w w w . L a w y e r S e r v i c e s . i n



Jayant Kolar Venkatraman v/s The Managing Director, Agarwal Packers & Movers, Andra Pradesh & Another


Company & Directors' Information:- AGARWAL PACKERS AND MOVERS LIMITED [Active] CIN = U63090MH2005PLC154749

Company & Directors' Information:- AGARWAL & AGARWAL PVT LTD [Active] CIN = U27106WB1950PTC026266

Company & Directors' Information:- AGARWAL & AGARWAL PVT LTD [Active] CIN = U27106DL1950PTC332098

Company & Directors' Information:- A S J MOVERS PRIVATE LIMITED [Active] CIN = U74899DL1989PTC034770

Company & Directors' Information:- MOVERS (INDIA) PRIVATE LIMITED [Active] CIN = U29244KA1979PTC003510

Company & Directors' Information:- L C PACKERS PRIVATE LIMITED [Active] CIN = U25202DL2012PTC241798

Company & Directors' Information:- AGARWAL CO LTD [Active] CIN = U74140WB1950PLC018969

Company & Directors' Information:- S R MOVERS PVT LTD [Active] CIN = U63031WB1988PTC044863

Company & Directors' Information:- K M D PACKERS PRIVATE LIMITED [Active] CIN = U74950DL2000PTC104742

Company & Directors' Information:- K S VENKATRAMAN & CO. PRIVATE LIMITED [Active] CIN = U45201TN1948PTC001118

Company & Directors' Information:- A G MOVERS PRIVATE LIMITED [Strike Off] CIN = U15542CH1999PTC022472

Company & Directors' Information:- PACKERS INDIA PVT LTD [Active] CIN = U99999MH1985PTC038391

Company & Directors' Information:- Q E D PACKERS PRIVATE LIMITED [Active] CIN = U74950DL2001PTC110725

Company & Directors' Information:- S S A S PACKERS PRIVATE LIMITED [Active] CIN = U21029WB2012PTC179508

Company & Directors' Information:- C T A MOVERS PVT LTD [Active] CIN = U51103WB1989PTC047754

Company & Directors' Information:- AGARWAL MOVERS PRIVATE LIMITED [Active] CIN = U63090DL2009PTC194937

Company & Directors' Information:- C AGARWAL AND CO PVT LTD [Active] CIN = U51109MH1946PTC004955

Company & Directors' Information:- I C AGARWAL & CO PRIVATE LIMITED [Strike Off] CIN = U24129WB1997PTC083874

Company & Directors' Information:- PACKERS AND MOVERS INDIA PRIVATE LIMITED [Strike Off] CIN = U60231PN2000PTC015145

Company & Directors' Information:- MOVERS-N-PACKERS INDIA PRIVATE LIMITED [Strike Off] CIN = U60231PN2000PTC015146

Company & Directors' Information:- J. S. PACKERS PRIVATE LIMITED [Active] CIN = U36991UP1995PTC018211

Company & Directors' Information:- V J MOVERS PRIVATE LIMITED [Strike Off] CIN = U60231DL2004PTC131550

Company & Directors' Information:- AGARWAL MOVERS AND PACKERS INDIA PRIVATE LIMITED [Active] CIN = U63000DL2010PTC201365

Company & Directors' Information:- PACKERS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U14102KA1999PTC024636

Company & Directors' Information:- PACKERS PRIVATE LIMITED [Active] CIN = U21010MH1968PTC014058

Company & Directors' Information:- K B S PACKERS PVT LTD [Strike Off] CIN = U99999UP1972PTC003540

Company & Directors' Information:- S N AGARWAL PVT LTD [Strike Off] CIN = U45201UP1984PTC006441

Company & Directors' Information:- AGARWAL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U70101RJ2014PTC045473

Company & Directors' Information:- S A E MOVERS PRIVATE LIMITED [Active] CIN = U72200PN2001PTC016159

