Sikkim

East

cc/13/2019

Tej Bahadur Thapa - Complainant(s)

Versus

Gati Kintetsu Private Limited - Opp.Party(s)

03 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GANGTOK, SIKKIM

 

DATED: 03.06.2023

 

CONSUMER CASE NO. 13 OF 2019

 

Shri Tej Bahadur Thapa,

Son of Late Kalser Bahadur Thapa,

Resident of Mangerjong, Church road, Gangtok, Sikkim.

                                                   …       COMPLAINANT.

 

Versus 

 

Gati-Kintetsu Private Limited,  

Having its Branch Office at Ranipool, Sikkim.                                                 …           RESPONDENT.

 

For complainant: Mr. Rahul Rathi, Learned Counsel.   

For respondent: Ex-parte. 

 

CORAM:

1. K.W.Bhutia, President

2. Anita Shilal, Member

3. Rohit Kumar Pradhan, Member

 

Per: K.W.Bhutia, President

 

O R D E R

    By this complaint filed under Section 35 of the Consumer Protection Act, 2019, the complainant seeks restoration of his motor-cycle damaged in during transport by respondent and compensation for harassment/deficiency in services.  

2.    The complainant is an owner of a vintage BSA Gold Flash (1947 model) motor-cycle bearing registration no. D 12 3663, chassis no. 312378 and engine no. 311337. According to the complainant, this motor-cycle apart from being rare collection, has great sentimental and personal value to him. It was being maintained with great personal care since its spares are rare and competent restorers are few. 

3.    It is the case of the complainant that on 03.06.2017, he shipped his motor-cycle from Gangtok to M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan for extensive repair and restoration. It was transported though the respondent and as advised by the respondent, the complainant to declare the value of the motor-cycle at ₹ 50,000 only as a formality since the said motor-cycle was no longer in production and did not have current commercial value. After the repair and restoration work on the motor-cycle was over, it was sent back to the complainant by M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan though the respondent on 19.06.2018 vide docket no. 470098694. Upon arrival of the motor-cycle, the complainant was informed by the respondent to visit their warehouse at Tambutar, Ranipool, Sikkim. But to their shock and dismay, the fully restored motor-cycle was severely damaged in transit. The handlebars were twisted and broken, brake, clutch levers and stem adjustment knob were smashed and suspension/alignment was distorted. 

4.    It is further the complainants’ case that the damages was immediately brought to the notice of the respondent and a complaint was also lodged on 25.08.2018, being complaint no. 17956796. On the request made by the representative of the respondent, the complainant filled a proforma claim letter on 31.08.2018 claiming damages to the tune of ₹ 85,000 based on the assessment made by M/s Ami Impex, Rajasthan. Again, the respondent’s representative requested him to fill another claim letter computing the damages at ₹ 49,000 on the ground that the declared value of the motor-cycle was ₹ 50,000 and that additional claim could be submitted subsequently. That despite receipt of claim letter and concerned documents, the respondent neither processed the claim nor paid the damages. Hence, prays for the following reliefs:-

(i)    directing the respondents to transport the motor-cycle to M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan and bear the expenses for its repair and restoration;

(ii)    directing the respondent to hand over to the complainant fully restored motor-cycle from M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan;

(ii)    payment of ₹ 1,00,000 towards litigation expenses; and

(iii)    payment of ₹ 1,00,000 for causing mental tension, agony and harassment.

 

5.    Initially the respondent appeared before this Commission, however, no written objection was filed. Subsequently, they stopped appearing and was proceeded ex-parte. 

6.    ISSUE FRAMED:

(1)    Whether the complaint is maintainable?

(2)    Whether there was any deficiency in service on the part of the respondent with respect to the complainant’s motor-cycle?

(3)    Whether the complainant is entitled to the reliefs prayed for by him?

7.    Learned Counsel for complainant would submit that the booking invoices (Exhibit-2 and 3) shows that the concerned motor-cycle was booked with the transport agency (respondent) from Gangtok to Alwar, Rajasthan and vice-versa. Further, the complaint letter dated 25.08.2018 proves that the motor-cycle had sustained serious damages in transit between Alwar, Rajasthan to Gangtok. 

8.    Learned Counsel for the complainant would submit that the complainant has clearly deposed that a sum of ₹1,83,490.80 was incurred in the repair and restoration of the motor-cycle. The damages suffered during transit came to ₹ 85,000 which has been proved by CW-3 (Parvinder Singh). Further, the inspection report (Exhibit-11) of the Motor Vehicle Inspector (CW-2) proves that the motor-cycle had been severely damaged and cannot be repaired in Sikkim. That it was the duty of the respondent to take proper care and precautions in transit of the vintage motor-cycle, which was not done. It has been clearly proved that despite several request made to the respondent, the damages were not paid to the complainant. Hence, prays that the reliefs as prayed by the complainant may be granted. 

