Hayagriv Textile Industries Private Ltd. - Appellant
Versus
United India Insurance Co. Ltd. - Respondent
Decided On : 09/19/1993
Complaint No. 255 of 1992
Advocates Appeared :
A.O. Chudgar,R.R. Panchal

Headnote:Consumer Protection Act, 1986 – Sections 2(1)(c) and 2(1)(g)-Complainant dispatched cheese Polyester textures and twisted yarns by truck-Truck met with accident Police informed and opposite party appointed surveyor-Complainant claimed damages for shortage of goods - Opposite party paid Rs. 4,58,695/- but did not pay Rs. 2,46,182/- Surveyor not made any recommendation for shortages claimed but assessed only damages• Claim for shortage of goods not considered as he could not substantiate shortage by producing certificate from transporter - Complaint filed-Opposite party contending that surveyor not recommended for the damages for shortage of goods - Complainant did not produce shortage report Transporter not cooperative and refused to give shortage report - Which fact clearly stated by Investigator in the report Surveyor not made recommendations not to pay for short delivery - Investigator had justified short delivery - Complainant cannot be deprived of legitimate right to get damages for shortage of goods - Opposite party should honour obligation - Opposite party liable to pay damages for short delivery.

       Held: The complainant was called upon to produce the shortage report but he could not produce it and investigator has recorded the reasons for that. It is stated in the report that the transporter was not co-operative because of some dispute over previous bill and, therefore, refused to give the shortage report. (Para 5)

       The shortage is established by other evidence and surveyor as well as investigator accepted and justified it. We, therefore, hold that shortage delivery was caused by the carrier as discussed above and the complainant was caused the damages for the goods which were short delivered. The complainants grievance is that the report of the surveyor and of the investigator was not given to the complainant and, therefore, they requested to produce before the Commission and accordingly the other side has produced the said reports on record. (Para 5)

       It is clear from the record that the complainant was all the while insisting the damages for short delivery. The complainant was not paid the amount claimed for the short delivery and was paid only Rs. 458,695/- for the damage to the goods and have not for the short delivery and the Insurance company tried to justify the same on the ground that the surveyor had not recommended it. As discussed above, the surveyor had not made recommendations not to pay for short delivery but had only recommended for the investigation which was ultimately carried out and the investigator had also justified the short delivery. The opposite party had, therefore, wrongly not paid the damages for the short delivery and informed accordingly to the complainant by leuer dated 21.6.1991. (Para 6)

       The shortage of the goods was justified and the Insurance Company was liable to pay the damages for the shortage of the goods. The opposite party Insurance Company while making the payment of the damaged goods on 28.9.1990 was not selling the claim for the short delivery but was selling only the claim for the damage to the goods. In view of the admitted position, the complainant cannot be deprived of the legitimate right to get the damages for the shortage of the goods nor the other side can be allowed to Iike undue advantage of such printed contents of the receipt.

       The complainant can be deprived of the additional claim for the damages provided both the parties are clear that the claim was shelled when the particular amount for which receipt of full and final settlement was issued by the complainant Any subsequent claim after that cannot be entefllined under the contract itself. But the parties should be clear about the settlement of the dispute under the contract. If the Insurance Company was not settling the particular dispute claiming that they were not bound to pay the compensation or that the surveyor had not recommended for that, it - cannot assert that the claim was fully and finally shelled by the said receipt. In view of this we hold that by stating in the receipt that the claim was "settled fully and finally" would not deprive the complainant from claiming Rs. 246,182/- for the damages for short delivery of the goods. The insurance coverage is clear. The opposite party has undertaken the liability for such loss and as insurer the opposite party should honour the obligation and by it. (Para 7)