Tamil Nadu

North Chennai

CC/139/2016

M.Balasubramanian - Complainant(s)

Versus

CHOLA Ms Insurance cholamandalam Ms General Insurance ccompany - Opp.Party(s)

S.Makesh

19 Jan 2018

ORDER

                                                                     Complaint presented on:  18.08.2016

                                                                Order pronounced on:  19.01.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

FRIDAY THE 19^th DAY OF JANUARY 2018

 

C.C.NO.139/2016

 

 

Mr.M.Balasubramanian,

S/o. Mahadevan,

Flat 3F (3^rd Floor), Plot D105,

“RAMANIYAM SANGEETHA”,

R.K. Shanmugam Salai, K.K.Nagar,

Chennai – 600 078.

                                                                                    ….. Complainant

 

..Vs..

1.M/s. LEO MOVERS & PACKERS,

Rep. by it’s Proprietor Mr.Vikram Sharma,

#662, Near Bharat Tower Palam Vihar,

Gurgaon, Haryana.

 

2.M/s. Chola MS Insurance,

Cholamandalam MS General,

Insurance Company,

Rep. by its Regional Manager Claims,

2^nd Floor,

“Dare House”, No.2, NSC Bose Road,

Chennai – 600 001.

.....Opposite Parties

Date of complaint                                 : 20.09.2016

Counsel for Complainant                      : M/s. S.Makesh

Counsel for 1st Opposite Party                : Ex – Parte (on 03.03.2017)

 

Counsel for 2nd Opposite Party              : M.B.Gopalan Associates,

                                                                    N.Vijayaraghavan, M.B.Ragahvan

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties to pay the cost of Rs.36,000/- for missing items, Rs.50,000/- for the damaged articles and Rs.28,700/- for the damage to the car and also to pay the other amount as claimed in the complaint  u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant approached the 1^st opposite party to shift the household articles from Delhi to Chennai and the 1^st opposite party gave a quotation dated 23.03.2016 for a sum of Rs.62,000/- with tax and to send the items in a separate container. The Complainant also paid a sum of Rs.10,000/-. The Complainant paid the entire amount Rs.72,000/- with tax on 23.03.2016. The 1^st opposite party packed items in 165 cotton boxes and loaded the items on the same day. The 1^st opposite party assured to deliver the articles at the Complainant residence on 31.03.2016. However the same was not delivered on that day.

          2. On 07.04.2016 the 1^st opposite party informed the Complainant that the container would reach Chennai and delivered to him in 2 or 3 hours and the goods were unloaded and as per the list, the following items were found missing.

1. Item # 01 – Centre Table

2. Item # 12 – Clothes & Books carton

3. Item # 46 – Mattress

4. Item # 52 – Kitchen Item carton

5. Item # 71 – Kitchen utensils carton

6. Item # 85 – Glass items carton

7. Item # 88 – Curtains

8. Item # 102 – Laptop and Photos carton

9. Item # 120 – Books carton

10. Item # 122 – Study Table

11.Item # 125 – A/C inner

12. Item # 126 – A/C inner

13. Item # 135 – Washing Machine Stand

14. Item # 137 – Oven (Microwave)

15. Item # 143 – Almirah – Crockery carton

16. Item # 147 – Chair

17. Item # 153 – Red & Yellow Stools

18. Item # 163 – Airtel & Rode

19. Item # 164 – 2 Chairs

20. Item # 165 – Bicycle

Further the following 9 items were found damaged.

1. Steel Alimirah

2. Centre Table

3. Bed

4. Basket

5. Wooden Almirah

6. Wooden Shelf

7. Wooden Stool

8. Dining Chair

9. Wall hanging Clock

          3. The 1^st opposite party though charged Rs.10,000/-, he had not provided a separate container to carry the goods. The Complainant’s articles were also insured with the 2^nd opposite party.  Hence the Complainant contacted the 2^nd opposite party for claim for the missing items and damaged articles. Therefore the opposite parties were liable for the missing items and for the damages caused to the Complainant’s articles. Hence the Complainant filed this complaint to direct the opposite parties to pay the cost of Rs.36,000/- for missing items, a sum of Rs.50,000/- for the damaged articles and a sum of Rs.28,700/- for the damage to the car and also to pay the other amounts as claimed in the complaint.

