State Consumer Disputes Redressal Commission
Spicejet Ltd. vs Sanyam Aggarwal on 14 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.515 of 2016
Date of institution : 05.07.2016
Date of decision : 14.03.2017
SPICEJET LTD., 319, UDYOG VIHAR, PHASE-IV, GURGAON-122
016.
.......Appellant-Opposite Party No.2
Versus
MR. SANYAM AGGARWAL, IAS, PRESENTLY SDM, CHAMKAUR
SAHIB, TEHSIL CHAMKAUR SAHIB, DISTRICT RUPNAGAR,
PUNJAB.
........Respondent-Complainant
First Appeal against the order dated
27.4.2016 of the District Consumer
Disputes Redressal Forum, Ropar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Shri Satyajeet Singh, Advocate. For the respondent : Shri Harsh Nagra, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
1. Genesis of this dispute lies in the online purchase of air tickets leading to a challenge to the territorial jurisdiction of the District Consumer Disputes Redressal Forum, Ropar (in short, "District Forum"). Appellant-Spicejet claims to be a registered company and doing business in India. It owns and operates a physical office at Gurgaon to do its business of selling air tickets etc. and also sells air First Appeal No. 515 of 2016 2 tickets online. At the heart of all this is concepts of contract/e-
contract, cause of action and jurisdiction.
DISTRICT FORUM ORDER:
2. District Forum allowed the complaint filed by Sanyam Aggarwal, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the C.P. Act"), vide impugned order dated 27.04.2016 and opposite parties No.1 and 2 were directed as under:-
(i) to pay a sum of Rs.26,327/-, which was incurred by the complainant due to cancellation of the flight;
(ii) to pay a sum of Rs.10,000/-, as compensation for mental agony and physical harassment; and
(iii) to pay a sum of Rs.5,000/-, as litigation expenses.
Opposite Parties No.1 and 2 have been jointly and severally made liable to pay the amount within 30 days from receipt of certified copy of the order failing which they would pay interest @ 9% per annum on the awarded amount, besides the litigation costs.
Hence, instant First Appeal has been filed by appellant-Spicejet Ltd.- Opposite party No.2 impugning the above said order passed by District Forum.
3. It would be apposite to mention at the outset that hereinafter the parties will be referred to as have been arrayed before the District Forum.
FACTS:
4. Succinctly, respondent/complainant filed a complaint making averments that at the relevant time he was posted as SDM, First Appeal No. 515 of 2016 3 Chamkaur Sahib and he booked two air tickets from the opposite parties-airline over the Internet/Online for himself and his wife Mrs. Shena Aggarwal, IAS, then posted as SDM, Raikot, from Delhi to Udaipur for 24/04/2015 and return on 26/04/ 2015. The said tickets were booked online in advance on 29/01/2015 and were confirmed online by the opposite parties with PNR No. 03 JKNI. The confirmation via e-mail was received by the complainant at Chamkaur Sahib. On 13/04/2015, complainant received another e-mail from opposite parties on his registered e-mail ID ([email protected]) that return flight SG 2436 dated 26/04/2015 has been rescheduled and the departure time has been advanced by almost six hours from 7.00 P.M. to 12.55 P.M. due to implementation of their new summer schedule. It did not suit to the complainant's wife, as such, she had to drop her plan for visiting Udaipur at the last moment, though both of them had planned about 4 months in advance. The complainant rescheduled his program as per the airline information and went alone to Udaipur on flight SG 2633 from Delhi on 24/04/2015. On 26/04/2015 when complainant was preparing to leave for the airport for return to Delhi, he received an e-mail from Spice Jet at 8.48 A.M. that his flight SG 2634 from Udaipur has been delayed due to operational reasons and would depart at 1.35 P.M. Accordingly, complainant reached at the airport at 12.13 PM by taxi and had to pay extra charges for the same due to the delay in depart of the flight. On reaching at the airport the officials of the Spice Jet started saying that due to technical reasons and maintenance problem flight had been further delayed. At 3.30 First Appeal No. 515 of 2016 4 PM complainant inquired from opposite party No.3 in definite terms about the status of the flight. Instead of giving definite reply regarding status of the delayed flight, opposite party No.3 stated that Spice Jet was offering full refund to the passengers and was unable to confirm the status of the flight. The complainant being a Sub Divisional Magistrate, keeping in view his onerous duties and responsibilities requested opposite party No. 3 to make alternative travel arrangement to Delhi. The officials of the opposite parties- Spice Jet flatly refused that they could not do anything and, as such, complainant asked opposite party No.3 to give in writing that Spice Jet could not make alternative travel arrangements, but he refused to give in writing too. On the next day complainant booked an Air India flight for Delhi. The complainant at that point of time was really tense as he was not having any authorised leave for 27/04/2015. He holds a post of great responsibility and unauthorised absence even for an hour can prove disastrous for his career. There were no other flights except Jet Airways in which seats were not available at that time. Complainant stayed at Udaipur on his own expenses. In the compelling circumstances complainant had to virtually beg for leave from the Deputy Commissioner, as at that point of time procurement season was in full swing. The area of the complainant has two big Mandis i.e. Chamkaur Sahib and Morinda. The complainant remained under stress and spent next 24 hours in full mental tension and felt harassment at the hands of the Spice Jet. The parents of the complainant are patient of hypertension. They were extremely worried. It had an adverse effect on their health. First Appeal No. 515 of 2016 5 REPLY:
5. Upon notice, opposite party No.1 only filed the reply taking preliminary objection that complaint is not maintainable as all the passengers and guests of the opposite party are governed by the terms of the Carriage by Air Act, 1972 and notification applicable to non-international flights. The complainant had accepted the terms while purchasing e-ticket. District Forum, Ropar has no territorial jurisdiction to entertain and try the complaint as the head office of the opposite party is at Gurgaon. No cause of action accrued at Chamkaur Sahib. Mere booking of air ticket via Internet/online does not confer jurisdiction in the said area. On merit opposite party No.1 admitted the facts as matter of record. Also admitted the e-mail and the messages sent by the opposite parties. It is admitted that flight was cancelled but due to operational reasons and technical snags. Rescheduling was as per the instructions and intimation was given to the complainant. Complainant had himself requested for cancellation of the ticket, which was honoured and the entire amount was refunded. Other facts were denied.
