DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

                                        ISBT KASHMERE GATE DELHI

CC/ 52/2016

No. DF/ Central/

M/S KLJ RESOURCES LTD

Klj House

63, Rama Marg,

Najafgarh Road,

New Delhi-110015                                                         

                                                                                                      ……..COMPLAINANT             

VERSUS

THE ORIENTAL INSURANCE CO. LTD.

Through Its Divisional Manager

Division Office no. 3

4-E/14, Azad Bhawan, 2^ND Floor,

Jhandewalan Extn,

New Delhi-110055

                                                                                                      …..OPPOSITE PARTY

                                                              ORDER                                       

Rekha Rani, President

1. M/s KLJ Resources Ltd (complainant) filed  the instant complaint  U/s 12 of the Consumer Protection Act (in short the Act)  praying for direction to the Oriental Insurance Company Ltd (OP) to pay a sum of Rs. 4,07,203/- towards the loss sustained by it because of  short quantity of insured consignment  received   in the storage tank along with interest @ 12%  p.a. from 12.03.2013  up to the date of payment, Rs. 50,000/- towards  compensation for deficiency in service and Rs. 30,000/-  as cost of litigation inter-alia   on the basis of facts pleaded as follows:

Complainant is a company engaged in trading of chemical and petrochemicals .  The complainant intended to import approximately 1000 MT (+/-5%) of N-ALKANES (C10+) LIQUID PARAFFINS-L from anywhere in the world (Load Port) to anywhere in India via any Indian Port and in order to obtain an insurance cover against its loss or damage during transit approached the OP who after collecting an insurance premium of Rs 52044/-through Cheque No. 480903 dated 21.01.2013 from the complainant, issued their insurance cover note no. 319871 dated 21.01.2013 covering the import consignments against all risks for a total sum Insured of  Rs.8,42,14,457/- from anywhere in the world to anywhere in India on shore tank to shore tank basis. The OP thereafter issued 3-page insurance policy bearing no. 272200/21/2013/1134 dated 22.01.2013 in lieu of the said cover note no. 319871.  The Shippers, M/s. SheIl MDS (Malaysia) Sendirian Berhad supplied the consignment of 1000.121 MT of N-ALKANES(C10+)  LIQUID PARAFFINS-L vide their invoice no. 9000006389 dated 05.02.2013. The said consignment consisting of 1000.121 MT N-ALKANES(C10+) LIQUID PARAFFINS-L was loaded on to Vessel MT BOW FUJI for being carried from Bintulu, Malaysia to Kandla Port in India. In respect of the said consignment, the complainant had incurred a sum of Rs.1,83,47,716/- towards custom duty. The consigned material arrived at Kandla Port on 12.03.2013 and was discharged into Storage Tank at Kandla Port. The complainant company however received 990.004 MT material in the storage tank as against the Bill of lading quantity of 1000.121 MT, thus a quantity of 10.117 MT was received short by the complainant.  The complainant lodged their claim for Rs. 4,07,203/- with the OP vide their  letter dated 22.4.2013 and submitted the claim bill and other claim documents. OP repudiated the lawful claim of the complainant on 20.3.2014. Hence the complaint.

2. On receipt of notice the OP has appeared and filed written statement wherein it is pleaded that complainant company has not come to the forum with clean hands as it has concealed material facts. It is stated that the claim is barred by limitation.  It is further stated that the complaint is barred by section 2 (d) (ii) of the Act as the complainant company is not a consumer having availed services of the OP for commercial purpose. It is also stated that the present case involves adjudication of complicated questions of fact and law which cannot be adjudicated in the present summary proceedings under the Act.
3. We have heard Mr. Rakesh Kumar  learned counsel for complainant and Mr. Bhupesh Kumar Chandna learned counsel for  OP. During the course of arguments learned counsel for OP objected to pecuniary jurisdiction of this forum to adjudicate the claim.
4. The complainant has stated that it obtained an insurance cover against loss or damage to imported consignment during transit for a sum of Rs. 8,42,14,457/- and had also paid Rs 1,83,47,716/- towards custom duty in respect of the said consignment.
5. As per Section 11 (i) of the Act the District Forum has pecuniary        jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceeds Rs. 20 Lacs.
6. Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous   Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016  observed that value of goods & services  and value of the relief sought is to be   seen for the purpose of pecuniary jurisdiction instead of value of deficiency alleged .
7. The same question again came up  before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum.  The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of  the said service is taken into consideration for the purpose of determining   pecuniary jurisdiction.
8. In another case titled  Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission  judgment in  Ambrish Kumar Shukla  (supra)  was again referred and following relevant part  of the said judgment was quoted:  

“Reference order dated 11.8.2016   Issue No. (i)   It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”

9. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant  had already paid the entire loan amount and had agreed to pay the full and  final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C ) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized  the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition.  The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles.   Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High  Court of Odisha, the Daimler Financial Services India   taking advantage of the situation had not issued NOC to the complainant.  The complainant hence filed a  Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and  for directing Daimler Financial Services India to issue NOC in respect of the two vehicles.  The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The  Hon’ble National Commission observed that :

“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh,  the cost of service and compensation asked for is Rs. 95,000/-.  Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.

10.  Hon’ble Apex Court has repeatedly held that the question of jurisdiction can be raised at any stage of the proceedings as the court/tribunal/forum is bound to decide the same before proceeding to adjudicate the matter on merits as the issue of jurisdiction goes to the root of the matter and decision of the court/tribunal/forum without jurisdiction is a nullity which cannot be executed.
11.  In Jagmittar Sain Bhagat (Dr.) v. Director, Health Services, Haryana & Ors., III (2013) CPJ 22 (SC) = Civil Appeal No. 5476 OF 2013 dated 11/07/2013,Hon’ble Apex Court observed:

  “Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at of the any stage proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/  inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lal Ramnarayan & Ors., AIR 1978 SC 22; Natraj Studios (P) Ltd. v. Navrang Studios & Anr., AIR 1981 SC 537; and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors., AIR 1999 SC 2213).

In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.”Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur v. Maharaja of Jeypore, AIR 1919 PC 150; State of Gujarat v. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. & Anr., AIR 2005 SC 4446; and Carona Ltd. v. M/s. Parvathy Swaminathan & Sons, AIR 2008 SC 187).

12. In Reliance Consumer Finance Vs Randhir Singh First Appeal No. 431 of 2013 the Hon’ble SCDRC , Chandigarh vide order dated 24.12.2013 it was observed that it is settled  principle of law, that the Consumer Fora, at any stage of the proceedings, is duty bound to decide of its own, the legal questions as to whether the complainant within the definition  of a Consumer ; whether it had territorial and pecuniary jurisdiction to entertain and decide the complaint; whether the complaint involved the consumer dispute; and whether the consumer complaint was maintainable.   
13.  Since this forum lacks pecuniary jurisdiction to adjudicate the claim objection of the OP regarding the claim being barred by limitation or the complainant not being a consumer the transaction being commercial in nature, cannot  be agitated before this forum. The instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction . Copy of the  same  be retained  on record. Copy of this order be sent  to the parties as statutorily required. File be consigned to record room.

           Announced on this 11^th Day  of January 2018.