BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 23^RD DAY OF MAY 2024

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Directing the OPs to return and refund the amount of Rs.1,38,000/- collected from the complainant and further be pleased to direct the OP to pay a sum of Rs.4,00,000/- towards damages to the complainant along with interest at the rate of 18% from the date of receipt to till the date of payment.
2. Grant costs of the complaint
3. Grant such other reliefs which deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant had booked for relocation of his home appliances and utilities and other house hold articles from Hyderabad to Bangalore. He has received details of OP1 on 12.04.2022.  The relocation date was fixed on 29.04.2022 through OP1 in which the OP1 had agreed for the same to shift the home appliances and utilities from Hyderabad to Bangalore. The OP1 also provided insurance of Rs.50,000/- through IFFCO-TOKYO to the complainant to safe guard the shipment.  The OP1 has initially mentioned that the consignment would be handed over to third party for relocation. As per the packing list dated 29.04.2022 there were 97 items which were packed and ready for shipment.  

3. The OP1 has assigned the shipment of all the items to OP2 on 29.04.2022.  OP1 promised that all home appliances and utilities and other house hold articles will be shifted through a truck, but on 29.04.2022 the OP2 has sent one mini tempo bearing No.RJ10.GB.4945 to shift the packed items and also when the items were at large the OP2 arranged another mini tempo bearing No.TS-08 UD 0935.  Hence the OP1 has defaulted in providing good service as promised. The complainant has instructed the OP1 through his relationship manager Mr.Arindam. But even after the request the OP1 failed to provide the details relating to loading and unloading works captured by way of photos and videos.  The complainant again contacted the key person of the OP2 over phone and he has also failed to provide the videos and photos of loading and unloading items and promised the complainant to provide the same at later stage.
4. The OP2 has delivered the packed items to the complainant address on 01.05.2022.  When the OP2 started to shift the items through OP2 man power, the complainant came to know that there were more than 07 items were missed in the packed items. When the complainant started to unpack all the other items came to know that there were more than 10 items were missing and some of the items were also damaged. Immediately the complainant brought to the knowledge of the OP2 and OP1 and both have promised they will verify and inform within two days.  Even after two weeks of tracking the information received from both the OPs that the missing items were non traceable and they were misplaced and unable to find.  As per the list the missing items amounting to Rs.49,948/- on 10.05.2022 the insurance company has confirm that they will approve only Rs.12,000/- and credited Rs.12,000/- to the complainant’s HDFC bank account.  The complainant has also contacted OP1 and sought for payment of additional amount of Rs.1,38,000/-.  Even though the OPs have promised orally that they will repay the entire amount of Rs.1,38,000/- within 15 days have failed to perform their duties. Hence the complainant has got issued legal notice on 09.06.2022 to OP1 and 2. The OP1 did not reply.  The OP1 agreed to pay additional amount of Rs.23,000/- as fair amount of compensation.  
5. It is further grievance of the complainant that due to the deficiency and victimization attitude of the OPs the complainant has incurred loss and humiliation by the OPs staff members. Hence the complainant without having any other alternative has filed this complaint.
6. In response to the notice, OP1 appeared before this commission and files version. Though notice was sent to the OP2, they have neither appeared nor filed any version. Hence OP2 placed exparte.
7. The OP1 has admitted about the approach of the complainant for moving his goods from Hyderabad to Bangalore. This OP1 is a service provider.  The OP2 have experienced in logistic market and they were engaged by the OP1 to provide the services to the complainant.  The OP1 further recommended the complainant to avail an insurance to cover for any loss that may occur at the time of transport of goods. Accordingly the complainant had opted for Iffco-Tokio General Insurance Company and obtained policy and had declared the value of goods being transported as Rs.50,000/-.   The insurance policy allowed for an excess of 1% of the total sum insured subject to a maximum of Rs.2,500/-.  The insurance policy also provided an exhaustive instruction on method to be computed for computing the claims in the event of losses suffered by the complainant.
8. It is further case of the OP1 that on 29.04.2022 this OP1 has arranged OP2 for vehicles to move the complainant’s goods from the place of pickup i.e., Hyderabad to OP1 warehouse in Hyderabad. The complainant sought to transfer a total of 97 items.  The goods were moved to a single truck and was transported to Bangalore.  At the time of delivery the complainant noted that 10 items were missing and raised complaint seeking compensation for the loss.  Despite the best efforts of OP1 the goods were not traced.  To ensure quick payments of the insurance amount the OP1 requested the insurance company to process the claim at the earliest. Even though the complainant has raised the claim for Rs.40,000/- the insurance company has provided only Rs.12,000/-.
