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TMI Blog2019 (12) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... n in this regard was sent to the Respondent-insurer on 12.09.2006. 3. Pursuant to the claim made, a surveyor was appointed who visited the premises of the Appellant on 18.09.2006 and sought certain details, which were provided on 28.11.2006. After carrying out the requisite survey, the surveyor submitted his report on 11.04.2007 assessing total loss to the tune of Rs. 63,43,679/-. 4. The claim lodged by the Appellant was however repudiated by the Respondent-insurer vide communication dated 27.07.2007 on the ground that since spontaneous combustion did not result into fire thus, loss had not been caused by fire as stipulated in the relevant endorsement with respect to spontaneous combustion of the insurance policy. The Appellant was further informed through the letter that unless spontaneous combustion results into fire, there is no liability under the policy. 5. On denial of the claim the Appellant approached the National Consumer Disputes Redressal Commission (hereinafter referred to as the NCDRC) vide consumer complaint No. 115 of 2007 seeking following reliefs: (a) To direct the Respondent company to allow the demanded claim of Rs. 98,46,732/- on account of loss suffered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of the occurrence thereof. It is an admitted case between the parties that intimation of loss/damage was given by the Appellant to the Respondent-insurer for the first time on 12.09.2006 and a claim for loss for a sum of Rs. 1.4 Crores to 1.5 Crores was made vide letter dated 14.09.2006. 8. The NCDRC rejected the claim holding that since the complainant (Appellant herein) had contravened Clause 6(i) of the General Conditions of Policy, no claim is payable. 9. We have heard Sh. Nikhil Goel, Learned Counsel for the Appellant and Sh. Yogesh Malhotra for the Respondent. 10. It is submitted by Learned Counsel for the Appellant that the NCDRC has erred in holding that the claim stands defeated because of delayed intimation as postulated in Clause 6(i) of the General Conditions of Policy. It is also contended that, since Respondent company had appointed a surveyor, its right to advance the plea, with respect to the claim being not maintainable because of delayed intimation as envisaged in Clause 6(i), stood waived. It is further contended that since the letter of repudiation does not even remotely refer to delayed intimation or delayed claim, as postulated in Clause 6(i), the said g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case the Spontaneous Combustion has occurred, but it did not result into the fire and loss has not been caused by fire only as stipulated in the relevant endorsement of spontaneous combustion. Further, the spontaneous combustion endorsement is clear and unambiguous in this regard and unless the spontaneous combustion results into fire, there is no liability under the policy. In view of the above the competent authority has decided to repudiate the said claim which please note. Sd/- (George Valamchery) Sr. Divisional Manager. 15. As is evident from the repudiation letter there is no reference to any of the aspects enumerated in Clause 6(i) of the General Conditions of Policy which reads as under: 6(i) On the happening of any loss or damage, the insured shall forthwith give notice thereof to the company and shall within 15 days after the loss or damage or such further time as the company may in writing allow in that behalf deliver to the company. 16. Insofar as issue (1) is concerned, a two Judge Bench of this Court in the case of Galada (supra) where despite violation of duration Clause stipulated in Clause 5(3) to Clause 5(5) of the policy insurance co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. To wit, in that case [Galada], the Court had considered Clause 5 of a Marine Insurance Policy wherein the issue was whether the insurance cover itself had extinguished by efflux of time and that the intimation given by the insured to the insurer was not made within 7 days of arrival of the vehicle at the destination mentioned in the policy. According to the insurer, on expiry of 7 days from delivery the insurance cover stood perished and no cover would subsist beyond the said 7 days' period. It is in that context, the Court noted that appointment of the surveyor by the insurer beyond the said period can be construed as an act of waiver by the insurer of the position that the policy stands extinguished. In other words, appointment of a surveyor by the insurer was interpreted as a manifestation of the stand of the insurer that the insurance cover still subsists. This is evident from the dictum in para 13 of the reported decision as the Court noted that once a surveyor was nominated to verify the loss, the insurer could not be allowed to take a stand that the claim is hit by the Clause pertaining to duration and more so because of absence of any mention in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not even remotely mention anything about violation of duration Clause stipulated in Clause (6) (i) of the General Conditions of Policy. The Respondent-insurer repudiated the claim solely on the ground that since spontaneous combustion did not result into fire and loss had not been caused by fire as stipulated by policy conditions, there was no liability under the policy. It was for the first time the Respondent-insurer raised the issue of delayed intimation of claim and violation of stipulation of Clause 6(i) of the General Conditions of Policy in its reply filed before NCDRC. 20. This Court in the case of Galada Power Ltd. (supra) has elucidated upon issue (2) as under: It is evincible, the insurer had taken cognizance of the communication made 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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