SHRI. M.V. VISWANATHAN: JUDICIAL MEMBER
The appellant was the complainant and respondents 1 and 2 were the opposite parties 1 and 2 respectively in OP No. 545/2003 on the file of CDRF, Ernakulam. The complaint was filed alleging deficiency of service on the part of opposite parties 1 and
2. The complainant alleged deficiency of service on the part of the second opposite party National Insurance Company Ltd. in repudiating the insurance claim preferred by the complainant with respect to the damages sustained by him on account of the damage caused to the household articles which were transported from Agra to Tripunithura under the policy insurance issued by the second opposite party/National Insurance Company Ltd. The complainant also alleged deficiency of service on the part of the first opposite party Kerala Transport Company in causing damage to some of the household articles, which were entrusted with the first opposite party for transportation from Agra to Tripunithura. Thus, the complainant claimed a total of Rs. 80,000/- by way of compensation from opposite parties 1 and 2.
2. The first opposite party entered appearance and filed written version denying the alleged deficiency of service. They contended that the damage to the household articles caused due to improper packing of the articles. They also contended that the articles were transported under the risk of the complainant and that the said articles were insured with the Insurance Company for the risks. Thus, the first opposite party Kerala Transport Company prayed for dismissal of the complaint filed against them.
3. The second opposite party/National Insurance Company Ltd. entered appearance and filed written version denying the alleged deficiency of service on their part. They contended that the insurance policy covered theft, non-delivery, road risks and SRCC only and that the damage caused to the insured articles is not covered by the policy. Thus, the second opposite party justified their action in repudiating the insurance claim preferred by the complainant.
4. Before the Forum below, the complainant was examined as PW1 and the Branch Manager of Kerala Transport Company was examined as DW1. Exts. A1 to A6 documents were marked on the side of the complainant and B1 copy of the policy from the side of the second opposite party/National Insurance Company Ltd. On an appreciation of the evidence on record, the Forum below negatived the case of deficiency of service on the part of the opposite parties. Thus, the complaint in OP No. 545/2003 was dismissed vide order dated 11th August 2004. Aggrieved by the dismissal of the complaint, the present appeal is preferred by the complainant therein.
5. We heard the learned Counsel for the appellant/complainant and also the learned Counsel for respondents 1 and 2 (opposite parties 1 and 2). The Counsel for the appellant/complainant much relied on the provisions of Section 9 of the Carriers Act, 1865 and argued for the position that the first respondent/first opposite party, Common Carrier is liable for the damage caused to the household articles, which were entrusted for transportation with the first opposite party/Kerala Transport Company. It is further submitted that the burden of proof is on the Common Carrier to establish that there was no negligence on the part of the carrier in transporting the articles entrusted with the Common Carrier. Thus, the appellant/complainant prayed for allowing the complaint in OP No. 545/2003 and to set aside the impugned order dated 11-08-2004 passed by CDRF, Ernakulam in OP No. 545/2003. On the other hand, the learned Counsel for the respondents 1 and 2 supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal.
6. The points that arise for consideration are:
1. Whether the appellant/complainant can be justified in claiming compensation from the first respondent/first opposite party, Kerala Transport Company for causing damage to the household items?
2. Whether the first respondent/first opposite party Common Carrier has succeeded in establishing its case that the damage was caused to the household articles due to the improper packing of the said articles by the appellant/complainant?
3. Whether the second respondent/second opposite party National Insurance Company Ltd. can be justified in repudiating the insurance claim preferred by the appellant/complainant?
4. Is there any sustainable ground to interfere with the impugned order dated 11-08-2004 passed by CDRF, Ernakulam in OP No. 545/2003?
7. Point Nos. 1 and 2: There is no dispute that the appellant/complainant entrusted household articles with the first respondent/first opposite party Kerala Transport Company for transportation of the same from Agra to Tripunithura. Ext.A2 is the lorry receipt issued by the Branch of Kerala Transport Company Ltd. Agra to the complainant/consignor. A2 lorry receipt/consignment note would show that household articles were entrusted with the first opposite party/Kerala Transport Company Ltd. on 06-01-2000. The endorsement dated 13-01-2002 on the backside of A2 lorry receipt would show the damage caused to the household items. The Branch Manager of Kerala Transport Company as DW1 has admitted the endorsement made on the lorry receipt. DW1 has also admitted that the household articles were entrusted with the branch of the first opposite party at Agra on 06-01-2002 and the items were delivered on 13-01-2002. He categorically admitted that there was endorsement on the reverse side of A2 regarding the damage caused to the household articles. Thus, there is no dispute regarding the fact that the household articles transported from Agra to Tripunithura through the first opposite party as Common Carrier were damaged during transit.
8. The household articles were insured with the second respondent/second opposite party National Insurance Company Ltd. A1 is the policy of insurance issued by the second opposite party insuring the household articles. Admittedly, the damage to the household articles was assessed by the approved Surveyor who was deputed by the second opposite party/National Insurance Company. Ext.A6 is the survey report submitted by the approved Surveyor who conducted survey of the damaged household articles. A6 survey report dated 19-02-2002 would also make it clear that the approved Surveyor inspected the damaged household items on 14-01-2002. As per A6 survey report, the Surveyor assessed the damage caused to 12 items of household articles. The Surveyor has also assessed the total damage at Rs. 9,500/-. After deducting the salvage value of Rs. 1,000/- the net loss has been assessed at Rs. 8,500/-. The Surveyor has also charged his survey fee of Rs. 1,325/- from the appellant/complainant. Thus, A6 survey report would also support the case of the appellant/complainant that 12 items of the household articles were damaged during transit from Agra to Tripunithura.
