Chandigarh

StateCommission

A/347/2015

Spicejet Ltd. - Complainant(s)

Versus

Ranju Aery - Opp.Party(s)

Amit Punj, Adv.

29 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	347 of 2015
Date of Institution	:	23.12.2015
Date of Decision	:	29.12.2015

 Spicejet Ltd., 319, Udyog Vihar, Phase-IV, Gurgaon-122016.

……Appellant/Opposite Party

V e r s u s

 

Ranju Aery w/o Sh.Abnesh Dhadwal, R/o #2361, Sector 19-C, Chandigarh.

               ....Respondent/Complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Amit Punj, Advocate for the appellant.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            In a case, where a consumer has purchased air tickets online i.e. through internet, in case of deficiency in providing service, at which place, he/she could file a consumer complaint for redressal of his grievance, is the core question, which needs consideration.   

2.       In the past one and a half decade, E-commerce has emerged as a major source of business. Almost all articles of use can be bought and services availed online through internet. There is no standard definition for the term E-commerce, as such, it is used to indicate a mode of conducting business though electronic means, distinct from the conventional physical means. In the above process, in a single transaction, two or more than two parties may be involved.

            In the course of life, disputes are bound to occur in such like  business activities. In case of sale and purchase through internet, question of territorial jurisdiction gets complex, mainly because the process is borderless. E-commerce contracts are conceptually similar to traditional commercial contracts. Vendors offer their products, prices, terms and conditions to the buyers. The buyers after considering the options, negotiates the prices, terms & conditions and then place orders and make the payment. Thereafter, the vendor delivers the purchased products to the buyers. The Hon'ble Supreme Court of India in Trimex International FZE Limited Dubai Vs. Vedanta Aluminum Limited 2010 (1) SCALE 574 recognized the validity of online transactions and held that emails exchanged between the parties regarding mutual obligations constitute a contract.  

3.       Qua territorial jurisdiction of a District Forum, Section 11 (2) of the Consumer Protection Act, 1986 (in short the Act)  reads thus:-

“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 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”.

4.       It is clearly provided that a complaint can be filed before the 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 a Forum, where any of the opposite parties 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 parties, not residing within the jurisdiction of a District Forum, where complaint was filed. Provision also stipulates that the complaint can be filed before a District Forum where cause of action wholly or in part, arises. Similar provision exists qua territorial jurisdiction of the State Consumer Disputes Redressal Commission, as per Section 17 (2) of the Act.
5.       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  i.e. credit and debit Cards,  which has facilitated those operations. At times, in such like cases, the consumer may get a raw deal, as internet dealings are done with unknown parties, operating far away from different places.
6.       In the instant case, the complainant/appellant and her family members, purchased air tickets online, through internet from Chandigarh, for a holiday to Bagdogra. The tickets were booked through yatra.com, for journey on 23.06.2015. Tickets for return journey were booked from Bagdogra to Kolkata and connecting flight of the appellant/opposite party from Kolkata to New Delhi, for 30.06.2015. She paid an amount of Rs.70,900/-, through debit card, for the said purpose. It is her grievance that at the time of return journey, when she alongwith her family members were waiting  at Kolkata Air port, for boarding connecting flight to New Delhi on 30.06.2015, she came to know that the flight has been cancelled. Alternative flight was not offered/arranged. Staff of the appellant was non-cooperative. She and her husband were to join duties on 01.07.2015. After arranging money from their relatives at Kolkata, they purchased tickets of another airlines from Kolkata to New Delhi via Mumbai, after spending an amount of Rs.80,855/-. They reached Chandigarh through bus. It was further stated by her that she got information under the Right to Information Act, 2005, from Airport Authority of India, showing that ‘the only flight’ of the appellant was not operated, whereas other 128 flights departed as per schedule. Seven flights were late and only flight of the appellant was cancelled, due to operational reasons. It was also averred that her amount paid to the appellant was not refunded.
7.       Despite notice when the appellant failed to put in appearance, by raising presumption in terms of Sub-Clause (2) of Regulation 10 of the Consumer Protection Act, 1986 (in short the CPA 1986) exparte proceeding were taken up against it, vide order dated 20.11.2015.
8.       The respondent/complainant led evidence, in support of her case.
9.       Perusing evidence brought on record by the respondent, consumer complaint filed by her was allowed by the Forum, granting following reliefs:-

