State Consumer Disputes Redressal Commission
Bharti Airtel Limited vs Shyam Kumar on 11 January, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 97 / 2018
1. Bharti Airtel Limited
148, Civil Lines, Mandakini Tower
In front of A.D.M. Residence
Bareilly, Uttar Pradesh through Nodal Officer
2. Bharti Airtel Limited
Airtel Campus, Plot 18
Patliputra Industrial Area
Patna - 800013, Bihar
through Nodal Officer
...... Appellants / Opposite Party Nos. 1 and 2
Versus
1. Sh. Shyam Kumar
13th Sikh Regiment
Pin - 912213
C/o 56 APO
Almora, Uttarakhand
...... Respondent No. 1 / Complainant
2. State Bank of India
S.K. Medical College and Hospital Campus
P.O. Uma Nagar, District Muzaffarpur - 842004
through its Branch Manager
...... Respondent No. 2 / Opposite Party No. 3
Sh. Pradeep Bartwal, Learned Counsel for the Appellants
Respondent No. 1 present in person
None for Respondent No. 2
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Dated: 11/01/2019
ORDER
(Per: Justice B.S. Verma, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 02.06.2018 passed by the District Forum, Almora in consumer complaint No. 94 of 2017.2
2. Briefly stated the facts giving rise to the appeal are that the respondent No. 1 - complainant is a consumer of Bharti Airtel Limited since last five years' and is having the SIM card No. 8991525190000610670UH5 and mobile No. 7739402122 of the said telecom company. In the month of May, 2017, when the complainant was posted at Gurez Sector, Jammu & Kashmir in 13th Sikh Regiment of the Indian Army, there was no mobile tower at his posting place, on account whereof, the complainant was unable to use his mobile phone. On 18.05.2017, some unknown person got the duplicate SIM of the above-mentioned mobile number of the complainant issued and withdrew a sum of Rs. 2,87,630/- from account No. 20044488644 of the complainant between the period from 21.05.2017 to 27.05.2017 by using online services (Paytm;
Airtel Money; Snapdeal & M Paisa). The SIM No. 8991525190000610670UH5 was being used by the complainant at his posting places and at present, the said connection number is with the complainant. The complainant sent an application to the opposite parties for refund of money illegally withdrew from his account by issuing duplicate SIM by the telecom company, but the amount was not refunded. The earlier SIM was issued by the telecom company to the complainant on the basis of his address, whereas on 18.05.2017, the duplicate SIM was issued on the basis of new address, i.e., Village Silt, Anchal Govindpur, District Navada, Bihar. The duplicate SIM No. 8991000900350850783 was issued by the telecom company with the complainant's consent and on account of their negligence, sum of Rs. 2,87,630/- was withdrawn from the complainant's account by unknown person. Thus, the complainant filed a consumer complaint before the District Forum, Almora.
3. The appellants filed written statement before the District Forum and pleaded that the District Forum, Almora has no territorial 3 jurisdiction in the matter; that in view of the law laid down by the Hon'ble Apex Court in the case of General Manager, Telecom Vs. M. Krishnan and another; III (2009) CPJ 71 (SC), the consumer complaint is not maintainable; that the Customer Application Form of the complainant shows that he has purchased the aforesaid SIM from Muzaffarpur, Bihar and filled his residential address in the Customer Application Form dated 06.07.2012 as "112, Anchal Mushahari, Jamalabad, Muzaffarpur, Bihar"; that initially, the complainant's SIM number was 89915251000081731837; that thereafter the company received change request forms for issuance of new SIM cards on account that the old SIM has been lost and that there is no negligence or deficiency in service on their part.
4. The District Forum, after perusal of the record, allowed the consumer complaint vide impugned order dated 02.06.2018 and directed the appellants - opposite party Nos. 1 and 2 to pay sum of Rs. 2,87,630/- (the amount withdrawn from the account of respondent No. 1 - complainant) to the respondent No. 1 - complainant together with interest @4% p.a. from June, 2017 till payment together with Rs. 1,00,000/- towards mental agony and Rs. 15,000/- towards litigation expenses. Aggrieved by the impugned order, the appellants have filed the present appeal before this Commission.
5. None appeared on behalf of respondent No. 2 - State Bank of India. We have heard Sh. Pradeep Bartwal, learned counsel for the appellants and respondent No. 1 - complainant Sh. Shyam Kumar, who appeared in person and have also perused the record available before us.
6. Learned counsel for the appellants submitted that the District Forum, Almora had no territorial jurisdiction in the matter in issue and 4 the District Forum has erred in entertaining the consumer complaint and deciding the same on merit by the order impugned and has wrongly rejected the plea taken by the appellants in that regard. Per contra, the respondent No. 1 - complainant submitted that the District Forum at Almora had territorial jurisdiction in the matter and the District Forum has rightly held so.