REPLICATION:
6. The complainant filed replication to the reply filed by opposite party No. 1 denying the averments in the reply and reiterating the averments in the complaint. The complainant in the replication gave complete explanation to the facts mentioned in reply.
7. District Forum afforded opportunities to the parties to lead their respective evidence. After appreciating the evidence on record, District Forum allowed the complaint, vide impugned order. First Appeal No. 515 of 2016 6
8. We have heard the learned counsel for appellant/opposite party No.2 and the complainant and perused the record of District Forum as well as of the appeal.
CONTENTIONS OF APPELLANT-OPPOSITE PARTY NO.2:
9. The learned counsel for opposite party No.2 vehemently contended that District Forum, Ropar has no territorial jurisdiction to entertain and adjudicate the present complaint. The learned counsel to substantiate his contention relied upon the judgment of Hon'ble National Commission in Revision Petition No.2193-2194 of 2012 "Dr. Ravi Ghai and others versus M/S Make My Trip (India) Pvt. Ltd and another" decided on 22/05/2015. The learned counsel relied upon various other judgments titled as "Rajendra Kumar versus Polskeiline Lotnicze, Polish Airlines", III(1998) CPJ 407 (AP) and also relied upon judgment of Hon'ble National Commission in Revision Petition No.2191-2192 of 2012 "Dr. V. Noheria versus M/S Make My Trip (India) Pvt. Ltd and another" decided on 22.5.2015 and contended that mere booking of tickets at a particular place does not determine the territorial jurisdiction. The learned counsel further contended that no cause of action arose at Chamkaur Sahib.
10. The learned counsel further contended that the terms of the Carriage by Air Act are binding between the parties. Passengers cannot dispute the same and relied upon judgment of Hon'ble National Commission in Revision Petition No.1294 of 2009 "Spice Jet versus Himadri Sharma" decided on 23.3.2015. The learned counsel further contended that complaint deserves to be dismissed. First Appeal No. 515 of 2016 7 It has been prayed that this appeal may be allowed and the impugned order passed by the District Forum be set aside. CONTENTION OF THE COMPLAINANT:
11. Per contra learned counsel for the complainant vehemently contended that the order passed by the District Forum is legal and valid. District Forum, Ropar has territorial jurisdiction to entertain and try the complaint. The learned counsel further contended that a part of cause of action arose at Chamkaur Sahib, which falls in the territorial jurisdiction of District Forum, Ropar. Provisions of the Carriage By Air Act, 1972 are not applicable in refund of tickets matter. The complainant suffered mental torture, harassment and physical harm. There is no merit in the present appeal and the same be dismissed with heavy costs.
12. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
13. Before we deal with the contentions raised by the learned counsel for the parties, it would be appropriate to understand the concept of internet and e-commerce, cause of action and jurisdiction and thereafter examine the relevant statutory provisions for just decision of this appeal.
ONLINE/ INTERNET CONCEPT:
14. In the modern era, the trend of communication has changed from a face to face communication to online/ internet, an advance form of communication. It is necessary to understand the basics of internet. What is the Internet? What does the Internet do? First Appeal No. 515 of 2016 8
15. When we communicate to someone online or send email, one computer (say machine) is with use or on our table and another one is with the other person ready to communicate with us. But between these two computers/machines, making communication possible, are probably about a dozen other computers bridging the gap. Collectively, all the world's linked-up computers are called the Internet. In short Internet is a collection of standalone computers, loosely linked together mostly using telephone network or Wi-Fi. Each computer connected to the internet has a unique address known as Internet Protocol (in short IP). The connections between the computers are a mixture of old-fashioned copper cables and optic fiber cables which sends messages in pulses of light. The Internet moves computerised information known as data from one place to another. The data moves over net through packet switching. Now the question arises how the networks? How does the vast mass of data reach its destination without being lost? The answer lies in three terms: Internet Protocol (IP), Transmission Control Protocol (TCP) and Domain Name System (DNS). The fundamental control system of the internet is via IP, TCP and DNS. IP is Internet's address system. Every computer has independent IP address and everyone's computer is identified by IP, it possesses. TCP sorts out how packets of data move back and forth between one computer and another i.e one IP and other IP. The TCP figures out how to get data from the source and to the destination, arranging for it to be broken into packets, transmitted and reassembled into correct order First Appeal No. 515 of 2016 9 at the other end. DNS enables a computer to look up the IP address for any given computer/website.
