IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of April, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 14/2010 (Filed on 28.01.2010)
Between:
Mrs. S. Padmaja, Vaikhary,
Chunakkaranaduvil,
Chunakkara P.O.,
Alappuzha – 690 534,
(Now residing at Vaishnavam,
Njettoor, Kulanada P.O.,
Pathanamthitta District). … Complainant.
(By Adv. K. Radhakrishnan)
And:
Malabar Packers and Movers,
147, Gautam Nagar,
New Delhi – 110 049.
(Represented by Jimmy Joseph,
Proprietor). … Opposite party.
(By Adv. Jaison Mathews)
ORDER
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The facts of the case in brief are as follows: The complainant is the owner in possession of a vehicle Maruti WagonR of 2007 model bearing registration No. KL-31-7257. The complainant’s sister and her husband took the said vehicle to Delhi for their use during August 2008. The opposite party is a transporting concern engaged in door to door service for house hold items, vehicles and parcels. For the transportation of the said vehicle, the complainant’s sister’s husband approached the opposite party and informed to transport the vehicle to the native place. The opposite party assured that the vehicle would be delivered in its condition as it is to its destination. Opposite party agreed to deliver the vehicle at Pandalam. Believing the words of the opposite party, said Radhakrishnan on behalf of the complainant hired the services of the opposite party for transportation and delivery of the vehicle from Delhi to Pandalam by road ways through the opposite party. Before handing over the vehicle to the opposite party for transportation, the vehicle was taken for repairs to the Competent Automobiles Company Ltd, New Delhi and was made upto date condition. The vehicle was produced before the opposite party for transportation on 07.09.2008. The opposite party agreed and assured that the vehicle would be transported in covered truck. The opposite party checked the condition of the vehicle on 07.09.2009 and found the same in order and issued car condition paper be whereby the opposite party agreed item Nos. 1 to 18 in order except item Nos. 7, 8, and 15 as accessories declaration. For transporting the vehicle by road ways, the opposite party demanded ` 13,000 and the same was paid on 07.09.2009 for which the opposite party issued consignment delivery note without incorporating the amount of ` 3,000 as charges for hiring the services of the opposite party. The complainant’s sister’s husband Radhakrishnan insisted for adding the charges for hiring the services. But opposite party refused to do so on the ground of evading taxes.
3. The opposite party agreed to deliver the vehicle within 10 days from 7.09.2009. But the same was brought to the house of the complainant on 21st day from 07.09.2009. On seeing the vehicle, it has been found that the paint of the vehicle on 4 sides and on top has been worn out as if by coming into contact with some hard objects. Head lights of the vehicle found broken, wiper of the wind shield is found removed, 4 wheel cups broken and contains scars. On opening the vehicle, it is found that the back seat and the dickey have been rotten. On seeing the condition, complainant did not take the delivery of the vehicle and the driver took the vehicle and went away. The complainant by telephone and through the said Radhakrishnan contacted the opposite party, but no fruitful result came. Thereafter, the complainant approached the Pandalam Police and they registered Crime No. 840/2009 on 13.10.2009. The police authorities got the vehicle tested by Assistant Motor Vehicle Inspector on 15.10.2009 and prepared a report. As per the report, the following damages and repair is necessary.
(a) Damage to body which requires repairing and painting.
(b) Head light damaged.
(c) Wheel cup damaged.
(d) Speaker pad damaged.
(e) Mud flaps damaged.
(f) Door pad damaged.
4. The complainant’s doubt that the vehicle has been used by the opposite party for transporting contraband goods and for unlawful activities while the same was in the custody of the opposite party. The complainant has paid money and hired the services of the opposite party without causing any fault, imperfection, shortcoming or inadequacy in the quality nature and performance. According to the complainant, the vehicle was brought driven by a driver and not on carrier as agreed. The cost of damages suffered by the complainant is as shown below:
(a) Vehicle damage : ` 35,000.00
(b) Loss of use of vehicle : ` 10,000.00
(c) For mental agony & pain : ` 15,000.00
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Total : ` 60,000.00
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The complainant demanded directly to pay the said amount. But the opposite party refused to do it. Thereafter he sent notice. Even then opposite party has not resolved the matter. Hence this complaint for getting ` 60,000 with interest and cost.
5. Opposite party entered appearance and filed version stating that the complaint is not maintainable either in law or on facts. According to opposite party, entire transaction and consignees done in New Delhi. Therefore, this Forum lacks jurisdiction to entertain this complaint. Opposite party has no knowledge about the status of the complainant and the complainant has no connection with the consignment. Complainant is a stranger to the opposite party. The opposite party has no connection with the Malabar Packers and Movers. He worked temporarily as an office staff for a short period. The company’s proprietor is one Sibi who is residing in New Delhi. He is actually liable if anything done wrong from the part of Malabar Packers and Movers and is competent to represent the Malabar Packers and Movers.
