National Consumer Disputes Redressal
Friends Club vs M/S. Cox & Kings (India) Ltd. on 4 October, 2012
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSION
NEW DELHI
MA NO. 343 OF 2012
(FOR AMENDMENT OF COMPLAINT UNDER O VI, R 17)
IN
ORIGINAL PETITION NO. 307 OF 1999
Friends Club
Through its President
Mr.
Naresh Gupta
40/215, LG F
Chittaranjan Park
New Delhi
Complainant
Versus
M/s Cox & Kings (India) Ltd.
H-Block, Indra Place
Connaught Circus
New Delhi 110 001 Opposite Party
BEFORE:
HON'BLE
MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HONBLE MR.
VINAY KUMAR, MEMBER
For the Complainant :
Mr. L. K. Garg, Advocate with
For the Opp. Party :
Mr. Vishnu Bakhru, Sr. Advocate
With Ms. Swati
Sinha, Advocate
Pronounced on_04.10.2012
ORDER
JUSTICE J.M. MALIK
1. The instant complaint was filed on 18.11.1999. The main grievance of the complainants was that OP should be directed to refund the tour expenses in the sum of Rs.19,12,695/-, paid by a group of family members and damages to the tune of Rs. 10,00,000/-, for a tour to Europe.
2. When the case was fixed for final arguments, learned counsel for the complainant moved an application for amendment of complaint, wherein the following averments were made. Vide Order dated 13.05.2009, this Commission treated the complaint as having been filed on behalf of fourteen persons who were named in the Resolution dated 07.10.1999. On the same day, counsel for OP raised an objection that since the complaint is to be treated on behalf of 14 persons, therefore, this Commission will have no pecuniary jurisdiction as at the relevant time when this complaint was filed, this Commission had the jurisdiction of Rs.20.00 lakhs above. When the case pertains only to fourteen persons, in that event, this Commission must have no jurisdiction because the total valuation would be reduced to an amount which should be less than Rs.20.00 lakhs.
3. It is now submitted that the OP1 had not charged from the complainant, air fare, i.e., INR 21,500+4,960, thus total amount for fourteen persons comes to Rs.3,70,440/-. Again, OP charged, per head, @ Rs. 28,820/-, thus the total amount comes to Rs.7,73,920/-. The OP further charged Rs.1,600/- as supplementary charges, per person, thus this amount comes to Rs.22,400/-, thus total amount of the aforesaid costs, comes to Rs.7,96,320/-. The said amount was charged in May, 1999 and the complainant is to refund the said amount along with 18% interest and this amount of interest comes to Rs.18,00,000/- for the period from 01.07.1999 till the year 2011, thus the total amount is Rs.25,96,320/-. The amendment application has given a long list for the deficiencies on the part of OP1. It is now contended that the following figures should be substituted:-
4. That in prayer clause in prayer a in place of the amount of Rs.19,12,695/- the figure of Rs.25,96,320/- be substituted.
5. That in prayer clause b for the figure of Rs.10,00,000/- the figure Rs.21,00,000/- be substituted.
6. Following prayer c be permitted to be added:
c. The respondent may be directed to refund to the Claimant a sum of Rs.17,353/- and Rs.6,194/- and Frank 2193 (in the currency of France) or amount equivalent to it in Indian Rupees as on 12.6.99.
7. Following prayer d be permitted to be added.
d. Interest @ 18% p.a. on the amount mentioned in prayers b & c may be granted w.e.f. 1st July, 1999 till the date of payment.
8. The following prayer e may be permitted to be added.
e. Cost of the litigation may be awarded to petitioner/claimant.
The order dated 13.05.2009 is reproduced as follows:-
13.05.2009 ORDER This order will govern the disposal of MA No. 291 of 2009 and 290 of 2009 filed by the complainant.
In M.A. No. 291 of 2009 which is being contested by filing reply by the opposite party, the prayer made is that this complaint may be entertained on behalf of the persons mentioned in Annexure-A to this application. In Annexure-A, names of 38 persons are shown.
We have heard Shri L.K. Garg for the complainant and Shri A.N. Haksar for the opposite party.
Section 2(i)(b) of the Consumer Protection Act, 1986 (for short the Act) defines the complainant thus:-
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government;
or
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative;
Who or which makes a complaint, Sub-Section 6 of Section 3 of the Act which is material, provides thus:-
Where the complainant is a consumer referred to in sub-clause (iv) of clause (b) of sub-section (1) of Section 2, the provisions of Rule 8 of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.
4. We have heard the learned counsel for the parties. The learned counsel for the complainant vehemently argued that his application should be allowed in the interest of justice or otherwise this Commission shall have no jurisdiction to try this case. Under the law, this Commission will return the case to be filed before the appropriate forum, i.e., most probably, the State Commission. He further submits that he has no objection if the case is transferred to the State Commission concerned, as he will not be required to start the case from the scrap.
5. This must be borne in mind that the complainant filed the complaint before this Commission on 18.11.1999, i.e. more than 13 years have elapsed. The consumer court is provided with powers to decide the case summarily.
It goes to show that the Consumer Court has taken more time than that is taken by a Civil Court.
6. Order VI, Rule 17 of CPC runs as follows.
17. Amendment of pleadings.-- The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
The proviso appended herein is crucial. There is no inkling on the record that in spite of due diligence the party could not have raised this matter before the commencement of trial. The only question to be considered by this Commission is whether such amendment would be necessary for the decision of the real controversy between the parties to this case. It appears that with the order passed by this Commission on 13.05.2009, the position stood changed wee bit. The contentious issue whether this Commission is to decide the case or it is to be decided by another forum or whether this Commission can transfer this case to that forum, or in the in the interest of justice, it should be retained by the Commission due to long pendency, will be considered at the proper time. The Commission cannot go out of way to help the Commission by retaining this case with itself. The application (MA No. 343/2012) deserves dismissal and therefore, the same is hereby dismissed. The case is now fixed for final hearing, on 29.10.2012, after notice to the parties and their counsel.
....
(J.M. MALIK, J.) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER dd/25