State Consumer Disputes Redressal Commission
Gopinath vs Comfort Logistics on 25 May, 2023
1
Appeal No.527/2021
Date of filing:20.07.2021
Date of Disposal:25.05.2023
BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL
COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 25th Day of May 2023
PRESENT
Mr. K B SANGANNANAVAR: JUDICIAL MEMBER
Mrs.M.DIVYASHREE : LADY MEMBER
APPEAL NO. 527/2021
1. Gopinath,
S/o S.Sreerama Setty,
Aged about 68 years.
(Party in Person)
2. Indira Gopinath,
W/o Gopinath,
Aged 61 years,
Both R/a 1273,
Saimandiram Road,
1st F Main, Girinagar 2nd Phase,
Bengaluru-560085.
Rep. by Gopinath. ........ Appellants
-Versus-
1. Comfort Logistics,
Nagaraju.
(By M/s KNS Legal, Adv. for R1)
2. Zuhal Pack International Company WLL,
2
Appeal No.527/2021
Both C/o Rep. by Comfort Logistics,
Nagaraju 401/11KH3,
Ursav (Celebration) CHS,
Vastu Vihar,
Sector 16 and 17,
Karghar, Navi,
Mumbai-410210.
3. Nanda Kumar,
MD,
Jubilee Shipping and Forwarding Co.,
No.8/7, 1st Cross,
ITC Colony, Jeevanahalli,
Bangalore-560005.
4. Freight Systems (India) Pvt. Ltd.,
No.506, 4th Floor, 139,
Airport Road, Kodihalli,
Bangalore-560008.
Rep. by Manager. ........ Respondents
ORDER
BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER
1. This is an appeal filed by Complainant Nos.1 and 2 in CC/810/2018 on the file of III Additional Bangalore Urban District Consumer Disputes Redressal Commission, Bengaluru aggrieved by the order dated 06.03.2021.
2. The Commission examined grounds of appeal, impugned order, appeal papers and heard appellant no.1/complainant no.1 who is party in person and counsel for R1 and now the point that would 3 Appeal No.527/2021 arise for our consideration is whether the impugned order passed by Commission below call for an interference for the grounds set out in the appeal memo?
3. Record discloses that OP Nos.1, 2 and 4 were placed exparte, while Nanda Kumar, MD, Jubilee Shipping and Forwarding Company, arrayed as R3 in this appeal alone represented before the Commission below.
4. It was the case of the complainant nos.1 and 2, having their residence at Doha, State of Qatar availed services from OP2 for packing and relocation services to be provide on door to door basis that goods will be delivered and re-assemble at Bangalore and they agreed to provide such services, goods were shipped on 13.04.2016 through their agents and in this regard complainant nos.1 and 2 were asked to declare their goods for the purpose of free insurance worth QAR 10,000/-, without premium payment of their contracted Insurance Company.
5. The complainants during course of inspection of cartons, raised objections as cartons partially opened and spilling of items at Bonded Warehouse, Bengaluru and found nobody responded on behalf of OP2. As OP2 at Doha failed to take favorable action in this regard as such raised complaint to pay Rs.99,999/- 4 Appeal No.527/2021 compensation and cost of litigation of Rs.15,000/- while OP3 contends, as he is represented logistics and shipment agency yet has been wrongly impleaded to this complaint and denies all the allegations made in the complaint, sought for dismissal of the complaint.
6. It is found from enquiry conducted by the commission below first complainant is the husband of complainant no.2 and he filed affidavit evidence along with 10 documents to substantiate their case to prove the rendering of deficiency in service on the part of Ops, while OP3 has filed his affidavit evidence in support of his version and the Commission below received documents including Certificate under Section 65(B) of the Indian Evidence Act in respect of the electronic records produced by the complainant and similar such Certificate also received from OP3 Mr.Nanda Kumar, MD and got marked copy of e-mail thereby allowed the complaint in part, dismissed complaint of complainant no.1 and allowed the complaint of complainant no.2, thereby directed OPs to pay Rs.15,000/- towards cost of damaged goods, Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation within 60 days. It is this order being challenged in this appeal contending that the Commission below wrongly dismissed the complaint of 5 Appeal No.527/2021 complainant no.1 and failed to appreciate materials on record, further awarded meager amount of compensation and failed to assess damages caused to the goods shipped on 13.04.2016.
