M/S. SONELL CLOCKS AND GIFTS LTD. versus THE NEW INDIA ASSURANCE CO. LTD. on 21 August 2018

M/S. SONELL CLOCKS AND GIFTS LTD.

v.

THE NEW INDIA ASSURANCE CO. LTD.

(Civil Appeal Nos.1217-1218 of 2017)

AUGUST 21, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Consumer Protection Act, 1986 – Insurance policy – Breachof – Claim for compensation – On facts, appellant took insurancepolicy in respect of its building, plant and machinery – Damage toappellant’s machinery and raw materials lying in the factory onaccount of floods – Delay in intimation of loss to the insurer –Thereafter, appointment of surveyor by insurer to assess the losscaused due to flood in the premises – Surveyor’s report – On basisthereof, rejection of appellant’s claim by insurer, on the ground thatneither the intimation of loss had been given to it nor the requisiteparticulars of loss conveyed within the stipulated period – Onappeal, held: Appointment of a surveyor by the insurer after receiptof intimation of the loss from the appellant, cannot be construed tobe a case of waiver on the part of the insurer of the condition relatingto delay stipulated in the conditions of the policy – Thus, theCommission rightly held that the insurer had not waived the conditionrelating to delay stipulated in the general conditions of the policy,by appointing a surveyor.

Dismissing the appeals, the Court

HELD: 1.1 Waiver is an intentional relinquishment of aright. It must involve conscious abandonment of an existing legalright, advantage, benefit, claim or privilege, which except for sucha waiver, a party could have enjoyed. It is an agreement not toassert a right. To invoke the principle of waiver, the person whois said to have waived must be fully informed as to his rights andwith full knowledge about the same, he intentionally abandonsthem. There must be a specific plea of waiver, much less ofabandonment of a right by the opposite party. [Para 12] [43-C-D]

35

A

B

C

D

E

F

G

H

A1.2 In the instant case, it is common ground that the letterof repudiation elucidates that the claim of the appellant wasrejected on the ground that neither the intimation of the loss hadbeen given to it immediately after the loss nor were the requisiteparticulars of the loss conveyed within stipulated period and therewas breach of terms and conditions of Clause 6 of the generalBconditions of the policy. Additionally, the surveyor reportpredicates that it was very difficult to estimate the damages forthe reasons mentioned therein and that the claim of theappellant was not payable on account of breach of Clause 6 of thegeneral conditions of the policy. That recommendation commendedCto the respondent. It has been so incorporated in the letter ofrepudiation. [Para 17] [46-B-D]

1.3 The expression “duration” is of some significance whichis reflective of the existence or otherwise of the policy itself. Inthe present case, there is no dispute about the subsistence ofDthe policy but is one of violation of condition No.6 of the policy.Furthermore, in the present case the controversy will have to beanswered on the basis of Standard Fire and Special Perils Policyrelatable to condition No.6 obligating the insured to giveforthwith intimation of the loss to the insurer. The proviso tocondition No.6 of the subject policy has a negative covenant. TheEfulfillment of the stipulation in Clause 6 of the general conditionsof the policy is the sine qua non to maintain a valid claim underthe policy. [Para 19, 20] [47-A-B, D]

1.4 The dictum in Galada’s case is in the context of thefacts of that case and does not lay down that on the appointmentFof a surveyor, per se, the insurer is estopped from raising a pleaof violation of the condition warranting a repudiation of the claim.The factum of waiver has to be gathered from the totality of theobtaining circumstances. [Para 21][47-E]

1.5 No explanation was offered for such a long gap of aroundG3 months 25 days, muchless plausible and satisfactoryexplanation. The stipulation in condition No.6 of the policy toforthwith give notice to the insurer is to facilitate the insurer tomake a meaningful investigation into the cause of damage andnature of loss, if any. [Para 22] [47-G]H

