whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter. =We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure.

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.166 OF 2012 (Arising out of Special Leave Petition (Crl.) No.1548/2011) VASANTI DUBEY . Appellant Versus STATE OF MADHYA PRADESH .. Respondent J U D G E M E N T GYAN SUDHA MISRA, J. Leave granted. 2. The appellant herein has challenged the order dated 24.1.2011 passed by the High Court of Judicature at Jabalpur by which the Criminal Revision Petition No. 839/2004 was dismissed holding therein that the impugned order passed by the Special Judge (under the Prevention of Corruption Act, 1988) District Narsinghpur did not suffer from any apparent error of jurisdiction. 3. In the backdrop of the facts and circumstances of the case to be related hereinafter, the question inter alia which falls for determination by this Court is whether the Magistrate/Special Judge could straightway direct for submission of charge-sheet in case he refused to accept final report/closure report of the police/investigating agency and thereafter direct the police to submit charge-sheet in case he was of the opinion that the case was not fit to be closed and it required to be proceeded further. The question which also requires consideration is whether the Special Judge could refuse to accept closure report and direct reinvestigation of the case for the second time in order to proceed further although he was confronted with the legal impediment indicating lack of sanction for prosecution in the matter. 4. However, the question for determination is not a new or an extra-ordinary one as the question has cropped up time and again before this Court as to what course is left open for a Magistrate in a situation when the police submits final report under Section 173, Cr.P.C. or closure report is 2 submitted by any other investigating agency stating that the case is not made out on account of lack of evidence or for any other reason. 5. But before we proceed to deal with the question involved herein, it is essential to state the salient facts and circumstances of this matter which has reached upto this Court by way of this special leave petition. On perusal of the materials on record, it emerges that the appellant - Smt. Vasanti Dubey was posted as the Block Development Officer, Janpad Panchayat, Gotegon, Narsinghpur (M.P.) and in that capacity was competent to award a contract for constructing concrete road in the village Baroda. The contract was awarded to one Dinesh Kumar Patel who was the Sarpanch of village Baroda for constructing the concrete road in the village and was initially paid a sum of Rs.15,000/- vide cheque No. 101626 dated 27.2.2001 for execution of the contract. He was further paid a sum of Rs.15,000/- vide cheque No.101629 dated 8.5.2001 for execution of the contract which was awarded to him. The awardee Sarpanch - Dinesh Kumar Patel was still further paid Rs.10,000/- vide cheque No.101635 dated 23.5.2001 and the balance payment of Rs. 10,000/- 3 was also finally paid to him vide cheque No.319586 dated 1.8.2001 towards full and final settlement of the consideration for the above mentioned contract. Admittedly, all the afore- mentioned payments were made to the Sarpanch contractor - Dinesh Kumar Patel which were due to be paid to him and the cheques were duly encashed. 6. However, the Sarpanch/contractor after several days of receipt of the final payment, filed a complaint against the appellant/BDO - Smt. Vasanti Dubey in the Special Police Establishment, Lokayukta Office, Jabalpur stating inter-alia that the complainant - Dinesh Kumar Patel had been paid a sum of Rs.40,000/- only with respect to the contract awarded to him and when the balance payment of Rs.10,000/- was demanded by him, the appellant demanded a sum of Rs.3,000/- as commission. The complainant's further case is that he although paid a sum of Rs.500/-, he felt aggrieved and hence did not pay any further amount to the appellant but preferred to lodge a complaint on 7.8.2001 in regard to the illegal demand made by her. Since the alleged incident was falling within the jurisdiction of the Special Police Establishment, Lokayukta Office, Bhopal, a case was 4 registered against the appellant on the basis of the complaint on the same date i.e. 7.8.2001 under Sections 7 and 13(1)(d) read with Section 13(1)(2) of the Prevention of Corruption Act, 1988. 7. The Special Police Establishment, Lokayukta Office, proceeded to investigate the matter and carried out detailed investigation and also recorded statements of various persons including that of the complainant on 26.3.2002. In course of investigation, the complainant resiled from his earlier version and stated that he had made a false complaint at the instance of someone else whose name he did not divulge. Further statement of one Shankar Singh was also recorded that the complainant had paid Rs.2,500/- to the appellant when she had gone to the bathroom and the money thereafter was recovered from her. The police also seized various documents from the office of the BDO located in the office of Janpad Gotegaon which included the files containing the details of the cheques from which payment had been made to the complainant. After completion of the investigation by the Office of Lokayukta who was competent to get the matter investigated by the police and in view of the statement of the 5 complainant that he made false complaint at the instance of someone else as also on account of the fact that the entire payment except Rs. 10,000/- had been made by the appellant - Smt. Vasanti Dubey to the complainant prior to the date on which the complaint was filed, it was inferred that the complaint did not disclose commission of any offence and hence the Lokayukta directed that a closure report be filed in regard to the complaint lodged against Vasanti Dubey and appropriate action be initiated against the complainant for lodging a false complaint. 8. Accordingly, the closure report was submitted before the Special Judge, Narsinghpur but by order dated 5.8.2002, the Special Judge refused to accept the same. He thus rejected the closure report and thereafter directed the police to file charge-sheet in the case against the appellant against which the State Government filed a criminal revision bearing Criminal Revision No. 1206/2002 in the High Court challenging the order of the Special Judge who refused to accept the closure report and issued direction for submission of the charge-sheet against the appellant. 6 9. The learned single Judge of the High Court by order dated 14.1.2003 was pleased to allow the Revision Petition and quashed the order passed by the Special Judge who had refused to accept the closure report and had directed submission of charge-sheet against the appellant on the ground that there is no power expressly or impliedly conferred under the Code on a magistrate to call upon the police to submit a charge-sheet when police had sent a report under Section 169 of the Code stating that there is no case made out for sending up an accused for a trial. The learned single Judge took this view relying upon the ratio of the authoritative pronouncement of this Court delivered in the matter of Abhinandan Jha & Ors. Vs. Dinesh Mishra1 wherein it was observed that the functions of the magistrate and the police are entirely different and though the magistrate may or may not accept the report and take action according to law, he cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his view. The learned Judge also took notice of the observation of the Supreme Court which had further been pleased to hold therein that the magistrate however, while 1 AIR 1968 SC 117 = (1967) 3 SCR 668 7 disagreeing with a final report/closure report of a case can take cognizance under Section 190(1)(c) or order further investigation under Section 156(3) of the Code of Criminal Procedure but cannot straightaway direct for submission of charge-sheet to the police. Applying the aforesaid test as laid down by this Court in the case of Abhinandan Jha (supra), the impugned order passed by the Special Judge, Narsinghpur was held to be illegal and without jurisdiction and consequently was quashed. However, the learned single Judge had added an observation in the judgment and order that if the learned Special Judge thinks it fit and appropriate to take cognizance, the same can be taken under Section 190(c) of the Code of Criminal Procedure or he may direct the Lokayukta police for further investigation. As already stated the revision accordingly was allowed and the impugned order of the Special Judge dated 5.8.2002 was quashed. 10. The Special Police Establishment, Lokayukta Office, Jabalpur, thereafter again got the complaint examined in the light of the statement of the witnesses and the evidence and noticed that there were no materials against the appellant to proceed as she had made all payments from 27.2.2001 up to 8 2.8.2001 yet a complaint dated 7.8.2001 was subsequently filed by the complainant - Dinesh Kumar Patel alleging that the appellant had demanded commission/bribe of Rs.2,500/- from the complainant in order to clear his bills which complaint was found to be untrustworthy and hence unacceptable since all payments had already been received by the complainant prior to the lodgement of complaint specially in view of the subsequent version of the complainant that he had lodged a malicious complaint at the instance of a rival of the appellant. 11. The Special Police Establishment, Lokayukta Office, therefore, once again filed an application/closure report before the Special Judge, Narsinghpur but the Special Judge, Narsinghpur this time again rejected the closure report by order dated 18.5.2004 observing therein that it had been clarified by order dated 5.8.2002 that there is sufficient basis to take cognizance against the appellant - Smt. Vasanti Dubey and there is no change in the circumstance on the basis of which closure report can be accepted clearly overlooking that the High Court had already quashed the order dated 5.8.2002 passed by the Special Judge as it had 9 held that the Special Judge had no jurisdiction to direct the police to submit charge sheet in case he refuses to accept closure report although he could take cognizance under Section 190(C) of the Cr.P.C. or direct further investigation of the case. In pursuance of this, further investigation was done by the Special Police Establishment, Lokayukta Office and closure report was submitted after completion of reinvestigation. On this occasion, when the Special Judge refused to accept closure report, it was his statutory and legal duty to either pass a fresh order taking cognizance if he refused to dismiss the complaint and proceed with the enquiry under Section 200 Cr.P.C. by examining the complainant after which he had to record reasons why he disagreed with the closure report. But the Special Judge did not discharge this legal obligation and simply in a mechanical manner directed the investigating agency to obtain sanction to prosecute the appellant despite the fact that the investigating agency had consistently reported that sufficient evidence was not there to justify prosecution of the appellant. At this stage, if the Special Judge found that there were sufficient ground to proceed, it could have taken cognizance 10 but having been confronted with the legal impediment that it could not proceed without sanction for prosecution, the Special Judge directed to reinvestigate the matter once again for the second time and also directed the investigating agency to obtain sanction for prosecution. 