9. The complainant aggrieved by the service and quantification of the insurance provided for loss had issued legal notice to the OPs seeking payment of Rs.1,38,000/- along with cost of legal notice Rs.5,000/- this OP1 has replied to the notice denying the unlawful claim and also agreed to pay an additional sum of Rs.23,000/-.  Aggrieved by the said response the complainant has approached this commission for deficiency of service and insufficient compensation for damages under its insurance claim.
10. It is the serious objection raised by the OP is that the entire transaction was insured but the insurance company has not been made as a party and they are necessary and proper party to determine if sufficient compensation has been paid.  Hence the complaint is not maintainable on this ground. The complainant is making unlawful claim of Rs.1,38,000/- for loss of 10 items out of 97 items.  The claim made by the OP is an exorbitant and he is seeking to make a profit from an insurance contract. This OP1 has not defaulted in providing services as promised.  The allegations made by the complainant against this OP1 are all false.   The complainant has confirmed while giving representation to the insurance company that the value of the items lost is amounting to Rs.49,948/- and the insurance company has settled only Rs.12,000/-.   There is no pleadings necessary to establish the negligence alleged by the complainant and the pleadings are vague and lack the necessary material to establish the deficiency of service on the part of this OP. Hence OP1 prayed for dismissal of the complaint.
11. The complainant has filed his affidavit evidence and relies on 14 documents.  OP has filed its Affidavit evidence. No documents.
12. Counsel for OP filed written arguments. Though sufficient time was given to the complainant to address their arguments, they have not submitted. Hence arguments of the complainant is taken as heard.  Perused the written arguments of OP.
13. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

14. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

15. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, affidavit evidence of both the parties, written arguments and documents.
16. It is clear from the evidence and documents that the complainant booked for relocation of his home appliances and utilities and other house hold articles from Hyderabad to Bangalore. The complainant has engaged the OP1. The OP1 has furnished the details of OP2 on 23.04.2022 and relocation date was fixed on 29.04.2022.  The OP1 has agreed to shift the home appliances and utilities from Hyderabad to Bangalore and also provided insurance of Rs.50,000/- though IFFCO TOKIO insurance company to safeguard the shipment from damages.
17. The main grievances of the complainant is that as per the packing list dated 29.04.2022 there were 97 items which was packed and ready for shipment.  The OP1 has assigned the shipment of all the items to OP2 and the OP1 promised to the complainant that all the appliances and utilities and other house hold articles will be shifted through a truck.  But OP2 has sent one mini tempo bearing NO.RJ 10 GB 4945 to shift the packed items and the items were big in number. The OP2 arranged another mini tempo bearing No.TS.08.UD 0935 and the OP1 defaulted in providing good services.  The complainant has informed the relationship manager of OP1 to capture the photographs and videos of loading and unloading works but even after request the OP1 failed to provide the details.  
18. It is further grievance of the complainant that the OP2 has directly delivered the packed items to complainant address on 01.05.2022.  at that time the complainant came to know that there were more than seven items were missing from the packed list and when he started to unpack all the items, he came to know that there were more than 10 items were missing and some of the items were also damaged. The complainant has brought it to the notice of the OP1 and 2 and they promised that they will verify and inform about the last items.  After that they have informed the complainant that the missing items were non traceable and they are misplaced and unable to find.  
19. The complainant has claimed insurance amounting to Rs.49,948/- but the insurance company has credited only Rs.12,000/-.  The request of the complainant for additional amount of Rs.1,38,000/- was not given by the insurance company. But the OP1 has informed the complainant that they will pay the entire amount of Rs.1,38,000/- within 15 days but the OPs failed to pay the amount even after issue of legal notice.
20. In support of his contention the complainant filed his affidavit evidence and relied on 14 documents. Ex.P1 is the Tax invoice of OP1, Ex.P2 is the Quotation for packing and shifting services, Ex.P3 is the Advance receipt voucher, Ex.P4 and 4A is the Tax invoice & consignment note, Ex.P5 is the Certificate of insurance, Ex.P6 is the Consignment by OP2 & packing list, Ex.P7 is the Truck photographs, Ex.P8 is the List of missing items, Ex.P9 is the Chat communication with OP1, Ex.P10 is the Photographs, Ex.P11 is the Email correspondence, Ex.P12 is the Legal notice, Ex.P13 is the Reply notice.
