Gujarat

Surat Addl

CC/17/66

ARIF KHAN SAID KHAN PATHAK - Complainant(s)

Versus

ETHIOPIAN AIRLINES - Opp.Party(s)

P.R.RAJPOOT

25 Jan 2018

ORDER

Order Below Exhibit – 7

Application No: 66 of 2017

1. This application has been made by the opposite party in which it is pleaded that petition/complaint filed by the complainant is not maintainable on point of jurisdiction so on preliminary issue whether this consumer forum has jurisdiction to try the complaint requires to be decided.
2. In this application mainly the opposite party has pleaded that this forum has no territorial jurisdiction to entertained and try the complaint, it was pleaded that in view of judgment of Hon’ble National Consumer Disputes Redressal Commission in case of Tata Timken Ltd.  vs.  Mrs. Saroj Gupta, in which it was held that when preliminary issue application has been given by the opponent there should be decided earliest, it was pleaded that as per Sec. 11 of the Consumer Protection Act the opposite party is volunteerily resides and carrying on business at Mumbai, it has no branch office at Surat, thus there is a bar of Sec. 11 of the Consumer Protection Act and hence this application should not have been entertained.
3. It is also pleaded that as per say of the complainant he is residing at Palsana district Surat thus also when he is not residing within the branch office of opponent no 1 at Mumbai, thus district forum has no jurisdiction to entertain and try this application. It was also pleaded that cause of action fully or partly has never aroused in Surat thus also this complaint should not be try by this forum.
4. The learned advocate for the opponent has argued in support of this application that as per documents relied by the complainant it is not in dispute he is staying at Palsana, Surat. Moreover as per facts stated in the complaint and documents in support of this case and more particularly para no 6 and 7 airline ticket of the opponent was booked to carry mother of the complainant in Ethiopian Airlines for which tickets were booked, it was further pleaded in para no 6 that the opposite party i.e. airlines told to complainant that his mother could not travel to India without professional doctor so tickets booked earlier were changed and they were forced to stay in South Africa for which extra cost was incurred, it was also pleaded in para no 8 of the complaint that as per exhibit C doctor has certified that complainant's mother is fit to travel by airplane but she needs to be in sleeping position of 30-45 degrees and needs no oxygen to travel India.

So accordingly tickets were booked and other necessary medical equipments were arranged. It was also alleged in para no 9 and 10 of the complaint that oxygen arrangement was not made by opposite party at Mumbai and Ethiopia airport so again travelling date was to be changed for which complainant and others have to make arrangement to stay in private hotel. Thereafter complainant's mother was shifted in plane on 20/09/2016 with paramedical service from Addis Ababa airport, doctor who accompany complainant's mother informed crew-members to have stature complainant's mother from shifting her in another plane. However stature was not arranged but crew-members has tied the patient like a (જોલી) due to that the complainant's mother could not take proper breath and lost her life in folded cloth, thus it was pleaded that there is a gross negligence on part of the opponent in carrying complainant's mother from Addis Ababa to Mumbai thus medical negligence was attributed to the opponent.

5. The complainant has stated in para no 16 of the complaint that the complainant is residing at Palsana, Surat so this forum has territorial jurisdiction to try the case out, in prayer clause it was pleaded that opponent be directed to pay a sum of Rs. 15,00,000/- towards loss of complainant's mother and also cost of Rs. 1,15,000/- being airfare, medical expenses and other para medical charges, accommodation of  travel and another Rs. 1,00,000/- for physical pain and agony and cost of Rs. 25,000/- for legal expenses and filing this complaint. Thus in brief above are short facts of the case.
6. It will be necessary to point out that the complainant has filed counter reply to the written statement of the respondent at exhibit 8, of course no new facts are pleaded but certain contentions are taken i.e. as per para no 4 opponent airlines office is situated at Andheri Mumbai, the complainant along with his wife and daughter went to South Africa since complainant mother met with an severe accident and she was under treatment, it is also pointed out in the reply that after doctor give permission to fly complainant's mother to India airline tickets which were booked by the complainant from India for 20/08/2016 were confirmed.

