Haryana

Panchkula

CC/98/2020

JITENDRA KUMAR SAINI. - Complainant(s)

Versus

M/S NAV BHARAT CARGO PACKERS & MOVERS. - Opp.Party(s)

COMPLAINANT IN PERSON.

27 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	98 of 2020
Date of Institution	:	24.02.2020
Date of Decision	:	27.01.2023

 

 

1.     Jitendra Kumar Saini, S/o Late Sh. Megh Nath Saini, House       No.1699, Sector-28, Panchkula, Haryana-134116.

 

2.     Ankit Saini s/o Sh.Jitendra Kumar Saini, House No.1699, Sector-        28,         Panchkula, Haryana-134116.

 

….Complainants

 

Versus

1.     M/s Nav Bharat Cargo Packers & Movers, Shop No.1, Plot         No.50/       51/52, Sai Sharda, Sector-18, Kharghar, Navi Mumabi-410210     (Maharashtra)

2.     M/s Nav Bharat Cargo Packers & Movers office No.404, Mansarovar   Complex, Plot No.1 to 6, Sector-34, Kamothe, Navi Mumbai- 410209 (Maharashtra).

3.     M/s Liberty General Insurance Ltd; 10^th Floor, Tower A, Peninsula       Business Park, Ganapat Rao Kadam Marg, Lower Parel(W),    Mumbai, Maharashtra-400013.

4.     M/s Liberty General Insurance Ltd; Second Floor, SCO 145-146,         Sector-9C, Madhya Marg, Chandigarh-160017.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

                        Dr. Pawan Kumar Saini, Member

Dr. Sushma Garg, Member

 

 

For the Parties:   Complainant in person.  

                        Op No.1 ex-parte vide order dated 15.09.2021.

                        OP No.2 already given up vide order dated 05.10.2021.

                        Sh. Arjun Kundra, Advocate for OPs No.3 & 4.

                         

ORDER

(Per Satpal, President)

1.             Briefly stated, the  facts of the present complaint are that the complainant no.2 handed over 15 items like TV, AC etc of household goods to Ops No.1 & 2 for their transportation & delivery from Ulwe(Navi Mumbai, Maharashtra) to Panchkula vide GR No.227 dated 09.07.2019 by paying a sum of Rs.16,050/-. It is alleged that on receipt of the household goods at Panchkula and on opening the cover container the TV make Samsung LED Model No.46EH6030 was found broken. The photographs of the broken TV were forwarded to Ops through various emails etc. The photographs were also shared with Sh.Kuldeep Sharma of M/s Nav Bharat Cargo Packers & Movers, of Ops No.1 & 2 through whatsapp. Apart from T.V., the indoor unit of AC was found broken. It is alleged that the goods were not delivered at Panchkula in the same vehicle, in which these were loaded at ULWE(Mumbai) and that the goods were unloaded during transportation and then loaded into other vehicle at various places, resulting in mis-handling, leading to severe damage to the TV and AC. It is stated that the amount of Rs.16,050/- which was paid in cash vide receipt no.218 dated 09.07.2019 included the insurance premium covering all risks. The insurance policy was not provided while dispatching the goods despite repeated request. The insurance quote was provided after the dispatch of goods i.e. at 9:30P.M. on 09.07.2019 through whatsapp whereas the goods were handed over to the Ops No.1 & 2 around 4:15P.M. on 09.07.2019. It was promised and assured by Ops No.1 & 2 that the insurance policy would be got issued covering all risks i.e. under Clause ‘A’. It is alleged that the insurance policy was provided to the complainant through whatsapp on 26.07.2019 i.e. after 10 days of lodging the claim regarding broken TV vide email dated 17.07.2019. The quotation of the insurance policy which was provided on 09.07.2019 contained the following warranty clause:-

        “Warranties: Warranted adequate packing to protect the cargo from rainwater damages. Warranted adequate packing to withstand the intended journey”.

        The warranties clause included in the insurance quotation was omitted while issuing the insurance policy on 26.07.2019. It is alleged that the Ops were to cover the goods under All risks Covered Policy i.e. Clause A whereas, while issuing the policy on 26.07.2019, the terms and conditions of the policy were intentionally changed from All Risks Covered to Clause B after knowing fully well that the claim against the broken TV had already been lodged on 17.07.2019 through email, which smacks of malicious intent on the part of the Ops to escape from settling the legitimate claim. The insurance company i.e. Ops No.3 & 4 had asked for repair estimate of the broken TV vide email dated 29.07.2019, which was promptly provided to them by the complainants vide email dated 29.07.2019. The claim lodged with the Ops No.3 & 4 was rejected vide their email dated 30.07.2019 stating that TV had got damaged during transportation due to Jerks and jolts. It is stated by Ops i.e. there was no accident during transit and as per the insurance policy, the coverage was under Inland Transit(Rail/Road) Clause B 2010 whereas the subject loss did not fall within the scope of the policy. The complainants feeling aggrieved  against the rejection of the claim  sent representation to Ops No.3 & 4 stating that repudiation was not valid as insurance premium was paid for covering all risks under Clause ‘A’ and not Clause ‘B’ but to no avail. Due to the act and conduct of OPs, the complainants have suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Notice was issued to the OP No.1 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.1; hence, it was deemed to be served and thus, due to non appearance of OP No.1, it was proceeded ex-parte by this Commission vide its order dated 15.09.2021.                The complainant vide his separate statement on 05.10.2021 has given up OP No.2 being unnecessary party.

