State Consumer Disputes Redressal Commission
Garg Domestic & International Packers vs Dr Swapan Kumar on 30 November, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 237 of 2015 Date of Institution : 17.09.2015 Date of Decision 30.11.2015 Garg Domestic & International Packers & Movers, 168/3, P.W.T., Mani Majra, Chandigarh through is proprietor Vikas Garg. ......Appellant/Opposite Party Versus Dr. Swapan Kumar Chakraborti, C/o Sh. Satrajit Chakraborti, House No.B-50, CSIO Colony, Sector 30-C, Chandigarh. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Deepak Aggarwal, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for the respondent.
PER MR. DEV RAJ, MEMBER This appeal is directed against an order dated 05.06.2015, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-
"In the light of above observations, we are of the concerted view that the OP is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the OP, and the same is allowed. The Opposite Party is directed to:-
[a] To refund the total amount of Rs7,02,139/- along with interest @9% p.a. from the date of the loss i.e. 02.05.2012, till it is paid;
[b] To pay compensation of Rs.25,000/- on account of deficiency in service;
[c] To pay Rs.10,000/- as cost of litigation;
The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] from the date of loss i.e. 02.05.2012 till it is paid & [b] of para above from the date of institution of the complaint till it is paid, apart from cost of litigation of Rs.10,000/-."
The facts, in brief, are that the complainant retired as Deputy Director from Thapar Centre for Industrial Research and Development, Yamuna Nagar, on 31.03.2012. After retirement, he planned to settle in Bangalore. He availed of the services of the Opposite Party, for shifting his household goods, and a car. According to the complainant, the goods as also the car, were booked by the Opposite Party, on 29.04.2012, vide consignment notes No.35 and 36 respectively, for safe transportation to Bangalore. The total amount to be paid was Rs.59,000/-, out of which the complainant paid a sum of Rs.47,000/- and the balance amount of Rs.12,000/- was to be paid at Bangalore, on delivery of the said goods and car. It was stated that, on the night intervening 02.05.2012/03.05.2012, the truck bearing registration number HR-67A-2479, carrying the goods of the complainant, caught fire, at Panipat, which was controlled after great efforts. F.I.R. No.332 dated 05.05.2012 Annexure C-8, was lodged with the Police at Police Station Panipat, Haryana. The complainant also supplied the list of items/goods, which were in the said truck, and stood destroyed in the fire, to the Opposite Party.
It was further stated that when the complainant read the consignment note to lodge the claim, he found that the Insurance Policy number was not mentioned therein. He requested the Opposite Party, to provide the name and address of the Insurance Company, as well as the Policy number, so that the claim could be lodged by him, but it failed to do so. It was further stated that, in those circumstances, the complainant availed of the services of a duly qualified Surveyor, and Loss Assessor, Sh. Surender K. Singla, who vide his report dated 28.05.2012, assessed the loss to the tune of Rs.7,02,139/-When the complainant asked the Opposite Party, to pay the amount aforesaid, as per the report of the Surveyor and Loss Assessor, towards loss of the goods, booked with it, as also compensation, it failed to do so. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the amount of Rs.7,02,139/-, assessed by the Surveyor, and Loss Assessor, towards the loss of household goods, referred to above; compensation, to the tune of Rs.10 lacs, for loss of intellectual property, deficiency in service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.55,000/-.
The Opposite Party, in its written version, admitted that the goods, in question, were booked by it, on 29.04.2012 for transportation to Bangalore. It was stated that the complainant had not paid the entire amount and had paid only Rs.47,000/- to the Opposite Party. It was further stated that a statement was made by the complainant, in the consignment note dated 29.04.2014 (Annexure C-2) to the effect that "at owner risk, insurance". It was further stated that the complainant had stated that he had insured the consignment with the Oriental General Insurance, vide Policy No.Nil, dated 30.04.2012, for which he had paid an amount of Rs.13,500/- for a risk covered to the tune of Rs.4,50,000. It was further stated that the complainant had tried to shift the burden of insurance, upon the Opposite Party, and had alleged that it (Opposite Party) had received money for the same (insurance) to get the risk covered. It was further stated that the complainant told the Opposite Party that although he had paid an amount of Rs.13,500/- as premium, to an agent of the Oriental General Insurance Co., towards risk cover of his goods valued at Rs.4.50 lacs, but, at the same time also told that, in case, if he did not receive the Policy, in that eventuality, he will pay Rs.12,000/- to it (Opposite Party), towards insurance of the said goods. It was further stated that the complainant had not paid insurance charges to any agency, including the Opposite Party, in respect of the goods, in question, as a result whereof, he failed to produce any cover note, in respect of the same (insurance). It was further stated that Annexure C-11 was an incomplete document, prepared on the instructions of the complainant. It was further stated that even the report of the Surveyor was flimsy and sketchy. It was further stated that, apart from that the claim of the complainant was also imaginary and flimsy because as per the complainant's own version, in the complaint, risk covered was for Rs.4.5 lacs, under the alleged Insurance Policy, whereas, on the other hand, he sought claim, to the tune of Rs.7,02,139/-. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint and repudiated those, contained in the written version of the Opposite Party. It was stated that the amount charged by the Opposite Party, also included the insurance and it was required to it, to get the items insured. It was denied that the complainant ever received Rs.7 lacs, from any Insurance Company.
