DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No:266 of 2010]

                                                          Date of Institution : 04.05.2010

                                                           Date of Decision    : 03.06.2011

                                                 ----------------------------------------------

Sh. Gurpreet Singh Grewal son of Sh. Jasmer Singh resident of House No.869, Excel Society, Sector 48, Chandigarh.

                                                                   ---Complainant.

V E R S U S

1.     Southern Roadways Corporation, SCF No.297, Ist Floor, Opposite Police Line, Grain Market, Sector 26, Chandigarh.

2.      Oriental Insurance Company Limited, Oriental House, P.B. No.7037A/20/27, Asif Ali Road, New Delhi – 11000-2.

3.      Branch Manager/Divisional Manager, Oriental Insurance Company Limited, SCO No.10-A, Ist Floor, Sector 7-C, Madhya Marg, Chandigarh.

---Opposite Party.

BEFORE:   SHRI LAKSHMAN SHARMA        PRESIDENT

                SHRI ASHOK RAJ BHANDARI     MEMBER

                SMT. MADHU MUTNEJA            MEMBER

Argued By:Ms. R. R. Gautam, Advocate for the complainant.

                   OP No.1 exparte.

                   Sh. Vinod Chaudhary, Advocate for the OPs No.2 & 3.

PER LAKSHMAN SHARMA, PRESIDENT

                   Sh. Gurpreet Singh Grewal has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein for the following directions to the OP: -

i)             To pay an amount of Rs.2,82,379 being the remaining claim amount to the complainant;

ii)           To pay a sum of Rs.50,000/- as compensation to the complainant for mental agony and harassment.

iii)          To pay a sum of Rs.11,000/- as cost of litigation.

2.                In brief, the case of the complainant (who is wholesale dealer in fruits) is that he took services of OP No.1 for transporting 561 boxes of apple worth Rs.6,96,730/- to the consignee M/s Abdul Naib Fruit Mango Market, Kedarswarpet, Vijaywara (A.P.) vide G.R. No.11565 dated 4.12.2008 (Annexure C-2). A Marine Policy covering the risk of approximately Rs.7 Lacs was also issued by OP No.3 in respect of the consignment vide Provisional Cover Note dated 16.7.2008 (Annexure C-3). Unfortunately, the truck carrying the consignment met with an accident on 7.12.2008 near Karim Nagar and F.I.R/DDR (Annexure P-4) was lodged. Intimation of loss was duly reported to the Insurance Company (OPs No.2 & 3) on 9.12.2008. The surveyor was appointed who assessed the loss and submitted his report to OP No.1 on 15.12.2008 (Annexure C-5). Subsequently, another surveyor was deputed, who submitted his report on 9.4.2009 (Annexure C-6) assessing the entitlement of the complainant to the extent of Rs.3,28,502/- (Annexure C-9), which is less than the actual loss caused to the complainant. So, the complainant served a legal notice dated 3.9.2009 (Annexure C-7) upon the OPs. The OPs issued a cheque of Rs.3,28,502/- to the complainant after deducting Rs.3,25,000/- as salvage charges, which was arbitrarily done by OPs No.2 and 3. As per the complainant, the salvage was sold for Rs.1,29,160/- in the presence of the surveyor, out of which, he has only received an amount of Rs.85,849/-. Thus, as per the complainant, the balance amount of Rs.2,82,379/- is still due towards the OPs. According to the complainant, the deduction of Rs.2,82,379/- amounts to deficiency in service, on the part of OPs.

                   In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3.                In the written statement filed by OP No.1, it has been admitted that the complainant had transported his consignment of 561 boxes of apples to M/s Abdul Naib Fruit Mango Market, Kedarswarpet, Vijaywara (A.P) through it. It has also been admitted that the truck carrying the said consignment met with an accident and F.I.R was accordingly lodged with the concerned Police Station. However, according to OP No.1, there is no deficiency on its part and the complaint deserves dismissal.

4.                In the written statement filed by OPs No.2 and 3, the factum of obtaining the Marine Policy by the complainant for getting the consignment insured has been admitted. It is pleaded that after the occurrence, a surveyor was deputed, who assessed the net loss to the tune of Rs.3,71,000/- after deducting the salvage value of Rs.3,25,000/-. It is further pleaded that the claim to the tune of Rs.3,28,502/- was passed and the said payment was duly received by the complainant in full and final settlement of all his claim without any protest or demur. In these circumstances, according to OPs No.2 and 3, there is no deficiency in service on their part. So, the complaint deserves dismissal.