However the opponent informed complainant at last minute that doctor must accompany with complainant's mother so complainant uncle had to make last minute arrangement for booking air ticket for a doctor however that was not possible and hence on 20/08/2016 complainant could not fly back to India so finally respondent issued new date of travel on 19/09/2016 and due to that complainant has to stay and incurred unnecessary expenditure.

7. It was also pointed out that opponent had made series of harassment to fly back complainant's mother to India i.e. a) change in date b) not providing full medical facilities till Addis Ababa airport and not taking complainant's mother in a stature in plane or onward journey from Ethiopia to Mumbai.

It was alleged in this statement as well as earlier that due to carelessness by tied-up complainant's mother in white cloth and not taking her in a stature she expired for want of fresh air. It was also stated by the complainant that he had made necessary arrangement to take his mother from Mumbai airport to Palsana in Ambulance for which expenses were incurred.

8. In counter reply the complainant has stated that there was total negligence on part of the opponent, it was also necessary to point out that in brief reply of the complainant against application given by the opponent on point of territorial jurisdiction it was stated that due to negligence on part of the opponent complainant's mother expired.

The main contention of complainant is pointed out in para no 1 that since air ticket were booked through internet, it cannot be said that this forum has no jurisdiction to try the case out, it was pointed out that since complainant is staying at Palsana within territorial of this forum so this forum has jurisdiction to try the case.

M. D. Air Deccan cited to support view that when air ticket are booked through internet place from where air ticket are booked have jurisdiction to try case before consumer forum. In para no 2 complainant has explained as to how jurisdiction of this forum is not ousted, help of sec. 11 B of the consumer protection act is relied and pointed out that itinerary of the air ticket was planned in district surat that within jurisdiction of this forum, thus jurisdiction of this forum is not ousted.

9. It will also be necessary to point out rejoinder filed by the opponent against complainant, in the said reply opponent had mainly pleaded that since complainant as well as his mother and others were to be travelled to India on 19/09/2016 for which tickets were booked, earlier ticket dated 22/07/2016 has no value in the sense that these tickets cannot be a valid ground to argue that tickets were booked through internet through Bardoli travel agent and hence jurisdiction of this forum cannot be pleaded.

Much of the reply is in the form of what cause of action means will also revert to that point little later, few documents in support of this case is also relied which are in nature of e-mail correspondence between opponent and travel airlines. Moreover the opponent has also at page no 10 of the reply had produced an extract from netbank showing to meet the expenses of air ticket of 19/09/2016 amount was withdrawn by Mr. Shekh, extract of a bank account to show that same amount was credited in the account to meet expenses of tickets, few authorities as well as extract from law of consumer protection act are also relied to which we'll turn later.

10. So now basically we have to answer exhibit-7 raised by the opponent regarding preliminary jurisdiction issue on the point of jurisdiction, we have stated earlier reply and counter reply of both the parties so no need to go into detail, basically question is regarding whether this forum has jurisdiction to try the case which rest on the fact that negligence was shown by the opponent in carrying complainant's mother from Addis Ababa Airport in a plane to fly Mumbai thus whatever has happened at Addis Ababa airport which are not in dispute, death certificate of and other related documents shows that complainant's mother had died natural death in Ethiopia, the complainant has produced 3 documents at exhibit-F, thus fact remains that complainant's mother expired at Addis Ababa airport, of course what cause of death of her is question of fact which we are not required to answer at this time.
11. The complainant has produced many documents however important document is doctor certificate at mark-C regarding state of health of complainant's mother while at exhibit-D Xerox copy of air ticket from Ethiopia Addis Ababa to Mumbai is relied. The learned advocate for the complainant has produced at mark-C the receipt of tickets of complainant's mother and it was argued that as per payment/fare details payment was made in cash so this fact of the matter requires to be dealt in detail. The complainant in his complaint in para no 9 alleged that last minute they have informed that due to no message of oxygen, the complainant's mother could not travel on 16/09/2016, so in spite of efforts made by the complainant's uncle air tickets were not obtained, ultimately as per say of the airlines tickets were booked on 20/09/2016 on that day complainant along with his family including his mother were slated to fly back to India they came back from Johannesburg to Addis Ababa airport as stated in para no 11 of the complaint subsequently complainant's mother was not taken in a plane from Addis Ababa to Mumbai in stature but she was tied in piece of cloth, in spite of protest of doctor that was resulted in death and complainant's mother lost her life in folded cloth, mark-F is death copy of certificate so in para no 11 of the complaint it is crucial to decide jurisdiction of this forum.
12. The learned advocate for the opponent has argued that whatever has happened at Addis Ababa airport so obviously this forum has no jurisdiction to try the case, sec. 11 of the consumer protection act 1986 was relied, as per this section 11(2) (a)(b)(c) which determines where jurisdiction of district forum lies.

