Delhi

New Delhi

CC/29/2014

Nikhlesh Jain - Complainant(s)

Versus

Northern Railway - Opp.Party(s)

21 Aug 2017

ORDER

     CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR,

VIKAS BHAWAN, I.P.ESTATE,

NEW DELHI-110002.

 

 

Case No.CC/29/2014                                           Dated:

 

 In the matter of:-

Nikhlesh Jain

410, Gali No. 2, Ganesh Nagar-II

Shakarpur, New Delhi-110092

                                                                                                …..Complainant

 

 

Versus

 

 

 

Northern Railway

Through its General Manager

Baroda House, Kasturba Gandhi Marg,

Delhi-110001

 

                                                                                            .…… Opposite Parties

 

 

 

 

 

PRESIDENT- S.K. SARVARIA

ORDER

The  gist of the complaint is that the complainant purchased the General  Ticket From Mathura to Hazrat Nizamuddin to travel in train no. 18237, Chattisgarh Express on 30/10/2013 (Ex C-1). After inquiring for TTE regarding reservation.  The complainant boarded in coach no. S-5. There after the TTE came with 2 constables and demanded Rs. 120/- from the complainant which was paid but TTE refused to issue receipt against the payment. When  the complainant demanded the receipt strongly the TTE demanded  Rs. 310/- and issued the receipt no. 998536, against payment the said amount as fare of Rs. 60/- and excess fare of Rs. 350/-  alleged to have been charged by the TTE in excess. The act of TTE by charging are alleged to be unfair, deficient service, and cheating in nature. The complainant suffered huge difficulties and trouble in journey due to the act of TTE which is deficiency in services and unfair trade practice as  alleged against the OP. No seat was given after payment of fare, nor the TTE came when called to provide the seat. Further he stated that the penalty cannot be charged where fare of Rs. 60/- was paid.  Following prayer has been made:-

1. The Opposite Party may kindly be directed to refund the amount of Rs. 250/- alongwith interest @ 18 P.A. to the Complainant which the TTE of the Opposite Party charged illegally from the complainant,
2. The Opposite Party may kindly be directed to pay an amount of Rs. 90,000/- as compensation for harassment, mental agony and pain,
3. The Opposite Party may kindly be directed to pay an amount of Rs. 7500/- as cost of litigation,
4. The Opposite Party may kindly be further directed that the total awarded amount be deducted from the salary of the TTE concerned.
5. Any other or further order(s), which this Hon’ble Forum deem fit and proper under the facts and circumstances of the case may also be passed in the interest of justice.

The OP in its written versen has contested the complaint on various issues. It is stated that this Forum does not have the Jurisdiction to entertain the complaint as Mathura is in territorial jurisdiction of District Mathura, UP and that the cause of action also did not arise under this Forum. It is also stated that the complainant admitted that the purchased a general ticket and boarded a reserved coach, thus he was a trespasser in the reserved coach. The complainant was issued the receipt against the payment which was accepted by the complainant and therefore, no cause of action arose in favor of the complainant as against the OP. It is further stated that the incident, if any as well as the TTE  do not fall under the administration, jurisdiction of General Manager, Northern Railway and therefore there cannot be any deficiency in services on the part OP. The complainant has rebutted all allegation and contentions in the written statement in its rejoinder. Both the parties have filed evidence by way of affidavit and the OP also filed written submission/written arguments. The OP in its written statement has also mentioned that the jurisdiction in respect of Mathura lies with GM, NCR where the alleged cause of action if any has arisen. On the issue of territorial jurisdiction the complainant states that the Delhi being one District, as per the orders of the Hon’ble State Commission in various cases the complainant can file complaint in any of the Consumer Forum under the Consumer Protection Act as the cause of action continued during the journey i.e. from Mathura to Nizamuddin, New Delhi.

We have consider carefully the material placed before us and the arguments of the parties with relevant provisions of Law.

 The undisputed facts are that the complainant boarded the train at Mathura and de-boarded  to Hazrat Nizamuddin. The general ticket was purchased in Mathura and he entered in the reserved coach and made the payment of Rs. 310/- against the receipt issued by the TTE.

