Tripura

StateCommission

A/18/2021

Sri Satyendranath Basu Roy Choudhury - Complainant(s)

Versus

The CEO, Religare Health Insurance Company Ltd. - Opp.Party(s)

Mr. Saikat Rahaman, Mr. Bhaskar Deb

09 Jul 2021

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

Case No. A.18.2021

 

1. Sri Satyendranath Basu Roy Choudhury,

S/o Late Dwijendranath Basu Roy Choudhury,

A.D. Nagar Police Complex,

Agartala, Charipara, P.S. A.D. Nagar,

District - West Tripura, 799003.

 

… … … … Appellant/Complainant.

Vs

 

1. The CEO,

Religare Health Insurance Company Limited,

(Present name - Care Health Insurance),

Vipul Tech Square, Tower C, 3^rd Floor,

Sector - 43, Golf Course Road,

Gurgaon - 122009.

 

Registered Office:

5^th Floor, 19 Chawla House, Nehru Place,

New Delhi - 110019.

… … … …  Respondent/Opposite Party.

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Dr. Chhanda Bhattacharyya

Member,

State Commission

 

Mr. Kamalendu Bikash Das

Member,

State Commission

 

 

 

 

 

 

 

 

 

For the Appellant/Complainant:                             Ms. Sujata Deb (Gupta), Adv. and

Mr. Saikat Rahman, Adv.

For the Respondent/Opposite Party:            Mr. Sampad Choudhury, Adv.

Date of Hearing:                                              28.06.2021.

Date of Delivery of Judgment:                         09.07.2021

 

 

J U D G M E N T

U.B. Saha, J,

This appeal is directed against the order dated 15.02.2021 passed by the learned District Consumer Disputes Redressal Commission (hereinafter referred to as District Commission), West Tripura, Agartala in Case No.C.C.06 of 2020 whereby and whereunder the learned District Commission dismissed the complaint petition filed by the complainant, Sri Satyendranath Basu Roy Choudhury, the appellant herein, on the question of maintainability of the complaint petition.

2. Heard Ms. Sujata Deb (Gupta), Ld. Counsel assisted by Mr. Saikat Rahman, Ld. Counsel appearing on behalf of the appellant (hereinafter referred to as complainant) as well as Mr. Sampad Choudhury, Ld. Counsel appearing for the respondent (hereinafter referred to as opposite party/Insurance Company).
3. Facts of the case as narrated in the complaint petition are as follows:-

The complainant, Sri Satyendranath Basu Roy Choudhury, a retired Police Inspector of Tripura Police, the appellant herein, filed a complaint petition against the CEO, Religare Health Insurance Company Ltd., Vipul Tech Square, Tower C, 3^rd Floor, Sector-43, Golf Course Road, Gurgaon alleging, inter alia, that on 14.12.2018 he performed journey to USA and he was supposed to stay there for 31 days and his purpose was for the journey to visit his son namely, Sri Sourav Basu Roy Choudhury at Miami, USA. He purchased one Health Insurance Policy from the respondent-opposite party being Policy No.13420185. The premium of the policy was paid through online payment. The period of policy was starting from 00.00 Hrs. of 14.12.2018 to mid-night of 13.01.2019 for single trip, in total for 31 days. As per Indian time on 14.12.2018 at about 00.30 Hrs., the complainant felt uneasiness in the flight from New York to Miami and became unconscious just for few minutes before landing and for which reason soon after landing at Miami, an ambulance of United Airlines immediately taken him to the Jackson Memorial Hospital at Miami, Florida-33136 for his check-up. On the next day morning i.e. on 15.12.2018 at about 23.05 Hrs. in USA, the complainant was discharged from the hospital. The Hospital Authority did not claim anything towards the treatment of his illness as he had a Health Insurance Policy and consequent thereto, the Hospital Authority noted the aforesaid Health Insurance Policy details from the complainant, but all on a sudden, after a long gap of three months on 03.04.2019, the Jackson Memorial Hospital Authority, Miami informed the complainant through his e-mail that the hospital expenditure which was near about Rs.10,00,000/- was due as because the opposite party, Insurance Company did not make the payment. When he came to contact with the opposite party, Insurance Company then, he was informed that the complainant will have to pay the total bills to the Hospital Authority and thereafter he will have to raise his claim to the Insurance Company. According to the complainant, as per the terms of the Insurance Policy, the benefit of the policy was cashless and since the opposite party did not make the payment directly to the Hospital Authority it amounts to negligence and deficiency of service for which he filed the complaint before the learned District Commission (the then District Forum).