          4. The 1^st opposite party called absent and remained he was set Ex-parte.

5. WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY IN BRIEF:

          The Complainant availed Marine Insurance policy covering Complainant’s vehicle being transported from Delhi to Chennai.  The policy was taken for Rs.4,00,000/- for Complainant’s vehicle. It goes without saying that such amount would be hardly cover the value of the vehicle and cannot be construed as applicable to all household valuables/goods. Further, the coverage under the policy is subject to standard clauses specified therein, more particularly Inland Transit Rail/Road-‘B’ which is clearly stipulated in the policy schedule. The Complainant has suppressed the policy terms and conditions in full and has produced only a partial document of insurance.

          6. The 2^nd opposite party is liable to pay compensation as per risk covered in clause ‘B’ only. The Complainant is bound to establish that the claim falls within the purview of clause ‘B’ of the policy.

          7.   The decision was taken by this opposite party after due consideration of the relevant facts and circumstances that the claim was not payable as per the terms and conditions of the policy. The Complainant having failed to make out any case whatsoever as to how the claim is admissible under the policy cannot lay any legitimate action against the opposite party, much less deficiency in service. The Complainant is not entitled to recover the alleged loss under the terms of the policy. The bonafied decision of this opposite party in accordance with the terms of the contract between the parties cannot be any stretch of argument is treated as deficiency in service in order to maintain the present complaint. Hence the complaint is liable to be dismissed.

8. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

9. POINT NO :1 

          It is an admitted facts that the Complainant approached the 1^st opposite party to transport his household goods from Delhi to Chennai on 02.03.2016 and accordingly the 1^st opposite party gave Ex.A1 invoice and Ex.A2 estimate with details of charges payable by the Complainant including service tax and a sum of Rs.12,000/- charges  for insurance paid and the 1^st opposite party himself preferred Ex.A3 packing list with the cost of the items and Ex.A5 is the policy issued by the 2^nd opposite party to the Complainant and the 1^st  opposite party also transported the goods from Delhi to Chennai and delivered on 07.04.2016 and at the time of delivery there were 20 items mentioned in Ex.A7 by the 1^st opposite party was missing and not delivered to the Complainant and further the car was also damaged with scratches and 9 items were found damaged and the Complainant made claim for the value of missing items and damaged articles with the insurance company and however the 2^nd opposite party rejected the same.

          10. Admittedly the 1^st  opposite party transported the goods from Delhi to Chennai and delivered to the Complainant and at the time of delivery 20 items mentioned in Ex.A7 was not delivered by the opposite party and further there were scratches in the car during transit and further 9 items were damaged. The above facts of missing of items, damage to the car and 9 items were not disputed by the 1^st opposite party. After loading the articles and at the time of delivery, the articles were found missing and caused damage to the articles proves that during the 1^st opposite party transporting the goods only the damage and missing items should have occurred. This evidence was not denied by the 1^st opposite party and remained Ex-parte. Since the articles found missing and some items were damaged proved by the Complainant that the 1^st opposite party only negligently transported the goods in his vehicle and thereby committed deficiency in service to the Complainant.

          11. Admittedly the Complainant made claim to the 2^nd opposite party/insurers and the 2^nd opposite party rejected the claim that as per the policy issued by him they were not liable to pay the claim made by the Complainant.

          12. The policy terms and conditions in clause ‘B’ risk covered dealt as follows:

This insurance covers, except as provided in Clauses 2,3 and 4 below, the risks of physical loss or damage to the insured goods caused by

1.    (i) fire

(ii) Lightning

(iii) breakage of bridges

 

2.    (i) Collision with or by the carrying vehicle

   (ii) overturning of the carry vehicle

   (iii) derailment of accidents of like nature to the carrying

          railway wagon/vehicle.

