State Consumer Disputes Redressal Commission
Mr. Joao Xavier Ramos Fonseca, vs Consulado Geral De Portugal Em Goa, on 23 July, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Suo Moto Revision No. 02/2012 Mr. Joao Xavier Ramos Fonseca, H. No 380, Umbra, Salvador do Mundo, Bardez, Goa. ..Complainant V/s Consulado Geral de Portugal em Goa, through Consul General in Goa, Parvati, H. No.38/39, Fr. Agnelo Road, Altinho, Panaji, Goa ........Opposite Party Complainant is represented by Adv. Shri N. G. Kamat. Opposite Party ex-parte. Adv. Raunaq Rao, Amicus Curiae is present Coram: Shri Justice N.A. Britto, President Shri. Jagdish G. Prabhudesai, Member Dated: 23/07/2012 ORDER
[Per Shri Justice N. A. Britto, President]
1. This Suo Moto Revision is directed against order dated 21/12/2011 of the learned District Forum, North Goa at Porvorim in Complaint No. 73 of 2010. In order to dispose off the same, some facts are required to be stated.
2. The complainant and his wife had decided to go to Lourdes in France and Fatima in Portugal on a pilgrimage with a view to celebrate their silver wedding anniversary there on 30/09/2008. The complainant approached the Consulate Consulado Geral de Portugal em Goa/ Consulate General of Portugal in Goa Opposite Party in the said complaint for a schengen visa and paid a sum of 60 euros equivalent to Rs.3,923/-.
on 16/09/2008 The visa was issued to the complainant on 22/09/2008. As the complainants wife was based in Doha, she obtained another similar visa from the embassy at Qatar. The complainant proceeded to Doha-Qatar and both were to proceed to France and Portugal via Paris on 15/10/2008. At the airport the complainant was told that he could not travel because his visa was stamped from 06/10/2009 to 19/11/2009 instead of 06/10/2008 to 19/11/2008. The complainant was shocked and disappointed that such a mistake was made by the Consulate. The complainant and his wife did not board the plane to Paris on that date. The complainant got in touch with the Consulate and informed it about the situation in which the complainant was placed, and requested for assistance. The complainant informed the Consulate that the airline had agreed to accommodate them on 17/10/2008 on their flight. The complainant was told to send his passport by courier so as to rectify the mistake. Complainant informed the Consulate that the passport could not be couriered to them as he was required to carry the same, for various reasons. The complainant claimed that he lost the payments made towards accommodation in Rome, Italy etc. and in all Rs.1,07,405.80.
3. The case of the complainant was that the Consulate did not ensure that the visa was properly stamped on the passport and thereby committed a gross deficiency in service. The complainant filed the complaint on 28/07/2010 seeking to recover Rs.1,07,405.80, compensation of Rs. 5,00,000/- and Rs.1,50,000/-
etc. It appears that the Opposite Party at one stage had taken the stance that the Complainant ought to have brought to their notice the said mistake at the time of collection of visa.
4. The Consulate/ opposite Party did not respond to the notice sent by the learned District Forum of the complaint filed against them, and as a result an ex-parte order came to be made on 20/01/2011. Dissatisfied with the quantum of compensation awarded, the complainant preferred an appeal and when the appeal came for admission following order came to be made:
Shri. Joao Xavier Ramos Fonseca has obtained an exparte order/decree from the Lr. District Forum, North Goa, against Consulado Geral de Portugal em Goa in the sum of Rs. 1,07,405.80 etc., as against Rs. 5 lacs claimed by him, on the allegation that there was deficiency in service on the part of the Embassy of Portugal (or is it the Consulate?) in recording on his passport a wrong date of Visa as 6/10/09 to 19/11/09 instead of 6/10/08 to 19/11/08 on account of which he could not travel to France.
Dissatisfied, with the said order/decree, the said Shri. Fonseca has filed first appeal No. 3/12 for enhancement of compensation.
However, it is necessary before we issue a notice in the said appeal, to examine whether the Lr. District Forum had jurisdiction to pass such an order in his favour.
