KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 154/2007
JUDGMENT DATED:04..02..2011.
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K. ABDULLA SONA : MEMBER
IndianAirlines Limited,
R/by its General Manager, : APPELLANT
Meenambakkam, Cehnnai-600 027.
(By Adv:M/s Menon & Pai)
Vs.
T.P.Usman,
Nhekley House,P.O.Nhekley. : RESPONDENT
(By Adv.Sri.T.K.Muralidharan)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and respondent was the complainant in OP.282/03 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency of service on the part of the opposite party with respect to the missing of a baggage (suit case/brief case). The complainant alleged that the lost baggage contained articles worth UAE Dirhams 6569. The complainant claimed value of the articles contained in the lost baggage worth UAE Dirhams 6569 and also for compensation of Rs.50,000/- for deficiency of service on the part of the opposite party.
2. The opposite party entered appearance and filed written version denying the alleged deficiency of service. The opposite party admitted the fact that the complainant travelled in Flight No.IC 594 on 22/2/2002 from Sharjah to Kozhikkode and that he was having a hand baggage which exceeded the prescribed weight and dimension of 7 Kg. and 115 Cms and so the said baggage was retrieved at the security gate in Sharjah airport by the Sharjah security authorities. The complainant violated the provisions of Warsaw Convention and also the regulation printed on the air ticket regarding the specification of hand baggage. The aforesaid hand baggage was treated as a limited release hand baggage and the carrier has no liability with respect to the limited release hand baggage. As a gesture of goodwill the opposite party offered a lump sum amount of Rs.4000/- to the complainant for the lost baggage; but the complainant was not amenable to accept the said sum of Rs.4000/-. The complainant has declared the value of the contents of the lost baggage at Rs.8000/- and the same is incorporated in the baggage landing certificate issued by the Air Customs, Calicut. The complainant has also signed in the said baggage landing certificate. The case of the complainant that the lost baggage contained articles worth UAE Dirhams 6569 cannot be believed or accepted. The opposite party has also challenged the jurisdiction of CDRF, Kannur in entertaining the complaint in OP.282/03 as no part of the cause of action has arisen within the jurisdiction of the CDRF, Kannur. Thus, the very maintainability of the complaint was disputed by the opposite party. Hence the opposite party prayed for dismissal of the complaint in OP.282/03.
3. The appellant herein was the 2nd opposite party in the original complaint in OP.282/03. The Security Officer, CISF, International Airport, Sharjah was shown as the 1st opposite party. During the pendency of the said OP.282/03, the complainant through his power of attorney holder filed a petition to get the 1st opposite party deleted from the party array. The aforesaid petition was accompanied by an affidavit sworn to by the power of attorney holder of the complainant. The said affidavit and petition was filed on 4/5/2004. The Forum below (CDRF, Kannur) allowed the said interlocutory application vide order dated:4/5/2004 and thereby the 1st opposite party, the security officer CISF International Airport, Sharjah was deleted from the party array. Thus, the 2nd opposite party in the original complaint happened to be the opposite party in OP.282/03. Before the Forum below, the power of attorney holder of the complainant was examined as PW1. Ext.A1 to A3 documents were also marked on the side of the complainant. From the side of the opposite party, the Assistant Manager (Commercial), Indian Airlines, Calicut was examined as DW1. He had also filed proof affidavit on behalf of the opposite party, Indian Airlines. Ext.B1 baggage landing certificate was also marked on the side of the opposite party. B1 document was marked subject to the objection of the complainant. The power of attorney holder of the complainant had also filed proof affidavit in support of the case of the complainant.
4. The Forum below framed the following issues for consideration:-
1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service?
3. Whether the complainant is entitled to get value of the articles lost and compensation? If so, the quantum?
5. On an appreciation of the evidence on record, the Forum below answered the above issues infavour of the complainant and thereby passed the impugned order dated:21st November 2006 allowing the complaint and directing the opposite party to pay an amount of rupees equivalent to 6569 UAE Dirhams with compensation of Rs.20,000/- and cost of Rs.5000/- to the complainant. Aggrieved by the said order the present appeal is filed by the opposite party therein.
6. When this appeal was taken up for final hearing there was no representation for the respondent/complainant. We heard the learned counsel for the appellant/opposite party. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the Forum below (CDRF, Kannur) had no territorial jurisdiction to entertain the complaint in OP.282/03 as no part of the cause of action had arisen within the jurisdiction of the Forum below. It is also submitted that the opposite party does not have office within the territorial jurisdiction of the CDRF, Kannur. It is pointed out that the respondent/complainant was travelling from Sharjah to Kozhikkode and the alleged cause of action has arisen either at Sharjah or Kozhikkode. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below which had no territorial jurisdiction to entertain the complaint in OP.282/03. It is further submitted that the Forum below has not considered the aforesaid issue regarding the maintainability of the complaint. It is further submitted that the mere fact that the complainant is residing within the territorial jurisdiction of the CDRF, Kannur cannot be taken as a ground to hold that the CDRF, Kannur is having the territorial jurisdiction to entertain the complaint. The counsel for the appellant/opposite party has also challenged the finding of the Forum below that the lost baggage contained articles worth 6569 UAE Dirhams. He much relied on Ext.B1 baggage landing certificate issued by the Air Customs, Kozhikkode and the signature affixed by the complainant on B1 certificate agreeing the value of the articles at Rs.8000/-. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.
7. Admittedly, the respondent/complainant travelled from Sharjah to Kozhikkode on Flight No.IC-594 on 22/2/2002. It is the case of the respondent/complainant that he lost his baggage which was treated by the opposite party as a limited release baggage by providing limited release tag No.290271. The aforesaid bag was taken from the possession of the complainant at the Airport in Sharjah. The complainant was assured that the said baggage could be collected from Airport, Kozhikkode. Admittedly, the said baggage could not be collected at the destination point viz, Airport, Kozhikkode.
8. The issue involved in this case is regarding the deficiency of service on the part of the opposite party (appellant) in their failure to hand over the said limited release baggage with tag No.290271. So, the complainant claimed value of the contents of the said lost baggage with compensation for deficiency of service and also cost of the proceedings.
9. The cause of action for the said claim had arisen on 22/2/2002 during journey of the complainant in the Indian Airlines Flight No.IC 594 from Sharjah to Kozhikkode. It can very safely be concluded that the cause of action for the complaint in OP.282/03 had arisen during the journey from Sharjah to Kozhikkode. There is nothing on record to show that any part of the cause of action has arisen within the territorial limits of the CDRF, Kannur.
10. The complaint in OP.282/03 was filed before the CDRF, Kannur. There is no case for the complainant that any part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kannur. There is no whisper in the complaint that any part of the cause of action has arisen at Kannur.
11. The opposite party in the said OP.282/03 is the General Manager, Indian Airlines, Airlines House, Meenampakkam, Chennai. Ext.A2, lawyer notice dated: 10/10/2002 was sent to the opposite party in his address at Chennai. Thus, the complainant was fully aware of the fact that the opposite party is having his office at Chennai. The definite case of the opposite party is that the Indian Airlines have no office in Kannur within the territorial jurisdiction of CDRF, Kannur. The proof affidavit filed by the Area Marketing Manager of the 2nd opposite party at Calicut and the Assistant Manager, Commercial would show that the opposite party. Indian Airlines is having their office at Kozhikkode. It is also to be noted that opposite party in his written version categorically contended that the opposite party/Indian Airlines is not having any office at Kannur and that the cause of action for the complaint had arisen either at Sharjah or at Kzhikkode. It is also contended that no part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kannur. But the Forum below has not considered those contentions raised by the opposite party in its correct perspective.
12. The power of attorney holder of the complainant was examined as PW1. He could not point out anything to show that any part of the cause of action has arisen within the territorial jurisdiction of CDRF, Kannur. He has also no case that the opposite party is having its office within the territorial jurisdiction of CDRF, Kannur. Thus, the materials available on record would show that the opposite party is not residing or carrying on business or works for gain within the local limits of CDRF, Kannur. It would also show that no part of the cause of action had arisen within the local limits of CDRF, Kannur.
13. Sec.11(2) of the Consumer Protection Act, 1986 deals with territorial jurisdiction of a District Forum. It is as follows:-
(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.
14. The provisions contained in Sec.11(2) of the Consumer Protection Act, 1986 would make it clear that a complaint can be instituted in a District forum within the local limits of whose jurisdiction the opposite party or opposite parties residing or carries on business or has a branch office or personally works for gain. It would also show that a complaint can also be filed in the District Forum in whose jurisdiction the cause of action, wholly or in part has arisen. In the present case on hand, the opposite party carries on business at Chennai and that the opposite party has no office in Kannur within the territorial jurisdiction of CDRF, Kannur. The cause of action for the complaint in OP.282/03 had arisen during the complainant’s journey in Indian Airlines Flight No.IC 594 from Sharjah to Kozhikkode. The subject matter of the complaint viz, the baggage was lost during the journey or transit from Sharjah to kozhikkode. Thus, it can very safely be concluded that no part of the cause of action had arisen at Kannur. If that be so, the CDRF, Kannur had no territorial jurisdiction to entertain the complaint in OP.282/03. The complaint in OP.282/03 filed before CDRF, Kannur can be treated as not maintainable and the same is liable to be dismissed. If that be so, the impugned order dated:21/11/2006 passed by the CDRF, Kannur in OP.282/03 is legally unsustainable and the same is liable to be quashed. Hence we do so.
15. The complainant in OP.282/03 will be at liberty to file the complaint before the District Forum having territorial jurisdiction. In that even the complainant (respondent herein) will get the time taken for prosecuting the complaint in OP.282/03 excluded by virtue of the provisions of Sec.14 of the Limitation Act. Hence the respondent/complainant is entitled to get the benefit of Sec.14 of the Limitation Act as held by the Hon’ble Supreme Court in Lucknow Development Authority’s case (AIR 1994 SC 787).
In the result, the appeal is allowed. The impugned order dated:21/11/2006 passed by CDRF, Kannur in OP.282/03 is set aside and the complaint therein is dismissed as the CDRF, Kannur was not having the territorial jurisdiction to entertain the complaint in OP.282/03. The respondent/complainant will be at liberty to move the concerned CDRF having the jurisdiction to get the grievances of the respondent/complainant redressed and in that event the respondent/complainant will be having the benefit of the provisions of Sec.14 of the Limitation Act. The parties to this appeal are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA: MEMBER
VL.
