Case: M/S Galada Power &amp; Telecomun.Ltd Vs. United India Insurnce Co.Ltd

John Romilly, M.R. has observed in Vyvyan v. Vyvyan, (1861) 30 Beav 65 : 54 ER 813: (Beav p. 75 : ER p. 817) `Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim." 15. Yet again, in Krishna Bahadur v. Purna Theatre, 2004(4) S.C.T. 137 : (2004) 8 SCC 229 , it has been ruled that:- "A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." 16. In State of Punjab v. Davinder Pal Singh Bhullar, 2012(1) R.C.R.(Criminal) 126 : 2011(6) Recent Apex Judgments (R.A.J.) 303 : (2011) 14 SCC 770 , a two-Judge Bench speaking about the waiver has opined:- "41. Waiver is an intentional 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 relinquishment 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 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 entertain able because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National 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.18. Coming to the merits of the claim, we find that the surveyor had given a report that there was a loss. He had also quantified it. The State Commission after elaborate discussion has held as follows:- "The surveyor also confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ex.A12. This shortage was also confirmed by Katigorah police as per Ex.A13 and as reiterated earlier by the Tage Over Certificate, Ex.A19. Taking into consideration that the surveyros appointed by the insurance company have completed their investigation and submitted their reports and thereafter an investigator was appointed on 16-4-1998 without any valid reasons. It is held by the National Commission in (2004) 1 CPJ 10 (NC) in Gammon India Ltd., v. New India Assurance Co. Ltd. that Report of first surveyor not accepted, second surveyor appointed-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 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 surveyors report and scrutinised 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 entertain able because conditions enumerated in duration clause were not satisfied. In our considered opinion, the National 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.18. Coming to the merits of the claim, we find that the surveyor had given a report that there was a loss. He had also quantified it. The State Commission after elaborate discussion has held as follows:"The surveyor also confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ex.A12. This shortage was also confirmed by Katigorah police as per Ex.A13 and as reiterated earlier by the Tage Over Certificate, Ex.A19. Taking into consideration that the surveyros appointed by the insurance company have completed their investigation and submitted their reports and thereafter an investigator was appointed onwithout any valid reasons.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 surveyors report and scrutinised 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.