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M/S PRAKASH PACKERS & MOVERS vs. MR. CHAITANYA MHATRE dated 2011-04-28

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO.  1667   OF  2007
(From the order dated  14.02.2007  in Appeal No. 1013/2006
of the State Commission, Karnataka)
 
M/S PRAKASH PACKERS & MOVERS
NO.1, PRAKASH COMPLEX,
3RD CROSS, KALASIPALYAM NEW EXTN.,
BANGALORE - 02     
THROUGH  ATTORNEY
SHRI SANJEEV UPPAL                                                               …..  Petitioner
 
Vs.
 
1.     MR. CHAITANYA MHATRE
AKAI CONSUMER ELECTRONICS (I) LTD.
APPLE VILLA, NO.16, IIND FLOOR,
LAL BAGH ROAD,
BANGALORE – 27
 
2.     THE NEW INDIA ASSURANCE CO.LTD.
NO.52, VINAY COMPLEX,
BASAVANGUDI,
BANGALORE – 04                                                                      ….. Respondents
 
 
BEFORE:
 
HON’BLE MR.JUSTICE  V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
 
 
For the Petitioner     :                     Mr. Nikhil Bhardwaj, Advocate with
                   Mr. Sanjay Shah,  Advocate  
 
For the Respondent :    Mr. Chaitanya Mahatre, Advocate
 
 
Pronounced on :  28th April, 2011
 
 
ORDER
 
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
 
          By way of present revision petition, there is challenge to orders dated 9.3.2006, 25.4.2006 and 14.2.2007 passed by District Consumer Disputes Redressal Forum, (Urban) Bangalore (for short ‘District Forum’) and Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ‘State Commission’) respectively.
2.      The brief facts of the case are that respondent No.1/ complainant filed a complaint under Section 12 of Consumer Protection Act, 1986 (for short ‘Act’) seeking compensation of Rs.6 lakhs on the allegations of deficiency in service. 
3.          Respondent No.1 availed the services of petitioner to transport his household articles including the electronic goods from Bangalore to Mumbai.  The said consignment was also got insured.  The consignment left Bangalore on 22.7.2005.  Respondent No.1 had  expected that it will reach Mumbai by 24.7.2005.  But to his great shock and surprise, the consignment reached on 2.8.2005.  When the goods were delivered to him, they were in wet condition and most of the goods including electronic equipments were damaged.  Immediately, he informed the petitioner with regard to the said damages.  There was no proper response.  Respondent No.1 got estimated the said loss and damages through a recognized surveyor.  The repeated requests and demands made by respondent No.1 to the petitioner to settle the claim and pay compensation have gone in vain.  Though, petitioner collected all the necessary transportation charges, but it failed to transport and deliver the said consignment in time and in good condition.  Accordingly, complaint for deficiency in service was filed.  Later on, respondent No.1 impleaded the Insurance Company, i.e. respondent No.2.
4.      On appearance, petitioner filed his version denying all the allegations made by respondent No.1 in toto.  As per petitioner’s defence, the said consignment was transported in a closed container, which reached Mumbai on 24.7.2005.  Petitioner has taken proper care in transporting the said goods, but due to heavy rains the said vehicle was forced to be parked about 20 kms. away from Mumbai.  Rain water gushed into the vehicle and some goods became wet.  Thereafter, the said vehicle was towed, then the goods were delivered on 2.8.2005.  The delay in transportation and delivery of the goods is a Force Majeure not within the control of the petitioner or its driver.  The claim of the compensation is highly exorbitant.  There is no breach of contract or deficiency in service of any kind on the part of the petitioner. 
5.          Respondent No.2, insurance company  also filed its objections stating that they are not liable to pay the said compensation as prayed as it was not given any opportunity to inspect or survey the damaged consignment.  There is a breach of agreement on the part of respondent No.1 himself.   The said goods were under the custody of the petitioner and they got damaged  due to mishandling and negligence, for which respondent No.2 cannot be blamed. There is no deficiency in service on the part of respondent No.2. 
6.          District Forum, vide order dated 9.3.2006 allowed the complaint in part.  Petitioner and respondent No.2 herein, were jointly and severally directed to pay Rs.65,000/- to the complainant, together with a cost of Rs.5000/-.
7.          Being dissatisfied with the order of District Forum, petitioner filed appeal (No.1001/2006) before State Commission, which vide its order dated 25.4.2006, dismissed the appeal of the petitioner. The operative part of the order reads as under :
“It is not in dispute that the complainant got insured the goods with OP No.2.  If that is so, OP No.2 would satisfy the award as the policy covered the risk. Therefore, we find no reason to interfere in the impugned order.  With this observation, we pass the following :
ORDER
Appeal is dismissed.”
8.          Respondent No.2 – New India Assurance Co. Ltd. had also filed a separate appeal (No.1013 of 2006) challenging the order dated 9.3.2006 passed by District Forum.  The State Commission vide its order dated 14.2.2007, modified the order of District Forum as under :
“1.   Opposite party No.1/Carrier is directed to pay Rs.65,000/- to the complainant with cost of Rs.5,000/-.
2.     This order is to be complied with within two months from today, failing which opposite party No.1 shall be liable to pay interest at 9% p.a. on Rs.65,000/- from 2.8.2005.
3.  Opposite party No.2/Insurance Co. has deposited a sum of Rs.32,500/- in this appeal before this Commission.  Office is directed to refund the same to opposite party No.2, if a memo is filed to that effect.”
9.          In view of the above two orders passed by the State Commission, it is contended by ld. Counsel for the petitioner that  above orders passed in the appeals are contradictory.
10.    The other contention of ld. Counsel for petitioner is that the fora below did not consider the fact that as per G.R. issued by the petitioner, the goods were transported entirely at the owner’s risk and petitioner is not responsible for any loss damage caused to the goods even by wet condition. 
11.          Lastly, it is contended that goods were insured by respondent No.1 himself, with respondent No.2 and thus, the liability if any, is of the respondent No.2 only.  
12.    As per record, present petitioner as well as respondent No.2,  New India Assurance Co. Ltd., have filed separate appeal against the order passed by District Forum.  The State Commission has given contradictory findings in these two appeals.  In the appeal filed by the petitioner (No.1001 of 2006), the State Commission has directed that respondent No.2 - New India Assurance Co. Ltd. would satisfy the award as the policy covers the risk.  Whereas, in appeal filed by respondent No.2 herein (No.1013 of 2006), State Commission directed respondent No.1 - Carrier to pay Rs.65,000/- to the complainant with cost of Rs.5,000/- and at the same time, it also directed that a sum of Rs.32,500/- deposited by respondent No.2, New India Assurance Co. Ltd., be refunded to it.
13.    In view of the contradictory findings given by State Commission in appeal (No.1001 of 2006) and appeal (No.1013 of 2006), the present revision petition filed by the petitioner is accepted and impugned order is set aside and matter is remanded back to the State Commission for deciding above mentioned two appeals a fresh by common order, in accordance with law, after hearing all the parties.
14.    State Commission shall make endeavor to dispose of the above two appeals, within a period of four months after the parties appear before it.
15.          Parties are directed to appear before the State Commission on 23.5.2011.
……………………………J.
(V.B. GUPTA)
PRESIDING MEMBER
 
 
……………………………...
(SURESH CHANDRA)
MEMBER
 
Sonia/
 
 
                                                                                                                                                                                                                                                                                                                                                                           
        
 
 
 

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