BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 178/2010 Filed on 15.06.2010
Dated : 30.04.2011
Complainant:
Bharat Jain, 3D Condor Marigold Apartments, Vazhuthacaud, DPI Junction Road, Thiruvananthapuram having current address G 133 SFS Flats Sarita Vihar, New Delhi-110076.
Opposite parties :
Associated Movers & Packers (P) Ltd., T.C 2/1511, Mukkalakkal, Kazhakkuttom P.O, Thiruvananthapuram.
Associated Movers & Packers (P) Ltd, 8-31 F, M.T.P Road, Vellakinar Pirivu, Coimbatore, Tamil Nadu-641 029.
This O.P having been taken as heard on 31.03.2011, the Forum on 30.04.2011 delivered the following:
ORDER
SMT. S.K. SREELA, MEMBER
The allegations against the opposite parties in the complaint are as follows: The complainant had to move his cars and personal belongings from Thiruvananthapuram to Gurgaon and contacted opposite parties vide their website for their service. On 18th February 2010, Mr. Binu from Thiruvananthapuram Branch office visited his residence and provided him a quote of Rs. 42,000/- plus service tax. Later they reconfirmed the amount payable as Rs. 40,000/-(all inclusive). On 5th March 2010, Vinod, Hari Ram Sharma and Rakesh along with two others came for packing and custody of cars. Complainant was alarmed to see non-standard packing boxes (basically cardboard cartons of varied companies) and were told that they did not get time to order the firm's own packing material, that they had purchased stray material from local market. They assured that the goods will delivered in perfect shape. Complainant issued two cheques for Rs. 23,000/- and Rs. 5,000/-. The balance Rs. 10,000/- was payable in Gurgaon on delivery of two cars (Rs. 5,000/- each). The complainant received the goods in damaged condition. Though the complainant had requested the opposite parties to make good the loss there was no response from their side. Hence this complaint for redressal of his grievances.
Opposite parties have filed their version refusing the allegations levelled against them. According to the opposite parties, most of the items were packed by the complainant. The opposite parties were asked to pack only the remaining items and the opposite parties agreed to do the same and shifting for Rs. 40,000/-. The opposite parties contend that they had informed the complainant that if he allowed the opposite party to drive the same by road the opposite party can load it immediately, as they had a truck from Cochin to Delhi. The complainant had agreed the same and the cars were driven with the permission of the complainant and for the same they had filled 20 liters petrol for each car. Moreover every time at the time of inspection opposite parties instructed their customers to empty the petrol from car for the safety in transit. So complainant is lying regarding his household, till date opposite parties have not received any complaint for short or damage delivery. Regarding delivery of cars in Delhi, opposite party's person Mr. Sunil Yadav called Mr. Bharath Jain several times, he has another address to delivery. When Mr. Sunil Yadav has taken delivery to the new address complainant requested to deliver the cars in Gurgaon to his office address next day. After this complainant came to opposite party's office with 4 gundaas and threatened them when they refused. Complainant went and called the police, opposite parties explained the status to police inspector. He supported them and asked the complainant to pay the balance cash and take the car. After this complainant paid the cash and took delivery. Complainant's main intention is to cheat their company. So the complainant is not eligible for getting compensation from their company. The liability of the company to the consignor/consignee for any loss of damage to short delivery of the subject Docket shall be subject to the provision on any applicable law(s) enactments or orders currently in force in India at the material time but such liability shall be limited to a ratable proportion of and shall in no case or circumstances exceed the value of the entire docket as declared by the consignor to the company and as specially incorporated on the face of this Docket Note. No suit shall be filed against the company in respect of or in relation to the subject docket after the expiry of 3 months from the date of booking. If any claims or dispute against the company all legal suits can be filed in Coimbatore jurisdiction only, as agreed by consignee in their docket.
Complainant has filed his affidavit and marked Exts. P1 to P10. Complainant, PW1, has not been cross examined by opposite parties. Opposite parties had no evidence.
The points for consideration are:-
Whether there is any deficiency in service on the part of the opposite parties?
Whether the complainant is entitled for any of the reliefs claimed in the complaint?
Points (i) & (ii):- The opposite parties have taken out a contention in their version that if there is any claim or dispute against the company, it can be filed in Coimbatore jurisdiction only as agreed by consignee in their docket. It is well known and well settled by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction whereas on the other hand, in case the 2 courts have jurisdiction, then the parties can always agree to confer jurisdiction on one of such courts. So far part of the cause of action having been arisen within the territorial jurisdiction of Thiruvananthapuram District Forum, it will not make any difference when the parties had agreed to exclusively confer jurisdiction on the courts at Coimbatore. Further there is no dispute that the part of the cause of action has arisen within the jurisdiction of this Forum and hence the complaint is found entertainable by this Forum.
