TaxTMI 
TaxTMI 
2018 (8) TMI 1910
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....terial 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 ....
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.... within six months of the date of loss. I, however, find no merit in the contention. The obligation of the insured under clause 4(3) applicable to reinstatement value policies was independent of the obligation placed upon it under clause 3 of the said policy. Under clause 3 of the policy, the insurer was to be informed immediately on happening of the loss followed by lodging of the claim with necessary particulars within 15 days of the loss or within such further time as should be extended by the insurer, whereas under clause 4(3), which was applicable to reinstatement value policies, it has to express its intention to replace or reinstate the property which had been destroyed or damaged. There is no question of any supersession of clause 6 of the policy by clause 4(3), applicable to reinstatement value policies, the reinstatement of these clauses being distinct and separate from each other. 8. For the reasons stated hereinabove, I have no hesitation in holding that the complainant committed breach of clause 6 of the insurance policy, and therefore as stipulated in the said clause, no claim under the policy is payable. The complaint is, therefore, dismissed with n....
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....uishment by the respondent (insurer) of its right to reject the claim on account of the delayed intimation of the loss, by appointing a surveyor to assess the loss claimed by the insured (appellant). The Commission distinguished the decision of this Court in Galada Power and Telecommunication Ltd. Versus United India Insurance Co. Ltd. and Another (2016) 14 SCC 161) which was profusely relied upon by the appellant as not applicable to the facts of the present case. At the end, the Commission also relied on the observation in Reliance General Insurance Company Ltd. Versus Harleen Kaur In Revision Petition No.2850 of 2015. 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. 8. The appellant would contend that the issue is no more res integra. For, this Court in Galada Power and Telecommunication Ltd. (supra), while considering similar contention has held that the insurer having appointed a surveyor despite....
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....; delay, it should have done at the first instance and there was no need to have appointed a surveyor thereafter. 14. The respondent while refuting the said assertion of the appellant stated in the written version filed before the 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: "6. (i) On the happening of any loss or damage the insured shall forthwith give notice thereof to the Company and shall within 15 days after the loss or damage, or such further time as the Company may in writing allow in that behalf, deliver to the Company ................................... No Claim under this policy shall be payable unless the terms of this condition have been complied with." The respondent also urged that after the receipt of the claim intimation from the Bank, it immediately appointed M/s. Saran Engineers & Consultants to survey and assess the loss. The surveyor after visiting the premises gave a detailed report dat....
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....so confirmed in their reports, the shortage/loss of AAAC due to pilferage during transit and estimated the loss as per Ext. A-12. This shortage was also confirmed by Katigorah Police as per Ext. A-13 and as reiterated earlier by the Takeover Certificate, Ext. A-19. Taking into consideration that the surveyors 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 Gammon India Ltd. v. New India Assurance Co. Ltd. that: (CPJ p. 10) ""... 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 the second respondent for transportation." 20. Though ....
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....ished. In other words, appointment of a surveyor by the insurer was interpreted as a manifestation of the stand of the insurer that the insurance cover still subsists. This is evident from the dictum in paragraph 13 of the reported decision as the Court noted that once a surveyor was nominated to verify the loss, the insurer could not be allowed to take a stand that the claim is hit by the clause pertaining to duration and moreso because of absence of any mention in the letter of repudiation. Thus, it went on to hold that from the positive conduct of the insurer in unequivocally appointing a surveyor, the insurer had waived the right which was in its favour under the duration clause. 19. 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 tw....
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.... 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 regulations while submitting its report. 24. Thus, the appointment of a surveyor by the respondent after receipt of intimation of the loss from the appellant, in the context of the present insurance policy, coupled with the 2000 Regulations and in particular an express stand taken in the repudiation letter dated 18th February, 2005 sent by the respondent to the appellant after consideration of the surveyor‟s report, it cannot be construed to be a case of waiver on the part of the respondent. 25. The appellant would then contend that the respondent did not take a plea that the surveyor was appointed because of statutory obligation. Such a plea is raised for the first time before this Court. Even this submission does not commend us. For, that plea has been taken as an 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 th....