Sudip Ahluwalia, Member

This Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 ("the Act") against the Maharashtra State Consumer Disputes Redressal Commission's Order dated 13/10/2016 in Complaint No. CC/96/255, which was partly allowed.

2. For Convenience, the parties are being referred to as per the Complaint before State Commission.

3. Brief facts of the case, as per the Complainant, are that on 13.01.1995, Complainant No.1 hired the services of the OP at Mumbai for transportation by road of a consignment comprising 521 cases of pharmaceutical products from Mumbai to its office at Delhi on stock transfer basis. The consignment was valued at Rs. 23,54,436.33/-. The OP accepted the consignment vide Stock Transfer Note No. 011605 dated 13.01.1995 and issued Lorry Receipt No. 434302 dated 13.01.1995 for carriage from Mumbai to Delhi. At Delhi, out of the total 521 cases, only 167 cases were delivered, and in a badly damaged condition. The contents were soaked in diesel, contaminated with dust and dirt, with some contents missing and several cartons packed in gunny bags instead of the original factory packing. The loss and damage were surveyed at the premises of the Complainant No. 1 by the Surveyor, Sqn. Ldr. Kapil Mohan (Retd.), who submitted his Survey Report dated 08.02.1995. As the medicines in the damaged cases were unfit for human consumption, they were destroyed by burning. The OP issued Damage Certificates Nos. 573, 574 and 275, all dated 19.01.1995. Thereafter, the Complainant No.1 lodged a claim with the OP vide registered letter dated 27.03.1995, addressed to its New Delhi & Bombay offices, seeking compensation of Rs. 10,16,255/- which was acknowledged by the OP vide letter dated 01.04.1995. It was further stated that the Complainant No.1 had insured the consignment vide Policy No. 111200/0/0/21/95/00002 with the Complainant No. 2. After scrutiny of the claim and documents, the Complainant No. 2 settled the Claim for Rs. 10,16,255/-. Thereafter, Complainant No.1 executed a Letter of Subrogation and Special Power of Attorney dated 10.05.1995 for Rs.10,16,255/- in favour of the Complainant No.2. Thus, CC No. 96 of 255 was filed jointly by both the Complainants seeking recovery of Rs. 10,16,255/- with interest.

4. The OP resisted the Complaint by filing its Written Version. The handing over of the goods by Complainant No. 1 to the OP for transportation from Bombay to Delhi was not disputed. However, it was contended that the Complainants had failed to establish any negligence on the part of the OP. It was asserted that the accident did not occur due to any mistake or negligence of the Driver, but on account of circumstances beyond the control of anyone, which were sought to be characterized as an "Act of God". The OP further contended that there was no valid subrogation executed by Complainant No.1 in favour of Complainant No. 2. It was also contended that the Lorry Receipt under which the consignment was loaded in the truck specifically stipulated that all disputes were subject to the jurisdiction of the Courts at Delhi and, therefore, the State Commission lacked jurisdiction to entertain the Complaint. On these grounds, the OP prayed for dismissal of the Complaint.

5. The State Commission, vide the Order dated 13.10.2016 passed the following order:

                          "-: ORDER :-

                          1. Consumer complaint is partly allowed with costs quantified at Rs. 15,000/- (Rupees Fifteen Thousand only) payable to complainant No.2.

                          2. Opponent is directed to pay Rs.10,16,255/- (Rupees Ten Lakhs Sixteen Thousand Two Hundred Fifty-five only) to complainant No.2 together with interest @ 12% p.a. from the date of filing of complaint i.e. 19/12/1996 till realisation.

                          3. Opponent is directed to comply the order within a period of sixty days from the date of order, failing which rate of interest will be 15% p.a.."