5.                We have heard the learned counsel for the complainant as well as OP No.2 and have perused the record.

6.                On the date of final hearing i.e.25.5.2011, none appeared on behalf of OP No.2 and as such, we proceeded to dispose of the complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection At, 1986 (as amended upto date).

7.             It is the admitted case of the parties that the complainant had sent 561 boxes of apple costing worth Rs.6,96,730/- to the consignee M/s Abdul Naib Fruit Mango Market, Kedarswarpet, Vijaywara (A.P.) vide G.R. No.11565 dated 4.12.2008 (Annexure C-2) through OP No.1 It is also an admitted fact that the truck in which the said consignment was sent met with an accident on 7.12.2008 near Karim Nagar. F.I.R was lodged and OPs No.2 and 3 were also intimated about the accident. These facts also stand corroborated from the affidavit filed by the complainant as well as from the Receipt (Annexure C-1). It is a receipt regarding transportation of 561 boxes of apples. From this receipt, it is apparent that the total freight to be paid was Rs.54,150/- out of which Rs.15,000/- were paid in advance and the remaining amount was to be paid on reaching the consignment to its destination. Annexure C-2 is the receipt issued by Ashwani Chauhan Mukand Chauhan & Co. in the name of the complainant for the purchase of the said apples for Rs.6,96,730/-. Annexure C-3 is the Cover Note issued by OPs No.2 and 3 while insuring the consignment. Thus, from the above said documents and the affidavit filed by the complainant, it is proved that the complainant had sent a consignment containing 561 boxes of apples worth Rs.6,96,730/- through OP No.1 and the said consignment was duly insured by OPs No.2 and 3 for a sum of Rs.7 Lacs.

8.                It is the admitted cases of the parties that the said truck met with an accident and the consignment was damaged. Intimation  regarding  the  accident  was  given  to  the  OPs No.2 and  3  who   appointed   two   surveyors.   In his report dated                          

15.12.2008, Y. Laxman Rao, Surveyor and Loss Assessor has reported as under: -

                             “DETAILS OF DAMAGES OF APPLES:

I had advised the insured’s representative and truck driver to unload the damaged consignment from the loadbody of damaged truck bearing No.AP07TU 2255 to other truck. Insured’s representative Mr. Mohinder  Singh informed me that fully damaged apple boxes and partial damaged apple boxes were shifted to Vijayawada immediately in other truck to avoid further loss. So, I was advised insured’s representative to shift the damaged and unaffected consignment of apple boxes to Vijayawada and there informed to insured immediately. They appoint final surveyor for further inspection.

During my physical inspection, I found that the accident truck bearing No.AP 07 TU 2255 was carrying 561 Apple boxes of different varieties & grade of apples like Royal Sel, Richard Sel. In that some apples were kept in the tray boxes and some other were packed in cartons. All most all the tray boxes & carton boxes were found in damaged condition. I physically inspected some boxes which found in wet condition and apples also pressed and damaged in the accident. While transporting said apple boxes from the loadbody of damaged truck to another truck, I was present and observed that some carton boxes were found in cut and tear and apples were damaged and de-coloured.

During my survey, I took some photographs of the damaged consignment of apples and apple boxes, which are enclosed with this report.

The report is issued without any prejudice.”

9.                 Another surveyor namely A.V.S.C. Bose, also assessed the loss and the relevant extract of his report dated 9.4.2009 reads as under: -

                             “SURVEY DETAILS:

……... All the different variety of apples were mixed with each other and it is very difficult to segregate. Hence, we have segregated the good and damaged apples and sold out the good one. The entire consignment sustained severe damage and the apples were putrefied. As the product was meant for human consumption, major part of the consignment, where found damage was crushed and the remaining was sold in the market at a low price. We cannot sell the consignment at a particular price as these are perishable goods and can be sold as per the demand and requirement in the market on the day. Consignee has sold the recovered consignment by conducting auction in the local market.”