1.6 By virtue of the regulations, it is mandatory to appointa surveyor on receipt of intimation about the loss; and thesurveyor so appointed has to discharge his responsibilities andduties specified in the regulations while submitting its report.Thus, the appointment of a surveyor by the respondent afterreceipt of intimation of the loss from the appellant, in the contextof the present insurance policy, coupled with the 2000Regulations and in particular an express stand taken in therepudiation letter sent by the respondent to the appellant afterconsideration of the surveyor’s report, it cannot be construed tobe a case of waiver on the part of the respondent.[Paras 23, 24] [48-B-D]

1.7 The appellant contended that the respondent did nottake a plea that the surveyor was appointed because of statutoryobligation. Such a plea is raised for the first time before this Court.This submission cannot be accepted. The party is not expectedto state the provisions of law in its pleading. The fact that suchobligation flows from the regulation, in that sense, is a mixedquestion of fact and law. The fact remains that the respondenthad appointed a surveyor to enquire into the entire matter andsubmit its report. The surveyor expressly recommended that theclaim was not payable on account of the infringement of Clause 6of the general conditions of the policy. [Para 25] [48-E-F]

1.8 There is no merit in the grievance made by theappellant that the Commission did not consider the issue of waiverfor which the appellant was granted liberty to file review petitionby this Court. It is said so because the Commission consideredthe said issue as the singular issue and after analysing relevantaspects concluded that there was nothing to indicate that therespondent insurer had intentionally or consciously relinquishedor waived its right to reject the claim on delayed intimation ofloss, by appointing a surveyor to assess the loss claimed by theinsured. [Para 26] [48-G-H]

1.9 The conclusion of the Commission that therespondent (insurer) had not waived the condition relating to delaystipulated in Clause 6 of the general conditions of the policy, byappointing a surveyor is upheld. [Para 28] [49-C-D]

AB

C

DE

F

G

H

AGalada Power and Telecommunication Ltd. v. UnitedIndia Insurance Co. Ltd. and Another (2016) 14 SCC161 – distinguished.

Oriental Insurance Co. Ltd. v. Parvesh Chander ChadhaMANU/SC/1343/2010 ; New India Assurance CompanyBLtd v. Trilochan Jane First Appeal No. 321 of 2005dated 9[th] December, 2009 ; State of Punjab v. DavinderPal Singh Bhullar and Others (2011) 14 SCC 770 :[2011] 15 SCR 540 ; Reliance General InsuranceCompany Ltd. v. Harleen Kaur in Revision PetitionNo. 2850 of 2015 – referred to.

C

Case Law Reference

DCIVIL APPELLATE JURISDICTION : Civil AppealNos. 1217-1218 of 2017.

From the Judgment and Order dated 10.12.2015 and 25.10.2016of the National Consumer Disputes Redressal Commission, New Delhiin Consumer Complaint No. 20 of 2006 and Review Application No. 77of 2016 respectively.E

Jitendra Mohan Sharma, Sr. Adv., Sameer Singh, Ajit Sharma,Sandeep Singh, Joseph Fernandes, Advs. for the Appellant.

Joy Basu, Sr. Adv., J. P. N. Shahi, Ms. Garima Prashad, Advs.for the Respondent.

F

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. The appellant filed a complaintbefore the National Consumer Disputes Redressal Commission, NewDelhi being Consumer Complaint No.20 of 2006, asserting that it hadtaken an Insurance Policy from the respondent (Insurance Company)Gfor a period of one year from 19[th] July, 2004 to 18[th] July, 2005, in respectof its building, plant and machinery at plot No.70/3, B.K. TextileCompound, Dan Udyog Sangh Ltd., Piparia, Silvassa, Dadra Nagar,Haveli, for a sum assured of Rs.2,87,00,000/- (Two Crore Eighty SevenLakh Only) on reinstatement value basis. Due to torrential rains andfloods in the entire area, the water gushed into the factory premises H

causing damage to the machinery as well as raw material lying therein.This event occurred on 4[th] August, 2004. Intimation of the loss wasgiven to the respondent after a gap of 3 months 25 days, on 30[th] November,2004. Thereafter, the respondent appointed a surveyor to assess theloss caused due to the flooding of the factory premises. The surveyorafter causing inspection submitted its report to the respondent inter aliastating that the claim was not payable on account of the failure of thecomplainant to comply with the mandate of Clause 6 of the generalconditions of the policy. Acting upon the said report, the respondent videletter dated 18[th] February, 2005 conveyed rejection of the claim to theappellant on the ground that neither the intimation of the loss had beengiven to it immediately nor were the requisite particulars of the lossconveyed within stipulated period. Thus, there was breach of terms andconditions of Clause 6 of the general conditions of the policy.

