MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the appellant/OP No.5 i.e. National Insurance Company Limited against the order, dated 21.10.2009, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 421 of 2009 vide which, it allowed the complaint and directed OPs jointly and severally to pay Rs.72,000/- towards the loss caused to the goods, Rs.10,000/- for mental harassment and Rs.1300/- as the amount, which was spent by the complainants, on telephone calls, to trace out their luggage ; besides Rs.5,000/- as litigation costs. It was further directed that the OPs shall jointly and severally pay the total amount of Rs.88,300/-, within 30 days, failing which, they were to be liable to pay the same, alongwith penal interest @12% p.a. since the filing of the complaint i.e. 26.3.2009, till its actual payment to the complainants. 

2.         Briefly stated, the facts of the case, are that the complainants are serving in the Indian Air Force. They telephonically contacted OP No.2/respondent No.4, who visited their residence to assess the quantity of luggage of the complainants and to give an estimate regarding the transportation thereof from Chandigarh to Kharagpur. The quotation for transportation of household goods was given by OP No.2 on 21.6.2007, in which, it was clearly specified that the packing, loading and transportation of the household goods, as well as of the car of the complainants shall be made, in a full truck, at a total cost of Rs.37,400/-. In addition, the complainants were required to pay 12.5% tax on the quoted cost. OP No.2 had also taken Rs.200/-, as advance. As mutually agreed, the truck bearing registration No.GJ-18-X-8421, was positioned at the residence of the complainants on 2.7.2007 and the luggage was loaded under the supervision of OP No.2 therein. The consignment note No.121 dated 2.7.2007 was prepared, on which the registration number of the truck was also mentioned.  The truck left from the residence of the complainants, on 2.7.2007, in the evening. It was stated that after the said truck left, complainant No.1, routinely checked, if everything had been loaded. Complainant No.1, was shocked to find that a part of the household goods had been left unpacked and unattended in the garage by OP No.2, and his team. Complainant No.1 immediately brought this fact to the notice of OP No.2. OP No.2 promised the complainants to deliver all the household goods at the destination.  The complainants paid a total sum of Rs.43,775/- (Rs.28,725/- for the household goods, Rs.14,025/- for the car and Rs.1025/- for scooter) through three different cheques, which were encashed on 3.7.2007 i.e. well before the delivery of the goods. It was further stated that OP No.2 had assured to deliver the goods latest by 11.7.2007, and, accordingly, the complainants moved ahead and reached Kharagpur on 9.7.2007, but the goods reached at Kharagpur only on 20.7.2007, in a different truck. The luggage was in a totally damaged condition.   It was further stated that the complainants had to live all this while, without their luggage, which caused them a great mental and physical harassment.  It was further stated that the abovesaid act of the OPs amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.         None appeared on behalf of OPs No.1 & 3/respondents No.3 and 5 despite service. Hence, OPs No.1 and 3, were proceeded against exparte.

4.         OP No.2/respondent No.4 was given several adjournments for filing reply and evidence, subject to payment of costs, but no reply was filed by him. As such, the complaint was adjourned for 14.10.2009, for arguments. On that date, none appeared on behalf of OP No.2. Hence, OP No.2, was also proceeded against exparte.

5.         Reply was filed by the OPs No. 4 & 5 wherein they admitted that the Marine Cargo Specific Voyage Policy was issued by them, for transporting commodities as per the agreed list for their carriage from Chandigarh to West Bengal for the sum insured at Rs.1,50,000/-.  It was denied that the luggage of the complainants arrived in a damaged condition, or that any loss of any nature whatsoever, was caused to the same. It was stated that the complainants never intimated OPs No.4 and 5, immediately, upon detection of any loss, to the goods to enable them to get the survey conducted.  All other allegations, levelled by the complainants, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the OPs and indulgence into unfair trade practice.

6.         The parties led evidence, in support of their case.

7.       The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the order.  

8.            Aggrieved by the order, passed by the learned District Forum, the appellant/OP No.5 i.e. National Insurance Company Limited, Chandigarh, filed the instant appeal. 

9.         We have heard the Counsel for the parties, and, have gone through the evidence and record of the case carefully.

