BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 16th DAY OF JULY, 2022
CONSUMER COMPLAINT NO.834/2019
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Keshav Reddy G,
Aged about 41 years,
H.No.34, 1st Floor,
Sri.Marathi Anjanadhri Homes,
-
Devasandra K.R.Puram,
(Complainant Rep by Sri.Anil Reddy and Associates, Adv)
V/s
Hindustan Cargo Packers and Movers,
Door No.664, Veerana Layout,
Darasahalli Main Road,
H.A.Farm Post, Near Soobha Moon Apartment,
Bangalore-560034,
Represented by the Branch Manager. …..OPPOSITE PARTY-1
Hindustan Cargo Packers and Movers,
H.No.5-3-71/2, Bhagya Laxmi Nagar,
Hyderabad-500 055,
Represented by the Branch
Manager/Head. ..…OPPOSITE PARTY-2
Opposite parties no.1 & 2 ex-parte.
Liberty General Insurance Limited,
-
Peninsula Business Park,
Ganpatrao Kadam Marg,
Lower Parel,
Mumbai-400013, Maharashtra,
Represented by the Branch
Manager/Head. ..…OPPOSITE PARTY-3
(Represented by Sri.Prashant T.Pandit, Adv)
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
The complainant has filed this complaint u/s 12 of the Consumer Protection Act-1986 seeking for a direction to the opposite parties to compensate a sum of Rs.1,50,000/- towards damages caused to the goods and a sum of Rs.5,000/- towards litigation expenses.
2. It is not in dispute that the opposite party no.1 & 2 are the packers and Movers of the Cargo and opposite party no.3 is the insurance company and the complainant had insured the household things moved through opposite party no.1 & 2 from Hyderabad to Bengaluru.
3. Even though notice been served on opposite party no.1 & 2, they remained ex-parte. It is the further case of the complainant that there was delay in the goods been delivered to the destination at Bengaluru and there were severe damages caused to the goods moved through opposite party no.1 & 2 and some of the household things cannot be used.
4. It is the further contention of the opposite party no.3 that as per the conditions of the policy, the opposite party no.3 is not liable to pay the compensation. Further the complainant himself had admitted in his mail dt.04.05.2019 that the damages were caused due to “jerks and jolts” and no any accident happened during the transit. Hence, the claim of the complainant is not admissible as per the terms and conditions of the policy. Further, since opposite party no.3 had acted as per the terms and conditions of the policy, there is no deficiency of service on the part of the opposite party no.3. Hence, it is sought to dismiss the complaint.
5. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked Ex.P1 to P7 documents. The Legal Manager of opposite party no.3 (RW1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 & R2 documents.
6. Both parties have filed their respective written arguments.
7. Heard the arguments of both sides.
8. The points that would arise for consideration are as under:
i) Whether the complainant proves that there is deficiency of service on the part of the opposite parties ?
ii) Whether the complainant is entitled for the
compensation as sought ?
iii) What order ?
9. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
10. POINT NO.1:- Initially the complainant was represented as party in person and thereafter he had retained Advocate to conduct the case. PW1 & RW1 have reiterated the fact stated in their respective pleadings, in the affidavits filed. It is not in dispute that the complainant has booked the Hindustan Cargo Packers and Movers in the month of April 2019 to shift the household goods from Hyderabad to Bangalore and opposite party no.2 had booked the household things on 27.04.2019 at Hyderabad. Further the complainant has paid the total sum of Rs.24,000/- as freight charges i.e., Rs.16,000/- after packing on 27th April 2019 in Hyderabad and rest of the amount of Rs.8,000/- by cash in Bangalore on 2nd May 2019. Further it is not in dispute that the complainant has paid a sum of Rs.119/- to get the insurance policy and the opposite party no.3 had insured for the same for a sum of Rs.1,88,000/- with effective date as on 28.04.2019.