                          6. Being aggrieved the OP has filed the instant Appeal challenging the impugned Order.

                          7. In the instant Appeal, the OP has mainly raised the following issues -

                          A. That the impugned Order was passed without pecuniary jurisdiction, as the claim of Rs. 10,16,255 could not have been adjudicated by the Ld. State Commission and lay within the jurisdiction of the Ld. District Forum. The order was therefore a nullity in law;

                          B. That the State Commission at Mumbai lacked territorial jurisdiction, since the contract expressly confined jurisdiction to the Courts at Delhi. The assumption of jurisdiction was thus illegal and rendered the impugned order unsustainable;

                          C. That the Complainant No. 2 was neither a Consumer of the Appellant nor had any privity of Contract with it. In the absence of such relationship, the proceedings were not maintainable and no relief could have been granted in its favour;

                          D. That there was no valid subrogation in favour of Complainant No.2. Even otherwise, any subrogation, if assumed, was limited to instituting a Civil Suit and could not sustain any proceedings under the Consumer Protection Act, thereby rendering the order a nullity;

                          E. That the impugned Order was non-speaking, as it failed to consider the defences raised by OP or disclose the reasons for the conclusions reached, and was therefore liable to be set aside;

8. In her arguments, Ld. Counsel for Appellant/OP reiterated the grounds advanced in the Appeal and argued that Complainant No. 1 had engaged the OP for transportation of pharmaceutical products from Mumbai to Delhi on a stock transfer basis and a Lorry Receipt was issued expressly conferring exclusive jurisdiction on the courts at Delhi. It was asserted that the accident occurred due to circumstances beyond the control of the OP, namely heavy rainfall causing slippery roads and sudden application of brakes by the vehicle ahead, which compelled the Driver to apply brakes, resulting in the truck skidding and overturning. At the request of the Complainant No.1, the OP had issued the Damage Certificates dated 19.10.1995 to enable the insurance claim, after the Complainant No.1 had furnished undertakings absolving the OP of negligence and agreeing that neither it nor its Transferee or Assignee would raise any claim against the OP. It was further argued that without any notification to the OP, the Complainant No. 1 and 2 had unilaterally assessed the loss at Rs. 10,16,255/- and Complainant No.2 paid the said amount to Complainant No.1, pursuant to which a letter of subrogation and Special Power of Attorney dated 10.05.1995 was executed and the Consumer Complaint was filed seeking recovery from the OP. Assailing the impugned Order. Ld. Counsel for the Appellant has argued that the Ld. State Commission, Maharashtra lacked territorial jurisdiction in view of the exclusive jurisdiction clause conferring jurisdiction on Delhi courts, and that where more than one Court has concurrent jurisdiction, the parties are entitled to restrict jurisdiction to one by entering into an agreement. In support of this argument reliance was placed on "Swastik Gases Pvt. Ltd. v. Indian Oil Corporation Ltd., [(2013) 9 SCC 32]"; the Hon'ble Apex Court had held that the jurisdiction of a Court can be excluded by an agreement. The relevant para of the said case is set out as under -

                          "32. For answer to the above question, we have to see the effect of the jurisdiction clause in the agreement which provides that the agreement shall be subject to jurisdiction of the courts at Kolkata. It is a fact that whilst providing for jurisdiction clause in the agreement the words like "alone", "only", "exclusive" or "exclusive jurisdiction" have not been used but this, in our view, is not decisive and does not make any material difference. The intention of the parties-by having Clause 18 in the agreement-is clear and unambiguous that the courts at Kolkata shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. It is so because for construction of jurisdiction clause, like Clause 18 in the agreement, the maxim expressio unius est exclusio alterius comes into play as there is nothing to indicate to the contrary. This legal maxim means that expression of one is the exclusion of another. By making a provision that the agreement is subject to the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of other courts. Where the contract specifies the jurisdiction of the courts at a particular place and such courts have jurisdiction to deal with the matter, we think that an inference may be drawn that parties intended to exclude all other courts. A clause like this is not hit by Section 23 of the Contract Act at all. Such clause is neither forbidden by law nor it is against the public policy. It does not offend Section 28 of the Contract Act in any manner."

