State Consumer Disputes Redressal Commission
M/S. Cox & Kings India Ltd., vs Mr. Nagamanickam Balaji And Ethirajulu ... on 15 December, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I COMMON ORDER IN F.A.NO.384/2003 and F.A.NO.385/2003 (Against order in C.C.No.55/2001 and CC.No.56/2001 on the file of the DCDRF, Salem) DATED THIS THE 15th DAY OF DECEMBER 2009 F.A.NO.384/2003 1.
M/s. Cox & Kings India Ltd., Grindlays Bank Building 270/272, Dr.D.N. Road Mumbi
- 400 001
2. M/s. Cox & Kings India Ltd., 11, Rangam Ceebros Senatoph Road, Teynampet Chennai
- 600 018 Appellant / Opposite party Vs. Mr. Nagamanickam Balaji S/o. Nagamanickam Chettiar 275, Sevvapettai Main Road Salem - 636 002 Respondent / Complainant F.A.NO.385/2003
1. M/s. Cox & Kings India Ltd., Grindlays Bank Building 270/272, Dr.D.N. Road Mumbi
- 400 001
2. M/s. Cox & Kings India Ltd., 11, Rangam Ceebros Senatoph Road, Teynampet Chennai
- 600 018 Appellant / Opposite party Vs. Ethirajulu Sairam 52, Ammapet Main Road Salem - 636 001 Respondent/ Complainant The respondents as complainants filed complaints before the District Forum against the Appellants/opposite parties praying for the direction to the opposite parties to pay compensation and for cost. The District Forum allowed the complaints. Against the said order, this appeal is preferred praying to set aside the common orders of the District Forum dt.29.11.2002 in CC Nos.55/2001 & 56/2001.
This appeal petition coming before us for hearing finally on 30.11.2009. Upon hearing the arguments of the counsels for either parties, this commission made the following order:
Counsel for the Appellants/Opposite parties: M/s.Mothilal, Goda & Kalliat, Advts.
Counsel for the Respondents/ Complainants: Mr. S.Vijayakumar Advocate M. THANIKACHALAM J, PRESIDENT
1. The opposite parties in CC No..55/2001 and 56/2001, having suffered adverse orders, have preferred the appeals in F.A.No.384/2003 and F.A.385/2003 respectively.
2. The respondents in both the appeals, as complainants, filed CC Nos.55 and 56/2001, against the opposite parties/ appellants, seeking direction to pay a sum of Rs.3 lakhs towards compensation for the deficiency of service, further a sum of Rs.1 lakh as compensation for mental agony, and a sum of Rs.50000/- for the loss of Panasonic camera and cassettes, and a further a sum of Rs.10,000/- towards litigation expenses and telephone charges each, on the grounds, with many other identical grounds, that believing the advertisement and other materials supplied by the opposite parties, they have booked tickets for the complainant, and their family members, for the European tour arranged by the opposite parties, that the opposite parties have not only failed to conduct the tour properly, having issued confirmed tickets, but also failed to take the complainants and their family members to the tour sports as promised, that they were compelled to purchase even tickets at their expenses at the last moment, that they have not provided guide during the tour to explain certain things, that they have not provided vegetarian meal as promised, and that because of the poor security, they have also last their camera and other things, thereby they have committed deficiency in service, causing mental agony and sufferings, for which the complainant should be compensated for the above said claims, thereby prayed for directions.
3. The opposite parties/ appellants opposed the above complaints, interalia on the grounds, that the Forum has no jurisdiction to decide the case, further denying other averments also, which are against them, praying for the dismissal of the complaints (since territorial jurisdiction alone was urged before us, other related pleadings are not extracted in detail).
4. Based on the pleadings, as well marking documents on either side, the District Forum took the case for consideration. After hearing, oral submissions, perusing the records etc., the District Forum, came to the conclusion, that it has jurisdiction to decide the case. Thus conferring jurisdiction upon it, came to the further conclusion that there was deficiency in service, resulting inconvenience and other sufferings to the complainants and thus concluding in COP.No.55/2001, a direction has been issued against the opposite parties, to pay a sum of Rs.150000/- towards compensation for deficiency in service, to pay a sum of Rs.25000/- towards loss of Panasonic camera etc., a sum of Rs.15000/- towards compensation and a sum of Rs.500/- towards cost. In COP.No.56/2001, the District Forum directed the opposite parties to pay Rs.150000/- as compensation for deficiency in service and a sum of Rs.15000/-
towards compensation for mental agony and Rs.500/- as cost, which are under challenge, before this Commission.
