BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of September 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.14/2010
(Admitted on 08.01.2010)
Mr.Edward Fernandes,
Aged about 56 years,
So. Francis Fernandes,
Ro. 601, Milagres Castle,
Balmatta Road, Hampankatte,
Mangalore Taluk 575 001. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M.R.Ballal).
VERSUS
Ms. National Insurance Company Ltd.,
A Government of India Undertaking Company,
having its Divisional Office at No.30,
Bharath Building, P.M. Rao Road,
Mangalore 1, Rep. by its
Divisional Manager. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.Diwakar Bangera).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant states that, he had taken Specific Voyage Policy bearing No.360304/21/08/4500000936 issued by the Opposite Party regarding the transport of the house hold items and entrusted to M/s.Caravan Roadways Ltd., Mumbai for transportation from Bhiwandi to Mangalore. On 3.3.2009, the Complainant received most of the consignment in its damaged condition and LCD Monitor, Fans and spare computer mother board was found missing. The damaged consignment also included one imported sofa set. The value of the goods lost during the transit and damage caused to the consignment delivered is more than Rs.1,00,000/-. It is stated that, the Complainant obtained damage certificate/letter from the driver of the lorry which had brought the consignment to the Complainant address. The Complainant made repeated efforts to the transporter to trace back the missing goods and also to recover the damages regarding the damage caused to the consignment during the transportation. Complainant informed the same to the Opposite Party and submitted the claim application. The Opposite Party who had deputed its surveyors to inspect and assess the damages for the settlement of the claim. The surveyor also had opined that the claim will be honoured by the Opposite Party within a couple of weeks. Accordingly, the Complainant visited the Opposite Party several times but the Opposite Party not reimbursed the amount. Thereafter, the Complainant issued a legal notice dated 21.9.2009, the said notice sent by RPAD, the Opposite Party issued a letter stating that they had approved the claim for Rs.4,000/-. It is stated that, the decision taken by the Opposite Party for Rs.4,000/- is a unilateral and without providing any opportunity to the Complainant to say in the matter. It is contended that, the act of the Opposite Party amounts to deficiency and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to indemnify the Complainant in a sum of Rs.50,000/- along with interest at 12% per annum from 6.10.2009 till payment along with compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version contended that, the alleged Marine Cargo Specific Voyage Policy bearing No.360304/21/08/4500000936 is not issued by this Opposite Party, hence this Opposite Party is not necessary party to the proceedings. The alleged policy was issued by the Divisional Office Delhi. The Complaint is bad for non-joinder of necessary parties. It is stated that, the Complainant failed to submit the damage certificate obtained from the transporter to the surveyor.
The damage certificate letter obtained from the driver of a lorry is not in accordance with the terms and conditions stipulated in the policy since the said driver is not an authorized person to issue the certificate of damage. It is further stated that, the articles insured with the Opposite Party should have been loaded in the vehicle, which is closed or covered with tarpaulin. Most of the articles which were claimed to have been damaged because of spill of water to their internal components. The cause of damages in transit is not explained by the Transporter. The value claimed by the Complainant was estimated value on his own and not supported by any bills/receipts of purchase voucher. The value estimated by the Complainant is denied by this Opposite Party and stated that the amount of loss assessed by the surveyor was Rs.11,000/- and Rs.5,000/- was deducted as policy excess and Rs.6,000/- offered for settlement. It is stated that, the Complainant has not submitted the letter of subrogation and power of attorney inspite of request. Hence it is contended that there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Cynthia Fernandes (CW1) – General Power of Attorney of the Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Mr.Manjunath (RW1), Divisional Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. One Mr.Rajaram Rao (RW2), Insurance Surveyor and Loss Assessor – witness of the Opposite Party filed affidavit and answered the interrogatories served on him and produced survey report. Ex R1 to R3 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of argument.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
From the outset of the records available on the file of this Forum, it is admitted that, the Complainant availed Specific Voyage Policy bearing No.360304/21/08/4500000936 issued by the branch office of the Opposite Party situated at New Delhi (as per Ex C1). It is also admitted that, on 03.03.2009 the Complainant engaged the transportation of the household items and entrusted the transportation with M/s.Caravan Roadways Limited New Mumbai for transportation from Bhiwandi Mumbai to Mangalore.
Now the dispute between the parties before this Forum is that, on 03.03.2009 the Complainant received most of the consignment in its damaged condition and LCD monitor (1 no.), fans (2 nos.) and a spare computer mother board was found missing. The damaged consignment also included one imported sofa set. According to the Complainant, the damage caused to the consignment delivered is more than Rs.1,00,000/- but the Opposite Party after much persuasion Rs.4,000/- was approved by taking unilateral decision which is not correct, hence came up with this complaint.
The Opposite Party interalia contended that, the Complainant failed to submit the damage certificate obtained from the transporter to the Surveyor to assess the actual loss. The damage certificate obtained from the driver of the lorry is not in accordance with the terms and conditions stipulated in the policy and the value claimed by the Complainant was not estimated value and not supported by any bills/receipts, hence the Opposite Party contended that, the loss assessed by the Surveyor was Rs.11,000/- and after deducting the excess of the policy, the claim offered for settlement of Rs.6,000/-.