2. As a sequel, the appellant approached the Commission for adeclaration that the respondent was guilty of deficiency in service aswell as unfair trade practices. Additionally, to direct the respondent tosanction the genuine claim of the appellant and reimburse the loss causedto it due to the floods to the tune of Rs.2,66,05,000/-(Two Crore SixtySix Lakh Five Thousand Only) with interest at the rate of 21% perannum from the date of incident till realization of the same. Theappellant also prayed for compensation amount of Rs.5,00,000/- (FiveLakh Only) towards mental agony and cost and further an amount ofRs.1,00,000/- (One Lakh Only) towards incidental expenses.

3. The complaint was opposed by the respondent on the groundthat there was gross violation of the terms and conditions of the policyas no intimation muchless immediate information about the loss wasgiven to the Insurance Company nor was a claim lodged with therequisite particulars within the time stipulated in the policy.

4. This objection commended to the Commission as a result ofwhich, the complaint filed by the appellant came to be dismissed by thejudgment and order dated 10[th] December, 2015 on the following terms:

“5. It would thus be seen that as per the terms and conditions ofthe policy taken by it, there were three obligations on thecomplainant/insured. The first obligation was to give notice of theloss to the insurer, immediately on the said loss taking place. Thesecond obligation on the complainant was to submit a claim for A

B

C

DE

F

G

H

A

B

C

D

E

F

G

H

the loss or damage, giving all necessary particulars of the loss,within a period of 15 days or such other time as the insurer mightallow. The third obligation on the insured was to intimate theinsurer, within six months of the date of the loss, that it intended toreplace or reinstate the property which had been destroyed ordamaged.

6. It is not in dispute that the alleged loss despite having occurredon 04.08.2004 was reported to the Insurance Company only on30.11.2004. Thus neither immediate intimation of the loss wasgiven to the Insurance Company nor was a claim lodged with therequisite particulars within the time stipulated in the policy. Thecomplainant Company, therefore, contravened clause 6 of theinsurance policy taken by it on account of the above referred twodefaults.

7. It is contended by the learned counsel for the complainant thatthe requirement of intimating the insurer and submitting a claimwithin 15 days of the loss stands superseded by clause 4(3)applicable to reinstatement value policies, which required therequisite intimation to be given within six months of the date ofloss. I, however, find no merit in the contention. The obligation ofthe insured under clause 4(3) applicable to reinstatement valuepolicies was independent of the obligation placed upon it underclause 3 of the said policy. Under clause 3 of the policy, theinsurer was to be informed immediately on happening of the lossfollowed by lodging of the claim with necessary particulars within15 days of the loss or within such further time as should beextended by the insurer, whereas under clause 4(3), which wasapplicable to reinstatement value policies, it has to express itsintention to replace or reinstate the property which had beendestroyed or damaged. There is no question of any supersessionof clause 6 of the policy by clause 4(3), applicable toreinstatement value policies, the reinstatement of these clausesbeing distinct and separate from each other.

8. For the reasons stated hereinabove, I have no hesitation inholding that the complainant committed breach of clause 6 of theinsurance policy, and therefore as stipulated in the said clause, noclaim under the policy is payable.

The complaint is, therefore, dismissed with no order as to costs.”

5. The aforementioned decision was assailed before this Court byway of Civil Appeal No……..(D.No.6048 of 2016). This Court videorder dated 26[th] February, 2016, relegated the parties before theCommission by giving liberty to the appellant to file a review petitionbefore the Commission on the singular contention of waiver of conditionstipulated in Clause No.6 by the respondent. The order reads thus:

“O R D E R

Delay condoned.

Heard Mr. Jitendra Mohan Sharma, learned senior counsel forthe appellant. It is submitted by the learned counsel that theinsurer has waived the condition relating to delay inintimation by appointing a surveyor.

