Tamil Nadu

South Chennai

CC/340/2014

Sunit Kumar Agarwal - Complainant(s)

Versus

M/s.Kalwania Roadways - Opp.Party(s)

Party in person

23 Sep 2016

ORDER

   Date of Filing :   24.07.2014

                                                                      Date of Order :   23.09.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                

C.C.NO.340/2014

FRIDAY THIS 23^RD DAY OF SEPTEMBER 2016

 

Sunit Kumar Agarwal,

Door No.1, Bagvantham Street,

Thanikachalam Road,

Pondy Bazar,

T.Nagar,

Chennai 600 017.                                      ..Complainant

 

                                         ..Vs..

 

1.  The Agent / Manager,

M/s. Kalwania Roadways,

405, Vardhman Chambers,

4^th Floor,

Kalyan Street,

Mumbai 400 009.

 

2. The Agent / Manager,

Future General India Insurance

Company Ltd.,

12^th and 15^th Floor,

Tower-1 Indiabulls Finance Centre,

Senapati Bapat Marg,

Elphinstone Road,

Mumbai 400 013.                                      ..Opposite parties.    

 

 

For the Complainant         :   Party in person.          

For the opposite party-1   :   Exparte.

For the opposite party-2   :   M/s.M.B.Gopalan & others.     

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties to pay a sum of Rs.37,000/- with interest and also to pay a sum of Rs.50,000/- as compensation and to pay cost of the complaint.   

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that  he has transported his house hold  goods from New Delhi to Chennai by engaging the 1^st opposite party vehicle on payment of a sum of Rs.67,200/- on 29.09.2013.   The said transport of the household goods was insured for the value of Rs.1,50,000/- with the 2^nd opposite party the insurance company.    For the packing of the said goods the complainant has engaged one M/s.  Southways Packers and Movers  by paying a sum of Rs.560/-.  When the said goods were delivered at Chennai it was found out that some of the house hold goods were damaged and were assessed to the value of Rs.32,000/-  For the said amount the complainant has made claim with the 2^nd opposite party insurance company as per the insurance policy.   But the same was repudiated by 2^nd opposite party insurance company saying that the nature of policy of insurance is not covered under the policy and the insurance company is not liable to reimburse the same to the complainant.  The complainant further submit that the said household goods which were transported in the 1^st opposite party vehicle which was insured for the value of Rs.1,50,000/- with 2^nd opposite party was found damaged to the extent of Rs.32,000/-, for the said value of the  damage of house hold goods transported is to be the responsibility of the opposite parties, but the claim made by the complainant with the 2^nd opposite party insurance company  was rejected.   As such the act, of the opposite parties amount to deficiency of service which caused mental agony and hard ship to the complainant.  As such the complainant has sought for to reimbursement of the said amount  of Rs.37,000/- with interest and also to pay a sum of Rs.50,000/- as compensation and to pay cost of the complaint.  Hence the complaint.

2.     Even after receipt of the notice from this forum in this proceeding, the 1^st opposite party did not appear before this Forum and did not file any written version.  Hence the 1^st opposite party was set exparte on 13.11.2014.  

 

Written Version of 2^nd opposite party is  in briefly as follows:

3.     The 2^nd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The 2^nd opposite party states that as per Inland Transit Rail / Road-B clause, the consignment is covered only in the event of any loss/ damage due to specified perils, relevant portion of which is extracted as under:

Risks Covered

1. This insurance covers, except as provided in Clauses 2,3 and 4 below, the risks of physical loss or damage to the insured goods caused by

1. (i)     fire
   2. lighting
   3. breakage of bridges

(b)    (i)     collision with or by the carrying vehicle

        (ii)    overturning of the carrying vehicle

3. derailment or accidents of like nature to the carrying railway wagon / vehicle.

Further the 2^nd opposite party states that  the said policy covers loss / damage due to the afore said perils even which are subject to exclusion of specified in clause 2,3and 4, but  there is no damage due to above said risk cover, there cannot be any valid claim under the policy.    The complainant intimated damage to some items of the household goods discovered after delivery.  However there was neither any allegation nor any evidence that the damage was caused by any of the risks covered by the policy.  Even in the present complaint there is not even pleading that the damage was caused by insured perils.  As such there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

4.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A8 were marked on the side of the complainant.   Proof affidavit of 2^nd opposite party filed and Ex.B1 was marked on  the side of the  2^nd opposite party.  

5.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties have committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

6.    POINTS 1 and 2 :

Perused the complaint filed by the complainant, written version filed by the 2^nd opposite party and the proof affidavit filed by complainant  and 2^nd opposite party, the documents Ex.A1 to Ex.A8 filed on the side of the complainant, Ex.B1 filed on the side of 2^nd opposite party and considered the arguments of the learned  counsel appearing for the complainant and the 2^nd opposite party.

7.     There is no dispute that the complainant has transported his house hold articles / goods from New Delhi to Chennai by engaging the 1^st opposite party vehicle on payment of a sum of Rs.67,200/- on 29.09.2013 as per the receipt Ex.A1.  The said transport of the household goods was insured for the value of Rs.1,50,000/- with the 2^nd opposite party the insurance company as per the document Ex.A2 and Ex.A3.  For the packing of the said goods the complainant has engaged one M/s. Southways Packers and Movers  by paying a sum of Rs.560/- as per Ex.A4.  When the said goods were delivered at Chennai it was found out that some of the house hold goods were damaged and were assessed to the value of Rs.32,000/-.   For the said amount the complainant has made claim with the 2^nd opposite party insurance company as per the insurance policy as per Ex.A6 copy of the claim form.  But the same was repudiated by 2^nd opposite party insurance company saying that the nature of policy of insurance is not covered under the policy and the insurance company is not liable to reimburse the same to the complainant.   The  said letter of the 2^nd opposite party is filed as   Ex.A8.

8.     The complainant’s grievance in this complainant is that the said household goods which were transported in the 1^st opposite party vehicle (Lorry) which was insured for the value of Rs.1,50,000/- with 2^nd opposite party was found damaged to the extent of Rs.32,000/-, for the said value of the  damage of house hold goods transported is to be the responsibility of the opposite parties jointly and severally.   Since the claim made by the complainant with the 2^nd opposite party insurance company as per policy was repudiated, without any valid ground, the opposite parties have committed deficiency of service which caused mental agony and hard ship to the complainant as such the complainant has filed this complaint against the opposite parties claiming  reimbursement of the said amount and the expenses incurred  for packing and  transport a sum of Rs.37,000/-  with compensation of Rs.50,000/-.

9.     Whereas in this proceedings the 1^st opposite party which has transported the complaint mentioned goods through his vehicle has remained exparte.

10.    The 2^nd opposite party  / the insurance company has resisted the complaint by contending that though the said complaint mentioned house hold goods were insured for the value of Rs.1,50,000/- with the 2^nd opposite party, the coverage under the policy is subject to the standard clause thereon in the policy, more particularly Inland Transit  Rail / Road “B” clause  which is clearly stipulated in the policy schedule.  As per the policy the risk covered in the event of any loss / damage due to specified perils, relevant portion of which mentioned hereunder  on relying upon on the policy Ex.A2 and the Future General India Insurance Company Limited  - Marine Cargo Policy Wordings filed as Ex.B1.

11.    Inland Transit (Rail or Road) – Clause B (Basic Cover)

Risks Covered

1. This insurance covers, except as provided in Clauses 2,3 and 4 below, the risks of physical loss or damage to the insured goods caused by

2. (i)     fire
   2. lighting
   3. breakage of bridges

(b)    (i)     collision with or by the carrying vehicle

        (ii)    overturning of the carrying vehicle

(iv)       derailment or accidents of like nature to the carrying railway wagon / vehicle.

