The instant Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of Opposite Party No.1 Jet Airways to assail the Order No.06 dated 28.03.2018 made by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, ‘Ld. District Forum’) in Consumer Complaint No. 530/2017. By the impugned order, the Ld. District Forum disposed of the application filed by the OP No.1/Revisionist with an observation that the question as to territorial jurisdiction and the question whether the complainant has ceased to be a ‘consumer’ can be raised at the time of final hearing of the case.
The facts giving rise to the case are that the Opposite Party No.2 herein Smt. Monoleena Chaudhuri being complainant lodged the complaint before the Ld. District Forum u/s 12 of the Act stating that she along with husband, son and mother-in-law for the purpose of travelling from Kolkata to Chandigarh via Delhi purchased online air tickets from Make My Trip Pvt. Ltd. (OP No.1) having their office at Premises No.11/1, Sarat Bose Road, Kolkata – 700020 and paid a sum of Rs.51,780/- for such trip to and fro from 18.10.2017 to 22.10.2017. However, they have faced tremendous inconveniences due to cancellation of flight from Chandigarh to Delhi on 22.10.2017 for which they had to avail a car in a long way from Chandigarh to Delhi to avail the connected flight from Delhi to Kolkata at a very high rent causing tremendous physical and mental agony.
In this backdrop, the Complainant approached the Ld. District Forum with prayer for refund of Rs.30,648/-, compensation of Rs.5,00,000/- and litigation cost.
After entered appearance, by filing written version, OP No.1/revisionist refuted the contention of the complainant and has stated that the cause of action arose beyond the territorial jurisdiction of this Commission and as such the complaint should be dismissed against them.
By filing another application (which should have been registered as either MA or IA) the OP No.1 Jet Airways has challenged the maintainability of the proceeding.
After hearing the parties, the Ld. District Forum by the impugned order disposed of the application with the observations as indicated above. To assail the said order, the OP No.1 has come up in this Commission with the present Revision Petition.
Mr. Tarun Chakraborty, Ld. Advocate for the Revisionist has submitted that the Ld. District Forum has committed a grave error by observing that the flight at Chandigarh was cancelled by OP No.1. Drawing my attention to the relevant copy of ticket, Ld. Advocate for the revisionist has submitted that the said ticket was meant for an Air India Flight which was scheduled at 12.50P.M. from Chandigarh to Delhi. Therefore, when the Jet Airways had no connection with that part of journey, the Ld. District Forum should have allowed the application and also to strike off the name of the revisionist from the cause title of the petition of complaint.
Mr. Nirmalya Roy, Ld. Advocate for OP No.2/Complainant supporting the decision has contended that since the tickets were purchased on online, the revisionist cannot absolve their liability till the final hearing of the case.
Mr. Saptak Sanyal, Ld. Advocate for OP No.1 has submitted that the points involved in this case can only be adjudicated at the time of final hearing.
On the threshold of discussion, it would be worthwhile to record that the complainant of the case had transferred money to OP No.1 Jet Airways through OP No.2 travel agency by NEFT. Now, the question comes, when the consumer had sent money to the travel agency through online i.e. through internet, in case of deficiency in providing services, at which place he/she can file a consumer compliant for redressal of his/her grievances.
In the past two decades, E-commerce has emerged as a major source of business. Almost all articles used can be bought and services availed online through internet. There is no standard definition for the term E-commerce and as such it is used to indicate a mode of conducting business through electronic means, distinct from the conventional physical means. In the case of online, disputes are bound to occur in such like business activities. In case of sale and purchase through internet, question of territorial jurisdiction gets complex. Vendors/Sellers offer their products, prices, terms and conditions to the buyers/purchasers. The buyers after considering the options negotiates the prices, terms and conditions and then place orders and make the payment. Thereafter, the vendor delivers the purchased products to the buyers.
For appreciation of the situation, it would be worthwhile to reproduce the provision of Section 11(2) of the Act which provides –
“(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, -
- the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
- any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
- the cause of action, wholly or in part, arises”.
The foregoing provision makes it abundantly clear that a compliant can be filed before the Ld. District Forum within whose jurisdiction the opposite party(s) resides, or carries on business or has a branch office or personally works for gain. It is further provided that the complaint can be filed in a place, before the Fora, where any of the opposite party(s) actually and voluntarily resides etc. and personally works for gain. Above filing will be subject to permission granted by the District Forum or consent of the opposite party(s), not residing within the jurisdiction of a District Forum, where the complaint was filed. The provision also stipulates that the complaint can be filed before a District Forum from where cause of action wholly or in part arises.
With the growth of E-commerce and Commercial activities over the internet, it has become possible for conducting business across the world without actual physical presence at every place. There is a widespread usage of plastic money, Credit and Debit Cards, which has facilitated those operations. At times in such like course, the consumer may get a raw deal, as internet dealings are done with unknown purchase operating from a different place. The Information & Technology Act, 2000 reflects the growing importance of internet in our life. Section 13(3) of the said Act reads thus –
“Save as otherwise agreed between the originator and the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business”.
The object and purpose behind the legislation of the Act is to protect a consumer and also to prevent unscrupulous activities in business for taking undue advantage of the weak position, in which the consumers are placed. It is manifest from the statement of ‘objects and reasons’ and the scheme of the Act that the main objective is to provide better protection of the interests of the consumer to achieve that purpose, a cheaper, easier and expeditious and effective redressal mechanism by establishing quasi-judicial Forums with wide range of powers vested upon them. Therefore, to interpret the provisions of the Act, rational approach and not a technical approach needs to be adopted. In other words, the provisions of the Act need to be interpreted particularly to protect the interests of a poor consumer.
The provisions of Section 11(2) of the Act are akin to the provisions of Section 20(1) of the Code of Civil Procedure. The pronouncement of law, as made by the Hon’ble Supreme Court in the case reported in 1989 SCR (2) [ABC Lamnart Pvt. Ltd. – vs. – AP Agencies, Saleem] would apply in full force to a consumer Fora, when trying a complaint under the Act. Not only this, the Hon’ble Apex Court in a decision reported in AIR 1999 SC 80 [Marine Container Services South – vs. – GO GO Garments] also held that Contract Act applies to all litigants including the litigants under the Act. In view of the above, it can safely be said that for the purpose of consumer complaint relating to normal contracts for service and/or no cause of action arises, inter alia, at any of the places – (a) where the contract is made and/or; (b) where acceptance of the contract is communicated and/or; (c) where the contract is performed or is to be performed and/or; (d) where money under the contract is either payable or paid and/or; (e) where repudiation of the contract is received, if any.
In the case before hand, the payment was made of Rs. 51,780/- through online was sent by the complainant to OP travel agency. However, it is not clear whether the amount was sent from Kolkata or not. Therefore, the complainant must be given an opportunity to prove her case. In that perspective, the Ld. District Forum was quite justified in holding that the points raised by OP No.1 can only be appreciated at the time of final hearing.
The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-
“to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity”.
The above provision makes it quite clear that the revisional jurisdiction conferred upon this Commission is limited only to the extent of jurisdictional error or material irregularity in passing the order impugned. Admittedly, there is no jurisdictional error on the face of the record. Since the Ld. District Forum keep the questions open for consideration at the time of final hearing, I do not find any material irregularity in passing the order impugned.
In view of the above, the instant revision petition stands disposed of on contest without any order as to costs.
As puja vacation intervenes, fix 31.10.2018 for appearance of the parties before the District Forum. The Ld. District Forum is requested to proceed with the case in accordance with the law and to decide at the time of final hearing whether it has territorial jurisdiction to adjudicate the dispute and further whether the complainant ceased to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act. It is made clear that the Ld. District Forum will not be influenced by any observation made by this Commission in disposing of the revision petition and also the order passed by it by the impugned order.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
