Order-17.

Date-10/08/2015.

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP1 is running a business of packers and movers of luggage, heavy and delicate and/or sophisticated household articles from one destination to the other and the OP2 is an insurance policy company who plays the role of the policy issuer to the interested people at large.

          Complainant with the intention to shift his household article from Kolkata to Mumbai approached the OP1 and subsequently appointed, engaged and/or assigned the OP1 to shift 36 household articles from Kolkata to Mumbai by paying a sum of Rs.25,000/- on September 04, 2014 and OP1 issued a money receipt to that effect and provided a packing list vide no.G.C.-180 and OP1 also provided a consignor copy of insurance wherein the value of those 36 household articles were held to be Rs.2,00,000/-.  In this connection OP2 issued a policy certificate named as ‘Specific Voyage Policy’ bearing No.101300/21/14/4500000314 dated September 11, 2014.  According to the statement of OP1 articles would reach the destination within 7 to 8 days from date i.e. the article ought to have reached the destination by September 11, 2014 or latest by September 12, 2014.  But the consignment reached in Mumbai address of the complainant after 28 days i.e. on October, 02, 2014 in severely damaged condition.  Complainant’s father Sanjay Gupta on October 04, 2014 lodged a complaint with the New Market Police Station complaining that till September 22, 2014 consignment did not reach at the destination of the complainant at Mumbai and out of suspicion of being stolen when complainant’s father visited the office of the OP1, OP1 stated that the consignment was sub-contracted to another party and the same would reach the destination through that sub-contractor within September 27, 2014 and ultimately it reached in damaged condition.  A glimpse of the condition of the goods are mentioned as  …. “the both doors of the iron almirah were broken, washing machine were badly damaged.  Several crockery, curtlery and expensi show pieces were broken.  Toaster and griller were not being found vacuum cleaner were stolen.  Washing machine was damaged.  Many expensive clothes were stolen and not being found and all the cartons were torn and goods stolen …. “  That in complaint it is also complained that OP1 is not ready to pay the demurrage charges for damaging the articles and the insurance claim though a sum of Rs.6,000/- was received from the complainant by the OP1 as insurance charges(premium).

          After that complainant made several telephone calls to the office of the OP1 but OP1 did not receive any calls though father of the complainant personally visited the office of the OP1 on various occasions but he was pushed out from the office of the OP1.  Ultimately, on October 15, 2014, father of the complainant wrote a letter to the OP explaining the damages of the articles and the loss and harassment caused by the acts and activities of the OP1 but that letter was also returned back with remark ‘refused’.

          Finding no other alternative complainant compelled to file this case before this Forum praying for directing OP1 to pay a sum of Rs.2 lakhs OP for the value of the 36 articles and also compensation and litigation cost etc.

          On the other hand OP1 by filing written version denied and disputed each and every averment made by the complainant. They have totally denied that the goods reached at the destination in several bad conditions.  In the consignors copy it is clearly written and stated that the consignee will not be responsible for breakage and insurance is at owners risk and not at consignees risk.  OP further stated that if any goods are damaged it was not deliberately and intentionally done by the OP and also denied the allegation against them regarding stealing of clothes and household goods.   The household goods which were consigned were insured by the National Insurance Company Ltd. vide policy No.101800/21/14/4500000314 on 11-09-2014 and whatever claim if any have occurred shall be settled in between insurance company and the complainant.  OP further states that the complaint has been made out of personal grudge and are all false.  As there was no deficiency of service rendered by the OP and there was no breach of contract on the part of OP this complaint of the complainant is liable to be dismissed.

          On the other hand OP2 by filing written statement submitted that the complainant took a Marine Transit Policy after going through the rules and regulation and also on fully understanding the terms of policy and also being satisfied on the basis of the completed proposal form duly signed by the complainant.  Policy No.101800/21/14/4500000314 was issued to the complainant and the cover granted was basic cover as per inland transit (Rail/Road) Clause-B under which loss is payable if the carrying vehicle met with an accident en-route and incidentally no such accident took place and hence the loss is not payable under the scope of cover granted. 

It is further stated that complainant did not lodge any claim and not even the OP2 gave any information of loss in transit at any point of time.  Therefore, OP2 is no way liable for any deficiency of service or unfair trade practice and hence, the allegation against OP2 is liable to be rejected.

Decision with Reasons

On an indepth study of the complaint and the written version and further on proper assessment of the documents as filed by the parties including argument as advanced by the Ld. Lawyers of both the parties it is no doubt an admitted position that Gautam Gupta paid a sum of Rs.25,000/- to A.B. Home Carrying Corporation, OP1 to shift his household articles from Kolkata to Mumbai and appointed engaged and/or assigned the OP1 to shift 36 household articles from Kolkata to Mumbai by paying a sum of Rs.25,000/- on September 04, 2014 and money receipt was issued to that effect and for which provided a packing list vide no.G.C.-180 along with a consignor copy of insurance wherein the value of those 36 household articles was noted Rs.2,00,000/- and OP2 issued a policy certificate named as ‘Specific Voyage Policy’ bearing No.101300/21/14/4500000314 dated September 11, 2014 and as per said receipt OP1 shall have to deliver the articles to the destination within 7 to 8 days from the date of packing when fact remains that transportation was effected on and from 04-09-2014, so, expected transportation date for reaching the articles at the destination was invariably by September 11, 2014 or nearly about September 12, 2014.  But unfortunately fact is that the articles were not delivered to the complainant at the destination even after expiry of 12-09-2014 when complainant’s father Sanjay Gupta went to enquire about the matter and lodged a complaint on 04-10-2014 with the New Market Police Station complaining the entire fact and subsequently visited the office of the OP1 they reported that the same shall reach to the destination through sub-contractor within September 22, 2014 and ultimately that consignment reached in Mumbai on 02-10-2014 after 28 days but at the time of receiving the articles it was found that entire package was in severely damaged condition.  When that matter was reported to the OP1 and prayed for demurrage, they did not pay any heed and at the same time some articles were also stolen out of 36 articles.

          When complainant hired the service of the OP by paying requisite charges then it is the duty of the OP to deliver the articles as-it-is condition and that is the duty of the OPs to deliver it in such a condition which was as-it-is at the time of receiving by the OP1.  But it is proved that in OP’s custody the articles were damaged and in this regard there is no denial on the part of the OP and for negligent and deficient manner of service for causing damage of the articles complainant prayed for damages but that was denied and for which for which for adopting such deceitful manner of trade complainant has filed this complaint for proper relief and redressal.

          On the other hand National Insurance Company OP2 by filing written statement submitted that in fact, no relief has been prayed for by the complainant against the OP2 and there is no such allegation made against the OP2 about their deficiency and negligent manner of service ad for which this complaint should be dismissed against the OP2.

          OP1, A.B. Home Carrying Company by filing written statement submitted no doubt they received the articles and also received Rs.25,000/- for carrying cost as complainant approached them for delivering the household goods and further admitted that they undertook to deliver the goods at the destination.  No doubt packing list was prepared, insurance paper was made, household goods were sent to that consignor’s address of Mumbai.

          But it is their specific defence that they never told the complainant that within 7 to 8 days at their destination it will be delivered  and in fact, there was no negligence on the part of the OP1 in performing their duties because it took some time and further submitted in such consignor’s copy it is specifically mentioned that consignor is not responsible and the insurance is at owner’s risk but admitted fact is that the goods were insured by the carrying company and when the goods were insured invariably the complainant ought to have file such claim to the insurance company for relief.  So, there was no deficiency on the part of the OP1 when OP1 admitted that they loaded the goods according to the packing list which was delivered to the residence of the complainant at Mumbai and company’s work order or delivery order of household goods sent to the consignee’s address.

          Lastly it is stated that the photographs as produced by the complainant cannot be treated as a practical aspect of the damage as occurred.  So, as per consignor’s copy complainant is not entitled to get any relief when it is insured article and for which the present complaint should be dismissed.

          Taking into consideration the above admission of the OP1 it is clear that articles were booked by the OP1 for consignment and for delivery to the address of the complainant at Mumbai from Kolkata.  No doubt it was booked, packed as per packing list where list of articles are noted in the packing list, Rs.25,000/- was paid.  Admitted position is that it was delivered after 28 days and truth is that the articles were delivered in damaged condition, so, it is clear that allegation of the complainant in respect of delayed delivery and about the breakage of the articles which were booked for delivery that means Consignor’s articles are proved and also about payment of the entire charge that is Rs.25,000/- made by the complainant, then only question is who is liable to pay the compensation whether this OP Company or the insurance company when admitted position is that the articles were insured by the OP Company and for which charge was paid by the complainant and it was ‘Specific Voyage Policy’ but most interesting factor is that who shall have to claim the damage or compensation from the insurance company whether the consignor or the consignee.  In this regard, we have gone through the policy conditions wherefrom we have found that the said insurance covers the risk of physical loss or damage to the insured goods caused by 1) Fire, 2) Lightning, 3) Breakage of bridges, 4) collision with or by the carrying vehicle, 5) overturning of the carrying vehicle, 6)derailment or accidents of like nature to the carrying railway wagon/vehicle.

          Considering those clause it is clear that it is the duty of the OP1 consignor to report to the insurance company under what circumstances, the breakage of articles were caused but OP1 s silent in this regard but admitted position is that all the articles were damaged and, in fact, OP1 was well aware of the fact that the conditions as already noted in the insurance policy are not satisfied by the carrying company because no such incident took place and there is no such averment in the written statement that lorry faced accident or it was overturn or anything then it is clear on transit due to mal-driving or mis-handling the same during loading or unloading the articles were damaged but for that reason as per policy condition no claim can be submitted.  At the same time as per said policy condition the carrier must have to report about any such damage caused due to certain condition as stated above or at the time of reaching its destination but nothing happened, then complainant cannot claim any compensation from Insurance Company, no such incident took place then it is proved that the carrier is liable for damages and it was damaged due to their negligent manner of driving or the articles was not properly packed in the truck or it was not properly protected from certain jerk etc. that means there is unsuitability of packing and insufficiency in handling the said articles and negligent manner of handling for which the articles were damaged and in this regard there is no denial on the part of the OP1 consignor then it is clear case of negligent, deficient and insufficient manner of handling the articles by their employees or the OP1 for which all the articles were damaged and unfit for use.  So, in the above circumstances, the negligent and deficient manner of service on the part of the OP1 is well proved no doubt and as carrier (consignor) OP1 is responsible and duty bound to handover the articles as-it-is condition when he received all these articles intact condition as per their own list of articles but it is unfortunate that this OP1 consignor tried to shift their liability upon the insurance company.  For the sake of the argument, if it is accepted that insurance company shall have to give relief then question is why that complaint was not filed by the consignor OP1 because this insurance is inland transit (rail and road basic cover) and as per said terms and condition it must be reported when the damages is found on transit or upto arrival of the articles in the godown of the consignor but not after that.  In the present case the articles were received by their own company at Mumbai, thereafter, it was delivered.  Most interesting factor is that at the time of receipt complainant reported in the said receipt that all the articles have been damaged and that receipt was accepted by the OP then is it is the duty of the OP1 to compensate when they did not take proper care for shifting the articles through road after proper caring and precautions of the subject with care.

          On overall evaluation of the entire materials and findings we are convinced that in a casual manner without any safety they carried the same and on transit the valuable domestic articles were ultimately turned into broken articles at the hands of the OP1 for which the OP1 is liable to pay entire compensation.  Now the question is what will be the amount of compensation.  In this regard valuation as noted in the consignees slip shall be treated as valuation of the article but that has been prepared by the OP for purchasing insurance policy and everything was done by the OP1 and the valuation was prepared after taking the 36 items and that valuation was noted in the said receipt used by the OP1 and OP1 on the basis of that valuation took insurance premium charges from the complainant then it is the final valuation of the articles that is Rs.2 lakhs and no doubt OP1 has not stated anywhere that valuation of those articles would not be Rs.2 lakhs but for other purpose that Rs.2 lakhs were noted.  Then we are confirmed that consignment slip is a contract in between the consignor and the consignee and we cannot go beyond the receipt and the valuation as noted.  So, we are confirmed that the complainant is entitled to Rs.2 lakhs as compensation for causing willful damage of the valuable domestic articles by OP1 and, in fact, after considering the items and their qualities we find that with help of Rs.2 lakhs those 36 items cannot be purchased by the complainant in the present market. 

          In view of the above facts and circumstances and findings we are convinced to hold that complainant is no doubt proved the allegation against the OP1 and their negligent and deficient manner of service on the part of the OP1 which is proved beyond any manner of doubt and loss to the extent of Rs.2 lakhs is caused by the OP1 for damaging and for loss of all the household items on transit.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP1 and same is dismissed against OP2 without any cost.

          OP1 is directed to pay a sum of Rs.2 lakh as compensation for causing damage of the consigned articles of the complainant and also for causing mental pain and agony and suffering and loss to the complainant within one month from the date of this order failing which for disobeyance of the Forum’s order OP1 shall have to pay penal interest  at the rate of9 percent p.a. over the said amount with effect from the date of delivery of the damaged articles and till full satisfaction of the decretal amount and if penal interest is collected it shall be deposited to this Forum.  Even if it is found that OP1 is reluctant to comply the order in that case penal proceeding u/s.25 read with Section 27 of the C.P. Act shall be started against OP1 for which further penalty and fine shall be imposed.