SHAKUN OVERSEAS LTD Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) The complainant in case No. C. 112/92 on the file of the State Commission, Delhi, has preferred this appeal against the Order dated 17.7.1991 passed by the State Commission declining to investigate into the merits of the complaint and referring the complainant to seek his remedy by way of a suit in the ordinary civil court. In support of the view taken by the State Commission that the proper remedy to be resorted to by the complainant is the institution of a suit before a civil court, the State Commission has relied on certain observation made by us in Janta Machine Tools v. The Oriental Insurance Co. I (1991) CPJ 234 (NC). After giving our careful consideration to all aspects of the case we are of opinion that the State Commission was in error in applying to the present case of the observations made by this Commission in the Janta Machine Tools case since the facts and circum stances which obtained in the latter case and against background of which those observations were made were wholly different and the said decision is therefore clearly distinguishable.

(2.) The short facts that have given rise to the present appeal are that the complainant imported a consignment of raw silk weighing 1798.95 Kg. from M/s. Dollyxpo (Far East) Ltd., Hongkong. The goods were despatched from Guaugzhou to Madras. The complainant insured the consignment with the National Insurance Co. Ltd. (Respondent herein) for a sum of Rs. 22 lakhs against all risks such as war, strike, riot, civil commotion etc. during its transportation from Hongkong to anywhere in India via Madras port as per a cover note issued on 15th September, 1989. Subsequently this cover note was replaced by a regular policy bearing the same date.

(3.) The consignment arrived safely at Madras. After completion of import and Customs formalities 10 bales were despatched from Madras to Delhi in soul conition as per Railway Receipt dated 18th November, 1989. The goods arrived at New Delhi Railway Station on 21st November, 1989. When the complainant went to the railway station in New Delhi to take delivery of the goods it was found that the goods had been damaged in a fire which it had occurred at the railway station on 21st November, 1989 at about 2.00 P.M. By a letter dated 21st November, 1989 the complainant informed the respondent about the fire accident and the damage caused to the goods. The respondent took immediate action to appoint a surveyor to assess the loss. The surveyor visited the New Delhi railway station on 22nd November, 1989 and examined the damaged bales. But his request for open delivery of the goods on the goods on that date was not agreed to. Subsequently, the goods were taken delivery of by the complainant on 4th December, 1989 in the presence of the surveyor appointed by the respondent and they were examined by the surveyor at the godown of the complainant to which place the goods were transported.