State Consumer Disputes Redressal Commission
Mr. Sharad Kedia vs Dy. General Manager, National Aviation ... on 28 January, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/360/10 DATE OF FILING: 30.6.2010 DATE OF FINAL ORDER:
28.01.2011 APPELLANT Mr. Sharad Kedia S/o Mr. Nathmal Kedia 4A, Shambhu Nath Pandit Street Kolkata 700 020 RESPONDENTS
1) Dy.
General Manager (Customer Service) National Aviation Co. of India Ltd.
Air India, Air India Building Nariman Point, Mumbai 400 021
2) Manager, Customer Care Air India Chittaranjan Avenue P.S. _ Bowbazar, Kolkata BEFORE :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER FOR THE APPELLANT : Mr. D. Majumder, Advocate FOR THE RESPONDENT : Mr. P.R. Baksi, Advocate :
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT This appeal is by the complainant and against order of dismissal of the complaint by the Forum below.
The appellant and his wife were scheduled to fly from Chennai to Kozhikode on 21.12.2007 by Indian Airlines flight No.IC925 which was scheduled to depart from Chennai at 18:40 hours. The said flight was rescheduled for departure at 16:15 hours instead of 18:40 hours on the previous day. According to the complainant, he and his wife were proceeding to Aryavaidyasale at Kottakkal via Kozhikode for treatment of his wife who is suffering from Myopathy (Muscular dystrophy). He purchased the aforesaid air ticket for Chennai to Kozhikode at Kolkata. Both of them are resident of Kolkata and flew to Chennai from Kolkata by Jet Airways flight No.9W-0844 in the morning at 8:30 A.M. of 21.12.07. The flight from Kolkata to Chennai arrived at Chennai Airport around 11:00 A.M. The said Indian Airlines flight as scheduled to depart at 18:40 hours the complainant and his wife went out of the Airport for lunch and returned to the Airport around 6:00 P.M., when they came to learn that the said Indian Airlines flight No.IC-925 had departed at 17:30 hours upon such rescheduling. After prolonged persuasion the officials of the Indian Airlines rebooked the complainant and his wife on a flight on the following day on 22.12.07 at 1:00 P.M. The complainant and his wife stayed overnight in ITC, Park Sheraton Towers Hotel at Chennai as it has the facility of wheelchair. On their return complainant wrote to the OPs for compensation for the deficiency of service as above by the airlines as it failed to inform the complainant about its rescheduling of the flight No.IC-925 and also by denying him to put up in a five star hotel like Park Sheraton Towers which has wheelchair facility without which the wife of the petitioner can not move, without any result. The complainant has accordingly prayed for compensation of Rs.4,50,000/- by filing the compliant case. The OPs denied each and every allegation as made in the complaint, apart from strongly contending that the District Forum at Kolkata has no territorial jurisdiction to entertain the aforesaid complaint case as the cause of action, if any, had arisen at Chennai where the complainant and his wife could not board the flight because of rescheduling of the flight.
In particular, it has been stated that the aforesaid flight No.IC-925 from Chennai to Kozhikode was rescheduled on the previous day on 20.12.07 to depart at 16:15 hours instead of 18:40 hours. The Airlines tried to intimate him about such rescheduling through its call centre but he could not be reached. The complainant and his wife were booked to fly as X class passenger who were not entitled to be put up in a five star hotel like Park Sheraton Towers. They were offered accommodation in three star hotel which they did not accept. However, they stayed in the said hotel on their own for which the airlines should not be made liable for the expenses incurred by the complainant thereby.
At the hearing of the above complaint case both the parties have led evidence both oral and documentary. The District Forum upon contested hearing of the matter has come to the conclusion that since the flight No.IC- 925 was from Chennai to Kozhikode and the complainant and his wife were scheduled on such flight on 21.12.07 departing from Chennai Airport and they could not avail of the same because of preponing of its departure at 16:15 hours, there was deficiency of service if any of the airlines at Chennai Airport. The cause of action, therefore, had arisen at Chennai i.e. outside the territorial jurisdiction of South 24-Parganas. Thus the Forum below at Kolkata Unit-II has no jurisdiction to entertain the complaint.
On the other factual allegations it has been observed that the same could be decided on a elaborate evidence being taken in this regard. With these observations the complaint case was dismissed upon finding that the District Forum Kolkata Unit-II has no territorial jurisdiction to entertain the complaint.
On the issue as to the territorial jurisdiction it has to be noted that Section 11(2) provides as under:
(2) A complaint shall be instituted in a 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 the institution of the complaint, actually and voluntarily resides or carries on business or has 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 and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either 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 work for gain, as the case may be acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Clause (a) to sub-Section 2 of Section 11 clearly stipulates that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction in which the OP or each of the OPs carries on business or has a branch office. It is not in dispute that Indian Airlines which is now renamed as Air India has its Branch Office at Kolkata. The Clauses (a),(b) and (c) are disjunctive of each other and each Clause operates independently without being dependent on the other. The territorial jurisdiction as provided by sub-Section 2 of Section 11 of the Act does nowhere provide that a complaint cannot be instituted in a District Forum within the local limits of whose jurisdiction the OP carries on his business or has a branch office unless the cause of action wholly or in part arises therein. Nor it has prescribed similarly that a complaint cannot be instituted in a District Forum within the local limits of whose jurisdiction the cause of action wholly or in part arises as the OP or each of the OPs do not carry on their business or has no branch office. Upon careful reading it is abundantly clear that a complaint can be instituted either in a District Forum within the local limits of whose jurisdiction the OP or each of the OPs carries on his business or has a branch office; or any of the OPs, where there are more than one at the time of institution of the complaint, carries on his business or has a branch office; or where the cause of action wholly or in part arises. Therefore, a clear option has been given to the complainant to institute a complaint in a District Forum within the local limits of whose jurisdiction where either of the Clauses (a), (b) and (c) applies.
In the case in hand the OPs are the authorities and representatives of the national carrier namely Air India. It is indisputed that the airlines namely Air India has a Branch Office in the city of Kolkata and, therefore, the District Forum within the city of Kolkata in whose local jurisdiction the said branch office is located shall be absolutely entitled to entertain a complaint filed against the OP/Airlines irrespective of the fact of arising of whole or part cause of action elsewhere.
The decision of the Supreme Court reported in IV(2009) CPJ 40 (SC) (Sonic Surgical-Vs-National Insurance Co. Ltd.) as cited on behalf of the OPs/Respondents speaks otherwise. Section 11(2) of the Act as quoted hereinabove was brought into existence by way of amendment in the year 2003. Similarly Section 17(2) of the Act was amended in the year 2003. The Supreme Court after having apprised of such amendment has observed in paragraph 8 of the said judgment as under:
8. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated.
We cannot agree with this contention.
It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P. Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79] With utmost respect to the Honble Supreme Court we fail to agree wholly with the view so expressed therein. The Honble Supreme Court prior to taking of such view has held that the amended Section would have no application to the case as the amendment came into force w.e.f. 15.3.2003 whereas the complaint therein was filed in the year 2000 after the cause of action had arisen in 1999. There is no difficulty in appreciating the proposition of law as laid down by the Supreme Court in the above decision on the basis of the Act as it stood prior to its amendment as above w.e.f. 15.3.03. The Consumer Protection Act is a beneficial legislation enacted for the protection and preservation of the right of the consumers.
Interpretation of the provisions of the said Act should therefore be made by keeping in mind the reliefs and remedies how far could be made available to the consumers in the event of any unfair trade practice adopted by the trader or if therebe any deficiency in service by the service provider. The object and purpose of the Consumer Protection Act is to provide speedy and inexpensive remedy to the consumers as an alternative to the remedy already available to them by way of institution of a suit in the appropriate Civil Court. If such be the purpose then how a consumer like the present one residing in Kolkata would have a speedy and inexpensive remedy against deficiency in service by the airlines through which he was scheduled to fly from Chennai to Kozhikode, if he has to file the complaint at Chennai. In a situation like the present one if the complainant is compelled to institute the complaint at Chennai then it would be most inappropriate and undesirable from the point of view of speedy and inexpensive remedy to a consumer as an alternative to the remedy available in a Civil Court. In our opinion the Parliament also did not intend that a consumer will have to run through the length and breath of this country to seek his remedy under the Consumer Protection Act in case of deficiency of service in any corner of the country by any service provider where the consumer does not either live permanently or temporarily or has no connection to such corner either in course of his living, business, occupation or otherwise. In our opinion it would be appropriate to apply the principle of law as laid down by the Supreme Court in a situation and/or in the facts of a particular case where the complainant has regular access to the place where the cause of action wholly or in part arises, either in course of his living and/or for carrying on his business or such place is easily accessible from the place where the complainant lives permanently or carries on his business, or in a case where the complainant would not face any difficulty if he has to file the complaint in the local limits of jurisdiction of the Forum or the Commission in which the OP or each of the OPs or anyone of the OPs in case of more than one of OPs resides or carries on business. At the same time consideration may be made in respect of the degree of difficulties that may be faced by the body corporate in contesting the claim case at a place in which its branch office is located.
According to our view it would be most proper and desirable from the point of view of speedy and inexpensive dispensation of justice, the Forum and/or Commission should strike a balance between these two factors and decide on the facts and circumstances of each case as to the local limits of whose territorial jurisdiction the complaint shall be instituted. With great respect to the Honble Supreme Court we only express our view in connection with this case without proposing to hold otherwise than as held by the Honble Supreme Court in the case of Sonic Surgical (Supra). We, therefore, most respectfully following the binding precedent of the Supreme Court in the aforesaid reported case of Sonic Surgical (Supra), hold that the District Forum, Kolkata Unit-II had no territorial jurisdiction to entertain the complaint case and to decide the same.
As it has been held herewith that the District Forum, Kolkata Unit-II had no jurisdiction to entertain the complaint, we do not propose to dwell on the merits of the claim case. We, thus, uphold the decision of the District Forum, Kolkata Unit-II and dismiss the appeal.
(S. Majumder) (Justice P.K. Samanta) MEMBER(L) PRESIDENT