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

                          [2018] 10 S.C.R. 35                              35


            M/S. SONELL CLOCKS AND GIFTS LTD.                              A
                                   v.
            THE NEW INDIA ASSURANCE CO. LTD.
                (Civil Appeal Nos.1217-1218 of 2017)
                          AUGUST 21, 2018                                  B
      [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
                                                                           C
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     D
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
                                                                           E
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
                                                                           F
       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         G
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]

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                                  35
36            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


A          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
B
     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
C    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
D    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
E    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
F    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
G    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]
H
 M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                       37
                ASSURANCE CO. LTD.

      1.6 By virtue of the regulations, it is mandatory to appoint        A
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.
Thus, the appointment of a surveyor by the respondent after
receipt of intimation of the loss from the appellant, in the context
                                                                          B
of the present insurance policy, coupled with the 2000
Regulations and in particular an express stand taken in the
repudiation letter 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.
[Paras 23, 24] [48-B-D]                                                   C
      1.7 The appellant contended 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.
This submission cannot be accepted. The party is not expected
to state the provisions of law in its pleading. The fact that such        D
obligation flows from the regulation, in that sense, is a mixed
question of fact and law. The fact remains that the respondent
had appointed a surveyor to enquire into the entire matter and
submit its report. The surveyor expressly recommended that the
claim was not payable on account of the infringement of Clause 6
of the general conditions of the policy. [Para 25] [48-E-F]               E

       1.8 There is 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. It is said so because the Commission considered
the said issue as the singular issue and after analysing relevant         F
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. [Para 26] [48-G-H]                                               G
      1.9 The conclusion of the Commission that the
respondent (insurer) had not waived the condition relating to delay
stipulated in Clause 6 of the general conditions of the policy, by
appointing a surveyor is upheld. [Para 28] [49-C-D]
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38             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A          Galada Power and Telecommunication Ltd. v. United
           India Insurance Co. Ltd. and Another (2016) 14 SCC
           161 – distinguished.
           Oriental Insurance Co. Ltd. v. Parvesh Chander Chadha
           MANU/SC/1343/2010 ; New India Assurance Company
B          Ltd v. Trilochan Jane First Appeal No. 321 of 2005
           dated 9th December, 2009 ; State of Punjab v. Davinder
           Pal Singh Bhullar and Others (2011) 14 SCC 770 :
           [2011] 15 SCR 540 ; Reliance General Insurance
           Company Ltd. v. Harleen Kaur in Revision Petition
           No. 2850 of 2015 – referred to.
C
                               Case Law Reference
           [2011] 15 SCR 540              referred to             Para 6
           (2016) 14 SCC 161              referred to             Para 6

D          CIVIL APPELLATE JURISDICTION : Civil Appeal
     Nos. 1217-1218 of 2017.
            From the Judgment and Order dated 10.12.2015 and 25.10.2016
     of the National Consumer Disputes Redressal Commission, New Delhi
     in Consumer Complaint No. 20 of 2006 and Review Application No. 77
     of 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 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)
G    for a period of one year from 19th July, 2004 to 18th July, 2005, in respect
     of its building, plant and machinery at plot No.70/3, B.K. Textile
     Compound, Dan Udyog Sangh Ltd., Piparia, Silvassa, Dadra Nagar,
     Haveli, for a sum assured of Rs.2,87,00,000/- (Two Crore Eighty Seven
     Lakh Only) on reinstatement value basis. Due to torrential rains and
H    floods in the entire area, the water gushed into the factory premises
 M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                          39
      ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

