M/S. Sonell Clocks And Gifts Ltd. vs The New India Assurance Co. Ltd.

1. The appellant filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi being Consumer Complaint No.20 of 2006, asserting that it had taken an Insurance Policy from the respondent (Insurance Company) for a period of one year from 19th July, 2004 to 18th July, 2005, in respect of its building, plant and machinery at Digitally signed by plot No.70/3, B.K. Textile Compound, Dan Udyog Sangh Ltd., DEEPAK GUGLANI Date: 2018.08.21 11:33:23 IST Reason: Piparia, Silvassa, Dadra Nagar, Haveli, for a sum assured of 2 Rs.2,87,00,000/- (Two Crore Eighty Seven Lakh Only) on reinstatement value basis. Due to torrential rains and floods in the entire area, the water gushed into the factory premises causing damage to the machinery as well as raw material lying therein. This event occurred on 4th August, 2004. Intimation of the loss was given to the respondent after a gap of 3 months 25 days, on 30th November, 2004. Thereafter, the respondent appointed a surveyor to assess the loss caused due to the flooding of the factory premises. The surveyor after causing inspection submitted its report to the respondent inter alia stating that the claim was not payable on account of the failure of the complainant to comply with the mandate of Clause 6 of the general conditions of the policy. Acting upon the said report, the respondent vide letter dated 18th February, 2005 conveyed rejection of the claim to the appellant on the ground that neither the intimation of the loss had been given to it immediately nor were the requisite particulars of the loss conveyed within stipulated period. Thus, there was breach of terms and conditions of Clause 6 of the general conditions of the policy.

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

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

14. The respondent while refuting the said assertion of the appellant stated in the written version filed before the 11 Commission that the appellant was negligent in dealing with its affairs, including in the matter of informing the respondent forthwith about the claim after the loss or damage caused on account of flooding as was essential as per condition No.6 of the policy. Condition No.6 of the policy reads thus:

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

7. The review petition filed by the appellant was accordingly dismissed vide judgment and order dated 25th October, 2016. Both the decisions of the Commission dated 25th October, 2016 in Review Application No.77 of 2016 and dated 10th December, 2015 in Consumer Complaint No.20 of 2006 have been assailed in the present appeals.

21. We, therefore, agree with the respondent that the dictum in Galada’s case (supra) is in the context of the facts of that case and does not lay down that on the appointment of a surveyor, per se, the insurer is estopped from raising a plea of violation of the condition warranting a repudiation of the claim. The factum of waiver has to be gathered from the totality of the obtaining circumstances.

26. We also find no merit in the grievance made by the appellant that the Commission did not consider the issue of waiver for which the appellant was granted liberty to file review petition by this Court. We say so because we find that the Commission considered the said issue as the singular issue and after analysing relevant aspects concluded that there was nothing to indicate that the respondent insurer had intentionally or consciously relinquished or waived its right to reject the claim on delayed intimation of loss, by appointing a surveyor to assess the loss claimed by the insured. For the above reasons, the argument that the Commission has not 21 analysed the said issue, as has been done by us, will make no difference to the conclusion recorded by it.

28. In view of the above, we uphold the conclusion of the Commission that the respondent (insurer) had not waived the condition relating to delay stipulated in Clause 6 of the general 6 (2017) 9 SCC 724 22 conditions of the policy, by appointing a surveyor. Accordingly, these appeals must fail.

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

.………………………….CJI.

August 21, 2018.