12. Hence, the appellant assailed the order of the Special Judge dated 18.5.2004 by filing a criminal revision petition No. 839/2004 but the High Court on this occasion dismissed the revision petition and was pleased to hold that the order of the Special Judge who had refused to accept the closure report for the second time did not suffer from any apparent error of jurisdiction. The learned single Judge while dismissing the revision petition observed that it shall still be open to the appellant to raise all such pleas as are available to her under the law in case charge-sheet is filed against her. 13. However, the learned single Judge completely missed the ratio laid down in the case of Abhinandan Jha (supra) which had been relied upon by the learned single Judge of the High Court on an earlier occasion also when the order of the Special Judge refusing to accept closure report 11 and directing submission of charge-sheet was quashed and the entire legal position was summed up in unequivocal terms as follows:- "There is no power, expressly or impliedly conferred under the Code, on a Magistrate to call upon the police to submit a charge- sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the magistrate and the police are entirely different, and though, the Magistrate may or may not accept the report, and take suitable action according to law, he cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view." This position has been further reiterated and reinforced in a recent judgment of this Court delivered in the matter of Ram Naresh Prasad vs. State of Jharkhand2, wherein it has been held that when the police submitted a final report of investigation of the case which in colloquial term is called closure report, the magistrate cannot direct the police to submit the charge-sheet. However, on the basis of the material in the charge-sheet, he may take cognizance or direct further investigation. In fact, this position is clearly laid down 2 (2009) 11 SCC 299 12 under Section 190 read with Section 156 of the Cr.P.C. itself and the legal position has been time and again clarified by this Court in several pronouncements viz. in the matter of Bains vs. State3, wherein their lordships have summarised the position as follows:- "1. When a Magistrate receives a complaint, he may, instead of taking cognizance at once under Section 190(1)(a) direct a police investigation under Section 156(3) ante; 2. Where, after completion of the investigation, the police sends an adverse report under Section 173(1), the Magistrate may take any of the following steps : "i. If he agrees with police report, and finds that there is no sufficient ground for proceeding further, he may drop the proceeding and dismiss the complaint. ii. He may not agree with the police report and may take cognizance of the offence on the basis of the original complaint, under Section 190(1)(a) and proceed to examine the complainant under Section 200. iii. Even if he disagrees with the police report, he may either take cognizance at once upon the complaint, direct an enquiry under Section 202 and after such 3 AIR 1980 SC 1883 = 1980 (4) SCC 631 13 enquiry take action under Section 203. However, when the police submits a final report or closure report in regard to a case which has been lodged by the informant or complainant, the magistrate cannot direct the police to straightway submit the charge- sheet as was the view expressed in the matter of Abhinandan Jha (supra) which was relied upon in the matter of Ram Naresh Prasad (supra)." 14. Thus it is undoubtedly true that even after the police report indicates that no case is made out against the accused, the magistrate can ignore the same and can take cognizance on applying his mind independently to the case. But in that situation, he has two options (i) he may not agree with the police report and direct an enquiry under Section 202 and after such enquiry take action under Section 203. He is also entitled to take cognizance under Section 190 Cr.P.C. at once if he disagrees with the adverse police report but even in this circumstance, he cannot straightway direct submission of the charge-sheet by the police. 15. In the light of the aforesaid legal position, when we examined the merit of the instant matter, we noticed that the order dated 18.5.2004 passed earlier by the Special Judge 14 straightway directing the police to submit charge-sheet was quashed by the learned single Judge of the High Court and liberty was left open to him either to take cognizance under Section 190(c) of the Cr.P.C. or direct the Lokayukta Police for further investigation. In spite of this order, the Special Judge did not pass an order taking cognizance which he could have done under Section 190(c) of the Cr.P.C. However, he chose to direct office of the Lokayukta to enter into further investigation which after further investigation assigned reasons given out hereinbefore, stating that in view of the statement of the complainant that he had complained at the instance of a rival of the accused as also the fact that entire payment had already been made by the complainant prior to the lodgement of complaint, no case was made out against the complainant. In spite of this, if the Special Judge considered it legal and appropriate to proceed in the matter, he could have taken cognizance upon the complaint and could have proceeded further as per the provision under Section 200 of the Cr.P.C. by examining the complainant and if there were sufficient ground for proceeding, he could have issued process for attendance of the accused. However, such process could 15 not have been issued, unless the magistrate found that the evidence led before him was contradictory or completely untrustworthy. Conversely, if he found from such evidence that sufficient ground was not there for proceeding i.e. no prima facie case against the accused was made out, he had to dismiss the complaint, since the complaint did not disclose the commission of any offence. But instead of taking any step either by issuing the process or dismissing the complaint at once, he could have taken immediate step as a third alternative to make an enquiry into the truth or falsehood of the complaint or for an investigation to be made by the police for ascertaining whether there was any prima facie evidence so as to justify the issue of process. In short, on receipt of a complaint, the magistrate is not bound to take cognizance but he can without taking cognizance direct investigation by the police under Section 156(3) of Cr.P.C. Once, however, he takes cognizance he must examine the complainant and his witnesses under Section 200. Thereafter, if he requires police investigation or judicial enquiry, he must proceed under Section 202. But in any case he cannot direct the Police to straightaway file charge-sheet which needs to be highlighted 16 as this point is often missed by the Magistrates in spite of a series of decisions of this Court including the case of Abhinandan Jha (supra) and Ram Naresh Prasad (supra) referred to hereinbefore. 16. When the facts of the instant matter is further tested on the anvil of the aforesaid legal position, we find that the Special Judge instead of following the procedure enumerated in the Cr.P.C. appeared to insist on rejecting the closure report given by the Special Police Establishment, Lokayukta Office and in the process consistently committed error of law and jurisdiction not only once, but twice. On the first occasion when the order of the Special Judge was quashed and set aside by the High Court granting liberty to the Special Judge either to take cognizance under Section 190(c) or order for further investigation as he had committed an error of jurisdiction by directing the police to straightway submit the charge-sheet against the accused-petitioner, the Special Judge did not consider it appropriate to take cognizance but ordered for further investigation by Lokayukta Police and when the matter was reinvestigated by the Special Police Establishment of the Lokayukta Office, the Special 17 Judge in spite of the finding of the investigating agency holding that no further material to proceed in the matter was found, refused to accept the closure report and this time it further realized that it could not proceed in the matter as there was no sanction for prosecution, which the Special Judge obviously noticed since he was not in a position to take cognizance directly under Sections 7, 13(1)(d) of the Prevention of Corruption Act in absence of sanction which was a statutory requirement. In spite of this, he refused to accept closure report but recorded a direction to obtain sanction for prosecution of the appellant and thereafter ordered for reinvestigation of the complaint for the second time creating a peculiar and anomalous situation which is not in consonance with the provision of the Code of Criminal Procedure enumerated under the Chapter relating to conditions requisite for initiation of proceedings. 17. It may be worthwhile to highlight at this stage that the enquiry under Section 200 Cr.P.C. cannot be given a go- bye if the Magistrate refuses to accept the closure report submitted by the investigating agency as this enquiry is legally vital to protect the affected party from a frivolous complaint 18 and a vexatious prosecution in complaint cases. The relevance, legal efficacy and vitality of the enquiry enumerated under Section 200 Cr.P.C., therefore, cannot be undermined, ignored or underplayed as non compliance of enquiry under Section 200 Cr.P.C. is of vital importance and necessity as it is at this stage of the enquiry that the conflict between the finding arrived at by the investigating agency and enquiry by the Magistrate can prima facie justify the filing of the complaint and also offer a plank and a stage where the justification of the order of cognizance will come to the fore. This process of enquiry under Section 200 Cr.P.C. is surely not a decorative piece of legislation but is of great relevance and value to the complainant as well as the accused. 18. It is no doubt possible to contend that at the stage of taking cognizance or refusing to take cognizance, only prima facie case has to be seen by the Court. But the argument would be fit for rejection since it is nothing but mixing up two different and distinct nature of cases as the principle and procedure applied in a case based on Police report which is registered on the basis of First Information Report cannot be allowed to follow the procedure in a complaint case. A case 19 based on a complaint cannot be allowed to be dealt with and proceeded as if it were a case based on Police report. While in a case based on Police report, the Court while taking cognizance will straightaway examine whether a prima facie case is made out or not and will not enter into the correctness of the allegation levelled in the F.I.R., a complaint case requires an enquiry by the Magistrate under Section 200 Cr.P.C. if he takes cognizance of the complaint. In case he refuses to take cognizance he may either dismiss the complaint or direct the investigating agency to enter into further investigation. In case, he does not exercise either of these two options, he will have to proceed with the enquiry himself as envisaged and enumerated under Section 200 Cr.P.C. But, he cannot exercise the fourth option of directing the Police to submit a charge-sheet as such a course is clearly not envisaged under the Cr.P.C. and more so in a complaint case. As already stated, this position can be clearly deduced from the catena of decisions including those referred to hereinbefore but needs to be reinstated as time and again this magisterial error reaches up to this Court for rectification by judicial intervention. 20 19. The instant matter is one such example and is one step ahead wherein the Special Judge was confronted with yet another legal impediment of lack of sanction for prosecution giving rise to a peculiar situation when he noticed and recorded that he could not proceed in the matter under the Prevention of Corruption Act without sanction for prosecution, but in spite of this he directed to obtain sanction, ordered for reinvestigation and consequently refused to accept closure report. 20. Since the Special Judge in the instant matter refused to accept the closure report dated 18.05.2004 without any enquiry or reason why he refused to accept it which was submitted by the Special Police Establishment, Lokayukta Office, Jabalpur after reinvestigation for which reasons had been assigned and there was also lack of sanction for prosecution against the appellant which was necessary for launching prosecution under the Prevention of Corruption Act, we deem it just and appropriate to hold that the Special Judge clearly committed error of jurisdiction by directing reinvestigation of the matter practically for the third time in spite of his noticing that sanction for prosecution was also 21 lacking, apart from the fact that the Special Police Establishment, Lokayukta Office, after reinvestigation had given its report why the matter was not fit to be proceeded with. 21. We are therefore of the considered view that the Special Judge in the wake of all these legal flaws as also the fact that the Special Judge under the circumstance was not competent to proceed in the matter without sanction for prosecution, could not have ordered for reinvestigation of the case for the third time by refusing to accept closure report dated 18.05.2004. This amounts to sheer abuse of the process of law resulting into vexatious proceeding and harassment of the appellant for more than 10 years without discussing any reason why he disagreed with the report of the Lokayukta and consequently the closure report which would have emerged if the Special Judge had carefully proceeded in accordance with the procedure enumerated for initiation of proceeding under the Code of Criminal Procedure. 22. In view of the aforesaid discussion based on the existing facts and circumstances, we deem it just and appropriate to set aside the impugned order passed by the 22 Special Judge refusing to accept the closure report dated 18.05.2004 and consequently the judgment and order of the High Court by which the order of the Special Judge was upheld, also stands quashed and set aside. Accordingly, the appeal is allowed. ...............................J (Asok Kumar Ganguly) ..............................J (Gyan Sudha Misra New Delhi, January 17, 2012 23

jurisdiction of a court under an agreement confined one court is valid ?=whether, if two Courts have jurisdiction to entertain a Suit, whether the parties may by mutual agreement exclude the jurisdiction of one of the Courts, having regard to the =”Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act and cannot also be understood as parties contracting against the statute.”

