M/S. SONELL CLOCKS AND GIFTS LTD. versus THE NEW INDIA ASSURANCE CO. LTD.

Citation: [2018] 10 S.C.R. 35 · Decided: 21-08-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Dismissed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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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 AND
DR. D. Y. CHANDRACHUD, JJ.]
Consumer Protection Act, 1986 –  Insurance policy – Breach
of – Claim for compensation – On facts, appellant took insurance
policy in respect of its building, plant and machinery – Damage to
appellant’s machinery and raw materials lying in the factory on
account of floods – Delay in intimation of loss to the insurer –
Thereafter, appointment of surveyor by insurer to assess the loss
caused due to flood in the premises – Surveyor’s report – On basis
thereof, rejection of appellant’s claim by insurer, on the ground that
neither the intimation of loss had been given to it nor the requisite
particulars of loss conveyed within the stipulated period – On
appeal, held: Appointment of a surveyor by the insurer after receipt
of intimation of the loss from the appellant, cannot be construed to
be a case of waiver on the part of the insurer of the condition relating
to delay stipulated in the conditions of the policy – Thus, the
Commission rightly held that the insurer had not waived the condition
relating 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 a
right. It must involve conscious abandonment of an existing legal
right, advantage, benefit, claim or privilege, which except for such
a waiver, a party could have enjoyed. It is an agreement not to
assert a right. To invoke the principle of waiver, the person who
is said to have waived must be fully informed as to his rights and
with full knowledge about the same, he intentionally abandons
them. There must be a specific plea of waiver, much less of
abandonment of a right by the opposite party. [Para 12] [43-C-D]
   [2018] 10 S.C.R. 35
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SUPREME COURT REPORTS
[2018] 10 S.C.R.
1.2  In the instant case, it is common ground that the letter
of repudiation elucidates that the claim of the appellant was
rejected on the ground that neither the intimation of the loss had
been given to it immediately after the loss nor were the requisite
particulars of the loss conveyed within stipulated period and there
was breach of terms and conditions of Clause 6 of the general
conditions of the policy. Additionally, the surveyor report
predicates that it was very difficult to estimate the damages for
the reasons mentioned therein and that the claim of the
appellant was not payable on account of breach of Clause 6 of the
general conditions of the policy. That recommendation commended
to the respondent. It has been so incorporated in the letter of
repudiation. [Para 17] [46-B-D]
1.3  The expression “duration” is of some significance which
is reflective of the existence or otherwise of the policy itself. In
the present case, there is no dispute about the subsistence of
the policy but is one of violation of condition No.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 No.6 obligating the insured to give
forthwith intimation of the loss to the insurer. The proviso to
condition No.6 of the subject policy has a negative covenant. The
fulfillment 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. [Para 19, 20] [47-A-B, D]
1.4 The dictum in Galada’s case 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. [Para 21][47-E]
1.5  No explanation was offered for such a long gap of around
3 months 25 days, muchless plausible and satisfactory
explanation. The stipulation in condition No.6 of the policy to
forthwith give notice to the insurer is to facilitate the insurer to
make a meaningful investigation into the cause of damage and
nature of loss, if any. [Para 22] [47-G]
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1.6  By virtue of the regulations, it is mandatory to appoint
a surveyor on receipt of intimation about the loss; and the
surveyor so appointed has to discharge his responsibilities and
duties specified in the regul

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