Research › Browse › Judgment

Gauhati High Court · body

1999 DIGILAW 271 (GAU)

Tarak Chandra Sharma v. Photo Speed Company

1999-08-14

D.DUTTA, J.N.SARMA

body1999
J. N. Sarma, Member — This appeal is directed against the order dated 9.11.98 passed by the District Consumer Disputes Redressal Forum, Kamrup (for short, District Forum) in CP Case No. 146 of 1997. Appellant Shri Tarak Ctiandra Sarma was the complainant and respondent M/s Photo Speed Company was the opposite party in the original case in District Forum. 2. The facts of the case may be stated briefly as follows: Appellant/ complainant sent two 35 mm exposed Fujichrome films (slide films), each 36 exposures, for processing and mounting to the respondent/opposite party (OP for short) M/s Photo Speed Co of Bangalore under registered letter No.2707 dated 24.1.96 from Ujanbazar Post Office at Guwahati with request to them to send the processed and mounted slides to him by VPP as the processing charges etc were not known. When the complainant did not receive the same for some time he sent a reminder to the OP on 18.3.96. On further delay in receipt of the processed slides he reminded the OP again vide registered letter dated 22.8.96 with AID. The A/D signed was received back by him. He, then, lodged a complaint with Senior Superintendent of Post Offices, Guwahati, regarding non receipt of Ujanbazar RL No. 2707 of 24.1.96. The Senior Superintendent of Post Offices informed him vide his letter No.CR 3/89/8/96-97 dated 11.9.96 that the letter under reference was delivered to the addressee on 30.1.96. 3. After getting the confirmation from the Senior Superintendent of Post Offices, the complainant took up the matter with the OP and wrote to them intimating that he would be compelled to take recourse to legal action against Them if no reply was received by 15.12.96. This letter RL No.4311 dated 22.11.96 of Uzanbazar PO with A/D was also received by OP. He has not received any communication from the OP on this matter. 4. It was alleged by the complainant in his complaint filed before District Forum that the OP failed in their duties to their customer and thereby caused great loss to the complainant by not sending him the processed slides and even failing to intimate him the actual position. It is well known that the exposed films get spoilt if not processed short time after exposure. It is well known that the exposed films get spoilt if not processed short time after exposure. According to him the films might have become completely useless by that time, through degeneration, ft is stated further in the complaint that the said films were shot at Kaziranga National Park, Dipar Beel and other places and contained valuable rare pictures of wild life and flowers etc. The complainant claims a compensation of Rs.60,000 only from the OP for the loss of aforesaid 72 slides. Beside he claims compensation of another Rs.30.000 only for causing harassment and mental torture to him by the OP through their negligence. An amount of Rs. 10.500 only as interest is also claimed by him. 5. On receipt of notice from the District Forum the authorised representative of the OP appeared before it. Thereafter a written statement was filed by the proprietor of OP M/s Photo Speed Company. The complainant filed an affidavit d in reply to the written statement of the OP. After hearing both the parties and considering the evidence on record learned District Forum passed the final order on 9.11.98 deciding that the Forum had no jurisdiction to adjudicate the complaint. The complaint was disposed of with the said order directing the complainant to present it in a Forum of competent jurisdiction. 6. We have heard learned counsel for both the parties and perused the memorandum of appeal, afridavit-in-opposition of the respondent and other relevant papers on record. We have gone through also the complaint, written statement, affidavit-in-oppdsition and other relevant papers in the original case record. Besides, we have taken into consideration the findings and decisions referred to by the learned counsel for the appellant as reported in AIR 1969 Calcutta 224, as also those referred to by the learned counsel for the respondent as reported in AIR 1966 SC 343 and AIR 1965 Punjab 107. 7. The appellant has assailed the decision of the District Forum that it has got no jurisdiction to adjudicate the complaint. He has got no grievance on the other points decided by the District Forum as the same have been decided in his favour. We agree with the District Forum that the complainant-is a consumer within the meaning of section 2(1) (d) (ii) of the Consumer Protection Act as he hired the services of respondent/OP for consideration under the system of deferred payment. We agree with the District Forum that the complainant-is a consumer within the meaning of section 2(1) (d) (ii) of the Consumer Protection Act as he hired the services of respondent/OP for consideration under the system of deferred payment. As he asked the respondent to send him the processed and mounted slides per VPP there was promise to pay the charges. We entirely agree with the District Forum that the case is not vitiated due to non-joinder of necessary parties and that there is deficiency of service on the part of the respondent/Ok 8. First of all we take up the matter of jurisdiction which is the moot point in this appeal. Section 11 of the Consumer Protection Act provides for Jurisdiction of District Forum'. In fact, it reproduces the provision in section 20 of the Code of Civil Procedure. The contention of the appellant is that the cause of action in the instant case arises in part within the jurisdiction of District Forum at Guwahati as the slides in question were sent by registered post from the Post Office at Ujanbazar in Guwahati. We shall, therefore, confine our discussion to the point as to whether the cause of action arose in part in Guwahati within the territorial jurisdiction of District Forum, Kamrup, artd State Commission, Assam. As the aforesaid provision of the Act and the Code of Civil Procedure are exactly similar we find that the decisions and observations of the Apex Court and High Courts are applicable to the instant case also. 9. We have gone through the order of the Hon'ble Calcutta High Court in Ujjal Talukdar vs. Netai Chand Koley reported in AIR 1969 Calcutta 224 referred to by the learned counsel for the appellant. Although the facts and circumstances are different the principle laid down therein is applicable in this case. To quote from the aforesaid order of Hon'ble Calcutta High Court. “Even an infinitesimal fraction of the cause of action will be the part of the cause of action and confer jurisdiction on the Court within the territorial limits of which that little occurs Munirangappa vs. Venkatappa, AIR 1965 Mysore 316. This salutary and obvious interpretation of section 20, clause (c), of the Procedure Code is not denied”. “Even an infinitesimal fraction of the cause of action will be the part of the cause of action and confer jurisdiction on the Court within the territorial limits of which that little occurs Munirangappa vs. Venkatappa, AIR 1965 Mysore 316. This salutary and obvious interpretation of section 20, clause (c), of the Procedure Code is not denied”. In the light of the above observation of both Hon'ble Calcutta High Court and Mysore High Court we are inclined to agree with the learned counsel for the appellant that a part of the cause of action arose at Guwahati in the instant case. 10. We, however, proceed to discuss this point further in the light of the decision and observations of the Apex Court in Bhagawandas Goverdhandas Kedia vs. M/s Girdharilal Parshottamdas and Co reported in AIR 1966 SC 543 , referred to by the learned counsel for the respondent. We have carefully gone through both the majority and the minority judgments in this case. As the majority judgment prevails we do not think it would be helpful to the respondent to prove his point on the matter of jurisdiction of District Forum at Guwahati, and State Commission, Assam. In the said judgment the relevant provisions of the Contract Act have been discussed at length while deciding on the part of cause of action and jurisdiction of the Court. In our opinion the instant case is some sort of contract between the parties and that is why the principles laid down in the aforesaid majority judgment of the Apex Court will be applicable here. It would be pertinent to quote below some of the relevant observations in the aforesaid judgment "..... A contract being the result of an offer made by one party and acceptance of that vary by the other, acceptance of the offer and intimation of acceptance by some external manifestation which the law regards as sufficient is necessary." In the instant case it is an admitted fact that the respondent received the slides, did the processing of the same as asked for. They even claimed to have sent back the processed slides to the appellant by post. All these facts indicate that there was acceptance by some external manifestation'. So, the contract was complete and hence the respondent is liable for any breach of the contract. They even claimed to have sent back the processed slides to the appellant by post. All these facts indicate that there was acceptance by some external manifestation'. So, the contract was complete and hence the respondent is liable for any breach of the contract. It is pertinent to point out in this context that section 4 of the Contract Act provides : "The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.” In the light of the above observation and provision of the Contract Act, we find no force in the contention of the respondent that the posting of the registered letter with the slides at Guwahati is not part of the cause of action as there was no contract at that point of time. In our opinion the appellant's activity of posting the letter amounted offer and it became contract by subsequent 'external manifestation' of acceptance by the respondent. In that view of the matter it is a contract ab initio and the offer, being part of it and accepted by the other party, becomes a part of the cause of action and hence the Court within those limit it arose has got jurisdiction. We, therefore, come to the conclusion that District Forum erred in fact and law in holding that it has no jurisdiction to adjudicate the complaint. 11. Learned counsel for the respondent has drawn our attention to the judgment of Punjab High Court reported in AIR 1965 Punjab. We have gone through this judgment also and we do not think this decision helps the respondent. Besides, in view of our discussion above in the light of Apex Court's decision and observations we do not consider it necessary to discuss this judgment in detail. 12. Instead of remanding the case to the District Forum causing further delay in dispensation of justice it would be expedient to decide the case on merit and dispose of it by this commission itself. 13. If we follow the chain of activities as narrated in the pleadings and revealed by the evidence on record we find that there was definitely deficiency in service on the part of respondent/OP within the meaning of section 2 (1) (g) and (o) of the Consumer Protection Act. 13. If we follow the chain of activities as narrated in the pleadings and revealed by the evidence on record we find that there was definitely deficiency in service on the part of respondent/OP within the meaning of section 2 (1) (g) and (o) of the Consumer Protection Act. It is apparent from the fact that although the respondent received the slides sent by registered post they did not respond to the appellant's letter and reminders. Quite naturally the appellant/complainant suffered from harassment and mental agony in such a situation. In the circumstances there is no doubt that the respondent is liable for deficiency in service for his non response and failure to deliver the processed and mounted slides to the appellant. 14. Considering the facts and circumstances of the case revealed by the evidence on record we find that the appellant is entitled to some relief and the respondent is liable to pay compensation/to him for loss caused by them due to their negligence and deficiency. While fixing the compensation we take into consideration all the factors like the trouble taken by the appellant in taking the photographs of rare wild life and flowers etc, aesthetic and market value of the photographs, reputation of the appellant as a renowned photographer and harassment, mental agony etc. We hold that the consideration of all these aspects a compensation of Rs.40,000 only and a cost of Rs. 10,000 only will meet the ends of justice. We are not inclined to award any part interest on the award amount. 15. We, therefore, hold that the District Forum at. Guwahati and this Commission have jurisdiction to adjudicate the complaint as the part of the cause of action arose within their limits and consequent thereupon the decision of the District Forum on the point of jurisdiction is set aside. We direct the respondent/OP to pay compensation of Rs.40,000/- and costs of Rs. 10,000 only to the appellant/ complainant within a period of two months of this order, failing which the respondent should be liable to pay interest at the rate of 18% per annum on the entire amount from the expiry of the two months till the date of realisation. 16. In the result the appeal is allowed with costs and the complaint is allowed with the directions indicated above.