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Judgment
THIS is an appeal against the order of 19th November, 1993 passed by the State Commission, Gujarat in Complaint No. 255 of 1992.
THE facts of the case are that the respondent complainant had on 5th July,1989 sent a consignment of 363 cheeses of polyester texturised and twisted yarn packed in 144 cartons from Kadi to Shivandi. This consignment was insured with the appellant Insurance Company. The vehicle of the carrier met with an accident enroute. While trying to save some animals, the driver swerved the truck as a result of which the truch over-turned because it was raining heavily and the road was slippery and full of water. The damage was assessed by a Surveyor. As per the recommendations of the Surveyor, the claim for damage was setttled at Rs. 4,58,695/-. The Surveyor also recommended that the claim for shortage viz. Rs. 2,46,182/- in the goods should be investigated by an investigator.
THE complainant had made a claim of Rs. 7.05 Lakhs for damages against which the appellant insurer had paid only Rs. 4,58,695/- in full and final settlement. The insurer did not entertain the claim for Rs. 2.46 Lakhs for the shortage of goods. The Surveyor had made a recommendation only for the loss by way of damage assessed by him and had made no recommendation of respect of the goods short delivered. As recommended by the Surveyor, the shortage was also investigated by an investigating agency which had concluded as under:� In view of the above, we have come to the conclusion that loss of quantity mentioned in survey report might have been due to its drifting into the water, it''s embedding with earth and sand in several fields from where the water passes and also few cones remained lying in the grass on the side banks of culvert and other paddy fields being invisible to persons engaged to recover cones at material time. It is seen from the record that challans, invoices, excise gate pass etc. were not sent with the driver. He had only a copy of the consignment note with him. Again the respondent has failed to produce certificate of shortage from the transporter. The appellant, insurer, therefore paid only Rs. 4,58,695/- in full and final settlement of damages claimed. After receiving the said amount of compensation in full and final settlement, the respondent complainant filed a complaint before the State Commission for payment of the balance amount of its claim amounting to Rs. 2.46 lakhs for shortages.
THE State Commission was of the view that the dispute between the parties at that particular time was about the damage and not for the short delivery and the amount of Rs. 4,58,695/-paid earlier under the policy must be only for the damage to the goods and that no amount was paid for the shortage of goods, in spite of the insistence of the respondent complainant. It took the view that the complainant cannot be deprived of his legitimate claim for the shortage of the goods. It, therefore, held that the claim for the shortage of goods was justified and the insurance company was liable to pay* damages for the shortage of the goods. As such it allowed the complaint and ordered the payment of Rs. 2.46 lakhs with 12 percent interest from 18th September, 1990 till realisation and cost of Rs. 3,000/- to the respondent complainant. After carefully going through the records and hearing the Counsel for the parties, we find that the compensation in regard to the shortage was computed as under:
THE Surveyor has found that the respondent insured had invoiced 144 cartons containing 3,638 cheeses. After the accident only 73 cartons could be retrieved and the balance cheeses were loose and the shortage in terms of cheeses was 896, approximately of 1,340,30 Kgs. on the average, as most of the cheeses were in damaged condition. The Surveyor felt that this shortage was huge and therefore, recommended further investigation.
AS would be seen from the facts narrated earlier, the report of investigation is inconclusive, inasmuch as it clearly states that the loss of quantity mentioned in the Surveyors'' report might have been due to chasis drifting into water, their embedding in earth and sand in several fields from where the water passes and also their remaining lying invisible in the grass on the side banks of culvert and other paddy fields. Further the carrier did not have challans and excise gate passes etc. as proof of the quantity of goods carried by him. As such the appellant insurance company had bonafide reasons to doubt the shortage. It would also be unusual to settle a claim under a single insurance policy piecemeal, partly for damages and partly for shortages. In that context, there is merit in the contention of the appellant insurance company that the respondent insured had received Rs. 4,58,695/- in full and final settlement and that he is now estopped from making a supplementary claim on account of the alleged shortage arising from the same accident which caused the damage and for which the insurance company discharged its liability. In view of what is stated above, the appeal is allowed, the order of the State Commission is set aside and the complaint will stand dismissed. There is no order as to costs.