From the above, it is clear that neither the relevant office of the OP nor the cause of action arose within the territorial jurisdiction of this Forum. In this regard

Section 11- Jurisdiction of the District Forum.—

(1)       X         X         X        X       X       X      X        X        X      X               

(2) 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 2[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 3[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 4[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.

 

The Hon’ble National Commission in case of Mahesh Ram Nath. Revision petition no. 2816/12 passed various orders. Though the said petition was dismissed  in default however, the issue of jurisdiction stood decided as is clear from various orders of Hon’ble National Commission reproduced below:-                                  

 

 "Dated : 27 Sep 2012

ORDER

 

“Mr. Shakti Bangar, Assistant Director, Department of Consumer Affairs, Government of NCT of Delhi, is

present pursuant to the summons issued to the Commissioner and Secretary, Department of Consumer Affairs,Government of NCT of Delhi. He has filed a copy of the Delhi Gazette Extraordinary (Part IV) Notification No.F50(47) 96F&S (CA) dated 20.04.99 issued by the Directorate of Consumer Affairs. A perusal of which would show that for the purpose of territorial jurisdiction, the NCT of Delhi has demarcated the allocation ofbusiness amongst various District Consumer Forums functioning in Delhi with reference to the Police Stations pertaining to the area of which such District Forum can entertain and decide the complaints.

 

2. Report as called for from the Delhi State Consumer Disputes Redressal Commission, has not been received but an interim reply has been received stating that the Registrar of the Commission is on child care leave and therefore, preparation of the report may take some more time. We are not happy with the kind of response we have received from the State Commission because it cannot be said that in absence of one single officer, the State Commission has been rendered totally non-functional. Registrar shall call the report from the Delhi State Commission by the next date fixed.

 

3. Territorial jurisdiction of various District Consumer Forums of Delhi is a matter of great public importance, and, therefore, we direct that the Secretary and Commissioner, Department of Consumer Affairs, Government of NCT of Delhi to appear in person before this Commission on 10.10.2012 so that the position on the subject is clarified and the implementation of the above referred notification is ensured. Mr.Shakti Bangar, Assistant Director assures us that he will communicate the directions of the Commission to the officer concerned for compliance.

 

4. Counsel for the petitioner seeks time to file copy of the order passed by the Delhi High Court in the writ petition filed by the counsel for the petitioner. Adjourned to 10.10.2012."

 

 

"Dated : 10 Oct 2012

ORDER

 

“A communication has been received from the office of the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi stating therein that due to his preoccupation in certain official functions, he is unable to appear today. Acceding to his request, we direct him to appear before this Commission on the next date of hearing, i.e., 18.10.2012. 2. A report has been received from the Delhi State Consumer Disputes Redressal Commission, New Delhi along with notification. Since the position is not very clear and some Advocates have brought to our notice that the said notification relating to demarcation of the jurisdiction of various Consumer Fora functioning in Delhi is not being followed in its letter and spirit, we consider it appropriate to issue notice to the President of NCDRC Bar Association, New Delhi to assist this Commission in the matter. Notice shall be handed over to the concerned functionary by tomorrow. Ms. Rekha Aggarwal, Advocate, one of the functionaries of the NCDRC Bar Association is present and she has been apprised of the order."

 

 

"Dated : 18 Oct 2012

ORDER

 

Even today, Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi is not present. Mr. Shakti Banger, Assistant Director appears for the Department and submits that recently there has been change in the incumbent of the Post of Commissioner-cum-Secretary and the process of handing over and taking over the charge of the post will be completed within one or two days. We, therefore, adjourn the matter to 05.11.2012 for the personal appearance of the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi. The summons shall also be issued in the name of Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi besides Mr. Shakti Bangar assures that he would bring the directions of this Commission to the notice of the new incumbent to the post as soon as the new incumbent joins. Mr. J.B. Mudgil, Advocate, President of the NCDRC Bar Association is present in pursuant to the notice given to the said Bar Association. On his request, we direct the Registry to furnish him a copy of the Delhi Gazette Extraordinary (Part IV) Notification No. F.50(47)96 F&S (CA) dated 20.04.99 issued by the Directorate of Consumer Affairs, forthwith. In the meantime, we direct the Department of Consumer Affairs, Government of NCT of Delhi to obtain reports from all the District Forums functioning in the NCT of Delhi as to whether they are strictly following the above referred notification and if not they will give the number of cases which have been entertained, decided contrary to the stipulations contained in the said notification. The reports shall be filed along with an affidavit of a Senior Officer within ten days. List on 05.11.2012. A copy of this order be given dasti to Mr. Shakti Bangar for ensuring compliance."

 

"Dated : 05 Nov 2012

ORDER

 

Interim report in terms of the order dated 18.10.2012 has been filed by the Department of Consumer Affairs, Government of NCT of Delhi. More time is sought for filing the final report. Let the complete report in respect of all the District Consumer Disputes Redressal Forums, functioning in the territory of NCT of Delhi be filed within two weeks. Mr. S. Kumaraswamy, Commissioner cum Secretary, Department of Consumer, Food & Civil Supplies, Government of NCT of Delhi is present. We have apprised him about the concern of this Commission in regard to the exercises of territorial jurisdiction by ten Consumer Fora established and functioning within the territory of NCT of Delhi. He has assured us that requisite action will be taken to ensure that the various District Fora working in the territory of NCT of Delhi exercise their jurisdiction and powers strictly in accordance with the demarcation of their respective jurisdiction in terms of the Government of Delhi, Directorate of Consumer Affair, Gazette Extraordinary (Part IV) Notification No. F.50 (47) 96F&S (CA) dated20.04.99 and any subsequent notification issued in that behalf. This is otherwise necessary to avoid forum shopping by the parties to consumer dispute. List on 27.11.2012 for awaiting the final report. On that date it will not be necessary for the Commissioner-cum-Secretary, Department of Food Supplies & Consumer Affairs, Govt. of NCT of Delhi to remain present in the Commission, once he has given the above assurance to the Commission."

 

"Dated : 27 Nov 2012

ORDER

 

Mr. Shakti Bangar, Assistant Director of Consumer Affairs intends to file a further report, which may be filed in the Registry during the course of the day. The officer also submits that the report from the New Delhi District Forum is still awaited. The same shall be obtained from the said District Forum within next one week and filed in the Commission. The officer undertakes to comply with the directions. He also seeks time to file all subsequent notifications issued from time to time after the Notification No. F.50(47)96F&S/CA dated 20th of April, 1999 was issued."

 

 

In the letter No. F50 (21)/2003/F&S/CA/1053-1054, dated 7/11/2012 by Director, Consumer Affair, Government of NCT of Delhi, Department of Food and Supplies and Consumer Affairs addressed to, the Registrar, State Consumer Disputes Redressal commission, it is stated, amongst other things, that the National Commission had summoned the Secretary, Commissioner, Food, Supplies and Consumer Affairs on 5/11/2012. The National Commission took a very serious view and stated that in spite of order promulgated by the Government of NCT of Delhi vide Gazette Extraordinary (Part IV) Notification NoF.-50 (47) 96-F&S (CA), dated 20/4/1999, clearly demarcating the jurisdiction District wise, the District Consumer Disputes Redressal Forums are violating the said order. The Honourable National Commission has directed the Secretary, Commissioner, Food, Supplies and Consumer Affairs, GNC T of Delhi to enforce the said order in letter and spirit. Therefore, Registrar, State Commission was requested by Director, Consumers Affairs to bring the proceedings of the Honourable National Commission to the notice of, Hon’ble President of the State Consumer Disputes Redressal Commission to bear in mind the above, notification and issue suitable instructions to all the District Consumer Disputes Redressal Forums to follow the said order of the GNCT of Delhi, dated 20/4/1999 . The copy of the said letter of Director Consumer Affairs, along with notification of Lieutenant Governor was sent by Registrar, Delhi State Consumer Disputes Redressal Commission to all the, Presidents of District Consumer Forum in Delhi with advise of the, Hon’ble President of State commission for strict compliance of the directions of National Commission.  The said letter No. F.1(misc)/SC/2012/5045 dated 3.11.12 sent to President of this Distt. Consumer Forum enclosing copy of said notification and copy of letter of Director, Consumer Affairs issued to Registrar of State Commission.

In Mahesh Ramnath's case (supra) the Honourable State Consumer Dispute Redressal Commission has decided the appeal of the appellant and has held that the appellant did not raise any consumer dispute between him and the Secretary-cum-Commissioner (Transport). Earlier decisions of State Commission were relied upon, wherein it was also held   that every District Forum has jurisdiction over every case, and if any District Forum takes final decision in the matter, irrespective of having no administrative territorial jurisdiction, the order cannot be set aside or held invalid and the matter was remanded back to concerned District Forum to record a finding in respect of territorial jurisdiction, after considering the decisions of Honourable State Commission.

Although Mahesh Ramnath's Revision Petition was dismissed for non-prosecution on 9/9/2014 on account of absence of the Petitioner before Honourable National Commission, but the question of territorial jurisdiction, in our view, stood decided before that by Honourable National Commission by its order’s dated 27/9/2001 before that by observing that Territorial jurisdiction of various District Consumer Forums of Delhi is a matter of great public importance, and, therefore, direction was issued so that the Secretary and Commissioner, Department of Consumer Affairs, Government of NCT of Delhi may appear in person before Learned Commission on 10.10.2012 so that the position on the subject is clarified and the implementation of the Notification No. F.50(47)/96-F&S/CA dated 20.4.1999  is ensured. The further directions of Honourable National Commission dated 5/11/2012 show that honourable National Commission apprised learned Commissioner cum Secretary, Department of Consumer, Food &Civil Supplies, Government of NCT of Delhi about the concern of honourable National Commission in regard to the exercise of territorial jurisdiction by ten Consumer Fora established and functioning within the territory of NCT of Delhi. The learned Commissioner, Consumer Affairs, GNCT of Delhi has assured Honourable National Commissions that requisite action will be taken to ensure that the various District Fora working in the territory of NCT of Delhi exercise their jurisdiction and powers strictly in accordance with the demarcation of their respective jurisdiction in terms of the Government of Delhi, Directorate of Consumer Affair, Gazette Extraordinary (Part IV) Notification No. F.50(47)96/F&S (CA) dated20.04.99 and any subsequent notification issued in that behalf.  According to Honourable National Commission this is otherwise necessary to avoid forum shopping by the parties to consumer dispute. Therefore, by passing these directions, the honourable National Commission has overruled the view taken by Honourable State Commission in Mahesh Ramnath's case regarding territorial jurisdiction of District Consumer Disputes Redressal Forums in Delhi. These Orders passed by Honourable National Commission have impliedly overruled the other decisions of honourable State Commission, including Sarwan Singh's case (supra) regarding territorial jurisdiction of District Consumer Disputes Redressal Forums in Delhi.

From the above  it is crystal clear that all the above facts including the place where the cause of action arose are related to the areas not following within the Local limits of territorial jurisdiction of this Forum as allocated by the Hon’ble LG vide Gazette Extraordinary (Part IV) Notification No. F.50 (47) 96F&S (CA) dated20.04.99

Our view finds support of the Apex Court judgement in the matter of Sonic Surgical v/s National Insurance Co. Ltd., Civil Appeal no. 1560/2004 decided on 20/10/2009 It is held that:- wherein the Hon’ble Supreme Court  held as below:-

“Ld. Counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17 (2) t he complaint could have been filed in Chandigarh.  We regret, we cannot agree with the Ld.Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence.  If the contention of the Ld.Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated.  We cannot agree with this contention.  It will lead to absurd consequences and lead to bench hunting.  In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.  No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.  [vide G.P.Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]

 

In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

                                                                                                            

In view of above position, we are of the considered view that this Forum does not have territorial jurisdiction & hold accordingly. The complaint is, therefore, directed to be returned to the complainant with annexure against acknowledgement for filing before the competent Forum in accordance with Law.

The copy of orders be sent by post to the parties.

The orders be also uploaded on www.confonet.nic.in

File be consigned to record room. Pronounced in open Forum on______________. 

 

 

                            (S K SARVARIA)

                             PRESIDENT

 

                                    (NIPUR CHANDNA)                                                 (H M VYAS)

                                       MEMBER                                                                MEMBER