16. When an email is sent, it is broken into tiny pieces called packets each one of it is tagged with its ultimate destination and travel separately. In theory, all the packets can travel by totally different routes, when they reach the ultimate destination, they reassemble to make an email again. In short the internet performs a set of Structured Query Language (SQL) commands as a transaction. SQL is used to communicate with a database.
17. Internet technology is rapidly becoming a necessity of modern social and economic life. It is opening new opportunities and new avenues for each and every individual member of society. The users of Internet live in cyberspace and it cannot be located in physical world, it is without any geographical and national boundary. The internet has changed the style of marketing and sales. Online purchase of goods or services if found defective or deficiency in service, many issues arise, Where was the e-contract concluded? Where a part of cause of action arose? Where the complaint can be filed ? and so on, which in legal terms is known as territorial jurisdiction.
18. The Internet is a unique marketplace, any computer connected to the Internet can access website and conclude an e-contract. The contractual obligations exist between the offeror and the offeree in an electronic/e-commerce market. Electronic contract is only valid if it meets the requirement of contract. The essentials for a valid contract are that there must be a valid offer and its acceptance, First Appeal No. 515 of 2016 10 means consensus between the contracting parties. The nature of Internet as a World Wide Web (WWW) linked networks and computers also, from time to time, give rise to issues pertaining to jurisdiction. This is a challenging task for both the parties as well as the adjudicating authorities. Many times leading to consequences not intended by the contracting parties. The traditional common law principles of jurisdiction to the borderless world of Internet transactions has proved to be very challenging, for the courts and tribunals. It is a technology evolution and a revolution in legal thinking and its applications.
What is e-commerce?
19. Anita Rosen in her book 'e-commerce and consumer law' has explained e-commerce as a practice of purchasing and selling products and services over the Internet or other electronic system. It pertains to any form of business transactions in which parties are not physically present and interact electronically. The digital information technology is the mode of communication in such business. The world trade organization on 25/09/1998 had adopted a broad view of electronic commerce as "the production, distribution, marketing, sale or delivery of goods and services by electronic means"-- by Mitchel Andew.D. Now-a-days the consumers are equipped with powerful tools for researching and buying goods and services. Information technology Act, 2000 (in short, "the IT Act"), gives recognition to online transactions and purchases of goods or services. Reserve Bank of India has also issued various circulars regarding online First Appeal No. 515 of 2016 11 banking and money transfer activities and has made consumers capable of securing the online space.
Cause of Action:
20. The cause of action is a legal concept, it is a bundle of facts which is taken with the law applicable to them gives the complainant a right to relief against the opposite party, which an ordinary complainant/consumer may not understand. In the present day, e- contract/ e-commerce transactions which relate to the consumers across the countries irrespective of an online seller's geographical location creates problem of jurisdiction. The cause of action must arise from opposite party' activities and the act of the opposite party or the consequences called by the opposite party must have substantial connection with the Forum State to make the exercise of jurisdiction over the opposite party reasonably. It is to be seen whether the party specifically opposite party knowingly made an effort and purposefully contacted to market/sell the product in that jurisdiction. The likelihood of the territorial jurisdiction exercised is directly proportionate to the nature and quality of commercial activity that a concern conducts over the Internet. In other words exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs due to the interaction of the parties. It can also be seen that a concern intentionally reaches beyond its boundaries to conduct business with residents outside its jurisdiction than the exercise of specific jurisdiction may be proper.
First Appeal No. 515 of 2016 12Jurisdiction:
21. The jurisdiction is a legal term used to describe power vested in a court, fora and tribunal to adjudicate upon, determine and dispose of the matter. Firstly, the Fora/court must have authority to hear the matter, secondly, must have power to entertain and try the matter and thirdly, must have power to enforce its order/ judgement. The question of jurisdiction often depends upon the facts in an individual case and particular cause of action. Internet/website transactions involve broad categories of factual situations and associated causes of actions. Question is whether such factual situations and associated causes of actions can be reconciled with the provisions of the statues? Principle of jurisdiction is generally on the basis of domicile, contract and delict relevant for the purpose.
22. Relevant statutory provisions as applicable in the present appeal are as under:
Section 11(2) of the C.P. Act reads as:
(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 2[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 First Appeal No. 515 of 2016 13 the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Section 20 of CPC 1908 reads as under:-
Subject to the limitations aforesaid, every suit shall be instituted m Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
The Information Technology Act, 2000 reads as under:
S. 10A. Validity of contracts formed through electronic means. -
Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic record, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.
S. 13. Time and place of despatch and receipt of electronic record.-
(1) Save as otherwise agreed to between the originator and the addressee, the despatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely:-First Appeal No. 515 of 2016 14
(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,-
(i) receipt occurs at the time when the electronic record enters the designated computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee.
(3) Save as otherwise agreed to between the originator and the addressee, an electronic record is deemed to be despatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business.
(4) The provisions of sub-section (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under sub- section (3).
(5) For the purposes of this section,-
(a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business;
(b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business;
(c) "usual place of residence", in relation to a body corporate, means the place where it is registered.