On a perusal of the order passed by the National ConsumerDisputes Redressal Commission (N.C.D.R.C.), New Delhi, wedo 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 anapplication for review and put forth the issue of waiver before theN.C.D.R.C. within a period of four weeks hence. TheN.C.D.R.C. will entertain the application for review singularly onthis score.

With the aforesaid observation, the appeal is disposed of.”

(emphasis supplied)

It is noticed that no liberty was given to the appellant to challengethe judgment and order dated 10[th] December, 2015 passed by theCommission, in the event the review petition was decided against theappellant.

6. Be that as it may, as per the liberty given by this Court theappellant preferred a review petition before the Commission bearingReview Petition No.662 of 2016. The singular issue as to whether therespondent (insurer) had waived the condition relating to delay inintimation by appointing a surveyor was considered by the Commission.The Commission adverted to the decision of this Court in OrientalInsurance Co. Ltd. Versus Parvesh Chander Chadha[1]. It thennoticed the decision of the Commission in New India Assurance 1 MANU/SC/1343/2010 Civil Appeal No.6739 of 2010 dated 17th August, 2010

AB

C

D

E

F

G

H

ACompany Ltd Versus Trilochan Jane[2]. Additionally, the Commissionadverted to the decision in State of Punjab Versus Davinder Pal SinghBhullar and Others[3]and on analysing the factual matrix concludedthat there was nothing to indicate an intentional and consciousrelinquishment by the respondent (insurer) of its right to reject the claimon account of the delayed intimation of the loss, by appointing aBsurveyor to assess the loss claimed by the insured (appellant). TheCommission distinguished the decision of this Court in Galada Powerand Telecommunication Ltd. Versus United India Insurance Co.Ltd. and Another,[4] which was profusely relied upon by the appellantas not applicable to the facts of the present case. At the end, theCCommission also relied on the observation in Reliance GeneralInsurance Company Ltd. Versus Harleen Kaur[5].

7. The review petition filed by the appellant was accordinglydismissed vide judgment and order dated 25[th] October, 2016. Both thedecisions of the Commission dated 25[th] October, 2016 in ReviewDApplication No.77 of 2016 and dated 10[th] December, 2015 in ConsumerComplaint No.20 of 2006 have been assailed in the present appeals.

8. The appellant would contend that the issue is no more resintegra. For, this Court in Galada Power and TelecommunicationLtd. (supra), while considering similar contention has held that theEinsurer having appointed a surveyor despite stipulation such as in Clause6, waives its right to advance the plea that the claim was not entertainablebecause of the condition enumerated in duration clause was notsatisfied.

9. Per contra, the respondent would contend that the dictum inFthe said decision is contextual and in the backdrop of the factual matrixof that case. In other words, the issue of waiver by the insurer has beenanswered against the insurer not merely because of appointing asurveyor despite the stipulation in the policy, but the Court at more thanone place while analysing the facts noted the additional circumstancethat the letter of repudiation sent by the insurer merely stated that, theGclaim lodged by the insured was not falling under the purview of thetransit loss. The Court opined that the appointment of a surveyor despite 2 First Appeal No.321 of 2005 dated 9th December, 20093 (2011) 14 SCC 770

4 (2016) 14 SCC 161H5 In Revision Petition No.2850 of 2015

the stipulation in Clause 5 therein was a positive action taken by theinsurer reinforcing the finding of waiver of its right to advance the pleathat the claim was not entertainable because the condition enumeratedin duration clause was not satisfied.

10. We have heard Mr. Jitendra Mohan Sharma, learned seniorcounsel for the appellant and Mr. Joy Basu, learned senior counsel forthe respondent.

11. The singular question involved in these appeals is whether therespondent (insurer) had waived the condition relating to delay inintimation, by appointing a surveyor.

12. It is well established position that waiver is an intentionalrelinquishment of a right. It must involve conscious abandonment of anexisting legal right, advantage, benefit, claim or privilege, which exceptfor such a waiver, a party could have enjoyed. It is an agreement not toassert a right. To invoke the principle of waiver, the person who is saidto have waived must be fully informed as to his rights and with fullknowledge about the same, he intentionally abandons them. [See para41 of State of Punjab (supra)]. There must be a specific plea of waiver,much less of abandonment of a right by the opposite party.