4. After getting notice, the opposite party appeared and filed their written statement raising the question of maintainability on the ground of territorial jurisdiction as well as the cause of action. In the written statement, the opposite party also contended that the complaint case is a premature one and also the learned District Commission erstwhile has no jurisdiction as there is no Branch Office of the opposite party and also no cause of action arose at Agartala.
5. The complainant in support of his complaint petition filed his passport, Visa, Health Insurance Policy and the medical documents issued by the Jackson Memorial Hospital, Miami etc.
6. The learned District Commission after hearing the parties on question of maintainability of the complaint petition passed the impugned order whereby dismissed the complaint petition on the question of territorial jurisdiction.
7. Hence the appeal.
8. Being aggrieved by the impugned order of the learned District Commission, the appellant-complainant has filed the instant appeal along with a condonation petition for condoning the delay of 40 days in preferring the appeal. The delay was condoned and after hearing the parties, the appeal was admitted and taken up for hearing.
9. Ms. Deb (Gupta), Ld. Counsel while urging for setting aside the impugned order would contend that it would be evident from the Insurance Policy that the address of the policy holder i.e. the appellant-complainant in the Insurance Policy is written as ‘Mr. Satyendranath Basu Roy Choudhury, A.D. Nagar, Agartala-799003, Tripura’. She has further submitted that premium of the policy was paid through online payment which was also accepted by the opposite party, Insurance Company. Her further contention before this Commission in support of the appeal was that the learned District Commission dismissed the complaint petition on the ground of territorial jurisdiction particularly, the opposite party, Insurance Company has no Branch Office at Agartala and the office of the opposite party is situated at Gurgaon, Haryana. According to her, such findings of the learned District Commission is contrary to the intention of the legislature and more so, the learned District Commission also failed to consider the aspect that the premium was paid through online against the Global Health Insurance Policy issued by the respondent-opposite party showing the address of the complainant at Agartala. Thus, the territorial jurisdiction for filing the complaint petition would be both in USA as well as in Tripura particularly, at Agartala. She has also contended that when the Consumer Act, 1986 was enacted by the legislature at that time there was no plastic money and also no system for online payment for which the legislature could not insert the aforesaid aspect, but the Act was enacted to save the consumer from the negligence, deficiency of service and fraudulent action of the seller of the goods/service provider. In support of her contention she has placed reliance on a judgment of Hon’ble State Consumer Disputes Redressal Commission, Meghalaya in M.D. Air Deccan Vs Shri Ram Gopal Agarwal (First Appeal No.FA/7/2007), wherein the complainant of that case booked two air tickets from the Appellant/Opposite Party, Airlines over the internet from Shillong and made payment through credit card for a journey from Delhi to Jaipur. Before boarding the aforesaid flight at Delhi Domestic Airport, the complainant of that case along with his wife booked their personal baggage, but on reaching Jaipur, it was found that the booked baggage was missing and immediately such fact was brought to the notice of the Appellant/Opposite Party, Airlines Authority, but the Appellant/Opposite Party, Airlines Authority did not heed to his request and consequent thereto, he filed an FIR before the Sanganer Airport Police Station stating the loss of baggage and finally he filed a complaint petition under the provisions of Consumer Protection Act at Shillong. In that case also, the Opposite Party, Airlines Authority raised the question of territorial jurisdiction of the learned District Forum and the learned District Forum overruled the objection raised by the Opposite Party, Airlines Authority which was upheld by the Hon’ble State Consumer Disputes Redressal Commission, Meghalaya with detailed discussion. She has again submitted that cause of action for filing the complaint petition arose when the complainant received information through e-mail from the Jackson Memorial Hospital Authority, Miami regarding non-payment of medical charges by the opposite party-Insurance Company when the complainant was in his residence at Agartala i.e. the address shown in the Insurance Policy, which itself is repudiation of the benefit of the insurance policy by the opposite party-Insurance Company. Therefore, the cause of action and the territorial jurisdiction for filing the complaint petition is within the jurisdiction of the learned District Commission.  