The Consulate represents a Sovereign-the Republic of Portugal. In other words, the Consulate is some sort of a department of that Government. Does a Sovereign provide a service within the meaning of that expression used in C.P. Act, 1986 while processing application for grant of Visa? If so, can a complaint for deficiency of such service be filed against such a Sovereign without the permission of the Central Government? Does not a foreign Government enjoy certain immunities under international law?
Prima facie, it appears that the Lr. District Forum had no jurisdiction to pass the order dated 21/12/11 in C. No. 73/10 against the Consulate General of Portugal in Goa. The correctness of the order deserves to be examined under section 17(1) (b) of the C.P. Act, 1986. Let this order be treated as Suo Moto revision and notice of the same be issued to the said Shri. Fonseca, Complainant in C. No. 73/2010, as well as the said Consulate General of Portugal in Goa, the Opposite Party in the said complaint, at the given address.
5. The Consulate also did not respond to the notice of this revision sent to them but it appears that the Embassy of Portugal had taken up the matter with the Ministry of External Affairs, Govt. of India, stating that the order dated 21/12/2011 did not comply with the Vienna Convention on Consular Relations.
The Ministry of External Affairs in turn sent a copy of the said letter dated 19/04/2012 to the learned District Forum.
6. Before we proceed further it would be necessary to refer to some of the definitions given in the Consumer Protection Act, 1986.
6.1 Section 2 (b) of the Consumer Protection Act defines complainant to mean :
i) a consumer; or
ii)
iii)
iv)
v) 6.2 Section 2 (c) defines complaint to mean any allegation in writing made by a complainant that
i)
ii)
iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect.
6.3 Section 2 (d) defines consumer to mean any person who
i)
ii) hires or avails of any services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.
6.4 Section 2 (o) defines service to mean service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
6.5 Section 2 (g) defines deficiency to mean any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
7. Shri Raunaq Rao, the learned Amicus Curiae in his submissions, has extensively referred to the Vienna Convention on Consular Relations, and therefore, it would be necessary to refer to some of its provisions. The Convention was held in Vienna on 24/04/1963.
India has accorded its accession to the Vienna Convention on Consular Relations on 28/11/1977.
7.1 Article I (1) (a) of the Convention defines a consular post to mean any consulate-general, consulate, vice-consulate or consular agency;
7.2 Article 5 of the Convention deals with Consular functions and provides that Consular functions consists in:
(a) Protecting in the receiving State the interest of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law;
(b)
(c)
(d) issuing passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending State;
(f)
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending States in cases of succession mortis causa in the territory of the receiving State, in accordance with the laws and regulations of the receiving State;
7.3 Article I (1)(d) defines consular officer to mean any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions;
7.4 Article I (1)(e) defines a consular employee to mean any person employed in the administrative or technical service of a consular post;
7.5 Article 2 of the Convention deals with establishment of consular relations 7.6 Article 3 deals with consular functions and states that consular functions are to be exercised by consular posts and they are also exercised by diplomatic missions in accordance with the provisions of the present Convention.
7.7 Article 4 (1) of the Convention provides that a consular post may be established in the territory of the receiving State only with that States consent.
8. Shri Raunaq Rao, the learned Amicus Curiae would submit, after referring to the definitions of consumer, service given in the Consumer Protection Act and the consular functions enumerated in Article 5 of the Convention that the functions performed by a Consular Officer or a Consulate employee are sovereign functions performed on behalf of the sending State. Shri Rao would submit that this position stands clarified by article 5 (d) of the Convention whereunder issuing of a visa or an appropriate document to persons wishing to travel to the sending State is a sovereign/ consular function. According to Shri Rao, the Consular officers and the Consular employees of the Consulate in discharge of their consular functions do not perform a commercial activity and that the grant or rejection of a visa is subject to a case to case basis and hence the same cannot qualify as rendering of any service for consideration, nor does it involve any hiring of any service and therefore learned Amicus contends that the discharge of consular function such as that of issuance of a visa or other appropriate travel document cannot fall within the meaning of a word service as defined in section 2(1) (o) of the Consumer Protection Act. Shri Rao would submit that a distinction has to be drawn between sovereign and commercial functions and while commercial functions can be performed by anybody, sovereign functions can be performed only by the State. Shri Rao would submit that the fees paid by the Complainant are not by way of consideration for the issuance of visa. Learned Adv. Shri Rao further submits that while applying for a visa a citizen does not hire the service of the authority issuing the visa. Shri Rao would submit that even if the fees are accepted yet the visa can be refused and further submits that there have been cases in this Country when even a Chief Minister has been refused a visa to visit the USA.
