Advocate Jadhav for the Complainant
Advocate Anand Mamidwar & Associates for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 28th March 2014
This complaint is filed by consumer against the Opponent for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Gokhale Road, Pune 411 016. Opponent Nos. 1 and 2 are service provider. They are dealing in the business of providing Dish TV service. It is the case of the complainant that, he took Direct to Home service connection from the Opponents by paying Rs.4200/-. As per the agreement period for free service was six months and the renewal date was 1/2/2008. Complainant took additional two child connection on 2/10/2007 and one child connection on 5/10/2007 by paying Rs.12,600/-. As per the terms and conditions, the free service for five months was allowed to the complainant and renewal dates were 5/3/2008 and 8/3/2008. In the month of January 2008 complainant had received notice of renewal on all TV screen. Complainant paid Rs.7310/- for 12 months renewal of all connections. Free service period of five months for three child connection was reduced by two months. The next renewal dates were shown as 1/2/009 for main connection, 5/3/2009 for two child connections and 8/3/2009 for one child connection. On 4/1/2009 all four connections were disconnected without any notice. The Opponents have not supplied set up box, dish antenna, remote control etcetera to take on hire purchase. Out of four connections only two connections are surviving. Hence, should refund Rs.8,400/-. Complainant decided to discontinue one child connection and paid Rs.3084/- for renewal of one main connection and two child connections. For renewing the connections, two child connections were transferred to individual names by paying Rs.337/- for each transferred connection. The original rate of child connection was Rs.125/- per month which was increased to Rs.337/- per month. Complainant has raised various issues with the Opponents. According to him, the Opponents have no authority to raise bill for renewal of connection. Opponents have wrongly discontinued package of all four connections. The next date of renewal was not given. No formal contract was sign any time. The Opponents did not give terms and conditions of the service. The complainant has made complaints to the employees of the Opponent but no response was given. Hence, he has filed present complaint for refund of Rs.8,400/- along with interest and compensation of Rs.1,000/-.
[2] Opponent No.2 resisted the claim by filing written version in which it has denied the allegations as regards deficiency in service. It is the main contention of the Opponent that, as per the terms and conditions between the parties, the Pune District Consumer Disputes Redressal Forum has no jurisdiction to adjudicate the dispute between the parties. The allegations as regards increasing the charges were denied by the Opponent. It is also denied that the services were reduced by the Opponents. According to the Opponents, there was no deficiency in service. As this Forum has no jurisdiction, complaint deserves to be dismissed.
[3] After considering the argument of both parties, scrutinizing the documents, affidavits, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the present complaint ? | In the negative |
2 | Whether this Forum can pass any order on merit ? | In the negative |
3 | What order ? | Complaint is returned to the complainant for presenting the same in proper Forum. |
Reasons-
As to the Point Nos. 1 to 3-
[4] It is significant to note that while adjudicating any dispute first of all the Forum has to verify that, whether it has jurisdiction i.e. both tutorial and pecuniary. The Opponent has raised dispute as regards the territorial jurisdiction of this Forum. It is the case of the Opponent that the terms and conditions which are part and parcel of application form are disclosing that parties have agreed as regards the territorial jurisdiction of the dispute and as per the said terms and conditions Delhi Court alone has the jurisdiction to adjudicate the dispute between the parties.
[5] In Civil Appeal No. 2682 of 1982 between ABC Laminart Pvt. Ltd vs. A.P.Agencies, Salem, decided on 13/3/1989, Hon’ble Supreme Court of India has observed that,
“where the parties to a contract agreed to submit the dispute arising from it to a particular jurisdiction which would otherwise also be a proper jurisdiction under the law their agreement to the extent they agreed not to submit to other jurisdictions cannot be said to void as being against public policy.”
[6] Similar view is taken by the apex Court in the recent judgment of the Hon’ble Supreme Court in Civil Appeal No.5086 of 2013 between M/s. Swastik Gases P. Ltd. vs. Indian Oil Corp. Ltd., decided on 03/07/2013. It has been observed in this ruling, after discussing various judgments of apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,
“This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the Courts at Kolkatta, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner. ”
[7] After considering the ratio laid down in the above quoted ruling, we held that this Forum has no jurisdiction to try and entertain the present complaint and the complaint should be returned to the complainant for presenting the same in proper Forum. Hence, Forum held that the issue as regards deficiency in service cannot be decided on merit. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is hereby returned to the complainant for presenting the same before appropriate Forum within one month from the date of order.
2. As per peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets
which are provided for the Members within one
month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 28/03/2014