She has again relied upon a judgment of the Hon’ble Delhi High Court in Casio India Co. Ltd. Vs Ashita Tele Systems Pvt. Ltd. [2003 (70) DRJ 742], wherein the Hon’ble Delhi High Court discussed with regard to the territorial jurisdiction which needs to be considered in the overall context of advances and development in the field of information technology and not in the usual conventional manner disclosing arising of a cause of action, arising for an individual transaction, within the territorial limits of jurisdiction of the court. She has finally contended that in view of the above position, the impugned order to be set aside and send back the matter on remand to the learned District Commission to decide the case on merit.

10. Mr. Choudhury, Ld. Counsel while supporting the impugned order would contend that the learned District Commission did not commit any error while dismissing the complaint petition on the question of territorial jurisdiction. He has also submitted that the head office of the respondent-opposite party is located at Gurgaon, Haryana from where they are doing their business and at Agartala they have no branch office. Therefore, in view of the provisions of Section 11 (2) of the Consumer Protection Act, 1986, the learned District Commission, West Tripura, Agartala has no territorial jurisdiction to decide the complaint. He has further submitted that it is an admitted fact that the respondent-opposite party, Insurance Company received the premium of the policy through online transaction. He has again submitted that at the time of purchasing the insurance policy, the complainant was out of India. He has submitted his written argument wherein it is mentioned that the premium was paid by the son of the complainant staying at Miami, USA. In support of his contention he has relied upon a decision of the Hon’ble Apex Court in Sonic Surgical Vs National Insurance Company Ltd. [2010 AIR (SCW) 298] particularly, paragraph-9 of the said Law Report which is as follows:-

“9. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression 'branch office' in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh's Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]”

He has also relied upon the decision of Hon’ble Supreme Court in Oil and Natural Gas Commission Vs Utpal Kumar Basu and Others [1994 AIR (SCW) 3287] particularly, Para-10 and 11 of the said judgment:-

