2016 (7) TMI 1603 - SC - Indian Laws

Claim of compensation form United India Insurance Company Limited and India Transport Organization - amount claimed on the ground that there had been shortage/loss of All Aluminium Alloy Conductor (AAAC) wire which was supplied by the complainant to the Power Grid Corporation of India Limited (PGCIL) - Trucks shortage - transit-loss - HELD THAT - In the instant case the insurer was in custody of the policy. It had prescribed the Clause relating to duration. It was very much aware about the stipulation made in Clause 5(3) to 5(5) but despite the stipulations therein it appointed a surveyor. Additionally as has been stated earlier in the letter of repudiation it only stated that the claim lodged by the insured was not falling under the purview of transit loss. Thus by positive action the insurer has waived its right to advance the plea that the claim was not entertainable because conditions enumerated in duration Clause were not satisfied - In our considered opinion the National Commission could not have placed reliance on the said terms to come to the conclusion that there was no policy cover in existence and that the risks stood not covered after delivery of goods to the consignee. Loss as arising from surveyor s report - HELD THAT - Though the said aspect has not been gone into by the National Commission yet we find the findings recorded by the State Commission are absolutely justified and tenable in law being based on materials brought on record in such a situation we do not think it appropriate that an exercise of remit should be carried out asking the National Commission to have a further look at it. In any case the exercise of revisional jurisdiction by the National Commission is a limited one - we have perused the surveyor s report and scrutinized the judgment and order passed by the State Commission in this regard and we are completely satisfied that the determination made by it is absolutely impeccable. The judgment and order passed by the National Commission in the batch of appeals is set aside - We have been apprised that 50% of the amount was deposited and the Appellant has withdrawn the said amount. The balance amount along with interest as directed by the State Commission shall be paid by the insurance company within four months from today - appeal allowed.

Summary

Issues Involved:
1. Non-joinder of necessary parties.
2. Allegation of theft and factual dispute.
3. Delay in intimation to the insurer.
4. Validity of the repudiation of the claim by the insurer.
5. Merits of the claim and the surveyor's report.

Issue-wise Detailed Analysis:

1. Non-joinder of Necessary Parties:
The District Forum initially dismissed the complaint on the ground of non-joinder of necessary parties, specifically PGCIL. However, the State Commission overturned this decision, stating that the complaint could not be dismissed on this basis. The Supreme Court agreed with the State Commission, noting that the National Commission's view that PGCIL was a necessary party was erroneous.

2. Allegation of Theft and Factual Dispute:
The District Forum also dismissed the complaint on the grounds that the allegation of theft was not proved and that the factual dispute could not be decided in a summary proceeding. The State Commission, however, found that the investigator's report was unreliable due to the delay in investigation and that the carrier was responsible for the condition of the goods upon delivery. The Supreme Court upheld the State Commission's findings, agreeing that the factual dispute was adequately addressed.

3. Delay in Intimation to the Insurer:
The National Commission allowed the insurer's revisions on the basis that the intimation of the loss was not made within seven days as required by the policy. However, the Supreme Court found that the insurer had waived this right by appointing a surveyor to assess the loss despite the delay. The letter of repudiation did not mention the delay, indicating that the insurer had waived its right to reject the claim based on this ground.

4. Validity of the Repudiation of the Claim by the Insurer:
The insurer repudiated the claim stating that it did not fall under the purview of "transit loss." The Supreme Court noted that the insurer's letter of repudiation did not mention the delay or the duration clause, and by appointing a surveyor, the insurer had waived its right to rely on the duration clause. The Court cited legal principles on waiver, concluding that the insurer could not later assert the delay as a ground for repudiation.

5. Merits of the Claim and the Surveyor's Report:
The State Commission found that the surveyor's report confirmed the loss and quantified it. The Supreme Court agreed with the State Commission's detailed findings, noting that the surveyor's report and other evidence on record justified the claim. The Court found no reason to remit the case back to the National Commission for further review, as the State Commission's determination was well-founded and legally sound.

Conclusion:
The Supreme Court allowed the appeals, set aside the National Commission's judgment, and upheld the State Commission's order awarding compensation to the appellant. The insurer was directed to pay the remaining amount along with interest within four months.