9. On the other hand, Shri N. G. Kamat learned advocate on behalf of Complainant would submit that issuing of a visa is a service provided for by all the Consulates on payment of requisite fees which is a consideration for issuance of a visa. Shri Kamat submits that it is a service for consideration. According to him mistake made by the Opposite Party amounts to deficiency. According to him, making a mistake in writing the date of visa on the passport is certainly not a consular function lawfully carried out in as much as the Convention does not provide for a remedy for such mistakes and the remedy therefore can be availed under the general law of the land and in this case under the Consumer Protection Act. Shri Kamat would submit that a Consulate, if they so wish, can even waive the immunity . According to him, the Vienna Convention would not be applicable to the facts of the case.
10. Shri Rao has made submissions in relation to questions raised by us in order dated 07/03/12 questionwise. As regards the first question raised by our order dated 07/03/2012, we are entirely in agreement with the submissions made by Shri Rao, the learned Amicus Curiae. Does the Consulate on behalf of the Republic of Portugal offer visas for consideration?
Or does a citizen hire or avail such visas for consideration? Obvious answers to both the questions have to be in the negative. The expression service as used in section 2(1) (o) may have a wide meaning but it certainly cannot extend to sovereign functions which a Sovereign is required to perform and performs through the Consulate or the Embassy. It can be seen from article 5
(d) of the Convention that the issuing of passports or visas or travel documents is a function performed by the State. In other words, it is a Sovereign function. It cannot be performed by any one else except the Sovereign. There is no element of commercialism in the whole process of applying for and issuing of a visa. It is not something like buying or selling or hiring of services being rendered. The function does not stop after issuing of visa. It continues to extending protection to the nationals in the receiving State. No doubt certain fees are paid but they are paid for processing of the application and not quid pro quo for granting of the visa. We therefore agree with the submissions of Shri Rao that the Consulate while issuing a visa does not provide any service to a citizen as defined in section 2 (1) (o) of the Consumer Protection Act but performs a Sovereign function and if any mistake is made while granting the same the citizen can have no remedy under the Consumer Protection Act.
11. We are supported in our view by a decision of Gujarat State Commission in state of Gujarat v/s Akhil Bhartiya Grahak Panchayat (1993 I CPR
327) wherein it was held that a distinction was required to be made between the Sovereign acts and functions of the State vis--vis its commercial functions or activities. We have not been able to lay our hands on the said decision, as reported, but it appears that the State Commission answered in the negative the proposition that a fee paid by a litigant in the form of a court fee would not be termed as consideration for services hired from the State and in relation to the same a complaint would not lie under the Consumer Protection Act. The said decision was taken in revision before the National Commission in RP No.108/1993 and revision petition was dismissed by Honble Mr. Justice V. Balkrishna Eradi (as he then was). The National Commission after taking note of the question raised whether a litigant who has instituted a suit or other proceeding in a Civil Court after payment of court fee can be regarded as a consumer who has hired or availed of a service on payment of consideration proceeded to dismiss the revision, quoting the State Commission as follows:
In entertaining and adjudicating upon a suit or other proceeding filed before it, the Court is acting in the exercise of the sovereign judicial power of the State and it is not rendering a `service in pursuance of a contract between the litigant and the Court for which consideration has been collected. The dispensation of justice is conducted by the Court not as a QUID PRO QUO for the Court fee that has been remitted. All sums levied and collected as Court fees go the consolidated fund of the State and hence it cannot be said that the payment of Court fee was by way of consideration for the hiring or availing of a service from the Court. The State Commission was, therefore, perfectly right in setting aside the order of the District Forum and dismissing the complaint petition wherein the grievance put forward by the complainant was that there were serious deficiencies in the set up of the Civil Judicial Administration in the State of Gujarat. (emphasis ours).