Company & Directors' Information:- A & A PACKERS PRIVATE LIMITED [Active] CIN = U63090UP2011PTC047868

Company & Directors' Information:- S H K PACKERS PRIVATE LIMITED [Strike Off] CIN = U21000HP2013PTC000458

Company & Directors' Information:- MOVERS PRIVATE LIMITED [Under Liquidation] CIN = U00349KA1976PTC002985

Company & Directors' Information:- M-AGARWAL PACKERS AND MOVERS PRIVATE LIMITED [Active] CIN = U63040DL2020PTC361391

Company & Directors' Information:- R. AGARWAL AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1986PTC025169

Company & Directors' Information:- N K AGARWAL AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U51900MH1973PTC016609

    Appeal No. 713 of 2018

    Decided On, 10 February 2021

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN PRESIDENT
    By, THE HONOURABLE MR. T.S.P. MOOSATH JUDICIAL MEMBER
    By, THE HONOURABLE MR. R. RANJIT
    By, MEMBER
    By, THE HONOURABLE MRS. A. BEENAKUMARI
    By, MEMBER & THE HONOURABLE MR. K.R. RADHAKRISHNAN
    By, MEMBER

    For the Appearing Parties: K.S. Arundas, Advocate.



Judgment Text

K.R. Radhakrishnan, MemberThe complainant in C.C.No.110/2017 of the Consumer Disputes Redressal Forum, Ernakulam (hereinafter referred to as the District Forum / Commission for short) is in appeal challenging the judgment dated 31.05.2018 dismissing the complaint. Respondents are the opposite parties in the complaint.2. The facts in brief are that the complainant, a retired senior citizen, entrusted transporting of his household articles from Chandigargh to Kochi to the first opposite party carriers vide quotation No. 4331825 dated 25.08.2016 and G.C. No. 4507749 dated 13.9.2016. 2nd opposite party is the authorized representative of the 1st opposite party at Kochi. Complainant paid Rs. 90,000/- towards transporting charges which includes 3% for insurance also. The consignment was agreed to be delivered on 21.09.2016. But it was delivered only on 27.09.2016. The complainant had to pay an amount of Rs. 6000/- additionally towards unloading charges which is against the agreement. When he unpacked the household articles, he was shocked to see that some of the items were in broken/damaged condition and the same were irreparable/non-usable. He immediately informed the opposite parties about the incident and demanded either to replace the damaged items or to compensate the loss suffered. Though their representative conducted an inspection and assessment of the loss, no further action was taken to replace the damaged items or compensate the loss. There was no response to the legal notice dated 9.12.16. As the genuine grievances of the complainant was ignored by the opposite parties, this complaint was filed seeking a compensation of Rs. 5,00,000/- for the negligent and deficient service of the opposite parties, along with costs.3. The first opposite party filed version which was not accepted by the District Forum, as it was filed beyond the statutory period. Their I.A. No. 544/2017 to accept the version on costs was allowed subject to payment of costs. But this condition was not complied with by the first opposite party and hence their version was not considered by the District Forum.4. Complainant filed proof affidavit and he was examined as PW1. Exbts A1 to A13 were marked on his side. Exbts B1 to B3 were marked on the side of opposite parties. No oral evidence was adduced by both parties.5. The District Forum, appreciating the materials on record and considering the rival contentions, held that it has no jurisdiction to entertain the complaint. At the top left corner of Exbt A4 and Exbt. A12 it was stated that any dispute arising out of the agreement to transport the household articles is subject to “Secunderabad jurisdiction only”. The District Forum also quoted clause 12 of G.C. No. 4507749 dated 13.9.2016 which stated that “All disputes arising between the transport company and the consignor/consignee will be dealt with by competent court of Secunderabad jurisdiction only”. In view of these specific conditions, the District Forum held that it has no jurisdiction to entertain the complaint and hence it was dismissed as not maintainable. Aggrieved by this order complainant has filed this appeal.6. The learned counsel for the Appellant/complainant submitted that the District Forum, Ernakulam has jurisdiction to entertain the complaint as per Sections 11 (2) (b) and 11(2) (c) of the Consumer Protection Act, 1986. The first respondent has a branch office within the territorial jurisdiction of the Forum and it was prominently displayed in the quotation supplied to the complainant. It is illogical that an aggrieved