BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 248/2010 Filed on 11/08/2010

Dated: 16..05..2011

Complainant:

Rachitha Paul, Puthumana, Vakayar – P.O., Ronni, Pathanamthitta.

(By Adv. Czijy Chacko)

Opposite parties:

1. American Airlines, C/o National Travel Service, 4^th Floor, 41/42 Market Chamber – III, Nariman Point, Mumbai – 400 021.

2. Etihad Airways, Felecity Square, III Floor, Opp. AG's Office, Thiruvananthapuram.

(By Adv. A Abdul Kharim)

This O.P having been heard on 18..04..2011, the Forum on 16..05..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

This complaint has been filed by the complainant to direct opposite parties, the American Airlines, Mumbai and Etihad Airways, Thiruvananthapuram to pay compensation to complainant on account of loss of belongings and agony suffered by him on his Air travel from Los Angeles to Kochi in opposite parties' flight. 1^st opposite party has not turned up inspite of having accepted the notice and has thus remained ex-parte. While the 2^nd opposite party entered appearance and filed version contending interalia that this Forum lacks jurisdiction to entertain the complaint. 2^nd opposite party pressed for hearing the maintainability of this complaint before this Forum. Heard both sides on the issue of jurisdiction as a preliminary point. It has been argued by the 2^nd opposite party that this Forum lacks jurisdiction to entertain the complaint on two legal grounds. The first ground for want of jurisdiction is in connection with Rule 33 of the 3^rd schedule to Carriage by Air Act 1972; thereby Thiruvananthapuram is not the place of the domicile of the carrier or its principal place of business and the contract of the carriage was also not made in Thiruvananthapuram and it is also not the destination of travel. Submission urged by the 2^nd opposite party is that the Carriage by Air Act being the Special Act, its provision will prevail over the provisions in the general Acts including the Consumer Protection Act as held by the Hon'ble National Commission. The second legal ground for want of jurisdiction is the principles laid by the Hon'ble Supreme Court in (2010) ISCC 135 wherein the Hon'ble Supreme Court held that the consumer complaints cannot be filed in any court of choice of the consumer merely because the opposite party has a branch office in a place and court within whose jurisdiction the cause of action arose will only have jurisdiction to entertain a complaint. It is the stance of the complainant that the aforesaid decision of the Hon'ble Supreme Court reported in (2010) SCC 135 is regarding an appeal filed before the State Commission, Chandigarh for a cause of action occurred at Ambala, a place that comes within the Haryana State Commission. It has been further contended by the complainant that the Consumer Forum has right to adjudicate matters of this type (Deficiency). Along with complaint, complainant has produced documents such as copies of passenger Ticket & Baggage check, Baggage Claim Form and description of baggage contents. It appears from the passenger ticket and baggage check that complainant along with her son had taken passenger ticket to travel from Los Angeles to Kochi in opposite parties' flight. Complainant has never mentioned the date of her travel in her complaint. Opposite party has produced the copies of Documentation and duties of the parties relating to the Carriage of Passengers, Baggage and Cargo. The Carriage by Air (Amendment) Act 2009 Rule 33(1) of 3^rd Schedule of the Carriage by Air (Amendment) Act reads as under:

Rule 33(1): “An action for damages shall be brought at the option of the claimant of damages in the territory of one of the state parties, either before the court of the domicile of the carrier, or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination”.

We find none of the above mentioned location or events mentioned in this complaint so as to enable us to entertain the complaint before this Forum. It is to be noted that complainant travelled from Los Angeles to Kochi, the baggage was to be returned at Nedumpasseri Airport. The baggage in question was delivered to 2^nd opposite party at Kochin for the purpose of delivering it to the passenger. Further, it is submitted by the 2^nd opposite party that the contract of Carriage of complainant's baggage was performed by 1^st opposite party American Airways. It has been contended by the complainant that she along with her son boarded Flight No. AA2 of the American Airlines from Los Angeles to Newyork the next sector Newyork to Abudhabi in Flight No. 6005 and Abudhabi - Kochin Flight No. 280 of Etihad Airlines. Thereby it appears that none of the cause of action has arisen in Thiruvananthapuram. The issue herein is in regard to the territorial jurisdiction which comes under Section 11 of the Consumer Protection Act wherein it is stipulated a complaint shall be instituted in a District Forum within local limits of whose jurisdiction the opposite parties resolve, carry business or the cause of action wholly or in part arises. Complainant has not produced any material to show that cause of action, in part, arose in Thiruvananthapuram. Complainant can file a complaint in a court of jurisidiction where cause of action wholly or partly arises. The expression of branch offices in Consumer Protection Act means branch where cause of action has arisen which was confirmed by the Apex Court 2010(1) SCC 135. Since no cause of action arose in Thiruvananthapuram we have no territorial jurisdiction to entertain the complaint. In view of the reason stated in Rule 33(1) of 3^rd schedule of the Carriage by Air Act and the law observed by the Hom'ble Apex Court in the ruling reported in 2010(1) SCC 135, discussed herein above we find complaint is not maintainable as this Forum lacks territorial jurisdiction to entertain this complaint. Complaint is returned to the complainant with liberty to approach appropriate Forum for redressal of grievance.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16^th day of May, 2011.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

MEMBER .