Indian Contract Act, 1872 reads as under:
S.16. 'Undue influence' defined.--
(1) A contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.First Appeal No. 515 of 2016 15
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another--
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in the sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872 (1 of 1872).
Section-28. Every agreement,-
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.
Exception l.-This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Exception 2. Nor shall this section render, illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.
First Appeal No. 515 of 2016 16
23. Now coming to the contentions of the learned counsel for the appellant-opposite party No.2, it challenged the jurisdiction of the District Forum, Ropar to entertain, try and adjudicate the complaint on the ground that opposite party No.1 & 2 have no branch office within the territory of District Ropar nor had any part of cause of action arisen in the said area. Section 11(2) of the C.P. Act envisages that a consumer has to file a complaint in the place, where company resides or carries on business or where cause of action wholly or partly arise. Admittedly, the complainant made online booking of two tickets via internet at Chamkaur Sahib, on Spice Jet flight departing on 24/04/2016 from Delhi to Udaipur and return on 26/4/2016. The provisions of jurisdiction are quite wide in its ambit which enables the fora to assume jurisdiction over a dispute regardless of where the principal resides or carries on the business, so long as Section 11(2)(c) of C.P. Act exists i.e. a part of the cause of action takes place within the local jurisdiction. In the present case, opposite party No.1&2 have not merely posted information on website that is accessible to the resident of Chamkaur Sahib, who connect to the Internet, but it has done more than creating an interactive website through which it sold tickets for commercial gain. In sum and substance opposite party No.1 made a conscious decision to conduct online business. In response to the e-mail of complainant, opposite party No. 2 sent e-mail to him along with an attachment containing e-ticket at Chamkaur Sahib and the payment was also made at Chamkaur Sahib. Even the message of First Appeal No. 515 of 2016 17 rescheduling the flight timing was received at Chamkaur Sahib. Till date jurisdiction is based on physical reality which does not exist in the cyberspace. It results into complicated jurisdictional issues. The law has to adapt the development of faster mode of communication that negates a party's physical contact with the forum State. In such circumstances the question of jurisdiction is of reasonableness with regard to its circumstances. The location of the content provider, the intermediaries and end user are relevant for determining the jurisdiction. To decide a question of jurisdiction nature and quality of commercial activity of the opposite party on the Internet is also required to be taken into consideration. It is to be found out whether website concerned is interactive and its actual impact on the action in the locality. The jurisdiction is determined by analysing the facts, intentionally caused within the forum by a party's online conduct. The Internet has an impact on several areas of law which needs evolution of a new jurisdictional jurisprudence. The consumer fora is required to consider two major factors while extending its jurisdiction over e-commerce transactions/e-contracts through Internet. Firstly, big business houses opt Internet transactions for business because of its cost effectiveness, secondly, it allows the business house and service provider to insulate itself against the jurisdiction in every State except the place where they are physically located. It is troublesome and unreasonable to the consumer located at a distant place or in other jurisdiction who have much lesser bargaining power and resources to litigate with business houses. To achieve a balance between two diverse considerations, we would consider with First Appeal No. 515 of 2016 18 adaptations to e-contracts. Then from the facts, it is to be determined, did business house on its own volition marketed and contracted with the other party and consequent cause of action arising out of its actions.
24. The electronic contracts are governed by basic principles provided in the Indian Contract Act, 1872. Section 4 of the IT Act gives legal recognition to electronic records. Section 10-A of IT Act provides recognition to e-contracts. Section 13 of the IT Act addresses the issues of time and place of dispatch and receipt of an electronic record and thus addresses the issue of jurisdiction in e- contracts. Sub-section (1) of Section 13 provides that dispatch of an electronics record occurs when it enters a computer resource outside the control of the originator. The originator sent a message to a computer resource designed by the recipient to receive communications. Receipt takes effect at the time the electronic record enters the designated computer resource. Hence, it is crystal clear that when acceptance of an offer is via email to the computer system designated by the offeror, then contract is complete. Section 13 (3) of IT Act states that an electronic record is deemed to be dispatched from the place where the originator has his place of business and is deemed to be received at the place where the addressee has his place of business.
25. The need to interpret a contract/e-contract would arise into situations, firstly if the adjudicating authority is of the opinion that the gap is needed to be filled in order to interpret the contract and secondly if it believes that an ambiguity is needed to be resolved in First Appeal No. 515 of 2016 19 order to find out the correct intention of the contract. The doctrine of Contra Proferentem is generally implied where contract appears to be ambiguous.
26. The Hon'ble Supreme Court in "Trimex International FZE ltd. Dubai versus Vedanta Aluminium Ltd." (2010) 3 SCC 1 has held that e-mails exchanged between parties regarding mutual obligations constitute a contract. Section 16 (3) of Indian Contract Act provides that where a person proposes certain terms to the other and other party accepts the same by clicking on it, it is bound by all terms so proposed by the proposer. In online transaction party offering is in a position to dominate the will of another party and such a transaction appears on the face of it to be unconscionable. In online purchasing, sales proposal and acceptances are made on computer sitting at their respective places. The jurisdiction at both the places is to be considered, so that consumer can easily approach the Consumer Forum/State Commission under the C.P. Act. While dealing such issues under CP Act, the jurisdiction of the Fora is to be decided keeping in view where the cause of action arose. This is the only rational approach to the concept of jurisdiction over the transactions made through Internet.
