PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act 1986 (for brevity, the Act) is at the instance of Opposite Party to impeach the final order/judgment dated 02.01.2019 passed by the District Consumer Dispute Redressal Forum, Kolkata, Unit-II (in short, ‘Ld. District Forum’) in Consumer complaint No. 51 of 2018. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent the institute of Social and Cultural Studies, as Trust Registered under the Indian Trust Act, 1882 with the direction upon the appellant Jet Airways ( India) Ltd. to reimburse of Rs.2,35,140/- only to the respondent being the organiser of the conference as flight fare and hotel cost at Kolkata, to pay Rs.20,000 as compensation and Rs. 5,000 as litigation cost within 30 days from the date of order.
The respondent herein being complainant lodge the complaint before the Ld. District Forum stating that they including other four organisations organised two days international conference at IGNCA auditorium New Delhi on 23rd and 24th January, 2018. For the said purpose, a team of 14 eminent delegates of Bangladesh were travelling from Dhaka to New Delhi on 22.01.2017 to participate in the said conference. The complainant through their travel agent purchased 13 air tickets in Jet Airways from Dhaka to Kolkata. The flight in question i.e. flight No. 9w-273 was scheduled to depart at 5.20 pm and reach Kolkata at 5.50 pm. On 22.01.2017 complainant book 13 tickets connecting Air India flight (flight No.AI 023) form Kolkata to Delhi schedule to depart Kolkata at 8.15 pm and reach Delhi at 10.40 pm on the same day. However the flight was delayed by two hours nine minutes and the delayed flight reach Kolkata at 7.59 pm instead of original time 5.50 p.m. Due to such delay Bangladesh delegate team missed connecting Air India flight as the said flight departed timely at 18.15 pm. Hence the complaint with prayer for several reliefs, viz.-(a) to pay Rs.1,26,743/- for Air ticket, Rs.41,000/- towards hotel and other expenses; (b)Rs. 1,93,700/- for purchasing fresh Air ticket; (c) Rs 1,20,243/- on account of non-refund of Air India tickets; (d) Rs. 88,072/- towards lodge on account of cancellation on hotel booking at Delhi; (e) Rs.5,00,000/- towards compensation and (f) Rs. 50,000/- towards litigation cost along with interest and others reliefs.
The appellant being opposite party resisted the claim of the complainant by stating that there was no deficiency of services on the part of them because as per Clause 1.4 of the Civil Aviation Requirements (CAR) dated 6.08.2010 the operating Air line would not have the obligation to pay compensation in cases where the cancellation and delays have been caused by and event of force majeure i.e. extraordinary circumstances beyond the control of the Air line.
On evaluation on materials on record the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite party, as indicated above. Challenging the said order, the opposite party has come up in this commission with the present appeal.
Mr. Tarun Chakrabarty, Ld. Advocate for the appellant inviting our attention to the cause title petition of complaint has submitted that the complaint is a ‘Trust’ registered under the Indian Trust Act and as such the respondent/ complainant cannot be categorised as ‘consumer’ as defined in section 2 (1) (d) of the Act. He has placed reliance to a decision of the Hon’ble Supreme Court reported in iv (2017) CPJ 7 (Pratibha Pratisthan and others versus Manager, Canara Bank and others) and also a decision of Hon’ble national commission reported in I (2019)CPJ 168 (Bhagwati Public School versus Edu Smart Services Pvt. Ltd and another).
Per contra, Miss Animita Bhattacharya, Ld. Advocate for the respondent has submitted that the issue has not been raised before the Ld. District Forum and at this appellate stage, the maintainability of the proceeding cannot be considered when the final order has been passed basing upon the materials on record.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
The record reveals that the respondent/complainant i.e. the Institute of Social and Cultural Studies is a ‘Trust’ registered under the Indian Trust Act 1882. It is well settled that a Trust is not ‘consumer’ within meaning of section 2 (1) (d) of the Act. In the case of Pratibha Pratisthan and others ( supra) the Hon’ble Supreme Court has held:
“5. On a plain and simple reading of all above provisions of the Act it is clear that a trust is not a person and therefore not a consumer. Consequently, it cannot file a consumer dispute under the provisions of the Act.’
In view of the said observations of the Hon’ble Supreme Court, a ‘Trust’ cannot file a Consumer complaint and therefore, the Ld. District Forum should not have entered into the merits of the case when respondent/complainant was not a ‘Consumer’ within the meaning of Section 2 (1) (d) of the Act. The rights and contention of the respondent/complainant, if any lies in a Civil Court and as such the respondent has to seek remedy only in a Civil Court.
For the reason aforesaid, we have no hesitation to hold that the impugned final order being non-sustainable in the eye of law is liable to be set aside. In other words, the appeal being meritorious one should be allowed.
In view of the above, the appeal is allowed on contest. However, there will be no order as to costs.
The final order/judgment passed by the Ld. District Forum dated 02.01.2019 in CC 51/2018 is hereby set aside.
Consequently, the complaint is rejected.
However this order will not debar the respondent/complainant to approach the appropriate forum/ Court in accordance with law and in order to overcome the hurdle of limitation, they may seek assistance of the decision of the Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works-vs- PSG Industrial Institute).