6. According to the opposite party, the complaint is wrong and hence denied. Opposite party has no knowledge about the details furnished in the complaint. Nobody approached the opposite party to transport the vehicle. While working as an office staff in Malabar Packers and Movers, opposite party has signed many consignments as part of the duty. But he is not responsible for that. He admitted the signature which was put in the consignor’s copy, which is done as part of his job. Pandalam Police registered a case against the opposite party due to the influence of the complainant. If the complainant had suffered any damage done by the Malabar Packers and Movers, he has the right to approach the appropriate Forum in New Delhi against the proprietor of the concern. This complaint filed against the opposite party is only on experimental basis. The damages are calculated without any basis. The complainant is not entitled for any relief from the opposite party. This complaint is filed with a malafide intention to extract money from the opposite party. Therefore, opposite party canvassed for the dismissal of the complaint with cost.
7. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs and Costs?
8. The evidence of the complaint consists of the oral deposition of PW1s. 1 to 3 and marked Exts. A1 to A12. After closure of evidence, both parties were heard.
9. Point Nos. 1 to 3: In order to prove the complainant’s case, complainant filed proof affidavit and documents. She was examined as PW1and the documents produced were marked as Exts.A1 to A12. Ext.A1 is the copy of certificate of registration of the vehicle. Ext.A2 is the copy of repairing bill dated 13.08.2009 issued by the competent automobiles Co. Ltd., Delhi East. Ext.A3 is the copy of car condition paper dated 07.09.2009. Ext.A4 is the photocopy of delivery note dated 07.09.2009. Ext.A5 is the photocopy of FIS and FIR issued from Pandalam police station. Ext.A6 is the copy of AMVI report. Ext.A7 is the copy of the estimate of the vehicle issued by Popular Vehicles & Services Ltd. Ext.A8 is the copy of advocate notice dated 02.12.2009 issued to opposite party. Ext.A9 is the returned envelop of opposite party. Ext.A10 is the returned envelop of Malabar Packers & Movers. Ext.A11 is the postal receipt of Ext.A9 and Ext.A9(a) is the postal receipt of Ext.A10. Ext.A12 is the copy of final report submitted by the Pandalam Police before the Judicial 1st Class Magistrate Court, Adoor.
10. Apart from version opposite party has not adduced any oral or documentary evidence to prove this case.
11. On the basis of the contention and averment of the parties, we have perused the entire material on record. Complainant’s case is that her vehicle has been transported through opposite party from Delhi to Pandalam. When the vehicle delivered at Pandalam, she found that it sustained heavy damages. It occurred during the transportation period and opposite party is liable to compensate the loss. Hence this complaint.
12. Opposite party’s contention is that the entire transaction has taken place at Delhi and hence this complaint lack jurisdiction to entertain before this Forum. Moreover, opposite party is only a temporary staff of Malabar Packers and Movers and he is a total stranger to the complainant.
13. It is not disputed that the vehicle has been transported from Delhi to Pandalam. Ext.A2 reveals that on 13.08.2009 the condition of vehicle is perfect and good. As per Ext.A4, it is revealed that complainant is the consignor and the place of destination is complainant’s residence at Pandalam. Ext.A6 and A7 shows that the vehicle had damages when it was delivered to the complainant. Ext.A8 shows that complainant sent legal notice regarding the details of damage to opposite party has not accepted Ext.A8. Ext.A5 and A12 shows that police registered a crime and charge sheeted the opposite party for their delinquency.
14. Since the complainant is the consignor and the vehicle entrusted to opposite party delivered at Pandalam, the question of jurisdiction raised by opposite party cannot sustained. Moreover, opposite party has not adduced any material to prove that he was only a temporary staff of Malabar Packers and Movers. In the absence of cogent evidence, opposite party’s contention as a whole cannot be appreciated.
15. As per Ext.A3 consignment delivery notes, the charges of transportation are not recorded. According to complainant, her relative Radhakrishnan paid ` 13,000 as charges. In order to avoid tax, opposite party has not written the amount in Ext.A3. Opposite party has not a contention that he had rendered a free transportation service and no amount has received. Unless and until a specific denial of the acceptance of `13,000, it is presumed that opposite party has received the said amount and issued Ext.A3 without recording the amount. In the aforesaid circumstances, the contentions of the opposite party regarding the territorial jurisdiction and with regard to the allegation of unnecessary impleadment of the opposite party in the party array are not sustainable. So we find that this complaint is maintainable before this Forum against the opposite party for his deficiency in service as the allegation is against a service provider who committed deficiency in service.
