SHAROKH ENGINEER vs PACKWAYS PVT. LTD.

MR. Sharokh Engineer alleged deficiency in the promised services of Packways Pvt. Ltd. engaged in the service of safe keeping of goods. The Complainant was required to transport his household effects valued at Rs. 9,00,000/- to Bombay from Delhi through the Opposite Party. The O.P.-Packways Pvt. Ltd., is Carrier and Warehouse and had agreed to render necessary service of carrying complainant's household effects from New Delhi to Bombay for a consideration. The complainant entered into an agreement of contract dated 15.4.91 with the Opposite Party for the aforesaid job. The contract is inclusive of insurance coverage for the loss of goods during transit as well as storage for a period of six months. Insurance Policy bearing No. 41505/ 21/26/1/179/91 dated 23.4.91 was issued in favour of complainant. The agreed consideration was fixed as Rs. 84,600/-. The aforesaid facts are not in dispute.

THE Complainant alleged that the Opposite Party transported the aforesaid household effects to Bombay in the month of May, 1991, and stored them in its custody in their warehouse at Bombay. THE complainant was shifting his residence from New Delhi to Bombay and, therefore, had to shift his goods to Bombay and was required to keep them in the custody of the Opposite Party till he finds suitable accommodation in Bombay. THE Complainant thought that the Opposite Party had the storage facility at Bombay and, therefore, he had entered into an agreement in question. According to complainant, he agreed to make the requisite payments on the basis of the quotations of the Opposite Party which included Rs. 59,600 /-for shifting of goods from New Delhi to Bombay (inclusive of labour, packaging forwarding and insurance and Rs. 25,000/- as storage charges for 36 weeks. (storage charges were to be paid after arrival of the goods at Bombay and prior to taking delivery). THE octroi was to be paid at actuals and on presentation of the octroi receipt by the Opposite Party. According to the complainant Rs. 59600/- were agreed and paid to the Opposite Party. THE complainant further alleged that since his goods arrived in Bombay in May, 1991, before the commencement of monsoon, he was anxious about the safety of his goods. Since the monsoon was approaching shortly. According to the complainant, the aforesaid contract continued till January, 1992. When the complainant made enquiries with the Opposite Party, complainant was assured that the goods were in the hands of professional people with requisite storage facilities and there was absolutely no cause for anxiety of the complainant. On 7.1.92, complainant paid Rs. 25,000/- by cheque to the Opposite Party and asked for the delivery of two crates out of the total of four crates. THE complainant alleged that when he opined these two crates to his horror, he found that they were damaged completely due to rain water. THE complainant, therefore, hired the services of professional Surveyors sviz.'') INMARTECH- AT a cost of Rs. 2,250/-. THE report of the Surveyor dated 29.1.92 stated that the cartons, wooden liftcrates, trunks, case were found soaked in water, contents spoiled, stained and corroded and damaged". THE likely cause of damage is stated'' due to flooding of rainwater to the storage warehouse as the articles were carelessly stored without proper protection." THE survey report is running into six pages and in meticulous details and the Surveyor also annexed with his report the photographs taken during the survey. THE complainant immediately contacted Mr. Watal, the representative of Opposite Party in Bombay but his attitude towards the grievance of complainant was alleged to be cool and callous. THE Complainant, therefore, contacted the Director of Opposite Party in New Delhi and made a complaint. THE complainant, therefore, filed this complaint claiming the amount of loss caused to him due to the negligence in the service of the Opposite Party. The Complainant claimed in this complaint total compensation of Rs. 9,00,000/- which is inclusive of loss of this household effects and the expenses he was required to spend for transportation, warehousing charges etc. The Opposite Party was served with a notice u/Sec. 13 of the Consumer Protection Act, 1986 dated 24.11.93 and was also informed that the hearing of this complaint was fixed on 13.1.94. On 13.1.94, the Complainant was represented by his authorised agent. Similarly, the Opposite Party was also represented through their authorised agent. However, the Opposite Party did not file any written version nor any affidavit or documents in their defence. The Complainant however, filed his own affidavit dated 11.11.93 in which he has affirmed the allegations made in the complaint and also filed a list of damaged material showing its total value in the list filed before this Commission. The total value is Rs. 8,98,850/- for the damaged goods. We have also perused the relevant documents. The Complainant has also filed various photographs showing the extent of damage caused to his household effects. In order to support his allegations, the Complainant has filed no record a letter dated 15.4.91 showing quotations for the carriage of household effects from New Delhi to Bombay and rate of Rs. 1,000/- per week or part thereof for a storage and also showing the provisions of insurance during the storage period. There is also on record the letter dated 11.12.91 showing the payment of Rs. 25,000/- towards the storage charges'' for 36 weeks. There is also on record the letter dated 29.1.92 from Inmartech containing six pages at Ex. ''C and copies of photographs at Ex. ''D'' running four pages. There is also on record a copy of the Insurance Policy for a sum of Rs. 1,00,000/- dated 24.1.91 showing the risk of road transport and excluding to recover the risk of storage for six months. The policy is issued by the Insurance Company. There is also a list along with the policy. There is on record a document dated 17.3.92 from the Opposite Party addressed to Mr. Chavas, Member Complainant's Committee of the Consumer Guidance Society of India who were representing the complainant's case to the Opposite Party. In that letter, the Insurance Company entered into agreement for packing, storage of complainant's goods and also for covering the risk of the insurance. However, in the said letter the Opposite Party made a grievance that the Complainant was not careful in lifting the effects, within six months'' period and further alleged that the complainant made frivolous complaint. There is also on record the inventory of household effects packaged by the Opposite Party dated 20.4.91 showing inasmuch as 126 packates with which details were accepted for delivery at the destination of Complainant at Bombay.

In view of the aforesaid various documentary evidence establishing the fact that the Opposite Party had agreed to render promised services to the Complainant and also agreed to keep in safe custody the Complainant's goods. The Opposite Party had clearly agreed to keep complainant's goods in safe custody for a period of six months, but had totally failed to keep them in good condition. The survey report enumerated the entire goods that were damaged. The damage caused to the goods has been fully established. It is abundantly clear from the evidence that the Opposite Party has been negligent while rendering the promised services as a result of which the Complainant lost his entire household effects of the value of Rs. 9,00,000/-.

THE Complainant's claim was opposed on the grounds of technical objection that this Commission has no jurisdiction as the contract has taken place at New Delhi and, therefore, the prosecution is subject to jurisdiction of New Delhi Court. We find no substance in this contention in view of the provisions of Section 11 of the Consumer Protection Act, 1986. THE cause of action actually arose at Bombay where the goods were stored and got damaged. Moreover, the Opposite Party at the time of institution of the complaint had actually been carrying on business at Bombay and also has its Branch at Andheri, Bombay. Shortly, this Commission has jurisdiction to entertain the complaint. THE next contention raised by the Opposite Party is that the contract is not reduced in writing and, therefore, not enforceable. We do not find any substance in this argument since the claim can be lodged on the basis of oral agreement provided there is material on record to constitute an agreement. THE documents on record, in fact the quotation letter dated 15.4.91, receipts of payment of its Rs. 25,000/- dated 11.12.91 and the admissions given by the Opposite Party in his letter dated 17.3.92 addressed to Mr. Chavas fully establish that there was a contract between the complainant and the Opposite Party as alleged by the complainant in this complaint. Lastly it is the contention of the Opposite Party that since the Insurance policy is for a sum of Rs. 1,00,000/- the complainant should have restricted its claim to Rs. 1,00,000/-. It is also contended by the Opposite Party that the complainant should claim such loss from the Insurance Company. We are not in agreement with the Opposite Party on this point since the Opposite Party itself took upon itself the responsibility of such carriage and safe storage of goods and the Insurance Policy was obtained by Opposite Party for their own purposes, in case there was some mishap. This is clear from the copy of the Insurance Policy which is on record. THE Insurance Policy itself shows the name of the assured as M/s. Packways Packages, New Delhi alongwith complainant's name. Thus, we find that the complainant has been put to the loss of his goods due to the negligence in the promised service by the Opposite Party. A perusal of the survey report and the photographs clearly shows that the entire material of complainant has been damaged due the rain water. THE complainant has argued before us that the entire collection of his life has been destroyed due to the negligence for the promised service of the Opposite Party. THE complainant has also stated that there are some invaluable books, furniture, books of accounts, and very important documents and records along with the family articles which are associated with the family sentiments and there were destroyed. According to the complainant, no value of the goods can be arrived at as it is more than the claim which he has actually made. THE complainant has restricted his claim upto Rs. 9,00,000/-. Considering the overwhelming evidence coupled with the Surveyor's report duly supported by affidavit, we are fully satisfied that the complainant has proved his allegations. Hence, we pass the following order:- ORDER

THE complaint is allowed. THE Opposite Party is directed to pay to complainant Rs. 9,00,000/- towards the amount of compensation for the entire damages to his household suffered by complainant. THE Opposite Party is directed to pay to the complainant the amount of compensation within 30 days from the receipt of this order failing which it shall carry interest at the rate of 18% p.a. till realisation. THE Complainant also be paid Rs. 500/-as costs. Complaint allowed.