27. In "PR Transport Agency v Union of India" AIR 2006 Allahabad 23, the Allahabad High Court held that since the acceptance (through e-mail) was received by the petitioner at Chandauli/Varanasi, therefore, the contract became complete by receipt of such acceptance. And, as both these places were within the territorial jurisdiction of the High Court of Allahabad, therefore, a First Appeal No. 515 of 2016 20 part of the cause of action had arisen in UP and the High Court had territorial jurisdiction. Further, the High Court considered following points for its decision:
i. With regards to contracts made through telephone, telex or fax, the contract is complete 'when the acceptance is received' and at the place 'where the acceptance is received'. However, this principle can apply only where the transmitting terminal and the receiving terminal are at fixed points.
ii. In case of an e-mail, the data (in this case, 'acceptance') can be transmitted from anywhere by the e-mail account holder. It goes to the memory of a 'server' which can be located anywhere and can be retrieved by the addressee account holder from anyplace in the world.Accordingly, there is no fixed point either of transmission or of receipt.
iii. Section 13(3) of the IT Act has addressed this intricacy of 'no fixed point either of transmission or of receipt'. In accordance with this section, '...an electronic record is deemed to be received at the place where the addressee has his place of business.' iv. The acceptance of the tender shall be deemed to be received by the PRTA at the place where it has place of business. In the instant case, it is Varanasi/Chandauli (both in UP).First Appeal No. 515 of 2016 21
28. In the case of Casio India Co. Ltd. vs Ashita Tele Systems Pvt. Ltd. [AIR 2003 (3) RAJ 506] there was a passing-off action where the Defendant was carrying on business from Bombay. The Defendant had managed to get a registration of domain name www.casioindia.com and Defendant no. 2 was the Registrar with whom the domain name had been registered. The Plaintiff, on the other hand, claimed to be a 100% subsidiary of Casio Computer Ltd., Japan (Casio Japan) which was the registered owner of the trade mark Casio in India used for a large number of electronic and other products. He had also obtained the registration of large number of domain names in India like Casio India Company.com, CasioIndia.org, CasioIndia.net as well as Casio India.info, CasioIndia.Biz. Defendant no.1 had managed to get the registration of these domain names during the time when it held a distributorship agreement with the Plaintiff. The Delhi High Court has observed that once access to the Defendant's website could be had from anywhere else, jurisdiction could not be confined to the territorial limits of the place where the Defendant resided and the fact that the Defendant's website could be accessed from Delhi was sufficient to invoke the territorial jurisdiction of a court in Delhi.
29. In the case of (India TV) Independent News vs India Broadcast Live [2007(35) PTC 177 Delhi], the Delhi High Court differed with its earlier judgment in Casio India. The Court holds that jurisdiction of the forum/court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum/State but yet held that if the Defendant's website is First Appeal No. 515 of 2016 22 interactive, permitting browsers not only to access the contents thereof but also to subscribe to the services provided by the owners/operators, then court's jurisdiction at the place where the website is accessed from is permissible. The High Court of Delhi ruled that it did not have jurisdiction over the domain name www.indiatvlive.com, because the defendant was based in Arizona. The court relied on the US circuit case Compuserve Inc. v. Patterson, which referred to a three-part test for deciding jurisdiction:-
i) The defendant must purposefully avail itself of acting in the forum State or causing a consequence in the forum State.
ii) The cause of action must arise from the defendant's activities there.
iii) The acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum to make exercise of jurisdiction over the defendant reasonable.
30. In CS(OS) No.894 of 2008 "Banyan Tree Holding (P) Ltd v. A. Murali Krishna Reddy and Anr," decided on 23.11.2009 the Delhi High Court stated that in order to establish the jurisdiction in forum court, even when a long arm statute exits, the Plaintiff would have to show that the Defendant purposefully availed of the jurisdiction of the forum state by specifically targeting customers within the forum state. A mere hosting of an interactive website without any commercial activity being shown as having been conducted within the forum state would not enable the forum court to First Appeal No. 515 of 2016 23 have jurisdiction. The law as laid down in the case may be summarised as follows:
i) Some commercial transaction must have taken place as a result of the site.
ii) The defendant must have specifically targeted the forum State.
iii) Some injury must have resulted to the plaintiff due to the actions of the defendant.
iv) The plaintiff must have a presence in the forum state, and not merely the possibility of a presence.
31. The Delhi High Court in CS(OS) No.1801/2013 and I.A. Nos.14958-59/2013 "World Wrestling Entertainment, Inc. v. M/S Reshma Collection" decided on 4.10.2013 conclusively held that jurisdiction in e-commerce cases involving trademark and copyright disputes would be determined by the buyer's place of residence. The essential issue which the Court sought to address in this case was "When a transaction takes place over the internet, where is the contract concluded?" The Court specifically interpreted the meaning of the phrase "carries on business" as set out in Section 134(2) of the Trademarks Act,1999 and Section 62(2) of the Copyright Act, 1957; both these sections deal with the institution of suits in case of violation of any provision of the aforementioned Acts. The Sections state that as suit for infringement under the said Acts is to be instituted in a District Court having jurisdiction to try the suit. Further, the Courts specify that "District Court having jurisdiction" would "include a District Court within the local limits of First Appeal No. 515 of 2016 24 whose jurisdiction the person instituting the suit or proceeding carries on business or personally works for gain."
