TMI Blog2016 (7) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... ational 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in the batch of appeals is set aside - We have been apprised that 50% of the amount was deposited and the Appellant has withdrawn the said amount.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 amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not fall under the purview of TRANSIT LOSS . As such, the claim is not tenable under the terms of the policy. In view of this, we are treating your above claim as NO CLAIM . [Emphasis added] 3. As the claim was not accepted, the Appellant knocked at the doors of the District Forum for grant of compensation, but the District Forum declined to accept the claim on three counts, namely, that there was non-joinder of necessary parties; that the allegation of theft was not proved; and that in a summary proceeding the factual dispute could not be decided. 4. Dissatisfied by the order passed by the District Forum, the Appellant preferred twenty-one appeals before the Andhra Pradesh Consumer Disputes Redressal Commission (for short, 'the State Commission'). The State Commission after analysing the materials brought on record opined that the investigator could not be relied upon as the investigation had been completed after six months from the date of occurrence; that the report of the investigator could not be said to have been based on any material worthy of verification; that since it was the carrier who had undertaken to deliver the goods at Assam, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed them on the ground that the intimation by the complainant to the insurer was not made within seven days of arrival of the vehicles at the destination mentioned in the policy. The reasoning of the National Commission is to the following effect: In this regard, the dates of delivery are important to us. As per material brought on record, the first intimation of the claim or loss was reported to the Petitioner insurer only on 27.3.1998 and confirmed by letter dated 3.4.98. There is no dispute that the arrival dates of the different consignments in question start from 1.3.98 onwards till 11.4.98. In the above circumstances and keeping in view the terms of the Policy, condition 5 of Inland Transit Clause, we are of the view that there was no Policy Cover in existence and the risk stood not covered after delivery of goods to the consignee. We further note that, even on practical side, not reporting the loss in time deprived the Insurer to have a first a first hand appreciation/assessment of the extent of loss, more so when, as per statement on record, against number of consignments/delivery notes it is clearly noted 'seal tempered'. There can be no dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is urged by Mr. Mukherjee, learned senior Counsel that the National Commission has erroneously held that the complainant went on compounding the wrongs, whereas the material brought on record clearly establish that it was quite vigilant and diligent in putting forth his claim and, in fact, its conduct shows intrinsic faith in the insurer. 10. Mr. Rakesh Kumar, learned Counsel appearing for the Respondent No. 2 made an endeavour to support the order passed by the National Commission, but, as has been stated earlier, when the revisions preferred by the carrier have already been dismissed and the said orders have attained finality having not been assailed, we do not think he can be permitted to argue to sustain the order passed by the National Commission. Be that as it may, it really does not make any difference. 11. Clause 5 of the Policy that relates to Duration , reads as follows: 5. Duration-. This insurance attaches from the goods leave the warehouse and/or the store at the placed name in the policy for the commencement of transit and continues during the ordinary course of transit including customary transhipment if any, (i) until delivery to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4th Edn., Para 907, it is stated: The expression 'waiver' may, in law, bear different meanings. The primary meaning has been said to be the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may arise from a party making an election, for example whether or not to exercise a contractual right... Waiver may also be by virtue of equitable or promissory estoppel; unlike waiver arising from an election, no question arises of any particular knowledge on the part of the person making the representation, and the estoppel may be suspensory only... Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right, without the need for writing or for consideration moving from, or detriment to, the party who benefits by the waiver, but mere acts of indulgence will not amount to waiver; nor may a party benefit from the waiver unless he has altered his position in reliance on it. 14. In Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC 425, it has been held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs and held: (SCC p. 65, paras 14-15) 14. In order to constitute waiver, there must be voluntary and intentional relinquish-ment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case. ... 15. There is no question of estoppel, waiver or abandonment. There is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment of right. That apart, the question of waiver really does not arise in the case. Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore, no question of waiver of rights by Respondents 4-7 nor would this disentitle the tenants from maintaining the writ petition. 17. 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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