BHAGWATI CHANDWANI vs SIPANI AUTOMOBILES LTD.

SMT. Bhagwati Chandwani has filed this complaint against (1) Sipani Automobiles Ltd., Bangalore (2) Sobhag Agencies Pvt. Ltd., Jaipur for reliefs mentioned in the penultimate para of the complaint. Opposite Party No. 1 is manufacturer of Montana diesel car and opposite party No. 2 is authorised dealer of opposite party No. 1. The complainant booked a car by depositing a sum of Rs. 10,000/- vide receipt No. 128257 dated 7.6.89. Opposite party No. 1 sent an allotment intimation card Annex. 2 stating that her allotment number is 043-N-00107. The balance of the amount of Rs. 1,06,650/- was deposited with opposite party No. 2 vide receipt No. 7504 dated 4.6.90. The complainant deposited a sum of Rs. 4,166/- for transportation charges. The delivery was given to the complainant on 10.8.90. The registration number given to the complainant was RJ 08/0020. The chassis number of the caris 9006000341 and engine No. is S/D/90/G/000305. The complainant deposited Rs. 3,200/- as registration charges and a sum of Rs. 4,093/- was deposited towards insurance charges. The complainant obtained the cover note. The complainant alleged that prior to delivery the car had already run 434 km. The period of warranty was six months from the date of sale or 8000 km. whichever is earlier. The car was delivered to the complainant at Jaipur. The car was taken from Jaipur to Bundi. It started giving trouble in the clutch. The complainant went to Bundi and put the car in his garage. He went to Opposite Party No. 2 and informed him about the defects in the vehicle. He repeated this three or four times. At the instance of opposite party No. 2 the complainant handed over the car to M/s. Pushpa Motors, Kota for repair. Some parts were also changed. A letter to this effect was given by opposite party No. 2 on 16.11.90 to the complainant in pursuance of her complaint. After repairs some trouble was noticed by the complainant. She repeatedly rang about the defects to Opposite Party No. 2. The vehicle was sent to Jaipur for repairs. It reached Jaipur on 23.10.90. It was repaired on 8.11.90. Opposite Party No. 2 changed some parts which were changed earlier vide letter dated 16.11.90 on complaint dated 4.9.90. Some more parts were changed. It is said that on account of certain mechanical manufacturing defects in the vehicle the "tie-rod end was broken and due to which main engine chassis was got down". Thus, the vehicle was defective. The complainant sent a notice through Counsel by registered post on 1.1.91. Opposite Party No. 2 sent reply dated 4.1.91 and informed the complainant to contact M/s. Pushpa Motors, Kota for checking. It refused to take the complaint. The complainant sent notices to both the opposite parties through telegram asking them to send the mechanic or to change the car or to return the money. The complainant alleged that she spent a sum of Rs. 1,28,049/-. Rs. 5,000/- were spent for repairing purposes. He could not avail of the car even after spending a huge amount, as the car did not render proper service. He, therefore, filed a complaint for Rs. 1,28,049/- + Rs. 5,000/- being the amount incurred on repairs. Besides this Rs. 10,000/- for mental agony and interest @ 18% p.a. from the date of the initial deposit for booking of the vehicle were claimed. A prayer was also made that the opposite parties may be directed to replace the car and to pay the damages to the complainant. Photostat copies of the documents were submitted marked as Annexs. 1 to 9.

VERSION of the case was filed on behalf of opposite parties. A preliminary objection was taken that at the time of booking it was agreed that any dispute regarding this booking shall be subject to Bangalore Courts jurisdiction and, therefore, the State Commission of Rajasthan has no jurisdiction to hear the complaint. On merits, it was pleaded that the two conditions of the warranty had expired. It was submitted that the complainant''s driver was a driver of truck and opposite party No. 2''s manager saw him driving the car and he told the complainant not to give car to him for driving but the complainant did not care. The car went out of order due to bad driving which was repaired. It was submitted that the car was alright. There was no manufacturing defect and if there is any defect the opposite parties are ready to repair or replace the car. On receipt of the telegram opposite party No. 2 sent his mistry Shri Panchulal to Bundi who saw the car in running condition. He wanted to take the carto Jaipur for checking but the complainant refused. The car was being used by the complainant and it was in running condition. The version of the case so filed was stated to be on behalf of both the opposite parties as is evident from the order sheet dated 27.9.91. With the version of the case the opposite parties submitted proposal form and photostat copies of three job cards. The complainant submitted her affidavit and also the affidavit of Harikishan. Photostat copy of the driving license was also submitted. On behalf of the opposite parties affidavit of Shri Bhagwan Swaroop Mathur was submitted. Besides the aforesaid oral and documentary evidence parties did not produce any other evidence.