13. We shall, therefore, first traverse through the pleadings of theparties. The appellant has asserted that it was pointed out to therespondent that the act of appointing surveyor by the respondent was animplied consent of condoning the delay. In case the respondent wantedto repudiate the appellant’s claim only on the technical ground of 15days’ delay, it should have done at the first instance and there was noneed to have appointed a surveyor thereafter.

14. The respondent while refuting the said assertion of theappellant stated in the written version filed before the Commission thatthe appellant was negligent in dealing with its affairs, including in thematter of informing the respondent forthwith about the claim after theloss or damage caused on account of flooding as was essential as percondition No.6 of the policy. Condition No.6 of the policy reads thus:

“6. (i) On the happening of any loss or damage the insured shallforthwith give notice thereof to the Company and shall within 15days after the loss or damage, or such further time as the A

B

C

D

E

F

G

H

ACompany may in writing allow in that behalf, deliver to theCompany

……………………………..

No Claim under this policy shall be payable unless the terms ofthis condition have been complied with.”B

The respondent also urged that after the receipt of the claimintimation from the Bank, it immediately appointed M/s. SaranEngineers & Consultants to survey and assess the loss. The surveyorafter visiting the premises gave a detailed report dated 29[th] December,2004 including its recommendation that the loss is not payable as per theCpolicy (B) General Conditions, Para 6. On the basis of that report andkeeping in mind the terms and conditions of the policy, the respondentrepudiated the claim in terms of policy condition No.6 and intimated therepudiation of the claim to the appellant vide letter dated 18[th] February,2005. The respondent also asserted that the true import of the letter ofDrepudiation is a matter of interpretation. In any case, the appointment ofthe surveyor was necessary, otherwise the appellant would havecomplained about the non-appointment of the surveyor. The respondenturged that the appellant was in breach of the policy condition.

15. The Commission considered the pleadings of the parties andEincluding condition No.6 of the Insurance Policy, the repudiation letterdated 18[th] February, 2005 and the Surveyor’s Report which hadrecommended that the loss as such is not payable as per the Policy. TheCommission then went on to distinguish the decision in Galada Powerand Telecommunication’s case, (supra).

16. In the said case, the issue of waiver was decided on the factsFof that case as is evinced from the dictum in paragraphs 18-20 of thesaid decision. The same reads thus:

“18. In the instant case, the insurer was in custody of thepolicy. It had prescribed the clause relating to duration. Itwas very much aware about the stipulation made in ClausesG5(3) to 5(5), but despite the stipulations therein, it appointeda surveyor. Additionally, as has been stated earlier, in theletter of repudiation, it only stated that the claim lodged bythe insured was not falling under the purview of transit loss.Thus, by positive action, the insurer has waived its right toHadvance the plea that the claim was not entertainable because conditions enumerated in duration clause were notsatisfied. In our considered opinion, the National Commissioncould not have placed reliance on the said terms to come to theconclusion that there was no policy cover in existence and thatthe risks stood not covered after delivery of goods to the consignee.

19. Coming to the merits of the claim, we find that the surveyorhad given a report that there was a loss. He had alsoquantified it. The State Commission after elaborate discussionhas held as follows:

‘The surveyor also confirmed in their reports, the shortage/loss ofAAAC due to pilferage during transit and estimated the loss asper Ext. A-12. This shortage was also confirmed by KatigorahPolice as per Ext. A-13 and as reiterated earlier by the TakeoverCertificate, Ext. A-19. Taking into consideration that the surveyorsappointed by the insurance company have completed theirinvestigation and submitted their reports and thereafter aninvestigator was appointed on 16-4-1998 without any valid reasons.It is held by the National Commission in Gammon India Ltd. v.New India Assurance Co. Ltd. that: (CPJ p. 10)

‘… Report of first Surveyor not accepted, second Surveyorappointed — Appointment of second Surveyor not explained —Deficiency in service proved — Report of first Surveyor upheld.…’

and the investigator in the instant case submitted his report on28-12-1998 i.e. almost 8 months after his appointment. Takinginto consideration all the above submissions, we are of theconsidered opinion that the appellant complainant was able toestablish that there was shortage/damage to the consignment whichwas given to the second respondent for transportation.’

