Date of filing : 5.1.2018
Judgment : Dt.26.12.2018
Mrs. Balaka Chatterjee, Hon’ble Member.
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Sri Basudev Bhattachrya alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Agarwal Packers and Movers Pvt. Ltd., Crescent Public School, Saraswati Vihar, Pitampura Delhi-110034, (2) Agarwal Packers and Movers Pvt. Ltd., 245/A, Block-J, New Alipore, Kolkata-700 053.
Case of the Complainant, in brief, is that the Complainant after retiring from his job as Consultant of Banking Professional and Financial at Mumbai decided to shift from Mumbai to Kolkata and intended to shift his household articles along with his car being Model Volkswagen Vento having No.MH01BK7625 to his Kolkata address by Agarwal Packer and Movers and thus contacted OP No.1 and paid entire charges to the OP No.1 for shifting. The Complainant has further stated that on delivery of the said consignment it was found by the Complainant that some household articles including the said car got damages such as broken spring in lock of the said car, deep dent in the bonnet which was caused on transit and the Complainant immediately intimated the matter over telephone to the OP No.1 and in reply the OP No.1 advised the Complainant to repair the car from any authentic service centre, which was done by the Complainant after obtaining quotation from the service centre and paying Rs.16,000/- for repairing of the car. The Complainant has further stated that he claimed an amount of Rs.16,000/- along with 14% tax and Rs.2,500/- towards damages of other articles to the OP and on instruction of OP No.1 sent his account details to the OP No.1 through mail dt.7.8.2015 but no amount had been deposited with his account by the OP. Moreover, the OP showed reluctance to pay such amount and, therefore, the Complainant by letter dt.24.5.2017 demanded Rs.23,000/- and thereafter on 6.10.2017 served legal notice but the OP refused to pay the amount and finding no other alternative the Complainant by filing the instant Consumer Complaint prayed for direction upon the OPs to pay Rs.23,000/- along with interest and compensation and litigation cost, claiming an amount of Rs.1,00,000/- towards claim.
The Complainant annexed schedule of demurrage charges, consignment details, car inventory, e-mail correspondences, Advocate’s letter (undated) Postal receipt, track report Reply dt.21.12.2017.
The OPs contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the instant complaint has been filed beyond statutory period of 2 years from the date of occurrence of cause of action. The OPs have stated that no expert opinion had been adduced by the Complainant wherefrom it would have been evident that the alleged damages had been caused during transportation of the said car. It is further stated by the OPs that no explanation regarding claim of the complainant has been brought before this Forum to substantiate such claim and the claim is frivolous and liable to be dismissed with exemplary cost and accordingly prayed for dismissal of the case.
Both the parties adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
Ld. Advocate for the Complainant files BNA and narrated the fact mentioned in the petition of Complaint and specifically mentioned that in mail conversation the OP admitted the fact of damage and agreed to pay Rs.2,250/-.
Ld. Advocate for the OP also filed BNA and submitted that notices were not served under section 10 of the Carrier Act and the Consumer Complaint was filed going beyond the statutory time of 2 years. Ld. Advocate for the OPs relied upon the decision of (1) Hon’ble Supreme Court reported in AIR 2004(SC) 5147, (2004) 11 Sec 545, (2005)7 SCALE 319 [ARVIND MILLS LTD VS M/S Associated Roadways].
(2) Hon’ble SCDRC West Bengal in FA/497/2013 [Sri S.C.Mishra vs M/S Agarwal Packers & Movers]
Points for determination
- Whether Complaint is barred by limitation?
- Whether there is deficiency on the part of the OP?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point No.1
The OPs have claimed that the Consumer Complaint has been filed after 3 years from the date of occurrence of cause of action which was occurred in July, 2015 but the instant Consumer Complaint has been filed on 5.1.2018 and, therefore, as per provision of Section 24A of the C.P.Act the instant Consumer is barred by limitation. Moreover, the Complainant has not complied with Sec.10 of the Carriers Act.
It appears from the documents on record that the Complainant booked the consignment on 2.7.2015 for shifting his household articles from Mumbai to Kolkata, which was delivered to the Complainant’s address and the Complainant after receiving the said Consignment made several correspondences through G-mail. It further appears from letter dt.5.6.2017 issued by the Chief Advisor, Agarwal Packers and Movers Ltd. to the Complainant that communication regarding the matter, out of which the instant consumer complaint has been arisen, has been made by the OP which, in our view, cause of action is continuing and thus the complaint is not barred by limitation.
Furthermore, the decision of Hon’ble Supreme Court upon which the OP placed reliance, clearly hold that “the procedure under the C.P.Act is summary in nature and does not in anyway warrant the abrogation of the requirement to serve notice under Section 10 of the Carrier Act before fastening anay liability under the Act on the Carriers”.
Point No.1 is decided accordingly.
Point Nos.2 & 3
Both points are taken up for comprehensive discussion and decision. The Complainant claimed to have his household article along with a car booked for shifting from Mumbai to Kolkata by Agarwal Packers and Movers Ltd. and paid shifting charge and on transit said car was damaged as the spring of the lock was found broken and a deep dent was found on the bonnet, which was intimated to the Agarwala Packers and Movers. On perusal of original consignors’ copies, it appears that the household goods were booked on 28.6.2015 and the car was booked on 1.7.2015 but it is not mentioned when the Complainant received the consignment. However, The OP did not controvert that the OP received the consignment charges.
The Complainant has claimed that the car got damaged in course of transit. On scrutiny of documents on record, it appears that though the Complainant has alleged that some items including the car got damaged on transit but no documentary evidence has been adduced towards such allegation.
It appears from e-mail dt. July 15, 2015 that the OP was agreed to pay Rs.2,500/- in respect of damage of HHG under vide G C NO MUMO 14437 dt.28.6.2015 but the document filed by the Complainant in respect of House hold goods contains GC NO.MUMO 14547.
The e-mail communication made from the end of the Complainant on 20 July, 2015 stating that he received the car on the previous day. However, no supporting document has been filed by the Complainant to substantiate receipt of consignment.
Burden of proof lies upon the claimant. However, in this case burden of proof has not been discharged by the Complainant as to allegation regarding damage of a car in course of transit.
In such view of the matter, we are of opinion that we are inclined to hold that the Complainant failed to prove his case.
Point Nos.2 & 3 are decided accordingly.
In the result, the Consumer Complainant does not succeed.
Hence,
ordered
That CC/6/2018 is dismissed on contest.