On the other hand, the Opposite Party, filed reply to the rejoinder by way of the affidavit, whereby it reiterated the averments made in the written statement. It was stated that the complainant, in his statement, before the JMIC, Panipat had specifically stated that he had received Rs.7 lacs, from the Insurance Company, which fact was concealed by him, from the District Forum and, as such, the complaint is liable to be dismissed, on this ground alone.
The Parties led evidence, in support of their case.
After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.
It is evident on record that the respondent booked his household goods vide consignment note no.35 dated 29.4.2012 (Annexure C-2) with the appellant, from Yamunanagar to Banglore. As per consignment note, freight inclusive of toll tax and ST charge was in the sum of Rs.44,000/-. The goods were said to be insured with the Oriental General Insurance covering risk of Rs.4,50,000/-. As is evident from Annexure C-1, respondent paid a sum of Rs.47,000/- in cash which included insurance premium and the balance Rs.12,000/- was payable at Bangalore. The respondent also booked his three years old car vide consignment note No.36 dated 29.4.2012 and the freight was Rs.15,000/-. While there is no dispute regarding delivery of car, the truck carrying household goods caught fire at Kabri Road, Panipat, FIR for which was lodged by the driver on 3.5.2012 and by the respondent also on 5.5.2012 (Annexures C-5 and C-8 respectively). The Surveyor in his report has stated that the Truck was parked under the public electricity line. Parking of vehicle at such a place was fraught with risk. The respondent has specifically averred that he lost his intellectual property, which cannot be equated in terms of money. Research Reports and papers, thesis and books were badly burnt. The respondent made his own assessment of loss to the tune of Rs.21,40,900/-. The Surveyor appointed by the respondent stated that since the Insurance Cover was not available, an independent survey was conducted for the purpose of assessment of loss of the burnt household goods etc. and as per assessment, the loss was assessed in the sum of Rs.7,02,139/-.
It is the case of the respondent that the appellant did not provide the Insurance Policy number/details to enable him to lodge the claim with the Insurance Company. The case of the appellant is that notice required under the Carriage by Road Act, 2007 was not given and the risk covered was Rs.4.5 Lacs whereas the District Forum allowed claim of Rs.7,02,139/-.
First coming to the objection raised by the Counsel for the appellant that the respondent in terms of Section 16 of the Carriage of Road Act,. 2007, did not serve notice in writing of the loss or damage to the consignee. It may be stated here that in the present appeal, the respondent has moved an application for placing on record copy of legal notice, postal receipts and the acknowledgement by way of additional evidence. Vide order dated 9.11.2015, application aforesaid was allowed and documents marked as Annexures C-13 to C-15, were taken on record. Annexure C-13 is the legal notice dated 08.06.2012 sent by the respondent to the appellant through registered A.D. vide postal receipt (Annexure C-14), which the appellant duly received vide acknowledgement receipt (Annexure C-15). The consignment was sent on 30.4.2012 as is evident from Annexure C-2 and the truck containing the same caught fire when it was parked at Kabri Road, Panipat, FIR for which was lodged by the driver on 3.5.2012 and by the respondent on 5.5.2012. The legal notice (annexure C-13) is dated 8.6.2012 i.e. well within the stipulated period of 180 days from the date of booking of the consignment. In this view of the matter, when the appellant duly received the legal notice (Annexure C-13), its objection, to this effect, is unsustainable and stands rejected.
The next question, which falls for consideration, is, as to whether the Forum was right in allowing the claim at Rs.7,02,139/- or since the risk covered as per consignment note was Rs.4.5 Lacs, the Forum erred in allowing the claim of Rs.7,02,139/-. It has been stated by the appellant that the respondent in Para 6 of the complaint stated that risk covered under the insurance was Rs.4.5 Lacs. The contents of Para 6 of the compliant read as under:-
"6. That the complainant asked the OP to pay for the damaged items but he said that the goods were duly insured as mentioned in the consignment note. The complainant carefully read the consignment note no.35. The name of insurance company was mentioned as Oriental General Insurance date 30.4.2012, policy no. nil, Amount Rs.13,500/-, Risk Rs.4,50,000/-. The complainant asked the OP to provide the policy number and the address of the insurance company so that the claim be filed. The OP failed to provide the said details.