7. Section 11(2) of the Consumer Protection Act, 1986 deals with the territorial jurisdiction of the District Forum and the same reads as under:
"11(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."5
8. Having considered the submissions raised before us and having gone through the record, we find force in the arguments advanced by the learned counsel for the appellants. The reason being that in the consumer complaint, the complainant has stated that since at present, the SIM is lying with him at Almora, where he is posted in 13 th Sikh Regiment and, as such, the District Forum, Almora has got territorial jurisdiction in the matter. The District Forum has held that since the office of the telecom company is also situated at Almora and hence it has got territorial jurisdiction in the matter. The present place of residence / working of the complainant at Almora does not give rise to a cause of action in his favour, so as to bring the consumer complaint before the District Forum, Almora. It is true that the telecom company as well as the bank are having its branch offices throughout the country, but on that score, the consumer complaint can not be filed against them at the place selected by the complainant, i.e., the place where he is residing or working, unless cause of action or part thereof has arisen in his favour at the said place. In the present case, no transaction was held between the parties at Almora. The perusal of the consumer complaint will show that none of the parties resides or works for gain at Almora. The opposite party No. 1 is located at Bareilly, Uttar Pradesh; opposite party No. 2 is located at Patna, Bihar and opposite party No. 3 is located at Muzaffarpur, Bihar. Thus, the District Forum has erred in entertaining the consumer complaint and holding that it has got territorial jurisdiction in the matter in issue. It would not be out of place to mention here that the SIM was issued by the telecom company at Patna, Bihar; the complainant is having his account with State Bank of India, Uma Nagar, District Muzaffarpur, Bihar and the amount came to be allegedly illegally withdrawn from the complainant's account during his posting at Gurez Sector, Jammu & Kashmir in 13th Sikh Regiment of the Indian Army. Therefore, there exists no cause of action in favour of the complainant within the 6 vicinity of District Almora, in order to present the consumer complaint before the District Forum, Almora.
9. In the case of Sonic Surgical Vs. National Insurance Company Limited; (2010) 1 Supreme Court Cases 135 = IV (2009) CPJ 40 (SC), the fire broke out at Ambala and the compensation was claimed at Ambala. It was held by the Hon'ble Apex Court that no part of cause of action arose in Chandigarh and the Consumer Commission, Chandigarh had no jurisdiction to adjudicate the matter. In the said case, it was submitted on behalf of the appellant that the respondent - insurance company has a Branch Office at Chandigarh and hence under the amended Section, the complaint could have been filed in Chandigarh. The Hon'ble Apex Court did not agree with the said submission and held that if the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen at Ambala, then too, the complainant can file a claim petition in Tamil Nadu or Gauhati or anywhere in India where a Branch Office of the insurance company is situated. It was further held that it will lead to absurd consequences and lead to bench-hunting.
10. In the case of Puran Chand Wadhwa Vs. Hamil Era Textiles Limited; IV (2003) CPJ 26 (NC), the debentures were issued from Bombay. Instalments as interest on debentures were also issued from Bombay and the debentures were to be redeemed at Bombay. It was held by the Hon'ble National Commission that no action, wholly or in part, took place in Chandigarh and the Consumer Forum at Chandigarh has no territorial jurisdiction to entertain the complaint. In the said case, the consumer complaint was filed within the territorial jurisdiction of the bank through which payment for debentures was made or interest was received by the opposite party, 7 who was not carrying on any business within the jurisdiction of that Forum. It was further held that the bank is only a facilitator to accept the money and the District Forum within whose jurisdiction the bank is situated, can not have territorial jurisdiction in the matter. In First Appeal No. 104 of 2010; Commercial Motors Vs. Sh. Vijay Prakash Joshi, decided by this Commission per order dated 27.08.2013, the complainant had taken a loan from Almora Urban Cooperative Bank Limited, Pithoragarh for purchasing a tipper. It was held that District Forum, Pithoragarh had no territorial jurisdiction in the matter. While coming to the said conclusion, this Commission has placed reliance on a decision of the Hon'ble National Commission given in the case of Puran Chand Wadhwa (supra). In First Appeal No. 428 of 2008; New India Assurance Company Limited Vs. Gopal Gupta, decided by the Hon'ble National Commission per order dated 03.09.2013, it was held that merely because the insurance company has a branch office in Chandigarh, this by itself does not give the State Commission UT, Chandigarh the territorial jurisdiction to entertain the complaint. In the said case, the insured premises was situated at Kaithal and the insurance policy was also issued at Kaithal. The claim was filed and was repudiated at the said place.
11. In view of the above discussion, we are of the definite view that the District Forum, Almora has had no territorial jurisdiction in the instant matter and the District Forum has committed manifest error of law by entertaining the consumer complaint and deciding it on merit by the order impugned, which can not be legally sustained on the above score only. Resultantly, the appeal deserves to be allowed. Since we have held that the District Forum, Almora had no territorial jurisdiction in the matter and the order impugned is being quashed on 8 the said ground only, we refrain ourselves from entering into the merits of the case and commenting upon the same.
12. Appeal is allowed. Order impugned dated 02.06.2018 passed by the District Forum, Almora is set aside and consumer complaint No. 94 of 2017 is dismissed, being not maintainable before the District Forum, Almora for want of territorial jurisdiction in the matter. The statutory amount of Rs. 25,000/- deposited by the appellants at the time of filing the appeal, be released in their favour. However, the respondent No. 1 - complainant, if he so wishes, may file a consumer complaint before the District Forum having territorial jurisdiction in the matter and in that event, he may seek exclusion of the time for the purposes of limitation in the light of the judgment of the Hon'ble Apex Court given in the case of Laxmi Engineering Works Vs. PSG Industrial Institute; (1995) 3 SCC 583. No order as to costs.
(BALVEER PRASAD) (JUSTICE B.S. VERMA) K