Tamil Nadu

StateCommission

CC/69/2016

V.Srinivasa Rao & 2 Ors. - Complainant(s)

Versus

M/s Marg Properties Limited, Rep. by its Managing Director & anr. - Opp.Party(s)

N.Varadha Rajan,

01 Sep 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

              TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER  

 

C.C.No.69/2012

 TUESDAY, THE 3^rd DAY OF AUGUST 2021.

 

 

M/s. Argus Cosmetics Limited.,

2^nd Floor, LVR Centre,

No.4, Shesdri Road,

Alwarpet,

Chennai – 600 018.

Rep. by its Authorized Signatory.                                                       Complainant   

 

                        Vs

 

United India Insurance Co. ,Ltd.,

Represented by its Divisional Manager,

Divisional Office – 010600,

PLA  Rathna Towers, 5^th Floor,

No.212, Anna Salai,

Chennai – 600 006.                                                                            Opposite Party       

 

Counsel for the Complainant   :   M/s. V. Balaji,  Advocate.

Counsel for the Opposite Party:   M/s. M.B. Gopalan, Associates  Advocates.

             This complaint coming before us for final hearing today, on 03.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following

ORDER

HON’BLE   THIRU. JUSTICE R. SUBBIAH, PRESIDENT (Open Court)  

 

1.         This complaint has been filed by the complainant under section 17 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite party claiming the following reliefs;-

          a)  to pay a sum of Rs.8,20,890.70 P towards the cost of damaged consignment,

           b) to pay a sum of Rs.10,00,000/- towards damages and   

           c) to pay a sum of Rs.10,00,000/- towards deficiency in service committed by

               the opposite party and

          d)  to pay a sum of Rs.50,000/- towards the cost of the complaint.  

2.        The gist of the complaint allegations is as follows;-   It is the case of the complainant that they are running a Small Scale Industry engaged in manufacturing and dealing with Men’s Cosmetics under the brand name of “Z” and they used to purchase packing materials from M/s. Sadanam Personal Products Limited, Dehradun.  The said concern despatched 730 cases which consists of 50 grams tins of 350 cases and 100 grams tins of 380 cases through Agarwal, Packers and Movers Limited from Dehradun to Bangalore under the Invoice No.674510 on 15.06.2011. The goods were delivered at Bangalore on 28.06.2011. On receipt of the goods at Bangalore, it was found that the goods worth about Rs.8,20,890.70 P were damaged and hence necessary endorsement were made on the rear side of the lorry receipt. The cartons were fully wet and the tins inside the cartons were rusted and as a result of which the stocks could not be sold in the market.  It was informed by the driver of the truck who brought the goods on the road that due to a heavy down pour on the way to Bangalore, the consignment got damaged/wet.  Hence, the complainant intimated the same to the opposite party.  The opposite party appointed Garg and Company to inspect the Cargos. The surveyor visited the spot and inspected the Cargos on 28.06.2011 and 06.07.2011 and the required documents sought for by the surveyor were also furnished by the complainant without any delay.  The complainant lodged a insurance claim with the opposite party for a total sum of Rs.16,51,501.50 P for consignments covered under the lorry receipt No.674510.  After assessment of loss by the surveyor nothing was heard from the opposite party and hence on 06.10.2011 the complainant requested the opposite party to settle the amount as per the claim application and in the said letter the complainant has specifically informed the opposite party that the complainant’s products are a seasonal product and the same could be sold only during the summer season. Since the damage had occurred during the peak summer season, the complainant could not sell the products and thereby they incurred heavy loss. The opposite party in its reply letter, dated 18.10.2011 directed the complainant to furnish certain documents and accordingly the said documents were also furnished to the opposite party. In spite of the documents being furnished, the opposite party repudiated the claim even before submitting a completed claim application stating that no physical damage/loss to the consignments was reported by the surveyor.  Hence, on 22.02.2011, the complainant requested the opposite party to furnish the survey report.  On 05.03.2012, the surveyor informed the complainant that the report was already submitted to the Divisional Office of the opposite party and thereafter the complainant got survey report from the opposite party on 24.05.2012. In the survey report, it is revealed that the surveyor appointed by the opposite party assessed the loss of damage at Rs.7,85,715.36. But, the claim was repudiated by the insurance company mainly on the ground that there was no external damage caused to the package. But, this reason of the opposite party for repudiating the claim is not legally sustainable. There is a deficiency in service on the part of the opposite party in repudiating the claim and hence the complainant has preferred this consumer complaint before this Commission claiming the reliefs as stated supra.

3.    The complaint was resisted by the opposite party by filing their written version contending inter alia that the complainant reported the damage to the consignment of Talcum Powder tins sent from Dehradun to Bangalore through Agarwal Packers and Movers.  The opposite party immediately engaged surveyor M/s. Garg & Co., for survey.  The said Surveyor conducted physical inspection and had taken photographs, even before unloading the consignment from the vehicle. It was found that except for external wetness of certain cardboard cartons, that too on the outer layers, there was no physical damage to any of the talcum powder tins kept inside the package.  The surveyor also observed that the tins had paper seal which were not found affected in any tin and further no tins was found dented or broken. While a few tins had rust marks it could not be attributed to the transit or wetness of cartons during the same since the tins had coating of lacquer for safety and to withstand shelf life period.  It is also necessary to point out that rust formation cannot happen within such a short period and therefore no damage was attributable to any peril during transit. There is no basis to suggest that all tins inside the cases were damaged or liable to be rejected.  As per the Surveyor’s physical observation there was no damage whatsoever to any of the tins and thus sought for dismissal of the complaint. 