32. The Division Bench of the HC examined the principles laid down in "M/S. Dhodha House vs S.K. Maingi" AIR 2006 SC 730 where the SC laid down a 3-pronged test to determine whether the plaintiff could be said to "carry on business: (i) The agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not as a general agent who does business for any one that pays him; (ii) the person acting as agent, must be an agent in the strict sense of the term and a manager of a Joint Hindu Family cannot be regarded as an agent within the meaning of this condition; and (iii) To constitute carrying on business at a certain place, the essential part of the business must be performed at that place. Since the plaintiff had no agent in Delhi, the Court proceeded to examine whether the 3rd condition was fulfilled in the instant case, i.e., 'Was an essential part of the plaintiff's business being performed at Delhi?' To determine this issue, the Court was invariably led to the issue, 'When a transaction takes place over the internet, where is the contract concluded?'
33. In the case of "Bhagwan Goverdhandas Kedia v. Girdharilal Parshottamdas & Co." AIR 1966 SC 543 Hon'ble Supreme Court held that the general rule is that the contract is complete when the offeror receives intimation that the offeree has accepted his offer. An exception to this has been carved out in respect of contracts negotiated by postal communications or telegrams. The exception being that the bargain in such cases (post or telegram) would be First Appeal No. 515 of 2016 25 struck and the contract would be complete when the acceptance of the offeree is put into a course of transmission by him by posting a letter or dispatching a telegram."
34. The Delhi High Court observed that just as in the case of telephonic conversation, there is instantaneous communication where transactions take place online and applying the rule in Bhagwan Goverdhandas Kedia's case (supra) the Court held that in case of e-commerce, "contracts would be completed at the place where the acceptance is communicated." The Court noted, "The website of the appellant/plaintiff refers to various goods and services. It is not an offer but an invitation to an offer, just as a menu in a restaurant. The invitation, if accepted by a customer in Delhi, becomes an offer made by the customer in Delhi for purchasing the goods advertised on the website of the plaintiff. When, through the mode of the software and the browser, the transaction is confirmed and payment is made to the plaintiff through its website, the plaintiff accepts the offer of the customer at Delhi. Since the transaction between the two takes place instantaneously, the acceptance by the appellant/ plaintiff is instantaneously communicated to its customer through the internet at Delhi. If the contracts and/or transactions entered into between the plaintiff on the one hand and its customers are being concluded in Delhi, can it not be said that the essential part of the business of the plaintiff, insofar as its transactions with customers in Delhi are concerned, takes place in Delhi? The offers are made by customers at Delhi. The offers are subject to confirmation/ acceptance of the plaintiff through its website. The First Appeal No. 515 of 2016 26 money would emanate or be paid from Delhi. Can it not then be considered that the plaintiff is, to a certain extent, carrying on business at Delhi?"
35. The State Consumer Disputes Redressal Commission, Meghalaya in First Appeal No.7 of 2007 "MD Air Deccan versus Sh. Ram Gopal Aggarwal decided on 7th of December 2013 after elaborately discussing the provisions of the CP Act, Contract Act and IT Act came to a conclusion that when a ticket is booked through Internet and that it is sent by email, the booking request would be an offer and email from seller acceptance. So the contract of purchase of the ticket would be taken to be made at the consumer's place of residence where acceptance of contract is communicated.
36. State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in First Appeal No.347 of 2015 "Spice Jet Ltd. versus Ranju Aery" decided on 29.12.2015 and First Appeal No.346 of 2015 "Spice Jet Limited versus Justice N.K.Agarwal"
decided on 29.12.2015 has also examined identical issue and held as under:
"In the present case, offer was made to purchase air tickets through internet. It was accepted and tickets, through internet, were sent on payment of money, to the complainant, at Chandigarh. In terms of above provisions, it can safely be said that the air tickets would be taken to have been sent at complainant's place of business/residence. The acceptance of contract would also be deemed to have been communicated at the First Appeal No. 515 of 2016 27 above place. By reading the provisions of CPA 1986; I.T. Act, 2000; and with the help of ratio of the judgment in A.B.C. Laminart Pvt. Ltd. and anr.'s case (supra), we can safely hold that, where contracts for services and/or goods are entered into over the internet (or online as such transactions are commonly referred to), then, for the purposes of consumer complaints, part of the cause of action arises inter alia, at the complainant's place of business, if acceptance of the contract is communicated to her through the internet, including the medium of email. Further, irrespective of the fact, whether or not the contract is one made over the internet, cause of action would also continue to arise at any of the places (a) where the contract is performed or is to be performed or
(b) where money under the contract is either payable or paid or (c) where repudiation of the contract is received, if any. As such, it cannot be disputed that a Consumer Fora is competent to entertain a consumer complaint, even if only an infinitesimal part of cause of action arises within its territorial jurisdiction. As a result, territorial jurisdiction over a consumer complaint would lie with the Consumer Fora situated at any place, where any of the aforementioned causes of action arise. This, of course, is in addition to the other places, where a consumer may choose to file a complaint in accordance with the other provisions of Section 11 (2) of the CPA, 1986.First Appeal No. 515 of 2016 28
Having said that, we cannot forget that all consumers of our country do not necessarily have a place of business. Take the case of a student or a housewife or an employee, who has no place of business and who places an order over the internet from his/her home. As such, they cannot be denied refuge, under territorial jurisdiction of the local Consumer Fora. That would be discriminatory and unfair. In fact, they are even more vulnerable and need even more protection as consumers. The concept of place of residence is not new and already exists in Section 11 (2) of the CPA 1986. But the point is that place of residence is not unknown to law, for the purpose of territorial jurisdiction. We, therefore, further add an extension that, in case, a consumer does not have a 'place of business' then the said term as stated in the paragraphs above, is to be read as place of residence.
