PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they caused damage to the household articles which were entrusted to theme for safe transporting from Chennai to Mumbai.
2) The facts of this case as stated by the Complainant are that the Complainant has availed the services of Opposite Parties for shifting his household goods from Chennai to Mumbai. He has paid the charges for availing this service.
3) It is further submitted by the Complainant that Opposite Party No.1 is engaged in the business of packing & moving the goods. Opposite Party No.2 is also transporter who has transported the goods from Chennai to Mumbai on instruction of Opposite Party No.1. The household articles which were to be transported from Chennai to Mumbai consisted of valuable and rare China & Porcelain crockery and vases. Opposite Party No.1 being professional reputed packers & movers the work of shifting was entrusted to the Opposite Party No.1. Opposite Party No.1 on 11/07/06 offered his services for safe packaging and damage free transportation of the household articles of the Complainant. The Opposite Party No.1 took charge of the household articles and packed them into 13 cases and entrusted them to Opposite Party No.2 for transportation the same from Chennai to Mumbai. The packed articles reached Mumbai on 24/07/06. At this time, some cases were found with holes from the side and it was stated by the representative that it was because of octroi checking. Out of 13 cases 11 cases were opened as they were containing immediate household articles. Case No.8 & 9 of the packing list containing crockery and antic pieces were not opened as they were not immediately needed and due to extensive travelling of the Complainant. The articles in these cases are packed in plywood boxes. When the Complainant opened these cases (Complainant has not mentioned as to when he opened theses cases) he found the crockery and antique porcelain vases in broken condition.
4) It is further stated by the Complainant that when the above facts were communicated to the Opposite Party, there was no proper response but ultimately they sent a junior person. Broken pieces were shown to Opposite Party No.2 person. The Complainant registered his complaint vide his letter dtd.17/08/06 and 31/10/06 with Opposite Party No.1 complaining that the articles were not packed properly (with bubble papers).
5) It is clarified by the Complainant that the charges of Opposite Party No.1 include insurance cover. The insurance was done by Opposite Party No.1. the surveyor came for inspection. According to the Complainant the value of the crockery declared was Rs.1 Lac. The Complainant lodged his claim with the Opposite Party but there was no response regarding the compensation. Thereafter the Complainant issued a legal notice dtd.23/01/07. The Opposite Party No.1’s Advocate replied this notice and denied the liability and allegations mentioned in the legal notice.
The Complainant has estimated the loss on the octroi declaration basis is Rs.1 Lac. At the same time the Complainant states that he is entitled to a claim of Rs.2,50,000/- alongwith interest, compensation for mental agony and cost of the complaint.
6) The Complainant has attached the xerox copies of the following documents alongwith his complaint such as, Advocates notice dtd.23/01/07, consignment fixed up receipt dtd.11/07/06, consignment note No.374757 dtd.13/07/06, special contract form from the Complainant, receipt No.256927 dtd.15/07/06 for Rs.6356, Photographs of broken crockery, letter dtd.17/08/06, 31/06/06 from the Complainant packing list by Opposite Party No.1, Advocates reply dtd.14/02/07.
7) The complaint was admitted and Opposite Parties were served with the notices. They appeared through their advocate and filed their written statement jointly. They denied the allegations of deficiency and unfair trade practices and further stated that they are doing the business of packing and transporting. In this case, it is the contention of Opposite Parties that the insurance surveyor has assessed the loss of goods to the tune of Rs.10,000/-. This was not challenged by the Complainant.
8) It is further clarified by the Opposite Party that the goods of the Complainant were packed under the supervision of the Complainant as per standard procedure. The goods like, of glass, fragile items like crockery/show pieces, were first properly covered with newspapers in many layers to avoid touching each other and then properly placed in the boxes between polythene sheets and bubble papers at top & bottom. It was stated by the Opposite Parties that the valuation of the articles was certified by the Complainant. These items were duly insured under an insurance policy and in this connection a G/C. Note No.374757 dtd.13/07/06 was issued by the Opposite Party. At the same time Opposite Parties denied that the valuation of damaged articles is Rs.1 Lac. In fact the goods were safely transported and delivered to the Complainant in intact condition on 18/07/06. It is alleged by the Opposite Party that the goods were damaged during internal shifting and the Complainant has tried to claim the loss through insurance by 1st arranging a survey on 07/09/06, i.e. after one and half month from the date of delivery. After 6 months of delivery of the goods, the Complainant lodged false claim with the Opposite Party. This claim was rejected by the Opposite Party.
