RESERVED     

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                              UTTAR PRADESH, LUCKNOW

                                 APPEAL NO. 932 OF 2022

      (Against the judgment/order dated 06-06-2022 in Complaint Case

                    No.654/2015 of the District Consumer Commission, Gautam

                    Budh Nagar)

            M/s Agrawal Packers and Movers Limited

            Through Authorized Representative

            Corporation Office: Old Souk Mall

            Opposite Crescent Public School

            Sarswati Vihar, Pitampura

            Delhi-110034.

                                                                                              ... Appellant

                                                       V/s

1. Sri Arvind Kumar Gupta

R/o H. No. B-44, Sector-36

Noida, Gautam Budh Nagar

Uttar Pradesh

2. The Bharti Axa General Insurance Co. Ltd.

Through its Manager

Pearl Plaza, K24, Plot No.ABCD&E

3^rd Floor Sector 18 Noida-201301

3. Bharti AXA General Insurance Co. Ltd.

2^nd Floor, Big Jose Tower 8

Netaji Subhash Place, New Delhi.

                                                                                     ...Respondents                                                                                                      

BEFORE:

HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

For the Appellant                :  Sri Vishnu Kumar Mishra, Advocate

For the Respondent             :  Sri A K Zaidi, Advocate              

Dated :  01-05-2023

                                            JUDGMENT

PER MR. JUSTICE ASHOK KUMAR, PRESIDENT

The instant appeal has been filed by M/s Agarwal Packers and Movers Limited under Section-15/41 of the Consumer Protection Act, 1986/2019 against the judgment and order dated 06-06-2022 passed by the District Consumer Commission, Gautam Budh Nagar in Complaint Case No. 654/2015, Arvind Kumar Gupta V/s The Director/Concerning Officer, Agrawal Packers and Movers Limited and others.

Sri Vishnu Kumar Mishra, learned Counsel appeared on behalf of the appellant and Sri A K Zaidi, learned Counsel appeared on behalf of respondent/complainant.

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Brief facts of the case are that the respondent/complainant was residing at Rudrapur. In the year 2014 he got new appointment in HCIL Noida and therefore the respondent/complainant has to shift to Noida. The respondent/complainant approached the appellant/opposite party for transportation of his household goods. The employee of the appellant/opposite party insisted the complainant to book his Hyundai Car i20 for transportation via carrier and assured its safe delivery at Noida. On the assurance of the appellant/opposite party the respondent/complainant handed over his household items and new Car to the appellant/opposite party for transportation through carrier. The appellant/opposite party has delivered only household items and Car was not delivered. It was informed by the appellant that the vehicle met with an accident on 05-01-2015. The respondent/complainant visited Hyundai workshop that evening where he was shocked to see his damaged vehicle.

The respondent/complainant informed about the accident to the Insurance Company and filed claim form but the opposite party/Insurance Company sent a letter on 28-03-2015 demanding letter of subrogation etc. and informed that surveyor has assessed the loss to the tune of Rs.2,87,000/- on net salvage basis.

The opposite party/Insurance Company overlooked the prescribed procedure regarding survey and their preparation as well as totally ignored the capital Hyundai loss assessment bill of Rs.8,57,010/- which exceeds the IDV value i.e. which amounts to total loss of vehicle. The respondent/complainant approached the opposite party/Insurance Company for payment of total loss of vehicle but all in vain and the Insurance Company always insist and force the complainant to sign the letter of subrogation etc. as such the Insurance Company never pay attention to compensate the loss of vehicle to the complainant within the prescribed time limit which definitely creates mental agony and harassment to the complainant due to deficiency in service etc. of opposite party/Insurance Company.

It has been stated by the respondent/complainant in his complaint that the appellant/opposite party also ignored that the complainant paid total Rs.53,411/- for transportation of household items and vehicle through carrier but the appellant/opposite party transported

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the vehicle by road through driver which is against the terms and conditions which shows that the appellant/opposite party has committed deficiency in service. The loss suffered by the complainant is liable to be compensated by the appellant/opposite party.

It has been further stated by the complainant in his complaint that the opposite party/Insurance Company has executed the insurance policy of aforesaid vehicle and the vehicle met with accident and at the time of accident the said vehicle was duly driven by the license holder driver, therefore the opposite party/Insurance Company is liable to compensate the vehicle i.e. total loss amount despite of this the opposite party Insurance Company pressurize complainant to sign subrogation letter etc. which is totally unlawful. The complainant says that the opposite parties have done the act of negligence, deficiency in service and he faced mental pain and agony and monetary harassment. Thereafter the complainant filed the complaint before the learned District Consumer Commission, Gautam Budh Nagar with the following prayer:-

“The complainant therefore humbly prays that this complaint may kindly be allowed and the complainant be awarded with following reliefs against the opposite parties:-

