TMI Blog2019 (12) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... surance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint before NCDRC. Admittedly in the case at hand there was no reference of delay in intimation or lodging of the claim as stipulated in Clause 6(i) of the General Conditions of Policy in the repudiation letter - The NCDRC has failed to take into consideration this aspect of the matter and, therefore, cannot be held to be justified in rejecting the claim of the Appellant, on that ground. The Respondent-insurer is directed to make payment of Rs. 63,43,679/-, as assessed by the surveyor, to the Appellant with interest @ 8% from the date of the filing of the claim of petition till date of payment - Appeal allowed. - Hon'ble Mr. Justice Navin Sinha And Hon'ble Mr. Justice Krishna Murari For the Appellant : Nikhil Goel For the Respondent : Gaurav Sharma JUDGMENT KRISHNA MURARI, J. 1. The Appellant purchased a standard fire and special perils policy from the Respondent National Insurance Company Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant; The complaint was resisted by the Insurer on three main grounds: (i) No claim was payable under the terms and conditions on which policy was issued inasmuch as destruction or damage, if any, caused to the property by fire on account of its own fermentation, natural heating or spontaneous combustion or undergoing natural heating or drying process is not covered. (ii) Since the factory remained closed from 17.02.2006 to 09.08.2006, the insurance cover ceased to operate in view of the condition No. 3 of the policy which provides that unless the insured has obtained the prior sanction of the company in this regard, the insurance would cease to operate as regards the property affected: (a) if the trade or manufacture carried on be altered or if the nature of occupation of or other circumstances affecting the building insured or containing the property insured be changed in such a way as to increase the risk of loss or damage. (b) if the building insured or containing the insured property becomes unoccupied and so remains for a period of more than 30 days. (iii) Intimation of claim was sent with considerable delay of over a month thereby violating condition No. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on warranting repudiation of the claim. Hence there is no waiver of the condition relating to delay in intimation as stipulated in the General Conditions of Policy. It is further submitted that the judgment rendered by the two judge Bench of this Court in the case of Galada (Supra) was considered by a three Judge Bench in the case of Sonell* Clocks and Gifts Ltd. v. New India Assurance Company Ltd. (2018) 9 SCC 784 and was distinguished on the ground that dictum in Galada case was in context of peculiar facts of that case. 12. We have considered the argument advanced by Learned Counsel at the bar. The twin issues which arise for consideration in this appeal are: (1) Whether the Respondent-insurer had waived the condition relating to delay in intimation and lodging of the claim, by appointing a surveyor. (2) Whether in the absence of any mention, of aspect of delay in intimation and violation of conditions of Clause 6(i) of General Conditions of Policy, in the repudiation letter, the same could be taken as defence before the NCDRC. 13. It is not disputed that on the basis of the communication made by the Appellant, the Respondent-insurer appointed a surveyor on 18.09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f repudiation is that the claim lodged by the complainant does not fall under the purview of transit loss because of the subsequent investigation report. 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................ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy but is one of violation of Condition 6 of the policy. Furthermore, in the present case the controversy will have to be answered on the basis of Standard Fire and Special Perils Policy relatable to Condition 6 obligating the insured to give forthwith intimation of the loss to the insurer. The two clauses are materially different and relate to two different and distinct insurance policies. In other words, Clause 5 of the Marine Insurance Policy and Clause 6 of the present policy are incomparable being qualitatively different. 22. To put it differently, Galada case was not a case which considered repudiation based on a premise or a reason similar to Condition 6 of the present policy and a specific plea taken by the insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of the Marine Insurance Policy which was the subject-matter in Galada case did not have a negative covenant as in this case in the proviso to Condition 6 of the subject policy. The fulfilment 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. 23. We, therefore, agree with the Respondent that the dictum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We approve the said view. (Emphasis supplied) 21. Undoubtedly, as mentioned supra, this Court in Sonell* Clocks (supra) has distinguished Galada Power on facts and held that the appointment of a surveyor cannot, as a matter of law, be construed as a waiver of the terms and conditions of the insurance policy. However, in Sonell* Clocks, the insurer had taken a specific plea in the repudiation letter that the loss was not conveyed within the stipulated period. Hence the singular issue before this Court was only whether the insurer had waived the condition as to delay in intimation by appointing a surveyor. This Court in Sonell* Clocks did not have the occasion to consider whether the insurance company could have raised delay as a ground for repudiation for the first time before the consumer forum. 22. Hence we are of the considered opinion that the law as laid down in 'Galada' on issue (2) still holds the field. It is a settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken delay in intimation as a specific ground in letter of repudiation, they cannot do so at the stage of he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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