J. Abhilash Krishna vs Competition Review Pvt. Ltd.

Prem Narain, Presiding Member

This revision petition has been filed by the petitioner J Abhilash Krishna challenging the order dated 15.06.2017 passed by the State Commission Karnataka (in short the State Commission) in appeal No. 1154 of 2017.

The brief facts of the case are that the petitioner complainant sent Rs.900/- to the respondent opposite party for annual subscription of the magazine Competition Success Review (CSR). This was sent in response to an advertisement that if a person buys one subscription, another subscription will be free. The complainant also sent Rs.200/- as delivery charges. The complainant also supplied the two addresses where the copies of CSR were to be sent. One of the addresses was of Bijapur and the other was of Pune. When the complainant did not receive any issue of CSR, then he contacted the opposite party and wrote letters to them but with no response. Aggrieved, the complainant filed a consumer complaint before the District Forum, Bijapur. When the notice was issued, the opposite party sent a letter to the District Forum that he was an 80-year-old person and was not able to attend the proceedings of the District Forum. It was also submitted in that letter that all disputes are subject to Delhi jurisdiction and will be decided by sole arbitrator to be appointed by the opposite party. The District Forum dismissed the complaint as not maintainable for want of territorial jurisdiction vide its order dated 21.04.2017. The complainant then preferred an appeal before the State Commission and State Commission dismissed the appeal vide it's order dated 15.06.2017.

Hence the present revision petition.

The petitioner has sent a letter stating that it is not possible for him to attend the proceedings of this Commission and it has been requested to decide the revision petition on merits. Accordingly I have perused the case file and examined the record. The District Forum has accepted the assertion of the opposite party that resolution of any dispute would be subject to Delhi jurisdiction by the sole arbitrator to be appointed by the opposite party. It is now a settled law that any provision in respect of resolution of dispute through arbitration in the agreement would not debar a party to avail the jurisdiction of a consumer forum. This Commission in Aftab Singh and Ors vs EMAAR MGF Land Ltd. and Ors., decided on 13th July 2017 has held that notwithstanding any clause in the agreement in respect of resolution of dispute through arbitration, a party can file a consumer complaint before a consumer forum. This order has also been upheld by the Hon' ble Supreme Court. Thus, there is no doubt that complainant is entitled to file a consumer complaint under the Consumer Protection Act 1986. Once the complainant is entitled to file a consumer complaint under the Consumer Protection Act 1986, it is obvious that all the provisions of this Act will apply. Section 11 (2) of the Consumer Protection Act 1986 deals with the territorial jurisdiction of the District Forum as under:-

Jurisdiction of the District Forum -

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,- 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 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 the cause of action, wholly or in part, arises.

The District Forum has not considered this provision at all and the State Commission has, perhaps, considered only provision (a) and (b) of this section. In fact, the case of the complainant is covered under section 11 (2) (c) where it is mentioned that a complaint can be filed where the cause of action wholly or partly has arisen. In the present case, the cause of action is non-receipt of the issue of CSR by the two recipients whose addresses were sent by the complainant. One of the addresses is of Bijapur. Therefore, the cause of action partly arose at Bijapur as well. Thus, the District Forum Bijapur had the territorial jurisdiction to consider the present complaint. Thus, the orders of the fora below cannot be sustained.

The facts of the case are such that I am not inclined to send the matter back to the District Forum for deciding the complaint. In fact, the opposite party has sent the above referred letter which is in response to the notice received by the opposite party from the District Forum. In a way, it is to be treated as written statement from the side of the opposite party though only a limited legal point has been raised in this letter. The opposite party has not denied any of the allegations made by the complainant. Accordingly, the complainant is entitled to the refund of the amount of Rs.1100/- paid to the opposite party along with some compensation for mental agony and harassment. The complainant has demanded Rs.4.00 lakhs as compensation for mental agony and Rs.10,000/- as litigation expenses. In the facts and circumstances of the case, I deem it appropriate to allow a compensation of Rs.5,000/- along with litigation expenses of Rs.4,000/-.

Based on the above discussion, the revision petition is partly allowed and the orders of the fora below are set aside. The respondent opposite party is directed to pay Rs.10,100/- to the complainant within a period of 30 days from the date of receipt of this order. No notice has been issued to the respondent opposite party in this case as the amount involved is quite small. However, if the respondent opposite party is aggrieved by this order, the respondent can approach this Commission by filing a miscellaneous application in this revision petition.