Hindustan Motors Ltd. vs DISTRICT RURAL DEVELOPMENT AGENCY

THIS appeal by M/s. Hindustan Motors Ltd. (opposite party No. 2 before the District Forum) is directed against the judgment dated 6th April, 1995 passed by District Forum, Rohtas at Sasaram, in Complaint Case No. 43 of 1994 whereby the District Forum has directed the opposite parties to replace the car in question with a new one and to pay a sum of rupees ten thousand as compensation to the complainant for the mental agony suffered by the officials of the complainant and for the inconvenience and harassment caused to them. There is further direction for payment of Rs. 1,500/- as cost.

APPELLANT M/s. Hindustan Motors Ltd. is manufacturer of automobiles including Diesel Ambassador (Nova) car and M/s. Ess Pee Automotives Pvt. Ltd. (opposite party No. 1 before the District Forum and respondent No. 2 in this appeal is the dealer of the appellant. It appears that the complainant (respondent No. 1) filed a complaint before the District Forum alleging therein that negotiation for purchasing Ambassador diesel (Nova) car for official use was made with M/s. Ess Pee Automotives Ltd. through letters sent from Bhabua to Patna and the said dealer agreed to supply the said diesel car for Rs. 2,20,548.63 paise. The said amount was paid to the said dealer through Bank Draft No. 201087 dated 12.11.1993 prepared and issued by Sasaram-Bhabua Central Cooperative Bank, Bhabua. The said dealer telephonically informed that the car would be delivered by 30.11.1993 but the same was delivered on 21.12.1993 i.e., after the expiry of more than thirty days. The car was checked by the Motor Vehicles Inspector, Sasaram, who reported the following defects in the car - (i) Back gate of the left side was out of the body which is a manufacturing defect to be removed by the manufacturer. (ii) There is sound in the remaining three gates, bonnet and luggage box which requires to be set right. (iii) There is leakage of water through the rubber fixed on the front view glass which is due to bad rubber which requires to be changed. (iv) Point weldings in front portion of the car being weak are leaving their places which require to be set right. (v) The front glass appears to have power and hence requires to be replaced. In this condition it would not be safe to drive the car.

Further case of the complainant was that the dealer (respondent No. 2) was requested vide letter No. 1 dated 2.1.1994 to remove the defects and was reminded vide letter No. 236 dated 7.2.1994 as well as telephonically but he paid no heed even when there was warranty card giving warranty for removal of defects and defective parts free of cost. Instead of removing the defects, the dealer demanded additional sum of Rs. 6,105.77 paise on the ground of escalation of price of the car during delivery period for which the complainant was not responsible. However, the car was managed to be sent to the workshop of the dealer for the purpose of repair. The dealer kept the car in garrage for more than 13 days but the defects remained intact despite request of the car driver to remove the defects. While attempting to remove the defects in the doors of the car denting and painting of the car was done but not in accordance with manufacturing conditions and the look of the car was not appearing like that of a new one. The car had been manufactured in defective manner. Under the circumstances the complainant was compelled to use the new car in defective condition. On the allegations aforesaid, the complainant in the complaint petition had sought the following reliefs : (i) Replacement of the car in question by a new one. (ii) Rs. 10,000/- as compensation for delayed delivery of the car, Rs. 6,106/- realised by the dealer in excess of the agreed price of the car on the ground of escalation in price during delivery period, Rs. 689/- paid as salary and daily allowance to the driver of the car for the period of 13 days during which the car remained in the workshop of the dealer, Rs. 422.50 paise paid to the driver engaged on daily wages basis for 13 days during absence of the car driver from the headquarter in connection with repair of the car, Rs. 20,000/- for harassment and inconvenience caused to the complainant and Rs. 10,000/- for non-use of the car due to negligent act of the opposite parties. Total amount of compensation claimed was Rs. 47,217/-. (iii) Cost of the case.

The opposite parties (dealer and manufacturer) did not appear before the District Forum to contest the case. But on receipt of notice from the District Forum, the dealer (opposite party No. 1) sent a petition through registered post raising preliminary objections regarding maintainability of the complaint and the territorial jurisdiction of the District Forum to decide the complaint and pleading that the whole cause of action had arisen at Patna and not within the territorial jurisdiction of the District Forum at Rohtas (Sasaram). The complainant had booked the car at his (opposite party No. 1) office at Patna and amount of Bank Draft was paid in his (opposite party No. 1) office at Patna and thereafter car was delivered at Patna. The marketing or selling of car is done from Patna and there is neither any office nor workshop at Bhabua. Besides that, the complaint petition has not been filed in accordance with Section 2(1)(c)(iv) of the Consumer Protection Act. In the petition the prayer was to dismiss the complaint on the point of jurisdiction. On being noticed again to appear before the District Forum, the dealer (opposite party No. 1) sent another petition enclosing therewith attested copies of certain documents and pleading therein again that the entire cause of action had arisen at Patna and nothing had been done at Rohtas District.

THOUGH opposite party No. 2 M/s. Hindustan Motors Ltd. had not appeared before the District Forum at the time of hearing to contest the case, a written statement describing the same as objection in reply had been filed on its behalf before the District Forum, contending inter alia therein that the person described in the cause title as Director, Self Employment and Accounts Administration has no competency to act as complainant for or on behalf of the District Rural Development Agency and has no locus standi to file the complaint and hence the complaint is not maintainable. Further case of opposite party No. 2 was that the car in question had admittedly been purchased by the District Administration, Bhabua, which is beyond the territorial jurisdiction of the District Forum, Rohtas and hence the complaint being without jurisdiction was liable to be set aside. The car in question having been purchased from opposite party No. 1 at Patna and no part of the transaction having taken place at Bhabua, the cause of action, if any, arose at Patna situated beyond the territorial jurisdiction of District Forum, Rohtas. Apart from that, the complaint does not contain allegation of any deficiency in service as defined in Section 2(g) read with Section 2(o) of the Consumer Protection Act or adoption of any unfair trade practice as defined in Section 2(r) of the said Act and hence the same is not maintainable. Further case of opposite party No. 2 (appellant) was that the complainant had no cause of action and the complaint is barred by limitation. It is not a complaint of after sales service not being rendered during warranty period and as such is beyond the scope of the Consumer Protection Act. The Consumer Forum should not become an alternative Forum for claiming damages or losses allegedly suffered for which remedy lies by way of civil suit before the proper Court of Law. Further case is that opposite party M/s. Hindustan Motors Ltd. is the manufacturer of automobiles which inter alia include Ambassador Nova Diesel Deluxe Car and opposite party No. 1 M/s. Ess Pee Automotives Pvt. Ltd. is the dealer. The relationship between them is on principal to principal basis and opposite party No. 1 is not the agent. Opposite party No. 1 is carrying on the business of buying and selling of motor cars independently. There is neither privity of contract nor any monetary transaction between it (opposite party No. 2) and the complainant. It (opposite party No. 2) has no obligation to the customers of the dealer (opposite party No. 1) save and except under the terms and conditions of warranty given to and accepted by the customers of the dealer while purchasing the car. Delivery of the car had admittedly been taken during sale by authorised Motor Vehicles Inspector who is fully aware about the functioning of a car. The M.V.I. had taken delivery after road test and on being satisfied with the condition of the car. The complainant had discharged pre-delivery inspection note confirming the said fact which goes to show that allegation regarding defects is motivated and baseless. There was neither deficiency in service nor delay in attending the car under warranty. The complainant had failed to provide necessary care and maintenance to the car while using the same extensively. The alleged defects, if any, had arisen due to lapses and laches on the part of the complainant. There was neither defect nor mechanical defect nor defect of any sort in the car. The complainant has filed imaginative, false, frivolous, vexatious and malicious complaint with ulterior motive to harass the oposite party and to have speculative gain. On the aforesaid pleas, opposite party M/s. Hindustan Motors Ltd. in its written statement had prayed for dismissal of the complaint with cost. In support of the case as made out in the complaint petition, the complainant examined M.V.I. Pradip Kumar Agrawal as C.W. 1, Shri Manhar Raj, Deputy Collector Incharge, D.R.D.A., Bhabua, as C.W. 2, Sagir Ahmad, Head Clerk of D.R.D.A., Bhabua as C.W. 3 and Anil Kumar, driver of the car, as C.W. 4. The said witnesses proved certain documents which are Exhibits 1 to 8. Since the opposite parties did not appear before the District Forum at the time of hearing to contest the case, the District Forum heard the case ex-parte and passed the impugned order. Now it has to be considered as to whether the impugned order passed by the District Forum is sustainable in law or not.

AS will appear from the pleadings of the parties and documents brought on record certain facts are not disputed. It is not disputed that the car in question had been purchased by the complainant from opposite party No. 1 (M/s. Ess pee Automotives Pvt. Ltd., Patna) and the price of the car had been paid through Bank Drafts dated 16.11.1993 (for Rs. 2,20,995.23) and 6.3.1994 (for Rs. 6,105.77 paise). It is also not disputed that the car in question had been delivered to the complainant on 21.12.1993. It is also not disputed that the car had been taken to the workshop of the dealer (opposite party No. 1) at Patna for removal of alleged defects and after attending to the defects, the car was delivered to the driver on 8.3.1994. According to the complainant, the defects remained intact and were not removed inspite of the request of the driver which led to the filing of the complaint before the District Forum. The dealer (opposite party No. 1) in his two petitions sent to the District Forum by post and the manufacturer (opposite party No. 2 appellant) in its written statement had challenged the territorial jurisdiction of the District Forum, Rohtas to entertain the complaint and the District Forum has held that atleast part of the cause of action had arisen at Bhabua and hence it has territorial jurisdiction to entertain the complaint. The District Forum has based this finding on the letters bearing Ext. Nos. 3, 4 and 4/d and on the fact that the drafts through which the price was paid were prepared at Bhabua. The District Forum on the basis of the said documents (Exts. 3, 4, 4/d) has even inferred that the negotiation for purchase of the car had taken place at Bhabua which is not even the case of the complainant. The finding of the District Forum on the point of jurisdiction was assailed by the learned Counsel for the appellant. Now it has to be seen if the finding of the District Forum on the point of territorial jurisdiction is justified by the materials on record or not. In para-2 of the complaint petition it has been stated that negotiation for supply of the car was made through letters sent from Bhabua to Patna. Exts. 4, 4/a, 4/b and 4/d are the letters sent from Bhabua to the dealer (opposite party No. 1) at Patna but these letters do not show any negotiation by letter for supply of car rather the letters bearing Exhibit Nos. 4 and 4/a refer to telephonic talk on 12.11.1993 and have asked for supply of car. So these letters (Exts. 4 and 4/a) are in fact order for supply of car. By letter bearing Exhibit No. 4/b copy of the inspection report of the M.V.I. with regard to car was sent to the dealer (opposite party No. 1) with a request to remove the defects. By letter bearing Exhibit No. 4/d also the dealer (opposite party No. 1) was requested to remove the defects of the car as mentioned therein. Six letters (Exts. 4/c to 4/j) sent by the dealer to the complainant have also been brought on record but none of these letters is with regard to negotiation for supply of car rather the same are for payment of the remaining amount of the price of the car. Exhibit 3 referred to by the District Forum is form of declaration under Bihar Sales Tax Rules, 1959 and there is nothing in it to show negotiation by letter from Bhabua to Patna for supply of car. So the documents on record do not support the case of negotiation by letter from Bhabua to Patna for supply of car.