causing damage to the machinery as well as raw material lying therein.       A
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
                                                                             B
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       C
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    D
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
                                                                             E
Lakh Only) towards mental agony and cost and further an amount of
Rs.1,00,000/- (One Lakh Only) towards incidental expenses.
       3. The complaint was opposed by the respondent on the ground
that there was gross violation of the terms and conditions of the policy
as no intimation muchless immediate information about the loss was
                                                                             F
given to the Insurance Company nor was a claim lodged with the
requisite particulars within the time stipulated in the policy.
     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:
                                                                             G
      “5. It would thus be seen that as per the terms and conditions of
      the policy taken by it, there were three obligations on the
      complainant/insured. The first obligation was to give notice of the
      loss to the insurer, immediately on the said loss taking place. The
      second obligation on the complainant was to submit a claim for
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40      SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A    the loss or damage, giving all necessary particulars of the loss,
     within a period of 15 days or such other time as the insurer might
     allow. The third obligation on the insured was to intimate the
     insurer, within six months of the date of the loss, that it intended to
     replace or reinstate the property which had been destroyed or
     damaged.
B
     6. It is not in dispute that the alleged loss despite having occurred
     on 04.08.2004 was reported to the Insurance Company only on
     30.11.2004. Thus neither immediate intimation of the loss was
     given to the Insurance Company nor was a claim lodged with the
     requisite particulars within the time stipulated in the policy. The
C    complainant Company, therefore, contravened clause 6 of the
     insurance policy taken by it on account of the above referred two
     defaults.
     7. It is contended by the learned counsel for the complainant that
     the requirement of intimating the insurer and submitting a claim
D    within 15 days of the loss stands superseded by clause 4(3)
     applicable to reinstatement value policies, which required the
     requisite intimation to be given 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
E    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
F    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
G    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.
H     The complaint is, therefore, dismissed with no order as to costs.”
    M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                         41
         ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

       5. The aforementioned decision was assailed before this Court by        A
way of Civil Appeal No……..(D.No.6048 of 2016). This Court vide
order dated 26th February, 2016, relegated the parties before the
Commission by giving liberty to the appellant to file a review petition
before the Commission on the singular contention of waiver of condition
stipulated in Clause No.6 by the respondent. The order reads thus:
                                                                               B
                                    “O R D E R
         Delay condoned.
         Heard Mr. Jitendra Mohan Sharma, learned senior counsel for
         the appellant. It is submitted by the learned counsel that the
         insurer has waived the condition relating to delay in                 C
         intimation by appointing a surveyor.
         On a perusal of the order passed by the National Consumer
         Disputes Redressal Commission (N.C.D.R.C.), New Delhi, we
         do not find that the said issue was raised before the N.C.D.R.C.
                                                                               D
         In view of the aforesaid, we permit the appellant to file an
         application for review and put forth the issue of waiver before the
         N.C.D.R.C. within a period of four weeks hence. The
         N.C.D.R.C. will entertain the application for review singularly on
         this score.
                                                                               E
         With the aforesaid observation, the appeal is disposed of.”
                                                         (emphasis supplied)
      It is noticed that no liberty was given to the appellant to challenge
the judgment and order dated 10th December, 2015 passed by the
Commission, in the event the review petition was decided against the           F
appellant.
      6. Be that as it may, as per the liberty given by this Court the
appellant preferred a review petition before the Commission bearing
Review Petition No.662 of 2016. The singular issue as to whether the
respondent (insurer) had waived the condition relating to delay in             G
intimation by appointing a surveyor was considered by the Commission.
The Commission adverted to the decision of this Court in Oriental
Insurance Co. Ltd. Versus Parvesh Chander Chadha 1. It then
noticed the decision of the Commission in New India Assurance
1
    MANU/SC/1343/2010 Civil Appeal No.6739 of 2010 dated 17 th August, 2010
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42              SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A    Company Ltd Versus Trilochan Jane2. Additionally, the Commission
     adverted to the decision in State of Punjab Versus Davinder Pal Singh
     Bhullar and Others3 and on analysing the factual matrix concluded
     that there was nothing to indicate an intentional and conscious
     relinquishment by the respondent (insurer) of its right to reject the claim
     on account of the delayed intimation of the loss, by appointing a
B
     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,4 which was profusely relied upon by the appellant
     as not applicable to the facts of the present case. At the end, the
C    Commission also relied on the observation in Reliance General
     Insurance Company Ltd. Versus Harleen Kaur5.
           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
D    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
E    insurer having appointed a surveyor despite stipulation such as in Clause
     6, waives its right to advance the plea that the claim was not entertainable
     because of the condition enumerated in duration clause was not
     satisfied.
            9. Per contra, the respondent would contend that the dictum in
F    the said decision is contextual and in the backdrop of the factual matrix
     of that case. In other words, the issue of waiver by the insurer has been
     answered against the insurer not merely because of appointing a
     surveyor despite the stipulation in the policy, but the Court at more than
     one place while analysing the facts noted the additional circumstance
     that the letter of repudiation sent by the insurer merely stated that, the
G    claim lodged by the insured was not falling under the purview of the
     transit loss. The Court opined that the appointment of a surveyor despite
     2
       First Appeal No.321 of 2005 dated 9 th December, 2009
     3
       (2011) 14 SCC 770
     4
       (2016) 14 SCC 161
     5
H      In Revision Petition No.2850 of 2015
 M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                          43
      ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

