Kerala

Idukki

CC/23/2021

Libin K Jose - Complainant(s)

Versus

Drishit Packers and Movers - Opp.Party(s)

01 Apr 2023

ORDER

DATE OF FILING :3.2.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  1^st  day of  April,  2023

Present :

                   SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.23/2021

     Between

Complainant                                       :        Sgt. Libin K. Jose, S/o. Jose,

                                                                   Kallidukkil House,

                                                                   Perumballychira, Idukki.

(By Adv: K.M. Sanu)

        And

Opposite Party                                    :                 Drishti Packers & Movers, Haryana,

                                                                   Represented by The Branch Manager,

                                                                   Mavank Sharma,

                                                                   Plot No.90, Industrial Area, Phase No.1,

                                                                   Panchakula, 134113, Haryana.

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1. This is a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant, who is a permanent resident of Idukki District, while working as sergeant, Indian Air Force at Haryana had entrusted his Ford Eco Sport Car to opposite party, namely, Drishti Packers and Movers, for carrying it from Haryana to the residence of complainant in Thodupuzha, on 23.3.2020.  Complainant had paid Rs.23,400/- for carrier service.  Opposite party had promised to deliver the car within 15 days of booking at complainant’s residence in Idukki.  However, car was not delivered within 15 days, but after a considerable lapse of time.  While taking the vehicle complainant had found that it had sustained damages and run for about 3000 kms while it was in the custody of opposite party.  Damages were caused to the car due to negligent driving of the vehicle by the workers of opposite party.  Though complainant repeatedly contacted opposite parties and demanded doing of repair works, opposite party had not responded to his request.  Complainant had sustained damages of about Rs.40,000/-, owing to negligence of opposite party.  He therefore prays for return of Rs.23,400/- paid by him to opposite party for cargo service with 12% interest, payment of Rs.40,000/- spent by him for repairing the car, compensation of Rs.1 lakh for unfair trade practice and Rs.10000/- towards litigation costs.

 

(Cont.....2)

-2-

          2. Opposite party had entered appearance and filed written version denying the liability.  Its contentions are briefly discussed hereunder :

 

          According to opposite party, complaint is not maintainable in law or upon facts.  This Commission has no jurisdiction to try the complaint.  There is no cause of action for the same.  Opposite party admits that complainant had entrusted his household articles and his car Ford Eco Sport model bearing Reg. No.HP-64-A-4477 for transporting those to their native place in Thodupuzha, Kerala.  He had issued a packing list dated 23.3.2020.  With regard to this, opposite party had in turn issued a ‘builty’ of even date for conveying the articles to the given address of complainant.  However, in the meanwhile, due to worldwide pandemic, National lockdown was declared on 25.3.2020.  It had continued strictly till 3.5.2020 and thereafter with restrictions for quite a long time.   Opposite party had sustained heavy loss due to lockdown, since opposite party had taken the responsibility to transport car of complainant, it had tried its level best to convey the same to it’s destination.  However, transport  was not available and hence opposite party had made arrangements to send the car firstly from Chandigarh to Gurugram by car carrier No.HR-55-T-0847 and then from Gurugram to Bangalore by car carrier No.NL-01-N-1784.  Due to pandemic situation, it was not possible for opposite party to send the car from Bangalore to the residence of complainant in Kerala.  Having no option, he had contacted complainant and informed him about the situation.  Opposite party had requested for sending the car by road.Complainant had agreed to this and therefore the car was driven from Bangalore to the native place of complainant by a driver namely, Shiv Kumar, employed for the purpose by opposite party. Ahuge amount was spent for fuel, toll charges, driver charges and parking etc. and car was duly received by complainant on 20.7.2020.  At the time of taking delivery, complainant has not voiced any complaints with regard to the alleged damages sustained to the car and it being run for 3000 kms as claimed by him.  Consignment of the vehicle was at owners risk and this is made clear in the builty dated 23.3.2020.  Company cannot be made liable for any loss or damages sustained to the goods.  Complainant had signed the builty after understanding and accepting its contents.  During the period from 23.3.2020 till 20.7.2020, vehicle has not met with any accident.  There was no promise to deliver the vehicle within 15 days as claimed by complainant.  Delay in sending the car was owing to the pandemic situation.  It was driven from Bangalore to Kerala address of complainant with his consent.  Complaint is false and vexatious.  Same is to be dismissed with costs.

