Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The Complainant has filed this Complaint under section 12 of the Consumer Protection Act, 1986 with her grievances that she had booked her household articles at Mumbai for transporting them to Mysore through 1st & 2nd Opposite parties who had packed the household articles in her house, which were inclusive of a new LG colour T.V., a wall stand and other articles. On 16.05.2005 1st & 2nd Opposite parties took the consignment for transporting them to Mysore. The said Opposite parties had also promised to deliver the goods within 7 days, but they failed do so despite she approaching the Opposite parties. Finally they informed her that her goods are sent through the 3rd Opposite party. That she received the consignment on 11.06.2005 through a vehicle belongings to 1st & 2nd Opposite parties while delivering the consignment she found the articles were damaged and box containing T.V was opened before them and found that in place new LG colour TV, old broken unusable TV parts were packed. The surveyor of the 5th Opposite party went and examine the consignment. That she had insured the articles with 4th & 5th Opposite parties wherein a claim was made for reimbursement of the loss, but they rejected the claim as not admissible. There was delay of 27 days in delivering the consignment and contended that she suffered loss of Rs.15,276/- being a cost of New TV, Rs.899/- as the cost of wall stand, Rs.4,700 towards repair of motor cycle and Rs.6,500/- towards damages of other house hold articles and incurred Rs.13,500/- towards conveyance and telephone charges and receipt issued by the surveyor for Rs.1,056/- as a cost incurred by her.<br /> 2. 1st and 2 Opposite party to whom notices were served by paper publication, have remained absent are placed exparte. 3rd Opposite party filed version denying it’s knowledge about the entrustment of house hold articles to 1st and 2nd Opposite parties and other allegations and further contended that he has no knowledge about the condition of the articles when the complainant entrusted them to 1st and 2 Opposite parties for delivery and stated that he delivered the consignment of the complainant to her has sent by 1st and 2nd Opposite parties and received by him as they were and he has not caused any deficiency in service. <br /> 3. 4th and 5th Opposite parties have filed their versions denying their liability by contending that though the consignment was insured with them, the policy issued by them only cover certain losses arising out of fire, lighting, collusion, over turning of the vehicle etc., and in the instant case damage to the house hold articles are not caused by any such events and have submitted that they are not liable to compensate the complainant and to dismiss the complaint against them. <br /> 4. The complainant has filed her affidavit evidence reiterating the allegations made in the complaint. 4th and 5th Opposite parties have also filed their affidavit evidence reasserting the stands they have taken for their versions. <br /> 5. Heard the counsel for both the parties and perused the records.<br /> 6. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that she had entrusted the house hold articles to 1st and 2nd Opposite party at Mumbai for transporting them to Mysore?<br /> 2. Whether she further proves that 1st and 2nd Opposite party while transporting them have caused damage to some of the articles and delivered them through 3rd Opposite party and therefore d Opposite parties No.1 to3 have caused deficiency in their service?<br /> 3. Whether the complainant is entitled for relief as prayed for?<br /> 4. What order or relief?<br /> 7. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : Answered in part against 1st & 2nd Opposite party only.<br /> Point no.3 & 4 : See the final order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The contention of the complainant that she had entrusted her household articles to 1st and 2nd Opposite parties at Mumbai for transporting them to Mysore do not detain as for long for determining though 1st and 2 Opposite parties have not appeared and filed their versions. Because of the admission of 3rd Opposite party made in it’s version to had received the household articles of the complainant from 1st and 2nd Opposite parties and delivered them to the complainant as they were. Therefore, the fact that the complainant had entrusted her house hold articles including a T.V., wall stand, motor cycle and delivered through 3rd Opposite party is disputed. The complainant has also produced a copy of the complaint she had given to Mysore police in connection with damage caused to her household articles. The complainant has also sworn to the affidavit in this regard and that has not been controverted by any of the Opposite parties. Therefore, we answer this point in the affirmative.<br /> 9. Points No.2 to 4:- The complainant herself in her complaint has categorically stated that the 1st Opposite party sent it’s men for packing her household articles to her house, thereafter they packed them prepared the list of articles packed by them and handed over a copy of it to her. She has also further stated in her complaint at para 5 that she repeatedly contacted 1st and 2nd Opposite parties as the consignment was not delivered to her within 7 days as promised by 1st and 2nd Opposite parties, she was informed by 1st and 2nd Opposite parties that they are sending the consignment through 3rd Opposite party. Thus, it is clear that this 3rd Opposite party had no knowledge of the contract between the complainant and 1st and 2nd Opposite parties, number of articles to be transported, their conditions, value etc., Therefore, it is manifest from these averments of the complaint that there was no privity of contract between the complainant and 3rd Opposite party for transportation of the household articles and it emerges that the 3rd Opposite party as an agent of 1st and 2nd Opposite parties took delivery of the consignment as sent by 1st and 2nd Opposite parties and delivered them to the complainant at Mysore in the condition that her had received. The 3rd Opposite party in his version has also stated that he has no knowledge of the conditions of the articles that the complainant entrusted them to 1st and 2nd Opposite parties and they delivered them to the complainant in the condition in which they had received. On perusal of the affidavit evidence of the complainant, the contents also go in consonance with that of the complainant allegations and thereby nothing is said by the complainant