                Upon notice, the OPs No.3 & 4 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable for want of cause of action and that the complainants have not approached the commission with clean hands. Further, it is stated that the Ops No.3 & 4 issued Marine Cargo Specific Voyage Policy Inland bearing number 3413-400402-19-1002059-00-000 covering the used  household goods of the complainants  while  in transit from Navi Mumbai  to Panchkula for a sum  insured  of Rs.50,000/-  subject to the terms and conditions  and to the extent of limits  mentioned  in the insurance policy. The insurance policy was subject to Inland Transit (Rail/Road)-Clause B (Named Perils) 2010 and other clauses as mentioned  in the policy terms. On 17.07.2019 the Ops No.3 & 4 were informed by the complainant no.2 that household goods were booked for Panchkula in Haryana through M/s Bharat Cargo Packers & Movers(Ops No.1 & 2)  from Navi Mumabi and on receipt of the same, whilst opening the packet containing the TV on 17.09.2019, it is/was found in a damaged condition. Thereafter, the Ops No.3 & 4 sent an email dated 29.07.2019 to the complainant no.2 to let them know about the ‘Cause of Damage’. The complainants in response to the said email dated 29.07.2019 informed the Ops that the damage/ breakage had happened during transit. It is stated that the policy issued to the complainants covered the loss or damage caused on account of following factors:

e)     (i)     Fire or explosion

        (ii)    Lighting

        (iii)    Earthquake and Volcanic Eruption

 

f)      (i)     Collision  with or by the carrying  vehicle/railway wagon

        (ii)    Overturning of the carrying vehicle/railway wagon

        (iii)    Derailment or accidents of like nature to carrying vehicle/ railway wagon/vehicle.

 

                None of the named perils as mentioned above operated that caused the damage/breakage of the complainants T.V. The carrier-M/s Nav Bharat Cargo Packers & Movers(Ops No.1 & 2) have not reported  any accident  to the carrying  vehicle and no such  proof  or information was made available  to Ops No.3 & 4. The damage was caused by jolts and jerks. There was no accident during the transit; thus, the loss claimed by the complainants was outside the scope of cover of the insurance policy. The claim of the complainants was rightly repudiated vide email dated 30.07.2019. It is stated that the Ombudsman, Chandigarh has rightly dismissed the claim vide his order dated 10.01.2020. It is further stated that the value of the damaged TV as per complainant was Rs.25,000/- whereas a sum of Rs.27,317/- was claimed before the Insurance Ombudsman. Further, it is stated that no claim qua the damage of the indoor unit of the AC was made before the Ombudsman or prior to that. So, there is no deficiency in service on the part of the Ops No.3 & 4 and thus, prayed for dismissal of the present complaint.

3.             The complainant No.1 has tendered affidavit as Annexure C-A along with documents as Annexure C-1 to C-21 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.3 & 4 tendered affidavit as Annexure R3/A alongwith documents as Annexure R-1 to R-6 and closed the evidence.

4.             We have heard the complainant and learned counsels for the parties and gone through the entire record available on file including the written arguments filed by the complainant as well as the learned counsel for OPs No.3 & 4, minutely and carefully.

5.             The complainants, during arguments, reiterating the averments made in the complaint as also in the affidavit  Annexure C-A has alleged the lapses and deficiencies on the part of Ops No.1 & 2 while transporting  their household goods vide GR No.227 dated 09.07.2019 (Annexure C-1). It is contended that goods were not delivered in the same vehicle at Panchkula in which the same were loaded at Navi Mumbai. It is argued that the goods were unloaded and then reloaded into other vehicle at various places resulting in mishandling leading to severe damage to the TV and air conditioner. It is asserted that the transporter was duty bound to deliver the goods in the same condition in which these were booked but the OPs No.1 & 2 failed to do so and instead delivered broken TV and indoor unit of Air-condition. It is contended that despite repeated requests, the Ops failed to compensate for the loss of the goods and also refused to pay the insurance claim. It is contended that the repudiation of the claim by Ops No.3 & 4 was not fair and valid and thus, the complainants have prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

6.             The Ops No.1 has preferred not to contest the present complaint by remaining absent from the proceedings of the present case and thus, the assertions made by the complainants qua him go unrebutted and uncontrovered.