9) The Opposite Parties have further stated that the Complainant had duly filled up the special contract form and in this form the Complainant has agreed that the courier is not liable for any kind of damage during transit and the Complainant is availing an insurance policy for this purpose.
10) The Opposite Parties have denied that the cases were found with holes & the representatives have told the Complainant that it was during octroi checking. The Opposite Party denied that the Case No.8 & 9 were packed in plywood boxes but the said material was properly packed in the plastic boxes of Opposite Party and at the time of delivery the items were delivered and the plastic boxes were taken back. They further stated that no junior person was sent and no assurance was given by him of whatsoever nature as alleged by the Complainant. The Opposite Parties have also denied that they received any complaint letter dtd.17/08/06 or letter dtd.31/10/06 as alleged by the Complainant.
11) The Opposite Parties have submitted that the letter of the advocate of the Complainant was the 1st letter of claim received by them for the above said claim and this letter was duly replied by them. It is further submitted that they sent a letter to the insurance company which has supplied a xerox copy of the surveyor’s report dtd.28/09/06.
12) The Opposite Parties have further denied that the goods were damaged during the transit and finally stated that complaint is filed in order to misuse provision of the Consumer Protection Act and the Complainant is not entitled to any kind of relief.
13) The Opposite Party has attached the xerox copies of the document dtd.18/09/06 issued by M.R. Shenoy, the surveyor and his report. Opposite Parties also filed affidavit of evidence.
14) The Complainant also submitted its affidavit of evidence and written argument wherein he reiterated the facts mentioned in the complaint. The Opposite Parties also filed the written argument and additional written argument alongwith the documents as earlier submitted by the Complainant a survey report and some photographs.
15) We heard the Ld.Adovate for the Complainant as well as Opposite Parties. We also perused the papers submitted by both the parties and our findings are as follows –
The Complainant has availed the services of the Opposite Parties. As per this service, the Opposite Parties were to transport the household articles of the Complainant form Chennai to Mumbai. The services of the Opposite Party comprised of packing and transporting the household articles. Accordingly the Opposite Parties have transported all the 13 cases to Mumbai and delivered them to the Complainant on 24/07/06. The Only consumer dispute is that the two cases, containing crockery, when opened by the Complainant, some of the crockery was found damaged during the transportation. The Complainant has not mentioned the date when he opened these cases. It is the complete denial of the Opposite Party that the two cases containing the crockery, cases are damaged during the transit. It is the contention of the Opposite Parties that the consignment was delivered to the Complainant on 24/07/06 in intact condition safely, without any damage to the contents of case no.8 & 9 containing the crockery. It is the allegation of the Opposite Parties that the damage to the crockery if any, might be during internal handling of these items while keeping the crockery in the house. In this connection we have carefully scrutinized the papers submitted by the Complainant and the Opposite Parties. The consignment was received on 24/07/06 by the Complainant. The Complainant has alleged that he called the Opposite Party No.1, 7 to 8 times before sending letter dtd.17/08/06 and 31/010/06 but there was no response. The Opposite Parties have denied of having received any letters dtd.17/08/06 or 31/10/06 as alleged by the Complainant. The Opposite Party has stated that they received the advocates notice dtd.23/01/07 after the delivery of the consignment on 24/07/06 i.e. after about 6 months. At this time only they came to know that there was damage to the crockery. Meanwhile there was a report from the surveyor Mr. Shemi & Associates. This report is dated.18/09/06. The surveyor has visited the place for survey on 08/09/06. This survey was at the request of the Complainant and not of the request of Opposite Party.
16) These all circumstances indicate that the consignment was received by the Complainant on 24/07/06. But due to certain reason, he could not open the case and signed on the back of the goods consignment note no.374757 mentioning that he received 13 cases. The Complainants averment is that the damaged items were in a packed wooden case so he could not immediately find out that the crockery was broken. At the same time, it is the contention of the Opposite Party that the crockery was packed in its plastic containers. The items were delivered to the Complainant and plastic boxes were taken back and therefore, it cannot be said that the crockery was broken in the transit. There is nothing on record till 08/09/06 i.e. upto 1st months to show that the Complainant made any complaint before the Opposite Parties or to the insurance regarding the damage to the crockery.
17) We have also scrutinized the survey report of Mr. Singhvi & Associates. This survey was done at the request of the Complainant and not at the request of the insurer or the Opposite Parties. According to this report 12 glasses, 4 plates of dinner set and 2 plates of antic dinner set were found damaged causing loss of Rs.10,000/-. The insured value of all the crockery/dinner set was Rs.1 Lac. But the insured did not give individual value of the above said items. As per average value, the surveyor has recommended Rs.10,000/- for the broken items.
18) It is also mentioned in this report under the head-cause of damage that “Based on the visual inspection made by us we are of the opinion that, the above mentioned household goods damaged due to rough road condition of inland transits truck, must have experienced heavy jerk/thumps blows and pkgs must have banged with each other or lorry deck heavily. We feel, because of heavy jerks/thump items got damaged.”
19) Thus, the surveyor has also indicated that the damage has caused during the transit from Chennai to Mumbai. From this report it is seen that the damage was caused to the crockery and antic set valued at Rs.10,000/- only.
20) The other important contention of the Opposite Parties is that the Complainant has duly filled up the special contract form and the Complainant has agreed that, the courier is not liable for any damage during transit. In this connection, we perused this form. This form is addressed to Opposite Party No.2 and signed by the Complainant and basically it is a request to arrange for insurance cover for any damage to the goods in transit. It is mentioned in this form as follows -
“At owner’s risk to transit Risk by Insurance Co. covers only accident risk by insurance co. Premium @ 0.6 % carrier is not responsible for any damage/breakage due to any reason during transit.” The signature of the Complainant appears at the bottom of this document but, in para 8 of the affidavit of evidence of the Complainant, he has stated that “And with reference to the spl. Contract form which the Opposite Parties state that the Complainant has singed the Complainant very humbly states that he is totally unaware about any such contract being true and signed by the Complainant. This contention of the Complainant is not a satisfactory statement and convincing statement. He neither denied that the contents of the special contract nor he accepts it. But the special contract from is on record. The Opposite Party has produced the carbon copy of this form. The signature of the Complainant clearly appears on this form confirming Opposite Party No.2 that the carrier is not responsible for any damage/breakage due to any reason during transit. Thus, in view of this expressed, special contract the Complainant has released the Opposite Party from its liability.
21) The Complainant has submitted two judgments of Hon’ble National Commission in Revision Petition No.2330/09 and 1026/11 in Agarwal Packers & Movers DRS Transport P(Ltd.) V/s. Ranasharma and Agrawal Packers & Moves, DRS Transport P (Ltd.) V/s. Alok Chaturvedi. We carefully went through these judgments. Though, the petitioner is the same i.e. Agarwal Packers and Movers, DRS Transport (P) Ltd. There is nothing about special contract singed by the Complainant in favour of the Opposite Party No.2 as discussed in para 19 above. In these judgement the points which were taken into consideration was in respect of jurisdiction of Fora and quantum of damage. The point as discussed in para 19 above is a new point of special contract between the Complainant and the Opposite Party No.2. In this special contract, the Complainant himself has voluntarily stated and signed that the carrier of the goods are not responsible for damage/breakage during the transit. Therefore, in our candid view, taking into consideration all the facts of the case and the breakage of the crockery worth Rs.10,000/- during the transit (as per survey report), it will not be just and proper to hold the Opposite Parties liable for the damage, in view of the above said special contract.
22) We have also perused the contracts of original Goods Consignment Note No.374757 dtd.13/07/06 issued by DRS Transport (Opposite Party No.2) conspicuously mentioning in Read printing as “Not responsible for leakage & breakage. It also bears the consigner’s signature.
23) In view of the observations mentioned above, we pass the following order -
O R D E R
i)Complaint No.170/2007 is hereby dismissed for want of merits.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties free of cost.