“In the light of above observations, we are of the concerted view that the Opposite party is found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed against the Opposite Party. The Opposite party is directed as under:-

[a] To refund an amount of Rs.80,885/- minus the air fare between Kolkata to Delhi of the cancelled flight along with interest at the rate of 9% p.a. from the date of cancellation of flight i.e. 30.6.2014 till it is paid;

[b] To pay an amount of Rs.1,25,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service;

[c] To pay litigation expenses to the tune of Rs.10,000/-

The above said order shall be complied within 45 days of its receipt by the Opposite party; thereafter, it shall be liable to pay an interest @18% per annum, on the amount as mentioned at sub-para [a] above from the date of cancellation of flight i.e. 30.6.2014 till it is paid, and also on the amount as mentioned at sub-para [b] above, from the date of filing of the complaint till it is paid, apart from paying litigation expenses.”

10.       Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
11.       We have heard Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully. 
12.       The question which has been set down for consideration, at the beginning of this order, was raised by Counsel for the appellant, to say that the order under challenge could not have been passed by the Forum, for want of territorial jurisdiction. To support his argument, he has placed reliance upon a judgment of the National Consumer Disputes Redressal Commission (in short the National Commission), titled as Dr.Ravi Ghai and ors. Vs. M/s Make My Trip (India) Private Limited and another, Revision Petition No.2193-2194 of 2012 decided on 22.05.2013, to say that in the case of purchase of tickets online through internet, only the Forum, where Headquarter of the appellant is situated, will have territorial jurisdiction to entertain and deicide this complaint.
13.       Before accepting or rejecting above contention, we need to look into the purpose and spirit, for which the Act was enacted and how it is to be interpreted. Real purpose of the Act was to empower the consumers to take on the might of large corporations and also preventing unscrupulous entities in business, from taking undue advantage of the weak position, in which the consumers are placed. Noble idea was to protect interests of the consumer and for the purpose, to establish mechanism, in which efficacious and economical justice is imparted to them. Reading of the provisions of the Act makes it clear that it is consumer friendly enactment. When the Act was enacted in the year 1986, E-commerce virtually was not in practice. At present, it is a digital era, in which large number of transactions are being conducted online through internet.

            How to protect the consumers, under above circumstances, needs consideration? In Lucknow Development Authority Vs. M.K. Gupta (AIR 1994 SC 787), it was specifically opined by the Supreme Court of India that the provisions of the Act are to be construed in favour of the consumers, to achieve purpose of enactment, as it is a social benefit oriented legislation. In  State Vs. S.J. Choudhary (AIR 1996 SC 1491), the Supreme Court of India also observed as under:-  

(2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.

In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters.

14.       To interpret provisions of an Act, rational approach and not a technical approach, needs to be adopted. The provisions of the Act need to be interpreted broadly to protect interest of a poor consumer.

            In the present case, air tickets were booked through yatra.com. For that, amount was paid through debit card. Money was transferred from a bank account of the respondent, situated in Chandigarh, to the bank account of the appellant, at Gurgaon, where headquarter of the appellant is situated. The said tickets which were purchased through internet, were delivered to the respondent, at Chandigarh. By making reference to the order passed by the National Commission, in the case of Dr.Ravi Ghai and ors.' case (supra), it was argued by Counsel for the appellant that only the Consumer Forum at Gurgaon, has territorial jurisdiction, to entertain and decide the complaint. If the said contention is accepted, it will run contrary to the spirit of CPA 1986, which provides speedy inexpensive and hassle free redressal of the grievances of the consumers. In case, arguments of Counsel for the appellant is accepted, it would amount to clogging down the District Forum at Gurgaon, as complainants throughout the Country, will approach there, for filing their complaints and further it will be very costly for anybody, to travel to Gurgaon and defend his/her case. Such a stipulation was not contemplated, under  the provisions of the CPA 1986.