customer who avails the services of the respondent will have to travel a far away place like Secunderabad to avail any form of judicial redressal. Further the cause of action has arisen in part in Ernakulam where the consignment was delivered and the complainant resides. The learned counsel relied on the decision dated 02.05.2011 of the Hon’ble National Consumer Disputes Redressal Commission in R.P. No. 2330/2009 (Agarwal Packers & Movers Vs. Ms. Renu Sharma) in which it concurred with the finding of the State Commission, Delhi, which stated that “8. So far as the objection of territorial jurisdiction is concerned, it has no force as section 11 of the Consumer Protection Act, 1986 provides that the District Forum shall have jurisdiction to entertain complaints where opposite party or each of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Respondents have their office at Delhi and as such Delhi District Forum has a jurisdiction.” Thus the Hon’ble National Consumer Disputes Redressal Commission upheld the territorial jurisdiction of District Forum in a similar case. The learned counsel prayed for allowing the appeal and remanding the matter to District Forum for disposing of the complaint on merits and also to impose exemplary costs on the respondents for habitually pleading irrelevant ground of territorial jurisdiction.7. The learned counsel for the respondent /first opposite party submitted that there was no deficiency on the part of the respondent /opposite party. The District Forum has no jurisdiction to entertain the complaint as per clause 12 of the contract which states that all the disputes will be dealt with by the competent court of Secunderabad and prayed for dismissed of the appeal.8. We have heard both sides and carefully examined the records. The issue in this appeal is whether the District Forum has territorial jurisdiction to entertain the complaint or not. The District Forum is bound by the provisions of section 11 (2) of the Consumer Protection Act 1986 which determines the territorial jurisdiction to entertain and decide the complaint. It reads as under:“11 (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 2[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 3[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 4[carry on business or have a branch office], or personally works for gain, as the case may be, acquiesce in such institution; or(c) the cause of action, wholly or in part, arises”Branch office has been defined in section 2 (aa) as under:“2 (aa): “branch office” means –i. Any establishment described as a branch by the opposite party; orii. Any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment”A complaint can be filed against the opposite party not only at the place where he actually or voluntarily resides or personally works for gain but also where he carries on business or has a branch office. The opposite party is having a Branch Office at Kochi as defined above as is evidenced by the quotation given to the Appellant / complainant.The transporter/Respondent cannot fix the jurisdiction on their own ignoring the law of the land. Any provision of the agreement which ousts the jurisdiction of the District Forum from a place where the opposite party has a branch office cannot be held to be valid or binding. Such ouster clauses are calculated to operate as a means to defeat the ends of justice and that it would be unjust to direct the complainant to go all the way to Secunderabad to institute the complaint. We hold that the ouster clause restricting the jurisdiction has no bearing whatsoever on the complaints filed before the Consumer forum. It is abundantly clear t

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hat the opposite party is having a Branch office in Kochi and that part of the cause of action has arisen within the jurisdiction of the District Forum, Ernakulam, which enables it to entertain the complaint as per section 11(2) of the Act. The District Forum erred in dismissing the complaint as not maintainable on the technical ground of lack of territorial jurisdiction and hence it is liable to be set aside. Hence we do so.In the result this appeal is allowed and the order dated 31.05.2018 passed by the Consumer Disputes Redressal Forum, Ernakulam in C.C.No. 110/2017 is set aside. The matter is remanded to the District Commission for fresh disposal on merits after giving opportunity to the parties to file their versions, to adduce evidence and to contest the same. There is no order as to costs. The District Commission shall dispose of the complaint as expeditiously as possible.
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