DETAILS OF DAMAGES: XXXXXX

NOTICE TO CARRIER: XXXXXXX

MY FINDINGS AND OPINION:

Consignor has opened the consignment on 11.12.2008 and found that 561 no. of carton boxes containing apples were damaged and putrefied. Out of 561 boxes 217 boxes were completely damaged and the remaining were partially damaged. Consignor has intimated the same to the carrier and to the insurer on the same day.

On examination on 11.12.2008, 561 no. of carton boxes damaged and apples were putrefied in the incident, 237 boxes were completely damaged and the remaining were partially damaged.

The insured consignment has sustained damage due to the accident to the consignment carrying vehicle at Rukmapur village on 07.12.2008 i.e. The insured consignment carrying vehicle fell down and turn turtled in the incident.

Whatever be the reason for the damage to the consigned materials, it is the duty and responsibility of the carrier to deliver all the items booked to the consignee in good condition. It is clear in this case that the carrier failed to discharge his duty and responsibility.

                                      ASSESSMENT

1. Total value of consignment   Rs.696730-00

                                                          Rs.696730-00

2. Less salvage                                    Rs.323000-00

          NET LOSS ASSESSED: Rs.371730-00

Consignee has sustained a loss of Rs.3,71,730/- (Rupees Three lakh Seventy one thousand seven hundred thirty only) due to the damage to his consignment during transit. Freight and insurance may be paid as applicable.

The claim may be settled as shown above subject to the terms & conditions of the policy issued.

Salvage : The damaged consignment may fetch Rs.3,25,000/- already deducted.

Photos – 51 Nos, were enclosed.

Policy copy and other relevant documents to be verified at your end.

This report is issued without prejudice.”

10.              From the report of A.V.S.C. Bose, it is apparent that he has admitted the value of the consignment as Rs.6,96,730/-. However, according to him, the value of the salvage is Rs.3,25,000/-. So, he assessed the loss to the tune of Rs.3,71,730/- being the value of the damaged fruits. Sh. A.V.S.C. Bose, Surveyor has not given any reasoning as to how he reached the figure of Rs.3,25,000/- to assess the value of the damaged fruit. In Para No.11 of the complaint, the complainant has averred that the damaged fruits were sold for Rs.1,29,160/- in the presence of the surveyor and the receipt to this effect is Annexure C-10. This fact has not been specifically denied by OPs No.2 and 3 in the corresponding paragraphs of the reply filed by them. In these circumstances, it is presumed that the above said facts have been admitted by the OPs. Thus, admittedly, the salvage was sold for Rs.1,29,160/-, so the value of the salvage was Rs.1,29,160/-. In view of the above discussion, the report of the surveyor is not based on proper appreciation of facts and circumstances of this case. We are of the considered opinion that the complainant is entitled to a sum of Rs.5,65,570/- [Rs.6,96,730 – Rs.1,29,160]

11.              Admittedly, the complainant has already accepted an amount of Rs.3,28,502/- from the OP towards his claim vide Discharge Voucher (original copy of which was placed on record at the time of arguments) and thus, he is entitled to the remaining amount of Rs.2,37,072/- i.e.[Rs.5,65,570 – Rs.3,28,502] only in addition to the amount already paid to him.

12.              In view of the above findings, this complaint is allowed with following directions to OPs to jointly and severally:-

i)             pay a sum of Rs.2,37,072/- toward the remaining claim amount to the complainant;

ii)           pay an amount of Rs.50,000/- to the complainant as compensation for mental agony and harassment;

iii)          pay an amount of Rs.7,000/- to the complainant as costs of litigation.

13.           This order be complied with by OPs within 30 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.2,87,072/- i.e.[Rs.2,37,072 + Rs.50,000] along with interest @18% per annum from the date of filing the complaint i.e. 04.05.2010, till the date of actual payment besides payment of Rs.7,000/- as costs of litigation.

14.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced.

3^rd June 2011.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(ASHOK RAJ BHANDARI)

MEMBER

Sd/-

(MADHU MUTNEJA)

MEMBER

Ad/-

C.C.No.266 of   2010

Argued By: None.

.

                                                          ---

                   The case was reserved on 25.05.2011. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned.

Announced.

03.06.2011       Member           President          Member