ROYSTON V. SHANKAR vs United India Insurance Co.

THE case of the complainant/appellant in short is that he transported certain goods from Calcutta to Bombay through Road Freight Carriers by truck No. MOT-9158. On transit some goods were damaged and some were not received at the destination at Bombay. Accordingly the complainant/appellant claimed Rs. 80,340/- on account of loss of goods and damage caused to it. It is admitted that the goods under consignment bearing Truck No. MOT-9158 were insured with the Insurance Company/Respondent No. 1. THE main contention of the Insurer/Respondent No. 1 is that the complainant/appellant did not lodge the claim with the Transporter/Respondent No. 2 within 6 months as per Clause 8.2 of the Insurance agreement. It appears from the record that the goods arrived and unloaded on 26.5.89 at Bombay whereas the complaint was lodged to the Transporter/Respondent No. 2 by his letter dated 15.6.89, so the information to the Transporter/Respondent No. 2 was given within a month from the date of arrival of the goods at Bombay. It is not much material if it was informed to the transporter or not, the case lies elsewhere i.e., the Insurer/Respondent No. 1 having insured the goods if liable to compensate the loss sustained to the goods during transit. In our opinion it is the duty of the Insurer/Respondent No. 1 to compensate the loss to the Insurer/ Appellant as it had sustained loss or damages to the goods during transit by virtue of the coverage of the risks on transit by insurance policy. It covers loss or damages caused to the goods on transit due to negligence and/or rash driving. THE Insurer/Complainant is entitled to realise his claim straightaway from the Insurer/Respondent No. 1 and if any neglignece or rash driving by the cause of such loss or damages to the goods covered under the Insurance Policy, the Insurer/Respondent No. 1 can sue the Transporter/ Respondent No. 2 by way of subrogation of the right of the owners of the goods i.e.., from the Complainant/Appellant and can realise the claim from the Transporter/Respondent No. 2. THE Insurer/Respondent No. 1 appointed Surveyor who submitted its report dated 21st August, 1989 in superficial manner although he has shown the total loss and damages caused to the goods covered under Insurance Policy worth Rs. 76,190/- as all the packages were opened prior to survey of the articles and had no opportunity of physical verification.

IN the aforesaid circumstances, it is not intelligible to us how the learned C.D.F. in its findings has wrongly observed that the Surveyor estimated the loss caused to the consignment at Rs. 3,500/- only. The learned C.D.F. also observed wrongly that as the complainant/petitioner did not serve notice under Section 10 of the Carriers Act to the Transporter/Respondent No. 2, he waived his claim which is also baseless because as per decision in the case of Branch Manager, Economic Transport Organisation and Others v. Synco Textile Pvt. Ltd. and Others, reported in 1994 (1) C.P.R. 811, it has been held by National Commission that no notice under Section 10 is required to be served vis-a-vis that the provision of Carriers Act are not applicable to a claim filed under the Consumer Protection Act. In view of the aforesaid observation we do not find any merit in the contention raised by the Insurance Company that the complainant/ appellant waived his right in violation of .the Condition 8(2) of the Insurance Policy.

As the report of the Surveyor appointed by the Insurer/Respondent No. 1 in this regard is the only document to be relied upon and where we find that he has narrated in his report, the condition of the articles transported covered under the insurance policy and also the alleged short receipts of certain articles based on report from the complainant/appellant reveals that the complainant/appellant suffered loss to the tune of Rs. 5,190/- on account of the damages caused to certain goods of the consignment and Rs. 71,000/- on account of short receipts of the goods as per report of the complainant/appellant. The complainant/appellant ought to have collected the short certificates from the Transporter/Respondent No. 2 to realise his total claim from the Insurance Company, so in absence of any shortage certificate, it is very difficult for us to accept the alleged short receipt of certain articles as appointed by the Surveyor in his report based on the report of the complainant/appellant. However, the complainant/appellant is entitled to receive the sum of Rs. 5,190/- alongwith the survey fees of Rs. 500/- for the loss and/or damage to the goods transported to Bombay as per report of the Surveyor appointed in this regard. The case is also not bad for non-joinder of necessary party as the reliefs sought for is only against respondent No. 1 and against no other.

WE, therefore, allow the appeal on contest and set aside the judgment and order dated 7.9.93 passed by the learned C.D.F. in C.D.F. Case No. 100 of 1993. We award the sum of Rs. 5,690/- to be paid by the Insurer/Respondent No. 1 to the complainant/appellant within a month from the date of communication of the order.

WE further award cost of Rs. 1,000/- to the complainant/appellant to be paid by the Insurer/Respondent No. 1 within the said stipulated date. Appeal allowed with costs.