Date of Filing: 27-08-2013 Date of Final Order: 29-04-2016
Smt. Runa Ganguly, President-in-Charge.
The brief facts of the complaint as culled out from the record is that the Complainant, Pradyot Kr. Ghosh was introduced with the O.P i.e. Mr. Asit Banik by Mr. Asok Kr. Dhar and Mr. Pradip Kr. Banik for transporting his house hold goods from Cooch Behar to Kolkata by road. Accordingly the O.P. No.1 booked the house hold goods of the Complainant under C/N No. MM-068 X Loose, dated 29/06/2013 against payment of Rs.13,917/- by cheque being No.055684 dated 29/06/2013 of Union Bank of India, Cooch Behar as full payment. On the same day the O.P. No.1 had sent the truck being Registration No. WB-23-A/8632 of Shibani Road Ways, 50 Hospital Road (Agarpara), Kolkata-58. The said truck was of 709 model and not 1103 as asked by the O.P. No.1 at the time of finalization of rates etc. The driver of the said truck was Mr. Biswajit Acharya of Majdia, Nadia whose Driving License No. is WB 15-19990091749. The floor sheet of the said truck was undulated and uneven. Though the Complainant requested the O.P before sending the truck for loading to spread hay on the floor below plastic tarpaulin but none has paid any heed. After loading the house hold goods, they did not covered properly to protect it from rain. The O.P assured the Complainant that nothing to worry; it will be covered properly before leaving Cooch Behar. As the Complainant booked on 30/06/2013 in train, he had no other alternative but to accept their proposal and the Complainant deputed Mr. Sujit Karmakar Das @ Madan on behalf of the Complainant to accompany the said truck with goods. After reaching Kolkata on 01/07/2013, the Complainant came to know from the said truck driver and Mr. Sujit Karmakar that the truck had stranded at Hotel Lucky Dhaba, Morgram, Murshidabad for want of fuel. Though before leaving Cooch Behar, the driver of the said truck uttered nothing about fuel shortage for whole journey. On 01/07/2013 & 02/07/2013 from morning to till late in the evening the Complainant visited to Mr. Ajoy Maheswari of Kolkata Office of Shree Narayan Road Corporation and the said Mr. Maheswari assured the Complainant to inform the status of the said truck to reach in Kolkata. By not getting any result, the Complainant contacted with the O.P also Mr. Ravi Kr. Shaw and Mr. Ranjit Shaw, owner of M/S Shibani Road Ways and all the persons in connection with M/S Shibani Road Ways but no fruitful result came out.
Thereafter, the Complainant starts for Lucky Dhaba, Morgram, Murshidabad by train and/or bus on 02/07/2013 for which the Complainant had to pay fuel charge, Toll Tax etc. In the early evening at Muragacha, the driver leaving the goods laden vehicle with its key, papers and Mr. Karmakar and the under signed gone on hiding. On enquiry he informed the truck owner will meet the Complainant. He had instructed the driver to take the truck to Dunlop. At about 22.45 hrs. Mr. Ranjit Shaw came to spot with a driver. As the unloading and lifting the goods to the third floor apartment to be made at dead of night the Complainant had to accept the proposal of Mr. Shaw of keeping the goods laden truck under his custody on his promise to send the truck to its destination by 5 hrs. on 04/07/2013. Accordingly, the Complainant made arrangement for unloading so that the truck shall not stuck up in the city in the No Entry period. The Complainant had to force him to pay Rs.300/- towards Taxi hire charges for journey to Santoshpur at dead of night. But the truck did not come in the morning of 04/07/2013 as promised. Then Mr. Karmakar and the Complainant availing Taxi at Rs.350/- and reached the residence of Mr. Shaw. Without listening to request of the Complainant, Mr. Shaw transshipped the said goods in two trucks for which the Complainant had to pay Rs.2,800/- towards truck hire charges from Tetultala, Panihati to Santoshpur. As the driver not covered the truck properly and expert loaders of the O.P, Mr. Banik not loaded the goods in right fashion, the following goods have damaged by both in rain and jerking.
