DATE OF FILING                   :            07-05-2010.

DATE OF FINAL ORDER      :           21-07-2010.

Gopiballahb Biswas,

Flat no. C/11/3, EKTP  Phase  IV,

Manjulika Housing  A,

Kolkatra  700 107.                                                                               COMPLAINANT.

Versus   -

Asha Packers and Movers

493/C/A, G .T. Road (  South ),

Vivek Vihar, Phase  IV, ( Foreshore Road ),

Howrah- 711102.                                                                              OPPOSITE PARTY.

                                                P   R    E     S    E    N     T

                 1.     Honble President    :     Shri J.  N.  Ray.

                 2.     Honble Member     :      Dr. Dilip Kr. Chakraborty. 

                 3.     Honble Member     :      Smt. Samiksha Bhattacharya.

                                        C      O      U       N        S        E        L

Representative for the complainant           :  Complainant himself.

Opposite party                                           :   Ex parte.    

                                                 F  I   N   A    L       O   R   D    E     R

                This is to consider an application U/S 12 of the C.P. Act, 1986 regarding  compensation towards non delivery  of articles and harassment, mental agony etc on the ground of deficiency in service.  

                Fact of the case, in brief, is that the complainant. a retired person, is a resident of flat no. C/11/3, EKTP – Phase 4, Manjulika Houing – A, Kolkata – 700107, needed to send some goods from his kolkata address to Bangalore to his son at flat no. 710, Building B 3, Malaprava Block, National Games Village, Koramangla, Bangalore. The goods include one Samgsung washing machine, some electronic goods purchased from USA, 2 Kg. honey sent by the colleague of  complainants son and miscellaneous goods like utensils, leather goods, dress materials etc. The complainant got the o.p.s particulars from the advertisement published in the newspaper Times of India. The complainant contacted one Mr. Om Prakash Tiwari, a key man of the o.p., and it was mutually agreed that the o.p. would transport the goods from Kolkata address to Bangalore address ( door to door )  at cost of  Rs. 3,500/-. Accordingly, on 22-05-2009 o.p. sent two boys ( one of them named  Mr. Biswajit  Chakraborty ) to the complainant’s place for packing. They packed the goods in two cartons and complainant paid Rs. 3,600/- ( Rs. 3,300/- advance payment of total Rs. 3,500/- and Rs. 300/- for insurance charge ). Rs. 200/- would be paid after delivery. But till date no cartons has been received by the complainants son. The complainant contacted over phone number of times and Mr. Om Prakash of the o.p. gave different versions to the complainant, his wife and son about the status of the goods / cartons. Mr. Om Prakash assured the complainant for not being worried and he gave some registration numbers as the cartons were wrongly delivered to Hyderabad. Mr. Om Prakash also assured that perhaps the delay was due to accumulation for some more goods which were to be sent to Bangalore through the o.ps. After some days complainants wife contacted with the o.p. over telephone and instead of  Mr. Om Prakash someone  received the phone and reported that the cartons might have gone to Mumbai and they were searching. Then getting no other alternative complainant sent a letter through speed post on 22-06-2009 and the same was returned with the postal remark not claim. So the complainant and his family members face unwarranted harassment and  mental anxiety. Therefore, complainant prays for relief and compensation. Hence the application.

                S/R of notice received after service with remark refused . The refusal of the notice is deemed to be served. No written version also was filed on behalf of the o.p. So the case was fixed for ex parte hearing. 

                In view of the pleading of the parties following points arose for determination   :

Is there any deficiency in service on the part of the o.p., Asha Packers and Movers

Is the complainant entitled to get an order in terms of Section 14 of the C.P. Act, 1986

DECISION  WITH REASONS    :

POINTS NO. 1 and 2  :

                Both the points are taken up together for the sake of convenience of discussion and for brevity.

