BETWEEN:

Mohanlal Lalithkumar,

Rep. by its Prop. Badami Devi,

W/o Late Mohanlal,

Chillies Merchants & Exporter,

S.K.P.T. Street,

Main Road, Guntur 2.                                        …Complainant   

AND

1. The New India Assurance Company Limited,

    Rep. by its Divisional Manager,

    Divisional Office-II

    LVR Complex, Koretipadu,

    Opp. Harihara Mahal,

    Guntur-522 007.

2. The Regional Manager,

    The New India Assurance Company Limited,

    D.No.47-10-12, Pavan paradise 3 & 4 floors,

    2^nd lane, Visakhapatnam-530 016.

3. N. Phani Deepika,

    W/o Sham Prasad,

    M/s South India Fright Carners,

    Alladivari Street, Kothapet,

    Vijayawada.

4. Om Krishna Lorry Transport,

    Rep. by M. Sivashankar,

    Near Maddala Industries,

    Block-43, Phase-IV,

    Plot No.20 and 24, Autonagar,

    Guntur.                                                 …Opposite parties

        This Complaint coming up before us for hearing on 02-09-11 in the presence of Sri K. Sreenivasa Rao, advocate for complainant,           Sri U. Krishna Nand, advocate for opposite parties 1 & 2 and                    Sri M. Sravan Kumar, advocate for opposite parties 3 & 4, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

        The complainant filed this complaint under section 12 of the Consumer Protection Act seeking Rs.1,07,886/- being the value of               60 bags of dry chillies; Rs.32,360/- towards interest @18% p.a., from 01-04-08 to 10-01-10; Rs.1,00,000/- towards mental agony; Rs.5,000/- towards legal expenses and Rs.1,00,000/- towards damages due to the deficiency of the opposite parties.

2.    In brief the averments of the complaint are these:

        The 4^th opposite party booked the lorry of the 3^rd opposite party bearing No. AP 16TV-1674 for carrying 363 bags of dry chillies belonging to the complainant from Guntur to New Delhi to be delivered to the consignee M/s Balwa Masala Company.    The complainant took marine cargo open policy from the 1^st opposite party bearing No.62100/21/07/070210.  The complainant sent the said goods through the said lorry to the above consignee on 08-02-08.   Driver of the said vehicle parked it by the side of the road at Waddicherla village, Lingalaghanpur Mandal, Warangal district, due to heavy rain and slept in the cabin along with cleaner.  During early hours on 09-02-08 at about 4.00 pm driver of the said lorry noticed that the rope which they tied to the chilly bags was cut off and some unknown offenders committed theft of 60 bags of dry chillies.    On report the SHO, Lingalaghanapur PS registered it as Crime No.9/2008 on                        12-02-08 under section 379 IPC.    The same was brought to the notice of the Branch office of the 1^st opposite party at Warangal and requested to arrange a surveyor.   The 1^st opposite party deputed one M. Rama Rao an approved valuer.   The said Rama Rao visited the spot along with representatives of the complainant, conducted enquiry and came to a conclusion that theft took place and estimated the loss at Rs.1,07,886/-.     The complainant requested the 1^st opposite party to settle the claim amicably from 01-04-08 onwards.   The complainant got issued a notice on 19-06-09 to the opposite parties for want of response from the 1^st opposite party.   As the matter was not settled the complainant got issued another notice on 01-08-09.   The conduct of the opposite parties in not settling the claim amounted to deficiency of service.         The complaint therefore be allowed.

3.    The 2^nd opposite party filed memo adopting the version of                 1^st opposite party and their contentions in brief are hereunder:

The 1^st opposite party had rightly repudiated the complainant’s claim on 25-05-09 basing on the final report of the police.   The complainant has to approach Civil Court for necessary reliefs if aggrieved.    The truth or otherwise of the complainant’s claim can only be decided after adducing evidence and elaborate trial.    Final report of the police clearly revealed that it was a clear case of misappropriation of property and criminal breach of trust.   The insurance policy did not cover the risk of misappropriation of property.   The opposite parties are therefore not liable to pay any amount.   Rest of the allegations contra mentioned in the complaint are all false and are invented to suit his case.   The complaint therefore be dismissed.      

4.   The 3^rd opposite party and 4^th opposite party filed version on similar lines and their contention in brief is hereunder:

  The opposite parties 3 and 4 have nothing to do with the incident or subsequent events.  The responsibility of the opposite parties 3 and 4 ended as soon as they arranged vehicle for transporting goods.   Soon after the offence driver/cleaner of the said lorry informed to the complainant, insurance surveyor and gave report to the police.   Being owner of the vehicle the opposite parties 3 and 4 fulfilled their obligations.   It is the duty of the complainant to have insurance coverage.   The liability, if any, is on the opposite parties 1 and 2 being insurers of the complainant.   The opposite parties 3 and 4 did not commit any deficiency of service.    Rest of the allegations contra mentioned in the complaint are all false and are invented to suit her case.  The complaint therefore be dismissed.

5.   Exs.A-1 to A-18 on behalf of complainant and Exs.B-1 to B-7 on behalf of opposite parties 1 and 2 were marked.  No documents were marked on behalf of the opposite parties 3 and 4.

6.    Now the points for consideration in this complaint are:

1.  Whether the opposite parties committed deficiency of service and if so by whom?
2.  Whether the complainant is entitled to compensation and to what amount and by whom?
3.  To what relief?

7.    Admitted facts in this case are these:

1. The complainant on 08-02-08 entrusted 363 bags of dry chillies to the opposite parties 3 and 4 for carrying them to the consignee at New Delhi (Ex.A-3 to A7).
2. The complainant insured the goods for Rs.2,00,00,000/- while transporting from AP to anywhere in India (Ex.A-1).
3. The said policy was in force from 18-07-07 to 17-07-08.
4. The complainant gave marine declaration form on 08-02-08

Ex.A-2(=B-1).

1. The opposite parties 1 and 2 appointed M. Rama Rao as a surveyor to assess the loss.
2. The said surveyor furnished a report to the opposite parties 1 and 2 (Ex.A-14 and A-15).
3. One Syam Sundar driver of the lorry presented a complaint to the     JMFC, Jangaon under section 190 (1)(a) of Cr.P.C. on 12-02-08 (Ex.A-12) and the same was forwarded to the SHO, Lingalaghanapur.
4. The SHO, Lingalaghanapur registered the said complaint as Cr.No.9/2008 on 12-02-08 (Ex.A-11).
5. The opposite party on 06-08-09 addressed a letter to the    complainant (Ex.A-18).

8.    POINT No.1:-   The entire controversy rests on the surveyor’s report (Ex.A-14) and the final report submitted by the concerned police in Cr.No.9 of 2008 (Ex.B-3).    The complainant relied on surveyor’s report Ex.A-14 and A-15 while the opposite parties 1 and 2 relied on the final report i.e., Ex.B-3.   

9.  The surveyor appointed by the opposite parties 1 and 2 submitted report on 11-03-08 (Ex.A-15).   As per Ex.A-14 the surveyor namely Rama Murthy conducted survey on 09-02-08 and 10-02-08.   In para III of his report the surveyor mentioned the following:

“III. Proximate cause of the loss:

           As per the instructions of the insurance company                  I visited the spot along with the representative and found the stock of red dry chillie bags covered with a tarpaulin in the load body of the insured vehicle at Waddicharla village, Lingalaghanpur (Mandal), Warangal (District).   I enquired with the village people about the incident and confirmed on its way he lot bags, the insured vehicle, enroute when reached near Waddicharla village, Lingalaghanpur (Mandal), Warangal (District), the insured vehicle driver Mr. Shyamsundar feeling sleepy and due to heavy rain, the driver of the I.V. parked the vehicle by the side of the road, and slept in the cabin of the insured vehicle along with I.V. cleaner.   In the early hours on 09-02-08, around 04.00 A.M., when they woke up they found the rope which they tighed the chilly bags was cut off and on verification they noticed that some unknown offenders committed theft of 60 chilly bags from the insured vehicle, and decamped with the same”.

10.   Ex.A-14 revealed that the said Rama Murthy conducted survey prior to 15-02-08.   Contrary to this the opposite parties 1 and 2 relied on the final report submitted to the Court by the concerned police in Cr.No.9 of 2008.   The relevant portion in Ex.B-3 is extracted below for better appreciation:

                “During the course of investigation Waddicherla village visited, witnesses were examined and discreet enquiries were made about the theft of chilly bags from the lorry, but they never stated about the alleged theft or parking of lorry at Waddicherla village.   Since none of the villagers have stated about the theft of chilly bags from the lorry and parking of lorry at Waddicherla, the scene of offence was not detected and hence panchanama was not conducted.   Further the villagers stated that there was no rain on the date of alleged theft of chilly bags as alleged by the complainant in his private complaint.  In my opinion it is a clear case of false but nothing else”.

11.   The contention of the complainant that Ex.B-3 is not a certified copy obtained from the Court did not hold good as the documents filed by the complainant (Exs.A-11 and A-12) are also not certified copies from the Court.    The complainant if aggrieved by the contents of Ex.B-3 ought to have obtained its certified copy and file it into this Forum which she failed to do so.    Now the Forum has to see whether the surveyor’s report (Ex.A-14) or the final report from the concerned police (Ex.B-3) prevail.  

12.         The relevant portion in the complaint filed before the JMFC, Janagaon is extracted below for better appreciation:

                “The brief facts of the case are that the complainant is the driver of lorry bearing No. AP 16 TV-1674 whereas the LW-1 is its cleaner.   The complainant as a driver and whereas LW-1 as claner of said lorry started from Guntur to Delhi with a load of chilly bags weighing 23,765 kgs. including lorry and they reached Waddicherla village of Lingala Ghanpur Mandal on 09-02-08 at 2.00 am early hours.   Then the complainant was getting deep sleep and due to heavy rain the complainant get the lorry parked by the side of the road and slept in the cabin of the lorry along with LW-2.   In the early hours around 4.00 a.m. when they woke up they found the roof through which they tightened the chilly bags was cut off and on verification they noticed that some unknown offenders committed theft of 60 chilly bags from the lorry and decamped with the same”  (Emphasis supplied).   

13.   The above averments of the complaint revealed that theft of                  60 bags took place between 2.00 a.m.-4.00 a.m., on 09-02-08 when driver of the lorry stopped it due to heavy rain.   It can therefore be said that theft of 60 bags of dry chillies took place during rain.   The time gap was about two hours only.  For manual unloading and lifting of 60 bags by two or more persons will take considerable time.   For lifting of 60 bags by carts considerable time will take place since it was rainy.   Since the theft of 60 bags took place during rain lifting of bags in our considered opinion it could not be either through carts or manually.   If the lifting of 60 bags was either by a motorized four wheeler it will emanate some sound.    In our considered opinion it is not an easy task to lift 60 bags by one vehicle into another vehicle during rain.   

14.  The relevant portion in Ex.A-12 is extracted below for better appreciation:

“Later the complainant along with LW-1 rushed to P.S. Lingala Ghanpur and Devaruppula and narrated about the same but it is of no worth (words are not clearly visible)  the complainant has also intimated the same to the LW-2, in turn the LW-2, rushed to the spot and all of them searched and enquired about the theft, but no information could be collected”.

15.   The Driver of the said vehicle had chosen to prefer a complaint through an advocate before the competent Court instead of giving a written report to police through the said advocate for the reasons best known to him (being a cognizable offence).   Neither of the parties filed a certificate from the concerned MRO whether rain occurred or not on the intervening night of 8/09-02-08.   The delay in giving report to the police, theft of 60 bags during rain by unknown offenders and final report from the concerned police raised a doubt in our minds. The complaint as well affidavit of the complainant was silent what happened to the case.  The surveyors report was silent about the effect of rain on the remaining 303 bags.   Under the above circumstances, the bonafides of surveyor’s report is doubtful as rightly contended by the opposite parties 1 and 2.   Therefore we opine that surveyors report cannot prevail over the final report from the concerned police.   The allegation of the opposite parties 1 and 2 regarding misappropriation of the said 60 bags cannot be decided by this Forum as it requires elaborate evidence.  Under those circumstances the deficiency of service by the opposite parties 1 and 2 cannot be decided.  

16.   In Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. and another 2010 CTJ 361 (SC) (CP) the Supreme Court observed

                “Section 2(1)(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’.  After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a “consumer” and consequently, complaints will not be maintainable in such cases.  But the said amendment will not apply to complaints filed before the amendment”.    

17.   In this case the complainant availed the services of opposite parties 3 and 4 for commercial purpose.   Taking a clue from the above decision the complaint is not maintainable against opposite parties               3 and 4.   We therefore answer this point against the complainant.             

18.  POINT No.2:-   In view of our findings on point No.1 the complainant is not entitled to any compensation.   Therefore we answer this point against the complainant.

19.   POINT No.3:-    In view of above findings, in the result the complaint is dismissed without costs.

          Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 12th day of September, 2011.

MEMBER                                  MEMBER                        PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:  

 PRESIDENT