(i) TV Trolley flattened, (ii) Center Table broken, (iii) Sofa hand rest broken, (iv) Bottom of wardrobe broken, (v) Books, bedrolls and cloths gone wet, (vi) Castors of sofa, cabinet uprooted.
While loading the goods, the loaders of the O.P were told to mark the parts of small divan and to keep them at the back of the truck which were to be unloaded at Malda. As the same were not properly marked some parts of the bigger divan unloaded instead.
Owing to the such fault of the O.P, Mr. Banik, the said goods reached Santoshpur from Cooch Behar in six days from the date of journey for which the Complainant had to bear additional expenditure of Rs.5,890/- also due to such activities of the O.P, the Complainant was suffered from mental pain & agony and hazard with damage of the said goods.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.P to pay (i) Rs.5,890/- as additional expenditure paid by the Complainant, (ii) Rs.1,00,000/- as compensation for mental pain & agony and hazard with damage of the said goods and (iii) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No. 2 added as a necessary party on a petition filed by the O.P. No.1 but the notice upon O.P. No. 2 was unserved due to insufficient address, the O.P. No. 1 failed to supply the proper address and prayed for expunging the name of the O.P. No. 2 that was allowed and the name of the O.P. No.2 is expunged accordingly vide order No. 23 dated 23.12.2014.
The O.P. No. 1 Mr. Asit Banik, Shree Narayan Road Corporation, Cooch Behar has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to being this case. The main contention of the O.P. No.1 is that the O.P. No.1 transported the house hold utensils of the Complainant from Cooch Behar to Kolkata by truck after properly covered to protect it rain and due to bad condition of road from Cooch Behar to Kolkata and also heavy traffic at Testa Bridge (Jalpaiguri), Dalkhola Rail Gate (Bihar) and Farakka Bridge (Malda) the aforesaid house hold utensils had reached at Kolkata after six days from the date of journey and thereafter the Complainant received the same with unbroken condition.
The O.P. 1 further contended that there was no undertaking to deliver the consignment within 2 – 3 days. The Complainant had not given any specially endorsed instructions to the effect that the consignment has required to be delivered in Kolkata before reaching him. Therefore, there was no negligence or deficiency in service on the part of the O.P. No. 1 towards the Complainant and thereby the Complainant was not entitled to get any compensation as he claimed from this answering O.P. No. 1.
Ultimately, this O.P.1 prayed for dismissal of the case with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Has the Opposite Party any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by both the parties at a length.
Point No.1.
The Complainant booked his house hold goods with O.P. No.1 i.e. Mr. Asit Banik, Shree Narayan Road Corporation under Challan No. MM-068X Loose dated 29/06/2013 on payment of Rs.13,917/- vide Cheque No.055684 dated 29/06/2013 as full payment intending to get proper service from the end of the O.P. No.1.
Thus, the relation between the Complainant and the O.P. No.1 so established from the record, we are in considered opinion that the Complainant is a Consumer of the O.P. No.1 U/S 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The office of the O.P. No.1 is situated in the Cooch Behar and the complaint value of this case is Rs.1,10,890/- i.e. far less than the prescribed limit.
Thus, this Forum has pecuniary as well as territorial jurisdiction to try the case.
Point No.3 & 4.
Undisputedly, the Complainant booked some house hold goods through the O.P. No.1 against consideration of Rs.13,917/-. The Complainant booked the said goods vide C/N No. MM-068X Loose dated 29/06/2013.
The point of the dispute is that the said goods reached at the destination after 6 days in broken condition and to receive the goods the Complainant had to expense a lot of money and time.
It is the case of the O.P that the Complainant booked some house hold goods through the company of the O.P. No.1 for transportation of the said goods from Cooch Behar to Kolkata. Due to heavy Traffic jam at Teesta Bridge, Dalkhola Rail Gate and Farakka Bridge, the said goods reached at Kolkata after 6 days of journey but the goods were unbroken.
It is the further case of the O.P. No.1 that there was no undertaking made by this O.P to deliver the items within 2 – 3 days. The Complainant has filed this case to extort some money from the O.P. No.1.
We have gone through the record very carefully. Perused & consider the documents filed by the parties. Some photographs of broken goods are filed by the Complainant during the course of argument. Considered, as the Complainant mentioned about the said broken goods in the complaint and evidence on affidavit.