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) No.10184 of 2008 A.V.M. SALES CORPORATION ... PETITIONER VS. M/S. ANURADHA CHEMICALS PVT. LTD. ... RESPONDENT J U D G M E N T ALTAMAS KABIR, J. 1. On 23rd December, 1988, the parties to the Special Leave Petition entered into an Agreement at Calcutta 2 for supply of chemicals manufactured by the Respondent to the Petitioner. In continuation of the aforesaid Agreement, the parties arrived at a Mutual Understanding on 15th May, 1989, whereby the Respondent would adjust the advance lying with it and would exclusively supply to the Petitioner its two products, namely, Sodium Chromate and Sodium Dichromate in West Bengal, Bihar, Orissa and Assam. The Understanding between the parties included other terms and conditions as well. The terms of the Understanding entered into between the parties were reduced into writing in an agreement and the same was executed at Calcutta on 5th August, 1989, reiterating the terms of the Understanding and containing an additional clause indicating that "Any dispute arising out of this agreement will be subject to Calcutta jurisdiction only." [Emphasis supplied]. 2. Since certain differences arose between the parties relating to the supply of goods in question, the 3 Petitioner herein filed Original Suit No.588 of 1991 in the Calcutta High Court on 27th August, 1991, for recovery of its alleged dues from the Respondent, after giving due adjustment of the amount of the Invoices raised by the Respondent and filed its claim only for the balance amount, along with penalties etc. Upon receiving summons of the suit filed by the Petitioner, the Respondent on 12th September, 1991, filed a separate suit against the Petitioner at Vijayawada for recovery of a sum of 3,86,453.05, treating the Purchase Order dated 12th February, 1990, to be independent of the Agreement and also sought recovery of supplies made under the Invoices raised by the Respondent upon the Petitioner. 3. The Petitioner duly contested the Suit filed by the Respondent by filing Written Statement, along with relevant documents, in support of its case. Out of the several issues raised by the Petitioner, one was the issue relating to the jurisdiction of the Vijayawada 4 Court to entertain the Suit on account of the exclusion clause by which all actions arising out of the Agreement and the Memorandum of Understanding were to be subject to the Calcutta jurisdiction only. The other issue of importance was with regard to adjustment, inasmuch as, the Purchase Order dated 12th February, 1990, was treated as independent of the Understanding and Agreement arrived at between the parties. Rejecting the objection relating to jurisdiction, the Principal Senior Civil Judge, Vijayawada, by his judgment and decree dated 5th March, 1999, decreed the Respondent's Suit (Original Suit No.519 of 1991) with costs for a sum of 3,86,453.05, together with interest at the rate of 12% per annum, from the date of the Suit till realisation of the principal amount of 2,98,267.50. The Petitioner filed First Appeal No.1352 of 1999 before the Andhra Pradesh High Court against the aforesaid judgment and decree dated 5th March, 1999. By judgment and order dated 18th January, 2007, the learned Single Judge of the High 5 Court dismissed the Appeal filed by the Petitioner. It is against the aforesaid judgment of the learned Single Judge of the Andhra Pradesh High Court in the First Appeal preferred by the Petitioner that the present Special Leave Petition has been filed. 4. Apart from the other grounds taken with regard to factual aspect of the matter, grounds have also been taken regarding the exclusive jurisdiction of the Courts at Calcutta agreed to by the parties in the Agreement and whether the same was not binding upon the parties. A further ground has also been taken as to whether in breach of the Agreement, the Respondent was entitled to invoke the jurisdiction of a Court at Vijayawada, whose jurisdiction stood ousted by the Agreement entered into between the parties. 5. On the strength of the pleadings of the parties, five issues were framed by the Trial Court, of which the first issue was whether the Court at Vijayawada had 6 territorial jurisdiction to entertain the suit. By his judgment and decree dated 5th March, 1999, in O.S. No.519 of 1991, the learned Principal Senior Civil Judge, Vijayawada, held that the Court at Vijayawada had jurisdiction to entertain the Suit as part of the cause of action for the suit arose within its jurisdiction. The learned Trial Judge, accordingly, decreed the Suit, as indicated hereinabove. In the First Appeal, being F.A. No.1352 of 1992, the learned Single Judge of the Andhra Pradesh High Court observed that the main contention of the Appellant before the High Court, who is the Petitioner herein, was that the Principal Senior Civil Judge, Vijayawada, had no jurisdiction to entertain the Suit as no part of the cause of action had arisen at Vijayawada. According to the Petitioner, its place of business was at Calcutta and the Agreement for the supply of the goods in question was also entered into at Calcutta. The goods were to be delivered at Calcutta and payment in respect thereof was to be made at Calcutta and, accordingly, 7 the Court at Vijayawada had no territorial jurisdiction to entertain the Suit under Section 20 of the Code of Civil Procedure as no part of the cause of action had arisen within its jurisdiction. It was also emphasised that in the Agreement which was made Exh.D-5, it has been stipulated in Column 13 that any dispute arising out of the Agreement would be subject to the Calcutta jurisdiction only. 6. The question involved in this Special Leave Petition has several dimensions, including the question as to whether the parties to an agreement can contract in violation of Sections 23 and 28 of the Indian Contract Act, 1872. Obviously, the parties cannot contract against the statutory provisions. A connected question would arise as to whether the parties to an agreement can confer jurisdiction on a Court which has no territorial or pecuniary jurisdiction to entertain a matter? The answer to the second question is also in the negative. However, in this case a slightly 8 different question arises, namely, as to whether if two Courts have jurisdiction to try a suit, can the parties to an agreement mutually agree to exclude the jurisdiction of one Court in preference to the other and as to whether the same would amount to violation of the provisions of Sections 23 and 28 of the Indian Contract Act? The said question has been answered in the affirmative by the Trial Court and has been upheld by the High Court. 7. The question which has been raised in this Special Leave Petition is not new and has been considered by this Court earlier in several decisions. We are, therefore, required to consider as to whether the cause of action for the Suit filed by the Respondent in Vijayawada arose within the jurisdiction of the Court of the Principal Senior Civil Judge at Vijayawada, exclusively, or whether such cause of action arose both in Vijayawada and also in Calcutta? As has been mentioned hereinbefore on behalf of the Petitioner, it 9 had been urged that the entire cause of action for the Suit had arisen within the jurisdiction of the Calcutta Courts and the Courts at Vijayawada had no jurisdiction whatsoever to entertain a suit pertaining to the Understanding and Agreement arrived at between the parties. However, it was contended on behalf of the Respondent that its Registered Office was situate at Vijayawada, the Invoices for the goods were raised at Vijayawada, the goods were dispatched from Vijayawada and the money was payable to the Plaintiff or its nominee at Vijayawada, by way of Demand Drafts and, accordingly, the Courts at Vijayawada had jurisdiction to entertain the Suit. 8. It has often been stated by this Court that cause of action comprises a bundle of facts which are relevant for the determination of the lis between the parties. In the instant case, since the invoices for the goods in question were raised at Vijayawada, the goods were dispatched from Vijayawada and the money was 10 payable to the Respondent or its nominee at Vijayawada, in our view, the same comprised part of the bundle of facts giving rise to the cause of action for the Suit. At the same time, since the Petitioner/ Defendant in the Suit had its place of business at Calcutta and the Agreement for supply of the goods was entered into at Calcutta and the goods were to be delivered at Calcutta, a part of the cause of action also arose within the jurisdiction of the Courts at Calcutta for the purposes of the suit. Accordingly, both the Courts within the jurisdiction of Calcutta and Vijayawada had jurisdiction under Section 20 of the Code of Civil Procedure to try the Suit, as part of the cause of action of the Suit had arisen within the jurisdiction of both the said Courts. 9. This leads us to the next question as to whether, if two Courts have jurisdiction to entertain a Suit, whether the parties may by mutual agreement exclude the jurisdiction of one of the Courts, having regard to the 11 provisions of Sections 23 and 28 of the Indian Contract Act, 1872. Section 23 of the aforesaid Act indicates what considerations and objects are lawful and what are not, including the considerations or objects of an agreement, if forbidden by law. Section 28 of the Act, which has a direct bearing on the facts of this case, clearly spells out that any agreement in restraint of legal proceedings is void. For the sake of reference, the same is extracted hereinbelow : "28. Agreements in restrain of legal proceedings, void - [Every agreement, (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or (b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent.] Exception 1 : Saving of contract to refer to arbitration dispute that may arise.- This 12 section shall not render illegal contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2 : Saving of contract to refer question that have already arisen. - Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to reference to arbitration." 10. Basically, what Section 28 read with Section 23 does, is to make it very clear that if any mutual agreement is intended to restrict or extinguish the right of a party from enforcing his/her right under or in respect of a contract, by the usual legal proceedings in the ordinary Tribunals, such an agreement would to that extent be void. In other words, parties cannot contract against a statute. 13 11. One of the earlier cases in which this question had arisen, was the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem [AIR 1989 SC 1239 = (1989) 2 SCC 163]. In the said case, the cause of action for the suit had arisen both within the jurisdiction of the Civil Court at Salem in Andhra Pradesh and in the Civil Court of Kaira in the State of Gujarat. The question arose as to whether since by mutual agreement the jurisdiction had been confined only to the Courts within Kaira jurisdiction, the suit filed at Salem was at all maintainable? This Court, inter alia, held that there could be no doubt that an agreement to oust absolutely the jurisdiction of the Court will be unlawful and void, being against public policy. However, such a result would ensue if it is shown that the jurisdiction to which the parties had agreed to submit had nothing to do with the contract. If, on the other hand, it is found that the jurisdiction agreed would also be a proper jurisdiction in the matter of the contract, it could not be said 14 that it ousted the jurisdiction of the Court. After considering the facts involved in the said case and the submissions made on behalf of the parties, this Court observed as follows : "Thus it is now a settled principle that where there may be two or more competent Courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such Court to try the dispute which might arise as between themselves, the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague, it is not hit by Sections 23 and 28 of the Contract Act and cannot also be understood as parties contracting against the statute." 12. A similar view was taken by this Court in Angile Insulations vs. Davy Ashmore India Ltd. & Anr. [(1995) 4 SCC 153], wherein the Hon'ble Judges while referring to the decision of this Court in A.B.C. Laminart Pvt. Ltd.'s case (supra), inter alia, held that where two Courts have jurisdiction consequent upon the cause of action or a part thereof arising therein, if the parties agree in clear and unambiguous terms to exclude 15 the jurisdiction of the other, the said decision could not offend the provisions of Section 23 of the Contract Act. In such a case, the suit would lie in the Court to be agreed upon by the parties. 13. This Court has consistently taken the same view in several subsequent cases. We may refer to one such decision of this Court in Hanil Era Textiles Ltd. Vs. Puromatic Filters (P) Ltd. [AIR 2004 SC 2432 = (2004) 4 SCC 671], where part of the cause of action arose at both Delhi and Bombay. This Court held that the mutual agreement to exclude the jurisdiction of the Delhi Courts to entertain the suit was not opposed to public policy and was valid. 14. As indicated herein earlier, in this case also the cause of action for the Original Suit No.519 of 1991, filed by the Respondent before the Principal Senior Civil Judge, Vijayawada, arose partly within the 16 jurisdiction of the Calcutta Courts and the Courts at Vijayawada. 15. Having regard to the provisions referred to hereinabove, though the Courts at Vijayawada would also have jurisdiction, along with the Courts at Calcutta, to entertain and try a suit relating to and arising out of the Agreement dated 23rd December, 1988, and the Mutual Understanding dated 15th May, 1989, such jurisdiction of the Courts at Vijayawada would stand ousted by virtue of the exclusion clause in the Agreement. 16. The Special Leave Petition has, therefore, to be allowed. The decree passed by the Principal Senior Civil Judge, Vijayawada in O.S. No.519 of 1991, and the impugned judgment of the High Court dated 18th January, 2007, are set aside. The Trial Court at Vijayawada is directed to return the plaint of the Original Suit No.519 of 1991 to the Plaintiff to present the same 17 before the appropriate Court in Calcutta having jurisdiction to try the suit. 17. The Special Leave Petition is, accordingly, allowed, but there will be no order as to costs. ................................................J. (ALTAMAS KABIR) New Delhi .............................................J. Dated: 17.01.2012 (CYRIAC JOSEPH)

since the matter related to non-dispatch of parts of the body organs e.g. lungs and brain fluid of the deceased son of the appellant for the purpose of research, which has been dismissed by the State Commission-= The complainant has claimed a compensation of Rs.9.75 Lakhs for the loss and the injury occasioned to him. Having regard to the mental state in which the complainant would have been at the relevant time just after the death of his young 19 year old son and the noble cause of research for the humanity at large, the episode must have been a life-time setback to the complainant. No amount of money can suitably compensate the complainant for the kind of loss and injury suffered by him and it is almost impossible to quantify the same. We, therefore, find it a fit case where we must award a lump sum compensation of Rs.5.00 Lakhs to the complainant, which should adequately meet the ends of justice. The compensation shall be payable by respondents no. 1 to 3 jointly and severally, respondent no.4 having been dropped from the array of parties and no relief having been claimed against respondent no.5.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 502 OF 2004 [Against the order dated 26.08.2004 in Complaint No. 61/2000 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram] K. Venkata Rao “Om Shakthi” 19/1898, K.N. Road, Poojapura Thiruvananthapuram-695012 Presently residing at “Om Sri Sai Ram” 449, 24th Main, 8th Cross, HSR Layout 1st Sector Agara, Bangalore-560034 … Appellant Versus 1. M/s Federal Express Corporation 942, South Shady Grove Road Memphis, TN 38120, USA 901-369-3600 2. Mr. Suraju Dutta Senior Country Manager Federal Express Corporation Chemtex House Hiranandani Garden Main Road, Powai Mumbai-400076 3. Mrs. Ajanta Chakraborty Manager, Customer Service Federal Express Corporation Chemtex House Hiranandani Garden Main Road, Powai Mumbai-400076 4. Mr. Pramod Agarwal Manager, Operations Federal Express Corporation Chemtex House Hiranandani Garden Main Road, Powai Mumbai-400076 5. Mr. Babu Jacob Executive Sales Bluedart Express, Federal Express Call Centre 9/1069, Sasthamangalam Thiruvananthapuram-695010 … Respondents BEFORE : HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HON’BLE MR. S.K. NAIK, MEMBERS For Appellant : Mr. Santosh Paul, Amicus Curiae Ms. Astha, Tyagi, Advocate Ms. Mohita Bagati, Advocate & Appellant in person For Respondents No. 1 to 3 : Mr. A.V. Haksar, Sr. Advocate with Ms. Vatsala Suhota, Advocate & Mr. Akshay, Advocate For Respondent No. 5 : Mr. Sumeet Lall, Advocate with Mr. Arjun Garg, Advocate & Ms. Ankita, Advocate Pronounced on : 16th January, 2012 O R D E R PER S.K. NAIK, MEMBER 1. Original complainant K. Venkata Rao has filed this appeal against the order dated 26th of August, 2004 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short the State Commission), vide which the State Commission has dismissed the complaint and has also imposed a cost of Rs.1000/- to be paid by him to each of the opposite parties except opposite party no.4 holding that he had unnecessarily dragged them to a litigation. 2. The facts, as alleged by the appellant in his complaint filed before the State Commission are that, due to some obscure neurological disorder his 17 year old son Om Prakash had died on the 10th of May, 2000. Before his death, he was under the treatment of various Medical Institutions, such as Sree Chitra Tirunal Institute of Medical Science & Technology (SCTIMST), Trivandrum; Christian Medical College & Hospital (CMC), Vellore; National Institute of Mental Health and Neurological Science (NIMHANS), Bangalore for the preceding three years (i.e. from 1997). That apart, the appellant was also in touch with many foreign experts for getting periodical opinions. In spite of all this, the medical problem of his son could not be diagnosed. Therefore, the appellant decided to donate his deceased son’s brain and lungs for carrying out a comprehensive research for the benefit of humanity. In this regard, one Dr. Bruce H. Cohen of USA showed his interest to undertake the research. His associate, Dr. Steven J. Zullo advised the appellant to send the organs through the international courier M/s Federal Express Corporation (Fedex for short). The appellant contacted Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, opposite party no.5, at Trivandrum for the purpose. Though opposite party no.5 was ready to accept the consignment of the organs but advised the appellant to take the commercial invoice form and go to Mumbai directly since the consignment needed special packing with dry ice and some customs formalities were required to be completed at Mumbai. 3. In order to have some idea regarding packing adequacy with dry ice, exact hours of transit time and the condition in which the shipment would be delivered to the recipient, the complainant/appellant decided to send the organs in two batches and accordingly prepared the first batch of few grams of lung, cerebro-spinal fluid (CSF) and blood. 4. On 19th of June, 2000, when the complainant/appellant reached the Fedex Service Centre at Adarsh Industrial Estate, Chakala, Andheri (East), Mumbai, for having an idea in this regard, he was advised to pack the consignment with 3 kg. dry ice and was instructed regarding special packing procedure for such shipments. The complainant/appellant packed the first batch with 3kg. dry ice on the said date and on 21st of June, 2000 informed the Fedex representative about the adequacy of 3 kg. dry ice for 48 hours of travel time. On 22nd of June, 2000 respondent no.3 Ms. Ajanta Chakraborty finally consented to accept the consignment and thereafter international airway bill no. 400-8732-6691 was prepared and the two packages of the consignment were handed over to the Fedex Service Centre at Adarsh Estate, Mumbai, who assured the appellant that the consignment will be dispatched the next day. On 23rd of June, 2000, the date on which the consignment was supposed to be put on board for transmission, the complainant/appellant was requested by the respondents to pack the consignment with fresh 3 kg. dry ice since there was some delay in dispatch and he acted accordingly. At this juncture, the appellant was promised by respondent no.3 Ms. Ajanta Chakraborty, Manager Customer Service that in case of any subsequent delay, they would take care of the consignment of their own but again, since there was some delay due non-clearance by the Customs to the consignment, the complainant arranged for the clearance and handed over the same to the respondents. At the airport the consignment was finally accepted by respondent no.4 Mr. Pramod Agarwal, Manager Operations after a thorough inspection. But subsequently, respondent no.2 Mr. Suraju Dutta, Sr. Country Manager refused to send the consignment saying that dispatch of human organs was in contravention of the Fedex policy. At this stage, allegedly, respondent no.4 Mr. Pramod Agarwal, Manager Operations removed the copies of the airway bill from the package in order to leave no trace of any record/evidence of having accepted the consignment for dispatch and the packages were kept at the Bluedart/Fedex premises at Adarsh Estate, Mumbai. Disappointed with the sudden turn of events, the appellant made a complaint to the principal office of the respondents in USA but except for an apology in the matter no action was taken by the respondents to send the consignment. 5. In this background, alleging (i) deficiency in service, (ii) deliberate and willful spoiling of the precious diagnostic material, (iii) refusal to even send the second packet which contained documents only, including the MRI of the patient, without any reason, (iv) forceful removal of the copies of the airway bill from the package by respondent no.4, (v) mental agony, torture and harassment, besides loss of precious tissues/organs, the appellant filed complaint praying for a compensation of Rs.9.75 Lakhs under different heads before the State Commission, who vide the order impugned has dismissed the same holding that the appellant/complainant was not a ‘consumer’ and had no locus standi to file the complaint despite holding that it lacked the pecuniary jurisdiction to entertain the complaint. 6. Hence, this appeal by the appellant/complainant. 7. At the outset, it may be stated that since the matter related to non-dispatch of parts of the body organs e.g. lungs and brain fluid of the deceased son of the appellant for the purpose of research, which has been dismissed by the State Commission and he is in appeal before us, and considering that the matter for the appellant may involve emotive overtones and on his request to appoint an amicus curiae, we had requested Shri Santosh Paul, learned Advocate, to assist this Commission on behalf of the appellant/complainant as Amicus Curiae, which he had readily accepted and has argued the case. 8. Respondents no. 1 to 3 are represented by Mr. A.V. Haksar, Sr. Advocate, assisted by Ms. Vatsala Suhota, Advocate and Mr. Akshay, Advocate, and Mr. Arjun Garg, Advocate, assisted by Mr. Sumeet Lall, Advocate and Ms. Ankita, Advocate, has appeared on behalf of respondent no.5. Respondent no.4 had already been struck off from the array of parties even before the State Commission. 9. It may be stated here that respondent no.5 Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, Thiruvananthapuram had not filed his written version nor contested the complainant’s claim that he was part of Fedex call centre at Thiruvananthapuram before the State Commission. He had ‘not mounted the witness box’ as per the State Commission’s own version to testify that Exhibit A-6, commercial invoice, was not given by him. Yet he had filed IA No. 645 of 2001 to get his name deleted from the array of opposite parties as the complainant had not claimed any relief qua him and the State Commission had dismissed the same. Respondent no.5 even thereafter did not file any written version to clarify his stand. Strangely, however, a reply has now been filed before this Commission on behalf of Blue Dart seeking permission also to file certain documents received from the appellant. We cannot permit/allow filing of any written version or additional documents as they have foreclosed their right to do so in view of their previous conduct which amounts to a conscious decision not to contest the complainant’s version before the State Commission. 10. We have carefully perused the rather detailed order passed by the State Commission and have carefully gone through the evidence placed on record by the parties and their written submissions. We have also heard learned counsel for the parties and the learned amicus curiae at great length. Learned counsel for the appellant/complainant has contended that the complainant having availed service of Fedex and M/s Bluedart with the promise of payment from Dr. Zullo, is a ‘consumer’ as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, which the State Commission has failed to appreciate. On the question of territorial jurisdiction, he contends that Blue Dart Express of Fedex Call Centre at Thiruvananthapuram having provided the commercial invoice, which bears the column of Fedex Express AWB No., the process of dispatch started at Trivandrum. The commercial invoice having been verified by Mr. Babu Jacob, part of cause of action arose at Trivandrum also where the Fedex office combined with Blue Dart was functioning. He further submits that the existence of Blue Dart/Fedex office at Trivandrum is established from the fact that when he went with the commercial invoice issued by Mr. Babu Jacob to the Blue Dart/Fedex office at Adarsh Service Centre of Fedex, Mumbai, the same was entertained by the Adarsh Service Centre of Fedex. On the question of not being a beneficiary as contended by the opposite parties, the learned counsel has submitted that even though the complainant has not claimed to be a beneficiary of either Dr. V.V. Radhakrishnan or of Dr. Zullo as the main consumers and he has himself claimed to be the consignor/complainant, the fact cannot be ignored that the complainant was to be the first beneficiary of any outcome from the research to be undertaken on the body parts of his deceased son as it was his other two living daughters and their children who would be at great risk if the disease of his deceased son is not diagnosed. Thus, on all the three counts, he contends that the State Commission totally with a pre-conceived notion has dismissed the complaint arbitrarily. 10A. Learned counsel for respondents/opposite parties no. 1 to 3 has fully justified the order passed by the State Commission and has reiterated the view expressed by the State Commission that the complainant was not a ‘consumer’ nor was he a beneficiary nor was there any cause of action at Thiruvananthapuram to file the complaint before the State Commission in Kerala. 10B. In view of the submissions of learned counsel for the complainant and the learned counsel for the opposite parties, it would be necessary for us to consider as to whether the order passed by the State Commission in the facts and circumstances of the case is legal and justified. 11. The State Commission has dismissed the complaint of the appellant summarizing its views in the operative para which reads as under :- “30. Considering the facts and circumstance of the case, we are of the considered view that the complaint is not entertainable on the ground that complainant is neither a consumer nor a beneficiary or has locus standi to file the complaint. Further ground is that no part of cause of action arose within the territorial jurisdiction of this commission. In the result the complaint is dismissed. Having regard to the facts and circumstance of the case we direct the complainant to pay to the opposite parties 1 to 3 and 5 cost of Rs.1000/- each for unnecessarily dragging them to a litigation knowing fully well that he is not a consumer as defined in the Act and no part of cause of action arose within the territorial jurisdiction of this Commission for making unlawful gain by way of compensation,” 12. In substance, it may be seen that the State Commission has dismissed the complaint of the appellant/complainant holding (a) that the complainant was neither a ‘consumer’ nor a beneficiary nor had he the locus standi to file the complaint and (b) that no part of cause of action arose within the territorial jurisdiction of the State Commission. We have, therefore, to examine as to whether the State Commission was correct in its approach to arrive at the aforesaid conclusion. 13. A ‘consumer’ is defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as under :- “(d) “Consumer” means any person who, (i) …. (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.” 14. As can be seen, under this definition of a ‘consumer’ a person himself hiring or availing any service for a consideration whether paid, promised, partly paid, partly promised or under any system of deferred payment will qualify to be a ‘consumer’. Additionally, any person who is a beneficiary of such services with the approval of the former also qualifies to be a ‘consumer’. The only exception is that a person who avails of such services for any commercial purpose would not qualify to be a ‘consumer’. In the case in hand, we find that the State Commission in para-10 of its order has stated that the complainant did not qualify to be a ‘consumer’ as he had not pleaded in the complaint that he hired or availed the services of respondent/opposite party no.1 for a consideration. The State Commission has also held in para 13 that the complainant was not even a beneficiary of Dr. V.V. Radhakrishnan and Sree Chitra Tirunal Institute of Medical Science & Technology, who according to Exhibit A-7 was the consigner, as the said Dr. V.V. Radhakrishnan had not paid any consideration in any manner to the respondent/opposite party no.1. The State Commission further goes on to hold that Dr. Steven J. Zullo, who had provided his account number with M/s Federal Express Corporation, had no privity of contract with the respondent/opposite party no.1 with regard to the dispatch of the consignment in question and, therefore, did not qualify to be a ‘consumer’ and the complainant cannot claim to be a beneficiary of Dr. Zullo as well. Thus, the State Commission has held that the complainant does not qualify to be a ‘consumer’ as he had directly paid no consideration to the respondent/opposite party no.1 nor does he qualify to be a beneficiary authorized by Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology, who is stated to be the consigner in the airway bill nor can the complainant claim to be a beneficiary authorized by Dr. Zullo. The State Commission, however, in para 12 of its order referring to only a part of Exhibit A-4, i.e. mail of the complainant addressed to Dr. Zullo, states that “it was the complainant who had decided to send the consignment through Federal Express” but ignores the other part of the exhibit, which is the reply of Dr. Zullo to the complainant, in which he has given his Federal Express Account No. The import of this response from Dr. Zullo has not been appreciated in its correct perspective by the State Commission, inasmuch as through this response Dr. Zullo in unambiguous terms undertook to defray the expenditure on the remittance of the consignment on its receipt at his end. If this was not an agreement for a deferred payment, then what would it be? To be noted that the airway bill Exhibit A-7 was prepared by the Fedex employee who himself has entered Dr. Zullo’s Fedex Account Number on the airway bill. 15. The case set up by the complainant/appellant is that in order to dispatch the body parts of his deceased son for research purposes to U.S.A., he first approached Mr. Babu Jacob of the Bluedart, Federal Express Call Centre at Trivandrum. The said Babu