Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-64/19.03.2019
Varun Khandelwal s/o Sh. V.K. Khandelwal
r/o 5-C/73, New Rohtak Road, Karol Bagh,
New Delhi-110005 …Complainant
Versus
M/s Agarwal Packers and Movers Limited
(through its Chairman/ Managing Director)
Agarwal Movers Group, Opposite Crescen Public School,
Saraswati Vihar, Pitam Pura, Delhi-110034
Regd. Office:-49, Ground Floor, Eastern Chamber,
128/A Poona Street, Dana Bundar, Mumbai-400009 ...Opposite Party
Date of filing: 19.03.2019
Date of Order: 16.09.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) –The complainant availed services of OP for transporting his household goods from Mumbai to Delhi, however, many articles were damaged in transit and he has grievances that despite payment of huge transportation charges as well as assurances that articles will be delivered intact, but there were damages/broken and the damages were not reimbursed. There is deficiency of services. The complainant seeks amount of Rs. 2,00,000/- towards damages to goods suffered, apart from another claim of compensation of Rs. 2,00,000/- on account of mental pain, agony and harassment & other appropriate relief.
1.2. The OP opposed the complaint that there was no deficiency of services, the complainant was rendered complete services in respect of part load consignment from Mumbai to Delhi and freight charges were taken accordingly, it was agreed by the complainant and it was including charges for packing, unpacking, loading and unloading charges, insurance cover. Had the consignment booked for dedicated vehicle, the freight charges would have been on higher sides. There was minor damage to four items, which was surveyed by the surveyor and damage of Rs. 20,000/- was estimated and offered being reasonable amount. The complaint was filed to extort the money from OP.
2.1. (Case of complainant) – The complainant intending to take the services of OP for sending goods from Mumbai to Delhi as the same were to be transported without any damages, he opted services of OP, who prepared the inventory of the goods to be sent from Mumbai to Delhi. OP prepared consignment note no. GCMUM/ 181905388 dated 21.10.2018 (but without bifurcating each item value wise, which revealed subsequently that it was intentional and with mala fide motive). The OP charged Rs. 33,000/- as freight charges without bifurcating government taxes, cess, amount of insurance, octari, GST and other taxed as applicable. The complainant signed the consignment note since he has to send the goods without being damaged and speedily. The paragraph 5 of the complaint enumerates 16 items, number of packets and particulars of the items, its value and total value was Rs. 4,97,000/-.
2.2. The OP undervalued the goods for Rs. 70,000/- to be transported from Mumbai to Delhi by pretending that actual shown value will create hindrances of deliver of goods. Since complainant was to send the goods immediately and safely, he conceded to the advices of OP but lateron it revealed that complainant was cheated by the OP for its ulterior motives. The goods sent were worth of Rs. 4,50,000/- approximately for which complainant paid Rs. 33,000/- as freight charges but OP committed criminal breach of trust by undervaluing the goods that it should not exceed Rs. 70,000/- despite objection raised by the complainant.
2.3. On 29.10.2018 the goods were delivered at the residence of complainant but he was shocked to see that goods delivered were damaged and in broken condition, the complainant raised the objection and also wrote immediately besides that the goods were undervalued, the objections were acknowledged by the employees of OP.
Thence, the complainant has been writing/contacting the OP by 30 mails reiterating his grievances but OP started adopting illegal and unprofessional attitude. Moreover, the photographs and documents of articles were taken by the surveyor, which complainant understand the same were forwarded to insurance company for further assessment of loss. The OP offered a sum of Rs. 20,000/- as compensation by admitting its negligence and deficiency in services. The meager amount of compensation of Rs. 20,000/- was not acceptable to the complainant since the actual loss was more than Rs. 2,00,000/-, which complainant specified in his letter dated 29.10.2018 and further email since 30.10.2018. It was followed by legal notice but there is no satisfactory reply by the OP. However, the OP by its letter dated 08.12.2018 tried to explain the component of freight charges includes insurance, GST, octroi, other taxes etc. but that information was never provided to the complainant earlier, being evident from the receipt issued. The acts and deeds of OP are against the norms, there is deficiency of services and it has also caused mental agony, pain and harassment, that is why the complaint.
2.4. The complaint is accompanied with receipt of Rs. 33,000/-, goods consignment note, inventory sheet, complaint/ grievances dated 29.10.2018, survey sheet, email, legal notice dated 18.01.2019 and its reply of 12.02.2019 by OP.
3.1 (Case of OP)- The OP has filed detailed reply by responding in its own ways in the form of preliminary submissions in detail running into 15 pages, preliminary objections in one and a half page and reply on merits 12 pages. There are repeat of various facts. The preliminary objection is that there is no deficiency of services or any fault on the part of OP, in fact the complaint is misconceived, mala fide and it was filed as a misuse of process of law.
