CALCUTTA PIPE FITTINGS CO. vs V.RAMALINGAM

THIS appeal is directed against the order dated 29th day of July, 1997 in O.P. No. 90/ 96 on the file of the District Consumer Disputes Redressal Forum, Nagapattinam.

THE appellant is the first opposite party. THE first respondent is the complainant while the second respondent is the second opposite party. The short facts leading to the filing of this appeal may in brevity be stated for the better appreciation of the issue involved for consideration in the instant action.

The second opposite party M/s. Rocket Engineering Corporation Limited, having its office at 1328/23, Y.P.N. Power Nagar, Kolhapur-416 001, is the manufacturer. The first opposite party M/s. Calcutta Pipe Fittings Company, having located its office at 7/28, Old Post Office Road, Coimbatore-18, is the dealer of the second opposite party. The complainant, one V. Ramalingam is a resident of South Village, Thanikottagam, Vedaranyam Taluk.

THE complainant, it appears, placed an order with the first opposite party-dealer on 26.12.1995 for the supply of 5 H.P. pump set and accessories manufactured by the second opposite party and paid the necessary and requisite price for the purchase of the said pump set. THE consignment was sent by the first opposite party, dealer to the complainant to Vedaranyam and it was received on 30.12.1995. THE complainant found the pump set and accessories delivered to be defective and as a matter of fact the flywheel was found to be bent and consequently, it was not functional. THE complainant reported such defective nature of the pump set to the first opposite party who in turn, agreed to send Service Engineer for rectification, but it was not done so. On a subsequent report, the first opposite party informed the complainant that the second opposite party manufacturer must have to be contacted for rectification and no claim can be made against them. The complainant would claim that there is deficiency in service on the part of the opposite parties. Consequently, he knocked at the doors of the Forum below by launching of a complaint as against the opposite parties praying for a direction to be issued against them for taking back the pump set and replace the same without any defect or to refund the sale price with other incidental or accidental relief of damages and costs.

THE first opposite party in pith and substance would contend that there is no defect in the flywheel of the engine and consequently there is no deficiency in service on their part. What is further contended by them is that the Forum before which the complaint had been instituted, has no territorial jurisdiction to entertain the claim and the claim as against them cannot at all be sustained. THE complaint as such is liable to be dismissed with costs. The second opposite party did not at all come forward to contest the complaint. The Forum below on consideration the materials placed on record, exonerated the second opposite party and held that the first opposite party dealer alone is liable to rectify the defects in the 5 H.P. pump set sold with the complainant and make it functional or to take back the same and supply a new pump set free from any defect whatsoever or refund the sale price of Rs. 12,350/- with interest @ 18% per annum from 13.11996 till date of payment. The Forum below also directed the first opposite party to pay to the complainant compensation of Rs. 3,000/- and costs of Rs. 500/-. The further direction that was issued was the order of the Forum below must have to be complied within a month from the date of its order.

AGGRIEVED by the order as above, the first opposite party resorted to the present action by engaging a Counsel of their choice;

ON service of process, the respondent/ complainant entered appearance through a Counsel of his choice. The second respondent/ second opposite party did not enter appearance at all and they virtually remained absent. When this matter came up for hearing before us today/learned Counsel appearing for the first respondent/ complainant is called absent and no representation is made on his behalf. The fact that the said leaned Counsel is absent does not mean that we cannot dispose of the appeal on merits, of course, after nearing the arguments of learned Counsel Mrs. Kalpana appearing for the appellant/first opposite party and on perusal of the materials placed on record.

Even at the outset we may point out that the Forum below did not approach the issues arising for consideration in the proper perspective. There is no pale of controversy that the first opposite party dealer is located at Coimbatore. This apart, the second opposite party is having their office located at Kolhapur. The complaint had been instituted before the Forum below at Nagapattinam. None of the opposite parties is having their Head Office or Branch Office located within the territorial jurisdiction of the Forum below. The first opposite party as a matter of fact did raise the territorial jurisdiction of the Forum below by way of specific pleadings in the counter or version filed by them. They would state in so crystal clear fashion that the Forum below is not having the necessary and requisite territorial jurisdiction to entertain the complaint. The Forum below despite raising such a plea by the opposite party in their version closed its eyes and did not at all consider such a question. This apart, the second opposite party manufacturer is far away from the jurisdiction of the Forum below in the sense of having their office located in North India - Kolhapur. The jurisdiction of the District Forum has to be decided pursuant to the salient provisions as adumbrated under Sub-section (2) of Section 11 of the Consumer Protection Act, 1986 (for short, "the Act"). Judged by Clauses (a) and (b) of Sub- section (2) of Section 11 of the Act, the Forum below did not appear to have the necessary and requisite jurisdiction to entertain the complaint as filed by the complainant. There is one more clause, namely Clause (c) attached to Sub-section (2) of Section 11 of the Act. According to the said clause, the jurisdiction of the Forum below will depend upon the cause of action, wholly or partly arising within its jurisdiction. This aspect of the matter is required to be considered before ever the jurisdiction question is decided by the Forum below. If the cause of action arises wholly or in part within the jurisdiction of the Forum below, cock sure it is, the Forum below will be having the necessary and requisite jurisdiction for entertaining this complaint. Such a question, however, is required to be decided by the Forum below on the materials to be placed and considered by it.

THE Forum below exonerated the second opposite party manufacturer and dismissed the complaint as against them. This sort of a finding by the Forum below, we are unable to appreciate on the facts and in the circumstances of the case. THE defect claimed by the complainant in the pump set was that the flywheel was found to be bent and consequently it was non-functional. If such a defect is proved by the complainant, the second opposite party manufacturer as well as the first opposite party are jointly and severally liable either for the replacement of the pump set by a new one free from defects or the refund of the price to the complainant. This apart, there is no satisfactory material available on record to point out that the flywheel of the pump set was defective. The complainant would simply aver by way incorporation of the averments in the complaint that the flywheel of the pump set was found to be bent. The first opposite party dealer would also simply aver by way of incorporating an averment in the version stating that the flywheel in the pump set was not at all bent. In such state of affairs, it cannot at all be stated that there is a positive evidence as to the defective nature of the flywheel in the pump set. Some evidence in the form of an expert is required to be placed on record that the flywheel of the pump set was as a matter of fact found; to be bent at the time when it was supplied.

THE order of the Forum below in such circumstances cannot at all be stated to be sustainable. THE order of the Forum below is, therefore, set aside. THE best course to be adopted in such circumstances is to remit back the case to the Forum below for fresh disposal according to law in the manner as we have indicated as above and we accordingly do so. THE appeal is thus disposed of, We, however, make no order as to costs on the facts and in the circumstances of the case. Appeal disposed of.