9. The case of the first respondent/first opposite party, Common Carrier is that the damage to the household articles occurred due to improper packing. But, there is no evidence on record to show that the packing was not proper. It is to be noted that no such endorsement is made in A2 lorry receipt/consignment note. Moreover, if the first opposite party/Common Carrier was not satisfied with the packing of the household articles, it was the duty of the first opposite party/Common Carrier to refuse acceptance of those articles for transportation. It is also to be noted that the complainant as PW1 has categorically deposed that articles were properly packed to the satisfaction of the first opposite party/Common Carrier. So, the case of the first respondent/first opposite party, Common Carrier that the damage caused due to improper packing of the articles cannot be believed or accepted. Moreover, the first opposite party has not succeeded in establishing the aforesaid contention regarding improper packing of the articles. It can only be held that the damage to the household articles occurred due to negligence of the Common Carrier while transporting the articles from Agra to Tripunithura.
10. It is a well settled position that the burden is upon the Common Carrier to establish that there was no negligence on the part of Common Carrier in transporting the goods entrusted for transportation. It is also held by the Honble Supreme Court in M/s Economic Transport Organization etc. Vs. Dharwad District Khadi Gramudyog Sangh reported in 2000 (2) CPR 33 (SC) that the provisions of Section 9 of the Carriers Act can be made applicable to the proceedings under the Consumer Protection Act and that the burden of proof of negligence, in a consumer complaint is on the Common Carrier and that the (complainant) consignor/consignee need not establish negligence on the part of the Common Carrier. But, the Forum below has not considered the aforesaid decision rendered by the Honble Supreme Court in M/s Economic Transport Organizations case (supra). It can very safely be concluded that the damage to the household articles was caused due to negligence of the first respondent/first opposite party, Common Carrier namely Kerala Transport Company. So, the first opposite party is to be made liable for the damage caused to the household articles.
11. The appellant/complainant has claimed Rs. 80,000/- by way of damages/compensation. But, the complainant could not establish his claim for Rs. 80,000/-. Ext.A6 survey report would show that the complainant suffered damages to the tune of Rs. 8500 + 1,325/- (the survey fee paid by the complainant to the Surveyor). Thus, the total damages would come to Rs. 8,500 + 1325 = 9825/-. So, the complainant is only entitled to get the aforesaid sum of Rs. 9,825/- from the first respondent/first opposite party, Kerala Transport Company. These points are answered accordingly.
12. Point No. 3: Ext.B1 is copy of the policy of insurance issued by the second respondent/second opposite party National Insurance Company Ltd. in favour of the appellant/complainant. As per B1 policy, the articles worth Rs. 1,16,200/- were insured by the second opposite party/National Insurance Company Ltd. B1 policy would also show that the insured articles were covered for the risks of theft, non-delivery, road risks, SRCC only. Admittedly, in the present case the insured articles were damaged during transportation from Agra to Tripunithura. But, there was no theft or non-delivery or road risks or SRCC. If that be so, the second respondent/second opposite party, National Insurance Company Ltd. is perfectly justified in repudiating the insurance claim preferred by the complainant with respect to the damage caused to the household articles. The second respondent/second opposite party, Insurance Company is perfectly justified in issuing A4 repudiation letter dated 23-07-2003. So, the second respondent/second opposite party is to be absolved from the liability. There was no deficiency of service on the part of the second respondent/second opposite party, National Insurance Company Ltd. in repudiating the insurance claim. This point is answered accordingly.
13. Point No. 4: The forgoing discussions and the findings thereof would make it clear that the appellant/complainant is entitled to get a sum of Rs. 9,825/- as compensation from the first respondent/first opposite party, Kerala Transport Company for the damage caused to the appellants insured household article. The impugned order passed by the Form below is liable to be set aside and the complaint in OP 545/2003 is to be allowed partly. Hence we do so. This point is answered accordingly.
In the result, the appeal is allowed partly. The impugned order dated 11-08-2004 passed by CDRF, Ernakulam in OP No. 545/2003 is set aside. The complaint in OP 545/2003 on the file of CDRF, Ernakulam is allowed in part. Thereby, the first respondent/first opposite party, Kerala Transport Company is directed to pay a sum of Rs. 9,825/- to the appellant/complainant (consumer) by way of compensation for the damage caused to the household articles which were entrusted with the Kerala Transport Company vide A2 lorry receipt. The second respondent/second opposite party, National Insurance Company Ltd. is found not liable to pay compensation to the complainant as there was no deficiency of service on the part of the National Insurance Company Ltd. The appellant/complainant is also entitled to get Rs. 1,000/- by way of cost from the first respondent/first opposite party, Kerala Transport Company. The aforesaid compensation of Rs. 9,825/- is to be paid to the appellant/complainant within one month from the date of receipt of copy of this judgment, failing which the aforesaid amount will carrying interest at the rate of 9% per annum from the date of the complaint in OP No. 545/2003.