21. On the other hand, the contention taken by the OP is that the complainant has suppressed the material facts. The complainant has approached this OP1 for moving his goods from Hyderabad to Bangalore on 23.04.2022 this OP1 has placed request for his services. This OP1 has recommended for availing insurance to cover for any losses that may occur at the time of transport of his goods. The complainant has opted for Iffco-Tokio General Insurance and obtained the insurance policy and had declared the value of goods been transported amounting to Rs.50,000/-.
22. The OP1 has arranged the OP2 for vehicles to move the complainant’s goods from the place of pickup in Hyderabad to OP1 ware house in Hyderabad. The OP1 further admitted the complainant sought for transfer of total 97 items subsequently the goods were moved to a single truck and was transported to Bangalore.  The OP further admitted at the time of delivery the complainant noted that 10 items were missing and had filed the complaint seeking for compensation.  
23. It is further contention taken by the OP1 that inspite of their best efforts the goods were not traced.  This OP1 conducted internal enquiry to search for missing goods. The complainant raised the claim of Rs.40,000/- and insurance company has provided Rs.12,000/-.  The complainant has only disclosed the goods valued at Rs.50,000/- at the time of the requesting the services of this OP1 but at the time of claiming insurance the complainant has claimed the actual value of goods as Rs.1,66,048/-.
24. It is further grievance of the OP1 that he has provided all the services and fulfilled all the promises and in further in good faith offered a fair compensation amount of Rs.23,000/- considering the facts and circumstances.  The complainant in order to extort extra money has filed this complaint by claiming unlawful claim of Rs.1,38,000/- for the loss of 10 items out of 97 items. It is settled law that the insurance is provided to minimize the loss and indemnify the sub clause and not to make a profit. In this complaint the complainant is seeking an exorbitant claim to make a profit from insurance company. In addition to this the complainant has not made the insurance company as a party in this complaint.
25. In support of their contention one of the authorized person has filed his affidavit evidence but not filed any documents.
26.  On this back ground we have gone through the list of missing items mentioned in Ex.P8 and P9.  The OP has also clearly admitted about the loss of 10 items claimed by the complainant. The only dispute is that the complainant has claiming an amount of Rs.1,38,000/-. On the other hand, the contention taken by the OP1 is that at the time of transport of the goods the complainant has informed him that the goods are worth Rs.50,000/- and the complainant has declared the value of the goods as Rs.50,000/-. Now he is claiming Rs.1,30,000/- illegally and he is not liable to pay the amount. He has agreed to pay only Rs.23,000/-.  During transit the complainant has last totally 10 items which includes office chair, mattress, babies stool and chair and tub along with the high chair and transport box and juice maker box and another two box.  The complainant has already received Rs.12,000/- and the complainant has declared the value of the goods at Rs.50,000/- at the time of taking the insurance.
27. Taking into consideration all these things it is clear that the OP1 has committed deficiency of service and also negligently transport the household articles of the complainant and he has got damaged some of the articles and last 10 items of the articles. When the OP1 and 2 have agreed to transport the goods safely with good condition and after taking sufficient amount for transportation it is their duty to transport the goods by taking due care. The very loss of 10 items and also the damages caused to the other articles clearly discloses that they have negligently and without taking any care have rashly carried the transport work and thereby committed loss and damages of the goods of the complainant. Under these circumstances, the complainant has to go for purchasing the new items which were last in the transact and also the complainant has suffered mental agony and financial loss. Hence the complainant has clearly established the deficiency of service and negligence on the part of OP1 and 2. The complainant is entitled for the relief. The OPs are liable to pay the refund amount of Rs.40,000/- with interest @ 10% p.a., from the date of actual payment till realization and compensation of Rs.20,000/- with litigation expenses of Rs.10,000/- to the complainant.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
28. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP1 and OP2 are hereby directed to refund amount of Rs.40,000/- with interest @ 10% p.a., from the date of actual payment till realization to the complainant.
3. OP1 and 2 are further directed to pay compensation of Rs.20,000/- with litigation expenses of Rs.10,000/- to the complainant.
4. The OP1 and 2 shall comply this order within 60 days from this date, failing which the OPs shall pay interest at 12% p.a. after expiry of 60 days on Rs.40,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 23^RD day of MAY 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL