STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(FIRST APPEAL NO. 113 OF 2011)

Mukesh Ajmani s/o Shri Krishan Lal Ajmani, resident of M-302, Phase 14, New Golden Nest, Near Jain Bunglow, Bhayender East, District Thane.

……Appellant

V e r s u s

[1]  Shree Ji Packers and Movers, Shop No. 2, Plot No. 2212, Pipli Wala Town, Manimajra, Opp. Samsung Showroom (Rana Electronics), Chandigarh (U.T), through its Partners.

[2]  Sh. Ajay Maheshwari, Manager Shree Ji Packers and Movers, Shop No. 2, Plot No. 2212, Pipli Wala Town, Manimajra, Chandigarh (U.T).

[3]  Ram Avtar S/O Mangtu Ram, Partner Shree Ji Packers and Movers, r/o V.P.O. Chaudhariwas, District Hisar.

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

          SH.JAGROOP SINGH MAHAL, MEMBER

Argued by: Sh. Amit Jaiswal, Adv. for the Appellant.

PER JAGROOP SINGH MAHAL, MEMBER        

         This appeal is directed against the order dated 18.04.2011, rendered by the learned District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter called as the District Forum), vide which it dismissed the complaint filed by the complainant/Appellant.

2.        The facts, in brief, are that with a view to shift his entire household goods, along with his TATA Indica Car (Regn. No. DL3 C AF2678) from Zirakpur to Thane, the Complainant hired the services of OP on 18.05.2008. On reaching Thane, to his utter shock, he was informed by OP No.2 on 21.5.2008, that his car had been damaged in an accident. However, later on, it transpired that it was being unauthorizedly driven on road by the OPs and was so badly damaged that it was a case of total loss. Thereafter, a claim was lodged with the Insurance Company, which was repudiated. Further, the household material reached Thane after much delay i.e. on 26.5.2008 and many articles were damaged and many expensive articles got scratches/ cuts etc. due to which those articles lost their value. Apart from that, many important CDs containing important files/ information, one tin of refined oil and one folding bed were also missing, regarding which Complainant informed OPs, who assured to look into the matter, but there was no response from their side. The OPs were contacted numerous times to settle the matter, but nothing positive could come out. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act) was filed.

3.        In the written statement the OPs pleaded that they provided best service and delivered the household goods within time. It was denied that the car was used in unauthorized way because the Complainant was well aware that the car would be taken by road to Gurgaon and container was to be procured from Gurgaon to Thane. Moreover, the household material was loaded in a truck and safely delivered at the residence of the Complainant at Thane. The accident was not intentional and not due to rash & negligent driving of OP No.2 and was covered under no fault liability. It was further pleaded that as per the Insurance the value of the car was Rs.2,15,000/- and the said amount has already been claimed by the Complainant vide complaint No. 5 of 2009, decided by learned District Forum-II on 11.2.2010. It was denied that there was loading and unloading or re-loading during journey and also it was denied that there were scratches/ cuts and damage done to the articles in the truck. It was denied that the OPs were deficient, in rendering service, or indulged in unfair trade practice.  The remaining averments were denied, being wrong.

4.        Parties led evidence in support of their case.

5.        After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide the impugned order, which has been challenged in the present appeal.

6.        We have heard the arguments of the learned counsel for the Appellant and have perused the record, as to whether the appeal should be admitted for regular hearing or not. We are of the opinion that there is no merit in this appeal, and it cannot be admitted, for regular hearing.

7.        It is pertinent to mention here that the State Commission under the Act has a statutory obligation to have a preliminary screening as to whether the appeal filed before it is maintainable. The only stipulation is that the appeal should not be rejected unless an opportunity of being heard is given to the appellant, which in the present case has been provided. The law on this point is very much settled and in the recent decision given by the Hon’ble Kerala High Court in the case of Fon-Ess India (P) Limited Versus Kerala State Consumer Disputes Redressal Commission, Original Petition No. 19405 of 2000, decided on 14th July, 2006 and reported as 2007 CTJ 8 (Kerala High Court) (CP), it has been specifically held that admission of a complaint before a District Forum or the state/ National Commission and Appeal before the State/ National Commission under the Act is not automatic. The Forum/ Commission has to consider the maintainability before admitting it and issue its notice to the Opposite Party/ Respondent.

8.        The learned counsel for the Appellant has argued that the learned District Forum has not granted any compensation for the misuse of the car by the OPs/Respondents. According to him, the car was to be transported by the Respondents from Zirakpur (Punjab) to Thane (Maharashtra), but contrary to the said undertaking, it was being driven on road by the OPs and it met with an accident. He, therefore, prayed for compensation for the misuse of the car by the OPs. The learned District Forum examined the question, and was of the opinion, that if the car was mishandled, or driven on the road contrary to any such undertaking, the Complainant has already obtained the full I.D.V. of the car i.e. Rs.2.15 lacs. In addition to that, the learned District Forum, in an earlier complaint, decided on 11.02.2010, granted him Rs.50,000/- as compensation for mental agony and harassment and Rs.5,000/- as costs of litigation. After receiving this amount of full compensation for the car, no further question with respect to misuse of the said car or driving it on the road, instead of taking it in the container, would be maintainable. We are of the opinion that the entire claim not only with respect to the value of car, but its misuse has been settled by payment of the amount of Rs.2.15 lacs plus Rs.50,000/- with costs of Rs.5,000/-, as mentioned above.   