Perusal of above reveals that it was the appellant, which stated that the goods were duly insured but it did not provide the Policy number and address of the Insurance Policy. Apparently, the consignment note was prepared by the appellant and before making mention of insurance, it was obligatory on its part to ensure that the same was in-fact obtained from the Insurance Company and when the respondent asked for the same, it ought to have provided details of the same to the respondent but it failed. This was despite the fact that amount towards insurance was paid by the respondent (Annexure C-1). The District Forum in Para 10 of the order observed that there was no proof to fortify the fact that the appellant provided information regarding Policy to the respondent and the appellant tried to shift the burden upon the respondent by stating that he (respondent) was to get the household goods insured and was supposed to handover the Insurance Policy to the appellant but he failed. The District Forum has held that GR No.35 reflected that the appellant had charged for the insurance too, so, it could not escape the liability on account of any untoward incident and the appellant was, thus, negligent in not getting the household goods insured through the Insurance Company, despite charging for the same. The appellant was, thus, clearly deficient in rendering service by not paying the claim amount due to loss of goods by fire.
When the appellant did not obtain the insurance cover, the quantum of risk covered shown in the consignment note, is of no significance. Under these circumstances, there was no option with the respondent except to avail the services of an independent Surveyor for assessment of loss, who submitted his detailed survey report dated 28.05.2012, assessing the net loss to the tune of Rs.7,02,139/-, as against the claim amount of Rs.21 Lacs by the respondent. The following extracts from the survey report, being relevant are reproduced hereunder:-
"1.12Since Insurance coverage was not available either with the packers and movers or with the Party, so an independent survey was conducted as per the request of the Party for the purpose of assessment of loss of the burnt household goods etc. 1.21 The Party visited at Panipat on 11.05.2012 alongwith his family and friends. Thereafter, we visited to the Police Station, Model Town, Panipat along with the Party and met ASI Sh. Kashmira Singh and the matter was discussed with him regarding survey of the burnt material of the household goods etc. 1.30 During the course of our survey, we observed that beside above, there were heaps of semi burnt papers which were not identifiable. We further tried to found out the nature and type of such papers. We found that most of these were valuable research and thesis papers and documents. It is not possible for us to prepare the list of such papers. Hence, we did not consider the same while assessing the loss.
1.31 After concluding our survey, it was amicably decided among the Party, driver and owner of the truck no HR-67A-2479 who was the representative of the packer's and movers that the salvage of the burnt household items is to be sent in the office of the packers and movers at Chandigarh. So, the salvage of the burnt household goods was loaded in a truck no. HP-12A-9640 and sent to Chandigarh. During the course of loading of salvage of the burnt items, we have taken a few photographs.
4.52(2)The company has not insured the goods despite charging insurance premium from me.
(3)the company had agreed to send only our household goods in a closed container but we found on the spot that the truck carried iron goods of Bhusan Steel, Chandigarh.......
4.61 The Tribune has on 05.05.2012 published the news of the incident under the heading "Cargo Company's negligence costs scientist dear".
4.62 The report states that Household goods worth lakhs of rupees and several important documents were destroyed as the truck carrying these goods caught fire. The goods belonged to Dr. S. K. Chakrabarti, who was shifting base from Yamunanagar to Banglore after his retirement.
4.70 Our Finding:-
4.72 We tried our level best to know about the cause of fire. After enquiry, we could not get any concrete evidence about the cause of fire but we noticed that the said truck was parked under the public electricity line and it may be possible that in the night, there may be some heavy winds flow and electric wire may touch each other and spark may come out and fallen on the tarpaulin on the truck which may be the cause of fire.
6.31 Part-1 (Household Goods):-
We asked the party to provide the supporting price evidence of the burnt household goods other than books which are indentified during the course of our survey so that we can assess the loss.
xxxxxx After going through the above stated purchase bills and quotation, we found that for a few items like tube light fitting, plates, steel rack, flowerpot stand, Plastic bucket, sofa set (five seater) and corner stand, the supporting price evidence is not provided by the party. For the purpose of assessment of loss, we have made an enquiry from the open market and taken the fair market price of these items.
During the course of our survey, we found 50 Pcs of art material of different size. The party did not have the complete bills of these art pieces. However, the party has given bill no.279 dated 11.10.11 of Bone Raja ram painting for Rs.4500.00. We have no option but to take lump sum value of art pieces as Rs.75000.00 against the demanded Rs.200000.00 by the party.
In regard to assessment of loss of CD/DVD, we feel that the party has taste for classic music and had good collection of legendary signer/artist. We found 400Cd/DVD at the time of survey. Half of 400 i.e. 200 Pcs were classic and rest were non classic. The party provided that quotation of Gulam Ali etc. Based on this quotation and market enquiry, we have taken Rs.200.00 per CD and for rest non classic Rs.50.00 per CD. Hence, total value of burnt CD/DVD comes to Rs.50000.00 During the course of our survey, we noticed that there was a huge quantity of clothes which was converted into ashes and semi burnt heap. It was not possible for us to count the same. The party demanded in his claim for clothes for Rs.350000.00. There is no doubt that the party has a reputed status and has retired as scientist from the reputed origination. So, keeping the status of the party and in the absence of counting the pieces of clothes, we considered a lump sum value for old and new clothes amounting to Rs.100000.00.
In view of the above, we have prepared an excel sheet for the purpose of assessment of loss. Copy of Excel Sheet is enclosed and marked as Annexure-6.03 of our report.
As per this sheet, the gross loss for household goods other than Books comes to Rs.406795.00.
Part-IIA-(Books with supporting evidence):-
xxxxx On the basis of quotations converted into INR, we have prepared an excel sheet for the purpose of assessment of loss of Books. Copy of the same is enclosed and marked as Annexure-6.06 of our report.
As per above said excel sheet, the gross loss for Books supporting with quotations comes to Rs.302374.00."
The Surveyor after reducing salvage value of Rs.7,030/-, assessed the loss as under:-
Household Goods - Rs.4,06,795.00 Books Part IIA - Rs.3,02,374.00 Rs.7,09,169.00 Less Salvage value- Rs. 7,030.00 Rs.7,02,139.00
As regards statement of the respondent before the JMIC, Panipat, wherein he stated that he has received an amount of Rs.7 Lacs from the Insurance Company, the Counsel for the respondent, during arguments, stated that before making of the above statement by the respondent, the District Forum had earlier vide its order dated 18.12.2012 had allowed the complaint directing the appellant to pay the amount of Rs.7,02,139/-. The Counsel stated that the respondent by misconstruing the relief granted by the District Forum vide the aforesaid order had inadvertently stated before the JMIC, Panipat that he had received the claim from the Insurance Company. It is relevant to note that the statement before the JMIC, Panipat was made by the respondent on 05.09.2013 i.e. after District Forum order dated 18.12.2012. The District Forum rightly observed in Para 13 of its order dated 05.06.2015, as under:-
".......We feel that as this matter is still subjudice and the concerned Court has not given its opinion with regard to the merits of the evidence that the Opposite Party has preferred to rely on in its favour. We are constrained to follow the pleadings of the OP for the reason that the statement of the complainant has not been appreciated as an evidence by the competent Court and such statement alone cannot be the basis of pleadings as well as the same cannot be appreciated as an evidence until and unless the Criminal Court before which the statement was suffered has not given its opinion about it while passing a final order. The complainant on its part has placed on record the copy of his bank statements to show that he has not received the amount of Rs.7 lacs from any Insurance Company as claimed by the OP whereas it was incumbent upon the OP to place on record a cogent, reliable and trustworthy evidence to prove its pleadings and falsify the bank statements of the complainant. As the OP has failed to place on record any believable document, therefore, the claim of the OP that the complainant has received the insured amount against the loss of his household articles sounds hollow and deserves to be outrightly ignored."
The appellant, despite receiving insurance premium from the respondent, failed to produce the Insurance Policy, in absence of which, its contention that the value of the goods booked was Rs.4.5 Lacs, is of no significance. When there was no insurance, there was no question of any claim or restricting the claim to Rs.4.5 Lacs. The claim to the extent of Rs.7,02,139/- was duly assessed by the approved surveyor i.e. Surender K. Singla, Surveyor & Loss Assessor, whose report dated 28.5.2012 is available at Annexure C-11. The appellant, when offered opportunity, could bring cogent evidence to rebut the surveyor report but it failed to do so. Not only this, respondent paid a sum of Rs.47,000/- on transportation and insurance and since the goods did not reach the destination, he incurred loss of Rs.47,000/- also. The fact that respondent lost his intellectual property, Research Reports, papers, thesis, can also not be overlooked. We are, therefore, of the considered opinion that the order of the Forum is just and correct. The District Forum vide the order impugned, rightly directed the appellant to refund the total amount of Rs.7,02,139/- to the respondent alongwith interest @9% per annum from the date of loss i.e. 2.5.2012 till its payment besides Rs.25,000/- as compensation on account of deficiency in service and Rs.10,000/- as cost of litigation. The Forum, was, thus right, in holding that the appellant, was deficient, in rendering service. The order of the District Forum, being legal and valid, is liable to be upheld.
No other point, was urged, by the Counsel for the parties.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no orders as to cost. The order under challenge is upheld.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
November 30 , 2015.
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[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER