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Sri Arunabha Majumdar, filed a consumer case on 07 Mar 2015 against The Manager, Transport Corporation of India Ltd. And Other. in the West Tripura Consumer Court. The case no is CC/14/39 and the judgment uploaded on 20 Mar 2015.
DISTRICT CONSUMER DISPUTES REDRESSSAL FORUM
WEST TRIPURA : AGARTALA
CASE NO: CC- 39 of 2014
Sri Arunabha Majumdar,
Manager,
Manimalayar Rubbers (P) Ltd.
C/6 Rubber Board Complex,
Chanmari, Agartala, Tripura West. .......Complainant.
______VERSUS_____
1. The Manager,
Transport Corporation of India Ltd. (TCI Freight),
Bhuturia, Agartala.
2. Branch Manager,
United India Insurance Co. Ltd.
RMS Chowmuhani, Agartala. .......Opposite Parties.
__________PRESENT__________
SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
WEST TRIPURA, AGARTALA.
SMT. B. BHATTACHARYA,
MEMBER,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
WEST TRIPURA, AGARTALA.
SHRI B. BHATTACHARYA,
MEMBER,
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
WEST TRIPURA, AGARTALA.
C O U N S E L
For the Complainant : Complainant in person.
For the O.P. No. 1 : Sri S.S. Debnath and
Sri Monoj Debnath,
Advocates.
For the O.P. No. 2 : Sri Sandip Dutta Choudhury and
Sri Bindu Pal,
Advocates.
JUDGMENT DELIVERED ON : - 07.03.15.
J U D G M E N T
This is a complaint U/S 12 of the Consumer Protection Act, 1986, (herein after referred to as 'the Act') filed by the complainant, Sri Arunabha Majumdar, Manager, Manimalayar Rubbers (P) Ltd., Chanmari, Agartala, Tripura West against the O.Ps, namely the Manager, Transport Corporation of India Ltd., Bhuturia, Agartala and the Branch Manager of the United India Insurance Co. Ltd., Agartala, West Tripura over a consumer dispute alleging negligency and deficiency in rendering service on the part of the O.Ps.
2. The fact of the case as gathered from the record is that the complainant is the Manager of Manimalayar Rubbers Pvt. Ltd. who deals in raw rubber materials. As agreed upon, the O.P. No.1, the Transport Corporation of India Ltd. (in short TCI Freight) was entrusted with the task for carriage of 15000 kg of scrap rubber from Agartala to Gwahati vide CN No- 212205910 dated 25.10.12. The said consignment was insured with the O.P. no.2, United India Insurance Co. Ltd. for its carriage from Agartala to Gwahati vide policy of Insurance No-130900/21/12/01/00000032 dated 26.10.12 and paid Rs.7179/- towards premium for the consignment worth Rs.18,51,300/-. The O.P. No.1 arranged a truck bearing registration No- JH 05 S 4316 for transportation of the consignment to Gwahati on 31.10.12. Accordingly, the consignment was loaded in the vehicle at office complex and started for Gwahati. On 13.11.12 the O.P. No.1 by a letter informed the complainant that on 11.11.12, while the vehicle remained stranded at Nongpoh, Meghalaya, approx. 5900 kg of scrap rubber had been stolen from the vehicle. On this issue, the O.P. No.1 lodged an F.I.R. with the Nongpoh police station. The O.P. no.1 took the remaining 9100 kg of scrap rubber in their custody. But to the utter surprise at the time of receiving the scrap rubber 6382 kg were found to be short. On 15.11.12 the complainant reported to the O.P. no.2 United India Insurance Co. Ltd., Agartala about the incident of theft and requested them to settle the claim early. Having received no response from the O.P. No.2, he made a number of written representations but all to no effect. Finding no other alternative, he filed an application before the Head office of the O.P. No.2 situated in Chennai under the provision of RTI Act for getting the required information. The Chennai office of O.P. No.2 forwarded the application to their Gwahati Branch Office for speedy disposal of the matter. The Gwahati Branch office of O.P. No.2 by a letter dated 23.01.14 falsely intimated him that he did not respond to 3 letters issued by the surveyor of the O.P. Insurance Company. The said letter also stipulated that the police report submitted by him was not in order though he had submitted all the papers received from the Nongpoh police with forwarding letters dated 29.5.13 and 28.6.13. It is alleged that the O.P. no.2 did not settle the claim arbitrarily though the consignment wroth Rs.18,51,300/- was insured with them covering ''all types of risks'' of the goods in transit. According to the complainant, the conduct of the O.Ps attracts negligence and deficiency in rendering service . That being so, he is liable to be adequately compensated by the O.Ps.
3. The complainant was contested by both the O.Ps by filing separate written objections.
The O.P. No.1, in their written objection, has stated that they hired the vehicle from 'Baba Tarasingh Roadways' who also engaged the driver of the vehicle for carriage of the consignment from Agartala to Gwahati. Therefore, the liability for any default if any, lies with 'Baba Tarasingh Roadways' not with the O.P. No.1. It is denied that there was any negligence and deficiency in service on their part.
The O.P. No.2, in the written objection, has given evasive answers to the averments made by the complainant. They kept silent against the allegation made by the Complainant for non settlement of the claim by them arbitrarily till date. It is denied that they were guilty of negligence and deficiency in service.
4. In support of the claim, the complainant has examined himself as P.W. 1 and has proved and exhibited some documents (31 sheets) accompanying the complaint as Exhibit-1 Series.
5. To controvert the claim of the complainant, one Sri Ashok Poonia, the Branch Manager of O.P. No.1, has examined himself as O.P.W. 1 and has proved and exhibited the following documents;
Exhibit A- Original Loading advice dated 31.10.12,
Exhibit B:- Challan dated 31.10.12,
Exhibit C: -Copy of Lorry hired contract.
Exhibit D:- Photocopy of driving license,
Exhibit E:- Photocopy of certificate of Registration,
Exhibit F:- Photocopy of Policy of Insurance,
Exhibit G:- Photocopy of temporary permit,
Exhibit H:- Copy of consignment note dted25.10.12,
Exhibit I Series:- letters of the O.P. No.1 dated 13.11.12, 12.02.13, 16.03.13 and 20.06.13.
6. No evidence has been adduced on behalf of the O.P. no.2, the United India Insurance Co. Ltd.
FINDINGS:-
7. The points that would arise for consideration in this proceeding are:
(i) Whether the complainant booked 15000 kg of scrap rubber with the O.P. No.1 for its carriage from Agartala to Gwahati vide consignment Note dated 25.10.12;
(ii) Whether 5900 kg of scrap rubber had been stolen from the vehicle while it remained stranded at Nongpoh, Meghalaya;
(iii) Whether there was a short fall of 6382 kg of scrap rubber when it was delivered to the complainant by the O.P. No.1;
(iv) Whether the consignment was insured with the O.P. no.2 for its carriage from Agartala to Gwahati and
(v) Whether the O.Ps were guilty of negligence and deficiency in rendering service. If so, whether the complainant is liable to be compensated by the O.Ps.
8. We have already heard the arguments advanced by the learned counsel appearing for the Complainant in person and the O.Ps. Also perused the pleadings, documents on record and the evidence adduced by the parties meticulously.
9. The admitted position in this case are:
(I) The complainant had booked 15000 kg of scrap rubber with the O.P. no.1 for its carriage from Agartala to Gwahati vide consignment note No. 212205910 dated 25.10.12;
(II) The consignment was duly insured with the O.P. No.2 vide policy no-130900/21/12/01/00000032 dated 26.10.12 on a sum insured of Rs.18,51,300/- and the complainant paid Rs.7,179/- being the premium;
(III) On 11.11.12, on way to Gwahati while the truck carrying consignment remained stranded at Nongpoh, Meghalaya, approximately 5900 kg of scrap rubber had been stolen from the vehicle . On the said incident, an F.I.R. was lodged by the O.P. No.1 with Nongpoh P.S. and a case bearing NGP P.S. Case No- 19(1)13 under Section 381 IPC was registered. During the course of investigation, the police recovered the balance 9100 kg of scrap rubber from the vehicle. Ultimately, the case was ended in final report for want of evidence.
(IV) At the time of giving delivery of the consigment to the Complainant by the O.P. No.1 there was a short fall of 6382 kg of scrap rubber worth Rs.7,87,666/-.
10. The O.P. No.2, in their written objection, has given evasive answers to the averments made in the complaint. They have not uttered a single word stating the reasons for non settlement of the claim preferred by the complainant for a longer period though undisputedly at the time of commission of the theft of scrap rubber from the vehicle the consignment was under the coverage of insurance with the O.P. No.2 and the amount claimed towards the loss of the consignment was very much within the limit of the sum assured. It appears that the complainant made the claim to the O.P. No.2 for settlement on 15.11.12 followed by number of reminders. But they did neither settle the claim nor had considered it necessary to respond to his repeated representations. Most interestingly, the complainant even had to move a petition under the provision of RTI Act before the Head Office of O.P. No.1 situated in Chennai to collect the information for non settlement of claim. The conduct of the O.P. no.2 was unwarranted. Consequent upon the application filed by the complainant under RTI Act before the Head Office of O.P. No.2 in Chennai, the O.P. No.2 by a letter dated 23.01.14 intimated that 'the liability can be determined only after receiving the survey report from the surveyor'. It was further stated in the letter that they were informed by their surveyor that inspite of writing of 3 letters to the complainant he did not provide necessary documents so that the surveyor could prepare his report. The O.P. No.2 has failed to produce any document to substantiate their plea that their appointed surveyor wrote any letter to the complainant to provide the required documents. In absence of which we are unable to accept the above said contention of the O.P. No.2 as a ground for non settlement of the claim. There is no doubt in our minds that the conduct of the O.P. No.2 very much attracts negligence and deficiency in service.
11. From the police report dated 02.06.13 and even from the letter dated 13.11.12 of the O.P. No.1 itself it is very much apparent that out of 15000 kg of scrap rubber 5900 kg had been stolen from the vehicle carrying the consignment. It has also come out from the letter dated 13.11.12 of the O.P. No.1 that the balance material approximate 9100 kg was taken in their custody. As per terms of policy of Insurance, the Insurance of goods in transit provides coverage for loss or damage sustained by the insured item due to fire or explosion, traffic accident, earth quake, theft etc. or fall of insured items from the means of transport during loading or unloading. Since 5900 kg of scrap rubber had been stolen in transit, the O.P. Insurance Company being the insurer of the consignment is liable to indemnify the complainant for the loss suffered by him due to theft.
12. The complainant, in his pleading and in his evidence as P.W. 1 has clearly stated that approximately 6382 kg of less quantity of scrap rubber valued Rs.7,87,666/- was delivered to him by the O.P. No. 1. This assertion of the Complainant (P.W. 1) has not been disputed by the O.P. No.1 by adducing any evidence. Rather the O.P. No.1 admitted the claim of the complainant by a letter dated 13.11.12. Until any evidence is led by the O.P. No.1 in rebuttal, we will have to rely upon the contention of the complainant. The O.P. No.1 repeatedly admitted the fact of theft of 5900 kg of scrap rubber from the vehicle in transit. If so, 9100 kg of scrap rubber were required to be delivered to the complainant by the O.P. No.1. But instead of 5900 kg, infact 6382 kg of less quantity of scrap rubber were supplied to the complainant. It is the plea of the O.P. No.1 that the Consignment being raw materials had to put in storage in their godown for a long time due to pendency of police case for which it might be dried up. Probably this was the reason for 482 kg of short delivery of materials to the Complainant in addition to 5900 kg already stolen. In case of non delivery of the consignment by the carrier, the burden of proving the absence of negligence is on the carrier. But in the present case, the O.P. No.1 being the carrier has failed to discharge the burden. As per the settled law, in case of loss of goods or delivery to the wrong person or delay in delivery, presumption would be negligence on the part of the carrier. There is no doubt about that the O.P. No.1 accepted liability to carry the goods of the complainant to the destination with safe and secure. The O.P. No.1 has taken a plea that they had hired the vehicle for transportation of the goods from Agartala to Gwahati from 'Baba Tara Singh Roadways' and the driver of the vehicle was also engaged by the said firm. Therefore, the deficiency, if any, the liability lies on 'Baba Tara Singh Roadways' not on the O.P. No.1. We are not in agreement with the above said contention of the O.P. No.1. Since the O.P. No.1 received the consignment from the Complainant with a promise to deliver the same to the destination with safe and secure, the liability lies on the O.P. No.1 for the loss or any damage to the consignment but not upon the firm from where the vehicle carrying the consignment was hired.
13. For the reason stated above, we are of the considered opinion that the O.P. No.1 is also liable to compensate the complainant for delivery of 6382 kg minus 5900kg = 482 kg of less quantity of scrap rubber as he is answerable for the loss of goods even when such loss is not caused by negligence or want of care on his part. Admittedly, 482 kg of scrap rubber had fallen short when it was in the custody of the O.P. No.1 not in transit. So he is to make good of the said loss sustained by the complainant not by the O.P. Insurance company. We find that both the O.Ps are jointly and severally guilty of negligence and deficient in rendering service. Accordingly, the Complainant is liable to be compensated by both the O.Ps.
14. In the result, therefore, the complaint u/s 12 of the act filed by the complainant is allowed on contest. The O.P. No.1 and O.P. No.2 are directed to pay Rs.59,488/- and Rs.7,28,178/- (@ Rs. 121/- per kg of scrap rubber inclusive of 2% CST) being the price of 482 kg and 5900 kg of scrap rubber respectively with 9% interest P.A. w.e.f. 15.11.12 till the payment is made in full. They are further directed to pay Rs.10,000/- each to the complainant as compensation for mental agony and harassment together with Rs.1000/- each as the costs of litigation.
15. A N N O U N C E D
SRI S. C. SAHA
PRESIDENT,
DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
WEST TRIPURA, AGARTALA.
SMT. B. BHATTACHARYA,
MEMBER,
DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
AGARTALA, WEST TRIPURA.
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