 

          Along with written version, opposite party has annexed a copy of packing list pertaining to household articles, copy of builty (lorry receipt) both dated 23.3.2020 and an affidavit signed by one Mayank Sharma, on behalf of opposite party company deposing that car of complainant has not met with any accident for the period from 23.3.2020 till 20.7.2020.  A proof affidavit is also filed on the lines of version filed,

(Cont.....3)

-3-

 

sworn to by the same person.  However, the affidavit does not even disclose that the deponent is an official of the carrier company or that he was a duly authorised agent of opposite party to swear  affidavits on it’s behalf and to represent opposite party in this case.  No written authority is produced as such.

 

          3.  After filing of written version, case was posted for steps and then for evidence.  Despite repeated postings, opposite party had not appeared.  On the last date when the case was posted for evidence, which was on 20.2.2023, complainant alone was present.  There was no representation for opposite party, who was absent.  Complainant was examined as PW1 and documents produced by him were admitted as Exts.P1 to P5.  Witness was not cross examined.  Thereafter copy of list of household articles of complainant, produced by opposite party was admitted without proof as Ext.R1.  Since original builty was available and marked as Ext.P1, copy of the same produced along with written version was not marked.  Therefore, evidence was closed and both sides were heard.  Now the point which arise for consideration are :

1)  Whether there was any deficiency in service or unfair trade practice from the side of opposite party ?

2)  Whether complainant is entitled for the reliefs prayed for in the complaint ?

3)  Final order and costs ?

 

4.  Point Nos.1 and 2 are considered together :

 

          First contention addressed is with regard to maintainability of the case and second challenge is with regard to territorial jurisdiction.  Admittedly, opposite party is a carrier company which is a service provider well within the sweep of the term service as defined in Section 2(42) of the Act.  As per the Act, complaint can be filed before District Commission within the local limits of which the complainant is residing.  Hence both contentions fail.  With regard to alleged deficiency in service and unfair trade practice, learned counsel for complainant has contended that complaint averments stands supported by unchallenged evidence of PW1 and Exts.P1 to P5.  Therefore, reliefs are to be granted in toto as prayed for.  Able counsel for opposite party would contend that the question involved is only with regard to delivery of car.  It was conveyed from Haryana to Bangalore in car carriers and thereafter driven to the residence of complainant after obtaining his consent.  Car has not sustained any damages from the date it was entrusted to opposite party and until it was delivered to complainant at his residence.  No such complaints were made by him at the time of taking delivery.  Secondly, it was for the complainant to insure the car.  He has not done so.  Liability of the opposite party is limited to the amounts mentioned in Ext.P1 and no further. 

 

 

(Cont.....4)

-4-

 

          Contentions advanced from the side of opposite party are not at all substantive.    Though opposite party claims that car was sent to Bangalore from Haryana in 2 car carriers, firstly from Haryana to Gurugram and from there to Bangalore, no documents were produced along with written version to prove this fact.  According to opposite party, car was driven from Bangalore to residential address of complainant in Kerala with the consent of complainant.  Again there is no proof of this fact.  According to complainant, odometer of the car showed that it had run 3000 kms from the date of entrustment to opposite party, until it was delivered to the home address of complainant.  This very much probablises that car was driven from Haryana to the residence of complainant and not from Bangalore as admitted by opposite party.  Ext.P1 builty or lorry receipt is only for conveying the articles of complainant including his car through a public carrier.  The conditions in the builty can be made applicable only if it was transported from the address of complainant in Haryana to his residence in Idukki District. It has not been proved that there was transportation of car in a carrier, which is the agreed mode as per P1. Instead evidence in its totality would reveal that the car was  driven to the residence of complainant after it was taken delivery by the opposite party for consignment.  These acts were not authorised by complainant.  Ext.P2 is accessories declaration given along with Ext.P1, to opposite party.  Ext.P3 is photocopy of a bill relating to body parts of the car, purchase of coolant, compressor oil etc., totalling to Rs.26,180/-.  Ext.P4 is copy of lawyer notice issued on behalf of complainant dated 11.9.2020 to opposite party, for which complainant claims there was no response.  Ext.P5 is the total bill inclusive of the amount covered by Ext.P3, totalling to Rs.91,017.65/-.  Ext.P5 would support the case of complainant that the car had to be repaired for damages to body parts and also there was necessity to fill compressor oil, coolant and wiper cleaning fluids.  Evidence of complainant that the car had sustained damages, while it was in the custody of opposite party is substantiated by unchallenged evidence of complainant and Exts.P1, P2 and P5.

 

          Unchallenged evidence of complainant also proves that the car was driven after its entrustment to opposite party in Haryana to the residential address of complainant without his consent.  Unauthorised use of the vehicle, without consigning it in a carrier by road, certainly would amount to deficiency in service and unfair trade practice.  Complainant has prayed for return of the amount paid by him towards carrier charges mentioned in Ext.P1.  Amount is Rs.23,400/-.  Complainant has claimed an amount of Rs.40,000/- towards repairing charges of  car with 12% interest, though Ext.P5 bill is for a larger amount.  Apparently, some work was done at the instance of complainant for which the opposite party was not responsible.  We are of the view that the complainant is entitled to get Rs.40,000/- from opposite party with 12% interest towards damages caused to the car owing to its unauthorised use.  Complainant has claimed Rs.1 lakh as compensation for  deficiency in service and unfair trade practice.  Considering the fact

(Cont.....5)

-5-

 

 that there was National lockdown and difficulty in conveying the car to Kerala, we are of the view that the compensation can be fairly estimated at Rs.25,000/-.  Alongwith the aforesaid amount, complainant will be entitled for Rs.2000/- towards litigation costs.  Point Nos.1 and 2 are answered accordingly. 

 

5.  Point No.3 :

 

          In the result, complaint is allowed in part with costs upon the following terms :

 

(a)  Opposite party shall pay Rs.23,400/- towards return of Ext.P1 amount and Rs.40,000/- towards repair charges of the car with 12% interest from 23.3.2020 till the date of payment or realisation. 

 

(b)  Opposite party shall pay Rs.25,000/- as compensation to complainant for deficiency in service and unfair trade practice.  The amount shall carry interest at the rate of 12% per annum from the date of complaint, which is 3.2.2021, till payment or realisation.

 

(c)  Opposite party shall pay Rs.2000/- to the complainant towards litigation costs.

 

          Amount ordered shall be paid within 45 days from the date of receipt of a copy of this order.  Extra copies filed by both sides shall be taken back without delay.

 

          Pronounced by this Commission on this the 1^st  day of April, 2023

 

                                                                                               

                                                                                                Sd/-

   SRI. C. SURESHKUMAR, PRESIDENT

 

                                                                                                                        Sd/-

 SMT. ASAMOL P., MEMBER

 

                                                                                                                                                                Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

(Cont.....6)

-6-

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -   Libin K. Jose.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -  Builty or lorry receipt dated 23.3.2020.

Ext.P2    - Accessories declaration given along with Ext.P1, to opposite party. 

Ext.P3   -  Photocopy of a bill relating to body parts of the car, totalling to Rs.26,180/-. 

Ext.P4   - Copy of lawyer notice issued by complainant to opposite party, dtd 11.9.2020. 

Ext.P5 - Total bill inclusive of the bill covered by Ext.P3, totalling to Rs.91,017.65/-. 

On the side of the Opposite Party :

Ext.R1    -Copy of list of household articles of complainant for carrying.

 

 

 

                                                                                      Forwarded by Order,

 

 

 

                                                                                 ASSISTANT REGISTRAR