“10. The learned counsel for ONGC contended that on these averments no part of the cause of action had arisen within the jurisdiction of the Calcutta High Court and hence the writ petition filed by NICCO and another was not entertainable by that High Court. He submitted that ONGC had decided to set up a Kerosene Recovery Processing Unit at Hazira in Gujarat. EIL was appointed by ONGC as its consultant. In that capacity, EIL issued the advertisement from New Delhi calling for tenders and this advertisement was 1 ILR (1889) 16 Cal 98,102: 15 IA 156 printed and published in all the leading newspapers of the country including the Times of India in circulation in West Bengal. The tenders or bids were to be forwarded to EIL at New Delhi. EIL was expected to scrutinise the tenders and make its recommendations to the Tender Committee constituted by ONGC. The final decision was, however, to be taken by the Steering Committee at New Delhi presided over by the Chairman, ONGC. Accordingly, the tender of NICCO was examined by EIL at New Delhi and it recommended its rejection on the ground that NICCO did not satisfy the experience criteria requisite for the grant of contract. On the first occasion, the Tender Committee did not agree with the said recommendation and directed the EIL to call NICCO at the clarificatory meeting proposed to be held in New Delhi. In obedience to the said direction, EIL invited NICCO along with the other bidders, but once again recommended its rejection on the ground that it did not satisfy the experience criteria. The Tender Committee which met in New Delhi reviewed its earlier decision and accepted the recommendation of EIL which was also accepted by the Steering Committee at New Delhi on 27-1-1993. It was at this point of time that the decision to award the contract to CIMMCO was taken at New Delhi. Counsel for ONGC, therefore, contended that all these events took place outside the jurisdiction of the Calcutta High Court and merely because NICCO had read the advertisement in the Times of India in circulation in West Bengal and had forwarded its tender from its registered office in Calcutta and followed it up by a revised offer, it cannot be said that any part of the cause of action had arisen within the jurisdiction of the Calcutta High Court for the simple reason that if these facts were to give a cause of action, every tenderer would sue ONGC in the local court from where he forwarded the tender and that would make ONGC run about from court to court all over the country. Counsel further submitted that nor can the fact that NLCCO sent representations including fax messages from its registered office to ONGC at Calcutta to which ONGC showed the courtesy of replying confer jurisdiction. In support of this contention, he placed strong reliance on the decision in State of Rajasthan v. Swaika Properties2. Learned counsel for CIMMCO buttressed these submissions by inviting our attention to certain other decisions of this Court, namely, Election Commission v. Saka Venkata Subba Rao3, R. Bejal v. Triveni Structurals Ltd .4, Subodh Kumar Gupta v. Shrikant Gupta' and certain decisions of different High Courts. On the other hand, counsel for NICCO, while reiterating that the averments made in paragraphs 5, 7, 18, 22 and 26 constituted an integral part of the cause of action, submitted that by the introduction of clause (2) in Article 226 of the Constitution, the Legislature intended, to widen the High Court's Jurisdiction and thereby extend its beneficent reach even to cases where a part of the cause of action arose within its territorial Jurisdiction. In the alternative, he submitted that even if this Court comes to the conclusion that the High Court 2 (1985) 3 SCC 217 3 1953 SCR 1144: AIR 1953 SC 210 4 1987 Supp SCC 279 5 (1993) 4 SCC 1 of Calcutta lacked jurisdiction, this Court sitting in appeal should not interfere with the verdict of the High Court as ONGC had neither alleged nor showed that there had been a failure of justice. In this connection, he placed reliance on the spirit of Section 21 of the Code of Civil Procedure. He, therefore, contended that this Court should examine the appeal on merits and not confine itself to the question of territorial jurisdiction. Lastly, he submitted that on merits NICCO had made out a good case for the grant of relief sought by it.

11. From the facts pleaded in the writ petition, it is clear that NICCO invoked the jurisdiction of the Calcutta High Court on the plea that a part of the cause of action had arisen within its territorial jurisdiction. According to NICCO, it became aware of the contract proposed to be given by ONGC on reading the advertisement which appeared in the Times of India at Calcutta. In response thereto, it submitted its bid or tender from its Calcutta office and revised the rates subsequently. When it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinised at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.”

He has finally cited a Law Report of Hon’ble Supreme Court in A.B.C. Laminart Pvt. Ltd. & Anr. Vs A.P. Agencies, Salem [AIR 1989 SC 1239] on the same law point.

11. In reply to the submission of Mr. Choudhury, Ld. Counsel for the respondent-opposite party, Ms. Deb (Gupta) would contend that the Law Reports cited by Mr. Choudhury have no application in the case in hand as the facts of those cases are totally different than the case in hand. She has also submitted that none of those cases are relating to online payment of the goods/services. She again submits that the one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts and in support of her contention she has relied upon the decision of the Hon’ble Apex Court in the Regional Manager and Another Vs Pawan Kumar Dubey [AIR 1976 SC 1766] particularly, Para-7 of the said judgment which is as follows:-

“We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh's case (AIR 1974 SC 2192) (supra) it should no longer be possible to urge that Sughar Singh's case (AIR 1974 SC 423) (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.”