5. The appeals were filed in the year 2003, and as seen from the notes, there was no representation, for respondents and in order to give chance, the case was adjourned finally for disposal on 30.11.2009, on which date the appellant argued the case, whereas there was no representation for respondents. Already, the respondents have filed written submissions, and on that basis, both the appeals are decided on merit.
6. Heard the learned counsel for appellants, perused the documents relied on, as well as written submissions made by either parties.
7. The only point urged before us, by the learned counsel for appellant is that in both the cases, the District Forum at Salem, has no territorial jurisdiction to decide the cases, and this being the position, giving finding as if the opposite parties have committed deficiency in service, then ordering certain compensation, would amount to violation, in the sense, order passed without jurisdiction, and therefore the orders should be set aside. In support of the above submissions, learned counsel for appellants drew our attention to the pleadings, as well as certain rulings of the High Court as well as National Commission. By going through the pleadings, as well as Sec.11 of the Consumer Protection Act, and the response of the opposite parties, we are also of the considered opinion, that the Forum had exceeded its jurisdiction, that too when the complainants themselves have not made out the case.
8. Admittedly the 1st opposite party is having its registered office at Mumbai.
The 2nd opposite party, which is the branch office of the 1st opposite party, is having its office in Teynampet, at Chennai, which are not within the territorial jurisdiction of the District Forum, at Salem.
9. Sec.11(1) of the Consumer Protection Act, defines, pecuniary jurisdiction, and sub Sec.2, defines territorial jurisdiction, where case has to be filed.
Sec.11(2)(a)(b) says, that a complaint should be instituted, in a District Forum, within the local limits of whose jurisdiction the opposite party resides, or carries on business, or has a branch office, or work personally for gain. In view of the admitted position, that both the opposite parties are not actually residing within the local limits of District Forum, Salem, or not having any branch office at Salem, then the District Forum, has no jurisdiction, under the above section. If at all, the complainant has to fall back upon sub Sec.(c) of Sec.1 (2) of the Consumer Protection Act, which says "the cause of action wholly or in part arises". To invoke this clause, the complainants should plead specifically in the complaint, that too, in view of the admitted facts that the opposite parties are not residing within the local limits of District Forum, Salem, how that Forum has jurisdiction. In both the complaints, we are unable to find any paragraph, even indicating/ informing, how the District Forum, Salem, had jurisdiction, to entertain the case. While taking the complaint on file also, it was not questioned, by way of return. Our effort by going through the complaints, also ended in vain, conferring jurisdiction upon the District Forum, Salem, either impliedly or otherwise by pleadings. In the affidavits also, we are unable to see any averments, stating or informing that District Forum at Salem, has jurisdiction because of the fact, that some of the connected transaction took place at Salem, therefore, part of cause of action had arisen at Salem, thereby, attracting Sec.11(2) ( C) of the Consumer Protection Act. In the absence of any pleadings, it is not known, how the District Forum had taken the case on file, and decided the case also on merit, and in this view as rightly submitted by the learned counsel for appellant, it should be held that District Forum Salem, exceeded its jurisdiction, on the presumption and assumption, on the basis of surmise and conjuncture, as if it had jurisdiction, which we are unable to accept, for which we assign reasons also hereunder.
10. In paragraph 1 of the complaint, it is said that the complainant planned to visit Europe, and other countries, and the 2nd opposite party, having its head office at Mumbai, approached the complainant, and assured to do necessary and proper service. Here also, it is not the case that any transaction by the opposite parties, had taken place at Salem to say that part of the cause of action had taken place at Salem.
11. The opposite parties/ appellants, in their written version, have specifically questioned the territorial jurisdiction of the District Forum Salem, under separate heading "territorial jurisdiction", wherein they have raised, not only the territorial jurisdiction of the District Forum, Salem, on the ground that the parties have agreed to settle the dispute if any at Mumbai, but also on the ground that want of cause of action at Salem.
Even after the version filed by the opposite parties, it seems no attempt has been made, to amend the complaint, if possible, introducing any allegations regarding the jurisdiction.
Generally, after filing written version alone, proof affidavit should have been filed. So, atleast in the affidavit, the complainant should have stated cause of action partly had arisen at Salem, giving instance, details, dates, which are also absent. This being the position, it seems an argument was advanced before the District Forum, as if part of cause of action had arisen at Salem, and accepting the same, it was held that For a had territorial jurisdiction, and regarding this aspect, we find some observations in paragraph 9 of the judgement, which reads ;
"It is the case of the complainants that the opposite parties' agent came to Salem and canvassed for the booking of the said tour on behalf of the opposite party and the amount for the said tour was paid to the agent at Salem. Further it is argued on the side of the complainant that though the opposite parties were at Bombay and Chennai, the complainants had made all the arrangements for the said tour through their phone from Salem."