It was argued with much force by learned advocate for the opponent in written submission as well as authority of M. D. Air Deccan vs.Shri Ram Gopal Agarwal, the learned advocate has argued by pointing out para no 12, 13 and 15 of the judgment to argue that when air tickets were booked by complainant through internet by travel agent at Bardoli this forum has jurisdiction to try the case.

13. However we are of the view that learned advocate for the opponent has rightly pointed out that earlier tickets relied by the complainant are of no use since that air tickets were of earlier date and on that day journey was not undertaken, now going through the Xerox copy of this air ticket relied by the complainant it shows that air ticket was booked by complainant for himself as well as for his wife and daughter through Chauhan travels Bardili, as per air tickets the complainant and his wife as well as his daughter came back to Johannesburg on 22/07/2016, they have travelled on that day from Johannesburg to Addis Ababa and thereafter all the problems were arisen.

Next question also comes whether ticket for 19/09/2016 as stated by the complainant were booked through internet by the complainant from Bardoli, obviously answer is no, the opponent in his rejoinder and subsequent e-mail correspondence between Ethiopian airlines reveals that tickets were purchased from Johannesburg office of Ethiopia airlines so obviously complainant is wrong in stating that airlines ticket were booked from Bardoli.

14. As a matter of fact the complainant had very conveniently stated without much detail in para no 8 that his uncle had booked air tickets and on medical service of doctor Rauf very conveniently in this para or any other para of the complaint of reply as to how air tickets for 19/09/2016 travel was purchased.

Obviously record record as well as e-mail correspondence of Ethiopian airlines which has not been denied by the complainant shows that air tickets to fly back to Mumbai was purchased from Johannesburg and subsequently as said earlier complainant's mother expired since she was not taken properly in the plane at Addis Ababa. The authorities relied by the complainant in case of judgments i) M. D. Air DeccanVs.Shri Ram Gopal Agarwal ii) Spicejet Ltd. Vs. Sanyam Aggarwal are of little use to him since in above both the authorities air tickets were purchased through internet at a place and it was held that, that place consumer forum has jurisdiction to try the case. Thus basically as per sec. 11 of the act and authorities cause of action has not at all arisen at Bardoli i.e. within jurisdiction of this forum, unfortunate incident has occurred at Addis Ababa airport, ticket for had also not booked from India as stated by the complainant.

15. As said earlier return tickets were booked by complainant were automatically cancelled and new dates were fixed to travel, whatever allegations made by the complainant in his complaint regarding harassment, lack of service maybe properly dealt with final argument of this complaint, however as said earlier we are on limited point of jurisdiction of this forum.
16. The authorities relied by the learned advocate for the complainant in case of M. D. Air Deccan  Vs.  Shri Ram Gopal Agarwal seems attractive, no doubt nowadays air tickets are booked through internet facilities, however going through both the judgments i) M. D. Air Deccan  Vs.  Shri Ram Gopal Agarwal ii) Spicejet Ltd. Vs. Sanyam Aggarwal it is obvious that from where air tickets were booked that place has jurisdiction to try the case, obviously as rightly said that the complainant was unable to point out that air tickets for travel on 19/09/2016 was booked through agent at Bardoli.  
17. It appears from series of e-mails and extract from bank account that amount was withdrawn to purchase fresh air ticket at Johannesburg thus in both way complainant's case lacks jurisdiction of this forum. It is also be necessary to point out authorities relied by opponent.

1. National Consumer Disputes Redressal Commission, New Delhi.

III (2015) CPJ 96 (NC)

Interglobe Aviation Ltd.vs.P.N. Ganesh

In this case it was held that where booking of tour ticket is made has jurisdiction to try the case. In para no 10 it was pointed out along with law as well as facts of the case that as per sec. 11 of the act territorial jurisdiction of consumer forum rest with where tickets were booked and in that case tickets were booked through agent from Thane Maharashtra, air tickets were not booked through Bangalore so in that authority citing sec. 17(2) of the act, plea taken by the opponent was rejected, thus the place where air ticket are booked has jurisdiction to try the complaint.

2. Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderbad.

Rajendra Kumar & Anr.Vs.Polskielinie Lotnicze, Polish Airlines & Ors.

III (1998) CPJ 407

In similar case citing sec. 11 it was held that where loss occurred the complainant had lost his baggage at London airport so hyderabad forum where complainant was to abroad finally has no jurisdiction.

3. National Consumer Disputes Redressal Commission New Delhi.

2016 SCC OnLine NCDRC 1036

United Airlines, Mr. Deepakvs.Saurabh Kalani

It is relied by the opponent which is recent and more specific it was held that in para no 8 as to where jurisdiction of consumer forum lies in such kind of case, ultimately where cause of action has arisen or simply put grievance has been arisen that place has jurisdiction.

As stated earlier in our case unfortunate death of complainant's mother occurred at Addis Ababa Ethiopia, even air tickets were not booked through internet, as said earlier is an ample proof by the opponent through e-mails correspondence air tickets were purchased from Johannesburg which as said earlier has not been denied by the complainant, thus it raises little doubt, this consumer forum lacks territorial jurisdiction to try the case, taking a cue from para no 8 of judgment of 2016 SSC OnLine NCDRC 1036 in case of United Airlines, Mr. Deepakvs.Saurabh Kalani perhaps opponent Mumbai office would have territorial jurisdiction to try the case.

18. We are of the view that going through the facts well as law complainant should have been advised to file a complaint at consumer forum Mumbai, in view of facts emerges from that, as stated by the complainant place of residence has little value when complainant is unable to pointed out that air ticket for travel on 19/09/2016 was booked through air travel agent at Bardoli, facts as emerges is pointed out that tickets were purchased from Johansburge.
19. It will not be out of place Consumer Protection Act 1986 is for a big change, as a matter of fact present Government has moved consumer protection bill 2018 in a parliament, it maybe taken up in showing budget session starting from 1^st February, it will be worthwhile to point out in brief changes proposed in consumer protection bill 2018 Sec. 34(ii) is proposed to be amended, i.e. instituting a complaint where opposite party or each of the opposite party where there are more than one at the time of institution of the complaint, voluntarily resides or carry on business or branch office or personally works for gain.
20. Thus on plain reading of this act when it is alleged by the complainant that respondent has branch office at Mumbai, perhaps that place consumer forum would have jurisdiction to try the case. Obviously we are not passing any opinion in this regard we have to interpret law as in sense of today perhaps complainant could have waited till amendment law is pass to file a case before forum at Mumbai.
21. As far as we are concern and on facts stated District Consumer Forum has no jurisdiction to try the complaint as per facts alleged, thus in such a case it will be fit and proper to return the complaint to the complainant to present before proper forum. Obviously it will be for the complainant to decide what he wants to do and hence with this observation we pass following order:-
22.  

1. This application is hereby allowed.
2. The complaint is hereby dismissed with no order as to cost.
3. However complaint maybe return to the complainant to present before the proper District Consumer Forum.   

Parties be informed by supplying free copies of the order.

Signed and Pronounced today on:- 31-01-2018.

 

• K J Upadhyaya)      (Purvi V Joshi)        (Rupal Barot)
•  

            District Consumer Disputes Redressal Forum,(Addl). Surat