The grievance of the complainant is that, the consignment entrusted with the opposite parties were delivered in a damaged condition. Further, the Maruti Car and Honda Civic were filled with 22 litres and 45 litres of petrol respectively and the same has been removed at the time of delivery. But the opposite parties have contended that they had filled 20 litres of petrol for each car and drove the same to Cochin. As per Ext. P1(a) and P1(b) only the charges have been stated, there is no mentioning regarding the petrol. Further the opposite parties have contended that they instruct the customers to empty the petrol from the car for the safety in transit. Though the opposite parties have also not adduced any evidence to support that they had filled 20 litres of petrol each for the cars or they had driven the car from Trivandrum to Cochin, as per Ext. P5(a) it has been endorsed that 'zero petrol at delivery'. Further in Ext. P5(b) it has been recorded that '45 litres of petrol has been removed'. These documents are not challenged by the opposite parties. Hence we accept the said contention of the complainant and find that the complainant is entitled for refund of the cost of the same. The car condition declaration, Ext. P5(a), states only scratches door left side. At the time of delivery it has been endorsed for the opposite parties that car had a reading 68834 wherein at the time of entrustment it has been delivered as 68537. Further the opposite parties have endorsed that 'In addition has a dent on left side near the front head light (5'' long dent and scratch). As per Ext. P5(b) it has been endorsed by the opposite parties that Jack stick has been stolen, 45 litres petrol has been removed, rear seat has been spoiled and car has run 290 km. As per Ext. P5(d) overleaf, it has been endorsed by the opposite parties that in the computer carton there is no computer and there are shoes instead; the carton containing shoes are damaged and one pair has been removed and the carton containing glass has been damaged, Books carton are torn. The complainant has sworn his affidavit in support of this complaint. He has not been cross examined by the opposite parties and hence his sworn statement stands uncontroverted. Further in the absence of any evidence to support the contention in the version of the opposite parties, we find that the complainant has succeeded in establishing his complaint. The opposite parties have not only failed to exercise reasonable care and caution as was expected from it, but had been grossly negligent in protecting the consignment while in its custody. The part of the consignment was lost due to the negligence of opposite party. The cars were also damaged due to the deficiency in service on the part of opposite parties resulting loss to the complainant. We find that the act of the opposite parties in not delivering the consignment in tact amounts to deficiency in service on their part and they are bound to indemnify the loss caused to the complainant due to the negligence on their part.
From the above discussions and evidence we find that the complainant is entitled for refund of Rs. 3,000/- towards cost of petrol, Rs. 5,000/- for extra usage of the car by opposite parties, Rs. 5,200/- for the damage caused to the car and towards the cost of Jack stick, Rs. 5,000/- towards cost of clothes and shoes, refund of Rs. 15,000/- (after deducting depreciation) towards loss caused to the computer and Rs. 10,000/- towards loss of books and glass utensils.
In the result, complaint is allowed. Opposite parties shall refund Rs. 43,200/- to the complainant along with a compensation of Rs. 5,000/- and cost of Rs. 2,000/- to the complainant within a period of one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of April 2011.
Sd/-
S.K. SREELA : MEMBER
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
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C.C. No. 178/2010
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Bharat Jain
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of advertisement.
P1(a) - Copy of quotation dated 18.02.2010
P1(b) - Copy of quotation dated 18.02.2010
P2 - Copy of paper cutting
P3 - Copy of website details.
P4 - Copy of receipt dated 05.03.2010
P5 - Copy of consignor.
P5(a) - Copy of the condition declaration dated 05.03.2010.
P5(b) - Copy of consignor.
P5(c) - Copy of car condition declaration
P5(d) - Copy of consignor
P5(e) - Copy of receipt.
P6 - Copy of letter dated 07.04.2010
P7 - Copy of letter dated 04.05.2010.
P8 - Copy of letter dated 06.05.2010.
P9 - Copy of postal receipts.
P10 - Copy of sale transaction.
P10(a)- Copy of cash bill dated 21.08.2009
P10(b)- Copy of receipt dated 11.10.2008
P10(c)- Copy of details.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
NIL
Sd/-
PRESIDENT
