IN THE CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 21^st day October 2022

Filed on: 18.02.2021

PRESENT:

Shri.D.B.Binu President

Shri.V.Ramachandran Member

Smt.Sreevidhia T.N. Member

C.C.No.91/2021

Complainant :

Tony Joseph, S/o.Joseph A.J, Ameparambil House, Opposite Kairali Apartments, Panampilly Nagar, Kochi-682 036

(By Adv.Vivek George J., Alappatt Road, Ravipuram, Kochi-682 016)

Vs.

Opposite parties :

1) Transit Packers and Movers, C-117, 2^nd Stage, DDUTTL Industrial Suburb, Opp.Karnataka Cancer Hospital, Yeshwanthpur, Bangalore-560 022, Karnatak, represented by its Manager.

Also at

Transit Packers and Movers, No.8, DDUTTL, Industrial Suburb, Opp. Kandeerava Studio, Yeshwantpur, Bangalore-560 022, Karnataka

2) Gati-Kintetsu Express (P) Ltd., (GATI-KWE), Plot No.20, Survey No.12, Kothaguda, Kondapur, Hyderabad-500 008, Represented by its Manager.

(O.P 1 and 2 rep. by Adv.C.Vivek, Adv.Sreekala Krishnadas, R & P Partners, Viswan Tower, Mariyakutty John Road, Ernakulam, Kochi-18)

FINAL O R D E R

D.B.Binu, President.

A brief statement of facts of this complaint is as stated below :

The complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986. The complainant is an Engineer by profession and has been working in Bangalore. On account of his job, he has been residing in Bangalore for the last 4 years. The 1" opposite party claims to be reputed packers and movers in Bangalore and is engaged in providing service of packing and moving household goods, appliances, etc. The 2^nd opposite party claims to be a leading courier service company. As the company in which the complainant is employed had granted him "work from home" on account of Covid-19, he decided to temporarily relocate to his hometown of Kochi. As he required packing and shifting of his household goods to Kochi, he approached the 1^st opposite party. The 1^st opposite party assured to provide service of their skilled professionals to move/transfer household goods safely by making sure they pack the same with proper packing using quality and ISO Certified Packing materials. Believing their words and assurances the complainant decided to engage the service of the 1^st opposite party for packing and moving household goods belonging to him to his permanent residence address at Kochi. Thereafter, on 20.09.2020, the 1^st opposite party collected a 2-door Samsung Refrigerator, a Bosch Washing Machine, an LG LED Television (49 Inch), and an Airtel DTH Antenna, from the complainant's residence in Bangalore. The 1^st opposite party charged a sum of Rs.8.500/- in order to pack and move the said goods to Kochi. As demanded by the 1^st opposite party the complainant paid/transferred an advance amount of Rs.6,000/- to the 1^st opposite party. The balance amount of Rs.2,500/- was to be paid once the items were delivered

The household goods which were entrusted to the 1^st opposite party by the complainant were delivered at his residence address in Kochi on 29.09.2020 by a different vendor, i.e. the 2^nd opposite party. To the utter shock and dismay of the complainant, the items which were entrusted to the 1^st opposite party for packing and moving were found to be severely damaged. Glass of the Bosch washing machine's top cover was completely damaged. The LED screen of the LG LED television as well as its panel was completely broken. There were dents on the doors and sides of the Samsung refrigerator: The complainant intimated to the 1^st opposite party that the household goods entrusted by him to them were damaged and sought a refund of the total repair costs vide his e-mail dated 30.09.2020. On receipt, thereof the 1^st opposite party e-mailed a reply stating that they have registered Complaint No:20395496 in that regard. Thereafter the 1^st opposite party vide their e-mail dated 02.10.2020 informed the complainant that they have approved a refund of Rs.2,500/- and the balance of Rs.2,500/- due from the complainant has been adjusted in this regard. It is submitted that this in itself is an admission of deficient service by the opposite parties. The said adjustment was not acceptable to the complainant as he would have to incur much more than Rs.2,500/- to repair/rectify the damage to goods entrusted by him to the 1^st opposite party. On enquiring with the authorized service centre of Bosch at Kochi it was informed that the top cover of the washing machine had to be replaced. The estimated cost for the same is Rs.2,640/-. Further, the LED screen of the LG LED television as well as its panel had to be replaced too. The estimated cost as intimated by the authorized service centre for the same is Rs.15,078/-. The Samsung refrigerator unit also had to be repaired/rectified. The estimated cost as intimated by the authorized service centre towards the repair of the same is Rs.4,539/-. Thus, the complainant is towards the total estimated repair/ replacement cost. would have to incur a sum of Rs.22,257/.

The complainant issued a legal notice dated 01.12.2020 to the opposite parties. The 2" opposite party received the same but did not reply nor complied with the just, proper, and legal demands made in the said notice. The notice sent to the 1^st opposite party at the address mentioned in their booking form was returned un-served with an endorsement "insufficient address". Hence, the complainant caused to issue another legal notice dated 14.12.2020 to the 1^st opposite party at the address mentioned on their website. It was also returned un-served with an endorsement "no such firm In this number". As there was no response/action from the side of the opposite parties, the complainant was compelled to bear the expense for the repair of the goods which were damaged due to deficient service of the opposite parties.