Jacob provided the commercial invoice, which the complainant got filled up from Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology, under whose custody the body parts were preserved for obvious reason. Thereafter the said commercial invoice was verified by Mr. Babu Jacob, who, however, advised the complainant to proceed to Mumbai as the dispatch of body organs required some special facility and procedure, which his office was not equipped with. The same commercial invoice which had been verified by Mr. Babu Jacob was presented by the complainant at Mumbai before the Fedex office, which was entertained by the respondent/opposite party no.1. The airway bill was thereafter prepared by them. A perusal of the said airway bill (Exhibit A-7) even though mentions the name of Dr. V.V. Radhakrishnan and Sree Chitra Tirunal Institute of Medical Science & Technology; in column-10 of the said airway bill, the name of the complainant K. Venkata Rao appears as the sender. The signature of the complainant has been obtained by the Fedex authorities on the said bill. It has further been stated in columns 7 and 8 thereof that the bill will be paid by the recipient i.e. Dr. Steven J. Zullo. While the State Commission has erroneously held that the said bill is not authenticated by anybody from the Fedex, we find that a Fedex employee whose employee number is 25480 appears on the airway bill, which cannot but be said that it was an employee of Fedex who had prepared and authenticated the said bill. In the absence of any specific averment that the said bill was not prepared by anyone of their employees, it was not correct on part of the State Commission to have taken the view that it has. Further, the respondent/opposite party no.1 having asked the complainant to undertake the exercise of packing the tissue/organ with adequate quantity of dry ice, not once but four times and further having solicited his assistance to get the customs clearance and having dealt with him from 19th of June to 23rd of June, 2000 when finally he was informed that the consignment cannot be accepted, could not be heard to take the plea that K. Venkata Rao (the complainant) was not the consigner and it was Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology. We do not find any averment that respondent/opposite party no.1 ever questioned the locus of the complainant or having asked the complainant to explain as to how was he concerned with the dispatch when Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology was the consigner. By their own conduct, it has to be held that the respondent/opposite party no.1 had forfeited/waived their right to challenge the locus of K. Venkata Rao as the real consigner/complainant. The State Commission, in our view, has misdirected itself in holding that K. Venkata Rao was not the consigner. 16. We find from the order passed by the State Commission that it has devoted a large part of its order in dealing with the subject whether the complainant was a beneficiary either of Dr. V.V. Radhakrishnan of Sree Chitra Tirunal Institute of Medical Science & Technology or Dr. Steven J. Zullo. In our view, this was totally unnecessary and uncalled for as the complainant had placed himself in the position of the consigner with a deferred payment to be made by Dr. Zullo and, therefore, he was fully qualified to be a consumer to file the complaint. Total reliance placed by the State Commission only on the incorporation of the name of Dr. V.V. Radhakrishnan and the Sree Chitra Tirunal Institute of Medical Science & Technology on the airway bill (who were only the custodian of the body parts of the deceased son of the complainant) could be of technical consideration, which does not change the character of the complainant being the real sender/consigner, which is clearly borne out from the airway bill and the subsequent conduct of the Fedex authorities. 17. The State Commission in its order has also held that “It is not possible to draw any inference from his evidence (i.e. evidence of the complainant) that any part of the cause of action arose at Thiruvananthapuram within the territorial jurisdiction of this Commission.” The State Commission has taken this view despite the fact that the complainant in his evidence had clearly asserted that he went to the office of Mr. Babu Jacob, opposite party no.5, on the 14th, 15th and 16th of June, 2000, first to collect the commercial invoice and subsequently to submit the same but after its verification he was advised by respondent/opposite party no.5 to go to Mumbai. The State Commission has ignored the endorsement on the business card of Mr. Peter D’Souza, Assistant Manager, which, apart from Bluedart, clearly mentions the name of Fedex. In the absence of the said Mr. Babu Jacob or the Bluedart having filed any written version or appearing before the State Commission to explain their stand, despite their interim application for deletion from the array of parties having been dismissed, it was not proper on part of the State Commission to have ignored this unrebutted piece of evidence and hold that the Fedex neither had any branch office or call centre at Trivandrum nor any cause of action arose there. Being a consumer complaint, it was, in our view, the bounden duty of the State Commission to have drawn an adverse inference against opposite party no.5 and should have held that the said Babu Jacob was representing not only the Bluedart but Fedex also at the call centre at Trivandrum as well. As already stated, respondent no.5 Mr. Babu Jacob has not denied the issuance of proforma of commercial invoice Exhibit A-6 to the complainant from their Trivandrum call centre. In the reply filed on behalf of respondent no.5 Blue Dart before this Commission even at this belated stage, the stand of respondent no.5 is that till the year 2002 Fedex amongst others had a principal to principal relationship with Blue Dart in India, inasmuch as Blue Dart was responsible for delivery of international cargos received from outside India, which were couriered through Fedex and that Blue Dart was one of the many companies, who has such arrangement with Fedex on non-exclusive basis. Despite our repeatedly asking the counsel representing respondent no.5 to file the document evidencing what kind of relationship/arrangement they had with Fedex, they have failed to produce any agreement/MOU between them. Adverse inference is liable to be drawn for non-production of such relevant and important piece of evidence. We have, therefore, no hesitation in holding that Blue Dart must be acting for Fedex at the Trivandrum service centre besides other places. Had Blue Dart office at Trivandrum no connection with Fedex, the proforma of commercial invoice could not be in position of Mr. Babu Jacob and he could not have handed it over to the complainant for completing the same. This handing over of the commercial invoice by Mr. Babu Jacob with instructions to the complainant to approach the Bombay office was the foremost/starting point in the process of sending the consignment but for the said commercial invoice the complainant could not have taken pains to complete the same from the concerned authorities of Sree Chitra Tirunal Institute of Medical Science & Institution and to present it to Mr. Babu Jacob for verification. It was the same commercial invoice which was ultimately used and presented in Bombay office for the preparation of the airway bill. This bundle of facts is sufficient to show that the cause of action or at least a part of cause of action arose at Trivandrum on 15th of June, 2000 when Mr. Babu Jacob after verification handed over the proforma of commercial invoice with certain instructions to the complainant. The State Commission has totally erred and misguided itself by ignoring these important aspects, which had great bearing on the question of territorial jurisdiction. In this respect, learned counsel for the complainant has correctly drawn support from the judgments of the Hon’ble Apex Court in the cases of (i) Atyam v. Pechitti [AIR 1966 SC 629]; (ii) Baljit v. S.; (iii) Ramdas Oil Mills v. Union of India [AIR 1977 SC 638]; and (iv) Khushalbhai Mahijibhai Patel v. Mohamadhussain [AIR 1981 SC 977]. In our view, the State Commission was wrong in holding that it had no territorial jurisdiction to entertain the complaint. 18. Learned counsel for the respondents have laid great emphasis on a communication dated 02.08.2000 sent by the complainant to respondent no.5, by which the complainant had thanked respondent no.5 for the assistance afforded by him and expressed regret for impleading him. This communication cannot be taken as to mean that the complainant had impleaded respondent no.5 only with a view to confer jurisdiction on the consumer fora at Trivandrum. The law on the subject is settled. No party to a suit or proceeding can confer or take away the jurisdiction of a court, tribunal or forum, which is vested in it. The letter appears to be nothing but acknowledgment of the service/assistance rendered by respondent no.5 in the process. 19. However, be that as it may, once the State Commission rightly or wrongly came to the conclusion that it had no territorial jurisdiction, it ought to have laid its hands off the complaint and returned it to the complainant for presentation before the appropriate consumer forum/tribunal. In fact, it was incumbent upon the State Commission to have decided the question of territorial jurisdiction at the threshold and only thereafter ventured to dwell on the merits of the case. Strangely, however, we note that the State Commission has not only gone ahead and considered the question of whether the complainant was a ‘consumer’ or a ‘beneficiary’ and a bona fide consumer but has even gone further to decide the matter with regard to the eligibility of any compensation for the alleged deficiency and has dismissed the complaint on merit imposing cost on the complainant. This, in our view, was totally unwarranted and legally impermissible course. We, therefore, have no hesitation in setting aside the order passed by the State Commission. 20. On a perusal of the records and after hearing the learned counsel for the parties at length, we are of the view that after having entertained the request of the complainant to accept the body parts of his deceased son for dispatch to Dr. Zullo in U.S.A. and having sought the complainant’s assistance to pack and repack the consignment with dry ice repeatedly and after opposite party no.3 Ms. Ajanta Chakraborty, Manager Customer Service having satisfied herself and referred the samples to opposite party no.4 Mr. Pramod Agarwal, Manager Operations, who had himself assured that the complainant can rest assured that the consignment would be uplifted for dispatch, the volte face at the very last moment by Mr. Suraju Dutta, respondent/opposite party no.2, who was the Senior Country Manager on the specious ground of dispatch of such consignment being against Fedex policy definitely amounts to gross-deficiency in service. The utter disappointment to the complainant is quite understandable. The fact that opposite party no.4 being a senior functionary of the Fedex removed the airway bills from the package to eliminate any proof of the consignment having been processed and further that the said consignment alongwith the MRI film/report not having been returned to the complainant was deplorable and further compounds the negligence and deficiency on part of the opposite parties. We also note with dismay that when the complainant brought the unsavory episode to the notice of Fedex office in the USA, only a letter of regret was issued without any direction for the dispatch of the consignment. The defence, vehemently argued by the learned counsel for respondents/opposite parties no. 1 to 3 is that the consignment could not have been dispatched in contravention of specific legislation dealing with transportation of such goods, which fell in the category of ‘organs and dangerous goods’. This argument appears to be only an afterthought as their own brochure at Exhibit A-5 provide instructions for use of proper packaging with regard to shipment of blood, urine or diagnostic specimens. Besides, after having subjected the complainant with repeated exercise of packing and repacking the material with dry ice, it is too late in the day for them to advance a plea that there were legal impediments in entertaining the consignment. In any case, if in the view of the respondents such dangerous goods could not be shipped, the complainant should have been informed about that position when the complainant approached the respondents on 19th of June, 2000, which would have saved the complainant of all the trouble he had to take in connection with packing with dry ice etc. The fact that the larger consignment of the deceased’s organs was in fact transshipped by another courier, namely M/s World Courier without any hitch, to the same destination exposes the fallacy of the stand taken by the learned counsel for respondents/opposite parties no. 1 to 3. 21. An attempt has been made by the learned counsel for respondents/opposite parties no. 1 to 3 to pick holes in the airway bill Exhibit A-7 by first stating that it has been manipulated by the complainant. We have examined the Exhibit A-7. Fedex does not disown the airway bill nor does it say that the same is fabricated. They contend that the exhibited airway bill is only a manifest or billing copy and not the consigner copy and that there were no signatures of any authorized person of Fedex. This has been satisfactorily explained by the learned counsel for the complainant that this was provided by the Fedex ‘as it is’ and the filling up of the signature on the airway bill were the original ball point impressions and not the carbon copy impressions. It was the first and topmost leaf of airway bill no. 40087326691. With regard to the objection that it bears no signature, we find that there is an entry with regard to the Fedex employee number being 25480, which cannot but be held to be the signature specially when the airway bill has been filled up by the employee of the respondents/opposite parties. Its authenticity has not been denied. 22. An attempt has also been made by the learned counsel for respondents/opposite parties no. 1 to 3 that Dr. Zullo in a communication claimed to be dated 21st of June, 2000 had informed the complainant that he will arrange for a courier to pick up the consignment which the complainant had suppressed as in that eventuality there was no need for the complainant to dispatch the consignment through Fedex. This contention of the learned counsel does not stand substantiated as would be obvious from the series of emails exchanged between the complainant and Dr. Zullo as well as the opposite parties. We further take note of the reply addressed by Ms. Ajanta Chakraborty, respondent/opposite party no.3, to the complainant, which is though dated 28th of June, 2000, was posted on the 4th of July, 2000 narrating the sequence of events culminating in their inability to dispatch the consignment and advising the complainant to remove the package from the premises of Blue Dart Express at Adarsh Industrial Estate immediately, failing which, it has been stated, Fedex will have to abandon the package within 24 hours. This letter is Exhibit A-11 of the paper-book. To us, it appears that this letter has been addressed to the complainant to cover up the ill-treatment meted out to the complainant after he had addressed an email on the 25th of June, 2000 to the Fedex office at Memphis, USA. The sequence of events narrated therein only goes to prove that neither Ms. Ajanta Chakraborty, respondent/opposite party no.3, nor Mr. Pramod Agarwal, respondent/opposite party no.4, had stated that the consignment being dangerous goods could not be transshipped. On the contrary, they have entertained the same and taken advantage of the anxiety of the complainant by asking him to pack and repack the consignment till their satisfaction. This piece of communication, therefore, does not help the respondents/opposite parties in any way. 23. On the basis of the above discussion, we have no hesitation in holding that respondents no. 1 to 4 have committed deficiency of service on several above noted counts by their several acts of omission and commission, which in turn also amounts to adoption of unfair trade practice. This is not expected from a premier courier agency of the world like Fedex. A great deal of argument has been advanced by Mr. Haksar, learned Sr. Advocate appearing on behalf of respondents no. 1 to 3, that the complainant is not entitled to any compensation because he has suffered no injury or loss, which is a condition precedent for claiming the compensation. Our attention has been invited to the fact that the complainant himself has stated in the commercial invoice that the consignment was of no commercial value. In any case, the submission is that it was a trial run containing only part of specimen in the consignment only to experiment if the substantial consignment which was to follow could be safely transmitted to its destination, which in fact was later transshipped through another courier and, therefore, no loss or injury or harm has been caused to the complainant. We have noted this submission only to be rejected because the consignment contained the total crucial CSF (cerebro spinal fluid) and MRI films, which were lost forever. The kind of inconvenience, mental torture and harassment besides expenditure incurred by the complainant at Bombay in running about for five days for arranging the dry ice repeatedly for the packaging purpose are nothing but injury caused to the complainant. 24. Now we come to the aspect relating to the extent of compensation which should be awarded in the present case. The complainant has claimed a compensation of Rs.9.75 Lakhs for the loss and the injury occasioned to him. Having regard to the mental state in which the complainant would have been at the relevant time just after the death of his young 19 year old son and the noble cause of research for the humanity at large, the episode must have been a life-time setback to the complainant. No amount of money can suitably compensate the complainant for the kind of loss and injury suffered by him and it is almost impossible to quantify the same. We, therefore, find it a fit case where we must award a lump sum compensation of Rs.5.00 Lakhs to the complainant, which should adequately meet the ends of justice. The compensation shall be payable by respondents no. 1 to 3 jointly and severally, respondent no.4 having been dropped from the array of parties and no relief having been claimed against respondent no.5. 25. In the result and for the above stated reasons, the appeal is partly allowed. The order of the State Commission is hereby set aside. Consequently, the complaint is allowed and respondents no. 1 to 3 are directed to pay the lump sum compensation of Rs.5.00 Lakhs to the complainant. Besides, we award cost of Rs.50,000/- to the complainant as he was then based in Thiruvananthapuram and had to travel to Delhi on several dates of hearing. The amounts shall be payable within a period of six weeks from the date of this order, failing which it shall carry interest @ 12% per annum from the date of default. Before parting with the matter, we would like to put on record our deep sense of appreciation for the assistance rendered by Mr. Santosh Paul, learned Amicus Curiae. As a special case, we direct the Registry to disburse a sum of Rs.25,000/- to Mr. Santosh Paul for his services. Sd/- ( R. C. JAIN, J. ) PRESIDING MEMBER Sd/- (S.K. NAIK) (MEMBER) Mukesh

no insurance claim can be awarded if health report was supressed= Since the life assured died within a period of three months five days from the date of revival/commencement of the policy it was treated as a case of an early death claim and hence investigation was carried out by the OPs as provided under Section 45 of the Insurance Act, 1938. During the course of investigation, OPs obtained the Medical Record, own Identity Book of the life assured from his employer and from these documents, they came to know that the life assured was an old patient of pulmonary T.B., but he had suppressed this material fact/information in the proposal forms of all four policies and answered the questions in paragraphs11(a) to (h) of the proposal forms in negative and in para 11(i) stated ‘Good’ about his usual state of health