3.2. The complainant booked the consignment from Mumbai to Delhi, the consignment was taken as per norms and freights were charged as agreed after the complainant agreed by valuing the consignment for Rs. 70,000/-, it was booked as part load consignment, that is why the freight was Rs. 33,000/- otherwise the freight charges for a dedicated vehicle is much more than what the complainant has paid. The OP has record of voice recording of 20.10.2018, which confirms its acceptance about the declaration by him of value of consignment and freight charges. The OP denies the allegations that consignment was more than Rs. 4,00,000/- or the staff of OP at Mumbai had undervalued it for Rs. 70,000/- or there was issue of transit problem and so on.
3.3. There were no such damages as alleged by complaint. There was complaint of damage to shoe rack, microwave, central table and AC pipe initially but the complainant further escalated it with the services of fitting of AC and TV, the fitting of AC and TV/ electrical were not part of transit of the goods.
There was small dent on the backside of microwave, which confirms from the photographs, it may be existing prior to packing, however, it escaped from notice while packing it; otherwise OP has considered it for damages to be payable by suitable compensation. There is shoe rack, its legs were broken but it could be repaired, OP accepts the damages for payment of compensation. The third damage is to central table the complainant deserves payment of compensation of its repairs or declared value as per terms and conditions. The fourth damage is to AC pipe, it is normally damaged once AC is removed from the fitting, it deserves to be compensated if insisted upon. However, the value of goods were never Rs.4,97,000/- or more than Rs.4,00,000/- nor the complainant has declared so but Rs. 70,000/-.
3.4. The freight of Rs. 33,000/- was comprising of packing, unpacking, loading, unloading charges apart from Rs. 2,100/- towards transit risk coverage for value of Rs. 70,000/- declared by the complainant.
3.5. The reply reproduces the terms and conditions along with reference of Section 20 of Carriage by Road Act 2007 and Rule 20 to emphasise that the consignment was taken as per rules, the goods were packed in 16 packages and the same were transported from Mumbai to Delhi, there was some damages happened, for which complainant has also ventilated his grievances but the claim being made is disproportionate to the damages. The claim of complainant was forwarded to insurance company, who deputed an approved Surveyor & loss Assessor, The OP even requested the surveyor to handle the case of complainant on priority basis, the loss assessed was Rs. 20,000/- being reasonable against declared value of goods. The complainant has intention to extort money rather than to seek reasonable compensation. Therefore, complaint is liable to be dismissed.
4. (Replication of complainant) – The complainant filed detailed replication, heading-wise, and all the allegations of reply were denied, with request that bona fide claim of genuine loss has been filed, which is a an admitted fact of the OP.
5.1. (Evidence)- Complainant Varun Khandelwal filed his detailed affidavit, while taking support from the documents annexed with the complaint.
5.2. OP led its evidence by filing affidavit of Archana Chaubey, AR of OP and affidavit of Archana Chaubey is reproduction of contents of reply, she also authored the reply.
6. (Final hearing)- Both the sides filed their respective written arguments, their arguments are replica of pleadings and evidence. Sh. Pankaj Jain, Advocate for complainant and Sh. Adil Raza, Advocate presented their oral submissions. The complainant is seeking support from following case laws:-
(a) Shreedhar Govind Kamerkar vs Yesahwant Govind Kamerkar, 2007 III AD (S.C.) 141 held that “in a case of this nature, the conduct of the parties assumes significance. Admission, as is well-known, is the best proof of a claim. Section 58 of the Indian Evidence Act states that the facts admitted need not be proved.
(b) Charan Singh vs Healing Touch Hospital and Others, AIR 2000 SC 3138, held that “while quantifying damages, consumer forums are required to make an attempt to serve ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge.”
7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record as well as the contentions raised by the parties. On plain reading of the case of the parties, it manifests that some facts are mentioned by the parties which could have support of documents but documentary record was not filed regarding those facts. Some of the facts are emerging from the correspondence between the parties besides admitted facts. To say, it is a partly case of documentary record of the parties, oral narration of a few facts by a party against the other party & vice-versa besides the partly circumstances emerging from the rival stand, therefore, principle of preponderance of probability will also play its role. Therefore, all the points are being taken one by one.
7.2.1. The total value of the goods declared by the complainant was Rs. 70,000/- and corresponding freight charges of Rs. 33,000/- (which includes insurance cover of Rs. 2,100/-, also loading, unloading, packing, unpacking labour charges) are undisputed facts vis a vis OP has not issued any receipt splitting such charges. The complainant narrates in complaint that total value of the goods were Rs. 4,97,000/- but there is no documentary record filed in respect of such value of the goods or of any of the item so mentioned vis-à-vis it is admitted case of complainant that declaration of goods was of value of Rs. 70,000/-. Similarly, OP has issued receipt of Rs.33,000/- without specifying headings of charges. The complainant would not derive any benefit that such declaration were under advices of OP or otherwise under misadvises, since complainant authored them.
7.2.2. The OP in its reply states that insurance company has appointed the surveyor, who assessed the loss and reasonable amount assessed was Rs. 20,000/-. OP has not filed any such record of assessment of loss of Rs. 20,000/- by insurance company or surveyor's report. Simultaneously the complainant has proved email (at page 31) of OP, wherein the OP acclaims that OP has appointed an insurance surveyor from the insurance company to ascertain the losses; could it be believed that the OP has authority to appoint surveyor of the insurance company to ascertain the loss at the instance of OP or for insurance company? It is not so. There is exaggeration by OP.
7.2.3. The complainant has proved goods consignment note along with inventory sheet issued by OP; it not opposed by OP. There is specific column of value of goods against each package but the OP has left it blank. The OP has not explained it as to why it was left blank (?), especially OP is a professional packers, mover and carrier, OP is author of inventory sheet. It cannot be considered an omission, since OP was very conscious what column was to be filled in.
There is no proof of record by OP as to how compensation of Rs. 20,000/- was assessed in respect of damages caused to articles, since the inventory sheet does not depict value of any of the items mentioned corresponding each package.
7.2.4. There is inter-se correspondence of emails between the parties, which is matter of record and no disputed.
7.2.5. The complainant has initially complained of damage and broken of delivered articles. The delivery of consignment was done on 29.10.2018 and immediately email was written while specifying those items (as per serial number mentioned in the inventory sheet) as item no. 1,3,4,5 and 6 were damaged (which are shoe rack and side table), item no. 8 (Microwave broken/ damage) and item no. 11 (Central table, all three tables were broken/ damaged). Subsequently the complainant has further grievances of damage to AC pipe. The OP in its reply as well as in the evidence confirms those damages but with explanations either they could be repaired or appropriate repairs charges or compensation is deserved by the complainant.
7.2.6. The aforementioned discussion culls out that many articles were broken or damaged during transport from Mumbai to Delhi in carrier of OP, they were in use or used articles but it were packed by OP's staff in fine condition. Some of them were delivered in damaged and broken condition, for which OP has conceded compensation of Rs. 20,000/- as per the advises of the insurance company but this amount was not acceptable by the complainant on the ground that the goods are worth more.
7.3. In view of the discussion and conclusion in para 7.2 above, the following further conclusions are drawn:-
(i) The complainant has not proved documentary record of the value of the goods and simultaneously OP has also not recorded/ mentioned value of each article of good in the specific column in consignment note. That is why it is a situation of oral plea of one party against the oral plea of other party.
(ii) There were total 16 items and corresponding packages. Shoe racks are item no. 1,2,3,4,5,6 in the inventory sheet (its total value is stated as Rs. 1,20,000/- in para 4 of the complaint and affidavit of evidence) but out of them item no. 1,3,4,5,6 were damaged/ broken, its pro-rata value would be Rs. 1,00,000/- on that basis.
By taking total value of Rs. 4,97,000/- as a base ( for all goods as mentioned in evidence) and the declared value of Rs. 70,000/- (by the complainant in consignment note), then Rs.70,000/- is 14% of Rs. 4,97,000/-. Since, no other method is appearing appropriate for want of documentary record, this basis of 14% can be considered and applied for determining the issues, being summary procedure. On this analogy the value of broken shoe rack comes to Rs. 14,000/- (being 14% of Rs.1,00,000/-, if that value is considered).
(iii) The item no. 8 is Microwave, its value is of Rs. 22,000/- as stated in complaint and evidence of complainant, its 14% comes to Rs. 3,080/-.
(iv) The item no. 11 is Central table with sides chairs, its value is shown of Rs. 70,000/- in the complaint and evidence of complainant, its 14% comes to Rs. 9,800/-.
(v) The value of loss of shoe rack, central table- set of three, and microwave comes to Rs. 26,880/- and the value of AC pipe is being determined as Rs. 500/- (since the OP suggests that there will be value of Rs. 500/- in respect of unspecified/unvalued goods), therefore, the total amount comes to Rs. 27,380/-, (round of Rs 27,400/-). The complainant is entitled for such amount in lieu of damaged articles delivered.
7.4. Accordingly, the complainant is held entitled for Rs. 27,400/- in lieu of damaged/broken articles, by computing on a formula of 14% being reasonable method for both the sides and preponderance of probabilities are leaning towards the complainant.
7.5. The complainant has also claimed compensation of Rs. 2,00,000/- against OP. By taking into account the stock of events taken place, efforts of complainant as well as other circumstances involved, compensation of Rs. 10,000/- is determined in favour of complainant and against the OP on account of such inconvenience, harassment and agony.
The complainant also claims other appropriate reliefs, since he has to file the complaint to seek his valid claim in lieu of damage to chattels, therefore, cost of Rs. 5,000/- is allowed in his favour and against OP.
7.6. So the complaint is allowed in favour of complainant and against the OP to pay amount of Rs. 27,400/- besides to pay compensation of Rs.10,000/- and costs of Rs.5,000/- to complainant.
OP is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, then OP will be liable to pay interest at the rate of 6% pa on amount of Rs.27,400/- from the date of complaint till realization of amount.
8: Announced on this 16th September 2023 [भाद्र 25, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