We heard Mr. S.K. Jain, Advocate for the complainant and Mr. M.R. Singhvi, Advocate for the opposite parties.

MR. M.R. Singhvi learned Counsel for the opposite parties argued that the State Commission of Rajasthan has no jurisdiction to entertain, hear and decide the complaint. Sec. 11 of the Act deals with the jurisdiction of the District Forum. By virtue of Sec. 18 of the Act the procedure specified in Sees. 12, 13 and 14 and under the Rules made thereunder for the disposal of the complaint are, with such modifications applicable to the disposal of the complaints by the State Commission. In regard to territorial jurisdiction provisions have been made in Sub-section (2) of Sec. 11 of the Act which is as under- "(2). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction - (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 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 personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."

The provisions are in pari materia with Sec. 20 of Civil Procedure Code. It is true that the cause of action in part has arisen within the jurisdiction of the State Commission. Nonetheless the complaint under Sec. 11(2) could be filed in case of 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 personally works for gain. Clause(b) of Sub-section 2 of Sec. 11 provides that 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 personally works for gain, provided that in such a case the permission is accorded or the opposite parties who do not resides or carry on business or personally work for gain, acquiesce in such institution." In this connection he invited our attention to condition No. 7 printed on the application form dated 7.6.89. Condition No. 7 reads as follows : - "(7). In case of any dispute the same will be subjected to the jurisdiction of Courts at Bangalore." The application form is signed by the husband of the complainant. In the main form it is written that "I have read the instructions printed overleaf and agree to all the terms and conditions." The husband of the complainant while booking the car for the complainant had agreed to condition No. 7 printed on the reverse of the application form when he paid the initial amount of Rs. 10,000/-. The complainant in her affidavit has admitted that the delivery of the car was taken by the husband. She has no where stated that condition No. 7 was not agreed to by her husband. On the contrary Shri Bhagwan Swaroop Mathur Manager of opposite party No. 2 has clearly stated that at the time of booking of the car, it was agreed that if there is any dispute it will be decided by a Court situate at Bangalore. This is amply borne out from the application form. By this clause jurisdiction of Redressal Forum of Rajasthan was excluded. Reference in this connection may be made to 1983(4) Supreme Court Cases 707. In 1967 R.L.W. 129, Jagat Narayan, J. (as he then was) observed as under- "It will thus be seen that wherever on the face of the ticket words to the effect "For conditions see the back" are printed the person concerned is as a matter of law held to be bound by the conditions subject to which the ticket is issued whether he takes care to read the conditions if they are printed on the back or to ascertain them if it is stated on the back of the ticket where they are to be found. Where on the other hand the words printed on the face of the ticket do not indicate that the ticket is issued subject to certain conditions as in Parker v. The South Eastern Railway Company (1), but there are merely words to the effect "See back" then it is a question of fact whether or not the carrier did that which was reasonably sufficient to give notice of the conditions to the person concerned. If however conditions are printed on the back of the ticket, but there are no words at all on the face of it to draw the attention of the person concerned to them then it has been held that he is not bound by the conditions. In this connection the decision in Henderson v. Stevenson (7) may be referred to. In the present case on the face of the ticket there was a declaration to the effect that the consignor was fully aware of and accepted the conditions of carriage given on the backside of the consignment receipt. Any prudent consignor would read the ticket to see that his goods and the transport charges payable were correctly entered in it and in doing so he would read the above declaration or if he did not know English he would have the ticket read by someone else knowing English who would come to know that it was subject to the conditions printed on the back. As was held in Stewart v. London and North Western Ry. Co. (4) that a man must be taken to know that which he has the means of knowing, whether he has availed himself of those means or not. If he does not he must bear the consequences of his carelessness. The consignor in the present case will be deemed to know of the conditions subject to which the ticket was issued and is bound by them. The consignee is equally bound by these conditions."

While considering Sec. 21 C.P.C. the learned Judge held that when there is an agreement restricting jurisdiction to Courts at one place only, then the other Courts have no jurisdiction to try the suit. This matter was again examined by Gupta J. in 1983 RLW 567. In that case goods were entrusted at Ahmedabad to Transport Co. Transport Company issued receipt to the consignor on terms and conditions printed thereon. One of the conditions was regarding restricting jurisdiction to Courts in Delhi City only. The consignee filed the suit for value of goods in Jaipur. It was held while following 1967 RLW 129 that Courts at Delhi only have jurisdiction. The learned Judge observed in para 5 of the report as follows : - "It is settled law now that when a contract for carriage of goods is entered into and the transport company accepts the carriage of consignment on the terms and conditions printed on the back of the goods receipt and it also printed on the face of the goods accept that the terms and conditions printed overleaf shall be binding on the parties and the consignment was accepted and booked on those terms and conditions, then the consignor is bound by such conditions whether he cares to read them or not and whether he signs the goods receipt or not. The issue of goods receipt is regarded as an offer by the Transport Company and if the consignor took the same after delivery of the goods to be carried to the Transport Company and retained such goods receipt for the carriage of the consignment without any objection, then this act on the part of consignor amounts to acceptance of the offer made by the Transport Company regarding the carriage of the goods."

THERE is an authority of the Apex Court of the country. Sees. 19 and 20 C.P.C. came up for consideration before the Supreme Court in 1983 (4, Supreme Court cases 707). It was ruled that parties can by agreement opt for jurisdiction of Courts atone particular place of suing excluding other places which are otherwise open to them for suing. The relevant observations are in para 3 of the report which reads as under- "(3). It is now settled law that it is not competent to the parties by agreement to invest a Court with jurisdiction which it does not otherwise possess but if there are more than one forums where a suit can be filed, it is open to the parties to select a particular forum and exclude the other forums in regard to claims which one party may have against the other under a contract. Clause 17of the Contract of Carriage could therefore, validly confer exclusive jurisdiction on the Court in Jaipur City only if it could be shown that the Court in Jaipur City would have jurisdiction to entertain the suit filed by the respondents against the appellant. It is true and there we agree with the respondents that no part of the cause of action in the present case arose in the City of Jaipur, and, therefore, the jurisdiction of the Court in Jaipur City could not be invoked on the ground that the cause of action or a part thereof has arisen in Jaipur. But the jurisdiction of a Court whether under Sec.19 or Sec.20 of the CPC can also be invoked on the ground that the defendant resides or carries on business or personally works for gain within the jurisdiction of the Court and here it could not be disputed that the appellant does not carry on business in the City of Jaipur and if that be so, there can be no doubt that the Court in Jaipur City would have jurisdiction to entertain the suit filed by the respondents against the appellant. In that event, Clause 17 of the Contract of Carriage conferring exclusive jurisdiction on the Court in Jaipur City and excluding the jurisdiction of other Courts would be valid and effective."

Reference may also be made to AIR. 1989 SC 1239 wherein Sec. 2(a), Sec. 23 and Sec. 28 of the Contract Act and Sec. 20(c) of the Civil Procedure Code were considered. It was held that where there are two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agreed to vest jurisdiction on such Court to try the dispute which might arise as between themselves, the agreement would be valid." It was observed in Uttam Bharat Electricals v. M/s. Jaipur Golden Transport Company and Another (Complaint case No. 11/91 decided on Feb. 20, 1992), by the State Commission as under- "It is thus clear that though by virtue of Sec. 11(2) of the Act the complaint could be filed either in Rajasthan or at Delhi but on account of the condition referred to above, in G.R./L.R. the parties opted for jurisdiction of the Redressal Forum/State Commission at Delhi excluding others which were otherwise open to them for suing. As stated above the registered office of the complainant as per the complaint is at Roshanara Road, Delhi-7. The goods receipt provided that the Courts of Delhi City alone shall have jurisdiction in respect of all claims and matters arising under the consignment or in respect of the goods entrusted for transport. Parties by agreement excluded the jurisdiction of the other Redressal Forums/State Commissions where otherwise the complaint could be filed."

ON the basis of condition No. 7 we hold that as the dispute has been arisen with respect to Montana Car purchased by the complainant, it is subject to the jurisdiction of the Courts at Bangalore. It cannot be entertained by the State Commission of Rajasthan. It is ordered that the complaint alongwith the documents submitted by the complainant shall be returned to the complainant for representation to a competent Redressal Forum after retaining a photostat copy of the complaint and endorsing on it the date of presentation, the date of order and the date of return. As order for return is being passed it is not necessary to go into the merits of the complaint.

IT is ordered that the complaint be returned. There will be no order as to costs. Complaint returned.