9. Ld. Counsel for the Appellant/OP has also relied on "M/s. Taneja Developers & Infrastructure Ltd. v. Gurpreet Singh & Anr., [FA No. 33 of 2014, NCDRC]" wherein it was held as under -

                          7....... In the case in hand parties agreed that in case of dispute, venue shall be at Mohali and excluded jurisdiction of any other Court. In such circumstances, only Punjab State Consumer Disputes Redressal Commission had jurisdiction to entertain any dispute pertaining to Floor Buyer Agreement executed between the parties. Complainant submitted that this clause pertains only to venue of arbitration. No doubt, in this clause it has been mentioned that any dispute arising out of this agreement will be decided by arbitration at Mohali, but as It has been held by Hon'ble Apex Court that inspite of arbitration clause complaints are maintainable before Consumer Fora, it can very well be held that parties intended to get dispute resolved exclusively at Mohali which falls within jurisdiction of Punjab State Consumer Disputes Redressal Commission. Merely because part of cause of action has arisen at Chandigarh, learned State Commission, UT, Chandigarh does not get territorial jurisdiction to entertain complaint when there was specific clause in Floor Buyer Agreement restricting disposal of any dispute only at Mohali and learned State Commission has committed error in assuming jurisdiction and allowing complaint."

10. On pecuniary jurisdiction, the Appellant's Counsel has argued that the claim of Rs.10,16,255 with interest @ 18% per annum fell within the jurisdiction of District Forum and not the State Commission. Thus the impugned Order is without jurisdiction and a nullity in law. She has relied on "Sushil Kumar Mehta v. Gobind Ram Bohra (D) Through LRs, (1990 1 SCC 193)"; in which it was held -

                          "A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a corum non judice. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage or execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party."

11. As regards the doctrine of subrogation, Ld. Counsel for the Appellant argued that the Insurer could recover any amount from the OP only upon proof of negligence or wrongful act. In the present case, the accident was a clear case of vis major, caused by heavy rains and sudden braking, which was beyond the control of OP. Since the Driver had taken all reasonable care and no negligence was attributable to OP, the duty of care stood discharged. Thus, the doctrine of subrogation had no application. The Appellant has relied on "Minu B. Mehta & Anr. v. Balkrishna Ramchandra Narayan & Anr (1977) 2 SCC 441"; wherein it was held as under -

                          "The owner is not liable if the accident is due to a latent defect which is not discoverable by reasonable care. The law on this subject has been laid down in Henderson v. Henry E. Jenkins & Sons. (1). In that case the lorry driver applied the brakes of the lorry on a steep hill but they failed to operate. As a result the lorry struck and killed a man who was emerging from a parked vehicle. The defence was that brake failure was due to a latent defect not discoverable by reasonable care on driver's part ... The House of Lords held that the burden of proof which lay on the defendants to show that they had taken all reasonable care had been discharged."

12. On the other hand, Ld. Counsel for the Respondent No.1/ Complainant No.1 has affirmed the findings in the impugned Order and reiterated the facts in the Complaint and argued that both pecuniary and territorial jurisdiction are clearly vested with the Maharashtra State Commission. The objection raised by OP regarding pecuniary jurisdiction was misconceived, as the Complaint was instituted at a time when the State Commission was competent to entertain the same, and subsequent amendments enhancing pecuniary jurisdiction were prospective in nature. He has asserted that the amendments enhancing the pecuniary jurisdiction were prospective in nature and therefore, it could not be applied in a retrospective manner. In support of his argument, he relied on "Premier Automobiles Ltd. v. Dr Manoj Ramachandran, Revision Petitions Nos 400 to 402 of 1993" (NCDRC) wherein it was held:

                          "7. in our opinion the approach of the State Commission is seriously vitiated by the fact that instead of considering the crucial aspect as to whether the amendments introduced by the Ordinance are only prospective in operation or whether they would on the other hand affect pending proceedings and have the effect of divesting the litigants of their right to have their cases adjudicated upon by the very Forums before which they had been validly instituted in accordance with the law as it stood at the time of such institution, the State Commission laid undue emphasis on the word "entertain" which occurs in Sections 11 and 17 of the Act. It is well established principle to be kept in mind while construing the effect of any Amending Act that any amendment to a statute which effects the vested rights of an individual which are substantive in nature must be presumed to be only prospective in operation unless the Legislature by language which expressly or by necessary implication has clearly indicated its intention to bring about the change with retrospective operation. Generally, an Amending Act should be taken to have been passed in order to advance the purpose of the Act as reflected in the Preamble thereto. The main scheme of the original enactment will ordinarily control the meaning of the amending provisions. The aim and purpose of the parent Act being to facilitate the speedy and inexpensive settlement of consumer disputes. This laudable objective will certainly not be advanced if the aforesaid provisions of the Amending Act are to be construed as requiring the State Commission to discontinue the adjudication of cases which have been pending before it having a valuation not exceeding five lakhs which may have already progressed to various stages of the trial procedure and to transfer all such cases to the District Forum where the entire process will have to be commenced all over again right from the stage of issue of notices. The resuIt of such transfer of pending cases will be only that the trial and final disposal of the cases would be considerably delayed and the complainants (consumers) would also be put to unnecessary additional expenditure by reason of the change of venue of the adjudication."

13. The Respondent side has also relied on "Neena Aneja & Anr v Jai Prakash Associates Ltd, CAs. 3766-3767 of 2020"; wherein it was held that the legislative changes to pecuniary jurisdiction operated prospectively and did not affect pending litigations -

                          "69. This intention appears likely, particularly in light of previous decisions of the NCDRC which had interpreted amendments that enhanced pecuniary jurisdiction, with prospective effect. The NCDRC, in Southfield Paints and Chemicals Pvt. Ltd. v. New India Assurance Co. Ltd. construed amending Act 62 of 2002 by which the pecuniary limits of jurisdiction were enhanced with effect from 15 March 2003 as prospective by relying on its earlier decision in Premier Automobiles Ltd. v. Dr Manoj Ramachandran59, where the CDRC held that the amendments enhancing the pecuniary jurisdiction are prospective in nature [albeit on a reliance of the principle in Dhadi Sahu (supra). Parliament would be conscious of this governing principle and yet chose not to alter it in its application to the consumer fora."

14. As regards territorial jurisdiction, it was argued that the cause of action arose within Maharashtra and that the terms of Contract conferring exclusive jurisdiction on the Courts at Delhi could not oust the statutory jurisdiction of the Consumer Fora. According to the Respondent, even otherwise, the essential element of failure of justice, if any, that has occasioned has not even been demonstrated so as to warrant any interference on the ground of territorial jurisdiction. To support this contention. Ld. Counsel for the Respondent has relied on "Munish Sahgal v. DLF Home Developers Limited, 2011 SCC OnLine NCDRC 77"; holding that private agreements could not oust the statutory jurisdiction of a Consumer Forum where the Opposite Party maintained a branch office -

                          "Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned. It need not be reiterated that it would defeat the very purpose and object of the Act if the provisions of an agreement between a consumer and a service provider alone were to determine the jurisdiction of the Consumer Forum."

15. Reliance has further placed on "Sneh Lata Goel vs Pushplata, AIR 2019 SC 824"; wherein it was observed that objections to territorial jurisdiction were not inherent defects and had to be raised at the earliest stage while demonstrating a consequent failure of justice -

                          "This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied."

16. Addressing the challenge to maintainability on account of subrogation, the Ld. Counsel for the Respondent No.1 has argued that upon execution of the letter of subrogation, the Complainant No.2 was legally entitled to recover the amount paid under the Policy by stepping into the shoes of Complainant No.1. Thus, the proceedings were fully maintainable. He has relied on "Economic Transport Organization v Charan Spg Mills(P) Ltd (2010) 4 SCC 114" clarifying that subrogation served as an equitable assignment enabling an Insurer to step into the shoes of the Insured for recovery purposes after settling a Claim -

                          "26. Subrogation, as an equitable assignment, is inherent, incidental and collateral to a contract of indemnity, which occurs automatically, when the insurer settles the claim under the policy, by reimbursing the entire loss suffered by the assured. It need not be evidenced by any writing. But where the insurer does not settle the claim of the assured fully, by reimbursing the entire loss, there will be no equitable assignment of the claim enabling the insurer to stand in the shoes of the assured, but only a right to recover from the assured, any amount remaining out of the compensation recovered by the assured from the wrongdoer, after the assured fully recovers his loss. To avoid any dispute with the assured as to the right of subrogation and extent of its rights, the insurers usually reduce the terms of subrogation into writing in the form of a letter of subrogation which enables and authorises the insurer to recover the amount settled and paid by the insurer, from the third-party wrongdoer as a subrogee-cum-attorney.

                          27. When the insurer obtains an instrument from the assured on settlement of the claim, whether it will be a deed of subrogation, or subrogation-cum-assignment, would depend upon the intention of parties as evidenced by the wording of the document. The title or caption of the document, by itself, may not be conclusive. It is possible that the document may be styled as "subrogation" but may contain in addition an assignment in regard to the balance of the claim, in which event it will be a deed of subrogation-cum-assignment. It may be a pure and simple subrogation but may inadvertently or by way of excessive caution use words more appropriate to an assignment. If the terms clearly show that the intention was to have only a subrogation, use of the words "assign, transfer and abandon in favour of" would in the context be construed as referring to subrogation and nothing more."

17. On deficiency in service, it has been argued that damage to the goods during transit while in the custody of the OP stood admitted, including through the Damage Certificates issued by the OP itself. The plea of "Act of God" was a mere assertion, unsupported by any evidence, and the burden to establish absence of negligence squarely lay on the OP, which it had ailed to discharge. The damage to the consignment during transit itself established deficiency in service. Therefore, the Appeal is liable to be dismissed and the impugned order be upheld.

18. Ld. Counsel for Complainant No. 2/Respondent No.2 has also argued that the Complainant No.1 had booked a consignment of 521 cases of pharmaceutical products valued at Rs.23,54,436.33 with the OP for transportation from Mumbai to Delhi, against Lorry Receipt dated 13.01.1995. However, the OP delivered only 167 cases and even those in a badly damaged condition, thereby failing to deliver the consignment safely. He argued that the consignment was insured with Complainant No.2 under Policy No. 111200/0/21/95/0002. Upon delivery, a survey was conducted at the premises of Complainant No.1 at Delhi. As per the Survey Report dated 08.02.1995, the medicines in the damaged cases were unfit for human consumption and were therefore destroyed. The Complainant No.1 filed a claim with the OP for Rs.10,16,255/- vide letter dated 27.03.1995, which was acknowledged by the OP on 01.04.1995 but was not satisfied. Thereafter, the Complainant No.2 settled the Claim for Rs. 10,16,255/- pursuant to which Complainant No.1 executed a Letter of Subrogation and Special Power of Attorney dated 10.05.1995 in favour of Complainant No. 2. On the issue of subrogation, the Ld. Counsel argued that the Letter of Subrogation was not a document which is required to be compulsorily registered, as it did not create any new right in favour of the Insurance Company but merely reaffirmed the existing legal position. Hence, the subrogation executed by the Complainant No.1 in favour of Complainant No. 2 was valid and enforceable in law. It was further asserted that based on the Damage Certificates issued by OP and other material on record, the Complainant No.2 had rightly satisfied the claim of Complainant No.1. It was further argued that the damage to the consignment was caused due to the failure of the OP to exercise reasonable care, skill, and diligence. As a common carrier, the OP was under an absolute obligation to ensure the safety of the consignment during transit and while it remained in its custody, such obligation being akin to that of an Insurer of the goods against extraneous risks. The failure to deliver the consignment safely constituted a breach of duty independent of the Contract of Carriage and also amounted to negligence in the capacity of the OP as a Bailee. Thus, a threefold liability stood attracted against the OP i.e. as a common carrier, as an Insurer of the goods, and as a Bailee under law. The damaged delivery itself clearly established lack of due care. Any terms in the Lorry Receipt seeking to absolve the OP of liability were null and void. In view of the absolute liability cast under the Carriers Act, 1865, deficiency in service on the part of OP stood clearly established.

19. We have examined the pleadings and associated documents placed on record and heard the submissions made by Ld. Counsel for both sides.