20. Though the said aspect has not been gone into by the NationalCommission, yet we find, the findings recorded by the StateCommission are absolutely justified and tenable in law being basedon materials brought on record, in such a situation we do not thinkit appropriate that an exercise of remit should be carried out askingthe National Commission to have a further look at it. In anycase, the exercise of revisional jurisdiction by the NationalCommission is a limited one. We may hasten to add that tosatisfy ourselves, we have perused the surveyor’s report A

B

C

D

E

F

G

H

Aand scrutinised the judgment and order passed by the StateCommission in this regard and we are completely satisfiedthat the determination made by it is absolutely impeccable.”

(emphasis supplied)

17. In the present case, it is common ground that the letter ofBrepudiation dated 18[th] February, 2005 elucidates that the claim of theappellant was rejected on the ground that neither the intimation of theloss had been given to it immediately after the loss nor were therequisite particulars of the loss conveyed within stipulated period andthere was breach of terms and conditions of Clause 6 of the generalCconditions of the policy. Additionally, the surveyor report predicates thatit was very difficult to estimate the damages for the reasons mentionedtherein and that the claim of the appellant was not payable on account ofbreach of Clause 6 of the general conditions of the policy. Thatrecommendation commended to the respondent. It has been soincorporated in the letter of repudiation dated 18[th] February, 2005.D

18. The respondent has rightly pointed out the other distinguishingfeatures in the present case. To wit, in that case [Galada (supra)], theCourt had considered Clause 5 of a Marine Insurance Policy whereinthe issue was whether the insurance cover itself had extinguished byefflux of time and that the intimation given by the insured to the insurerEwas not made within 7 days of arrival of the vehicle at the destinationmentioned in the policy. According to the insurer, on expiry of 7 daysfrom delivery the insurance cover stood perished and no cover wouldsubsist beyond the said 7 days period. It is in that context, the Courtnoted that appointment of the surveyor by the insurer beyond the saidFperiod can be construed as an act of waiver by the insurer of theposition that the policy stands extinguished. In other words, appointmentof a surveyor by the insurer was interpreted as a manifestation of thestand of the insurer that the insurance cover still subsists. This is evidentfrom the dictum in paragraph 13 of the reported decision as the Courtnoted that once a surveyor was nominated to verify the loss, the insurerGcould not be allowed to take a stand that the claim is hit by the clausepertaining to duration and moreso because of absence of any mention inthe letter of repudiation. Thus, it went on to hold that from the positiveconduct of the insurer in unequivocally appointing a surveyor, theinsurer had waived the right which was in its favour under the durationclause.H

19. The expression “duration” is of some significance which isreflective of the existence or otherwise of the policy itself. In the presentcase, there is no dispute about the subsistence of the policy but is one ofviolation of condition No.6 of the policy. Furthermore, in the presentcase the controversy will have to be answered on the basis of StandardFire and Special Perils Policy relatable to condition No.6 obligating theinsured to give forthwith intimation of the loss to the insurer. The twoclauses are materially different and relate to two different and distinctinsurance policies. In other words, Clause 5 of the Marine InsurancePolicy and Clause 6 of the present policy are incomparable beingqualitatively different.

20. To put it differently, Galada’s case (supra) was not a casewhich considered repudiation based on a premise or a reason similar tocondition No.6 of the present policy and a specific plea taken by theinsurer in that behalf in the repudiation letter itself. Notably, Clause 5 ofthe Marine Insurance Policy which was the subject matter in Galada’scase (supra) did not have a negative covenant as in this case in theproviso to condition No.6 of the subject policy. The fulfillment of thestipulation in Clause 6 of the general conditions of the policy is the sinequa non to maintain a valid claim under the policy.

21. We, therefore, agree with the respondent that the dictum inGalada’s case (supra) is in the context of the facts of that case anddoes not lay down that on the appointment of a surveyor, per se, theinsurer is estopped from raising a plea of violation of the conditionwarranting a repudiation of the claim. The factum of waiver has to begathered from the totality of the obtaining circumstances.

22. Suffice it to observe that Galada’s case (supra) will be of noavail to the facts and circumstances of the present case. In that, theevent occurred on 4[th] August, 2004 but intimation was given to theinsurer only on 30[th] November, 2004 after a gap of around 3 months 25days. No explanation was offered for such a long gap muchlessplausible and satisfactory explanation. The stipulation in condition No.6of the policy to forthwith give notice to the insurer is to facilitate theinsurer to make a meaningful investigation into the cause of damage andnature of loss, if any. This Court in Parvesh Chander Chadha (supra)has held that it is the duty of insured to inform the loss forthwith after theincident.

AB

C

D

E

F

G

H

A

AB

C

D

E

F

G

H

A

A23. The respondent has also invited our attention to the fact thatin Galada’s case (supra), this Court has had no occasion to consider theefficacy of Insurance Surveyors and Loss Assessors (Licensing,Professional Requirements and Code of Conduct) Regulations, 2000,which came into effect from 14[th] November, 2000. For, the claim inGalada’s case (supra) arose in 1998 and the repudiation took place inB1999. By virtue of the regulations, it is mandatory to appoint a surveyoron receipt of intimation about the loss; and the surveyor so appointedhas to discharge his responsibilities and duties specified in theregulations while submitting its report.

24. Thus, the appointment of a surveyor by the respondent afterCreceipt of intimation of the loss from the appellant, in the context of thepresent insurance policy, coupled with the 2000 Regulations and inparticular an express stand taken in the repudiation letter dated18[th] February, 2005 sent by the respondent to the appellant afterconsideration of the surveyor’s report, it cannot be construed to be aDcase of waiver on the part of the respondent.

25. The appellant would then contend that the respondent did nottake a plea that the surveyor was appointed because of statutoryobligation. Such a plea is raised for the first time before this Court. Eventhis submission does not commend us. For, that plea has been taken asEan additional factor to distinguish the decision in Galada’s case (supra).The party is not expected to state the provisions of law in its pleading.The fact that such obligation flows from the regulation, in that sense, isa mixed question of fact and law. The fact remains that the respondenthad appointed a surveyor to enquire into the entire matter and submit itsreport. The surveyor expressly recommended that the claim was notFpayable on account of the infringement of Clause 6 of the generalconditions of the policy.

26. We also find no merit in the grievance made by the appellantthat the Commission did not consider the issue of waiver for which theappellant was granted liberty to file review petition by this Court. WeGsay so because we find that the Commission considered the said issueas the singular issue and after analysing relevant aspects concluded thatthere was nothing to indicate that the respondent insurer hadintentionally or consciously relinquished or waived its right to reject theclaim on delayed intimation of loss, by appointing a surveyor to assessHthe loss claimed by the insured. For the above reasons, the argument that the Commission has not analysed the said issue, as has been doneby us, will make no difference to the conclusion recorded by it.

27. The appellant has also placed reliance on the decision in OmPrakash Versus Reliance General Insurance and Another,[6] tocontend that the genuine claim of the appellant ought not to be rejectedon technical ground, keeping in mind that the Consumer Protection Actis a beneficial legislation warranting liberal construction. Thatcontention cannot be taken forward at the instance of the appellant whohas failed to fulfill the threshold stipulation contained in Clause 6 of thegeneral conditions of the policy and for which reason must suffer theconsequence. It is not a technical matter but sine qua non for a validclaim to be pursued by the insured, as agreed upon between the parties.

28. In view of the above, we uphold the conclusion of theCommission that the respondent (insurer) had not waived the conditionrelating to delay stipulated in Clause 6 of the general conditions of thepolicy, by appointing a surveyor. Accordingly, these appeals must fail.

29. The appeals are dismissed with no order as to costs.

Nidhi Jain

Appeals dismissed.

6 (2017) 9 SCC 724

A

B

C

D

E

F

G

H