1. Directing the non-complainant no.01 and 02 the value of the vehicle and refund of transportation charges etc. i.e. Rupees 10,00,000/-.
2. Directing the non-complainant no.03 and 04 to pay the insured values 5,93,000/- and rupees 2,00,000/- for mental agony etc.
3. Directing the non-complainant’s to pay rupees 1,50,000/- for applicant incurred expenses in daily convienance need etc.
4. Compensation for the cost litigation etc.
5. That non-complainant’s paid the interest at the rate of 18% on the whole amount from the date of complaint to upto the date of payment to the complainant’s.
6. Any other relief, which the Hon’ble Commission feels proper and justified, may also be granted to the complainant’s.”

The opposite party No. 01 and 02 i.e. M/s Agarwal Packers and Movers has contested the case before the learned District Consumer

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Commission, Gautam Budh Nagar and filed the written statement in which the allegation made by the complainant in his complaint has been denied.

The opposite party No. 03 and 04 i.e Bharti AXA General Insurance Company Limited has also contested the case before the learned District Consumer Commission, Gautam Budh Nagar and filed the written statement in which the allegation made by the complainant in his complaint has been denied. 

The learned District Consumer Commission after perusing the materials available on record and considering the evidence of the parties and after considering the arguments raised by the learned Counsel for the parties it came to the conclusion that the opposite party M/s Aggarwal Packers and Movers, to whom the vehicle was handed over for safe transportation, are liable for damage to the vehicle transported in breach of terms and conditions. The opposite party No.03 and 04 i.e. Bharti AXA General Insurance Company has been exonerated from its liability.

In view of the aforesaid reasons recorded by the District Consumer Commission the following order has been passed by the learned District Consumer Commission.

''Complaint is allowed. O.P. 1 & 2 are directed to pay the value of car and refund the transportation charge i.e. Rs.10,00,000/- alongwith 6% simple interest per annum from the date of complaint till date a payment. O.P. 1 & 2 shall also pay Rs.20,000/- for harassment and mental agony and Rs.5000/- as litigation cost. This order shall be complied within 30 days from the date of order.”

Feeling aggrieved with the impugned judgment and order the opposite party M/s Agarwal Packers and Movers Limited has come up in appeal.

I have heard the learned Counsel for the parties at length.

I have perused the impugned judgment and order passed by the District Consumer Commission as well as records.

Learned Counsel for the appellant has argued that the judgment and order is wholly illegal and erroneous and against the facts, law and record.

It has been argued by the learned Counsel for the appellant that the District Consumer Commission has passed the impugned judgment and

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order by discarding the cogent, truthful and consistent evidence led by the appellant.

It has been contended by the learned Counsel for the appellant that the car was booked for transportation from Rudrapur to Noida. The terms and conditions under which the car to be transported were also recorded in the said declaration form which inter alia contained that car is being transported under owners risk. The appellant accepted the said car for transportation as it was insured normally. The appellant transfer four wheeler by car carrier, the car carrier has capacity to carry normally 7 vehicle and it moves only after requisite number of vehicle are available. However, incidentally the availability of car was not visible shortly and in order to avoid further delay the car was sent through an experienced driver to Noida. Unfortunately the car met with an accident on 05-01-2015 near Pilkhuwa. The incident was reported to police station Pilkhuwa. The complainant has reported the incident to his under writer on 05-01-2015 seeking compensation of damaged car. The appellant furnished requisite documents from time to time and all actions as per contractual obligation were performed by them. The Insurance Company alone are liable to compensate the loss. The complainant has to pursue his case with his under writers.

It has been further contended by the learned Counsel for the appellant that the learned District Consumer Commission has completely ignored the facts that the insurance cannot take a stand on the basis of a contract, to which they have privity to absolve their own liability under contract of insurance. Therefore, if the vehicle was being driven by complying all the ingredients of legal movement of vehicle under contract of the insurance, the Insurance Company cannot deny the claim of insurance, but the learned District Consumer Commission has exceeded its jurisdiction allow the claim against the appellant wrongly without application of mind.

It is contended by the learned Counsel for the appellant that the District Consumer Commission has instead of accepting the letter of subrogation from insurer allowed the entire claim against the appellant alone in the clear contravention of laws. No document is produced or proved on record to justify the claims and claim has been in verbatim allowed, which is apparently wrong as per the record of the case. The

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impugned judgment has been passed without appreciating the evidence on record, overlooking the arguments and on the basis of assumption and presumption. 

District Consumer Commission has committed manifest error of law in wrongly appreciating the evidence on record on hypothetical conjecture and surmises. The District Consumer Commission has committed gross illegality in passing the award against the appellant.

