PATEL LALJIBHAI UKABHAI vs ADARSH WELDING WORKS

THE appellant, who is the original complainant, had purchased Air Compressor machine manufactured by Opposite Party No. 1, in the year 1982, for the total price of Rs. 8,000/-. At the time of purchasing the said machine, the complainant had stated to the respondent that he was purchasing this machine to draw water from his well for agricultural purposes, and having understood the requirement of the complainant, opposite party No. 1 gave 3 Cylinder Air-compressor machine of Enfield Make. Before the District Forum, it was the case of the complainant that the machine was not giving proper services and that because of defects, he had suffered damages. It was also his case that replying upon the assurances of the opposite party, he had spent about Rs. 10,000/- and had incurred a debt of Rs. 6,500/- by borrowing money from Land Development Bank. It was also his case that on account of the defective machine, he had suffered loss as narrated in the complaint.

BEFORE the learned District Forum the parties had produced their affidavits. The respondent had admitted the fact of sale of the machine, but the respondent took up the contention about the want of jurisdiction of the Distirct Forum to entertain the complaint on the ground of the transaction having taken place not at Surendranagar but at Rajkot. The complainant stated that the machine was delivered to him at his place in Surendranagar District. The learned District Forum, relying upon the deposition of the complainant in Criminal Case No. 1135 of 1987, certified copy of which has been produced as Ex. 12 in the present proceedings, came to the conclusion that the complainant was not able to prove that the machine was delivered at Surendranagar; and so observing, the learned President held that the Surendranagar District Forum had no jurisdiction to entertain the complaint. Further, in para 7 of the Judgment, the learned Forum has held that the appellant complainant had filed a suit in the civil Court to recover the damages of Rs. one lakh on account of the defect in the machine, and relying upon the decision of the Hon''ble National Commission in Petition No. 1 of 1988 (Oswal Fine v. HMT, Madras) I (1991) CPJ 330 (NC) wherein it has been observed that : ". ..if the dispute between the parties is pending before the civil Court in respect of the "same subject-matter between the same parties, the consumer agency had no jurisdiction to entertain the same..."

We have heard the submissions made by the learned Advocate for the Respondent. We have also heard the appellant who is present in person. We pointed out that if the matter is pending before the civil Court between the same parties for the same cause of action, the District Forum will not entertain the complaint because under Section 3 of the Consumer Protection Act, the consumer agencies are in additional and not in derogation of the provision of any other law; and that the complaint before the redressal Forum is an additional remedy, and hence the observation so far as that aspect is concerned is upheld.

BUT the further question is as to how then the District Forum can decide the question of jurisdiction by holding, further, that the cause of action has not arisen at Surendranagar. This by itself is also an exercise of jurisdiction on; and this decision if not set aside will create complication or may even be binding to the parties, that is to say, the complainant. The learned Advocate Mr. Rawal appearing for the Respondent agreed to the above settled position and stated that the Commission may set aside those observations made by the learned President. We, therefore, allow this appeal partly, and set aside the observations made by the learned President of the District Forum with regard to the jurisdiction, since the civil Court is competent to deal with and decide the said issue of territorial jurisdiction also.

WHILE disposing of this appeal, we expressly make it clear that the observations made by the learned Forum will not be binding to the civil Court; and the civil Court will ignore the same while deciding the question of jurisdiction because, it is possible that the complainant may be able to prove by leading oral evidence, or by cross examining the witnesses of the opposite party or by any other mode, that the cause of action has arisen at Surendranagar, the advantage, which the complainant gets in a regular trial in the pending suit. With the aforesaid observations, the appeal is partly allowed; the observations made by the learned District Forum as to territorial jurisdiction are set aside; and the appeal is accordingly disposed of with no order as to costs. Appeal partly allowed.