TMI Blog2018 (8) TMI 1910X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy, coupled with the 2000 Regulations and in particular an express stand taken in the repudiation letter dated 18th February, 2005 sent by the respondent to the appellant after consideration of the surveyor‟s report, it cannot be construed to be a case of waiver on the part of the respondent - The fact remains that the respondent had appointed a surveyor to enquire into the entire matter and submit its report. The surveyor expressly recommended that the claim was not payable on account of the infringement of Clause 6 of the general conditions of the policy. The conclusion of the Commission that the respondent (insurer) had not waived the condition relating to delay stipulated in Clause 6 of the general conditions of the policy, by appointing a surveyor is upheld - appeal dismissed. - Civil Appeal Nos.1217-1218 OF 2017 - - - Dated:- 21-8-2018 - Dipak Misra, A.M. Khanwilkar And Dr. D.Y. Chandrachud, JJ. JUDGMENT A.M. Khanwilkar, J. 1. The appellant filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi being Consumer Complaint No.20 of 2006, asserting that it had taken an Insurance Policy from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to the Insurance Company nor was a claim lodged with the requisite particulars within the time stipulated in the policy. 4. This objection commended to the Commission as a result of which, the complaint filed by the appellant came to be dismissed by the judgment and order dated 10th December, 2015 on the following terms: 5. It would thus be seen that as per the terms and conditions of the policy taken by it, there were three obligations on the complainant/insured. The first obligation was to give notice of the loss to the insurer, immediately on the said loss taking place. The second obligation on the complainant was to submit a claim for the loss or damage, giving all necessary particulars of the loss, within a period of 15 days or such other time as the insurer might allow. The third obligation on the insured was to intimate the insurer, within six months of the date of the loss, that it intended to replace or reinstate the property which had been destroyed or damaged. 6. It is not in dispute that the alleged loss despite having occurred on 04.08.2004 was reported to the Insurance Company only on 30.11.2004. Thus neither immediate intimation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved the condition relating to delay in intimation by appointing a surveyor. On a perusal of the order passed by the National Consumer Disputes Redressal Commission (N.C.D.R.C.), New Delhi, we do not find that the said issue was raised before the N.C.D.R.C. In view of the aforesaid, we permit the appellant to file an application for review and put forth the issue of waiver before the N.C.D.R.C. within a period of four weeks hence. The N.C.D.R.C. will entertain the application for review singularly on this score. With the aforesaid observation, the appeal is disposed of. (emphasis supplied) It is noticed that no liberty was given to the appellant to challenge the judgment and order dated 10th December, 2015 passed by the Commission, in the event the review petition was decided against the appellant. 6. Be that as it may, as per the liberty given by this Court the appellant preferred a review petition before the Commission bearing Review Petition No.662 of 2016. The singular issue as to whether the respondent (insurer) had waived the condition relating to delay in intimation by appointing a surveyor was considered by the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he additional circumstance that the letter of repudiation sent by the insurer merely stated that, the claim lodged by the insured was not falling under the purview of the transit loss. The Court opined that the appointment of a surveyor despite the stipulation in Clause 5 therein was a positive action taken by the insurer reinforcing the finding of waiver of its right to advance the plea that the claim was not entertainable because the condition enumerated in duration clause was not satisfied. 10. We have heard Mr. Jitendra Mohan Sharma, learned senior counsel for the appellant and Mr. Joy Basu, learned senior counsel for the respondent. 11. The singular question involved in these appeals is whether the respondent (insurer) had waived the condition relating to delay in intimation, by appointing a surveyor. 12. It is well established position that waiver is an intentional relinquishment of a right. It must involve conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. It is an agreement not to assert a right. To invoke the principle of waiver, the person who is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wise the appellant would have complained about the non-appointment of the surveyor. The respondent urged that the appellant was in breach of the policy condition. 15. The Commission considered the pleadings of the parties and including condition No.6 of the Insurance Policy, the repudiation letter dated 18th February, 2005 and the Surveyor‟s Report which had recommended that the loss as such is not payable as per the Policy. The Commission then went on to distinguish the decision in Galada Power and Telecommunication s case, (supra). 16. In the said case, the issue of waiver was decided on the facts of that case as is evinced from the dictum in paragraphs 18-20 of the said decision. The same reads thus: 18. 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 Clauses 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 act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port and scrutinised 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. (emphasis supplied) 17. In the present case, it is common ground that the letter of repudiation dated 18th February, 2005 elucidates that the claim of the appellant was rejected on the ground that neither the intimation of the loss had been given to it immediately after the loss nor were the requisite particulars of the loss conveyed within stipulated period and there was breach of terms and conditions of Clause 6 of the general conditions of the policy. Additionally, the surveyor report predicates that it was very difficult to estimate the damages for the reasons mentioned therein and that the claim of the appellant was not payable on account of breach of Clause 6 of the general conditions of the policy. That recommendation commended to the respondent. It has been so incorporated in the letter of repudiation dated 18th February, 2005. 18. The respondent has rightly pointed out the other distinguishing features in the present case. To wit, in that case [Galada (supra)], the Court had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Insurance Policy which was the subject matter in Galada s case (supra) did not have a negative covenant as in this case in the proviso to condition No.6 of the subject policy. The fulfillment of the stipulation in Clause 6 of the general conditions of the policy is the sine qua non to maintain a valid claim under the policy. 21. We, therefore, agree with the respondent that the dictum in Galada s case (supra) is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances. 22. Suffice it to observe that Galada s case (supra) will be of no avail to the facts and circumstances of the present case. In that, the event occurred on 4th August, 2004 but intimation was given to the insurer only on 30th November, 2004 after a gap of around 3 months 25 days. No explanation was offered for such a long gap muchless plausible and satisfactory explanation. The stipulation in condition No.6 of the policy to forthwith give notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review petition by this Court. We say so because we find that the Commission considered the said issue as the singular issue and after analysing relevant aspects concluded that there was nothing to indicate that the respondent insurer had intentionally or consciously relinquished or waived its right to reject the claim on delayed intimation of loss, by appointing a surveyor to assess the loss claimed by the insured. For the above reasons, the argument that the Commission has not analysed the said issue, as has been done by us, will make no difference to the conclusion recorded by it. 27. The appellant has also placed reliance on the decision in Om Prakash Versus Reliance General Insurance and Another (2017) 9 SCC 724) to contend that the genuine claim of the appellant ought not to be rejected on technical ground, keeping in mind that the Consumer Protection Act is a beneficial legislation warranting liberal construction. That contention cannot be taken forward at the instance of the appellant who has failed to fulfill the threshold stipulation contained in Clause 6 of the general conditions of the policy and for which reason must suffer the consequence. It is not a technic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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