4.      The complainant and the opposite party have filed their respective proof affidavit. Exhibits A1 to A10 were marked on the side of the complainant and Ex B1, survey report was marked on the side of the opposite party.      

5.      Considering all the above averments made by both sides the following points are raised for determination. . 

          (1)    Whether the opposite party has committed any deficiency in service by

                   repudiating the claim made by the complainant?   

          (2)    Whether the complainant is entitled for compensation as prayed for

                   in the complaint?     

          (3)    To what other relief, the complainant is entitled?  

6.      Point Nos.1 to 3:-   The learned counsel appearing  for the complainant submitted that during the course of their business one M/s. Sadanam Personal Products Limited despatched 730 cases consisting 50 grams tins of 350 and 100 grams tins of 380 cases through Agarwal Packers and Movers Limited from Dehradun to Bangalore on 15.06.2011 and the said cases were delivered at Bangalore on 28.06.2011. On receipt of the consignments, it was found that the goods worth about Rs.8,20,890.70 were damaged and all cartons were fully wet and the tins inside the cartons were rusted. The surveyor inspected the goods and filed his report confirming the damage caused to the articles.  The claim lodged by the complainant to the extent of Rs.16,51,501.50 for a total loss of consignment was repudiated by the opposite party without assigning any valid reasons. The only reason assigned in the repudiation letter is that no physical damage/loss to the consignment was reported by the surveyor.  Assailing the said reason, the learned counsel appearing for the complainant by inviting the attention of this Commission to the survey report submitted that in the survey report, the surveyor has clearly observed that the wetness in their outer cartons and some of the tins carried rust marks.  These observations would show that there was damage to the goods.  Therefore, the complainant is entitled for the compensation as claimed by them.  

7.       Per contra, the counsel for the opposite party submitted that the surveyor’s report would clearly show that except for external wetness of certain cardboard cartons that too on the outer layers, there was no physical damage to any of the talcum powder tins inside and thus the surveyor has clearly observed that the tins had paper seal which were not affected in any tin. Further, no tins were found dented or broken. Though in the survey report it has been stated that tins had rust marks and wetness was found on the outer layer of cartons boxes the same could not have occurred during the transit since the tins had coating of lacquer for safety to withstand shelf life period. Further, rust formation cannot happen within a short period.  Therefore, no damage could be attributed to any peril during transit. Since some of the cartons were wet it cannot be said all the tins which were inside the cases were damaged or liable to be rejected.  Now the complainant is making an attempt to claim compensation based on the wetness of the cartons.  Furthermore, the complainant has to establish before this Commission as to whether the goods were despatched in good condition.  When there was no damage to the tins, the complainant is not entitled for any compensation and hence he sought for dismissal of the complaint.   

8.        We have carefully considered the submissions made by both sides and perused the materials on record.   It is not in dispute the goods of 730 cases among them 350  cases of having 50 grams tins and 380 cases consisting of 100 grams tins were transported from Dehradun to Bangalore.  But, according to the complainant, at the destination point in Bangalore, it was found the cartons were fully wet and the tins inside the cartons were rusted and therefore stocks could not be sold in the market.  Whereas it was replied by the opposite party/insurance company that merely because cartons are fully wet, it cannot be said the tins inside the cartons got damaged. But, in our considered opinion, as contended by the counsel for the opposite party/insurance company the complainant has not placed any tangible evidence to show that the tins which were kept inside the cartons got damaged. But, from the surveyor’s report we could infer that only due to down pour the cartons became wet and as such circumstances, we are not inclined to grant compensation as claimed by the complainant. Further, from the survey report, we could see the value of loss of consignment has been arrived at Rs.1,49,287.00.  The calculation made by the surveyor is as follows;- Net loss to the consignment is Rs.7,85,715.00, Less salvage value (Rs.6,50,000/-), Value of Loss as per Policy  i.e., C.I.F.+ 10% (Rs.12,571.00) + 1,49,286.50 P., rounded off Rs.1,49,287/- as value of loss of consignment. Therefore, we are of the opinion that as per the survey report, the complainant is entitled to get compensation of Rs.1,49,287.00 from the opposite party.   Further, we come to the decision that in order to meet the interest of justice, the above amount could be awarded with interest at the rate 7.5% per annum from the date of complaint till the date of payment.                                                                                                                      

9.        In the result, the complaint is allowed in part and the opposite party is directed to pay the complainant a sum of Rs.1,49,287.00  towards the cost of damaged consignment as per the survey report with interest at the rate of 7.5% per annum from the date of complaint till its realisation with cost of Rs.5000/- within two months from the date of receipt of copy of this order.  

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

 

Ex   A1     03.09.2010     Marine Cargo Open Policy

Ex   A2     17.06.2011      Lorry Receipt

Ex   A3                           Claim Form

Ex   A4     06.10.2011      Letter from the complainant

Ex   A5     18.10.2011      Letter from the complainant 

Ex   A6     18.10.2011      Repudiation Letter 

Ex   A7     25.10.2011      Letter from the complainant

Ex   A8     29.11.2011      Letter from the Regional Manager

Ex   A9     20.09.2011      Survey Report

Ex  A10                          Series of Photos

LIST OF DOCUMENT MARKED ON THE SIDE OF THE OPPOSITE PARTY

Ex   B1      20.09.2011     Survey Report

 

 

S.M. LATHA MAHESWARI,                                                              R. SUBBIAH,

           MEMBER.                                                                              PRESIDENT. 

Index: Yes/No

TCM/SCDRC/Chennai/Orders/Jul/2021