In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No.369/2008

1)                   Sri Asim Kumar Sanyal,

C-3/5, Manjulika, EXTP, Phase-IV, Kolkata-700107.                     ---------- Complainant

---Versus---

1)                   M/s. XPS Cargo Services,

P-48, Transport Depot Road, Kolkata-700088.

2)                   The Oriental Insurance Co. Ltd.,

Silchar Divisional Office, Town Club Building,

PWD Road, Silchar-788001.

3)                   The Oriental Insurance Co. Ltd.,

4, Lyons Range Kolkata-700001.                                                            ---------- Opposite Parties

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member

                        Smt. Sharmi Basu, Member

Order No.   36    Dated  31/12/2012.

            In a nutshell the case of the complainant in short is that o.p. no.1 was engaged as transporters for shifting of household goods of the complainant from Silchar to Kolkata vide DWB No.504866515 dt.22.4.08 of approximate value of the said items was Rs.1 lakh  through an order for transportation dt.22.4.08. For the safety and security on the way of transit the complainant insured the said items with o.p. no.2 for a sum of Rs.1 lakh as value of insurance and o.p. no.3 is the controlling authority of o.p. no.2, where the goods has been delivered by o.p. no.1. Date of issuance of certificate of insurance is 24.4.08.

            The o.p. no.1 while carrying the said house hold goods from Silchar, Assam to Kolkata by the transportation of o.p. no.1, the said goods were badly damaged and the complainant incurred loss approximately of Rs.54,000/- which was intimated to o.ps. by the complainant dt.7.5.08. It is also very unfortunate that in spite of the complainant letter dt.19.5.08 and followed by repeated reminders of the complainant, the o.p. no.1 did not issue the damage certificate so that the complainant could lodge the claim with o.p. nos.2 and 3.

            Moreover, as per the complainant, the o.p. nos.2 and 3 have also committed negligence and the o.p. nos.2 and 3 have not rendered service properly for which the o.p. nos.2 and 3 have caused deficiency in service by not evaluating the damage by o.p. nos.2 and 3 surveyor in spite of the complainant letter dt.26.5.08 in this regard and in consequence thereof the complainant is entitled for relief and hence the case was filed by complainant with the prayer contained in the petition of complaint.

            O.p. nos.2 and 3 had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and dismissal of the case. Ld. lawyer of o.p. nos.2 and 3 interalia has stated that the case is not maintainable for want of territorial jurisdiction. O.p. no.1 did not contest the case and matter was heard ex parte against o.p. no.1.

Decision with reasons:--

            We have gone through the pleadings of the parties, evidence and documents in particular. Even after valid service of summon o.p. no.1 has not appeared before this Forum the contention of the complainant and all the documents filed by complainant established this case against o.p. no.1 remains unchallenged testimony and considered as valid documents. From the record it is crystal clear that complainant was never defaulter regarding payment of premium and the loss as alleged by the complainant has been occurred within the validity period of the insurance in question. It is also evident from the record though the complainant through letter dt.19.5.08 requested the o.p. no.1, but till the date of hearing of the instant case o.p. no.1 did not issue the damaged certificate and for this inaction of the o.p. no.1, the complainant could not lodged the claim with the o.p. nos.2 and 3 (insurer). Therefore, we are of the opinion that o.p. no.1 is liable for deficiency in rendering service towards the complainant / consumer and complainant had to suffer financial loss as well as mental agony for the aforesaid inaction of o.p. no.1 and he is eligible to be compensated by o.p. no.1.

            To decide whether o.p. nos.2 and 3 have committed any deficiency in service or not following discussions are advanced. From the record it is apparent that complainant engaged o.p. no.1 as transporters for shifting of household goods of complainant from Silchar to Kolkata and insured the aforesaid items with o.p. nos.2 and 3 and after reaching the destination complainant noticed that some damages were caused to the articles amounting loss of Rs.54,000/- to the complainant. Therefore, cause of action arose both at Silchar and Kolkata. Here it is pertinent to mention that as per provision of the C.P. Act u/s11 cause of action being bundle of facts complainant obtained insurance policy from the branch  office at Kolkata which is very much within the territorial jurisdiction of this Forum. There is nothing on record acceptable to this Forum to take note that o.ps. rebutted this position.

            It is seen from the record that complainant intimated o.ps. vide letter dt.26.5.08 for the purpose of claim urged for appointment of surveyor to assess the extent of loss, but they did not pay heed to such requests of complainant nor settled the claim of the complainant.

            In view of the findings above we are of the opinion that the o.p. nos.2 and 3 cannot shirk off their responsibility to mitigate the claim of the complainant being service provider to its consumer / complainant and thus they are deficient in service rendering service and complain ant is entitled to relief.

             Hence, ordered,

            That the case is allowed ex parte with cost against o.p. no.1 and on contest with cost against o.p. nos.2 and 3. O.p. nos.2 and 3 are jointly and/or severally directed to pay a sum of Rs.54,000/- (Rupees fifty four thousand) only being the loss caused to the complainant for the damage of articles along with interest @ 12% p.a. from the date of institution of the case from 20.11.08 till the date of realization. O.p. no.1 is directed to pay to the complainant compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Supply certified copy of this order to the parties free of cost.