9.    We have considered the argument advanced by the learned Counsel for the complainant and the evidence on record. The consignment booking receipt dated 03.06.2017 (Exhibit-2) would show that the complainant’s consignment was sent from Gangtok to M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan. The evidence of CW-3 (Exhibit-12) would show that the said motor-cycle was received by M/s Ami Impex for full restoration and the cost for repair/restoration was ₹ 1,83,490.80. He has confirmed that the bills (Exhibit-9) were issued by them. The consignment booking receipt dated 09.06.2018 (Exhibit-3) would show that the motor-cycle was sent by M/s Ami Impex from Alwar, Rajasthan to the complainant at Gangtok. Closer examination of the receipt would reveal that the risk coverage was at the carriers risk. Further, the complaint dated 28.08.2018 (Exhibit-4) would show that the complainant had intimated about the damages on the motor-cycle to the respondent. Another letter dated 28.08.2018 (Exhibit-6) would also show that the respondent was informed about the matter with a request to restore the damages.

10.    The claim letter dated 31.08.2018 (Exhibit-7) would show that the initial claim of the complainant was ₹ 85,000 but later reduced to ₹ 49,000. The claim of ₹ 85,000 made by the complainant is based on the estimate issued by M/s Ami Impex, Rajasthan (Exhibit-5) which has been confirmed by CW-3. The damages which the motor-cycle sustained in transit can be ascertained from the evidence of CW-3 and the Motor Vehicle Inspector’s (CW-2) inspection report dated 18.02.2022 (Exhibit-11). It corroborates the complainant’s claim about the nature and extent    of damages on the said motor-cycle. Hence, it is clear that during transit from Alwar, Rajasthan to Gangtok, the motor-cycle had sustained damages to the extent portrayed in the complaint. 

 

11.    The complaint lodged by the complainant on 28.08.2018 (Exhibit-4 and 6) clearly shows that the respondent was intimated about the damages yet no steps were taken by the respondent to indemnify the complainant. When the respondent had taken the risk to safely transport the consignment, they should have taken heed to the claim and settled the same. As it has not been done so, it would show deficiency in service on the part of the respondent. Hence, the respondent is liable to compensate the complainant for the loss sustained by him. All the three issues are answered in affirmative.

RELIEF:

12.    In view of our findings above, the complainant is entitled to the reliefs as under:-

(i)    Respondent shall transport the complainant’s motor-cycle     to M/s Ami Impex, Shahjahanpur, Alwar, Rajasthan     without any further delay and fully repair/restore the     same. Thereafter, it shall be handed over to the     complainant at Gangtok, Sikkim; 

(ii)    Respondent shall pay to the complainant a sum of ₹     2,00,000 (Rupees Two Lakh only) for deficiency of     services/harassment/pain and agony; 

(iii)    Respondent shall also pay to the complainant a sum of ₹     1,00,000 (Rupees One Lakh only) towards cost of     litigation; and

(iv)    The above-mentioned amount shall be subject to interest     @ 10% per annum from the date of this order until full     realization.

 

(Anita Shilal)              (Rohit Kumar Pradhan)         (K.W. Bhutia)           

     Member                                 Member                 President  

 

WITNESSES EXAMINED BY THE COMPLAINANT:

1.    Tej Bahadur Thapa          -    CW-1.

2.    Ugen Tshering Sherpa        -    CW-2

3.    Parvinder Singh            -    CW-3.

WITNESSES EXAMINED BY RESPONDENT: NIL

DOCUMENTS EXHIBITED BY THE COMPLAINANT:

1.    Exhibit 1        -     Evidence-on-affidavit of CW-1

2.    Exhibit 2        -    Receipt/consignment booking invoice

3.    Exhibit 3       -    Copy of receipt/invoice

4.    Exhibit 4        -    Copy of complaint

5.    Exhibit 5      -    Hand-written proforma invoice

6.    Exhibit 6      -    Letter dated 28.08.2018

7.    Exhibit 7        -           Claim letter

8.    Exhibit 8       -    Copy of certificate of registration

9.    Exhibit 9        -    Bill issued by restorer

10.    Exhibit 10         -    Letter issued by restorer

11.    Exhibit 11      -    Inspection report

12.    Exhibit 12      -    Evidence-on-affidavit of CW-3

DOCUMENTS EXHIBITED BY RESPONDENT : NIL

 

(Anita Shilal)                 (Rohit Kumar Pradhan)         (K.W. Bhutia)             

      Member                                    Member                  President