It may be stated here that the CPA 1986 is a benevolent legislation, the main object of which is not only to protect the consumers but also to provide them a speedy and simple dispute redressal mechanism, free from hassle.
The Hon'ble National Commission, in Dr.Ravi Ghai and others' case (supra) when rendering judgment to the contrary, did not notice the ratio of the judgment passed by the Hon'ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd. and anr.'s case (supra) and also the provisions First Appeal No. 515 of 2016 29 of I.T. Act 2000. Further, as has been noted above, the Hon'ble Supreme Court of India, has said in a case of Trimex International FZE Limited Dubai's case (supra) that emails exchanged between the parties, online, i.e. through internet constitutes a contract.
Further contention of Counsel for the appellant that compensation awarded to the respondent, is on the higher side, is devoid of merit. We are of the opinion that it is rather on the lower side. The air tickets were booked by the respondent, online, through internet from Chandigarh, for a holiday to Bagdogra, alongwith her family members, through yatra.com, for journey on 23.06.2015. Tickets for return journey were booked from Bagdogra to Kolkata and connecting flight of the appellant/opposite party from Kolkata to New Delhi, for 30.06.2015, for which, an amount of Rs.70,900/-, was paid through debit card. When family members were waiting at Kolkata Airport, for boarding connecting flight to New Delhi on 30.06.2015, the complainant came to know that the flight has been cancelled. Alternate flight was not offered/arranged. The complainant was lucky to have relatives in Kolkata, from whom, money was borrowed and an amount of Rs.80,855/- was paid to another airlines to reach New Delhi via Mumbai, from where they travelled through bus, to reach Chandigarh. Lot of harassment might have been caused to the entire family of the First Appeal No. 515 of 2016 30 respondent including her, which necessitated grant of compensation. In this appeal also, no explanation has been given by the appellant, as to what were the reasons, for which flight was not operated on the said date, that was the only flight, which was cancelled. As such, no ground, whatsoever is made out by the appellant, to set aside the order under challenge."
37. The Supreme Court of India, in the case of "SIL Import v. Exim Aides Silk Importers" (1999) 4 SCC 567 has recognized the need of the judiciary to interpret a statute by making allowances for any relevant technological change that has occurred. Until there is specific legislation in regard to the jurisdiction of the Indian Courts with respect to Internet disputes, or unless India is a signatory to an International Treaty under which the jurisdiction of the national courts and the circumstances under which they can be exercised are spelt out, the Indian Courts will have to give a wide interpretation to the existing statutes, for exercising Internet disputes.
38. The issue of consumer protection is closely intertwined with public policy and unequal bargaining power of the consumer in determining the jurisdiction and governing law of the contract, similar to the determination of the other relevant terms of contract giving a significant scope for forum shopping by the corporate/business houses. The protection of consumers in such contracts of adhesion that prohibits the exclusion of their jurisdiction by the contractual terms is necessary. Section 28 of the Indian Contract Act and Section 11 (2) (c) of CP Act protects the rights and remedies of the First Appeal No. 515 of 2016 31 consumers and empowers the foras, courts and tribunals to disregard agreement between consumer and the seller so far as the choice of forum and governing laws are concerned. The cause of action based on conducting business online depends upon the interactivity of the website.
39. Now coming to the authority in Himadri Sharma's case (supra) cited by the learned counsel for the appellant-opposite party No.2. In the said authority provisions of Indian Contract Act and Information Technology Act have not been considered and as such the same is distinguishable. In "Bharat Petroleum Corporation limited and another versus N R Variaramani" AIR 2004 S.C. 4778 it has been held by the Hon'ble Supreme Court that judges interpret words of the statue, judges do not interpret judgments. Circumstantial flexibility, while additional or different fact makes a world of difference between conclusions of two cases. Disposal of cases by blindly placing reliance of a decision is not proper. A point not argued and considered by the court is said to pass sub-silentio.
40. Applying the above principles and considering all the facts together, a part or fraction of cause of action arose within the jurisdiction of the Chamkaur Sahib, where complainant received an email of rescheduling flights and also received e-ticket through email. Payment was also made at Chamkaur Sahib within the territorial jurisdiction of the District Forum. Section 11(2) (c) of C.P. Act envisages with regard to cause of action which is pari materia to Section 20(c) of C.P.C. In view of the above discussion a part of cause of action arose in Chamkaur Sahib. Further, whether or not First Appeal No. 515 of 2016 32 the contract is one made over the Internet, cause of action would also continue to arise at any of the places where the contract is performed or is to be performed or where money under the contract is either payable or paid or where a fraction of cause of action accrued or where repudiation of the contract is received, if any. Hence, District Forum, Ropar had the territorial jurisdiction to try the complaint.
