Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party herein is a company specialist in transportation of household articles for corporate & individual relocations. The Complainant was employed with the General Mills of India Pvt. Ltd. And he was transferred from Delhi to Mumbai in the month of April-2008. The Complainant hired services of the Opposite Party to move his household articles from Delhi to Mumbai. There had been a contract, by which the Opposite Party agreed to transport household articles of the Complainant by a 20 feet container, as also, assured safety in end to end transportation. The household articles belonging to the Complainant, which were to be transported, were insured for an amount in sum of Rs.3,00,000/- and the Complainant agreed to pay insurance premium in sum of Rs.9,000/- and the total agreed consideration for transportation, including insurance premium, was an amount in sum of Rs.49,550/-. The Complainant as well as the Opposite Party signed a receipt to that effect. Household articles of the Complainant were packed at the Complainant’s house at Delhi on 19/4/2008, in 92 boxes and loaded into 20 feet closed container and the Opposite Party had given an assurance that the articles would be delivered to the Complainant on 29/4/2008. According to the Complainant, however, his household articles finally arrived at Mumbai in the evening of 1/5/2008 and those articles were brought in a canter open truck, which was contrary to the agreement. Household articles were broken and in a mutilated condition. Many items were missing. The Complainant noticed that 18 out of total 20 sealed plastic-pellet containers had their seals open. Contents thereof were spilling from the cupboard boxes. Many packets had been opened on the way and then, packed again with a different type of tape or boxes. [2] The Complainant contacted Customer Care Head of the Opposite Party, as also, mailed him and narrated damage to the household articles and sent pictures of the mutilated articles, as an attachment to the mail. The Opposite Party appointed an insurance surveyor, who conducted a survey of the household articles. On 23/6/2008, the Opposite Party offered only an amount in sum of Rs.30,000/- as compensation, but the Complainant refused to accept the same. On the same day, the Complainant sent a notice to the Opposite Party, suggesting to come up with a just settlement within a period of seven days. Since, the Opposite Party did not approach the Complainant, post this notice, the Complainant filed present consumer complaint before this Forum on 11/7/2008 and sought direction, as against the Opposite Party, to pay compensation in sum of Rs.1,50,000/- towards loss & damage to his household articles and compensation in sum of Rs.1,50,000/- towards mental agony & harassment. [3] Pursuant to the notice of appearance issued by this Forum, the Opposite Party appeared and contested the complaint by filing its written version of defence and denied the averments in the complaint that household articles were delivered in open boxes and in a mutilated condition. According to the Complainant, narrations in the complaint are a concocted story and the Complainant received all his household articles in a good condition. According to the Opposite Party, the complaint has been filed with an object to extract money from the Opposite Party. [4] The Complainant filed his affidavit of rejoinder to the written version of defence, as filed by the Opposite Party, and referred to the fact that notice sent by him was not replied by the Opposite Party, which conduct on the part of the Opposite Party was eloquent. Most of the seals put on the containers were co-signed by the Complainant and the supervisor of the Opposite Party, but while at Mumbai, the Complainant found that new seals without his signatures were pasted on the containers. The Complainant called upon the Opposite Party to produce insurance survey report conducted by the surveyor. [5] The Complainant filed his affidavit of evidence and copies of relevant document. The Complainant has also produced on the record an affidavit sworn by a director of his employer company, by name Mr. Ashutosh Phadke, who supported the complaint. On the other hand, the Opposite Party filed on the record an affidavit of its Branch Manager at Mumbai, by name – Mr. Ravi Bhosale. Parties to the complaint proceeding have filed their respective written notes of arguments. [6] We have heard the learned advocates representing the parties to the complaint proceeding. [7] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [8] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Party is guilty of deficiency in service on account of delivery of his household articles in a damaged & mutilated condition? | YES | 2. | Whether the Complainant is entitled to seek recovery of compensation from the Opposite Party? | YES. An amount in sum of Rs.1,30,000/- towards damage to household articles and an amount in sum of Rs.25,000/- as compensation towards mental agony & harassment. | 3. | What order? | The complaint is partly allowed. |
REASONS FOR FINDINGS [9] Admittedly, in the present case, the Opposite Party has not disputed the contract under which, the Opposite Party agreed to transport household articles of the Complainant from Delhi to Mumbai. According to the Complainant, the Opposite Party had agreed to transport the goods in a 20 feet closed container and in fact, at Delhi, the Complainant’s household articles were loaded in a 20 feet closed container on 19/4/2008, but when the household articles were brought to the Complainant’s house at Powai, Mumbai; in the evening of 1/5/2008, the Complainant noticed that his household articles were transported through an open canter truck. In the Invoice dtd.19/4/2008, there is a mention of Direct 20 feet container, which supports the contention of the Complainant that his household articles were to be transported by the Opposite Party by a 20 feet closed container. The affidavit of the Complainant as well as photographs annexed to the complaint reveal that household articles were transported by the Opposite Party by an open canter truck bearing RTO Registration No.MH-04-F-8483. Photographs produced on the record by the Complainant, alongwith his complaint, reveal that cardboard boxes were in a mutilated condition, most of the items were pilfered, glass articles were broken and there were cracks to sofa. Besides that the Complainant has produced on the record a copy of the e-mail dtd.2/5/2008, which was sent to the Customer Care Head of the Opposite Party, by name – Mr. Nagasainathan, and by that e-mail the Complainant had expressed grievance that though 20 feet closed container was booked, household articles were transported by an open canter truck. The Complainant also mentioned in that e-mail that