10.       The learned Counsel for the appellant/OP No.5/National Insurance Co.  contended that the learned District Forum failed to take into consideration certain material facts, as a result whereof, it fell into a grave error in fastening the liability on the OP. He further submitted that as per the complainants, they booked the luggage on 2.7.2007 through respondents Nos.3 to 5, which was supposed to reach Kharagpur by 11.7.2007 but it reached there on 20.7.2007. It was further contended that the complainants informed OP No.5 on 29.7.2008 that the goods had suffered damage, during transit, i.e. after more than one year of receipt of the luggage/goods by the complainants.  It was further contended that the claim of the complainants was repudiated by OP No.5/appellant, because the complainants had failed to inform it  immediately on taking the delivery of goods, in damaged condition. It was further contended that on account of unduly belated submission of information by the complainants to OP No.5, regarding damage to their luggage in transit, it was not able to get the survey conducted for assessment of loss. It was further contended that the said act of the complainants was deliberate so that the manipulation made by them could not be noticed by the appellant,  through an independent surveyor & Loss Assessor. It was further contended that moreover the material placed before learned District Forum clearly suggested that the appellant was not afforded any opportunity for getting the loss, if any, assessed, which was mandatory for the settlement of claim and in absence of any such assessment no amount could be paid to the complainants. It was further contended that the complaint was not maintainable against the OP No.5/appellant, as there was no deficiency, in service on its part.

11.       The learned Counsel for the complainants/respondents No.1 and 2, however, submitted that the luggage booked by the complainants was supposed to reach from Chandigarh to Kharagpur on 11.7.2007 but the same reached at Kharagpur on 20.7.2007. He further submitted that the goods were delivered at Kharagpur on 20.7.2007 in a different vehicle bearing registration No. HR-68-A-8777 and that too, in a damaged condition. It was further contended that regarding this, the complainants immediately informed through registered letter to OPs No.1 and 2 about the goods having been received in a damaged condition. It was further submitted that the complainants also lodged an FIR with Police Station, Kharagpur on 21.7.2007, in which the damage caused to the articles was assessed by them to the extent of Rs.72,000/-. It was further contended that although it was the duty of OPs No.1 and 2 to inform the Insurance Company, yet the complainants also informed the Insurance Company, regarding the damaged goods on 29.7.2008. It was further contended that the complainants were not at fault as they had informed all the OPs about the damages caused to the goods and the evidence regarding damage to the goods had also been placed on record by them. It was further contended that the complainants had rightly claimed Rs.5,000/- as room rent and Rs.1300/- being the amount spent on telephone calls besides compensation for mental harassment. It was further submitted that the impugned order is perfectly legal and valid.

12.            Undisputedly, the appellant/OP No.5, Insurance Company was informed regarding damage to the goods/luggage on 29.7.2008 i.e. after more than one year of the receipt of the same, by the complainants. The complainants were required to inform the Insurance Company, immediately, after the occurrence of the incident, in accordance with the terms and conditions of the insurance police Annexure C-12/Annexure R-1. In the instant case, as stated above, information regarding damage to the goods, was given by the complainants to Insurance Company, more than one year after the incident, in violation of the terms and conditions of the policy, as a result whereof, it could not appoint any Surveyor/Loss Assessor, to assess loss, which was caused to the complainants, on account of damage to their goods. As such the appellant Insurance Company was not liable to pay any compensation to the complainants. Similar principle of law was laid down, by the Hon’ble National Commission in First Appeal No.321 of 2005 titled as New India Assurance Company Limited Vs. Trilochan Jane decided on 9.12.2009.

13.            Therefore, we come to the conclusion, that the learned District Forum wrongly held OP No.5/appellant jointly and severally liable to pay an amount of Rs.88,300/- to the complainants. The order of the District Forum qua OP No.5/appellant, being illegal, is liable to be set aside.

14.       For the reasons stated above, the appeal filed by the appellant is accepted. The impugned order passed by the learned District Forum qua OP No.5/appellant is set aside. The parties are left to bear their own costs.

15.            Copies of this order be sent to the parties, free of charge.    

Pronounced.                                                                        

7^th July, 2011.