to attribute any deficiency against 3rd Opposite party, so far as the damages caused to the household articles. The fact that some of the household articles when delivered to the complainant were damaged is apparent from the version of 3rd Opposite party and also the photographs, the complainant has produced before this Forum. The consignee copy and list of articles entrusted to 1st and 2nd Opposite parties for transportation and number of articles listed which is inclusive of TV, TV stand, Motor cycle etc., proves the entrustment. The allegation of the complainant that she had given a New LG colour TV to 1st and 2nd Opposite parties for transportation and she was given a box at Mysore wherein she saw in place of her Colour TV, a damaged old TV parts has not been denied by any of the Opposite parties. The complainant has also produced a Xerox copy of the receipt for having purchased a New TV on 06.08.2004 in proof of her claim. She has also produced a copy of the bill under which she had purchased a TV stand and also bill for having got the motor cycle repaired by incurring a sum of Rs.4,700/-. These documents are also not controverted by any of the Opposite parties. Therefore, we on considering the entire materials on record constrained hold that the complainant had entrusted her household articles to 1st and 2nd Opposite parties for transportation from Mumbai to Mysore and in transit her TV was replaced with broken old TV parts, wall stand was damaged and motor cycle required repair because of damages caused to it.<br /> 10. The complainant has contended that 3rd Opposite party is also liable to compensate the loss she had incurred. The counsel appearing for her also argued that the 3rd Opposite party is also jointly liable for the loss along with the 1st and 2nd Opposite parties. But, as stated by us above, the complainant has not proved that there was any privity of contract between herself and 3rd Opposite party and the contention of 3rd Opposite party raised in his version that it has no knowledge of the items of household articles booked, their condition and he has delivered the goods entrusted to them by 1st and 2nd Opposite parties to the complainant has not been controverted. It is also manifest from the complaint itself that she was informed by 1st and 2nd Opposite parties that they are delivering the consignment to her through 3rd Opposite party and it is only at that stage, the complainant came to know 3rd Opposite party as such we find no materials on record to prove that damage to the household articles of the complainant was caused by 3rd Opposite party while he was transporting the goods for and on behalf of 1st and 2nd Opposite parties. Therefore, 3rd Opposite party against whom we find no materials on record to prove his deficiency we cannot accede to the contention of the complainant that the 3rd Opposite party is also jointly and severally liable to compensate the loss along with 1st and 2nd Opposite parties. Therefore, the complaint against 3rd Opposite parties is liable to be dismissed.<br /> 11. The complainant has further sworn to the affidavit that 1st and 2nd Opposite parties have caused 27 days delay in delivering the consignment and that has also not been denied by 1st and 2nd Opposite parties, as they have remained absent in the proceeding. The complainant besides claiming the cost of TV, wall stand, and repair charges of motor cycle has claimed Rs.6,500/- towards repair of other damaged household articles. But, the complainant has not satisfactorily proved as to what are the other articles damaged and the charges incurred for their repair. However, the photographs produced in this proceeding apparently prove damages caused to furniture, and refrigerator. Therefore taking into consideration of those damages we would find it just to award a lumpsum amount of Rs.3,000/- only. The complainant has also claimed Rs.1,056/- as the charges paid to the surveyor, and produced the bill. She has also claimed conveyance and telephone charges of Rs.13,500/- which is not supported by any documents. However, the fact that the complainant had to contact 1st and 2nd Opposite parties, and 4th and 5th Opposite parties after she found delay in delivering the goods and damages caused to the articles cannot be denied. Therefore, the complainant in our view is entitled for a sum of Rs.2,000/- towards Misc. charges, besides the cost of TV, wall stand and motor cycle charges.<br /> 12. 4th and 5th Opposite parties as we have already stated above represents the Insurance Company with whom the consignment was insured as rightly contended by them the loss is not caused due to any contingencies found in the insurance policy and as pointed out by us above they have rightly repudiated the claim as such 4th and 5th Opposite parties are not liable to compensate the complainant, as such the complaint is liable to dismissed against them.<br /> 13. The contention of the complainant that there was 27 days delay in delivering the goods to her and the 1st and 2nd Opposite parties had promised her to deliver them within 7 days has not been challenged. Necessarily, the delay has caused anxiety and mental agony to them and the whole act and omission of 1st and 2nd Opposite parties in our view amounts to deficiency in service and therefore the complaint deserves to be allowed against 1st and 2nd Opposite party only. Therefore, we answer point 1 to 4 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed against 1st and 2nd Opposite parties only and they are directed to pay a sum of Rs.15,276/- being the cost of TV which was not delivered to the complainant. <br /> 2. The 1st and 2nd Opposite parties shall also pay a sum of Rs.899/- being cost of wall stand, Rs.4,700/- towards repair of motor cycle, lumpsum amount of Rs.3,000/- towards damages to other articles, Rs.1,056/- being payment made to surveyor, and Rs.2,000/- towards conveyance and telephone charges. <br /> 3. The 1st and 2nd Opposite parties are also directed to pay the compensation of Rs.3,000/- towards mental agony suffered by the complainant. <br /> 4. The 1st and 2nd Opposite parties shall also pay cost of Rs.1,000/- being a cost of this complaint.<br /> 5. The 1st and 2nd Opposite parties are directed to pay the aforesaid amounts to the complaint within 3 months from the date of receipt of this order, failing which they are liable to pay interest at 15% p.a. on all the above amounts except the cost of this complaint from the date of this order till the date of payment.<br /> 6. Give a copy of this order to each party according to Rules.<br />