KANSHI RAM vs Maruti Udyog Ltd.

THE challenge in this appeal is to the order of the District Forum, Bilaspur, dated 6.9.96, whereby the complaint of the appellant/complainant (herein after to be referred to as the complainant) has been dismissed by the District Forum on the ground that the Forum does not have the territorial jurisdiction to decide the consumer dispute raised by the complainant.

THE facts giving rise to the complaint are that the complainant, who is a practicing Advocate at Bilaspur, for his professional engagements, felt the necessity of purchasing a car and the respondent No. 2, namely, M/s. Modern Automobiles, Chandigarh, who is the Authorised Dealer of the manufacturer, respondent No. 1 Maruti Udyog Ltd., Gurgaon, sent a Proforma Invoice No. 6967 dated 6.11.92 stating the price of the car for Rs. 1,66,805.92 paise and asked the complainant to send the amount through Bank Draft marked payee''s account only. After the receipt of the proforma invoice, the complainant confirmed the proposal made by the respondent No. 2, the authorised dealer, telephonically and that the respondent No. 2 thereupon reiterated the necessity of sending the invoiced price through Bank draft payable at Chandigarh. THE complainant thereafter arranged the finance and got a Bank draft from State Bank of India on 19.12.92 and the same was presented to respondent No. 2 on 21.12.92. THE respondent No. 2 promised to supply the vehicle without any delay. THE respondent No. 2 did not supply the car as per the agreement. However, an additional demand of Rs. 4,130.81 paise was made on the complainant without any justification and that the complainant had to pay this additional amount for getting the delivery of the car although full price of the car amounting to Rs. 1,66,805.92 paise and Rs. 610/- for accessories was already paid by the complainant through Bank draft dated 19.12.92. THE complaint has been filed on the ground that the respondent No. 2 has indulged in unfair trade practice and is guilty of deficiency in service and that the respondent No. 2 should be asked to refund the amount charged in excess with interest @ 18% per annum and also Rs. 10,000/- for harassment and mental torture. The stand taken by the respondent is that the District Forum, Bilapsur has no territorial jurisdiction as neither the opposite party resides or carries on business for gain within the territorial jurisdiction of the District Forum nor any cause of action arises at Bilaspur in Himachal Pradesh. Further, respondent No. 2, the Dealer, has taken another objection that at the time of booking of the vehicle on 21.12.92, the complainant has sworn an affidavit in which he has stated that all disputes shall be subject to the jurisdiction of Chandigarh Courts only and thus by an agreement between the parties, the jurisdiction of the Forum is excluded. The other pleas of the respondents that they are not guilty of any deficiency in service or unfair trade practice, need not be referred to here as the complaint has been dismissed on the ground of jurisdiction by the District Forum. The District Forum has heavily relied upon the affidavit at Annexure A'' filed by the complainant before the Dealer at Chandigarh, particularly Clause-10 thereof and according to him, the jurisdiction of the Courts other than at Chandigarh, according to this clause, has been excluded. Clause-10 of the affidavit is reproduced below: "10. That all cases of disputes with M/s. Modern Automobiles, Chandigarh are subject to the jurisdiction of Courts in Chandigarh only and if in case any petition or complaint is filed by me outside the Courts of Chandigarh then the litigation cost incurred by M/s. Modern Automobiles, Chandigarh to fight the case shall be borne by me, I hereby agree and admit."

We regret we are unable to agree to the reasoning and conclusions drawn by the District Forum in this context. In Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 Supreme Court 787, the Supreme Court has held that the provisions of the Act have to be construed in favour of the Consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the Court while construing the provisions or such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment.

HAVING regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act, 1986 to decide the complaint, the Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are possible, the interpretation which goes in favour of the consumer, should normally be adopted by the Courts. We have scrutinised Clause 10 of the affidavit reproduced above and in our opinion, the jurisdiction to try the complaint does not vest exclusively in the Courts at Chandigarh. No doubt, the word ''only'' has been used in the affidavit but at the same time the second part of this clause itself permits the trial of the complaint outside the Courts of Chandigarh as it further stipulates that in case any petition or complaint is filed outside the Courts of Chandigarh then the litigation cost incurred by M/s. Modern Automobiles, Chandigarh to fight the case shall be borne by him. In these facts and circumstances it would not be unreasonable to hold that the complainant has never agreed to the exclusion of jurisdiction under Section 11 of the Act, he has only agreed to pay litigation cost incurred by the respondent No. 2 to fight the case, in case the same is instituted outside Chandigarh.

THE District Forum has again referred to the condition laid down in the booking order, which according to him, has again excluded the jurisdiction of the Courts other than at Chandigarh on the basis of the conditions stipulated in the booking order which is reproduced by him in the order in the following manner, which factually is not correct, as would be referred to hereinafter: "In case of any dispute relating to the transaction, the same will be subject to the exclusive jurisdiction of the Courts at Dealership city".

This objection has not been specifically taken in the reply. Further the condition in the booking order has not been correctly reproduced by the District Forum. In fact, on the booking order the following condition is stipulated: "All disputes of claims of the invoice will be subject to the jurisdiction of Courts in Chandigarh only."

It is clear from the above that this refers to the disputes relating not to the transaction but relating to that invoice only. In the complaint the complainant has alleged unfair trade practice and deficiency in service and claimed interest and such a stipulation cannot advance the case of the respondents further. Further, we have grave doubts, whether such unilateral stipulation binds the complainant.

IN view of what is discussed above, once we take out both the clauses of exclusion of jurisdiction out of consideration, we have no difficulty in coming to the conclusion that the District Forum has jurisdiction to try the complaint as the cause of action has partly arisen in Bilaspur. The relevant admitted facts which emerge in this context are that the complainant is a practising Advocate at Bilaspur, Himachal Pradesh and for his professional engagements, he purchased this car. On the advice and receipt of the proforma invoice proposing the price of the car of Rs. 1,66,805.92 by the respondent No. 2, the complainant confimed the proposal telephonically and that in pursuance of this confirmation of the proposal, the complainant arranged the finance and got the Bank Draft from State Bank of INdia, Bilaspur Branch on 19.12.92 for Rs. 1,66,805.92 paise and sent the same to respondent No. 2 on 19.12.92. No doubt, according to the instructions of respondent No. 2, the Bank draft was payable at Chandigarh. It is not further in dispute that the Bank draft was received by respondent No. 2 and ultimately the car was delivered to the complainant although the additional amount of Rs. 4,130.80 was further demanded.

IF all these facts cumulatively are taken into consideration, particularly after the proforma invoice stating the price of Rs. 1,66,805.92 having been received but the complainant, the complainant got the Bank draft prepared at Bilaspur which is apparent from the complaint, clearly indicates that the complainant must have on telephone confirmed the proposal at Bilaspur for the purchase of the vehicle. Even otherwise since on the receipt of the proforma invoice the complainant arranged the finance and got the Bank draft prepared from the State Bank of India, Bilaspur which was received by the respondent No. 2 and the car was ultimately delivered, it would not be unreasonable to presume that the complainant must have accepted the proposal for the purchase of the car at Bilaspur, otherwise he would not have arranged the finances and got the Bank Draft prepared at Bilaspur although the Bank Draft was payable at Chandigarh. What is cause of action ? The cause of action constitutes bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant.

It goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the Bank draft prepared at Bilaspur, confirmed the proposal of respondent No. 2 at Bilaspur and got the vehicle after the receipt of the same Bank draft, are in fact the vital facts in the formation of the contract of purchase / sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint.

WE may again notice the observations of the District Forum that in the rejoinder the complainant has not referred to the alleged acceptance on telephone of the proposal of the Dealer i.e., respondent No. 2 and, therefore, such a plea of the acceptance of the proposal cannot be taken into consideration. We have seen the rejoinder filed by the complainant and we found that the complainant has reiterated his earlier stand and has not deviated or modified his earlier stand, rather in reply to preliminary objections filed by respondent No. 1, he has stated in no unclear terms that the offer made by the respondent No. 2 was confirmed telephonically by the complainant to respondent No. 2 at Bilaspur, the Bank draft was prepared at Bilaspur and money sent to the respondent No. 2 by way of that Bank draft prepared at Bilaspur and the car was ultimately delivered to the complainant at Bilaspur. In view of the circumstances aforementioned, we have already taken a view even otherwise that the cause of action has partly arisen at Bilaspur and the District Forum has jurisdiction.

IN the light of what is discussed above, the order of the learned District Forum is set aside and the case is remanded to the District Forum to try and decide the case in accordance with the law. There is no orders as to costs. Case remanded.