11. It is the contention of the complainant that there was delay in the goods been delivered i.e., 02.05.2019 after many follow-ups over phone and WhatsApp communication by the complainant. In EX.P6 quotation issued by opposite party no.2 at Hyderabad, it appears that the packing was done on 28.04.2019. EX.P7 is the bill raised by the opposite party no.2 with regard to the transportation charges including insurance premium of Rs.5,625/- for a total sum of Rs.23,955/-. In EX.P5 Consignment Note issued by opposite party no.2 in condition No.16 of the terms and condition, it is stated that the delivery of the goods must be taken within 72 hrs. The say of the complainant in his evidence that the delivery of the goods in Bengaluru was took place on 02.05.2019. The opposite party no.1 & 2 did not come forward and explained with regard to the delay caused. Hence, we feel the opposite party no.1 & 2 are responsible for the delay caused. Further there is no risk covered under the insurance issued by opposite party no.3 with regard to the delay is concerned. Hence, the opposite party no.3 cannot be made liable for the delay.
12. It is the contention of the complainant that there was severe damage to the household goods and the same cannot be used. EX.P4 is the copy of the list of the goods packed. Further the counsel for the opposite party no.3 had objected to mark the said documents, since the company name was not mentioned on it. We feel since the opposite party no.2 had issued EX.P4 at Hyderabad, it has to say with regard to genuineness of EX.P4. In EX.P4 the value of the goods is mentioned at Rs.1,88,400/-.
13. Further the complainant has produced EX.P1 list of the goods damaged. To strengthen the same he has also produced the photos showing the damage caused to the goods. On perusal of the same, it appears that the double cot was fully damaged and wooden Bhagawan Mandhir was broken on top, stich machine table fully broken, become 2 pieces and the stand of washing machine cannot functioning and top door and side portion is fully damaged and one leg was completely broken, kitchen steel rack side broken, iron almirah front side mirror broken, left side portion fully pressed, kids toys not delivered, proclaim and racing car missing with remote, TV stand legs broken and lock is missing for rack, slipper stand not delivered and missed, Dhiwan cot front side damaged and broken handles, buckets two completely broken, kitchen plastic basket completely broken, Dust bin completely broken, skating cycle damaged back side, breaks not applying, Sony HD Smart TV-43 inches fully damaged, not playing, Wooden Almira-one door and handles broken, not standing, Philips iron box-fully broken, not function, Honda shine bike-front mirror broken and back side doom broken, Cloth basket-broken on top, Blue stool-broken on top, Neel Kamal-one chair missing and the other one broken. On perusal of the same, it appears that there was severe damage caused to the household goods and some material goods were missing.
14. It is the contention of the opposite party no.3 that the complainant has agreed the terms and conditions of the policy vide EX.R1 Inland Transit (Rail/Road)-Clause B (named Peril), the opposite party no.3 is not liable to pay compensation in respect of the goods damaged. On perusal of the email correspondence produced by the opposite party no.3 vide EX.R2 it appears that on 04.05.2019 the complainant addressed mail to the opposite party no.3 that on spoken with opposite party no.1 & 2 they gave the reason for the damage was on “Jerks & Jolts” and they confirmed no accident happened while transporting to Bangalore from Hyderabad. Hence, it is contended by the learned counsel for the opposite party no.3 that since the damage said to have been caused was due to “Jerks & Jolts”, the same is not covered as per the terms and conditions of Ex.R1 policy issued in respect of the household goods. Further the counsel for the opposite party no.3 contends that the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer and the insured cannot claim anything more than what is covered in the insurance policy. In support of the contention, counsel for the opposite party no.3 relies the judgment rendered by the Hon’ble Apex Court reported in II(1999) CPJ 13 (SC) in between Oriental Insurance Company Limited V/s Sony Cheriyan. In the said case, the respondent’s truck was insured with the appellant and while carrying 15 barrels of Ether Solvent on its way from Bombay to Allapuzha, it caught fire at Bisalkoppa near Hubli. The condition in the policy was only for carrying of goods within the meaning of Motor Vehicles Act, 1988 and goods defined under Section-2(13) of Motor Vehicles Act does not include barrels of Ether Solvent. Hence, the Hon’ble Apex Court had confirmed the dismissal of the claim by the District Consumer Disputes Redressal Commission, Allapuzha. In the case on hand, the question is whether “Jerks & Jolts” comes within the meaning of accident as contemplated in
-INLAND TRANSIT (RAIL/ROAD)–CLAUSE-B (NAMED PERILS).
RISKS COVERED
- b)(iii) derailment or accidents of like nature to carrying vehicle/railway wagon-vehicle.
