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TMI Blog2016 (7) TMI 1603X X X X Extracts X X X X X X X X Extracts X X X X ..... rict (for short, 'the District Forum') was that between 1.3.1998 to 13.4.1998, twenty-one trucks of AAAC wire packed in wooden drums were delivered at stores of PGCIL at Assam. In all the trucks shortage was noticed by PGCIL on 25th March, 1998. As there was shortage, which is called transit-loss for which the Appellant had taken a policy from the insurer, it put forth a claim before the insurer for Rs. 35 lacs. The said claim was lodged before the insurance company vide letter dated 3rd April, 1998. 2. On the basis of the communication made by the Appellant, the insurer appointed a surveyor who gave a report on 1st September, 1998, assessing the loss approximately at Rs. 2 lacs in each case, thereby the amount in toto assessed by the surveyor was approximately Rs. 43 lacs. Though the surveyor had assessed the loss and sent it to the insurance company, the insurer vide letter dated 20th September, 1999, repudiated the claim by stating thus: Dear Sirs, Re: Marine Claim No. 050202/21/26/7/18/97/ Policy No. 050202/21/26/16/2101/97 On perusal of the records pertaining to the above claim, and subsequent investigation into the matter, we find that the above claim lodge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no inordinate delay in intimating the claim to the insurance company. Being of this view, the State Commission allowed the appeals preferred by the Appellant and determined the compensation approximately at Rs. 43 lacs in all the appeals. Be it noted, the State Commission while determining the quantum, made the insurer and the carrier jointly and severely liable. 5. The judgment and order passed by the State Commission compelled the insurer and the carrier to file independent revisions before the National Consumer Disputes Redressal Commission, New Delhi (for short, 'the National Commission). The revisions preferred by the carrier stood dismissed and the same have not been challenged and, therefore, the view expressed in the case of the carrier has attained finality. 6. As far as the insurer is concerned, it preferred twenty-one revisions, out of which four were dismissed by the National Commission vide judgment and order dated 6th March, 2009, on the foundation that as they dealt with the transactions pertaining to "open delivery". We are not concerned with those four revisions. As far as the seventeen revision are concerned, the National Commission allowed them on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Petitioner/insurer, hence the complainant is not entitled to any relief in terms of condition(s) of Policy as also law and other material on the subject discussed earlier and also the law laid down by this Commission in the cited judgment (supra). 7. Being of this view, the National Commission allowed the revision petitions and set aside the orders passed by the State Commission. 8. We have heard Mr. Rana Mukherjee, learned senior Counsel for the Appellant and Mr. Rakesh Kumar, learned Counsel for the Respondent No. 2. None has appeared on behalf of the Respondent No. 1, the insurer. 9. It is submitted by Mr. Rana Mukherjee, learned senior Counsel that the National Commission has grossly erred by opining that the PGCIL is a necessary party. It is his further submission that the view expressed by the National Commission that the claim stands defeated because of delayed intimation as postulated in Clause No. 5, of the policy is not sustainable, inasmuch as a survey was conducted and that apart the letter of repudiation does not refer or even remotely touch upon any of the aspects enumerated in Clause 5. Additionally, it is urged by Mr. Mukherjee, learned senior Counsel that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant and nominated a surveyor to verify the loss. Once the said exercise has been undertaken, we are disposed to think that the insurer could not have been allowed to take a stand that the claim is hit by the Clause pertaining to duration. In the absence of any mention in the letter of repudiation and also from the conduct of the insurer in appointing a surveyor, it can safely be concluded that the insurer had waived the right which was in its favour under the duration clause. In this regard, Mr. Mukherjee, learned senior Counsel appearing for the Appellant has commended us to a decision of High Court of Delhi in Krishna Wanti v. Life Insurance Corporation of India 2000 (52) DRJ (DB), wherein the High Court has taken note of the fact that if the letter of repudiation did not mention an aspect, the same could not be taken as a stand when the matter is decided. We approve the said view. 13. In this context, we may with profit, reproduce a passage from Halsbury Law of England, which reads as follows: In Halsbury's Laws of England, Vol. 16(2), 4th Edn., Para 907, it is stated: The expression 'waiver' may, in law, bear different meanings. The primary meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. (Vide Dawsons Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha AIR 1935 PC 79, Basheshar Nath v. CIT AIR 1959 SC 149, Mademsetty Satyanarayana v. G. Yelloji Rao AIR 1965 SC 1405, Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh AIR 1968 SC 933, Jaswantsingh Mathurasingh v. Ahmedabad Municipal Corpn. 1992 Supp (1) SCC 5, Sikkim Subba Associates v. State of Sikkim (2001) 5 SCC 629 and Krishna Bahadur v. Purna Theatre.) 42. This Court in Municipal Corpn. of Greater Bombay v. Dr Hakimwadi Tenants' Assn. 1988 Supp SCC 55 considered the issue of waiver/acquiescence by the non-parties to the proceedings 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of second surveyor not explained - Deficiency in service proved - Report of first surveyor upheld' and the investigator in the instant case submitted his report on 28-12-1998 i.e. almost 8 months after his appointment. Taking into consideration all the above submissions, we are of the considered opinion that the Appellant/complainant was able to establish that there was shortage/damage to the consignment which was given to second Respondent for transportation. 19. 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 may hasten to add that to satisfy ourselves, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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