It has been further argued by the learned Counsel for the appellant that the District Consumer Commission ought to have dismissed the claim petition as against the appellant instead of allowing the same. The District Consumer Commission ought to have exonerated the appellant instead of imposing the liability to pay the compensation.

Learned Counsel for the opposite party/complainant has argued that the order passed by the learned District Consumer Commission is perfectly correct and the learned District Consumer Commission has committed no illegality in passing the impugned judgment and order.

Learned Counsel for the opposite party/complainant has argued that the District Consumer Commission has jurisdiction to entertain and adjudicate the complaint and cause of action accrued to the complainant to file the complaint before the learned District Consumer Commission.

Learned Counsel for the complainant has further argued that the learned District Consumer Commission has applied its judicial mind to all the facts, circumstances and evidence and on judicious consideration of all the materials available on the record, passed the impugned judgment and order, which is perfectly legal and sustainable and allegations made by the appellant contrary to this are baseless and fit to be rejected and the appeal filed by the appellant is fit to be dismissed with exemplary cost to the complainant.

I have heard the learned Counsel for the parties and perused the record.

I have also perused the impugned judgment and order passed by the learned District Consumer Commission, Gautam Budh Nagar.

The learned District Consumer Commission has given a categorical findings in its judgment and order that the “vehicle was handed over to M/s Agarwal Packers & Movers for shifting it from Rudrapur to Noida. As per the terms and conditions under which car was to be transported was

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mentioned in goods consignment note dated 30-12-2014. The opposite party No. 01 and 02 themselves has mentioned in their written statement that car was to be transported by car carrier. According to opposite parties the car carrier has capacity to carry normally 7 vehicle and it moves only after requested number of vehicle are available. In this case as the availability of car was not visible shortly and in order to avoid further delay the car was sent through road. Unfortunately the car met with an accident near Philkhuwa. The incident was reported to police station Pilukhwa. It is clear from the statement in written statement that the car was to be transported by car carrier as per terms and conditions and the car was handed over to opposite party No. 01 and 02 for transportation. The opposite party 01 and 02 in breach of terms and conditions of consignment order send the car by road. The opposite party No.01 and 02 were negligent in handling the car were deficient in service and adopted unfair trade practice.

The car was insured by the opposite party No. 3 and 4 on the date of accident. Complainant filed claim before opposite party No.3 and 4 for damage to the car. Independent surveyor was appointed who submitted his report to the insurer. Opposite party insurer stated that vehicle was handed over to M/s Aggarwal Packers and Movers for shifting it to destination in safe condition through carrier/loader and with the driving of vehicle and meeting with accident they had breached the contract and are liable for any damage to vehicle. Thus complainant may exercise his right to claim directly with that said carrier M/s Aggarwal Packers and Movers for compensation of said loss opposite party insurer demanded letter of subrogation from the complainant.

In the above circumstances opposite party 01 and 02 to whom the vehicle was handed over for safe transportation are liable for damage to the vehicle transported in breach of terms and condition Insurer is also a party to the complaint before us/instead of directing the insurer to pay the claim to complainant and then file case to recover amount from opposite party No.01 and 02 under letter of subrogation. We thought it fit to allow complaint against opposite party No. 01 and 02 to pay the entire amount to complainant and relieve the opposite party 03 and 04.”

I find force in the argument of learned Counsel for the respondent/complainant.

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Having heard the learned Counsel for the parties, and after going through the material and evidence available on record and particularly the findings recorded by the learned District Consumer Commission, I am of the considered opinion that the order passed by the learned District Consumer Commission is fully justified and is liable to be upheld with the modification that the appellant shall pay to the complainant the insured value of the car i.e. Rs.5,93,000/- alongwith 6% simple interest per annum from the date of complaint till date of payment. The appellant shall also pay Rs.50,000/- for harassment and mental agony and Rs.20,000/- as litigation cost. To that extent the order of the District Consumer Commission is modified/amended accordingly.

                                ORDER

The appeal is allowed in part. The appellant is directed to pay to the complainant the insured value of the car Rs.5,93,000/- alongwith 6% simple interest per annum from the date of complaint till date of payment. The appellant shall also pay to the complainant Rs.50,000/- for harassment and mental agony and Rs.20,000/- as litigation cost. The appellant is directed to comply with the order within a period of one month from today. The judgment and order of the learned District Consumer Commission is modified/amended accordingly.

Let copy of this order be made available to the parties as per rules.

Rs.25,000/- deposited by appellant in appeal under Section 15 of the Consumer Protection Act, 1986 shall be remitted to District Consumer Commission, Gautam Budh Nagar alongwith interest accrued for disposal in accordance with this judgment.

The Stenographer is requested to upload this order on the website of this Commission at the earliest.  

                        ( JUSTICE ASHOK KUMAR )                

                            PRESIDENT                                        

          Pnt.