9.        It is also argued by the learned counsel for the Appellant that the household goods were damaged by the OPs during transportation, for which also the Complainant needs to be compensated. With regard to the damage to the goods, as mentioned by the Complainant in Para No. 13 of the complaint, no tangible proof of the said damage was produced by him. When the Complainant received the delivery of the gods, he never complained if there were scratches or anything was short or damaged. No notice was given to the OP for about five months and that too after his claim was repudiated by the Insurance Company. However, for this damage and for all other harassment, the Complainant in Para No. 19 prayed for Rs.50,000/- as compensation. The learned District Forum found that there was no substantial damage proved by the Complainant and, therefore, he having already been granted sufficient compensation of Rs.50,000/-, cannot be allowed to be doubly compensated through two separate complaints for the same cause of action.  

10.       It is also argued by the learned counsel for the Complainant that the learned District Forum has wrongly mentioned that out of the transportation charges of Rs.30,000/-, the Complainant had paid only Rs.18,000/- and the remaining amount of Rs.12,000/- was still due from him. His contention is that in fact, this amount of Rs.12,000/- was for the transportation of the car and, therefore, the same could not be allowed, as the OPs never transported the car to Thane. In order to decide this question, we may refer to Annexure C-1, which is the consignment slip, showing that the total amount payable by the Complainant was Rs.30,000/- and he had already paid Rs.18,000/- on 18.5.2008. There is a consignment note regarding the old and used car, for which the charges were fixed at Rs.12,000/-. Admittedly, the Complainant paid Rs.18,000/- on 18.05.2008 vide Annexure C-1. With regard to his contention that he had paid Rs.2,000/- also he has not produced any receipt to suggest if he had actually paid any such amount of Rs.2,000/-, when the household goods were off loaded at Thane.  Since the goods were transported by the OPs to Thane, the Complainant cannot claim the refund of Rs.30,000/- from them. If that is allowed, it would mean that the OPs have transported the goods from Zirakpur to Thane, without charging any fee therefor, which cannot be accepted as correct. The request of the Complainant for refund of Rs.30,000/-, therefore, was rightly rejected by the learned District Forum. 

11.       The case of the Complainant was otherwise also liable to be thrown out, because he had concealed material facts. In his complaint, he mentioned that the car was insured, but did not mention as to what was the I.D.V. of the car, as per the insurance policy. In Para No. 11 of the complaint, he wrongly claimed that the market value of the car was Rs.2.50 lacs, though it was insured for Rs.2.15 lacs only. He, then, mentioned in Para No. 16 that he lodged a claim with the Insurance Company, but his claim was repudiated. The order dated 11.2.2010, vide which his insurance claim was allowed, however, shows that his claim was repudiated on the ground that he had suppressed material fact from the Insurance Company at the time of taking the insurance policy by not disclosing that he had obtained a claim from the previous Insurance Company. He, then, mentioned in Para No. 17 having moved the Insurance Ombudsman, who allowed his complaint to the extent of Rs.42,225/-. The present complaint was prepared on 09.01.2009, but he did not mention if he has already filed a complaint against the Insurance Company, for getting the compensation. The order dated 11.2.2010 shows that the said complaint had already been filed by him against  the Insurance Company on 06.01.2010. The learned counsel for the Appellant argued that there was no malafide intention in concealing this fact from the learned District Forum, but we do not agree to this argument. The malafide intention may be to get claim on the one side from the Insurance Company and on the other from the Respondents also. The Complainant may have thought that the OPs would not come to know of the complaint filed by him against the Insurance Company, but his belief did not come out to be correct. Neither the present OPs were made a party to the earlier complaint against the Insurance Company, nor the Insurance Company was made a party by the Complainant in this complaint.  The malafide intention on the part of the Complainant in claiming the amount from both the parties, therefore, demanded that the claim of the Complainant, in this complaint, should be out rightly rejected. However, the learned District Forum was considerate in considering the contentions of the OPs and decided the case on merits, though the result remained the same i.e. dismissal of the complaint.

12.       In view of the above discussion, we are of the opinion that the Appellant has already been compensated sufficiently and he is not entitled to any other relief. His complaint has rightly been dismissed by the learned District Forum. There is no merit in this appeal and the same is accordingly, dismissed.         

13.       Copies of this order be sent to the parties free of charge.

Pronounced.

31^st May,2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

‘Dutt’