7. It is not in dispute that complainant nos.1 and 2 are husband of wife and they together filed complaint on the ground as they availed services of OP2 for packing and relocation from door to door basis shipped on 13.04.2016 to re-assemble at Bangalore. It has come in the enquiry that Ex.P1 to Ex.P8 speaks about the transaction held in between complainant no.1 with the aid of complainant no.2 with Ops and in such circumstances, when complainant nos.1 and 2 are husband and wife, dismissal of complaint of complainant no.1 has to be held either perverse or arbitrary does not sustainable. Further to be recorded herein that filing of complaint by husband and wife has to be construed as a single complaint considering the services availed by them from OP2 and not a joint complaint as held by commission below. As such contentions of complainant no.1 that dismissal of complaint of complainant no.1 is unsustainable could be acceptable. In other words, complainant no.2 being wife of complainant no.1 has to be construed better half and their complaint has to be held a complaint, not a joint complaint. In such view, the finding of the 6 Appeal No.527/2021 Commission below, dismissal of complaint of complainant no.1 is liable to be set aside.
8. Let us come to examine on the grievances of complainant as to awarding of compensation. It is found from enquiry, the first complainant being husband of complainant no.2, submitted his affidavit evidence and had placed as many as 09 documents along with a Certificate under Section 65(B) of Indian Evidence Act to consider electronic records produced by him. They are Ex.P7 the downloaded extract of WhatsApp chats since 2016 with Mr.Nagaraju of Comfort Logistic and Jubilee Shipping Eetal which is I 3 parts. i.e., I WhatsApp chats extract with Cargo agent Nagaraju, II WhatsApp extract with Nandakumar, III WhatsApp extract with Cargo Venugopal employee of Nandakumar, Ex.P8 the email message of Comfort Logistic confirming their Bangalore address and Ex.P9 the photos of crushed and broken artifacts, items and machineries delivered to complainant from complainant mobile. Further the downloaded copy of the image containing those photos with the Certificate under Section 65(B) were not at all considered by the Commission below in right spirit of consumer laws. It has also come in the enquiry from the copy of the custom duty on transfer of residence TR on TV at 35% was paid by 7 Appeal No.527/2021 complainants, no doubt is a downloaded from complainant's mobile as per Ex.P6 was not taken in to account while assessing just compensation towards damage caused to goods. He has produced Ex.P4 the challan no.1095 issued by the customs and central excise office in the name of complainant no.2 for having collected custom duty. Thus, we found from the impugned order although these documents were produced before the Commission below, were not considered properly while awarding damages caused to the goods shipped availed services of OP2 from door to door are re-assembling at Bangalore and wrongly held complainants have not furnished details of cost of damaged goods and held damaged goods must have some value, as such awarded Rs.15,000/- which in our view considering the materials placed could be held not proportionate to the damaged caused to the goods shipped availing services from OP2. In other words such award could be said improper and not just compensation. In this regard, besides contents of affidavit sworn in by first complainant, as husband of complainant no.2, having been transacted with OPs have paid custom duty on transfer of residence TR on TV at 35%. He has produced delivery receipt issued by Comfort Logistics namely OP1 dated 16.05.2016, wherein could see signature of complainant no.1 being received at delivery address. This 8 Appeal No.527/2021 document is marked as Ex.P5, while Ex.P6 is the custom duty paid by him at Rs.13,000/-. He has produced photos showing crushed and broken artifacts, items, machineries taken from his mobile. According to complainants damages to goods shown in photographs are proved beyond doubt, when goods were in care and custody of OP4 and since OP3 stand in of OP1 after custom clearance are liable to compensate for the damages caused to Mont Blanc Eyewear or optical frame which was a special with concentric twisted circles. Item is supposed to last for decades, its golden colour and sturdy body was very special. 'Mont Blan' frame costed QAR1,520 (around INR 30,000/-) and broken glasses QAR580, (around INR 11,600). The details were produced which is recognized by the E-Cash Memo and Credit Card payment extracts. Further many plates, kitchen items were crushed and powdered inside cartons despite protective plastic paper pickings. The fancy hands-free was rare item then unlike nowadays. Cute Vacuum Cleaner, Electronic Sandwich maker Toast and Snack, Thermal Carafe of European or Japanese make/origin were maintained as it they are new. They are broken into two or multiple parts. According to complainant no.1, 50 photos were taken and shared with OP Nos.1, 2 and 4 during 2016-18. These articles were antique pieces treasured for years, small ornamental 9 Appeal No.527/2021 pieces which have not got attributable valuation including revered books as a lover of ancient and mythological history of India. Small and cute items bought in UK, Europe and other Middle-East nations during official sojourns were lost without trace or care could have been considered by the commission below, since they have attached their sentiments to all these articles which cannot be valued in terms of money. Further it would be appropriate to make mention below the lost and damaged items for better understanding:
9. Table of lost and damaged items produced in detail with Indian Rupees as under:-
# Details App. INR
1 Crushed and broken MB147 with 42,000
prescription glasses both high end
ones
2 Thermal Karage Zojir 5,000
3 Sandwich Maker 5,400
4 Sanyo Vacuum Cleaner 12,000
5 Electric Rice Cooker 4,000
6 Dunlop Cricket Balls 1,000
7 Lunch Box 1,000
8 W/Melon Hangers 750
9 Self Pic Monopad+Rem 2,500
10 2 Cassette Holders 1,000
11 Iphone Holder 1,000
12 Rare books bought and exchanged in Invaluable and
10
Appeal No.527/2021
Qatar related to concept of Indian gods irreplaceable, a must and ancient gods of Babylonia and read for those in Syria etc., American literary search of knowledge authorities and library, all in compare to India 13 Loss in 3D ready, Computer enabled 20,000 cute TV used with love and care 95,650 plus
10. Thus from the above tabular, according to complainants, have sustained such loss in one aspect but other would be of their sentimental attachment to lost and cursed items for in human behavior need to be considered. He has produced cash memo to substantiate payment made to Mont Blanc, MB 147, E69, 57 at the price of QAR 1,520/-. He has also produced card extract statement for having paid to Mont Blame Eyewear was not considered by the Commission below. Household goods of descriptive inventory of OP2 could be seen from enquiry file dated 02.04.2016 with description and complainants placed affidavit evidence placed photographs received a Certificate under Section 65(B) of Indian Evidence Act and produced bill for having been paid for QAR 9,750/- to OP2 to avail door to door charges to India 9.40 CBM and issuance of receipt to that effect by OP2 which been not denied by OPs since OP Nos.1, 2 and 4 placed exparte while OP3 alone contested the complaint denying allegations which was 11 Appeal No.527/2021 not rightly accepted by the Commission below holding OPs liable to pay compensation towards cost of damaged goods for the assigning damage at Rs.15,000/-, Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation and dismissal of complaint against complainant no.1 requires modification considering the materials placed on record by complainant nos.1 and 2 through complainant no.1 were not perceived in right perception by the Commission below keeping in mind the Doctrine of Proportionality to the damages caused to the antique pieces crushed while in transit or in providing services from door to door service with proper care and caution which amounts to rendering deficiency in service, is liable to be dealt under Consumer Laws.
11. First complainant would submit, books of vintage, published by American and Beirut Universities, written by eminent Scholars not delivered cannot be considered, since no proof is produced to show that such books of vintage were shipped. Even we could not find production of credit statement, receipts or photos as the case may be to consider on the lost or destroyed books. We have also examined WhatsApp extracts coupled with Section 65(B) Certificate in respect of the chats in between first complainant and the concerned OP namely with Mr.Nagaraju of Comfort Logistic 12 Appeal No.527/2021 and Jubilee Shipping Eetal since 2016 sufficient to believe the complaint of complainants as to the damages caused to the goods shipped. In such view we have to hold OPs are liable under Consumer Laws to redress the grievances of complainant nos.1 and 2, since they have failed to rebut goods shipped by complainant nos.1 and 2 were reached to their resident at Bangalore intact without causing any damages. In our view, as cost of Rs.99,999/- is claimed towards damaged goods, which cannot be acceptable as it is and in such view by evaluating all the materials on record, it would be just and proper to award Rs.50,000/- as against Rs.99,999/- claimed and Rs.25,000/- as compensation for mental agony and physical inconvenience since Ops failed to redress the grievances at right time made the complainants to approach consumer forum and even this Commission in appeal made to spend money not only towards miscellaneous expenses but TA and DA as such if an amount of Rs.15,000/- would be assessed to meet litigation and other expenses would meet the ends of justice.
12. First complainant submits that in Patel Roadways v. Birla Yamaha Ltd., AIR 2000 SC 1461 wherein the 'Carrier' is considered as 'insurer' and there is not even a need to prove his 13 Appeal No.527/2021 default and in M/s Harmeet Toys Agency v. Deccan Queen Transport Company on 04.12.2014 in First Appeal No.419/2009 at Delhi State Consumer Disputes Redressal Commission, followed the decision of the Supreme Court in Ghaziabad Development Authority v. Balbir Singh (2004) 7 CLD 861 (SC) explained the word compensation appearing in Section 14(i)(d) of the CP Act, 1986 as follows. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law. were been followed while assessing compensation.
14Appeal No.527/2021
13. In view of the above such conclusion, we proceed to allow the appeal. Consequently, set aside the order dated 06.03.2021 passed in CC/810/2018 on the file of III Additional Bangalore Urban District Consumer Disputes Redressal Commission, Bengaluru and in the result proceed to allow the complaint filed by complainant no.1 and 2 in part and directed OP Nos.1 to 4 to pay Rs.50,000/- as damages, Rs.25,000/- as compensation for causing mental agony and physical inconvenience and Rs.15,000/- as cost of litigation within 60 days, failing which the amount so ordered shall carry interest @ 08% p.a. from such date till realization.
14. Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH*