Date of filing: 28/03/2018
Date of Judgment: 28/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Shwet Rana alias Swet Rana under section 12 of the Consumer Protection Act, 1986, against opposite parties (referred as OPs hereinafter) namely (1) Agarwal Packers & Movers having office at sector – V, Salt Lake City, Kolkata and (2) Agarwal Packers & Movers having office at Secunderabad, Telengana, alleging deficiency in service on the part of OPs.
Case of the complainant in short is that he contacted the OP to transport his household goods and other goods from Bhuvaneshwar to Kolkata and on 02.03.2017 received a quotation of Rs. 32,038/-. He handed over the goods to the OP on 08.03.2017 comprising of 78 packages and declared value of the goods were Rs. 2,00,000/- instead of actual rate of Rs. 10,00,000/-. Goods were delivered to the complainant on 19.03.2017 in place of 2 / 3 days as told by the OP. On inspection of goods on delivery, complainant found that one gaming computer and cricket bat was missing, two boxes were opened and several items were damaged. Complainant thus protested and mentioned it on the receipt memo at the time of accepting the delivery. Complainant narrated his grievance through mail sent on 31.03.2017. Further e-mails dated 03.04.2017 and 05.04.2017 were sent but no action was taken. So OP was informed that the broken items were discarded after retaining their photographs. Complainant asked OP to compensate for the damaged and missing item and to reimburse installation cost as OP had failed to install the goods. By email dated 18.04.2017, OP offered to pay Rs. 3,000/- only but complainant provided a detailed calculation of losses and requested to pay Rs. 2,15,000/-. But OP vide their email dated 25/04/2017 offered to pay only Rs. 4,000/- and thereafter when complainant asked for copy of insurance cover, OP vide email dated 02.05.2017 offered Rs. 6,000/- as final settlement estimating cost of computer Rs. 2,000/- and Rs. 4,000/- for damaged items. Despite several communication and email that value of the goods is wrongly estimated but as OP paid no heed, present complaint is filed by the complainant for directing the OPs to pay Rs. 10,00,000/- towards sum payable to quantify the damages on account of delivery of damaged goods and stolen goods and deficiency in service, to pay compensation of Rs. 50,000/- and to pay Rs. 25,000/- towards litigation charges.
OPs have contested the case by filing the written version denying and disputing the allegations contending inter-alia that prior to taking consignment of complainant, OPs entered into a special contract form and request for risk coverage under C.R. with the complainant wherein it is specifically mentioned that in the event of arising a case of claim for any reason, the payment of compensation will be restricted to the amount equivalent to the value of the articles declared by the consignor in the packing list. It is also contended that in case of any damage of furniture or any wooden item, same would be repaired only by the carpenter of the company and no claim for replacement of damaged furniture / wooden item will be entertained if damage is repairable. It is further contention of the OP that as per the contract, no claim of any nature will be entertained, if the consignor claims at a later stage that the materials were not packed in his presence or its value were quoted casually by declaring less value though its actual value was more or the value were recorded by the supervisor of the carrier on the basis of guess or imagination. Showing good gesture OPs tried to solve the problem but complainant is seeking something extra which he is not entitled to. Thus OPs have prayed for dismissal of the case.
During the course of evidence, both parties have filed their respective examination in chief on affidavit followed by filing of questionnaire and reply thereto. Ultimately both the parties have filed brief notes of arguments.
So the following points require to be determined:-
- Whether there has been any deficiency in rendering of service on the part of OPs?
- Whether the complainant is entitled to the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up for a comprehensive discussion.
At the very outset it may be pertinent to point out that both parties have filed the copy of the ‘packing list’ consisting in three pages having particulars of the goods and their value and total value of the goods has been mentioned as Rs. 2,00,000/-. Each page of the packing list bears the signature of the consignor which has not been disputed by the complainant. There is a specific declaration by the consignor / complainant on each page of the packing list “I hereby declare that the existing value of the articles has been consciously furnished by me”.
Similarly in ‘Annexure A’ i.e. quotation appended with the complaint filed by the complainant also reflects declared value of the goods has been stated as Rs. 2,00,000/-. Same is also signed by the complainant. The document indicates that the declared value of the goods as Rs. 2,00,000/- was well within the knowledge of the consignor.
OP has also filed the consignment copy bearing certain terms and conditions overleaf. Even in the said consignment copy declared value of goods has been stated Rs. 2,00,000/- and it is duly signed by the consignor / complainant wherein it is again specifically stated “I agree with the terms and condition overleaf and the value declared in packing list”.
So there are number of documents as highlighted above wherein it has been categorically mentioned that the value of the goods was Rs. 2,00,000/-. Complainant has claimed that actual value of goods was nearly Rs. 10,00,000/- and the estimated value of items / goods were filled in by the OP at much lower rate than the actual value of goods but it may be pertinent to point out that the complainant was an educated person being a Senior Analyst by occupation and so if he had known that the estimated value was wrongly mentioned in all the documents referred to above, he ought to have declared the actual value and should have protested for stating lower rate but he did not do so and agreed with the value as stated therein. So his claim that estimated value of the goods were filled in by OP at much lower rate is nothing but an afterthought and only for the purpose of this case. In such a situation, the dispute in this case has to be adjudicated taking into consideration the estimated value of goods as stated in the packing list and other documents highlighted above.
It may however be mentioned that the OP has filed the “special contract form and request for risk coverage under CR” which bears the terms and conditions. But it is apparent that the said document has not been signed by the consignor or the complainant. There is no explanation forthcoming from the OP as to why the said document does not bear the signature of the complainant. So in the absence of the signature of the consignor it can safely be assumed that complainant was not aware of those terms and condition stated therein. In such a situation, the terms and conditions mentioned in the “special contract form and request for risk coverage under C.R.” cannot have any binding effect on the consignor / complainant.
Complainant has claimed that while accepting the delivery of goods, on noticing missing of gaming computer, two boxes opened and several items damaged, he had protested and indicated the same on the receipt memo. But the said receipt memo has not been filed by the OP. Said receipt memo is the best document to show whether any such protest was raised immediately on receiving the goods and whether the items were missing and damaged? It is not explained by the OP as to why the said document has been withheld. Be that as it may, since it is evident from the emails exchanged between the parties that the OP had offered to pay initially Rs. 3,000/-, then Rs. 4,000/- and ultimately Rs. 6,000/- towards missing of gaming computer and towards damaged items, it indicates that OP has admitted that there was deficiency in service by them.
Even though ‘special contract and request for risk coverage’ has not been signed by the complainant as discussed above but why OP has not complied the terms and conditions therein is not cleared. As per OP’s contention the damaged furnitures were to repair by their carpenter but the same has not been done. Complainant has filed the photographs of damaged electronic items and wooden furniture’s such as damaged bed, sofa and chipped desk. But no step was taken by the OP for repairing of those items. However as it is already 06 years and it cannot be expected that the complainant would not use those household items and thus he must have got it repaired, it would be appropriate to direct OP to pay compensation towards missing and damaged items as well as for the harassment and mental agony suffered by the complainant. Thus in our view an amount of Rs. 50,000/- as compensation and litigation cost of Rs. 12,000/- will be justified.
Hence
ORDERED
CC/163/2018 is allowed on contest. Opposite parties are directed to pay compensation of Rs. 50,000/- to the complainant within 45 days from this date. OPs are further directed to pay litigation cost of Rs. 12,000/- within the aforesaid period of 45 days. In default of payment entire sum shall carry interest @7% p.a. till realisation.
