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Judgment
The complainants are legal heirs of Late Sh. Om Narain Kesarwani and his wife late Smt. Sangeeta (hereinafter referred to as "Deceased couple"). They have filed consumer complaint alleging thus: -
Opposite party No.1 is the Secretary as well as In-charge-de-affairs of the Government of J & K whereas opposite parties No.2 & 3 are private tour operators engaged in the business of arranging group tour packages, specially sightseeing etc. for mountain areas.
Opposite party No.4 is a statutory authority constituted under Aircraft Rules, 1937 and is inter-alia responsible for regulations and operations of air craft in the territory of India and works under the control of opposite party No.5.
The deceased couple were part of 30 members pilgrimage group which engaged opposite party Nos.2 & 3, for booking of helicopter flight from Srinagar to holy Amarnath shrine and back. Opposite party No.2 being the tour operator allegedly assured the deceased couple as also other passengers that helicopter flight was the safe mode of journey and further assured that its branch i.e. opposite party No.3 would ensure safe and smooth journey for the group members with due co-ordination with opposite party No.1, who was owner and operator of Bell-407, helicopter as well as the main promotors of the said Air Safari. The deceased couple as well as others boarded Bell-407, helicopter owned by opposite party No.1 for pilgrimage to Amarnath. On 5.8.2003, while on its way back from Amarnath to Shrinagar, the said helicopter crashed near Ganderbal (J & K) resulting in death of five persons including the deceased couple besides grievous injuries to others.
Immediately after the mishap a commission of enquiry was initiated to probe the cause of disaster. As per the finding arrived at by the Commission it was revealed that the opposite parties had violated the norms, laws and regulations so much so that the ill-fated flight of the said helicopter was non-scheduled and without any valid permit. The helicopter on the unfortunate date took off much prior to the permissible time limit with almost no visibility which is against the settled norms. Even the pilot of the ill-fated helicopter was not having any flying license and had been employed by opposite party No.1 after retiring as Commissioner Secretary, Civil Aviation, Government of J & K on completion of the age of superannuation i.e. 60 years at which age person is not eligible to fly air craft. Besides the said pilot had also exceeded the time limit of maximum permissible flying hours. It is further the case of the complainant that the pilot had been flying the ill-fated helicopter without any formal training as he never underwent type stimulator training which is a mandatory pre-requisite for flying helicopter of such category. Even the helicopter was of obsolete and out-dated technology not fit for taking up strenuous, continuous and commercial assignments and stories specially in hilly terrain with extremely foggy conditions and poor visibility. Thus, in the nutshell case of the complainants is that the deceased couple had died because of negligence on the part of the opposite parties. Therefore, the complainants have raised a consumer dispute claiming compensation to the tune of Rs.15 Crores.
The opposite parties on being served with the notice have contested the consumer complaint by filing respective written statements. Besides challenging the complaint on merits, the opposite parties have raised the issue of jurisdiction.
Since the issue of jurisdiction of National Commission to entertain the complaint has been raised, I have heard the arguments on preliminary issue.
Learned opposite party No.1 has contended that bare perusal of the allegations made in the complaint would show that the cause of action for filing of the consumer complaint arose within the territory of Jammu & Kashmir, therefore, the present complaint filed under Consumer Protection Act, 1986 cannot be entertained by this Commission because the Consumer Protection Act, 1986 in view of Section 1 does not extend to the State of Jammu & Kashmir.
Learned counsel for opposite parties No. 2 & 3 have also adopted the above arguments. It is submitted that opposite parties No.2 & 3 were merely booking agents for the package tour and they have nothing to do with the operation of the fateful helicopter which was owned and controlled by opposite party No.1. Thus, according to opposite parties No.2 & 3 they are not service providers qua the deceased couple so far as flight operation of the helicopter was concerned and as such there is no cause of action against them.
Opposite parties No. 4 & 5 in their written statement have pleaded that complaint does not disclose any cause of action against them and as such the complaint qua them deserves to be dismissed.
Learned counsel for the complainants on the contrary has drawn my attention to Section 11 (2) (c) and Section 22 of the Consumer Protection Act, 1986 and submitted that on conjoint reading of said sections makes it clear that the consumer complaint can be instituted before the National Commission if the cause of action wholly or in part has arisen within the territory of National Commission. It is contended by Shri Manish Batra, Advocate for the complainants that in the instant case the complainants had booked the seats in the fateful helicopter through opposite party No.2 which is located at Delhi. Therefore, the part of cause of action has arisen at Delhi and as such National Commission has jurisdiction to entertain the complaint.
I have considered the rival contentions. So far as the territorial jurisdiction of National Commission is concerned, it would be useful to have a look on Section 1 (1) (ii) and Section 11 (2) of the Consumer Protection Act, 1986. Aforesaid provisions are reproduced as under: - 1. Short title, extent, commencement and application . -(1) This Act may be called the Consumer Protection Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(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 a 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.