Based upon the above argument alone, without material, the District Forum accepted the argument, which is not legally sound. The telephonic conversation if any, canvassing if any, assuming it emanated from Salem, certainly will not form part of the cause of action to confer jurisdiction, and the cause of action must be with reference to the actual transaction of the tour, emanating from the opposite parties. Admittedly, the opposite parties are not residing at Salem, and therefore it is highly impossible to conclude that part of cause of action had arisen at Salem, from the opposite parties, thereby, conferring jurisdiction upon the District Forum at Salem. The District Forum relied on Ex.A13 also, which does not indicate that amount was collected at Salem, though the address of the parties, from whom amount was collected, is given as Salem address. In the absence of any pleadings, and in the absence of evidence by way of affidavit also, conferring jurisdiction upon itself, based upon the arguments, is not legal, for which we are unable to affix seal of approval. If the opposite parties had promised for any act, consequentially any act was carried out at Salem, then only it could be said that part of cause of action, in respect of that dispute, had arisen at Salem, not otherwise.
12. In this case, assurance given by the opposite parties, to make an arrangement to take the complainants to world tour, and payment of money by the complainants, are not in dispute, and for that no case has been filed, as if there was breach in the initial stage itself, thereby giving cause of action, to file the case in the District Forum at Salem. By going through the complaints, it is seen, all the accusations leveled against the opposite parties, which gives cause of action for the claim, arises only from Chennai. Therefore, for the deficiency complained, that had not taken place at Salem, the District Forum at Salem cannot have jurisdiction, and that is why, while taking the case on file itself, the place of opposite parties will be considered, than the cause of action. In this view also, for the amount claimed or for the articles said to have been lost, no part of cause of action had arisen at Salem, and on this ground also, the complaint is not maintainable. For the loss sustained, damage claimed, case cannot be maintained on the basis of cause of part of action had arisen, but on the basis, where the opposite parties resides, and in this view, the complainants should have filed their case, either at Chennai, or at Mumbai, certainly not at Salem.
13. In Suguna Poultry Farm Limited, Coimbatore and another Vs. Arul Mariamman Textiles Ltd., Pollachi, reported in (2004) 4 MLJ 39, the High Court has held, that under what circumstances, part of cause of action said to have arisen, would confer jurisdiction, and how the court can take the case on file also. It is further held that, when the case is filed, where no cause of action had arisen, which has also ordered to strike out the plaint, which principle is well applicable to the present case also.
14. The National Commission in Kamakashya Prasad Vs. Lalji Sah Krishi Kendra & Others reported in CDJ 2004 (Cons.) Case No.083 has held that a case could be filed only the place, where actual cause of action had arisen, or where the opposite parties resides. In the case involved, it seems the complainant had purchased certain seeds from a person, who was residing at Bahalpur, and when he sown the seeds in his village in Deoghar District, it did not germinate. Since seeds had not germinated, a case came to be filed at Deoghar District Forum, and the plea of territorial jurisdiction was raised. Considering that the opposite party, doing business at Bahalpur, and he was not having any branch at Deoghar, it is held that no part of cause of action had arisen, within the jurisdiction of Deoghar District Forum, and in this view it had no territorial jurisdiction. Further observing, place at which seed was sown, did not have any relevance in the matter. Similarly, the telephonic conversation, said to have been emanated from Salem or the Agent contacted the complainants at Salem, cannot have any relevancy and that will not form, cause of action to file the case in District Forum at Salem, for the deficiency said to have been caused. Unfortunately, the District Forum, without considering the fact, that there was no plea regarding the cause of action, and no evidence, merely placing upon the argument committed an error in conferring jurisdiction upon it, and further committed an error in deciding the case, directing the opposite parties to pay the amount, which should be held that order passed without jurisdiction. On the sole ground, both the appeals deserves acceptance. In view of our above findings, that the District Forum at Salem, has no jurisdiction, it is unnecessary for us, to decide the case on merit otherwise.
15. In the result, both the appeals are allowed, setting aside the common order passed by the District Forum, Salem, in C.C.Nos. 55/2001 and 56/2001 dt.29.11.2002, and the complaints are dismissed. There will be no order as to cost, throughout.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/ travels