PAL PEUGEOT LTD vs ABDUL MAJID AND BROS

THESE are two appeals filed by M/s. Pal Peugeot Ltd., and M/s. Vivek Automobiles Ltd., on 13.5.1997 and on 13.5.1997 respectively against the order dated 5.12.1997 and 23.2.1998 passed by District Forum, Saharanpur in complaint Case No. 146 of 1996 in M/s. Abdul Majid and Brothers v. Peugeot Ltd. & M/s. Vivek Automobiles Ltd., by which the District Forum has directed the opposite parties jointly and severally to replace the new car in place of the purchased one Premier 118 N.E. (Air Conditioned Car) purchased from appellant Messrs Vivek Automobiles (opposite party No. 2 in the complaint) or refund the total amount paid by the complainant-respondent along with Rs. 25,000/- as compensation and Rs. 3,000/- as cost of the proceedings and also pay interest thereon at 18% from the date of the deposit to the date of actual payment besides other reliefs.

BOTH these appeals were heard on 1.4.1998 and 13.5.1998. Mr. B.N. Sharma and Mr. Iqbal Ahmad Siddiqui, Advocates were present for the appellant M/s. Pal Peugeot Ltd. and Mr. Rakesh Kumar Gupta, learned Counsel for the complainant-respondent. They are for the appellant and respondent but none was present on behalf of M/s. Vivek Automobiles on those dates. On the request of Mr. Puneet Chandra, learned Counsel for the appellant M/s. Vivek Automobiles in the Appeal No. 734/SC/1997 they were heard again along with Mr. Puneet Chandra, learned Counsel for the appellant and Mr. R.K. Gupta, learned Counsel for the respondent on 2.6.1998 and the orders were reserved. In Appeal No. 733/SC/1997 in Peugeot Ltd. v. Abdul Majid and Others arguments were already heard on 1.1.1998 and 13.5.1998 and the orders were reserved.

As both these appeals were preferred against the same order dated 5.4.1997 passed by District Forum, Saharanpur in respect of the New Premier Car (118 N.E.) (Air Conditioned) both these appeals were heard also together and are being decided by this order. The original order will form part of the Appeal No. 733/SC/1997 and its certified copy shall by placed on Appeal No. 734/SC/1997.

DURING the arguments the learned Counsel on behalf of the appellants of both the appeals it was specifically pressed and argued that the District Forum has no jurisdiction to try and decide this complaint No. 146/1996 as there was no cause of action arose at Saharanpur because the complainant-respondent had purchased the new Premier (118 N.E.) Air Conditioned Car from Messrs Vivek Automobiles Ltd., 10/3 Arya Samaj Road, Karolbagh, New Delhi on 27.6.1995 and its services were also made at New Delhi and no part of cause of action was played by the opposite party or complainant in the Saharanpur District. The allegations of the complainant that the car in question developed some trouble and defects at Saharanpur does not make the jurisdiction of the District Forum, Saharanpur for trial and adjudication of the complaint in this case. The case of the complainant is that as per advertisement of the opposite party No. 2, M/s. Vivek Automobiles in newspaper Hindustan Times dated 22.5.1995 he placed an order dated 31.5.1995 for purchase of new Premier 118 (N.E.) Air Conditioned Car with opposite party No. 2, M/s. Vivek Automobiles for a sum of Rs. 2,95,464.68 and paid Rs. 2,95,462.68 to opposite party No. 2 through Bank Draft No. 33337, dated 31.5.1995 of the Indian Overseas Bank, Connaught Place, New Delhi as total price of the car and the opposite party No. 2 Messrs Vivek Automobiles (here appellant in Appeal No. 734/1997) had issued Receipt No. 001350, dated 1.6.1995 acknowledging the receipt of the price paid. The vehicle was delivered on 27.6.1995 vide receipt No. 004/95-96 dated 20.6.1995. The manufacturer, opposite party No. 1-Messrs Pal Peugeot Ltd. (opposite party-appellant in Appeal No. 733/ SC /1997) has given warranty to repair or replace any of the part or parts except electrical bulbs, tyres and tubes of the new Premier 118 (M.C.) Car to the satisfaction of Paul that they were found defective either in nature of manufacturing within a period of 365 days from the delivery of the car to the original purchase or before the car has been driven for 25,000/- kilometres which may be earlier.

AFTER the purchase of the car three first services were got done from the opposite party No. 2-Messrs Vivek Automobiles and the last was on 4.11.1995 at 11,000 kms. On 8.4.1996, when the car was sent for fifth service Messrs Vivek Automobiles was again informed about the defects of engine which were reported earlier and he was informed by the staff of the opposite party No. 2 that there is manufacturing defect in the engine of the said car and the entire engine will be opened and then the fault will be found, re-settled and the engine will be re-assembled. He has informed the opposite party No. 2, Messrs Vivek Automobiles that there was manufacturing defect and the repair will not rectify this defect as such the engine of the car should be replaced but nothing was done on 30.4.1996. The opposite party Messrs Vivek Automobiles assured the complainant that the engine head was opened and the problem of abnormal consumption of engine oil has been re-settled and the defective carburetor has also been rectified and gave an assurance that within 20 days the new carburetor will be replaced but nothing was done. In para 20 of the complaint it was admitted by the complainant that it is a partnership firm of repute dealing in manufacture and export of all kinds of Indian and Rajasthan handicrafts and is the winner of State Award for export performance for the years 1980-81, 1981-82, 1987-88 and onward up to 1992-93 and also winner of All-India National Design Competition, organised by Ministry of Commerce and Industry, Government of India and its partners have to travel from Saharanpur to other nearby districts of Uttar Pradesh for their business purposes and in order to meet this requirement of business the complainant purchased the said car on the general assurance of the opposite party that their car Premier 118 N.E. is a perfect car without having any manufacturing defect. It was also alleged by the complainant that in the month of August, 1995 the defect in the engine of the car was observed and it was found consuming too much engine oil and later on different dates from 4.11.1995 to 17.6.1996 when the complainant sent letters to the opposite parties to rectify the defects by changing the engine of the car and their refusal to do so on 30.6.1996 the car was brought to Saharanpur. After purchase it was plied at Saharanpur and defects in the engine were detected at Saharanpur and as such the cause of action arose at Saharanpur and therefore the complaint was moved before the District Forum, Saharanpur for seeking directions to replace the engine of car or refund the amount along with other reliefs.

FROM the above averment made in the complaint it transpires that the car was purchased from Messrs Vivek Automobiles situated at New Delhi and the payment was also made through the Bank Draft payable at the Bank situated at New Delhi. The second point which came to light was that the car was purchased by the partnership firm for the purpose of dealing with the commercial business in the State of Uttar Pradesh and other places in order to carry on business of Artistic handicrafts as was admitted by the complainant in para 20 of the complaint itself. According to the complainant the cause of action arose in Saharanpur where the car was used or plied as the defects detected in Saharanpur itself. Now the issues raised by the appellants before the State Commission during the arguments as well as in their Memos of Appeals that no cause of action arose in Saharanpur as the car in question was purchased from New Delhi, delivery was taken from New Delhi and the payment was also made at New Delhi through the Bank Draft payable at Indian Overseas Bank, Connaught Place, and hence no cause of action took place in Saharanpur.

THE learned Counsel for the complainant- respondent has taken the plea that since the defects were developed at Saharanpur where the car in question was used and plied and defects were detected in Saharanpur, and therefore the cause of action was within the jurisdiction of the District Forum. This plea is not acceptable. Section 11 of the Consumer Protection Act, 1986 creates the jurisdiction of the District Forum which reads as follows : Section 11. Jurisdiction of the District Forum- (2) A complaint shall be instituted in 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 institution of the complaint, actually and voluntarily resides or carries on business or with a Branch Office or personally works 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 or voluntarily resides or carries on business as has Branch Office, or personally works for gain provided that in such case 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 works for gain as the case may be acquiescence in such institution, or (c) the cause of action, wholly or in part arises.

From the above provisions it is clear that according to the provisions of Clauses (a) and (b) of Sub-section (2) of Section 11 of the Consumer Protection Act, the jurisdiction of the District Forum concerned will be decided by the fact where the opposite parties are normally residing or carrying on business there or have Branch Office in the jurisdiction of the District Forum concerned. In the present case, the car was purchased from one Messrs Vivek Automobiles, New Delhi, the delivery was also taken from New Delhi and the payment was also made by Bank Draft payable at Indian Overseas Bank at Connaught Place, New Delhi and therefore according to this fact the jurisdiction of the District Forum, Saharanpur is not there.

AS regards the cause of action wholly or in part arises as per the provisions of Sub-clause (c) of Sub-section (2) of Section 11 of the said Act detecting of defect in Saharanpur where the car was used does not make the cause of action arisen there because the defects found in the car do not decide the territorial jurisdiction but if anything with regard to the place for the payment, purchase and delivery of car are the main factors to determine the cause of action. AS already observed above the car was purchased at New Delhi, payment was made at New Delhi and delivery was also obtained at New Delhi therefore, there arises no question of District Forum, Saharanpur having the jurisdiction in Delhi or New Delhi. The appellants have already raised this question of the jurisdiction before the District Forum, Saharanpur stating that the appellants have no office or branch in Saharanpur nor they carry on business there and, therefore, the Saharanpur District Forum has no territorial jurisdiction. The District Forum, Saharanpur in its order dated 5.4.1997 has noticed that there was no office or branch of the opposite parties at Saharanpur but since the defects were noticed during the use at Saharanpur and, therefore, the District Forum has jurisdiction under Section 11(2)(c) of the Consumer Protection Act. This view of the District Forum is erroneous which is not maintainable in view of the above observations made by us. The result is that the District Forum, Saharanpur have no territorial jurisdiction to entertain the complaint. The order passed by District Forum, Saharanpur is without jurisdiction and cannot be upheld.

THE appellant have relied upon the case of Ram Agency v. Ashok Chandmal Vora decided by the National Commission I (1995) CPJ 36 (NC). In this case the National Commission has held that the State Commission, Maharashtra at Bombay has no jurisdiction since the complainant has sent price money for the car in the form of Demand Draft obtained from a Bank at Ahmadnagar. This cannot be treated as part of cause of action at Ahmadnagar. THE facts of the case are that though the Demand Draft in question had been obtained from a Bank in Ahmadnagar, it was one to be drawn on the Bank''s branch at Pune and was payable at Pune. Further, the Demand Draft was made out in favour of the opposite party at its address. Such being the facts and circumstances the National Commission did not agree with the view expressed by the State Commission at Bombay that part of the cause of action had arisen in Ahmadnagar merely by the reasons of the purchase of a Bank Draft by the complainant from the branch of a Bank at Ahmadnagar. THErefore, the finding recorded by the State Commission that the District Forum at Ahmadnagar had jurisdiction to entertain the complaint has been set aside by the State Commission of Maharashtra and District Forum, Ahmadnagar. THE result was that the District Forum, Ahmadnagar was directed to return the complaint to the complainant for presentation to the District Forum having territorial jurisdiction. The appellant has also relied upon another case, in this connection of the territorial jurisdiction in Union of India through General Manager, Northern Railway and Others v. G.C. Sharma & Others, II (1994) CPJ 17 (NC). decided by the National Commission. In this case circular railway tickets were purchased from Jalandhar Railway Station from where the journey was to commence, i.e. in Punjab whereas the complaint was filed before the Hamirpur District Forum in Himachal Pradesh as confirmation on phone to the Jalandhar Railway Station for the seat was done in Hamirpur. The National Commission held that the Hamirpur District Forum could not acquire jurisdiction to entertain this complaint merely because the respondent-complainants had already obtained confirmation telephonically in Hamirpur from the Railway Station Jalandhar. In view of these citations we are also of the view that the complaint filed by the complainant before the District Forum, Saharanpur is not maintainable and the order passed by the District Forum, Saharanpur is without jurisdiction. The second plea taken by the appellant is that the complainant is not a consumer in view of the provisions as contained in Section 2(1)(d)(i) of the Consumer Protection Act as the car purchased was used for commercial purpose and not for his use or earning personal livelihood.

THE appellant in support of this view has relied upon a case of M.S. Lohia Starlinger Ltd. v. Zenith Computer Ltd., decided by the National Commission and Supreme Court on Consumer Cases 1986-1994 page 150 (NC) in which it was held that the computer system was purchased by the complainant-M/s. Lohia Starlinger Ltd. for a commercial purpose for being installed and used by the complainant for furtherance of their business activities to earn profit and as such the complaint was not maintainable before the Commission inasmuch as the complaint was not maintainable as he is not a consumer as defined in the Consumer Protection Act. Thus in the present case the complaint is not maintainable before the District Forum as complainant was not a consumer as the car was purchased for commercial use for the business of the partnership firm M/s. Abdul Majid and Brothers though it was registered in the name of Abdul Majid but it is for the commercial purpose and not for the personal use of Abdul Majid or for earning livelihood. According to the admission made by the complainant in para 20 of the complaint the car was purchased and is being used for the purpose of carrying on business of Abdul Majid & Bros, regarding their business affairs of Rajasthan Handicrafts and therefore the complainant is not a consumer in view of the definition as provided under Section 2 (1) (d) (i) of the Consumer Protection Act which reads as under : "Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, who does not include a person who obtains such goods for re-sale or for any commercial purpose."

From this provision it is clear that if any goods or car is purchased for any commercial purpose then it is not a consumer case. In view of the above both the appeals are allowed and the order passed by the District Forum, Saharanpur on 5.4.1997 is set aside. THE complaint is also dismissed. However, if any remedy is open to the complainant he may approach appropriate Civil Court for seeking redressal. We leave the parties to bear their own costs. Let a copy of the order be made available to the parties within ten days. Appeals allowed.