Delhi

East Delhi

CC/13/2015

SUNITA - Complainant(s)

Versus

AGGARWAL MOVER - Opp.Party(s)

05 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 13/15

 

Ms. Sunita Batra

B-44, Takshila Apartments

57, I.P. Extension, Delhi – 110 092                                           ….Complainant

 

Vs.

 

1. Shri H.P. Singh, Director

M/s. Agarwal Packers & Movers (DRS Group)

454, 2^nd Floor, Patparganj Industrial Area

Delhi – 10 092

 

2. Shri Dayanand Agarwal, CMD
3. Shri A.K. Agarwal, Director
4. Shri Sanjay Agarwal, Director

All at: 220, 61, MG Road, Kabra Complex

Secunderabad – 500 003                                                                        ….Opponents

 

Date of Institution: 16.01.2015

Judgment Reserved for : 05.07.2017

Judgment Passed on : 14.07.2017

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Ms. Harpreet Kaur Charya (Member)

 

JUDGEMENT

            Jurisdiction of this forum has been invoked by Smt. Sunita Batra, the complainant against Shri HP Singh, director of M/s. Agarwal packers and movers (OP-1), Shri Dayanand Aggarwal, CMD (OP-2) Shri A.K. Agarwal, Director (OP-3) and Shri Sanjay Aggarwal (OP-4) alleging deficiency in services and unfair trade practice

2.         Briefly stated the facts of the complaint are that the son of the complainant was to leave for USA for his new job from Bangalore and he booked Honda City car number DL 4C AB 5705 vide consignment dated          7^th April 2014 along with 22 boxes containing household goods, vide consignment note dated 5^th April 2014 with the OP company.  The said consignment was to be delivered from Bangalore to Noida at the complainant’s address. The promised delivery date of Household goods and car was 15^th April 2014 and 19^th April 2014 respectively.  It is stated that        Rs. 35,517/- were paid in advance for which cash memo number 4300229 was issued.  It is stated in the complaint that the respondents delivered only         20 boxes of household goods and failed to deliver the car and the two boxes marked  3 and 21 in the packing list.  Despite follow up, the company officials failed to deliver the boxes.  During the first week of June 2014, one of the companies representative informed the complainant that the car had got damaged in an accident and the complainants were asked to contact            Shri H.P. Singh (OP-1). 

            It is further stated that the Complainants agreed to get their car repaired on the condition that OP shall compensate for the no claim bonus due to Insurance claim, OPs shall make the payment for repairs directly to the car workshop and thereafter handover the possession of the car to the complainant and during the period of repair, the car shall remain in company’s possession and company will handover the possession of the car after the completion of the repair subject to the full payment by OP.  Thus, the car was given for repair to M/S Ring Road Honda, Gurgaon, on 8^th June 2014 in the presence of OPs’ representative and the car was ready for delivery on          14^th October 2014 for which a repair bill of Rs. 2,55,433/- was raised, out of which Rs. 1,53,039/- were paid by the insurance and balance of Rs. 1,02,394/- was to be paid by OPs.  Despite several telephone calls and personal visits to OP-1, the amount of Rs. 1,02,394/- was not paid.  On 28^th November 2014,  OP-1 offered to pay Rs. 50,000/- as full and final settlement which the complainant declined.  Emails dated 24^th November 2014 and 27^th November 2014 were sent to the OP requesting them to handover the possession of the car and the boxes.  Feeling aggrieved, the complainant also filed a complaint with SHO, PS Madhu Vihar for registration of FIR. 

            It is further stated that the complainant ultimately paid Rs. 1,02,394/- to M/s. Ring Road Honda on 7^th December 2014  vide receipt number 7642.  Hence, the present complaint seeking reimbursement of car repair charges of Rs. 1,02,394/-, which the OP had agreed to pay, conveyance charges of          Rs. 1,50,000/- borne by the complainant and her family due to non availability of the car, depreciation charges of the car for the period for which the car was with the company, insurance charges of the car, loss of no claim bonus, compensation for loss of goods contained in two boxes to the tune of            Rs. 90,700/-, transportation charges of Rs. 35,517/-, cost of litigation as         Rs. 50,000/- and compensation of Rs. 14,00,000/- for physical and financial hardship and mental agony.

            The complainant has annexed copies of consignment notes (Annex. C1), money receipt number 4300229 (Annex. C2), car inventory (Annex. C3), letter written by OP-1 to the husband of the complainant (Annex. 4), email dated 24^th November 2014 and 27^th November 2014 (Annex. 5), complaint dated 30th November 2014 to the SHO, PS Madhu Vihar, receipt for payment of     Rs. 1,02,394/- dated 7^th December 2014 issued by Ring Road Honda and invoice for repairs with the complaint

3.         Written statement on behalf of OP-1 to 4 was filed after the service of the summons of the present complaint.  They took the preliminary objection that the forum did not have territorial jurisdiction as the cause of action had arisen in Bangalore and midway of Bangalore and/or at the consignor’s destination at Noida, where items were delivered to the complainant.  They also objected that the complainant was not the consumer as the consignment was booked by her son.  Hence, the present complaint could not be filed by her.  A reference was also given to the clause of terms and conditions that the liability of the carrier was limited.  It was also stated that the consignment was booked at carriers risk, for all risks and the claim was to be settled by the carrier as per the terms and conditions. It was submitted by OP that the article described in the packing list had been duly delivered to the complainant, which was acknowledged by the complainant by signing the delivery challan. Rest of the contents of the complaint were denied.

4.         Rejoinder to the written statement on behalf of OPs was filed by the complainant, where the contents of the complaint were reiterated and that of the written statement were denied.  It was submitted that the complainant being the recipient of the consignment as well as being the mother of the complainant was competent to file the present complaint.   It was also stated that the corporate office was within the territorial jurisdiction of the forum, thus the complaint could be filed in this forum. 

5.         Evidence by way of affidavit was filed by both the parties.  The complainant examined herself and stated the contents of the complaint on oath. She exhibited her affidavit (Ex.CW1/X),  authority letter in the name of the complainant (Ex.CW1/1), copies of election I. Card and Aadhar Card of the complainant (Ex.CW1/2) and (Ex.CW1/3), copy of RC of the car (Ex.CW1/4), consignment notes (Ex.CW1/5), cash memo no. 4300229 (Ex.CW1/6), copies of the packing list and car inventory (Ex.CW1/7), mails exchanged between the family of the complainant and respondents (Ex.CW1/8), letter signed by       Shri H.P. Singh (Ex.CW1/9), copies of final notices dated 24.11.2014 and 27.11.2014 (Ex.CW1/10 and Ex.CW1/11), copy of the complaint (Ex.CW1/12) and receipt and other related papers (Ex.CW1/13).

            OPs examined Shri Amitabh Sharma, Manager, Delhi office, who stated the contents of the WS.  He stated that the contents of the 2 boxes mentioned at S. No. 2 and 21 in the packing list, contained mixed items & TATA Sky Dish, the cost of which could not be more than Rs. 2,000/- and all the articles as described in the packing list had been delivered to the complainant which was duly acknowledged by the complainant by signing the delivery challan.  Reliance was placed on car inventory which was annexed as Annexure C3 of the complaint and marked as R/1.  Packing list was marked as Annexure R/2.

6.         We have heard the complainant and Ld. Counsel for OPs and have perused the material placed on record.  The first and foremost point, which requires determination, is with regard to the jurisdiction of this tribunal as the cause of action had arisen in Bangalore and midway of Bangalore and/or at the consignor’s destination at Noida.   No doubt, the cause of action had arisen in Bangalore and midway of Bangalore, certainly, this tribunal was not having jurisdiction to admit the complaint.  The fact that the complaint has been at the final stage, it will result in injustice to the complainant if the arguments of Ld. Counsel for the OP is accepted at this stage.  This argument of Ld. Counsel for the OP cannot come in the way of imparting substantial justice, as the competence of the forum is not in question.  When the competence of this forum is not in question, the technical ground of territorial jurisdiction cannot be accepted.  Therefore, the argument of Ld. Counsel for OP that this tribunal has no territorial jurisdiction cannot be accepted and the same stands rejected.

            Now, coming to the second preliminary objection regarding the locus standi of the complainant, OP has stated that the consignment was booked by Shri Prashant Batra and the present complaint has been filed by Smt. Sunita Batra, mother of Shri Prashant Batra.  Ex.CW1/1 is the authority letter issued by Shri Prashant Batra in favour of his parents (i) Shri R.D. Batra & (ii)           Smt. Sunita Batra, the latter being the complainant, further, the car which was booked is also in the name of the Smt. Sunita Batra, the complainant.  It is settled preposition that technicalities should not come in the way of imparting justice.  Hence, Smt. Sunita Batra is competent to file the present complaint.  Thus, this objection is also decided against OPs. 

            Now, coming to the merits of the case, booking of consignment is not disputed.  Ex.CW1/9 is letter, written by OP-1, Shri H.P. Singh to                     Shri R.D. Batra, husband of the complainant requesting the complainant to claim car insurance for repairs and also assured that the OPs shall pay the cost of repairs, which in case were disallowed under insurance claim and would also compensate the complainants for loss of No Claim Bonus due to claim and requested for signing of insurance documents.  Further, this letter bears endorsement signed by one Shri Pawan Sirswal, AGM stating the reason for damage as one tree had fallen on the car.  Complainant has also placed on record email dated 23.05.2014 which substantiates her assertion that OP had promised to pay the difference of amount after insurance claim.  Thus, when the total cost of repairs was Rs. 2,55,433/- out of which Rs. 1,53,039/- were paid by the insurance company and balance of Rs. 1,02,394/- were paid by the complainant, when OP had requested as per Ex.CW1/9 and emails that they will pay for the balance repairs, then they are bound to honour their commitment.  OP has not placed any documentary proof on record to prove that all the boxes had been delivered to the complainant.

            In view of the above, we are of the opinion that OPs have miserably failed in delivering services as promised.  OPs were bound to take utmost due care of the consignment and deliver it in intact condition to the complainant.  When they have failed to do so, certainly, there has been deficiency on the part of OPs.  Secondly, they promised the complainant to pay for repairs which they did not.  Hence, we allow the present complaint and hold OP-1 to OP-4 jointly and severally liable for deficiency in service and direct them to pay     Rs. 1,02,394/- alongwith 9% interest from the date of filing of the complaint.  We also award Rs. 5,000/- as cost of contents of the 2 boxes, which were not delivered by OP to the complainant and Rs. 30,000/- as compensation for mental harassment and agony, as the complainant was deprived from the enjoyment/use of her car, further she had to suffer loss of no claim bonus due to OPs.  OP-1 to OP-4 shall be jointly and severally liable.

          This order be complied within a period of 45 days. If not complied, the amount of Rs. 35,000/- (Rs. 5,000/- + Rs. 30,000/-) shall also carry interest @ 9% p.a. from the date of order. 

           Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                                  (HARPREET KAUR CHARYA)

Member                                                                                Member                 

 

(SUKHDEV SINGH)

President