. So, no cause of action has arisen within the territorial jurisdiction of this Forum. Hence, the Distt. Forum at Kaithal did not have jurisdiction to deal with the complaint. So, the complaint filed by the complainant before this Forum does not lie.
9. Thus, as a sequel of above discussion, we find that this Forum has no territorial jurisdiction to entertain and try the present complaint and the present complaint is also not maintainable being commercial transaction and hence, the present complaint is hereby dismissed on both the above-said grounds. No order as to costs. However, the complainant is at liberty to approach the court/forum of competent jurisdiction, if so desired. Liberty is granted to complainant for filing of fresh complaint remedies available under the law before appropriate Court/Forum. The period during which the present complaint remained pending before the Forum is exempted in terms of the judgment of Hon’ble Supreme Court of India in the case titled “Luxmi Engineering Works Versus PSG Industrial Institute, reported in 1995(2) SCC, page 583”. A copy of said order be supplied to the parties free of costs. File be consigned to record-room after due compliance.
Announced in open court:
Dt.:05.07.2019.
(D.N.Arora)
President.
(Suman Rana), (Rajbir Singh)
Member Member.
