Orissa

Rayagada

CC/180/2016

Dr. K.G.N. Kumandan - Complainant(s)

Versus

The Air Port Manager Air Inida Limited - Opp.Party(s)

Self

06 Jul 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 180 / 2016.                                       Date.     06. 07 . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  Gadadhara Sahu,                                            Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Dr. K.G.N.Kumandan, S/O: Late K.S.R.M.Kumandan,  New colony,  Po/Dist.Rayagada,State:  Odisha.                                                                                                         …….Complainant

Vrs.

The Airport Manager, Air India Ltd., Ahmedabad- 380 003.                           .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri S.Ramesh Kumar, Advocate, Rayagada(Odisha).

For the O.P  :- Sri Jimut Baran Patnaik and Sri R.K.Senapati, Associates.

.                                       JUDGEMENT..

        The  present dispute emerges  out of the complaint petition filed by the above named complainant alleging negligence and deficiency in service  against  afore mentioned O.Ps for non  payment   an amount  a sum  Rs. 24,607.00 towards negligence on the part of the O.P  for late  delivery of their  luggage to the complainant and his six other family members total 7(seven) No. family members  at Ahmedabad Airport  on Dt.6.5.2016 in lieu of  5.5.2016 i.e. after nine hours  due to  the schedule delay in delivery of baggage to   the complainant by the authority  his family could not get   into the train  and the reserved  tickets are unutilized as well as lost reserved accommodation and they compelled to stay  there at a hotel and travel  on road by a rented car for which  incurred huge expenses  owing to there stay at Ahamedabad and also for travel.

          On being noticed the  O.P. appeared  through their learned counsel and moved a petition challenging on the point of  territorial jurisdiction and  as to the maintainability of the complaint being beyond  the jurisdiction of the District Consumer Forum, the said application has to  be  decided first, so as to avoid further exercise calling upon the parties to file reply. The O.Ps taking one and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps  prays the forum to dismiss the case against  them  to meet the ends of justice.

The O.Ps appeared and filed their written version.  Heard arguments from the learned counsel for the     O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties & vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                FINDINGS.

                Undisputedly  the  complainant along with six family members were travelling on Dt.5.5.2016  in  flight No. A1-651 of Air India  at  Raipur towards  Mumbai at  about 12.35 P.M. Again it is not disputed  the complainant’s seven pieces of baggage were directly booked to Ahmedabad at Raipur Airport. Further  it is not disputed  the complainant  along with six family members were boarded Flight No. A1-144 of Air India at  Mumbai for Ahemadabad and they  reached  Ahaemedabad at 7.50 P.M.  on DT. 5.5.2016.   Again  it is also not disputed  that upon arrival at their  destination , seven pieces of luggage belonging to the complainant could not  be  delivered and the complainant  lodged a complaint before    the O.P.  and could deliver the seven  pieces of baggage to the complainant  early morning   at  5.00 A.M. on date. 6.5.2016  (i.e. after nine hours of their  arrival at Aahemadabad).

                The O.P. in their written version  para No. 5  contended that  on the point of preliminary  objection  towards  maintainability  inter alia   this forum has no    territorial jurisdiction  to entertain the above case. 

          During the course of hearing the learned counsel for the  complainant filed copies  of  detailed bank statement  which is marked as annexure-I  in support of his case.

          Perused the detailed bank statement. On perusal of the bank statement it is revealed that on Dt, 16.3.2016 the complainant had  booked 7(Seven) Nos. Air Tickets  from the O.P. over the internet from  Rayagada town (Odisha) State   and made payment through internet banking  which  amount  was  deducted  from  ICICI  bank , Rayagada account of  Sri A Rahul Kumar  A/C No. 078101501663 who  was nephew   of  the complainant. 

          On the basis of the pleadings, the   points  are  need to be answered  for determination  of this case.

(i)         Whether this forum has territorial jurisdiction to entertain this complaint under C.P.         Act, 1986  ?

             

Point No.1

                         As per Sec.11(2) of the Consumer Protection Act “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1.             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
2.             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, acquiese             insuch institution; or
3.             The cause of action, wholly or in part, arises”.

The clauses (a) (b) and (c) are disjunctive of each other and each clauses operates independently without being dependent on the other.The territorial jurisdiction as provided bysub-section 2 of Section 11 of the Act does no where providethat a complaint cannot be instituted in a District Forum within the local limits of whose jurisdiction the OP carries on his business or has a branch office unless the cause of action wholly or in part arisestherein. Nor it has prescribed similarly that a complaint cannot be instituted in a District Forum within the local limits of whose jurisdiction the cause of action wholly or in part arises as the O.p or each of the O.Ps do not carry on their business or has no branch office.