She has further placed reliance on the Law Repot 2002 (3) SCC 496 in Haryana Financial Corporation & Anr. Vs M/s. Jagdamba Oil Mills & Anr., wherein the Hon’ble Apex Court discussed how to apply the precedents by a Court. In the aforesaid case, Hon’ble Supreme Court while dealing with the various decisions cited by the Ld. Counsel of that case observed, inter alia, that,

“Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed:

“The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech..is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said: "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

The following words of Lord Denning in the matter of applying precedents have become locus classicks:

“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

xxx xxx xxx "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

12. In reply to the submission of Mr. Choudhury, Ms. Deb (Gupta) has also relied upon a judgment of the Hon’ble Apex Court in Anuj Jain Interim Resolution Professional for Jaypee Infratech Ltd. Vs Axis Bank Limited [2020 (8) SCC 401], particularly, Paragraph-98 sub Para-19 of the said judgment wherein the Hon’ble Apex Court reiterated the M/s. Jagdamba Oil Mills & Anr. (supra).
13. We have considered the submission of the Ld. Counsel appearing for the parties as well as the impugned order. It appears from the impugned order that the learned District Commission while dismissing the complaint petition mainly considered the provisions of Section 11 of the Consumer Protection Act, 1986 and held that as the respondent-opposite party, Insurance Company has no branch office within the territorial jurisdiction of the learned District Commission and the cause of action or part of cause of action did not arose within the territorial jurisdiction of the District Commission hence, the complaint petition is not maintainable. We have also considered the complaint petition filed by the appellant-complainant as well as the Law Reports cited by the Ld. Counsel appearing for the parties. From the complaint petition it appears that admittedly, the appellant-complainant purchased the Health Insurance Policy from the respondent-opposite party online and the premium of the policy was also paid through online transaction. The respondent-opposite party also admitted the aforesaid fact. The Health Insurance Policy was purchased by the appellant-complainant to get the medical benefit outside the country i.e. the place of his journey in USA particularly, where he was hospitalized at Miami, USA and accordingly, when he was falling ill at Miami, he was taken to the Jackson Memorial Hospital, Miami where he got the treatment. As he was covered by the Health Insurance Policy issued by the respondent-opposite party, he submitted his insurance policy before the Jackson Memorial Hospital Authority for which the said Hospital Authority did not claim any medical expenditure from him being he was holding the cashless insurance policy and they are also entitled to recover the medical charges from the Insurance Company, but the fact remains when the Hospital Authority claim the medical charges of the appellant-complainant from the respondent-opposite party, Insurance Company they denied to fulfill the claim of the Hospital Authority which was ultimately informed by the Hospital Authority to the appellant-complainant in his residential address at Agartala, Tripura through e-mail and then only the appellant-complainant filed the complaint petition before the learned District Commission, West Tripura, Agartala within which jurisdiction the appellant-complainant resides and cause of action arose. Ms. Deb (Gupta) very rightly pointed out that when the Consumer Protection Act, 1986 was enacted by the legislature at that time there was no plastic money and also no system for online payment for which the legislature could not consider the aforesaid aspect, but the Act was enacted to save the consumer from the negligence, deficiency of service and fraudulent action of the seller of the goods/service provider.
14. In Casio India Co. Ltd. (supra), though the case was regarding use of trade mark by the defendant of that case Ashita Tele Systems Pvt. Ltd., but the question arose regarding the territorial jurisdiction of the Court in relation to use of websites and the Court discussed as under:-

(b) Territorial jurisdiction to try and entertain suit.

(i) The defendant contends that this Court has no territorial jurisdiction to try and entertain the suit. The defendant No.1 carries on its business from Bombay and is resident of Bombay. It is urged that the plaint does not disclose any cause of action arising within the jurisdiction of this Court. There is only a bald averment that access to the website using the domain name can be had from Delhi. Counsel urged that there was not even an averment that the website using the impugned domain name had been accessed from Delhi.

(ii) This objection with regard to the territorial jurisdiction needs to be considered in the overall context of advances and development in the field of information technology and not in the usual conventional manner disclosing arising of a cause of action, arising for an individual transaction, within the territorial limits of jurisdiction of the court.

