Dt. 19.05.2016
JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 28.08.2014, passed by the Ld. District Consumer Disputes Redressal Forum, Unit - I, Kolkata, in CDF Unit -I / Case No. 511/2013, whereby the complaint was allowed ex-parte with cost and compensation against the OPs.
The complaint case, in brief, was as follows :
The Complainant made a contract with the OPs for shifting of her household goods from her Delhi residence to Bandel for a sum of Rs.55,650/- as total charges for transportation, including packing, loading and delivery. The number of items to be shifted was 31 and each item was valued separately in a list . The loaded truck arrived on 06.04.2012 at its destination . All the packages were found wet by rain water . The delivered items were found to be damaged. Immediately a letter was sent to the OP company on 06.04.2012. The Field Officer of the OP company inspected the damaged items on 08.04.2012. The Complainant, vide her letters dated 11th and 12th April, 2012 claimed compensation for the loss caused due to damage of the transported items and fax message was sent on 27.06.2012. A written complaint was addressed to the Directorate of C.A and F.B.P., Government of West Bengal , for redressal of her consumer dispute. At the mediation meetings on 10.08.2012 and 09.10.2012 some agreements were reached and some conditions were imposed on the OPs who failed to comply with the agreements reached in the tripartite meetings. It was also found that some more damages were caused. A letter was sent to the OP, but to no effect. As such, on the ground deficiency in service on the part of the OPs the petition of complaint was filed with prayer for refund for Rs.50,000/- with interest @ 15% P.A. and also Rs.1,00,000/- for compensation for deficiency in service and another sum of Rs.1,00,000/- as compensation for unfair trade practice, apart from payment of Rs.10,000/- suffered by the Complainant for payment of advance made for hotel and conveyance etc.
Notices were served upon OPs, but none of them turned up. Accordingly, the matter was proceeded with ex-parte against the OPs.
Ld Forum below having gone through the evidence and documents, in particular, observed that in spite of several correspondences with OPs and inspection of the damaged items by the Field Officer, no compensation was paid. As the case was not contested by filing any written version, the evidence adduced by the Complainant went unchallenged. The case was allowed and the OPs were directed to pay jointly and/or severally a sum of Rs.30,000/- as compensation and harassment and mental agony and a sum of Rs.5,000/- as litigation cost within 45 days from the date of communication of the order, in default, an interest @ 10% P.A. shall accrue over the entire sum till full realization.
Being aggrieved by dissatisfied with the order of Ld Forum below, the Complainant -turned - appellant has come up before this commission with prayer for direction to set aside the impugned order on the ground of inadequate compensation as awarded by the Ld Forum below.
Ld. Advocate appearing for the Appellant/ Complainant submitted that the total value of the transported items was Rs. 2,00,000/- out of which the value of the items totally damaged during transportation was worth Rs. 70,500/- and the other items were also damaged for which a compensation of Rs. 2,00,000/- was claimed. In spite of issuing letters to the Respondent for compensation against the damaged items , no action was taken by the carrier. Ld. Forum below considered the evidence and other materials on record but only a small amount of Rs. 30,000/- was allowed as compensation for harassment and mental agony, but the cost of damaged items was not granted , though the allegation about deficiency in service was not disproved by appearing and contesting the complaint in any manner. There was utter negligence on the part of the OP transporter who was solely responsible for the damage caused to the transported household items. The impugned order is therefore liable to be set aside with grant of prayer as filed with the petition of complaint.
Ld. Advocate appearing for the Respondent/OPs submitted that the items transported by the carrier were under the owner’s risk and that the damage was caused during transportation was not reported to the carrier. The letter said to have been sent to the OP / Respondent does not appear who have been received by any authorized person or staff of the OP / Respondent. Hence, the allegation of the Complainant/ Appellant that notice was sent to the OP/Respondent does not stand. Further, no expert evidence could be produced by the Appellant/ Complainant in support of her allegation that most of the transported items were fully damaged causing a loss of Rs. 70,500/- . Ld. Advocate also cited the order of the Hon’ble Supreme Court as reported in AIR 2004 SC 5147 ,2004 (11) SCC 545 and 2005 (7) SCALE 319 and also the order of this Commission in SC Case No. FA/497/2013 , asserting that the complaint was not maintainable in the absence of notice under Section 10 of the Carriers Act. It was also submitted that the appeal having no merit deserves to be dismissed.
We have heard the Ld. Advocates and perused the memorandum of appeal along with the impugned order , the petition of complaint and other documents including the receipt issued on behalf of the OPs showing payment of Rs. 55,650/- towards transportation charges of household goods , the list of 31 items and letters issued to the Chief Administrative Officer, M/S Agarwala Packers and Movers Ltd., and also an affidavit on oath praying for refund of 50,000/- with interest @ 15 % p.a. along with Rs.10,000/- for loss suffered by her for the advances for hotels and conveyances and also Rs. 1,00,000/- each for compensation for deficiency in service and unfair trade practice.
Decision with Reasons :
The point for consideration is whether the impugned order is to be interfered with for any cogent ground .
There is no dispute that the Complainant/ Appellant hired services for consideration in connection with transportation of 31 house hold items from Delhi to Bandel .
The grievance of the Appellant/ Complainant was that because of negligent and careless service of the OP carrier, several items were damaged fully while some other items were also damaged to certain extent. The Complainant appears to have written a letter addressed to the OP No.3 which was received on 06.04.12. The list of articles 31 items was prepared and handed over to the OP . It is obvious that the OP entrusted the transporter for packing, loading and transporting the said items. It is also on record that Rs. 55,650/- was received by the OP / Respondents towards transportation charges of her house hold goods.
The fact remains that none of the OPs appeared before the Ld. Forum below in spite of service of notice upon them as noted in the impugned order . Again , there was no appeal filed against the impugned order by the OPs/ Respondents .
The Complainant/Appellant sent letters to the Respondents /OPs asking for compensation on the ground of her grievance about damage of the household goods and there is no denial about the fact that a field officer attached to the Kolkata office of the OP named Sri Chotka inspected the damaged articles as reported by the Appellant / Complainant from which it is evident that the OPs were aware of the reported damage . No response was sent by them in any manner. Considering such facts and other materials on record , Ld. Forum below awarded a sum of Rs. 30,000/-only as compensation and Rs. 5,000/- as litigation cost. Appellant/ Complainant appears to have placed no expert evidence as to the value of the alleged damage which could have been considered by the Ld. Forum below. We find no reason to interfere with the impugned order. The appeal towards further compensation and relief does not stand . Hence,
Ordered
That the appeal be and the same is dismissed on contest . The impugned order is confirmed. There shall be no order as to cost. The Respondents are directed to pay the decreed amount of Rs. 35,000/- to the Appellant/ Complainant within a period of 40 days from the date of this order, failing which an interest @ 8% shall accrue on the said sum till the date of full realization.