On conjoint reading of the above two provisions of Consumer Protection Act, 1986 it is clear that the instant consumer complaint can be entertained by this Commission only if the opposite parties or anyone of them voluntarily resides or carry on business or works for gain within the territory of Union of India except the State of Jammu & Kashmir or the cause of action has arisen within the territory of Union of India except Jammu & Kashmir either wholly or in part.
The first contention of learned counsel for the complainants is that opposite party No.2 M/s Multitrack is based at Delhi and even the Resident Commissioner of Government of Jammu & Kashmir has its office in Delhi. Therefore, two of the opposite parties being resident of Delhi and working for gain at Delhi, the National Commission has jurisdiction to entertain the complaint.
The above contention of learned counsel for the complainant is misconceived. So far as State of Jammu & Kashmir i.e. opposite party No.1 is concerned, merely because the State of Jammu & Kashmir is operating an office of Resident Commissioner at Delhi to have liaison with the Central Government, it cannot be said that the seat of Government of Jammu & Kashmir is at Delhi or the State Government is carrying on business or working for gain at Delhi. Coming to opposite party No.2, on reading of the complaint it is clear that the stand of the complainant is that opposite party No.2 was only a booking agent who booked the seats of the deceased couple for pilgrimage to Amarnath on the fateful helicopter. The operation of helicopter and its control admittedly was in the hands of Government of Jammu & Kashmir. Learned counsel for the complainant has failed to show any evidence which may lead to the conclusion that opposite party No.2 had chartered the said plane. In absence of any evidence in this regard it is clear that opposite party No.2 was only acting as an agent of opposite party No.1. Thus, in view of Section 230 of the Indian Contract Act it cannot be said that opposite party No.2 is personally bound by deficiency in service, if any, committed by his principal, namely, Government of Jammu & Kashmir, who admittedly were controlling the operation of the helicopter. Even the pilot Shri J.S. Kahlon as per the complainant was the employee of the Government of Jammu & Kashmir. Thus, under the circumstances it can be safely held that there is no cause of action for impleading opposite party No.2 as an opposite party in this case and the complaint against opposite party No.2 is liable to the dismissed as no cause of action is shown against opposite party No.2 his is place of business or residential address is of no consequence.
Thus, in my view, Section 11 (2) (a) & (b) is of no avail to the complainant so far as the issue of territorial jurisdiction is concerned.
Now the question arises whether the cause of action in whole or part has arisen within the territory of Union of India excluding Jammu & Kashmir.
On bare reading of the complaint it is clear that fateful helicopter was owned by the State of Jammu & Kashmir. On the fateful day it was being flown by Shri J.S. Kahlon the pilot employed by the Government of Jammu & Kashmir. Thus, it is clear that the helicopter in question which unfortunately crashed resulting in death of the deceased couple was owned and controlled by the State of Jammu & Kashmir. The accidently admittedly took place within the territory of Jammu & Kashmir in a flight which commenced within the territory of Jammu & Kashmir. Therefore, it is clear that cause of action for filing the consumer complaint arose wholly within the territory of Jammu & Kashmir. There is nothing on record to suggest that any part of cause of action arose outside Jammu & Kashmir. Therefore, in view of Section 1 of the Consumer Protection Act, the Act does not extend to the State of Jammu & Kashmir and as such the consumer complaint under this Act is not maintainable.
It may not be out of place to mention that one other complaint filed by the LRs of some other deceased passenger of the aforesaid ill-fated helicopter being complaint No.24/2005 titled Master Anirudh Kedia & Anr. vs. State of Jammu & Kashmir & Ors. was filed before the Jammu & Kashmir State Consumer Disputes Redressal Commission, Kashmir. The said complaint was decided in favour of the complainants vide order dated 26.9.2011 holding only the State of Jammu & Kashmir responsible for negligence and deficiency in service. The State Commission, Jammu & Kashmir in the said matter exonerated the tour operators and Director General, Civil Aviation. The said award was challenged by opposite party No.1 in appeal before Hon''ble High Court which was dismissed vide order dated 10.10.2012 and even the SLP against the said order was dismissed by the Hon''ble Supreme Court. From the above also, it can be inferred that tour operators and the Director General of Civil Aviation (opposite parties No.2 to 5) have been held to be not responsible for unfortunate death of the passenger of ill-fated helicopter.
In view of the discussion above, I am of the opinion that no cause of action for maintaining the consumer complaint against opposite parties No. 2 & 3 is disclosed. As the cause of action for maintaining the consumer complaint has arisen only within the territory of Jammu & Kashmir, the consumer complaint under the provisions of Consumer Protection Act, 1986 is not maintainable because the Act in view of Section 1 does not extend to the State of Jammu & Kashmir. The consumer complaint is accordingly dismissed. However, complainants shall be at liberty to file a fresh complaint on the same cause of action before the appropriate Fora in the State of Jammu & Kashmir alongwith an application under Section-14 of the Limitation Act for condonation of delay in terms of the order passed by the Supreme Court in Lakshmi Engineering Works vs. P.S. G. Industrial Institute (1995) 3 SCC 583.