For the Complainant                 - Mr. Souvik Chatterjee, Advocate

  For the OPs                                -  Mr. Bappaditya Chakraborty, Advocate

Order No. 14 Dated 05.08.2019

The instant order arising out of two separate application dated 12.10.2018 and 25.06.2019 filed by the OPs 1 & 2 challenging the maintainability of the case on the ground of territorial jurisdiction.

The Ld. Advocate for the OPs contended that the OP-1 Shib Durga Medical Hall carrying on its business at village-Rashpur, P.O. Jagalgori under Jangipara P.S. within the District of Hooghly and its sole proprietor Shri Asim Sen is also an inhabitant of village Kotolpur within the District of Hooghly. He further stated that both the addresses are under the jurisdiction of the DCDRF, Hooghly at Chinsurah. It is further mentioned by the Ld. Advocate for the OPs that OP-2 Dr. Sanat Kumar Dalui is an permanent inhabitant of village Chanchuya Dingalhati under Jangipara P.S.

Ld. Advocate for the OPs stated that the complainant himself in para 3 of the complaint petition admitted that OP-2 medically treated the patient at Shib Durga Medical Hall (OP-1) on 05.05.2018. Therefore, this Forum has no territorial jurisdiction to entertain the complaint. Hence, the prayer for dismissal of the consumer complaint.

The non maintainability application has been resisted by the complainant. The Ld. Advocate for the complainant contended that this Forum admitted the complaint after observing the amendment in section 11 (2) (b) of the Consumer Protection Act, 1986. Thus, the question of territorial jurisdiction does not arise. Hence, the Ld. Advocate for the complainant has prayed for rejection of both the prayer of the OPs.

We have examined the complaint petition coupled with the Written Version of the OPs and also given a thoughtful consideration as well as arguments advanced before us.

Section 11(2) of the Consumer Protection Act, 1986 deals with the territorial jurisdiction of the District Forum and the same reads as under:

"11(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 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."

A plain reading of the above section in the case that the consumer complaint can be instituted, inter alia in a District Forum within the limits of whose jurisdiction, the OP or each of the OPs actually and voluntarily resides or carries on business or has a branch office or personally works for gain. The words carries on business do imply that the complaint could be instituted at a place from where the business of the OP is being handled controlled or supervised in addition to the place where the OP has their branch office.

The basic question for consideration by this Forum is as to whether this Forum lacked of inherent jurisdiction as raised by the OPs. It is true that the OP-2 Dr. Santa Kumar Dolui medically treated the son of the complainant on 05.05.2018 at Sib Durga Medical Hall (OP-1) at Rospur Jangipara within the jurisdiction of Consumer Dispute Redressal Forum, Hooghly and admittedly neither the OP-1 nor the OP-2 has any Medicine Shop or Chamber within the jurisdiction of the District Forum Kolkata- Unit II.

In the case of Sonic Surgical Vs. National Insurance Company Limited; (2010) 1 Supreme Court Cases 135 = IV (2009) CPJ 40 (SC), the fire broke out at Ambala and the compensation was claimed at Ambala. It was held by the Hon'ble Apex Court that no part of cause of action arose in Chandigarh and the Consumer Commission, Chandigarh had no jurisdiction to adjudicate the matter. In the said case, it was submitted on behalf of the appellant that the respondent - insurance company has a Branch Office at Chandigarh and hence under the amended Section, the complaint could have been filed in Chandigarh. The Hon'ble Apex Court did not agree with the said submission and held that if the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen at Ambala, then too, the complainant can file a claim petition in Tamil Nadu or Gauhati or anywhere in India where a Branch Office of the insurance company is situated. It was further held that it will lead to absurd consequences and lead to bench-hunting.

We may state the settled law that a defect of jurisdiction, whether it is pecuniary or territorial; strikes at the very authority of the Forum to pass any order and such an order is a nullity and its invalidity could be set up whenever or wherever it is sought to be enforced. The OP-2 is an inhabitant of Kolkata under Entally P.S. would not ipso  facto be determination of territorial jurisdiction of this Forum. The alleged medical negligence took place at Rospur, P.S. Jangipara, District-Hooghly. Therefore, there exists no cause of action in favour of the complainant within vicinity of this Forum in order to present the consumer complaint before DCDRF, Kolkata Unit-II. We are accordingly of the considered view that the objection raised by the OPs regarding  territorial jurisdiction is just and proper and therefore, the complaint cannot be tried and entertained in this Forum for  want of territorial jurisdiction.

In view of the above discussion, we are of the definite view that this Forum has no territorial jurisdiction in the instant matter. Resultantly, both the Miscellaneous Applications deserve to be allowed on the ground of territorial jurisdiction only, we refrain ourselves from entering into the merits of the case and commenting upon the same,

Hence,

Ordered

            That both the Miscellaneous Application dated 12.10.2018 and 25.06.2019 filed by the OPs 1 & 2 are allowed on contest.

            No order as to cost.

            Thus, MA being Nos. 290/2018 & 284/2019 are disposed of.

As a consequence, the complaint case being No. 352/2018 is dismissed on the ground of territorial jurisdiction. However, it will be open to the complainant to file his complaint petition before the appropriate Forum which has the jurisdiction in accordance with law.