The complainant suffered loss and irreparable injury due to the illegal and unjust acts of the opposite parties. The acts of the opposite parties which ultimately resulted in severe damage to the items which were entrusted for packing and moving are not an only deficiency in service but also amount to unfair trade practices/unfair contracts on the part of the opposite parties. He also suffered the loss of time, energy, and money because of the illegal act of the opposite parties.

The said acts of the opposite parties caused undue mental agony and stress to the complainant. The opposite parties are liable to redress the agony and inconvenience so caused by a just and reasonable compensation which the complainant assesses at Rs.7,500/-, to refund Rs.21, 811 which is the total cost incurred by the complainant towards the repair or replacement and cost of the proceedings.

2) Notice

Notices were issued from the Commission to the opposite parties and the opposite parties received the notice, the first and second opposite parties entered appearance and did not file their version. Hence the opposite parties 1^st and 2^nd set ex-parte.

3) Evidence

The complainant had filed the proof affidavit and produced 20 documents which were marked as Exhibit A-1 to Exhibit A-19 and one additional document.

5) The main points to be analysed in this case are as follows:

i) Whether the complaint is maintainable or not?

ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv) Costs of the proceedings if any?

6) The issues mentioned above are considered together and are answered as follows:

The Complainant falls under the ambit of the definition of a 'consumer' as defined in the Consumer Protection Act, 1986. As per Section 2 (d) a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.

In view of the above discussion, we hold that complainant falls under the definition of "consumer", as defined under section 2(d) of the Act, and has hired the "service" of the opposite party under section 2 (d) (ii) of the Act. Hence, the complaint is maintainable as per the Consumer Protection Act, 1986. (Issue No.i)

We have also noticed that Notices were issued from the Commission to the opposite parties and the opposite parties received the notices but did not file their version. Hence the opposite parties set ex-parte.

The complainant submits that the 1^st opposite party vide their e-mail dated 02.10.2020 informed the complainant that they have approved a refund of Rs.2,500/- and the balance of Rs.2,500/- due from the complainant has been adjusted in this regard. It is submitted that this in itself is an admission of deficient service by the opposite parties.

The complainant further submits that the complainant issued a legal notice dated 01.12.2020 to the opposite parties. The 2^nd opposite party received the same but did not reply nor complied with the just, proper, and legal demands made in the said notice. The notice sent to the 1^st opposite party at the address mentioned in their booking form was returned un-served with an endorsement "insufficient address". Hence, the complainant caused to issue another legal notice dated 14.12.2020 to the 1^st opposite party at the address mentioned on their website. It was also returned un-served with an endorsement "no such firm in this number". As there was no response/action from the side of the opposite parties, the complainant was compelled to bear the expense for the repair of the goods which were damaged due to deficient service of the opposite parties. The complainant further alleged that over Rs.21,811/- was spent towards the repair or replacement of goods.

The complainant before filing the complaint had sent various e-mails and even sent a legal notice through the registered post but the opposite parties company took no steps to redress the grievance of the complainant.

But the opposite party did not make any attempt to appear in the case and participate in the above proceedings before this commission and did not make any attempt to set aside the ex-parte order passed against it.

In the absence of contra evidence, we are not in a position to disbelieve the contentions raised by the complainant.

The opposite parties’ conscious failure to file their written versions in spite of their having received the Commission’s notice to that effect amounts to an admission of the allegations leveled against them. The Hon’ble NC held a similar stance in its order cited 2017(4) CPR page 590 (NC).

Hon’ble Supreme Court of India in the case of Nath Brothers v. Best Roadways Limited, 2000 CTJ 335(SC)(CP).In its judgment dated March 27, 2000, held that the liability of a carrier to whom goods are entrusted is that of an insurer and is absolute in the sense that the carrier has to deliver the goods safely, undamaged, and without loss to the destination indicated. So long as the goods are in the custody of the carrier, he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agents and servants.

The very act of failing to provide the warranted services and inadequacies in services falls within the scope of 'deficiencies in services' and 'unfair trade practice' as defined under the Consumer Protection Act, 1986.

We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite party. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite party.

In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.

Hence the prayer is partly allowed as follows:

1. The Opposite Parties shall refund the amount of Rs.8500/-along with interest within 30 days of the receipt of the copy of the order being the amount paid by the complainant to the opposite parties.

2. The Opposite Parties shall pay the complainant Rs.19,617/- as compensation for loss caused to the complainant being the replacement and repair charges.

3. The Opposite Parties shall also pay the complainant Rs.5,000/- towards the cost of the proceedings.

The above-mentioned directions shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.

Pronounced in the Open Commission on this 21^st day of October 2022

Sd/-

D.B.Binu, President

Sd/-

V.Ramachandran, Member

Sd/-

Sreevidhia T.N., Member

Forwarded by Order

Assistant Registrar

y OrAPPENDIX

C.C.No. 91/2021

Order dated 21.10.2022