 

It issubmitted by the O.Pthatthe O.P.is situatedits registered office atAhamadabad, and as per Sec.11 of the C.P.Act,1986this forum has got no jurisdiction to entertain the present complaint having lack of territorial jurisdictionand opposite party hasnot carried of business or had a branch officeat Rayagadawithin the local limit ofjurisdictionas suchthe complaint petition wouldbe filed in Ahamadabad jurisdictionwherein the main office of the opposite parties is situatedand from where the cause of action has arisen . In its reply the complainant submitted that as per Sec.11 ( c) of the Act thecause of action arose in part at Rayagadaas the opposite party had receivedRs.32,841.45through internet banking on Dt.16.3.2016 (Copies of the bank statement is enclosed in the file which is marked as Annexure-Ias such the cause of action in part was arose within the territorial jurisdiction of this forum and this forum has jurisdiction to entertain this complaint. The Opp.Party also contended thatall disputes subject toAhamedabad jurisdiction. But the Constitution of Indiadoes not give liberty toany one in this country nor to the Opp.Party Company to make lawas per their sweet will and what they mentioned in their ticket is a bindinglaw and everybody has to obey it as they are not law maker. To safeguard the interest of the consumer, a separate law is there to which the Opp.Party cannot ignore and they can not compelledtheir consumer to obey the law as printed by them in their ticket.

The Consumer Protection Act is a beneficial legislation enacted for the protection and preservation of the right of the consumers. Interpretation of the provisions of the said Act should therefore be made by keeping in mind the reliefs and remedies how far could bemade available to the consumers in the event of any unfair trade practice adopted by the trader or if there by any deficiency in service by the service provider.The object and purpose of the Consumer Protection Act is to provide speedy and inexpensive remedy to the consumers as an alternative to the remedy already available to them by way of institution of a suit in the appropriate Civil Court. If such be the purpose then how a consumer like the presentonewho residing atRayagadawould havespeedy and inexpensive remedy against deficiency in service bythe opposite partywho resides at Ahamadabad , if the complainant has to file the complaint at Ahamadabad. Insucha situation, if the complainant is compelled to institute the complaint at Ahamadabadthen it would be most inappropriate and undesirable and it may spoiled the sprit of C.P.Act from the point of view of speedy and inexpensive remedy to a consumeras an alternative to the remedy available in Civil Court.Hence, in view of the aforesaid facts andfindings, as per Sec.11 ( c) of the Act,as the cause of actionpartlyarosein the district of Rayagada(Odisha) this forum has territorial jurisdictionto entertain this dispute.

            The acceptance  of contract would  also be deemed to have communicated   at the above place. By reading   the provisions of CPA- 1986 , I.T. Act, 2000   and with the help of ratio of judgement  in A.B.C Laminart Pvt. Ltd. And another’s , we can safely hold that,  where contracts for services and /or goods  are entered in to 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 him through  the internet, including the medium of E-mail. 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 can not be disputed that  a Consumer  Forum  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  be with the Consumer Forum 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.

It is held  on  Dt. 29.12.2015  in  Revision  Petition  No. 1396 of 2016  the Hon’ble  National Commission, New Delhi  observed  “In so far  as the issue   of   territorial  jurisdiction   is concerned, the  cause of action arises at  Chandigarh, because with booking of the travel tickets on the internet, the acceptance   of the  contract was received by the   complainant  through internet  at his place of business/residence. We have  no reasons to differ with the view taken  by the State Commission that the  State Commission at Chandigarh had the territorial jurisdiction to handle the complaint”. The Hon’ble  Supreme Court  upheld the  above  verdict of the  Hon’ble National Commission  on Dt.4/8/2017  in  Special leave petition No. 15120  of 2017.   In view of the above decision  this forum has  territorial jurisdiction to entertain the above case.

Again  It is held  in First appeal No. 7/2007  on Dt. 7.12.2013  the Hon’ble  State C.D.R.Commission,  Meghalaya where in observed  in para -31  “Taking the example of the case at hand, if an air ticket is booked  by a complainant over the internet which is also sent by an Airline company to the complainant through E-mail, then these would be despatches of electronic  records. The request  for booking of the air ticket would be an offer  and the  E- mailing   of the ticket to the consumer  would be the acceptance. In terms of Section 13(3) of the I.T. Act, the ticket or, in other words, the acceptance of the offer for its purchase, would be deemed to have been  received at the complainant’s  place of business.  Resultantly, the contract for purchase of the air ticket would be taken  to be have been made at the complainant’s place of business. Acceptance of the contract would also be deemed to have been communicated there”.

It is well found by the Hon’ble High Court of Calcutta held and reported in AIR-1985 Calcutta-poge No. 74 in a suit.  A breach of contract suit can be entertained by the forum within whose jurisdiction price was payable. So the above  case can be filed on that place where the contract were made. Again Section- 11(2)© of the C.P.Act  specifies a complaint can  be instituted in a   District Consumer  Forum  with in the local limits of whose jurisdiction  the cause of action, wholly or in part arises. In the instant case the O.P. received the consideration from the complainant through internet banking from Rayagada(Odisha). This is enough proof for the cause of action arises at Rayagada(Odisha) in part.

Again it is held and reported in  1999(1) CPR page 17  in the case of  Air port authority of India  Vrs. M.S. sold hire India Ltd. in case of hiring of services  for consideration is there is any deficiency the party is default  can be prosecuted by filing consumer complaint and question  where the services  availed  were for the commercial purpose or not  was of no consequences.

Again it is held and reported in  2010(1) SCC page No. 574 in the case Trimex International FZE Ltd. Dubai Vrs. Vedanta Aluminium Ltd.  the Hon’ble Supreme Court  where in  observed “recognized the validity of online transactions and held that E-mails exchanged between the parties regarding mutual  obligations constitute a contract”.

Further the Hon’ble State C.D.R.Commission, West Bengal  in F.A. 288 of 2009 in the cae of National Aviatin of Company Ltd. Vrs. Col. (Retd.) P.K.Choudhury where in observed “where airline tickets were purchased  over the internet from the complainants residence and were physically received at his office, both within the jurisdiction of the concerned learned District Forum”.

The  preliminary objection regarding the  maintainability  towards  territorial jurisdiction of the present case before this forum   made by  the O.P  in their written version  para No. 5  is hereby rejected  accordingly.

                The O.P. in their written version  para No.8 contended that it is a fact that the  complainant along with six family members were travelling on the mentioned date and flight.  It is also a fact that upon arrival at their  destination , seven pieces of luggage belonging to the complainant could not  be  delivered and the complainant  lodged a complaint before    the O.P. made some  enquires and as per the provisions  of the citizens charter of the O.P. under  the    heading   of “LOST, DAMAGED  AND DELAYED BAGGAGE” which is available  at  WWW.airindia .in (official website of the O.P.) and the O.P. offered an amount o Rs. 10,500/- at the rate of Rs.1,500/- per passenger.  Upon receipt of the complaint the O.P. acted immediately and could deliver the seven pieces  baggage to the complainant early morning the next day i.e. 6.5.2016. 

 

On the date of hearing  the learned counsel for the  O.P. has filed the extract of the regulation liability   for Carriage which is not  international is  subject to  the rules  and limitations relating to liability  as specified  by Notifications issued from  time to time under section -8 of the Indian  Carriage  by  Air Act, 1972 and pursuant  to Notification  No. S.O. 142(E) Dtd. 17.1.2014 issued by the  Ministry  of Civil Aviation  governing the lost, damaged and delayed delivery of baggage which is available to the  general public  as well as passenger in the public domain  i.e.  official website of the O.P  www.airindia.in. which is in the file marked as Annexure-2    where  in  clearly mentioned

“Domestic

On domestic flights, if entire checked baggage is delivered the following day/subsequently, 50% of the amount, towards  purchase of casual/formal  clothes like shirts, pants, night  suits etc. may be reimbursed, subject to a maximum of INR   Rs. 2,000/-. This compensation is not payable when the passenger is returning to his base station/home airport”.

 

This forum completely agreed with the Notification filed by the   O.P.  before the forum.

In the present case in hand the  complainant  along  with   his six other family members total 7(seven) No. of   family members   were  travelled so the complainant is now entitled  Rs.14,000/- from the O.P. inter alia compensation for mental agony  and cost of litigation.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.                                                                                                  ORDER.

            In  resultant   the complaint petition stands allowed  in  part  on  contest against  the O.Ps. 

The O.P is   ordered  to  pay Rs. 14,000/- (Rupees fourteen thousand)only  inter  alia  Rs.4,000/- towards compensation  for mental agony  and Rs.1,000/- towards litigation expenses.  

The OPs     ordered to make compliance the aforesaid Order within  30 days from the  date of  receipt  of this order.

   Serve the copies of above order to the parties free of cost.

 

Dictated and corrected by me.             Pronounced on this    6 ^th.   Day of  July ,   2018.

 

Member.                                                             Member.                                                             President