We feel while shifting the household things from one place to another the purpose of insuring the goods is for reimbursement in case any damage caused. The word accident means an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury and it happens by chance or that is without apparent or deliberate cause. Hence, the damage caused to the household goods due to “Jerks & Jolts” was not an intentional one of the carrier and it was only an unexpected one. Therefore, we feel it comes within the meaning of accident. Further, similarly in case a passenger in the bus sustains injury while travelling because of “Jerks & Jolts”, the insurer is liable to pay compensation to the victim. Hence, we feel opposite party no.3 is liable to compensate the complainant.
15. Further since the fact of the cited judgment is different from the facts of the case, the same is not applicable to the case on hand. Since, the opposite party no.3 did not reimburse the complainant, there is fault and imperfection on its duty and it amounts to deficiency of service within the meaning of Section 2(11) of Consumer Protection Act, 2019.
16. It is the contention of the learned counsel for the complainant that once the goods were accepted by the packers and movers for transportation from one place to another, it is their duty to carry the goods safely and deliver the same to the consignee without any damage. It is the moral obligation of the packers and movers to deliver the goods safely. It is also assurance of opposite party no.2 packers and movers that it would transport the goods safely. Either the complainant or opposite party no.3 have not proved that the opposite party no.1 & 2 have intentionally caused damage to the goods. Thereby, the opposite party no.1 & 2 cannot be made liable for the goods damaged but they are liable for the unexplained delay caused. Hence, we answer this point in affirmative.
17. POINT No.2:- The complainant claimed a sum of Rs.1,50,000/- towards damage to the goods. In the email produced by the opposite party no.3 vide EX.R2 on 03.05.2019 sent by the complainant to opposite party no.3, it is stated that he had assumed the goods damaged to “Jerks & Jolts” when comes in truck and estimated loss amount was Rs.96,399/-. It is the contention that even though the complainant had followed the Hindhustan Packers and Movers, there was no reply from them. The opposite party no.3 has also produced the copy of the mail sent by the complainant to opposite party no.3, to that effect. By considering the damages shown in the photos produced and the goods transported as mentioned in EX.P4. We feel the loss could be ascertained because of the damage, over all at Rs.90,000/-. Further the complainant claimed a sum of Rs.5,000/- towards litigation expenses. The attitude of opposite party 1 to 3 made the complainant to file case before this commission and to send several email correspondence, thereby the complainant is entitled for a sum of Rs.5,000/- towards litigation expenses. Further we feel, the complainant had undergone mental agony, in view of the attitude of the opposite parties No.1 to 3, the complainant is entitled for a sum of Rs.10,000/- towards mental agony. Since the complainant has not proved any loss or mental pain for the reason of delay, he is not entitled any compensation for the delay caused. Accordingly, we answer this point partly in affirmative.
18. POINT NO.3:- In view of the discussion made above, we proceed to pass the following;
-
The complaint is allowed in part.
The opposite party no.3 is directed to pay a sum of Rs.90,000/- towards loss to the complainant with interest at the rate of 9% p.a. from the date of complaint i.e., on 21.05.2019 till realization.
The opposite party no.3 is directed to pay a sum of Rs.10,000/- towards mental agony and Rs.5,000/- towards litigation expenses to the complainant.
The opposite party no.3 shall comply the order within 30 days. In case, the opposite party No.3 fails to comply the order within the said period, the above said amount of Rs.15,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 16th day of July, 2022)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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//ANNEXURE//
Witness examined for the complainants side:
Sri.Keshava Reddy G, the complainant has filed his affidavit.
Documents marked for the complainant side:
1. The list of articles.
2. Notarized copy of bill No.228 dt.28.04.2019 issued by Hindusthan Cargo the opposite party no.1.
3. The list of damaged goods produced under the signature of complainant advocate.
4. The copy of the packing list.
5. The copy of the consignment note No.H171 dt.27.04.2019.
6. The quotation No.522 dt.15.04.2018 issued by Hindustan Cargo (opposite party) for shifting he household articles from Hyderabad to Bangalore.
7. The bill No.2 to 8 dt.28.04.2019 issued to the complainant by the opposite party Rs.23,955/-.
Witness examined for the opposite party side:
Sri.Sandeep S.K, Legal Manager of opposite party insurance company has filed his affidavit.
Documents marked for the Opposite Party side:
1. Copy of the policy, policy terms and conditions.
2. Copy of the mail correspondence.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA, K)
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