On perusal the documents it appears from “Annexure- I & II” that the Complainant being an Executive Engineer of N.B.S.T.C shifted his used & old house hold articles from Cooch Behar to Kolkata by road that was also certified by the Range Officer of Cooch Behar Division for safe & hassle free transportation.
“Annexure-III” reveals that the Complainant paid Rs.13,917/- through cheque bearing No.055684.
“Annexure-IV” shows that the said goods were loaded in Lorry No. WB-23-A/8632 on 29/06/2013.
“Annexure-VI” is the Xerox copies of Bills of purchase fuel on 03/07/2013.
It is also the case of the Complainant that he bears the costs of two Lorries for reaching the goods to destination also paid cost of fuel. No denial made by the O.P. No.1 in this context. Thus, it is admitted fact beyond any doubt. The Complainant alleged that his goods were damaged due to rain and jerking.
The Ld. Agent for the O.P denied the said allegation and stated that the goods were totally covered to protect from rain and act of God.
The Ld. Agent for the O.P referred one Judgment of SCDRC, Maharashtra that is not applicable in this case and one ruling reported in 2014 (1) CPR 595 (NC) where in it is decided that on account of non-joinder of necessary parties, the complaint petition liable to be dismissed.
In this juncture, we are in considered view that the O.P. No. 1 never raised such question during the proceeding of this case also he did not file any petition for adding necessary party. Thus, in this stage his contention is not tenable in the eye of law. Moreover, the O.P. No. 1 in W/V and in evidence on affidavit admitted the fact.
It is also settled in a case reported in 2014 (4) CPR 258 (SC) that the claim petition cannot be dismissed on the ground of mis-joinder or non-joinder of parties. Thus, the above ruling is also not applicable.
It is pertinent to mention that the Complainant booked his house hold goods with the O.P. No.1 on condition to safe reaching the said goods to the destination. But it has seen that the said truck stopped on the way due to want of fuel that seems that the O.P did not care about safe reaching the goods even after taking total payment for the said service. Moreover, it appears from the documents that the goods received by the Complainant on 04.07.2013 in damaged and wet condition. It is also pertinent to mention that the Complainant received the said good in the midway and reached home with own effort by spending Rs. 5,890/-. The O.P. Company only arranged two trucks bearing No. WB-25D-8865 & WB-23C-4596. Thus, it is crystal clear that the Complainant suffered a lot of hazards and pecuniary loss to bring the goods to his residence due to the negligent act and conduct of the opposite Party No.1. Surprisingly, there is no whispering about the said facts or any denial in the W/V or Evidence on affidavit of the O.P. No.1.
Thus, it is very much clear that the O.P did not take proper care for safe reaching of the booked items to the residence of the Complainant at Santoshpur for which the Complainant was compelled to expense the fare of two tracks and fuel charge to bring the materials. Thus, the act and conduct of the O.Ps certainly falls under the category of deficiency in service.
It is held in a case 2010 (1) CPC 404 (SC) where it is held that carriers is bound to compensate the consignor for loss caused to goods due to negligence of its staff unless loss was caused by the act of God.
In this case the transporter undertook responsibility to carry the goods to destination safely. Considering the evidence on affidavit it appears that the O.P transport reached the goods to destination after six days but with help of the Complainant. The O.P failed to give proper service even after receiving total amount for that service for which he is liable to also compensate the complainant with refund the additional amount of Rs. 5890/-, the Complainant had compelled to pay.
As it is already proved that the O.P. No. 1 has deficiency in service, the Complainant is entitled to get relief.
ORDER
Hence, it is ordered that,
The present Case No. CC/96/2013 be and the same is allowed on contest against the O.P. No.1 with cost of Rs.5,000/-.
The O.P. No.1 is hereby directed to refund Rs.5,890/- to the Complainant also compensate the Complainant with Rs.25,000/- for his deficiency in service. The O.P. No.1 is further directed to pay the entire amount to the Complainant within 45 days failure of which the O.P. No.1 have to pay Rs.50/- for each day’s delay and the amount to be accumulated shall be deposited in the State Consumer Welfare Fund.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