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2048 OF 2009. Along with Application for Condonation of Delay (From the order dated 03.12.2008 in Appeal No. 406 of 2005 of the State Consumer Disputes Redressal Commission, Jharkhand) Smt. Kamoda Devi W/o Late Muni Dom, Quarter No. 152/E, Bhawnathpur Township, P.O. + P.S. Bhawnathpur, District Garhwa, Ranchi, Jharkhand. ….Petitioner. Versus. 1. Branach Manager, Life Insurance Corporation of India, Garhwa Branch, Kutchery Road, Garhwa. 2. Life Insurance Corporation of India Ltd. Through its Regional Manager, Eastern Region Office, 4 C. R. Avenue, Kolkata, West Bengal. …….Respondents. BEFORE: HON’BLE MR.ANUPAM DASGUPTA, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner (s) : Mr. A.K. Yadav, Advocate. For the Respondent (s) : Mr. Rajat Bhalla, Advocate. Dated : th January, 2012. ORDER PER SURESH CHANDRA, MEMBER Delay of ninety nine days in filing the present revision petition is condoned for the reasons stated in the application for condonation of delay. 2. In this case, the complaint was filed by one Kamoda Devi, who is wife of Muni Dom. Muni Dom was an employee in SAIL Hospital at Bhawnathpur in Garhwa District and was working there till his death. During his service period, he had taken four policies bearing nos. 55238727, 552927537, 552959596 and 55391423 from LIC of India during the period from 28.1.1999 to 28.11.2003. He died on 3.3.2004. After his death, insurance claim was made by the complainant with the opposite parties and relevant documents were submitted along with the claim. The insurance claim was, however, repudiated by the OPs. The complainant, therefore, knocked the door of the Consumer Forum by filing Consumer Complaint No. 11 of 2005 against the OPs for payment of the insurance amount of Rs.5,31,000/- for the four policies plus compensation amounting to Rs. 20,000/- for mental agony and Rs. 5,000/- for economic loss. 3. According to the complainant, the life assured had been paying premium regularly and all the necessary papers in respect of the claim had been furnished to the OPs but according to her, the Legal Branch Manager of the LIC of India allegedly demanded an amount of Rs. 1,00,000/- to clear the payment of insurance amount but since she refused to fulfill the demand, her claim came to be repudiated. 4. On the other hand, according to the OPs, policy No. 552938727 for Rs 27,000/- commenced from 28.2.2000, Policy No. 552937537 for Rs. 50,000/- from 15.1.1999, Policy No. 552939596 for Rs. 50,000/-28.1.2002 and Policy No. 553914213 for Rs. 50,000/- from 28.11.2003. Thus, the total amount under the four policies was Rs. 1,77,000/-. It was submitted that the life assured had failed to deposit premium due in January, 2003 within time and hence first three policies lapsed but thereafter on 28.11.2003, three policies were revived and on the same day, 4th Policy bearing No. 553914213 for Rs. 50,000/- was taken. Since the life assured died within a period of three months five days from the date of revival/commencement of the policy it was treated as a case of an early death claim and hence investigation was carried out by the OPs as provided under Section 45 of the Insurance Act, 1938. During the course of investigation, OPs obtained the Medical Record, own Identity Book of the life assured from his employer and from these documents, they came to know that the life assured was an old patient of pulmonary T.B., but he had suppressed this material fact/information in the proposal forms of all four policies and answered the questions in paragraphs11(a) to (h) of the proposal forms in negative and in para 11(i) stated ‘Good’ about his usual state of health. The statements made by him regarding his personal history are reproduced below:- Personal History Ans. Yes or No If yes, give details a) During the last five years did you consult a Medical Practitioner for any ailment requiring treatment for more than a week? No b) Have you been admitted to any Hospital or nursing home for general check up, observation, treatment or operation ? No c) Have you remain absent from place of work on grounds of health during the last five years ? No d) Are you suffering from or have you ever suffered from ailment pertaining to lever, stomach, heart, lungs, Kidney, Brain or nervous system ? No e) Are suffering or have you suffered from diabetes, tuberculosis, high blood pressure, Low blood pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy or any other disease? No f) Do you have any bodily defect or deformity ? No g) Did you ever have any accident or injury? No h) Do you use or have ever used alcoholic drinks, narcotic or any other drugs. Tobacco in any form? No i) What has been your usual state of health? Good 5. Since the proposer/life assured had made deliberate mis-statements and withheld material information regarding his health at the time of taking the policies, the OPs vide their letter dated 7.10.2004 repudiated the insurance claim under these policies and stated that they were not liable for any payment under the policies in question. 6. On appraisal of the issues and the evidence adduced by the parties, the District Forum accepted the complaint and vide its order dated 1.10.2005 directed the OPs to pay the entire amount of Rs. 5,31,000/- with compensation of Rs. 5,000/- along with interest @ 8% p.a. on both the amounts. 7. OPs went in appeal against the order of District Forum before the Jharkhand State Consumer Disputes Redressal Commission, Ranchi (‘State Commission’ for short), which allowed the appeal of the OPs and set aside the aforesaid order of the District Forum and also dismissed the complaint vide its impugned order dated 3.12.2008. The complainant has now challenged this order through the present Revision Petition. 8. We have heard Mr. A. K. Yadav, Advocate counsel for the petitioner and Mr. Rajat Bhalla, Advocate counsel appearing for the OPs/respondents. 9. The only contention raised by the learned counsel for the petitioner is that the State Commission has committed a grave error by relying on the OPD record of the treatment of the life assured, furnished by SAIL authorities to the OPs, because according to learned counsel, the same record has been fabricated. In view of this, conclusion drawn by the State Commission got vitiated and hence the impugned order cannot be sustained in the eye of law. 10. On the other hand, Mr. Rajat Bhalla, Advocate for the OPs/respondents has submitted that the District Forum ignored the documentary evidence in respect of ailment and treatment taken by the life assured, which clearly established that there was suppression of material facts by the deceased while taking the policies in question. The documents produced before the Fora below have neither been denied nor proved to be false by any counter evidence by the petitioner except raising serious objections over the extracts of the Out Door Patient records obtained by the OPs from the SAIL authorities and produced before the District Forum by alleging them to be forged and fabricated. The State Commission has carefully considered the entire medical record and has rightly come to the conclusion about the suppression of material facts by the life assured and hence allowed the appeal by setting the order of the District Forum. 11. We have gone through the impugned order. The State Commission while accepting the appeal of the OPs and setting aside the order of the District Forum has made the following observations in its order:- “8. Admittedly the three policies, which were taken by the life assured earlier had lapsed and were revived on the same day (28.11.2003) on which the fourth policy was taken, fresh statements regarding his personal health and continued insurability in Form no. 680 was made by him. We have to examine whether there was suppression of material facts therein. 9. So far as the indoor medical records of the life assured received in this Commission from the Mines Hospital, Bhawnathpur is concerned, we find on its perusal that during the period from 13.12.1999 to 09.8.2002 he was admitted for treatment many times i.e. on 13.12.1999, 24.4.2001, 25.5.2001, 28.6.2001, 03.7.2001, 08.8.2001, 01.9.2001, 27.11.2001, 14.3.2002, 19.4.2002, 18.5.2002 and 19.5.2002 for the ailments namely, vomiting loose motion, fever, coma-Hypertension, High Blood Pressure and blood vomiting, severe vomiting, HTN, Deyretion, Bodyache, Fpileptic attack in unconscious state, convulsion etc. 10. Dr. R. R. Dutta, DMO, Mines Hospital, Bhawnathpur, who had sent the indoor medical records had also certified photocopy of outdoor patient treatment card issued to the life assured from the said Hospital, on 13.2.2006, wherein on 15.12.1997 it was specifically mentioned that the life assured was an old case of Pulmonary TB. On detailed examination of this document, we are of the view that the District Consumer Forum was wrong in holding the said paper to be forged and fabricated. Even if reliance be not placed on the said entry dated 15.12.1997 in the Medical Book, still the life assured, in our view, had dishonestly suppressed material facts regarding state of his personal health, while answering the question under Clause 11 on 28.11.2003 and therefore the Life Insurance Corporation of India was justified in repudiating the death claim in question. 11. The life assured was under regular treatment of the Mines Hospital, Bhawnathpur and was an old case of Hypertension and was admitted many times in hospital. Once he was admitted in unconscious condition. He had blood vomitings at times. All those treatments particulars related to the period prior to the date of revival of policies on 28.11.2003. He was a chronic alcoholic, which also stood mentioned in the Medical records. 12. The District Forum under some misconception passed orders for payment of Rs. 5,31,000.00 while the total sum assured of the four policies was Rs. 1,77,000.00 only. There was no basis for the complainant to claim Rs. 5,31,000.00 as the total insurance amount. 13. It is well settled that if the deceased life assured knowingly gave incorrect information on personal health in the revival of lapsed policy form and died in a short period claimant would not be entitled to benefit of Section 45 of the Insurance Act, 1938. In this regard reference may be made to a decision of the National Consumer Commission in LIC of India and another Vs. Naveen Dhingra 2003(1) CPR 54 (NC). Further in LIC of India Vs. Smt. S Vijaya 1 (1995) CPJ 122(NC) the National Consumer Commission held as under:- “ It is evident that in the personal health statement submitted by the insured just prior to the revival of policy, he had suppressed the material facts concerning his health. As such, repudiation of the policy by the Life Insurance Corporation was fully warranted and there has been no deficiency in service because of such a repudiation. In the result this Revision Petition is allowed, the order of the State Commission is set aside and that of the District Forum is restored. There is no order as to costs”. 11. It is clearly established from the above that the State Commission has allowed the appeal of the OPs and dismissed the complaint by passing a well-reasoned order after considering the documentary evidence in respect of the claim. In the absence of any proof or documents in support thereof, mere allegations of the documents being forged and fabricated cannot be accepted to ignore the medical records produced by the OPs. In the circumstances, we agree with the view taken by the State Commission while setting aside the order of the District Forum which was apparently based on mis-conception and wrong appreciation of the documentary evidence. No interference is, therefore, called for from us with the impugned order under section 21 (b) of the Consumer Protection Act, 1986. We, therefore, dismiss the Revision Petition, with no order as to cost. ………………………….. (ANUPAM DASGUPTA) PRESIDING MEMBER …………………………… (SURESH CHANDRA) SSB MEMBER