On perusal of the oral as well as documentary evidence available on record, we find that, the Ex C1 produced by the Complainant shows that, the Complainant had obtained Specific Voyage Policy for a sum of Rs.1,00,000/- from the Opposite Party. On the date of incident the policy was in force. The Ex C2 is the copy of the damage certificate/letter issued by the driver of the lorry. The Ex C4 is the copy of the consignment note dated 27.02.2009 for having transported the household goods through M/s.Caravan Roadways Limited from Bhiwandi Mumbai to Mangalore. The Ex C5 is the list of the articles delivered for transportation and Ex C6 is the photographs of the damaged items. The Ex C7 is the legal notice issued by the counsel appearing for the Complainant. The Ex C9 is the approval letter for Rs.4,000/- issued by the Opposite Party and Ex C10 is the Power of Attorney executed by the Complainant in favour of Cynthia Fernandes to proceed with the case.
The above documents produced by the Complainant shows that, the Complainant in order to transport his household items booked the service of the transporter i.e., M/s.Caravan Roadways Limited, New Mumbai but no damage certificate has been issued by the transporter in order to determine the damage caused to the items in this case. The Ex C2 is the copy of the damage certificate issued by the driver of the lorry to the transporter i.e., M/s. Caravan Packers and Movers, wherein, the driver of the said vehicle stated that, boxes were open, 1 box no number tied with ropes, LCD monitor, 2 fans and computer motherboard missing, sofa set completely open and scratched without packing, loss of Rs.20,000/- was assessed and damage certificate issued by the driver of the vehicle to the transporter.
However, in the instant case, the Opposite Party deputed a Surveyor to assess the damage caused to the household items said to have been damaged condition. The Ex R3 is the Marine Cargo Survey Report dated 10.06.2009 available on record discloses that one Mr.Rajaram Rao, Surveyor and Loss Assessor visited to the insured’s residential premises at Mangalore to hold a survey. In his survey report he had observed that, 1) Microline 390 Laser Jet Printer broken found not functioning, (2) Micro Oven damaged, (3) Assembled computer damaged, (4) Suit case corners deeply pressed, (5) Inkjet Printer not working and (6) Mob damaged. He has further observed that, the cause of damage was not explained by the transporters. And items found broken/dented and pressed in damages to internal components of all electronic items caused by spill of water. We further observed that, the Surveyor asked to submit the copy of the notice sent to the transporters and the reply of the transporter or damage certificate and copy of the purchase bills to authenticate the original cost of the damaged items and estimate of repairs/claim bills. The Surveyor report shows that, the Complainant not produced the above documents sought by him. However, based on the inspection carried out by the Surveyor, we find that, the surveyor, he had assessed the damages/loss at Rs.11,000/- by considering the market value of the goods. The Complainant ought to have produced the documents sought by the Surveyor in order to submit their case/claim. In the absence of the same, we hold that, the Surveyor report available on the file is the best piece of evidence to consider the claim of the Complainant. The Opposite Party in the instant case, relied the survey report but offered to pay Rs.4,000/- and the amount offered by the Opposite Party Company is not justifiable which amounts to deficiency in service.
In view of the aforesaid reasons, we direct the Opposite Party i.e., M/s.National Insurance Company Limited represented by its Divisional Manager to pay Rs.11,000/- as damages to the Complainant and also pay Rs.10,000/- as compensation for the harassment and inconvenience caused and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., M/s.National Insurance Company Limited represented by its Divisional Manager is hereby directed to pay Rs.11,000/- (Rupees eleven thousand only) to the Complainant as damages and also pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is directed to pay interest at the rate of 9% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of September 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Cynthia Fernandes – General Power of Attorney of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Copy of the Insurance policy issued by the Opposite Party.
Ex C2 – : Copy of the damage certificate/letter.
Ex C3 – 27.02.2009: Copy of the consignment note.
Ex C4 – : Copy of the articles delivered for transportation.
Ex C5 – : Copy of the letter issued to the Opposite Party.
Ex C6 - : Computer generated photographs of the damaged goods (5 in numbers).
Ex C7 – 21.09.2009: Copy of the Lawyer’s notice.
Ex C8 - : Postal acknowledgement.
Ex C9 – 12.10.2009: Letter of the Opposite Party along with enclosures.
Ex C10 – 06.02.2010: Notarized copy of the Power of Attorney.
Witnesses examined on behalf of the Opposite Party:
RW1 – Mr.Manjunath, Divisional Manager of the Opposite Party.
RW2 – Mr.Rajaram Rao – Insurance Surveyor and Loss Assessor – witness of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – : Copy of the Specific Voyage Policy bearing No.360304/21/08/4500000936.
Ex R2 - : Copy of the policy conditions.
Ex R3 – 10.06.2009: Copy of the Survey report issued by Sri.M.Rajaram Rao.
Dated:30.09.2010 PRESIDENT