most of the containers had their seals open and cardboard boxes were mutilated so much so that the contents thereof were spilling. Be it noted that the truck containing household articles had reached Mumbai in the evening of 1/5/2008 and the conduct on the part of the Complainant, in sending this e-mail on the very next date to the Opposite Party’s officer with necessary details, supports the version of the Complainant. The Complainant has annexed a copy of the e-mail dtd.3/5/2008, which was sent to another officer of the Opposite Party, contents of which were the same as were in the e-mail dtd.2/5/2008. [10] In the meantime, the surveyor, by name – Mr. Sanesh; from M/s. Wilson Surveyors, had conducted a survey of the Complainant’s damaged household articles. On taking consent of the Opposite Party, those household articles were partly repaired. The Opposite Party then, proposed another survey through the insurance surveyor, which was objected by the Complainant. This is borne out from the Complainant’s e-mail dtd.2/6/2008, a copy of which is produced on the record at page (26) of the compilation, which was sent to head of the Customer Care of the Opposite Party. The Complainant followed this matter by sending e-mails to Mr. Nagasainathan on 19/5/2008, 21/5/2008, 2/6/2008 & 23/6/2009. By an e-mail dtd.23/6/2008, the Complainant had refused to accept the offer of settlement at an amount in sum of Rs.30,000/-. Contents of all these e-mails fully corroborate the version of the Complainant in his complaint as well as in his affidavit of evidence. [11] In the written notes of arguments, the Opposite Party has come out with a story that the vehicle met with an accident when both the front tyres burst on a sloppy road and the household articles belonging to the Complainant were shifted to another vehicle. This is altogether a new story because in the written version of defence there is no mention of this fact. On the contrary, version of the Opposite Party, in its written version of defence as filed, is that all the articles were delivered to the Complainant in a good condition. [12] Be it further noted that the Opposite Party has not filed an affidavit of any of its officer, who was present at the Complainant’s residence at Powai, Mumbai; when the household articles were unloaded in the evening of 1/5/2008. Boxes were opened on 2/5/2008. Affidavit of written version of defence, affirmed by Mr. Ravi Bhosale, no doubt shows that he is the Opposite Party’s Branch Manager at Mumbai, but the written version of defence as filed by the Opposite Party does not show that Mr. Ravi Bhosale was very much present when the household articles were unloaded from the open canter truck. The Opposite Party has not filed an affidavit of any helper who had unloaded the cartons from the open canter truck to the house of the Complainant. In fact, barring the affidavit of written version of defence, affirmed by Mr. Ravi Bhosale on behalf of the Opposite Party, there is no evidence in the form of an affidavit to rebut the evidence of the Complainant that most of the boxes were opened and the articles were in a mutilated condition. [13] In the written notes of arguments, Learned Advocate for the Complainant has rightly invoked principle enunciated under Section-9 of the Carriers Act, which lays down that liability of a carrier is that of an insurer and that in case of damage to the goods entrusted to a carrier, the plaintiff need not prove negligence on the part of the carrier. What the Complainant has to prove is that the goods transported were lost or damaged. Evidence adduced by the Complainant establishes that most of the household articles sent by the Complainant through the Opposite Party were damaged. The Opposite Party has condemned the Complainant of suppression of material fact, but the Opposite Party itself has not produced on the record a copy of the survey report as submitted by the insurance surveyor, who might have been appointed by the insurance company at the behest of the Opposite Party. The Complainant had no access to that survey report and he could not lay his hand on the same, but certainly the Opposite Party could have secured the same to produce the same before this Forum. That would have been best piece of evidence to rebut the allegations of the Complainant that most of the articles were damaged and in a mutilated condition. [14] In view of above, we prefer to accept the allegations in the complaint that the household articles dispatched by the Complainant from Delhi to Mumbai through the vehicle of the Opposite Party were damaged and the Complainant suffered loss on account of the same. In the complaint, the Complainant has mentioned that his initial assessment of the damage & pilferage as shared with the APM was an amount in sum of Rs.1,29,100/-, whereas the Opposite Party had offered him an amount in sum of Rs.30,000/-, which was not a just compensation. We propose to direct the Opposite Party to pay to the Complainant, an amount in sum of Rs.1,30,000/- by way of compensation towards damage caused to his household articles in transportation. In addition to the above, the Complainant has sought compensation in sum of Rs.1,50,000/- towards mental agony & harassment. From the evidence on the record, we find that the Complainant had to suffer lot of hardship & inconvenience on account of not getting his household articles on time and getting the same in a damaged condition. The Complainant had to pursue the matter for quite a long time and had to enter into correspondence with the Opposite Party. On the face of facts of the case, we find that compensation in sum of Rs.25,000/- towards mental agony & harassment caused to the Complainant due to negligence on the part of the Opposite Party, would be just & adequate. With this, we proceed to pass the order as below:- ORDER The complaint is partly allowed. The Opposite Party is hereby directed to pay to the Complainant, an amount in sum of Rs.1,30,000/- towards compensation for damage to the household articles belonging to the Complainant. The Opposite Party shall also pay to the Complainant, an amount in sum of Rs.25,000/- towards compensation for mental agony & harassment. The Opposite Party is further directed to pay to the Complainant, an amount in sum of Rs.10,000/- towards costs. The Opposite Party is hereby directed to comply with the foregoing order within a period of six weeks from the date of receipt of this order failing which, the Opposite Party shall also be liable to pay to the Complainant, interest @ 9% p.a., on the amount due to the Complainant, as per foregoing order, as from the date of expiry of stipulated period of six weeks till realization of entire amount by the Complainant. Rest of the claims of the Complainant stands rejected. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
