Chandigarh

DF-I

CC/508/2016

Shailesh Paun - Complainant(s)

Versus

M/s Agarwal Packers & Movers - Opp.Party(s)

Devinder Kumar

11 Jan 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/508/2016
Date of Institution	:	12/07/2016
Date of Decision	:	11/01/2018

 

Shailesh Paun S/o Sh. Bhagwanji Paun, r/o H.No.1134, 1^st Floor, Sector 43-B, Chandigarh.

…..Complainant

V E R S U S

 

[1]     M/s Agarwal Packers & Movers, Corp. Office: 3^rd Floor, Kabra Complex, 61-MG Road, Secunderabad – 500 003, through its Partner/ Proprietor.

 

[2]     M/s Agarwal Packers & Movers, Plot No. 181/18, Industrial Area, Phase-I, Chandigarh, through its Branch Manager.

 

……Opposite Parties

 

QUORUM:	SH.SURESH KUMAR SARDANA	PRESIDING MEMBER
	SH.RAVINDER SINGH	MEMBER

                                               

                                                                       

ARGUED BY	:	Sh. Devinder Kumar, Counsel for Complainant.
		None for Opposite Parties.

                       

PER SURESH KUMAR SARDANA, PRESIDING MEMBER

1.         Sh. Shailesh Paun, complainant has preferred this Consumer Complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Agarwal Packers and Movers and Another (hereinafter called the Opposite Parties), alleging that he availed the services of the Opposite Parties for shifting his household articles from Jam Nagar to Chandigarh on 22.05.2015 by paying a sum of Rs.43,000/-, whilst Rs.10,000/- was mutually agreed to be paid at the time of unloading of the material at Chandigarh. The articles were loaded in Truck no. GJ-1-BY-5872 at Jamnagar, but the articles reached Chandigarh in Truck No. HR-61A-7213. The Complainant made the balance payment and after unloading the articles, to his utter shock, he found that some of the household articles were missing and some were in broken condition, as detailed in para 9 of the Complaint), value of which was Rs.58,850/-. Despite great efforts, it was only on 18.06.2015 that out of the missing articles only mattresses were delivered to the Complainant. The Complainant contacted the Opposite Parties a number of times, to make good the loss, but every time only lame excuses were given. Hence, alleging the aforesaid act and conduct of the Opposite Parties as deficiency in service and indulgence into unfair trade practice, the Complainant has preferred the present Complaint.     
2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case.
3.         In their written reply, Opposite Parties have pleaded that the consignment was loaded in Truck No.HR-61A-7213 and not in the other Truck number mentioned by the Complainant.  It has been asserted that due care of the household articles were taken and were safely delivered to the Complainant. The carrier was on owner’s risk and there was no insurance taken by the Complainant, hence he is not entitled for any claim of damages, if any. Pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Parties have prayed for dismissal of the complaint.
4.         The Complainant also filed replication to the written statement filed by the Opposite Parties, wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted.
5.         The parties led evidence in support of their contentions.
6.         We have gone through the entire evidence, written arguments submitted by the Complainant as well as Opposite Parties and heard the arguments addressed by the Ld. Counsel for the Complainant. 
7.         The main grievance of the Complainant is that after booking of his household goods with the Opposite Parties, some of the goods transported and received at Chandigarh were found to be in damaged conditions and some of the goods were missing. On representing, the Opposite Parties failed to make good the loss, which resulted in the institution of the present Complaint.
8.         Per contra, the Opposite Parties have contended that the carriers was on Owner’s risk and there was no insurance taken by the owner, hence the Complainant is not entitled for any claim of damages, if any. However, we are not impressed with the same, in as much as, the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms which means the carrier has to deliver the goods safely, undamaged and without loss at the destination. To our mind, the expression ‘owner risk’, does not exempt a carrier from his own negligence or the negligence of his servants or agents. It is important to note that even if the goods receipt mentions that the goods were dispatched at owner’s risk should not by itself deter the consignors in claiming compensation from the transporters. In case Vijay Goods Transport Company Vs. Rungta Brother, 2003 CTJ 480 (CP), the Hon'ble National Consumer Disputes Redressal Commission has held the Transporter liable to make good the loss. In case, Patel Roadways Vs. Birla Yamaha Limited, 2000 CTJ 241 (SC) (CP), the Hon'ble Apex Court has gone to the extent of observing that the absolute nature of the carrier’s liability “it is not for the plaintiff to establish negligence”. The terms such as “owner’s risk” or “at the sole responsibility of the owner” are of no significance and cannot absolve the carrier’s responsibility to ensure the safe delivery of goods. It is thus legitimately proved that the carrier/Opposite Parties cannot disown the liability by saying that they did not cause the loss.
9.         Ld. Counsel for the Complainant argued that the goods were loaded on 22.05.2015; whereas, the same were received by the Complainant on 29.05.2015 i.e. after a period of 07 days. He has further argued that the articles were loaded in Truck no. GJ-1-BY-5872 at Jamnagar, but the same reached Chandigarh in Truck No. HR-61A-7213, meaning thereby that the truck had been changed in midway and was partially loaded as another consignment was loaded in the same truck. Even some of the articles which were received by the Complainant and returned to the Opposite Parties did not belong to him. Interestingly, these facts have neither been refuted by the Opposite Parties in their pleadings nor did they produce on record all the necessary toll receipts indicating the Truck numbers and movement thereof. Importantly, during the course of proceedings, an application was also filed by the Complainant for production of toll tax receipts from Jamnagar to Ahemdabad, which although was contested by the Opposite Parties, yet they have miserably failed to produce and place the same on record. In these set of circumstances, we are of the concerted opinion that the said toll tax receipts are very material and necessary for the apt and just decision of the lis before us, and for the inability of the Opposite Parties to produce the same, an adverse inference is drawn against them. At any rate, from a perusal of Annexure C-7 to C-16, placed on record by the Complainant, it is evident that the Truck remained in Ahmedabad, Gujrat upto 27.05.2015, covering a distance of 300 Kms. only which is possible to cover within 05 hours. Needless to mention here that despite having knowledge of the entire developments, the action of the Opposite Parties in not promptly making good the loss, to our mind, tantamounts to deficiency in service and unfair trade practice on their part, which certainly has caused immense, mental and physical harassment to the complainant.
10.         In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are jointly and severally directed:-

[a]    To pay a sum of Rs.58,850/- to the Complainant, being loss of the articles, along with interest @9% p.a. from the date of loss i.e. 29.05.2015, till realization

[b]     To pay Rs.25,000/- as compensation on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c]     To pay Rs.10,000/- as cost of litigation;

11.         The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] above from the date of loss i.e. 29.05.2015, till it is paid. The compensation amount as per sub-para [b] above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [c]. 
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
11/01/2018	[Ravinder Singh]	[Suresh Kumar Sardana]
	Member	Presiding Member
“Dutt”