15.       As per established law, contracts can be concluded through telephone, where the parties are placed at distance, without having direct access to each other. In such a situation, contract would be completed at a place, where its acceptance is communicated. Because of advancement & technology and rapid growth of new models of conducting business over the internet, it is possible for an entity to have a virtual presence at a place, which is located at a distance from the place, where it has a physical presence. In the present times, the availability of goods and services, through the website at a particular place, has virtually become the same thing, as a seller having shops, in that place, in the physical sense. Besides as above, ordinarily existence of offer and its intimation, results in a contract and a suit can be filed at a place, where acceptance was communicated. Further more performance of a contract forms a part of cause of action and grievance can be redressed by filing a suit, qua its breach at a place, where contract should have been performed. It was so said by the Hon'ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd. and anr. Vs. A.P. Agencies, Salem, 1989 AIR 1239=1989 SCR (2) 1, while interpreting the provisions of Section 20 (c) of the Code of Civil Procedure.

            The provisions of Section 11 (2) of the CPA 1986 are akin to the provisions of Section 20 (c) of the Code of Civil Procedure. The pronouncement of law, as made by the Hon'ble Supreme Court of India, in the case of  A.B.C. Laminart Pvt. Ltd. and anr.'s case (supra) would apply in full force to the Consumer Forums, when trying complaints under the CPA 1986. Not only this, the Hon'ble Supreme Court of India in the case of Marine Container Services South vs Go Go Garments (AIR 1999 SC 80) (Para 4), also held that the Contract Act applies to all litigants, including the litigants under the CPA 1986. In view of above, it can safely be said that for the purpose of consumer complaints, relating to normal contracts for services and/or goods, cause of action arises interalia at any of the places, where; (a) 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. Consequently, territorial jurisdiction over a consumer complaint also lies with the Consumer Fora situated at any place, where any of the aforementioned cause of action arises.

            The above said observation was made qua conventional type of contracts, as to how the said principle can be made applicable to the transactions effected through internet, for the said purpose, we are required to look into the provisions of Information Technology Act, 2000 (I.T. Act 2000). The preamble to the I.T. Act, 2000, reads thus:-

 

“An Act to provide legal recognition for the transactions carried out by means of electronic data interchange  and  other  means  of   electronic communication,  commonly referred  to  as Electronic Commerce,  which  involve  the use of alternatives to  paper  based  methods of communication and storage of information, to facilitate electronic filings of documents with the Government agencies and further  to  amend  the  Indian  Penal  Code,  Indian Evidence Act, 1872, The  Bankers  Books  Evidence Act, 1891, and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

16.       The I.T. Act, 2000, reflects the growing importance of internet in our life. The main issues in this I.T. Act, 2000, that are looked into include hacking, privacy, regulating authority and punishments for wrongdoers. Although this law does not focus on the interest of online shoppers, however, some of its provisions are important to be noted qua interest of the consumers, when making shopping online. For the purpose of this discussion,  Section 13 (3) of the I.T. Act, 2000, 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, and is deemed to be received at the place where the addressee has his place of business.”