 

As per the above clauses the damages was caused for the goods during transport by fire, lightning, breakage bridges, collision with other vehicle overturning and accidents the insurance company is liable to pay the claim. The Complainant has not at all filed the terms and conditions of the policy. Since the terms set out in clause ‘B’ not relied by the Complainant and simply the Complainant claims damages  for missing of articles and such a claim will not fall any one of the term mention in clause ‘B’. Therefore it is held that the 2^nd opposite party had rightly rejected the claim made by the Complainant. Therefore, we hold that the 1^st opposite party only committed deficiency in service to the Complainant and the 2^nd opposite party has not committed any deficiency in service to the Complainant.

13. POINT NO:2

          Due to negligent transport of goods only the 9 items were damaged and the car was also sustained scratches.  The 1^st opposite party himself gave the value of goods in Ex.A3 at the time of packing. The Complainant claimed a sum of Rs.50,000/- for the 9 damaged items and Rs.28,700/- to the car and such amounts towards damages, the Complainant is entitled from the 1^st opposite party. Likewise the missing items value was arrived at Rs.36,000/- and such amount also is entitled from the 1^st opposite party. Due to non-delivery of 20 item and damage was caused to the articles of the Complainant suffered with mental agony is accepted and for the same, it would be appropriate to direct the 1^st opposite party to pay a sum of Rs.50,000/- to the Complainant. It is the case of the Complainant that though the 1^st opposite party collected Rs.10,000/- towards separate container and the same was not provided at the time of loading and such amount of Rs.10,000/- the Complainant is entitled from the 1^st opposite party.  With regard to other claim for goods and transportation to the office no proof has been filed by the Complainant and hence the Complainant is not entitled any claim in that respect. However we further order a sum of Rs.5,000/- towards litigation expenses is entitled by the Complainant. The complaint in respect 2^nd opposite party is liable to be dismissed.

In the result the Complaint is partly allowed. The   1^st Opposite Party is ordered to pay a sum of Rs.36,000/- (Rupees thirty six thousand only) towards the cost of the missing items, a sum of Rs.50,000/-(Rupees fifty thousand only) towards the damaged items, a sum of Rs.28,700/- (Rupees twenty eight thousand and seven hundred only) towards damages to the car, a sum of Rs.10,000/-(Rupees ten thousand only) towards separate container cost and also to pay a sum of Rs.50,000/- (Rupees fifty thousand only)towards compensation for mental agony, besides a sum of Rs.5,000/-(Rupees five thousand only)  towards litigation expenses. The complaint in respect of the 2^nd opposite party is dismissed.

 The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19^th  day of January 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 02.03.2016                   Invoice given by the 1^st opposite party

Ex.A2 dated 23.03.2016                   Total payment details against which Rs.30,000/-

                                                    paid as advance

 

Ex.A3 dated 23.03.2016                   List of Goods items and value given by 1^st opposite

                                                   Party

 

Ex.A4 dated 23.03.2016                   Payment receipts for Rs.10,000/- & Rs.5,000/-

 

Ex.A5 dated 31.03.2016                   Copy of Insurance Policy Certificate

 

Ex.A6 dated NIL                     E-mail to  the 1^st opposite party with regard to

                                                    goods

 

Ex.A7 dated 07.04.2016                   List of Missing items

 

Ex.A8 dated 09.05.2016                   E-mail correspondence with the  2^nd opposite party

 

Ex.A9 dated NIL                     Car Condition Paper

 

Ex.A10 dated NIL                             Bank Statement for payment of Rs.50,000/-  to the

                                                    1^st opposite party

 

Ex.A11 dated 20.05.2016                 Legal Notice issued to the opposite parties 1 & 2

 

Ex.A12 dated NIL                             Acknowledgement Cards

 

LIST OF DOCUMENTS FILED BY THE 2^nd OPPOSITE PARTY :

 

Ex.B1 dated 11.03.2016                   Marine Cargo Open Policy with terms and

                                                conditions

 

 

 

MEMBER – I                                                               PRESIDENT