(iii) The suit relates to an action of passing off in respect of a domain name of a website. The suit is not in respect of any allegation of any clandestine specific sale of tangible products within the territory. The defendant no.1 admits the sale of `CASIO' products through the website. It is also not denied that the website can be accessed from Delhi. For determining the question of jurisdiction, the following decisions and the observations made therein are significant. A learned Single Judge of this Court in Info Edge India Pvt. ltd. Vs. Shailesh Gupta & Anr. 2002 (24) PTC 355 while dealing with the case of domain name `naukri.com' observed "a domain name is more than an internet address and is entitled to the equal protection as that of trade mark. In internet service, a particular internet site could be reached by anyone from anywhere in the world, who proposes to reach the said website. With the advancement and progress in technology, the services rendered in the Internet site have also come to be recognised and accepted and are being given protection so as to protect such provider of service from passing off the services rendered by others as his services."

Similarly, the High Court of Bombay in Rediff Communication Ltd. Vs. Cyber Booth AIR 2000 Bombay 27 recognised the above principles. The High Court of Australia in Dow Jones & Co. Inc. Vs. Gutnic (2002) HCA 56 held that due to ubiquity, universality and utility of the features of the Internet and the World Wide Web (WWW), any matter associated with it, possesses global jurisdiction. From the foregoing judicial pronouncements, it would be seen that once access to the impugned domain name website, could be had from anywhere else, the jurisdiction in such matters cannot be confined to the territorial limits of the residence of the defendant. Further more in a passing off action it is not incumbent upon the plaintiff to prove any actual sale or any particular act of deception, mere likelihood of deception, whereby an average person is likely to be deceived or confused is sufficient to entertain an action for passing off. Therefore, it is not at all required to be proved that any actual deception took place at Delhi. Accordingly the fact that the website of defendant No.1 can be accessed from Delhi is sufficient to invoke the territorial jurisdiction of this Court in the light of the judicial principles enunciated in the above judgments. It is, accordingly, held that the objections with regard to the territorial jurisdiction is without merit and this Court can try and entertain the suit. (Emphasis supplied)

15. In M.D. Air Deccan (supra), the Hon’ble State Commission, Meghalaya also considered the Section 11 (2) of the Consumer Protection Act, 1986 in connection with the case relating to payment through credit card and use of computers and the internet particularly, e commerce and discussed as under:-

“11.       The issue about the territorial jurisdiction of the learned District Forum over the complaint calls for an in depth consideration by us mainly for the reason that the airline tickets were purchased over the internet. We therefore propose to deal with this aspect at length, not only to adjudicate this appeal but also to lay the path in case similar issues arise in future, which we believe is quite likely.

12.       With the widespread access to personal computers and the internet, e commerce has been growing at a phenomenal pace. Many service providers and retailers taking advantage of this are offering their wares to the general public through their web sites, enabling their customers to do business/shopping from the comfort of their homes and offices. With the growth of e commerce and commercial activity over the internet, it has become possible for business to be conducted across the globe without actual physical presence in every place. Widespread usage of plastic money (Credit and Debit Cards) has facilitated these operations in a big way. But at times the consumer gets a raw deal as internet dealings are done with unknown parties, operating from far off places.

13.       This advance in technology has brought to light the missing links in the law relating to jurisdiction that can be exercised by a court of law or quasi judicial tribunals in areas where internet activity plays a significant role. Internet or e commerce matters are considered to be unconventional when they involve the key question of jurisdiction. The world of global connectivity on the worldwide web has posed several problems and the common concern is whether jurisdiction in matters should remain confined to the territorial limits of the place of business or residence of the defendant, as territorial boundaries become porous. Thus, the challenge faced by parties to an online transaction is which forum should be used to adjudicate conflicts. This is particularly an issue when a buyer seeks redressal in his local jurisdiction on the basis that the sellers goods or services are made available to consumers in all parts of the country through the Suppliers / Service providers web presence.

14.       The Consumer Protection Act, 1986 was enacted with the purpose of empowering consumers to take on the might of large corporations and preventing unscrupulous businessmen from taking undue advantage of the weak position which consumers are inherently placed in under the archaic Indian judicial system. It set up special tribunals, simpler procedures and enacted special provisions to help consumers get a better bargaining position vis a vis goods suppliers and service providers. However, since this law was enacted more than a quarter of a century ago, it is not entirely geared towards protecting consumer rights in the digital era. However, that does not mean it is entirely toothless in the online environment although it certainly needs some clear pronouncements on the part of the Consumer Tribunals to come to grasp with the special circumstances and practices of the online marketplace, as the rest of the discussion will reveal.

