J.P.SINGH vs British Airways

THE present complaint deserves to be dismissed on the ground of lack of territorial jurisdiction. That being the position, it is not considered necessary to refer to the facts of the case and pleadings of the parties in detail.

THE complaint has been filed by Mr. J.P. Singh, Managing Director of Permeshwari Silk Mills, Ludhiana claiming Rs. 5,50,000/- compensation from the opposite party M/s. British Airways on a ticket purchased from Bombay Travel Agent - Tushar Travels, opposite party No. 3. THE complainant is alleged to have travelled from London to Delhi on November 6, 1995 in Flight No. BA 145. As per allegations, he was not accommodated in the seat allotted, but was asked to change seat which ultimately caused him inconvenience during the journey. He is also alleged to have altercation with Mr. Purser Tony Land, a crew member of the airways staff who is alleged to have misbehaved with him. In order to cover up the question of territorial jurisdiction of the State Commission to entertain the complaint in para 13, it was alleged that the British Airways was having a branch office at Ludhiana which lies in the Punjab State and as such State Commission has jurisdiction in this matter.

Since M/s. British Airways were impleaded through Branch Manager giving Ludhiana address as opposite party No. 2, notice was issued only to opposite party No. 2. The written version has been submitted on behalf of opposite party Nos. 1 and 2 that the opposite party is not having any branch office in the State of Punjab. It was also alleged that in view of the provisions of Schedule II of the Carriage by Air Act, 1972, this Commission cannot derive jurisdiction even under Section 11 of the Consumer Protection Act. In para 13 of reply also, it was asserted that the opposite party was not having any branch office at Ludhiana and the Commission does not have jurisdiction to entertain the complaint. A rejoinder was filed by the complainant, inter alia, asserting that in the State of Punjab M/s. British Airways is carrying on business through its General Sales Agent/ Branch Manager at Ludhiana. The complainant filed his own affidavit in support of the allegations where as on behalf of the opposite party, affidavit of Mr. Dhru Malhotra was produced.

LEARNED Counsel for the opposite party referred to the provisions of Schedule IInd of the Carriages by Air Act of 1972 and argued that provisions of Section 11 of the Consumer Protection Act, being derogatory thereto, cannot have precedence. This contention cannot be accepted. No doubt, in general, the dispute could be decided by the authority provided under the Carriage by Air Act, 1972 but there is no specific provision barring jurisdiction of Civil Court to entertain the cause. The remedy under the provisions of Consumer Protection Act is in addition to the remedies provided under the Civil Court and in the absence of any specific provision in the Special Act barring jurisdiction of the Civil Court, it cannot be said that jurisdiction of the Fora established under the Consumer Protection Act would stand barred. Such matter came up before this Commission in Sampuran Singh Deol v. The Manager, The Doraha Primary Cooperative Agricultural Development Bank Limited and Others, II (1997) CPJ 481=1997 (2) CPC 627. Relying upon the judgment of Supreme Court in Sanam Vemia v. Union of India, AIR 1985 SC 194, it was held that Fora established under the Act has the trappings of a Civil Court and is judicial authority. However, in view of provisions of Sections 55, 56 and 82 of the Punjab Co- operative Societies Act, the matters relating to dispute between members and the Co-operative Society were required to be referred for adjudication to the Arbitrator under the Act and the decision cannot be challenged in any Civil Court. Thus, Fora established under the Consumer Protection Act could not entertain the complaints in such like disputes. The decision of the Supreme Court in Fair Air Engineers Private Limited and Another v. N.K. Modi, III (1996) CPJ 1 (SC)=1996 (2) CPC 304 was also referred to holding that inspite of the provisions of the Section 34 of the Arbitration Act, the Fora established under Consumer Protection Act could proceed with the matter in accordance with the provisions of the Act. Thus, in the present case, the question of jurisdiction of the State Commission to entertain the complaint is to be decided in view of the provisions of the Section 11 of the Consumer Protection Act. Section 11(2) of the Consumer Protection Act reads as under : "(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 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".

The present case does not fall under Clause ''C'' of Section 11(2) of the Consumer Protection Act as no cause of action much less part thereto has accrued within the territorial jurisdiction of the State Commission i.e. in the State of Punjab. The ticket for the journey was purchased at Bombay and the journey was performed from London to Delhi. None of the facts, as alleged, indicates any cause of action having occurred at Ludhiana. Thus, question for consideration is as to whether the case would tall either under Clause (a) or Clause (b) of Section 11(2) of the Consumer Protection Act. The application of Clause (b) is clearly ruled out as it is not a case of acquiescence in institution of the complaint on the part of opposite party. Thus the complainant relies upon Clause (a) as above. According to the complainant, opposite party No. 2 was described as having its Branch Manager at Ludhiana. In para 13 of the complaint, it was stated that British Airways is having a branch office at Ludhiana. This allegation was specifically refuted on behalf of the opposite party. In the affidavit filed by the complainant, in para 6, it is mentioned that M / s. British Airways is carrying on business in the State of Punjab through its General Sales Agent/Branch Manager at Ludhiana. Thus, there is apparent diversion in the stand taken up by the opposite party in the complaint or the rejoinder and in the affidavit filed by the complainant. By simply stating that the opposite party is carrying on business through its General Sales Agent or Branch Manager, it cannot be said that the opposite party is having a branch office at Ludhiana. Since the opposite party is not having any branch office at Ludhiana, Clause (a), as stated, will not be applicable. The main business of the opposite party is to run the airways. For that they have to sell the travel tickets. Either they are sold in their own offices, branch offices or through sales agents. If the tickets are sold through sales agents, it can not be said that the opposite party is carrying on business in each and every corner of the country. Sales Agents may be getting commission on purchase of the tickets from British Airways and thereafter selling the same to the public at their own. It cannot be said that they are doing business for British Airways rather they are doing their own business of running the travel agencies. The matter can be looked into from another angle. The manufacturers of the goods are carrying on business of manufacturing and marketing of their goods but at the time of marketing they have to send the goods to the distributors and ultimately to the retailers. It cannot be said that the distributors or retailers are doing manufacturer''s business rather they would be doing their own business getting their margin of profits or commission as the case may be. Simply because marketable commodities of companies are available in the shops, it cannot be said that such shops of the retailers are either branch offices of the manufacturers or are places of business where the manufacturers are carrying on their business in order to bestow territorial jurisdiction on the Fora established under the Act.

FOR the reasons recorded above, it is held that since neither the opposite party is having Head Office or any branch office in the State of Punjab nor the opposite party is carrying on business in the State of Punjab and that no cause of action having occurred within the State of Punjab, this Commission has no jurisdiction to entertain and adjudicate the complaint. The same is ordered to be returned to the complainant for being presented before the appropriate Commission. Complaint returned.