Further the 2^nd opposite party had contended that  the said policy covers loss/damage due to the afore said perils even which are subject to exclusion of specified in clause 2,3 and 4, but  there is no damage due to above said risk cover, there cannot be any valid claim under the policy.  The complainant has intimated the damage of some items of house hold goods discovered after delivery however there was neither any allegation nor any evidence that the damage was caused by any of the risk covered by the policy, as such, the insurance company is not liable to compensate the claim made by the complainant.  Therefore there is no deficiency on the part of complainant in repudiating the claim and this complaint as against this 2^nd opposite party is liable to be dismissed.

12.    On perusal of the Ex.A2 policy and the above mentioned clauses of description made in Ex.B1 as contended by the 2^nd opposite party the complaint mentioned policy said to have been taken by the complainant is ‘B’  (basic policy) which covers only the risk of damage as described in the Ex.B1 mentioned above.  Even according to the complainant the damage of house hold goods which was transported was not caused on the above said events, but the damages are appear to have been caused only in the normal course of defect in packing and handling in loading and unloading in the vehicle and in the usual course of transport.  Therefore as contended by the 2^nd opposite party the said insurance policy relied upon by the complainant Ex.A2 is not covered for the said damage and not make liable the insurance company to reimburse is acceptable.  Therefore the repudiation of the claim made by the complainant to the insurance company / 2^nd opposite party is valid and cannot be said improper and  deficiency of service attributed in respect of the same against the 2^nd opposite party by the complainant is not acceptable. 

13.    However with regard to any defect in packing there is no proof  before this forum but the house hold goods which were loaded in New Delhi and delivered at the residence of complainant at Chennai was found out that some of the house hold goods were damaged to the value of Rs.32,000/- as mentioned in Ex.A6 copy of the claim form.    Therefore the damage of the said house hold goods to the tune of Rs.32,000/- would have caused in the course of transportation made in the vehicle belongs to the 1^st opposite party.   Therefore we are of the considered view that the 1^st opposite party is alone responsible for the said damage to compensate to the complainant.   It is also pertinent to mention that there is no contra evidence on the side of 1^st opposite party it remains exparte.  Therefore we are of the considered view that the 1^st opposite party is liable to pay a sum of Rs.32,000/- which is the actual value of the damage of some of the household goods transported to the complainant with interest at the rate of 9% p.a. from the date of claim i.e 16.10.2013  to till the date of payment.  Considering the facts and circumstances of the case, since, the interest for the reimbursement amount is ordered, we are not inclined to grant compensation claimed by the complainant.  However the complainant is also entitled for a sum of Rs.5000/- as litigation expenses against the 1^st opposite party. This complaint against the 2^nd opposite party is liable to be dismissed. Accordingly the points  1 and 2 are answered. 

        In the result, this complaint is partly allowed.  The 1^st opposite party is directed to pay a sum of Rs.32,000/- (Rupees thirty two thousand only) with interest at the rate of 9% per annum from 16.10.2013 to till the date of payment as reimbursement for the damage of goods and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) as cost to the complainant within six weeks from the date of this order.  This complaint as against the 2^nd opposite party is dismissed.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  23^rd   day  of  September   2016.

 

MEMBER-I                                                                                                     PRESIDENT.

Complainant’s Side documents :

Ex.A1- 26.9.2013      - Copy of receipt for Rs.67,200/- of opposite party-1.

Ex.A2-           -        -       - Copy of Insurance receipt from opposite party-2.

Ex.A3- 24.9.2013      - Copy of Insurance slip of opposite party-2 for sum

                               Insured Rs.1,50,000/-

Ex.A4- 8.10.2013      - Copy of Statement of delivery receipt.

Ex.A5-                    -        - Copy of Cash Receipt of Rs.5,000/-. 

Ex.A6- 16.10.2013     - Copy of legal notice

Ex.A7-                    -        - Copy of Postal receipt.

Ex.A8- 14.12.2013     - Copy of reply letter from opposite party to complainant.

 

Opposite parties’ side documents: - 

 

Ex.B1            -        - Copy of Inland Transit Rail/Road Clause B Policy.

 

 

MEMBER-I                                                                                                  PRESIDENT.