15.       The C.P. Act was enacted a long time back and contemporary Information and Communication Technology related disputes and dispute resolution mechanisms were well beyond Parliaments contemplation at that time. Keeping in mind that the issue of territorial jurisdiction has been a recurring source of trouble in online shopping related complaints, amendment of the Consumer Protection Act, 1986 is called for to clear the air in respect of complaints, where the financial transactions take place over internet from a consumers location. It would, therefore, perhaps be a step in the right direction if our Parliament steps in to bring suitable amendments in the Act in this regard. This would also lessen the burden on consumer forums, besides resolving an issue that is a major problem for consumers making online purchases. However, till such time as the legislators step in, consumers of course need judicial and quasi judicial clarity to clear the ambiguity with respect to territorial jurisdiction in complaints arising from online transactions. Providing this clarify will therefore also be one of our objectives while deciding this Appeal.” 

“17. Before delving deeper into the issue, we first propose to mention below the various landmark judgments of the Honble Supreme Court, the spirit and letter of which shall be at the back of our minds and guide us throughout our discussions. We shall quote excerpts from the cited judgments and shall highlight the relevant and necessary words, trusting that this will be sufficiently self explanatory, without any need of elaboration. Besides the judgments having a direct bearing on the matter, which we shall refer to later, it is in the light of all these that we will reach our logical conclusions. We shall then also bring out the international context of the C. P. Act, 1986 and further lay down the provisions of law relevant for the purpose of determining whether in the facts and circumstances of the case the learned District Forum at Shillong could exercise valid territorial jurisdiction over the complaint.

(a) Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787) (Para 2) The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation.

(b) Laxmi Engineering Works v. P.S.G. Industrial Institute (AIR 1995 SC 1428) (Para 6) (Quoting Guideline E.28 of theUnited Nations Guidelines for Consumer Protection, 1985) Government should establish or maintain legal and/or administrative measures to enable consumers or, as appropriate, relevant organizations to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Such procedures should take particular account of the needs of low income consumers.

(c) State vs S.J. Choudhary (AIR 1996 SC 1491) (Para 9) (Quoting from Statutory Interpretation by Francis Bennion, Second Edition, Section 288)   (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.

(d) M/s India Photographic Co. Ltd vs H.D. Shourie (AIR 1999 SC 2453) (Para 4)  provision has been made herein (C.P.Act,1986) with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the Act. Rational approach and not a technical approach is the mandate of law.

(e) State Of Karnataka vs Vishwabarathi House Building (AIR 2003 SC 1043) (Para 48) The provisions of the said Act (C.P. Act) are required to be interpreted as broadly as possible.

18.      A brief reference to the background in which the C.P. Act, 1986 was enacted and the manner in which jurisdiction is determined in the European Union would also be apt here. The Economic and Social Council of the United Nations, recognizing the need for protection of the rights of consumers, drafted a set of model guidelines known as the United Nations Guidelines for Consumer Protection (UNGCP) which were adopted by the General Assembly in 1985 and India was a Signatory to the Resolution. (See M/S National Seeds Corpn. Ltd. vs M.Madhusudhan Reddy & Anr. (AIR 2012 SC 1160) (paras 18 & 19). These Guidelines act as an international reference point for the consumer movement as the Consumer Protection Act, 1986 was itself enacted in India, based on them. This also points to the fact that the spirit in which Consumer law in our country is to be interpreted ought not to be dissimilar to the spirit of its operation in the international arena.”

 

In that case the Hon’ble State Commission, Meghalaya also considered the case of Casio India Co. Ltd. (supra), and some other judgments of the Delhi High Court as well as the Supreme Court.