17.     In the present case, offer was made to purchase air tickets through internet. It was accepted and tickets, through internet, were sent on payment of money, to the complainant, at Chandigarh. In terms of above provisions, it can safely be said that the air tickets would be taken to have been sent at complainant's place of business/residence. The acceptance of contract would also be deemed to have been communicated at the above place. By reading the provisions of CPA 1986; I.T. Act, 2000; and with the help of ratio of the judgment in  A.B.C. Laminart Pvt. Ltd. and anr.'s case (supra), we can safely hold that, where contracts for services and/or goods are entered into over the internet (or online as such transactions are commonly referred to), then, for the purposes of consumer complaints, part of the cause of action arises interalia, at the complainant’s place of business, if acceptance of the contract is communicated to her through the internet, including the medium of email. Further, irrespective of the fact, whether or not the contract is one made over the internet, cause of action would also continue to arise at any of the places (a) where the contract is performed or is to be performed or (b) where money under the contract is either payable or paid or (c) where repudiation of the contract is received, if any. As such, it cannot be disputed that a Consumer Fora  is competent to entertain a consumer complaint, even if only an infinitesimal part of cause of action arises within its territorial jurisdiction. As a result, territorial jurisdiction over a consumer complaint would lie with the Consumer Fora situated at any place, where any of the aforementioned causes of action arises. This, of course, is in addition to the other places, where a consumer may choose to file a complaint in accordance with the other provisions of Section 11 (2) of the CPA, 1986.
18.            Having said that, we cannot forget that all consumers of our country do not necessarily have a place of business. Take the case of a student or a housewife or an employee, who has no place of business and who places an order over the internet from his/her home. As such, they cannot be denied refuge, under territorial jurisdiction of the local Consumer Fora. That would be discriminatory and unfair. In fact, they are even more vulnerable and need even more protection as consumers. The concept of place of residence is not new and already exists in Section 11 (2) of the CPA 1986. But the point is that place of residence is not unknown to law, for the purpose of territorial jurisdiction. We, therefore, further add an extension that, in case, a consumer does not have a ‘place of business’ then the said term as stated in the paragraphs above, is to be read as place of residence.
19.       It may be stated here that the CPA 1986 is a benevolent legislation, the main object of which is not only to protect the consumers but also to provide them a speedy and simple dispute redressal mechanism, free from hassle.
20.       The Hon'ble National Commission, in Dr.Ravi Ghai and ors. Case (supra) when rendering judgment to the contrary, did not notice the ratio of the judgment passed by the Hon'ble Supreme Court of India in A.B.C. Laminart Pvt. Ltd. and anr.'s case (supra) and also the provisions of I.T. Act 2000. Further, as has been noted above, the Hon'ble Supreme Court of India, has said in a case of Trimex International FZE Limited Dubai's case (supra) that emails exchanged between the parties, online, i.e. through internet constitutes a contract.
21.       Further contention of Counsel for the appellant that compensation awarded to the respondent, is on the higher side, is devoid of merit. We are of the opinion, that it is rather on the lower side. The air tickets were booked by the respondent, online, through internet from Chandigarh, for a holiday to Bagdogra, alongwith her family members, through yatra.com, for journey on 23.06.2015. Tickets for return journey were booked from Bagdogra to Kolkata and connecting flight of the appellant/opposite party from Kolkata to New Delhi, for 30.06.2015, for which, an amount of Rs.70,900/-, was paid through debit card. When family members were waiting at Kolkata Airport, for boarding connecting flight to New Delhi on 30.06.2015, the complainant came to know that the flight has been cancelled. Alternate flight was not offered/arranged. The complainant was lucky to have relatives in Koklata, from whom, money was borrowed and an amount of  Rs.80,855/- was paid to another airlines to reach New Delhi via Mumbai, from where they travelled through bus, to reach Chandigarh. Lot of harassment might have been caused to the entire family of the respondent including her, which necessitated grant of compensation. In this appeal also, no explanation has been given by the appellant, as to what were the reasons, for which flight was not operated on the said date, that was the only flight, which was cancelled. As such, no ground, whatsoever is made out by the appellant, to set aside the order under challenge.   
22.       No other point, was urged, by Counsel for the appellant.
23.       In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
24.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the Forum is upheld.
25.       Certified copies of this order, be sent to the parties, free of charge.
26.       The file be consigned to Record Room, after completion.

Pronounced.

29.12.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

SD/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

 MEMBER

 

 

Rg