       From the documents it is admitted fact that the complainant entrusted O.P. for transporting some  articles from flat no. C/11/3, EKTP – Phase 4, Manjulika Houing – A, Kolkata – 700017, to his sons residence  at flat no. 710, Building B 3, Malaprava Block, National Games Village, Koramangla, Bangalore  & O.P. agreed to perform the job for sum of Rupees 3,800/-only ( Rs. 3,300/- advance payment and Rs. 300/- for insurance charge i.e.Rs.3600/- was paid by the complainant and Rs. 200/- would be paid after delivery).  From the document the Forum has observed that in the quotation dated 22-05-2009 ( filed by the complainant ) of Asha Packer and Movers, it is mentioned that Rs. 3,500/- was charged for packing support, handling ( loading and unloading charges ) and freight charges  and Rs. 100/- for temporary storage, if any i.e.,  Rs. 3,600/- was charged. It is also mentioned in the quotation that the belongings would be shifted from Kolkata to Bangalore. In the quotation, in (b ) of terms and conditions it is written The carrier or their agent shall be exempted from any loss or damage through accident, pilferage, fire, rain, collision, any other road or river hazards, we therefore, recommend that goods be insured under carrier’s risk. No individual policy / receipt from insurance company will be given. The complainant paid Rs. 300/- for insurance charges accordingly. The complainant has duly submitted the packing details and the bill / invoice issued by the Asha Packer and Movers. The o.p. also estimated the value of goods amounting to Rs. 10,000/- and the description of the item is washing machine and C/B mix. Therefore, the items match with the items of the complaint petition.

                The complainant also files an affidavit in support of his complaint.

                The o.p. did not appear though the notice was duly sent to  them and they refused the notice. So it is revealed that they have nothing to say.

                There is no letter or any type of communication explaining the reason of damage or loss due to any natural consequences from the part of the o.p. The law will exclusively presume that the carrier has been guilty of a negligent unless he can show that the loss or damage was occasioned by what is technically called the act of God or by  Kings enemies ( A.I.R. 2000, SC 1465 , Patel Roadways Ltd. vs. Birla Yamaha Ltd.).The burden of proof on absence of negligence is upon the common carrier, on the  theory  that the loss or damage to the goods is prima-facie proof of negligence.

                The principle regarding the liability of a carrier contained in Section 9 of Carriers Act, namely, that the liability of a carrier is that of an insurer and that in a case of loss or damage  of  goods entrusted to the carrier the plaintiff need not prove negligence, are applicable in a proceeding before the Consumer Forum.

                It is settled in law that a common carrier cannot escape the liability for loss or  damage of the property delivered to him to be carried, except only by the act of God or action of alien enemies. There is no need for any proof of negligence ad the defendant has to establish the exception ( Hussainbhai Mulla Fida Hussain v. Motilal Nathulal, AIR 1963 Bom 208 ).

                Therefore, considering the facts and circumstances of the case having due regard to the materials on record the Forum holds and concludes that the o.p., Asha Packers and Movers has committed deficiency in service by not giving proper service to the complainant and had not shown any valid reason for loss of  articles or communicate with the complainant.  According to Section 2(g) of C.P. Act, 1986 which clearly defines the meaning of deficiency and Section 2(o) of C.P. Act, 1986 which defines the meaning of Service, there is certainly deficiency in service on the part of o.p., Asha Packers & Movers. So the complainant is entitled to get appropriate order in terms of Section 14 of the C.P. Act, 1986.

                Points under consideration are accordingly decided.

                In the result the application succeeds.

                                Hence,

                                                                O     R     D      E      R      E        D

                That the consumer complaint is allowed ex parte against o.p. with cost assessed Rs. 2,000/-.

                That the complainant shall get an award of compensation of Rs. 6,300/- on account of loss of  articles in question.

                That the complainant shall also get an award of compensation of Rs. 5,000/- against o.p. on account of causing harassment and mental agony.

                That the o.p. is hereby directed to refund Rs. 3,600/- as paid by the complainant to o.p. as carrier and insurance charges.            

                That the o.p. is hereby directed to pay the aforesaid amount  to the complainant within 30 days hereof in default the said amount shall bear further interest at 8 percent per annum from the date of order till the payment or recovery.                                                             

                Let copies of the order be supplied to the parties, free of costs.