7.             The Ops No.3 & 4 have resisted the claim mainly on the ground that the TV in question got damaged during transportation of the household goods from Navi Mumbai to Panchkula causing loss to the complainants. The learned counsel on behalf of the Ops No.3 & 4 vehemently contended that as per own version of the complainants vide email dated 29.07.2019 (Annexure C-17), the TV was damaged during transit. It is contended that the loss or damage of the household goods under the relevant insurance policy was covered only in the event of damage caused by fire, lighting, earthquake, collision with other vehicle, over-turning of the carrying vehicle or Derailment. The learned counsel has contended that none of the named perils as mentioned in the policy had operated and therefore, the claim was rightly repudiated vide email dated 30.07.2019(Annexure C-20). It is contended that no claim was raised either in the emails or before the Ombudsman qua the damage to the indoor unit of A.C. and thus, it is prayed that the complaint is liable to be dismissed being baseless and frivolous.

8.             It is not in dispute that the TV in question got damaged during transportation of the household items of the complainants from Ulwe(Navi Mumbai, Maharashtra) to Panchkula. As per unrebutted contentions of the complainants, the household goods were not delivered in the same vehicle in which these were loaded. It is further unrebutted that the goods were unloaded and then reloaded into other vehicle at various places, resulting in mishandling, leading to severe damage to the TV and air conditioner. It is correct that the transporter is duty bound to deliver the goods in the same condition in which these were booked.  As per note given on GRN No.227(Annexure C-1) dated 09.07.2019, the transporter i.e. OP No.1 was liable for any damage to the breakage and leakage. Moreover, the contentions of the complainants against the Ops No.1 & 2 i.e. transporter are unrebutted and uncontroverted. Therefore, M/s Nav Bharat Cargo Packers and Movers (OPs No.1 & 2) bearing the address i.e. Ops No.1 & 2 is liable to compensate the complainant on account of their deficient services.

9.             Now, coming to the liability of the Ops No.3 & 4, it is found that the insurance policy was sent to the complainants on 26.09.2019, whereas the claim qua the damage to the broken TV was launched on 17.07.2019. Further, as per quotation (Annexure C-18), there was warranty clause to the effect  i.e. warranted adequate packing to with stand the intended travel whereas the said clause was found omitted by complaints in the insurance policy, which was ultimately issued to them on 27.07.2019. The Ops No.3 & 4 have not denied specifically the averments of the complainant made in para no.15 of the complaint that the insurance policy was provided to them through whatsapp on 26.09.2019. The act and conduct of the Ops No.3 & 4 in sending the insurance policy after lodging of the claim cannot be held valid, fair and justified. Moreover, the warranty clause as given in the quotation (Annexure C-18) was not included in the insurance policy(Annexure C-3). Therefore, the Ops No.3 & 4 cannot escape from their liability of indemnifying  the loss caused  to the complainants on account of damaged to TV and thus, Ops No.1 to 4 are held liable, jointly and severally, to indemnify the loss caused to the complainants.

10.            Coming to the relief, it is found that complainants have claimed the refund of transportation charges amounting to Rs.16,050/- along with interest, refund of cost price of the TV and indoor AC amounting to Rs.87,000/- along with interest. Further, a sum of Rs. 1,00,000/- and Rs.25,000/- has been claimed on account of mental agony and physical harassment and litigation charges. As per email dated 17.07.2019(Annexure C-6), 19.7.2019(Annexure C-7), 29.7.2019 (Annexure C-8), 07.08.2019(Annexure C-9), 12.08.2019 (Annexure C-10) and letter dated 13.09.2017(Annexure C-11), the compensation qua the damage to the TV only was sought. Even in the complaint before the Ombudsman, no claim was raised qua the loss to the indoor unit of AC; therefore, the claim of the complainant amounting to Rs.5,000/- qua the damage to the AC is declined. As per (Annexure C-3), value of the TV in question was declared by the complainants as Rs.25,000/-, therefore, the complainants are entitled to the payment of Rs.25,000/- on account of loss caused to them due to breakage of TV. Apart from it, they are entitled to adequate compensation on account of mental agony and physical harassment. The claim qua refund of Rs.16,050/- is declined as 15 numbers of household items have been delivered by the Ops No.1 & 2 to the complainants at Panchkula.

11.            As a sequel to above, the present complaint is allowed against the Ops No.1 to 4, who are liable to pay the compensation, jointly and severally as under:-   

1. To pay a sum of Rs.25,000/- to the complainant on      account of loss caused to the broken TV w.e.f. the date     of filing of the complaint till its realization.
2. To pay a lump-sum compensation of Rs.10,000/- to the    complainant on account of mental agony,     harassment and litigation charges.

 

12.            The OPs No.1 to 4 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:27.01.2023

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                Satpal                                

                                                President