16. As we are in full agreement regarding the findings of the Hon’ble State Commission, Meghalaya in M.D. Air Deccan (supra), in Paragraph 27 of the said judgment which is as follows:-

“27.       In this view of the matter, we therefore hold that, for the purposes of Consumer Complaints relating to normal contracts for services and/or goods, cause of action arises inter alia at any of the places where (a) the contract is made; or (b) where acceptance of the contract is communicated or (c) where the contract is performed or is to be performed or (d) where money under the contract is either payable or paid 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 causes of action arises. Hence, besides other places where a consumer may choose to file a complaint in accordance with Section 11 (2) of the C.P. Act, a consumer will be legally entitled to pursue his remedy before any Consumer Fora with appropriate pecuniary powers, holding territorial jurisdiction over any of the aforementioned places.”

17. It may also be noted that our Parliament after considering the new development of e commerce and other aspects amended the Consumer Protection Act, 1986 in the year 2019 wherein territorial jurisdiction of the District Forum is discussed in Section 34 sub Section 2 (d) and inserted new clause “(2) (d) the complainant resides or personally works for gain. (3) The District Commission shall ordinarily function in the district headquarters and may perform its functions at such other place in the district, as the State Government may, in consultation with the State Commission, notify in the Official Gazette from time to time.” which was not in the Section 11 (2) of the original Act and not only that, our Parliament also enacted Information Technology Act, 2000 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 e-commerce and also to change the outdated laws and deals with cybercrime which will be evident from the statement of object and reasons of the Consumer Protection Act, 2019. Thus, there is no doubt in our mind that the learned District Commission failed to consider all these aspects particularly, the communication of the Jackson Memorial Hospital, Miami to the appellant-complainant in his residential address at Agartala wherein the Hospital Authority informed the appellant-complainant regarding the non-payment of the medical charges by the Insurance Company which is nothing but a repudiation to the claim of the appellant-complainant though he is entitled to get the benefit of the insurance policy purchased by him from the opposite party-Insurance Company. More so, the insurance policy is issued in favour of the appellant-complainant showing his residential address at Agartala. 
18. We are of the view that the cause of action arose within the jurisdiction of the learned District Commission as the appellant-complainant filed the complaint petition before the learned District Commission only after receipt of the e-mail from the Jackson Memorial Hospital, Miami in his home address as mentioned in the Insurance Policy wherein it is mentioned that he has to pay the medical charges to the Hospital Authority due to non-payment of the medical charges by the Insurance Company though he has a valid cashless health insurance policy.
19. We are of the opinion that Ms. Deb (Gupta) rightly relied upon the judgment of Hon’ble Apex Court in Pawan Kumar Dubey (supra) wherein the Hon’ble Apex Court held one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts and not only that, in M/s. Jagdamba Oil Mills & Anr. (supra), the Hon’ble Apex Court also quoted the words of Lord Denning in the matter of applying precedents which is as follows:-

“Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

xxx xxx xxx "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”

20. Upon going through the Law Reports cited by Mr. Choudhury in Sonic Surgical (supra), Utpal Kumar Basu and Others (supra) and A.B.C. Laminart Pvt. Ltd. & Anr. (supra), we are also of the view that there is no quarrel with the proposition laid down by the Hon’ble Supreme Court in those cases, but the fact of those cases are totally different than the case in hand. Thus, according to us, those cases are not applicable so far the fact of this case is concerned. The premium of the policy was paid by the son of the appellant-complainant through online which is accepted by the respondent-opposite party, Insurance Company is in no way help the respondent-opposite party as the premium was paid against the policy in question and not changes the character of the complainant-consumer.
21. We have also gone through the written argument submitted by Mr. Choudhury after completion of hearing.

In view of the above, the territorial jurisdiction for filing the complaint is within the jurisdiction of the learned District Commission. Hence, the impugned order dated 15.02.2021 passed by the learned District Commission is set aside and the matter is sending back on remand to the learned District Commission to decide the case on merit.

Accordingly, the appeal is allowed. No order as to costs.

Send down the records to the learned District Commission, West Tripura, Agartala.

 

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura