1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1611 of 2008 THE NEW INDIA ASSURANCE COMPANYY LTD., having its Regional Office at 6th & 7th Floor, “B.S.F.C. Building”, Fraser Road, Patna 800001, through Dr. Anil Kumar Mallick duly constituted Attorney of the New India Assurance Company Ltd., P.S. Kotwali, District-Patna…… Petitioner. Versus 1.THE STATE OF BIHAR through Secretary, Food & Supplies, Government of Bihar, New Secretariat, Patna. 2.Tribhuwan Sharma, resident of Sharma Tola, Are Raj, P.O. Are Raj, P.S. Govindganj, District- East Champaran….Respondents. -- For the petitioner: Mr. M.P. Jaiswal,Advocate For Respondent No.2: Mr. K.K.Choubey,Advocate For the State: Mr. Lal Babu Singh,A.C. to AAG-II ----------- 8. 19.8.2009 Heard learned counsels for the petitioner, the State and respondent No.2. The petitioner seeks quashing of the order dated 12.9.2007 passed by the State Consumer Disputes Redressal Commission, Bihar, Patna in Appeal No.655/2004, by which it has confirmed the order dated 24.8.2004 passed by the District Consumer Forum, Motihari in Complaint Case No. 28/2004 with modification regarding the time for renewal of licence and the direction to pay compensation of Rs 50,000/- before expiry of one month from the date of the order. The complainant was an Insurance Agent, whose licence was valid up to 21.9.2002. He deposited his application form along with the requisite fee at the Branch office of the petitioner- New India Assurance Company Limited on 28.5.2002 for the purpose of renewal of his licence. The licence was sent to the Regional Office, which was received after the expiry of the licence and accordingly, the renewal 2 application was rejected with a direction that a fresh application for licence should be made as per the requirement of the provisions in this regard laid down by the Insurance Regulatory and Development Authority ( Licensing of Insurance Agent) Regulations, 2000 issued by I.R.D.A. which is the statutory authority in relation to such matter. The claim of the petitioner-Insurance Company is that it has no authority to act in a manner contrary to the said Regulations laid down by IRDA. Aggrieved by the said action of the petitioner, respondent No.2 filed a complaint before the District Consumer Forum, East Champaran at Motihari being Complaint Case No. 28/2004, which was disposed of by order dated 24.8.2004 directing the petitioner to get the licence of respondent No.2 renewed without late fine within a period of three months from the date of the order. On non-compliance of the same within time, the petitioner was to pay Rs. 50,000/-. Against the said order, the petitioner preferred an appeal before the State Consumer Disputes Redressal Commission being Case No. 655/2004. By order dated 12.9.2007, the appeal was dismissed with the said modification regarding the time by which the order has to be complied with. Learned counsel for the petitioner submits that the relationship of respondent No.2 with the petitioner is not that of a consumer. It is submitted that the petitioner-Insurance Company does not provide any service to the Insurance Agent or a proposed Insurance Agent in terms of Section 2 (1) (o) of the Consumer Protection Act, 1986 and in that situation there can be no question of 3 any deficiency in service for which alone a complaint could have been filed against it in the District Consumer Forum. It is the further stand of learned counsel that the issue regarding the lack of jurisdiction of the District Forum was raised by the petitioner, which has been considered and decided against it by the order dated 24.8.2004 of the District Consumer Forum. It is, thus, submitted that there being no jurisdiction at all in the District Consumer Forum/ State Commission to entertain such matter, the orders passed by them are void ab initio and non est in the eye of law and, accordingly, fit to be set aside. Learned counsel has raised other pleas also stating that the complaint itself was not maintainable without impleading the IRDA as party which is the statutory authority and under whose direction the entire process of grant of licence or its renewal is carried out. With regard to the objection of learned counsel for respondent No.2 regarding the maintainability of the writ petition on account of the existence of alternative remedy, learned counsel for the petitioner relies upon a decision of the Supreme Court in the case of Committee of Management & Anr. Vs. Vice Chancellor & Ors. : 2009 (2) PLJR (SC) 59, in paragraph Nos.20 and 21 of which it has been held as follows: “20. Apart from the fact that a statutory authority cannot consider the validity of a Statute, as has been urged before us by Mr. Choudhari, it is beyond any doubt or dispute that availability of an alternative remedy by itself may not be a ground for the High Court to refuse to exercise its jurisdiction. It may exercise its writ jurisdiction despite the fact that an alternative remedy is available, inter alia, in a case where the same would not be an efficacious one. 21. Furthermore, when an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction although there exists an alternative remedy. In this 4 context, it is appropriate to refer to the observations made by this Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mimbai & Ors., (1998) 8 SCC 1:- “15… But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contigencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged…” [See also Guruvayoor Devaswom Managing Committee & Anr.vs. C.K. Rajan & Ors. (2003) 7 SCC546] In this case, albeit, before us for the first time, the vires of the proviso appended to Section 16 of the Act is in question, besides other points noticed by us hereinbefore.” Learned counsel also seeks support from a Division Bench decision of this Court in the case of Kiul Badua Chandan Command Area Development Agency & Ors.vs. The State of Bihar & Ors. : 2005 (1) PLJR 501, paragraph Nos. 5 and 6 of which are quoted below: “5.So far alternative remedy is concerned, the law is well settled that there is no legal bar in interfering with a matter when an alternative remedy is available. It is a self restraint restriction put by the court. However, it is well settled that when the order is challenged on the ground of want of jurisdiction, violation of fundamental rights or natural justice, the court will interfere with the matter in spite of availability of an alternative remedy of appeal. 6. In the present case, we are of the view that the order is wholly without jurisdiction and as such we are inclined to interfere with the matter. On the ground of availability of an alternative remedy, we are not inclined to reject the appeals.” Learned counsel for respondent No.2, on the other hand, submits that the writ petition is not maintainable. It is contended that the issue of jurisdiction was decided against the petitioner by the District Consumer Forum by its order dated 24.8.2004 and the petitioner having thus acquiesced in the jurisdiction of the District Consumer Protection Forum cannot be permitted to raise the plea 5 regarding jurisdiction in a writ petition. In support of the said stand, learned counsel relies upon a decision of the Supreme Court in the case of Vikas Motor Ltd. vs. P.K.Jain: (1999) 6 SCC 548, in paragraph No.4 of which it is laid down as follows: “4.The objection regarding jurisdiction was decided by the District Forum vide its order dated 26.7.1991 against which no appeal or revision was filed by the appellant and that apparently appears to have become final. After participating in the proceedings and being satisfied with the verdict regarding jurisdiction, it is too late for the appellant to urge, at this stage, that the District Forum had no territorial jurisdiction to entertain the complaint and pass orders under the Consumer Protection Act ( hereinafter referred to as “the Act”). The appellant is estopped from raising the plea of jurisdiction at this stage, on the ground that he cannot be permitted to both approbate and reprobate after submitting and acquiescing to the territorial jurisdiction of the District Forum.” Learned counsel also relies upon a decision of a Division Bench of the Kerala High Court in the case of A.V. Georgekutty vs. State of Kerala and others : AIR 1994 Kerala 19 and a Division Bench decision of the Andhra Pradesh High Court in the case of Tulasi Enterprises.vs. Andhra Pradesh State Consumer Commission, Hyderabad : AIR 1991 Andhra Pradesh 326. In the said decisions it was held by the said Division Benches that where a matter is pending before the Consumer Forum then that Forum has the jurisdiction to consider the question as to whether the matter falls within the provisions of the Consumer Protection Act or not and thus the High Court should interfere only in a rare case and a writ petition in a pending matter before the Consumer Forum is not maintainable. Learned counsel for respondent No.2 also submits that the decision of the Division Bench of this Court in the case of K.B.C. 6 Command Area Development Agency (supra) is obiter dicta and the same cannot be relied upon. It is contended by learned counsel that the fact is that the respondent is providing the service to New India Assurance Company and getting remuneration for the last 25 years. It is stated that he gets 1 to 2% premium as his commission and thus the service provided is not provided free of charge and is, accordingly, “service” within the meaning of Section 2 (1) (o) of the Act. Learned counsel also contends that the issues being raised herein are barred by the provisions of Section 11 C.P.C. read with explanation III and VIII on the principles of res judicata. It is also urged by learned counsel for the respondent that the decision whether the respondent is a consumer or not is purely a question of fact and technical one and, accordingly, the same falls within the exclusive jurisdiction of the Consumer Forum under the Consumer Protection Act and this Court should not entertain the same in its writ jurisdiction, On a consideration of the rival submissions of the parties, this Court is of the view that the mere existence of an alternative remedy does not bar the jurisdiction of this Court to entertain a writ petition. As held by the Apex Court in the case of Committee of Management (supra) as also by the Division Bench of this Court in K.B.C. Command Area Development Agency case (supra) the question of not interfering when an alternative remedy is available is a matter of judicial self restraint and the effect of the availability of 7 such remedy does not act as a bar upon the jurisdiction of this Court to interfere in its writ jurisdiction. It has also been clearly held that where the issue, inter alia, of jurisdiction is involved, even if alternative remedy of appeal is available, the Court will interfere in the matter. In fact in the case of Committee of Management (supra), the Apex Court has gone to the extent that where an order passed by an authority is without jurisdiction then the superior Court shall not refuse to exercise their jurisdiction although there exists an alternative remedy. The reliance by learned counsel for the respondent No.2 on the Division Benches of Kerala and Andhra Pradesh High Courts is of no avail because in those cases the Courts had refused to interfere since the matter was still pending before the Consumer Forum. Further the said decision can only have persuasive value so far as this Court is concerned and it is the Division Bench judgment of this Court which is binding upon it. The submission of learned counsel for respondent No.2 that the Division Bench decision of this Court is obiter dicta has no substance as the said point was an issue raised by the party and was squarely decided. The relevant provisions of the Consumer Protection Act, 1986 for the present purpose are contained in Section 2 (1) (c ), (d), (g) and (o) which are quoted below: “ 2 (1) ( c ) “complaint” means any allegation in writing made by a complainant that- (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; (ii) the goods bought by him or agreed to be bought by him suffer from one or more 8 defects; (iii) The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; (iv) A trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price- (a) fixed by or under any law for the time being in force; (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties; (v) goods which will be hazardous to life and safety when used are being offered for sale to the public- (a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force; (b) if the trader could have known with due diligence that the goods so offered are unsafe to the public; (vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety; with a view to obtaining any relief provided by or under this Act; (d) “consumer” means any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person, who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; (g) “deficiency” means any fault, imperfection, 9 shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; (o) “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;” It is evident on a consideration of the aforesaid provisions that a complaint with respect to service provided can only be entertained if there is deficiency in providing the said service by the person concerned to the consumer. It is admitted by respondent No.2- complainant that he has been providing service for the last 25 years to the petitioner New India Assurance Company on a remuneration of 1 to 2 % of the premium and not free of charge. It is not his case that it is the Insurance Company that has been providing him service and there was deficiency in the provision of such service. In that view of the matter, it can only be the Insurance Company that would be the consumer and not the complainant-respondent No.2 who claims that he has been providing service on remuneration. A complaint can only be lodged against the provider of service by the recipient and not vice versa as has been sought to be done in the present matter. More over it has been rightly submitted by learned counsel for the petitioner that the appointment of any Insurance Agent does not come under the category of service under the Act. In 10 any view of the matter, an Insurance Agent does not receive any service from the Insurance Company, rather he provides service to the Insurance Company and in the said circumstances, he cannot claim to be a consumer of service. Thus, no complaint can lie at the instance of an Insurance Agent before the Consumer Forum. Even apart from the aforesaid submission, grant or renewal of licence certainly does not fall in the category of provision of service and therefore there can be no question of any deficiency of service with respect to it. Hence no complaint can be entertained by the Consumer Forum in such matter. The submission of learned counsel for the respondent No.2 that the plea regarding jurisdiction having been raised and negatived by the order dated 24.8.2004 passed by the District Consumer Forum and therefore the petitioner cannot be permitted to raise it in writ jurisdiction is only noticed to be rejected. In this context reliance upon the decision in the case of Vikas Motor is of no avail as in the said case the issue of jurisdiction was decided on 26.7.1991 against which no appeal was filed and thereafter, the appellant before the Supreme Court had participated in the proceedings and the final order of the Consumer Forum was passed on merit. The appellant was thus estopped from raising the plea of jurisdiction at that stage, as he had submitted to the territorial jurisdiction of the District Consumer Forum. In the present matter, there can be no question of estoppel as the question of jurisdiction was decided while passing the final order by the District Consumer 11 Forum and not at any prior stage and thus it could not have been challenged in appeal by the petitioner earlier for deciding otherwise before the passing of final order by the Forum. The decision in the case of Vikas Motor (supra) further does not apply to the present matter as that was a case relating to the territorial jurisdiction of the Consumer Forum. It is a well settled proposition that an objection regarding territorial jurisdiction has to be taken at the earliest. Once a party submits to the territorial jurisdiction of a tribunal, which does not otherwise suffer from any inherent lack of jurisdiction to decide on the subject matter of dispute, he cannot be subsequently permitted to challenge its jurisdiction. The position is quite different in a case where the particular tribunal or authority does not have the inherent jurisdiction to decide the matter and if such an authority hears such matter then its decision can be challenged at any stage as non est and void ab initio, and there can be no question of any waiver or acquiescence. In the present case, the challenge to jurisdiction has been raised both before the Forum and at the appropriate stage by filing a writ petition in this Court against the order of the District Forum and the State Consumer Commission. Thus on a consideration of the entire facts and circumstances of the case and in the light of the aforesaid discussions, this Court is clearly of the view that the District Consumer Forum had no jurisdiction to entertain a complaint of the present nature as the complainant was not a consumer and no service at all was being provided to him by the petitioner- Insurance Company and thus there 12 is no question of any deficiency of service. The writ application is, accordingly, allowed and the order dated 12.9.2007 passed by the State Consumer Disputes Redressal Commission, Bihar in Appeal No.655/2004, as also the order dated 24.8.2004 passed by the District Consumer Forum, East Champaran at Motihari in Complaint Case No. 28 of 2004 are both quashed and set aside. However, in the facts and circumstances of the case, there shall be no order as to costs. VPS (Ramesh Kumar Datta, J.)