16. Then comes the question of gravity and extent of the deficiency of service committed by the opposite party in the transportation of the complainant’s car. In this case, the complainant’s allegation is that her car sustained damages while in the course of transport from Delhi to Pandalam through the opposite party. In order to substantiate her allegations, the complainant is relying on Ext.A2 repairing bill dated 13.08.2009 for the payment of the repairing charges at Delhi, Ext.A5 FIR, Ext.A6 AMVI’s report, Ext.A7 job card of Popular Motors and Ext.A12 charge sheet. As per Ext.A2, the car was in good condition as on 13.08.2009. But the car was delivered to the opposite party on 07.09.2009. So we cannot expect the condition of the car on 07.09.2009 as the same condition as on 13.08.2009, as the car was delivered to the opposite party after 25 days from the date of repairs. Exts.A5, A6 and A12 documents are connected with a criminal case. In the nature of the allegations of the complainant, we don’t find any relevance to those documents, as the allegations never attracts any provisions of any criminal law. So we are constrained to discard Exts.A5, A6 and A12. Then comes Ext.A7 which didn’t disclose anything in favour of the complainant as Ext.A7 job card is only an estimate for the running repairs of the vehicle. Further, the complainant has not adduced any documentary evidence to show that she had made any repairs to the vehicle for repairing the alleged damages sustained to the vehicle during the transportation. Moreover, Ext.A3 shows that when the vehicle was delivered to the opposite party, it had normal scratches and normal dents. The complainant also has not adduced any evidence against the entries in Ext. A3 regarding dent and scratches noted therein.
17. In total, the complainant has not adduced any evidence to show that she had spent such and such amount for the repairs of the damages caused due to the negligence of the opposite party and other expenses of the complainant. In Ext. A6 or in Ext. A7, no amount is shown for the required repairs. Further the complainant has not adduced any evidence to show that she had repaired the vehicle. Moreover, none of the exhibits discloses anything to establish the quantum of the amount required for the repairs of the vehicle.
18. In view of the above facts, we are not in a position to fix any amount as prayed for in the complaint. However, the complainant approached this Forum for getting an amount from the opposite party for his deficiency of service which is not positively proved by cogent evidence. At the same time, opposite party also failed to disprove the complainant’s case. The failure in disproving the complainant’s case by the opposite party leads us to the presumption that some negligence and deficiency of service has been committed by the opposite party and he is liable for the same to the complainant and hence this complaint is allowable in part and we fix the compensation as ` 7,500.
19. In the result, this complaint is allowed partly, thereby the opposite party is directed to pay an amount of ` 7,500 (Rupees Seven thousand five hundred only) to the complainant within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the said amount along with 7% interest per annum from today till the realization of the whole amount. In the nature and circumstances of this case, no orders for cost and compensation.
Pronounced in the Open Forum on this the 28th day of April, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : S. Padmaja.
PW2 : Sam.
PW3 : Vivek.
Exhibits marked on the side of the complainant:
A1 : Photocopy of certificate of registration of the vehicle.
A2 : Photocopy of repairing bill dated 13.08.2009 issued by the
Competent Automobiles Co. Ltd., Delhi East.
A3 : Photocopy of car condition paper dated 07.09.2009.
A4 : Carbon copy of delivery note dated 07.09.2009 issued by
the opposite party.
A5 : Photocopy of FIS and FIR dated issued from Pandalam
police station.
A6 : Photocopy of AMVI report.
A7 : Photocopy of the job card issued by Popular Vehicles &
Services Ltd., Mavelikkara.
A8 : Photocopy of advocate notice dated 02.12.2009 issued to
opposite party.
A9 : Returned envelop of opposite party.
A10 : Returned envelop of Malabar Packers & Movers.
A11 & A11(a) : Postal receipts of Ext.A9 and A10.
A12 : Carbon copy of final report dated 13.10.2009 submitted by
the Pandalam Police before the Judicial 1st Class
Magistrate Court, Adoor.
Witness examined on the side of the opposite party: Nil.
Exhibits marked on the side of the opposite party: Nil.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Mrs. S. Padmaja, Vaikhary, Vaishnavam,
Njettoor, Kulanada P.O., Pathanamthitta District. (2) Jimmy Joseph, Proprietor, Malabar Packers and Movers,
147, Gautam Nagar, New Delhi – 110 049.
(3) The Stock File.