20. We may first of all take notice of the fact that objection of the Appellant regarding the territorial jurisdiction of the State Commission, Maharashtra, had been specifically raised in Para 4 (v) of the Written Statement filed on behalf of the Appellant/Opposite Party. Admittedly, the provisions under the Consumer Protection Act are to be conducted in a summary fashion and not exactly according to the trappings and formalities as required under the Code of Civil Procedure, 1908. Nevertheless, some of the provisions of the said Code or the principles underlying the same need to be necessarily adopted in the interest of fair and effective adjudication of any dispute raised. Now according to Section 21(1) of the said Code, it is mandated that "objection as to the territorial jurisdiction of the Court of the first instance cannot be allowed by any Appellate or Revisionary Court, unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice".

21. Undoubtedly, in summary proceedings, it is very rare to frame issues as contemplated in Order XIV of the Code of Civil Procedure, 1908. Nevertheless, it is certainly the duty of the Trial Forum to ensure that no failure of justice occurs due to the fact that no issues are formally framed.

22. It is, however, seen from the impugned Order that the Ld. State Commission had returned detailed findings on this particular "Issue" which has been described as "Point No. 1" in the impugned judgment. It is also seen that the Ld. State Commission to a large extent was itself of the view that its own territorial jurisdiction to entertain the Complaint stood excluded on account of the agreement/ condition mentioned in the Lorry receipt, as can been seen from the following detailed observations of the State Commission -

                          "6 . Point No. 1 (Jurisdiction) :- Advocate for the opponent has contended that this Commission has no jurisdiction to entertain this complaint as parties have restricted the jurisdiction to Delhi. Learned Advocate for the opponent has drawn our attention to Lorry Receipt which is at page-13 of complaint compilation. Said document is not disputed by the complainants. On the hand, claim of the complainants is based on said Lorry Receipt as the goods were sent by the Complainant No. 1 for transporting from Mumbai to Delhi and after handing over said goods by complainant No. 1 to opponent, said Lorry Receipt was issued by the opponent. On the said document it is specifically mentioned that "All Disputes Subject to Delhi Jurisdiction". Learned Advocate for the opponent has submitted that in view of recital in the said document, it is clear that the parties have restricted the jurisdiction to Delhi and hence, this Commission has no jurisdiction.

                          7. Legal position is that if more than one Court or Forum have jurisdiction, then parties can restrict the jurisdiction to any of those places. Here in the present case, goods were transported from Mumbai to Delhi and hence, both Forums at Mumbai and Delhi have jurisdiction. Legal position is clear on the point that the parties by agreement cannot confer the jurisdiction on the Court or Forum which has no jurisdiction at all. However, two or more Courts or Forums have jurisdiction then the parties can restrict the jurisdiction to any of them.

                          8. Learned Advocate for the Complainants have submitted that in the said endorsement on Lorry Receipt, no where it is mentioned that the jurisdiction of the Court at Mumbai is excluded and hence, because of said endorsement on the Lorry Receipt it cannot be said that the Mumbai Court has no jurisdiction.

                          9. It is a matter of record that on the said document i.e. Lorry Receipt it is not mentioned that the jurisdiction of the Mumbai is excluded. However, it is mentioned that all disputes subject to Delhi jurisdiction. It is germane to note that when in such endorsement if the word "Alone", "Only", "Exclusive" is mentioned, then there is no difficult to say that jurisdiction of the Forum at the place other than mentioned in the endorsement is excluded. We find that even without use of said word by necessary implication it can be said that jurisdiction of the Forum at the place other than mentioned in the endorsement is excluded. The reason is that when the Court or Forum at two or more places have jurisdiction, mentioning only one of them, naturally an inference emerged that places which are not mentioned in the endorsement are excluded as the jurisdiction is restricted to the place mentioned. Otherwise there was no necessity of such endorsement and mentioning only one place out of places having jurisdiction." (Emphasis added)

23. Nevertheless, the Ld. State Commission thereafter went on to hold that it had territorial jurisdiction on the basis of a decision of this Commission in an earlier case of "Headway Finance & Investment Co. Ltd. Vs. Chandra Mohan Agarwal & Ors., 1996 LawSuit (CO) 640". The observations of the Ld. State Commission in this regard are set out as below -

                          "10. Learned Advocate for the Complainants has submitted authority reported in 1996 LawSuit(CO) 640 in the case of Headway Finance & Investment Co. Ltd. V/s. Chandra Mohan Agarwal & Ors. It was observed by Hon'ble National Commission that - "It was agreed that in case of any dispute the same shall be settled at Agra." It was further mentioned that - "However, it is clear that words used are not to the effect that the Agra Courts alone will have the jurisdiction or that the parties agreed that the exclusive jurisdiction will be that of Agra Court. All that it is said is that in case of any dispute, the same shall be settled at Agra. This does not create any exclusive jurisdiction in Agra Courts." We have already discussed above the effect of mentioning only one place out of places having jurisdiction that the place other than mentioned in the endorsement, terms and conditions of agreement, jurisdiction of those places are excluded by necessary implication as the jurisdiction is restricted to the place mentioned. However, in view of judgment of the Hon'ble National Commission as mentioned above, we have to conclude that jurisdiction of this Commission is not excluded and hence, we have to say that this Commission has jurisdiction to entertain the complaint. Hence, we answer Point No. in affirmative."

24. In our view, the reliance of the Ld. State Commission on the decision of this Commission in "Headway Finance & Investment Co. Ltd." (Supra) was misplaced. We say so because in the aforesaid case the parties had only agreed "that in case of any dispute, the same shall be settled at Agra" which ipso facto could not have implied that the territorial jurisdiction of any other Forum stood ousted, since the agreement was only for "settlement of any dispute at Agra". Needless to mention, "settlement of any dispute" is an expression much wider than a limited act of filing a legal proceeding in any specific Court or Forum. Filing such a Suit or Complaint essentially connotes the initiation of proceedings of an adversarial nature, whereas "settlement of any dispute" would ex facie indicate efforts to resolve a dispute in any manner, not necessarily restricted to initiation of legal proceedings. The Ld. State Commission regretfully failed to notice this subtle difference in the language used in the agreement which was the subject matter in "Headway Finance & Investment Co. Ltd." (Supra) in which there was absolutely no reference to any specific Court, should an issue regarding territorial jurisdiction was to arise.

25. Even otherwise, it is a matter of record that the Complaint all along was filed and prosecuted purely by the Insurer of the actually affected Consumer i.e. "Piramal Health Care Ltd.". On scrutiny of the copy of the Complaint, we find that it was filed under the signatures of the Divisional Manager of the Oriental Insurance Co. Ltd., and was not even verified by the actual Consumer/Complainant No. 1. Even the evidence from the Complainant side was given by the Administrative Officer of the Oriental Insurance Co. Ltd. and not by anyone from "Piramal Health Care Ltd.". Admittedly, the Insurance Company which was arraigned as Complainant No. 2 in the case was not itself a "Consumer" of the Appellant/Opposite Party, although it was obligated to compensate the Complainant on account of the loss caused to its goods during the course of the transit journey. In such event, while it had a legal right to the effect recovery of the insured amount paid by it to the actual "Consumer", from the Service Provider, on account of any negligence/act of omission on the part of the latter, still such claim could have been raised in only a competent Civil Court, and not before the Consumer Forum on the basis of any subrogation, since in any case the Insurance Company itself was never a "Consumer" of the Appellant/Opposite Party at any stage.

26. For the aforesaid reasons, we are of the opinion that there has been a manifest failure of justice in as much as the Ld. State Commission not only entertained the Complaint when its jurisdiction had been excluded by the agreement between the parties, but by also granting the Claim amount directly in favour of the Insurance Company which was certainly not the 'Consumer" of the Appellant.

27. Consequently, the Appeal is allowed after setting the impugned Order passed by the Ld. State Commission, and the Complaint filed by the Respondents, therefore, stands dismissed. The Respondents/ Complainants may however consider having their grievances redressed which are basically Civil in nature, by approaching the competent Forum.

28. Parties to bear their own costs.

29. Pending application(s), if any, also stand disposed off as having been rendered infructuous.