THE complainant has examined Deputy Collector, Manhar Raj as C.W. 2 to say that quotation had been called for from Bhabua and the dealer (opposite party No. 1) had given his quotation at Bhabua. It may be pointed out that it is not the case of the complainant in the complaint petition that quotation had been called from Bhabua and the dealer had submitted his quotation at Bhabua. Furthermore, no paper has been brought on record to show that quotation had been called for from Bhabua and opposite party No. 1 had submitted his quotation at Bhabua. In absence of document, it is difficult to accept the evidence of C.W. 2 to the aforesaid effect. THE three other witnesses (C.Ws. 1, 3 and 4) are not on this point. So the oral evidence on the point of negotiation from Bhabua by letters is not reliable. Even if it is accepted for argument sake that the complainant had sent letter by post from Bhabua to opposite party No. 1 asking for quotation and had accepted the quotation received from opposite party No. 1, the same cannot mean that negotiation was finalised at Bhabua. In such case Post Office will be deemed to be acting as the agent of the complainant for delivery of letters and quotation and the negotiation will be deemed to have been finalised at the office of opposite party No. 1 at Patna.

IN para-4 of the complaint petition it has been stated that Bank Draft by which the amount of Rs. 2,20,548.23 was paid to the dealer (opposite party No. 1) had been issued from Sasaram-Bhabua Central Cooperative Bank, Bhabua. IN I (1995) CPJ 235 (NC)=Revision Petition No. 317 of 1994, Haryana Urban Development Authority v. Vipin Kumar Kohli, decided on 19th January, 1995, it has been held by the National Commission that no part of the cause of action could be said to rise at the place from where the Bank Draft was obtained. Similar view had been taken by the National Commission in I (1995) CPJ 36 (NC)=Revision Petition No. 84 of 1994, Ram Agency v. Ashok Chandmal Bora, decided on 9th November, 1994, and in II (1994) CPJ 90 (NC)=Revision No. 545 of 1993, Estate Officer, Haryana Urban Development Authority & Ors. v. J.K. Khanna, decided on 11th May, 1994. IN view of this no part of the cause of action could be said to have arisen at Bhabua from where the Bank Draft was obtained. In para-23 of the complaint petition it has been stated that the car had been marketed at Bhabua and consequence of selling sub-standard car had ensued at Bhabua and hence cause of action arose at Bhabua. It may be pointed out that undisputedly opposite party No. 1 (dealer) has its office and place of business at Patna. It is the case of neither party that opposite party No. 1 (dealer) has any office or branch at Bhabua. From Exhibits 4 and 4/a, it would appear that Bank Draft was sent by the complainant to opposite party No. 1 at Patna and the same was received there vide receipts (Exts. 7 and 7/a). From Exhibit 4/c it would appear that M.V.I. was directed to take delivery of the car from opposite party No. 1 at Patna. From Exhibits 4/h and 4/j it would appear that delivery of the car was made at Patna. That being so, the case of the complainant in para-23 of the complaint petition that the car was marketed at Bhabua can hardly be accepted.

From the above discussion it is apparent that the opposite parties at the time of the institution of the complaint were neither residing nor carrying on business through a branch office at Bhabua. It is also apparent that payment for the car had been made at Patna and the car was also delivered at Patna and so no part of the cause of action had arisen at Bhabua. Under the circumstances, District Forum, Rohtas, had no territorial jurisdiction to entertain the complaint. That being so, the impugned order passed by the District Forum is a nullity and not sustainable in law.

IN the result, this appeal is allowed. The impugned order is set aside and the District Forum is directed to return the complaint petition to the complainant for presentation to the appropriate Forum. The parties will bear their respective costs. Appeal allowed.