40. Another contention of the learned counsel for the appellant- OP No.2 is that all the passengers/guests of opposite party No.2 are governed by the terms of carriage contained in the e-ticket, framed in accordance with Carriage by Air Act, 1972 and notification regarding application of the carriage which is Non-International and in view of the provisions contained in Rule 19 of the Chapter XI of the Notification regarding application of the Carriage by Air Act, 1972 to Carriage by Air, which is not International, the complaint under the Act is not maintainable.
41. Hon'ble Supreme Court in "TRANS MEDITERRANEAN AIRWAYS v. UNIVERSAL EXPORTS & ANR." IV(2011) CPJ 13 (SC) while deciding the issue of jurisdiction of Hon'ble National Commission has held as under:-
"Jurisdiction of the National Commission
24) It was rightly argued by learned counsel Sri Vinoo Bhagat that the primary question that arises for our consideration in this appeal is whether the CA Act and the three international conventions in it constitute all the law governing liabilities of First Appeal No. 515 of 2016 33 international air carriers arising out of international carriage of passengers and goods by air or whether domestic law can be added or substituted for the provisions of the conventions. In a nutshell, the submission of the learned counsel for the appellant-carrier is that conventions, viz. Warsaw Convention, as amended at Hague in 1955 and the Montreal Convention of 1999 exclusively govern carrier liabilities and, therefore, a remedy under domestic law cannot be invoked. The frame work for the CP Act was provided by a Resolution dated 09.04.1985 of the General Assembly of the United Nations Organization, which is commonly known as Consumer Protection Resolution No.39/248. India is a signatory to the said Resolution. The Act was enacted in view of the aforementioned Resolution of the General Assembly of the United Nations. The preamble to the Act suggests that it is to provide better protection for the consumers and their interests.
By this Act, the Legislature has constituted quasi- judicial Tribunals/Commissions as an alternative system of adjudicating consumer disputes. Section 3 of the CP Act gives an additional remedy for deficiency of service and that remedy is not in derogation of any other remedy under any other law."
42. Hon'ble Supreme Court in para 42 and 43 has further held as under:-
"42) The use of the word "Court" in Rule 29 of the Second Schedule of the CA Act has been borrowed from the Warsaw First Appeal No. 515 of 2016 34 Convention. We are of the view that the word "Court" has not been used in the strict sense in the Convention as has come to be in our procedural law. The word "Court" has been employed to mean a body that adjudicates a dispute arising under the provisions of the CP Act. The CP Act gives the District Forums, State Forums and National Commission the power to decide disputes of consumers. The jurisdiction, the power and procedure of these Forums are all clearly enumerated by the CP Act. Though, these Forums decide matters after following a summary procedure, their main function is still to decide disputes, which is the main function and purpose of a Court.
We are of the view that for the purpose of the CA Act and the Warsaw Convention, the Consumer Forums can fall within the meaning of the expression "Court".
43) This view of ours is fortified by the decision of this Court in the case of Patel Roadways Ltd. (supra) where this Court has held that a complaint before the Consumer Forum is within the meaning of the term "suit" as employed by Section 9 of the Carriers Act, 1865. In other words, we are of the view that when it comes to legislations like the CP Act, there can be no restricted meaning given to the word "Court". Hence, we reject the argument of Shri. Bhagat that the National Commission is not a "Court" within the meaning of Rule 29 of the Second Schedule of the CA Act."
First Appeal No. 515 of 2016 35
43. Moreover, it is settled law that the remedy under Consumer Protection Act is in addition to and not in derogation of any other law for the time being in force, including the provision of CPC or any other law i.e. Carriers Act or Carriage by Air Act, 1972 etc. While widening the scope of Section 3 of Consumer Protection Act, Hon'ble Supreme Court in large number of cases has taken a view that even if there is remedy available in any other legal forum or even if there is arbitration between the parties, still the aggrieved party can file complaint under Section 12 of the Consumer Protection Act, 1986 seeking indemnification of the loss, compensation for mental agony, harassment, physical discomfort and other injustices suffered by him. Hence the contention raised by the learned counsel for appellant-opposite party No.2 is fallacious and devoid of merit and is rejected.
44. The present appeal has only been filed by opposite party No.2 meaning thereby that opposite party No.1, main registered office has accepted the verdict of District forum.. Once one of the main parties does not challenge the order, that order can be enforced against it. Even if for the sake of arguments, this appeal is allowed the benefit of the same can be restricted to the appellant-opposite party No.2 only not to the other opposite parties.
45. No other point was argued by the learned counsel for the appellant-opposite party No.2.
46. In view the above discussion, we hold that the District Forum has passed the impugned order after correctly appreciating the First Appeal No. 515 of 2016 36 evidence on record and the law, thus does not warrant interference by this Commission.
47. For the reasons recorded above, this appeal being devoid of merit must fail and the same is dismissed. The order of the District Forum is upheld. Cost made easy.
48. The sum of Rs.21,013/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
49. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 14, 2017 Bansal