State Consumer Disputes Redressal Commission, Hyderabad

State Consumer Disputes Redressal Commission, Hyderabad

Syed Abdullah, Presiding Member and R Lakshminarsimha Rao, Member

G Krishna Murthy Naidu –Appellant

Versus

Haragopal Auto Motors and Ors – Respondents

Appeal No. 1090 of 2007

Decided on 8.2.2010

Consumer Protection Act, 1986, Section 11(2)-Jurisdiction -Appellant purchased Yamaha Crux-R in exchange of Hero Honda Motorcycle from Respondent No. 1 - Respondent No. 2 is manufacturer - Respondent No. 3 is sales and service outset of Respondent No. 2 at Parvathipuram within the limits of jurisdiction of District Forum Vizianagaram - Complaint can be entertained by the District Forum Vizianagaram - Matter remanded to District Forum for de-novo inquiry.

(Para 9)

Result: Appeal allowed.

Important Point

A complaint shall be entertained by the District Forum in local limits whereof the opposite party carries on its business.

Order (Oral)

R Lakshminarsimha Rao, Member - The Complainant is the Appellant. The Appellant challenges byway of filing this Appeal, the order of dismissal of his complaint by the District Forum, Vizianagaram in C.D. No. 145 of 2005.

Briefly stated, the facts of the case are that the Appellant purchased Yamaha Crux-R in exchange with his Hero Honda motorcycle and paid on 13.1.2004, the balance amount after adjusting the amount of Rs. 16,000 towards the cost of the Hero Honda motorcycle. The Appellant purchased the Yamaha motorcycle from the Respondent No. 1. Soon after taking delivery of the vehicle, the Appellant found a defect in its silencer and complained of the same to the Respondent No. 1 who replaced the silencer with a new silencer. Thereafter, for about six months there was no problem or complaint in respect of the vehicle. During the fourth service at Parvathipuram, the silencer and gear case were found defective.

The Appellant brought to the notice of the third Respondent the defects in the vehicle and he also informed the same to the Respondent No.1. The third Respondent directed the Appellant to the first Respondent who in the first week of January 2005 agreed to replace the silencer and gear case of the motorcycle within a month therefrom. For about three months, the Appellant could not approach the first Respondent as he was suffering from severe back pain. On 1.4.2005, when the vehicle was taken to the Respondent No. 1, the problem of the vehicle was entered in the showroom garage record. But, half an hour later the Respondent No. 1 refused to replace the two items despite the warranty provided on the vehicle. The Appellant got issued a notice through Parvathipuram Divisional Consumers Welfare Council to the Respondent Nos. 1 and 2. Neither the Respondents give any reply nor did they pay the cost of the silencer and gear case to the Appellant. The fourth and fifth service of the vehicle was done by the Respondent No. 3 and during the fourth service, the defect in the silencer and gear case was found at the third Respondent's showroom, which is the sub-dealer of the first Respondent. The Respondent Nos. 2 and 3 remained ex parte.

The Respondent No. 1 resisted the claim contending that the Appellant purchased the motorcycle having made the physical verification of the vehicle. The Appellant approached the first Respondent and demanded replacement of the silencer and gear case stating that he is a practising advocate at Parvathipuram and he would file a case against the Respondent No. 1 in the Court of law. On examining of the vehicle by the staff of the Respondent No. 1, nothing was found defective. If the spare parts were found defective beyond repairs, then replacement will be done within warranty period. The Appellant got issued legal notice and after receipt of the notice, the Respondent No.1 offered to rectify any defect in the spare parts, if, at all, there was a defect. The District Forum, Vizianagaram has no jurisdiction to try the matter since the Appellant purchased the motorcycle from the Respondent No. 1 at Visakhapatnam. Hence, prayed for dismissal of the complaint.

The Appellant has filed his affidavit in support of his claim and the documents Exbs. A1 to A8. The District Forum dismissed the complaint opining that it has got no territorial jurisdiction to try the matter.

Feeling aggrieved by the order of the District Forum, the Complainant has filed the appeal contending that he had purchased the motorcycle from the Respondent No. 1 at Visakhapatnam and entrusted it for service to the Respondent No. 3, who found the silencer and gear case of the vehicle defective. The third Respondent is the sale and service outlet of the Respondent No. 2 and conducting its business at Parvathipuram, as also the defect in silencer and gear case of the vehicle was found at Paravathipuram.

In spite of giving sufficient time, both the parties have been absent. Hence, the matter has been taken for disposal on merits.

The point for consideration is whether the impugned order suffers from any defect of appreciation of facts and law?

The Appellant purchased Yamaha Crux-Ron 13.1.2004 from the Respondent No. 1 in an exchange offer, whereunder he had delivered his Hero Honda motorcycle, cost of which valued at Rs. 16,000 was adjusted to the cost of the Yamaha motorcycle. The balance amount was paid by the Appellant on the date of delivery of the Yamaha Crux-R motorcycle to him by the Respondent No. 1. The Appellant had taken the vehicle to the Respondent No. 1 for the service for the first three times and he had taken the vehicle for the fourth service to the Respondent No. 3. The Respondent No. 3 is described as the sales and service outlet of the Respondent No. 2, who is the manufacturer of the motorcycle in question. The Respondent No. 3 has chosen not to contest the claim. The Respondent No. 1 has not denied that the Respondent No. 3 is its sub-dealer and sales. It is the service outlet of the Respondent No. 2. It is the contention of the Appellant that the cause of action for filing the complaint has arisen at Parvathipuram. Also, the Respondent No. 3, the sales and service outlet of the Respondent No. 2 has been carrying on its business at Parvathipuram within the limits of the jurisdiction of the District Forum, Vizianagaram and, as such, the District Forum, Vizianagaram has jurisdiction to entertain the complaint.

Section 11(2) of the Consumer Protection Act deals with the jurisdiction of the District Forum in regard to the complaint to be lodged before it. Section 11 of the said Act reads as follows:

11.

Jurisdiction of the District Forum:

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 work 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.

There is no denial of the fact that the Respondent No. 3 at Parvathipuram is the sales and service outlet of the Respondent No. 2 and has been carrying on the sales of the vehicles manufactured by the Respondent No. 2. Also Respondent No. 3 has undertaken the service of the vehicle sold by the Respondent No.1. In view of Section 11(2) of the Consumer Protection Act, the complaint can be entertained by the District Forum, Vizianagaram. Hence, we deem it a fit case to be remanded to the District Forum for de-novo inquiry.

10.

In the result the appeal is allowed by setting aside the order passed by the District Forum. The matter is remitted to the District Forum, Vizianagaram with a direction to dispose it of within 3 months from the date of receipt of the order. The parties shall not insist on issuing of fresh notice by the District Forum and they should appear on 26.2.2010 before the District Forum.

Appeal allowed.