Complainant through Lrd. Adv. Kasabekar

Opponent through Lrd. Adv. Gogawale

Per : Mr. V. P. Utpat, President              Place   :  PUNE

                                     J U D G M E N T 

                                           03/07/2014                                                                                                                                                      

    This complaint is filed by the complainant against the service provider under section 12 of the Consumer Protection Act, 1986.  The brief facts are as follows.

1]       The complainant is a resident of Wagholi, Pune – 412 207.  The opponent is a service provider having its office at Dhole Patil Road, Pune – 1.  The complainant is a professional and he had required to visit Abroad from time to time for the purpose of his profession.  He has decided to visit Germany for attending exhibition.  At that time, if he would have been participated in the exhibition, he could get free training worth of 4000 $ and that training was helpful to boost his business.    Hence, he had booked ticket for Germany for the journey scheduled of 22/04/2010.  The said ticket was booked by issuing cheque of Rs. 83,000/- dated 07/04/2010.  The opponent has also accepted responsibility as regards issuance of visa.  The complainant has made preparation for visit to Germany.  But the opponent sent him to Mumbai for obtaining visa.  He had spent an amount of Rs.2,000/- for the same.  The opponent informed him that he will get SOTC kit on 14/04/2010, but he could not get the same.  The opponent has caused deficiency in service by not making arrangement of the complainant for the visit of Germany.  Hence, the complainant has asked for the refund of Rs. 83,000/-.  Initially, the opponent agreed to repay an amount of Rs. 41,500/-.  Subsequently it has agreed to pay Rs. 58,000/-.  There was no any fault of the complainant in the cancellation of visit to Germany.  Hence, the complainant has filed this complaint.  He has asked refund of Rs.83,000/-, compensation of Rs. 50,000/- for mental and physical sufferings costs of Rs. 10,000/- and Rs. 2,00,000/- for the loss of business as well as interest on the said amount @ 18%.

2]      The opponent resisted the complaint by fling written version.  It has denied the contents of the complaint as regards causing deficiency in service.  It is also contended by the opponent that as per terms and conditions of the agreement between the parties, the complainant had agreed the jurisdiction of Mumbai for resolving the dispute, if arise between the parties.  According to the opponent, the expenses, which were incurred by the complainant for attending the Consulate office for personal discussion is not included in the tour cost.  It is further contended that the opponent has used its best efforts and good offices to ensure that the complainant is provided some window time to visit the Consulate office and make himself ready for the tour thereafter.  It is also contended that no travel kit or travel documents are handed over to the tour participants unless the is visa is obtained for the respective tour from the concerned Embassy.  As the visa was not allotted to the complainant, no such kit was allotted to the complainant.  It is also contended that during that period, all the Airlines had suspended their operations above Europe.  Lacs of air travelers were stranded and could not travel due to the volcanic Eruption.  The volcanic burst gradually began from 15/16^th April 2010 and it was never felt by the world over that it would have such unimaginable impact over the Air traffic.  According to the opponent, those reasons were beyond their control.  Hence, the opponent informed the complainant accordingly and agreed to refund an amount of Rs. 58,000/- to him.  The opponent has denied for the refund of Rs. 83,000/- as well as interest on the said amount and business loss.  The opponent has prayed for the dismissal of the complaint.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS    :-

4]      Before entering into the merits of the case, it is convenient to decide the issue as regards the territorial jurisdiction.  The facts as regards booking of the ticket and payment of Rs. 83,000/- to the opponent is not in dispute.  It is also not in dispute that the complainant could not travel to Germany, as he could not get Visa.  The expenses incurred by the complainant for obtaining Visa is also not denied by the opponent.  However, it is the case of the opponent that, while booking the tour to Germany, the complainant had agreed the terms and conditions between the parties and as per the said terms and the conditions, if any dispute arise between the parties as regards travel, only ‘Mumbai’ Courts have jurisdiction to adjudicate the said dispute.  According to the opponent, as the complainant himself had waived the jurisdiction of any other Forum, then the complainant has to lodge the complaint in the Forum, which is situated at Mumbai.  In that regard the opponent has placed reliance upon the ruling of Hon’ble Supreme Court of India between “A. B. C. Laminart Pvt. Ltd V/S A. P. Agencies, Salem” in Civil Appeal No. 2682 of 1982 decided on 13/3/1989. In the said ruling it has been observed by the Hon’ble Apex Court that,

“where the parties to a contract agreed to submit the dispute arising from it to a particular jurisdiction which would otherwise also be a proper  jurisdiction under the law their agreement to the  extent they agreed not to submit to other

jurisdictions cannot be said to void as being against  public policy.”

5]      Similar view is taken by the Hon’ble Apex Court in the recent judgment in Civil Appeal No.5086 of 2013 between “M/S Swastik Gases P. Ltd. V/S Indian Oil Corp. Ltd.”, decided on 03/07/2013. It has been observed in this ruling, after discussing various judgments  

Of Hon’ble Apex Court that, the parties can agreed upon the place of jurisdiction. The latin maxim expressio unius est exclusio alterius was referred in the said judgment. Further it has been observed that,

“This legal maxim means that expression of one is the

 exclusion of another. By making a provision that the

 agreement is subject to the jurisdiction of the Courts

 at Kolkatta, the parties have impliedly excluded the

 jurisdiction of other courts. Where the contract specifies  the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend section 28 of the Contract Act in any manner. ”

6]      In the present proceeding the complainant has waived and excluded their right to initiate the proceeding at branch office and in view of the above noted ruling; that agreement is not against the public policy.  After considering the ratio laid down in the above quoted ruling, we held that this Forum has no jurisdiction to try and entertain the present complaint and the complaint should be returned to the complainants for presenting the same in proper Forum.  Hence, Forum held that the issue as regards adjudication of the dispute on merit in the negative. We answer the points accordingly and pass the following order-

 ORDER 

1.       Complaint is hereby returned to the complainant for presenting the same before appropriate Forum within one month from the date of order.

2.       As per peculiar circumstances there is no

order as to costs.

1. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.

4.       Copy of order be supplied to both the parties free of cost.