KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.526/03 JUDGMENT DATED.24.07.08 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER 1.Air India Limited, Hamsalaya Building, Barakhamba Road, New Delhi – 110 001 2. The Secretary & General Manager, (Administration) Air India Ltd., Hamsalaya Building, : APPELLANTS 5th Floor, 15, Barakhamva Road, NEW DELHI – 110 001. 3. The Managing Director, Air India Ltd., Hamsalaya Building, 5th Floor, 15, Barakhamva Road, NEW DELHI – 110 001. 4. Senior Manager, Air India Ltd., Air India Building, Nariman Point, MUMBAI-21 (By Advocates.Joseph Markos, Thomas Vellapally, Mithun Markos, Binu Mathew) Vs 1.Mathew Philip, Kadavumbhagom, Pampady, Kottayam 2. John Philip, Kadavumbhagom, Pampady, Kottayam : RESPONDENTS 3.Leelamma Philip, Kadavumbhagom, Pampady, Kottayam (By Advocates.Shaji S.Pallippadan, Anwar Hussain.I, D.Hariprasad) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred against the order dated.7.5.03 of the CDRF, Kottayam in OP.No.490/01. The complaint therein was filed by the respondents herein as complainants against the appellants 1 to 4 as opposite parties 1 to 4 claiming compensation on the ground of deficiency in service and also on the basis of the contract entered into between the complainants and the opposite parties regarding the quantum of compensation. The opposite parties filed joint version through their Sales Manager, Cochin denying and disputing the case of deficiency in service. They also contended that the offer made by the opposite parties to pay compensation @ 20 US dollars per kg on the weight of the cargo was not accepted by the complainants and so they are not liable to pay any compensation because there was no deficiency in service on their part. The opposite parties had also contended that the District Forum, Kottayam had no territorial jurisdiction to entertain the complaint in OP.No.490/01. But the Forum below accepted the case of the complainants and thereby passed the impugned order directing the opposite parties to pay compensation to the petitioner @ US dollars 20 per kg for 210 kgs, the weight of casket containing the dead body of Late.K.M.Philip with interest @ 6% per annum from 5.3.01 till the date of payment and cost of Rs.1000/-. Aggrieved by the said order the present appeal is preferred. 2. The facts of this case in brief can be summarized as follows:- The complainants are the wife and children of late K.M.Philip who expired in USA and his dead body was transported from USA to Mumbai by Air India Flight. The cargo casket containing the dead body was expected to reach the destination at Mumbai on 31.10.99. But the cargo reached only on 2.11.99. Thereby the complainants and their relatives suffered mental agony, inconvenience and loss. So, the complainants claimed compensation for the deficiency in service on the part of the opposite parties. The opposite parties by letter (Ext.A6) dated.1.2.01 expressed the readiness to pay compensation @ US dollars 20 per kg on the weight of cargo consignment. The complainants by their letter dated.5.3.01 accepted the aforesaid offer but thereafter nothing was heard from the side of the opposite parties, ultimately the complainants had filed the complaint in OP.No.490/01 claiming the agreed amount covered by Ext.A6 letter dated.1.2.01 with cost of Rs.25,000/-. 3. The opposite parties filed written version contending that there was no acceptance of the offer made by the opposite parties by Ext.A6 letter dated.1.2.01 and they are not liable to pay any amount by way of compensation. They also denied the case of deficiency in service on the part of the opposite parties. They vehemently contended that the complaint in OP.No.490/01 filed before the CDRF, Kottayam is not maintainable as no part of the cause of action had arisen within the territorial jurisdiction of the District Forum, Kottayam. 4. Before the Forum below Ext.A1 to A15 documents were marked on the side of the complainants and Ext.B1 on the side of the opposite parties. The 1st complainant filed proof affidavit in support of the averments in the complaint. For the opposite parties 1 to 4 proof affidavit has been filed by their Sales Manager, Cochin. On an appreciation of the evidence on record the Forum below passed the impugned order. 5. The following issues were raised by the Forum below for consideration:- 1. Whether the complaint is maintainable? 2. Whether there is deficiency in service on the part of the opposite parties? 3. Reliefs and costs.? 6. All the issues were found in favour of the complainants. Thereby passed the impugned order. 7. We heard the counsel for the appellants/opposite parties and the respondents/complainants. The learned counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He also filed argument notes in support of his arguments. It is argued that no part of the cause of action has arisen within the territorial jurisdiction of the District Forum, Kottayam and so the impugned order is legally unsustainable. He canvassed for the position that by virtue of Rule 29(1) of the carriage by Air Act the Forum below had no Jurisdiction to entertain the complaint. He disputed the case of the complainants regarding the offer and acceptance regarding the quantum of compensation. Thus, the appellants requested for setting aside the impugned order passed by the Forum below. 8. On the other hand, the learned counsel for the respondents/complainants supported the findings and conclusions of the Forum below and requested for dismissal of the present appeal. He relied on Ext.A6 and A7 letters issued between the complainants and the opposite parties and submitted that part of the cause of action has arisen within the territorial jurisdiction of the Forum below. He has also argued for the position that acceptance of the offer was made by the complainants from Kottayam within the territorial jurisdiction of the District Forum, Kottayam and so the complaint is perfectly maintainable. 9. The points that arise for consideration are:- 1. Whether the Consumer Disputes Redressal Forum, Kottayam had territorial jurisdiction to entertain the complaint in OP.No.490/01? 2. Whether the case of the complainants that there was offer and acceptance regarding the quantum of compensation can be upheld? 3. Is there any sustainable ground to interfere with the impugned order dated.7.5.03 passed by the CDRF, Kottayam in OP.No.490/01? 10. For the sake of the convenience the parties to this appeal will be refer to according to their status before the Forum below in OP.No.490/01. 11.The points 1 to 3:- There is no dispute that the cargo casket containing the dead body of late K.M.Philip was entrusted with the Air India Limited for its transportation from United States of America to India in Mumbai and that the said casket with the dead body was expected to reach the destination at Mumbai on 31.10.1999. There is no dispute that two of the relatives of the complainants had also accompanied in the Flight No.AI 128 and they reached at Mumbai on 31.10.99. Unfortunately the casket containing dead body was not carried in the aforesaid Flight No.AI 124. It is admitted fact that there occurred some sort of omission in transporting the said casket in the said flight. But the dead body reached the destination at Mumbai only on 2.11.99. It is the case of the complainants that the said delay occurred on account of deficiency in service on the part of the opposite parties. The opposite parties relied on Ext.D1 letter dated 2.1.99 issued by Alliance Air lines Cargo Service Company. Ext. D1 letter would show that there occurred some omission in handling the cargo by cargo service company and so the said casket containing the remains could not be forwarded to the destination point in the expected time. It is to be noted that the complainants had no contract with the Alliance Air Lines Cargo Service Company or any other agents. The casket containing the dead body was entrusted with the opposite parties. It is for the opposite parties to see that the said cargo reached the destination in time without delay. It is admitted by the opposite parties that there occurred mishandling or omission or negligence on the part of their agents. Then the opposite parties are answerable and liable to compensate the complainants for their agents’ negligence. The mere fact that the negligence was on the part of the cargo service company cannot be taken as a ground to absolve the opposite parties who had taken the responsibility to render the service to the complainants in connection with the transportation of the cargo namely the casket containing the dead body of late K.M.Philip. So, the facts admitted would make it clear that there was deficiency in service on the part of the opposite parties. 12. The crucial aspect for consideration is whether the complaint in OP.No.490/01 filed before the Consumer Disputes Redressal Forum, Kottaym can be treated as maintainable. In other words, whether the Forum below had the territorial jurisdiction to entertain the complaint in OP.No.490/01. Section 11 deals with jurisdiction of the District Forum and section 11 (2) deals with the territorial jurisdiction of the District Forum. Section 11 (2) reads as follows: A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, (a) 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 (b) 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 ( c ) the cause of action, wholly or in part, arises 13. As far as the present case is concerned the opposite parties have no business place within the territorial jurisdiction of CDRF, Kottayam. The definite case of the complainants is that part of the cause of action is arisen within the territorial jurisdiction of the CDRF, Kottayam. The complainants much relied on section 11 (2) ( c ) of the Consumer Protection Act, 1986. There can be no doubt that the cargo was entrusted with Airlines from USA and the destination point was Mumbai. So, the aforesaid carriage by Air is concerned, the Forum below had no territorial jurisdiction. No doubt that the complainants are residents of Kottayam District. It is the case of the complainants that the opposite parties issued Ext.A6 letter dated.1.2.01 and thereby they offered compensation of 20 US dollars per kg of the weight of the cargo. The definite case of the complainants is that the offer made by Ext.A6 letter was accepted by issuing Ext.A7 acceptance letter dated.5.3.01. The acceptance Ext.A7 letter has not been denied by the opposite parties. Ext.A8 is photo copy of the postal acknowledgement card evidencing service of the original of Ext.A7 letter to the second opposite party, the Secretary and the General Manager, Administration, Air India Limited, Air India Building, Nariman Point, Mumbai. It is to be noted that the opposite parties have not disputed the genuineness and correctness of Ext.A8 postal acknowledgement card. It would make it clear that Ext.A7 letter was served on the second opposite party. So, Ext. A6 offer made by Air India Limited was accepted by the complainants. It is to be noted that the aforesaid acceptance letter was forwarded from Kottayam. The Forum below has discussed the matter regarding the offer and acceptance and the conclusion of the contract regarding payment of compensation. The district Forum has also relied on the decision rendered by the Honorable High Court of Madras in VenkiteshaBhut and Others Vs M/s. Kmalapat Motilal and Others reported in AIR 1957 Madras 201 and the decision rendered by Honourable High Court of Calcutta reported in AIR 1983 Calcutta 186 and thereby came to the conclusion that the issuance of Ext.A7 acceptance letter from Kottayam would provided territorial jurisdiction to the District Forum, Kottayam. 14. The learned counsel for the appellants much argued about the service rendered by the opposite parties. It is argued that the service availed or hired by the complainants was with respect to the transportation of the cargo from USA to Mumbai and Ext.A6 offer and Ext.A7 acceptance had nothing to do with the service availed or hired by the complainants. It is argued further that for getting the benefit of contract based on Ext.A6 offer and Ext.A7 acceptance, the complainants have to approach the civil court to get the same executed by filing a suit for specific performance. On the other hand, the learned counsel for the respondents/complainants argued for the position that Ext.A6 offer and Ext.A7 acceptance were resulted from the service availed on consideration and so the contract evidenced by Ext.A6 and Ext.A7 is to be treated as part of the cause of action. There can be no doubt that Ext.A6 offer was made by the opposite parties in view of the deficiency of service on their part. So, Ext.A6 offer has connection with the service rendered by the opposite parties. It is only because of the deficiency in service they offered a compensation by virtue of Ext.A6 offer letter dated.1.2.01. There is nothing on record to show that the opposite parties had withdrawn or cancelled the aforesaid offer before the acceptance of the same by issuance of Ext.A7 letter of acceptance. So, it can only be concluded that Ext.A6 offer was made in connection with the service rendered by the opposite parties and the said offer was accepted by the complainants by issuing Ext.A7 acceptance letter on 5.3.01. If that be so, the Forum below had the territorial jurisdiction to entertain the complaint in OP.No.490/01. We do not find any ground to interfere with the aforesaid findings entered into by the Forum below. 15. By the impugned order the Forum below has only directed the opposite parties to pay compensation which was offered by the opposite parties and accepted by the complainants. The Forum below is fully justified in directing the opposite partiers to pay the compensation which was agreed upon by the parties by virtue of Ext.A6 offer and A7 acceptance. There can be no doubt about the fact that there was a concluded contract between the opposite parties and the complainants with respect to payment of compensation for the deficiency of service on the part of the opposite party Air India Limited. 16. The opposite parties(appellants) have got a case that the there was failure on the part of the complainants to follow the procedure prescribed under the carriage by Air Act and that the complainants failed to issue the mandatory notice as stipulated in the carriage by Air Act. It is to be noted that the complainants issued so many letters in the Form of complaints demanding compensation. At one stage the complainants demanded Rs.20 lakhs as compensation and on getting those letters demanding compensation the opposite parties Air India issued Ext.A6 letter thereby offered the compensation @ US dollars 20 per kg for the cargo having the weight of 210 kgs. The said offer was accepted by the complainants. But the opposite parties failed to pay the compensation as agreed. It made the complainants to prefer the complaint in OP.No.490/01. It is to be noted that in the complaint the claim was for US dollars 20 per kg of the cargo weighing 210 kgs. Thereby they claimed total of Rs.1,94,460/- as compensation with interest and costs. The opposite parties themselves accepted their liability to pay compensation by issuing Ext.A6 letter and the said offer was accepted and there was a concluded contract. The failure to comply with the provisions of the carriage by Air Act has no application, in the light of the contract entered into between the parties. It is to be borne in mind that lapsed or time barred claim can be revived by its recognition or acceptance . The opposite parties by Ext.A6 offer recognized and accepted their liability to pay compensation. Thus, in all respects the Forum below is perfectly Justified in passing the impugned order directing the opposite parties to pay compensation to the complainants @ US dollars 20 per kg for 210 kgs, the weight of the casket containing the dead body of late K.M.Philip. 17. The Forum below has only ordered very reasonable interest @ 6% per annum from the date of acceptance of the A6 offer that is, 5.3.01 till the date of payment. The Forum below has also ordered a very reasonable amount of Rs.1000/- as costs. We do not find any sustainable ground to interfere with the impugned order passed by the forum below. Hence the same is confirmed. These points are answered accordingly. In the result the appeal is dismissed the impugned order dated 7.5.03 passed by the CDRF, Kottayam in OP.No.490/01 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER S.CHANDRA MOHAN NAIR : MEMBER R.AV
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.V.VISWANATHAN
......................SRI.S.CHANDRAMOHAN NAIR | | 