12. We are therefore of the view that the Consulate was only performing a sovereign function of issuing a visa on behalf of the Republic of Portugal and was not rendering any service as such to the Complainant as defined under Consumer Protection Act and therefore there was no question of any deficiency in service in case a mistake was made entering the wrong date of visa on the passport of the complainant. In our view the learned District Forum exercised jurisdiction illegally in entertaining the complaint and passing an order in favour of the complainant. The complaint was clearly, not maintainable under Consumer Protection Act.
13. In view of our above conclusion, it is really not at all necessary for us to answer 2nd and 3rd questions raised in our order dated 07/03/2012 but some observation in relation to the same would not be out of place.
14. In support of the 2nd question Shri Rao has placed reliance on Ethiopian Airlines v/s Ganesh Narain Sabu, AIR 2011 SC 3495, and has submitted that in view of the said judgment, section 86 CPC now would not apply because as per the Apex Court, section 86 CPC is inapplicable to proceedings under Consumer Protection Act notwithstanding that the Honble Apex Court has held that the proceedings under Consumer Protection Act are suits. According to him, the Apex Court has now held that section 86 CPC is inapplicable because the legislative intent is deemed to have excluded older and move general statutes by more recent and special statutes like Consumer Protection Act and Carriage by Air Act, 1972 and the Consumer Protection Act having enumerated those provisions of CPC that are applicable before the Consumer fora, the Legislature impliedly made Section 86 CPC inapplicable to consumer proceedings.
15. Lr.
Adv. Shri Rao, may be right. Section 86 CPC deals with suits against foreign Rulers, Ambasadors and Envoys. The earlier view held regarding section 86 (1) CPC was that the said provision was imperative and could not be waived. (see AIR 1938 PC 165 and AIR 1958 Bom 30). The Constitution Bench in Mirza Ali Akbar Kashani V/s United Arab Republic and anr (AIR 1966 SC 230) has held that the provision of section 86 (1) was not merely procedural. The collorary of that would be that the provision of section 86 (1) CPC is substantive provision, and if that be so, it was required to be followed in all suits including in proceedings under Consumer Protection Act which have been held as suits but this aspect does not appear to have been highlighted before the Apex Court while deciding Eithopian Airlines (Supra). We leave it at that.
16. As regards the 3rd question Shri Rao submits that the Vienna Convention now forms part of United Nations, treaty series, vol.596, and India having accorded its accession, the Consulate would enjoy immunity by Virtue of Art 43(1) of the Convention.
17. Here, Lr. Adv. Shri Rao may not be right.The Apex Court in Eithopean Airlines itself has stated that the object of section 86 of the Code is to give effect to the principle of international law; but in India it is only a qualified privilege because a suit can be brought with the consent of the Central Government in certain circumstances. It can be said that the effect of section 86 thus is to modify the extent of doctrine of immunity recognized by international law. If a suit is filed in an Indian Court with the consent of the Central Government as required by section 86, it shall not be open to any foreign State to rely on the doctrine of immunity.
18. We place on record our appreciation for the valuable assistance rendered by Lr. Amicus Curiae.
19. In view of the above discussion, we answer the first question against the Complainant. We do not answer in one way or other the second and third questions. The revision petition therefore deserves to succeed. The order dated 21/12/2011 is hereby set aside and the complaint no. 73/2010 is dismissed for want of jurisdiction. First Appeal no. 3/12 is dismissed as infructuous. Considering the facts, the parties to bear their own costs.
(Shri Jagdish Prabhudessai) (Justice Shri N.A. Britto) MEMBER PRESIDENT