the stipulation in Clause 5 therein was a positive action taken by the       A
insurer reinforcing the finding of waiver of its right to advance the plea
that the claim was not entertainable because the condition enumerated
in duration clause was not satisfied.
       10. We have heard Mr. Jitendra Mohan Sharma, learned senior
counsel for the appellant and Mr. Joy Basu, learned senior counsel for       B
the respondent.
      11. The singular question involved in these appeals is whether the
respondent (insurer) had waived the condition relating to delay in
intimation, by appointing a surveyor.
       12. It is well established position that waiver is an intentional     C
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         D
knowledge about the same, he intentionally abandons them. [See para
41 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 the
parties. The appellant has asserted that it was pointed out to the           E
respondent that the act of appointing surveyor by the respondent was an
implied consent of condoning the delay. In case the respondent wanted
to repudiate the appellant’s claim only on the technical ground of 15
days’ delay, it should have done at the first instance and there was no
need to have appointed a surveyor thereafter.
                                                                             F
       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:       G
      “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

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44            SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A          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.”
B
            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 dated 29th December,
     2004 including its recommendation that the loss is not payable as per the
C    policy (B) General Conditions, Para 6. On the basis of that report and
     keeping in mind the terms and conditions of the policy, the respondent
     repudiated the claim in terms of policy condition No.6 and intimated the
     repudiation of the claim to the appellant vide letter dated 18th February,
     2005. The respondent also asserted that the true import of the letter of
D    repudiation is a matter of interpretation. In any case, the appointment of
     the surveyor was necessary, otherwise the appellant would have
     complained about the non-appointment of the surveyor. The respondent
     urged that the appellant was in breach of the policy condition.
           15. The Commission considered the pleadings of the parties and
E    including condition No.6 of the Insurance Policy, the repudiation letter
     dated 18th February, 2005 and the Surveyor’s Report which had
     recommended that the loss as such is not payable as per the Policy. The
     Commission then went on to distinguish the decision in Galada Power
     and Telecommunication’s case, (supra).

F           16. In the said case, the issue of waiver was decided on the facts
     of that case as is evinced from the dictum in paragraphs 18-20 of the
     said decision. The same reads thus:
           “18. 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 Clauses
G
           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
H          advance the plea that the claim was not entertainable
M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                         45
     ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

   because conditions enumerated in duration clause were not               A
   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.
   19. Coming to the merits of the claim, we find that the surveyor        B
   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          C
   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.      D
   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.…’       E

   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       F
   was given to the second respondent for transportation.’
   20. 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     G
   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 surveyor’s report
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46             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A          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.”
                                                          (emphasis supplied)
            17. In the present case, it is common ground that the letter of
B    repudiation dated 18th February, 2005 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
C    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 dated 18th February, 2005.
D
            18. The respondent has rightly pointed out the other distinguishing
     features in the present case. To wit, in that case [Galada (supra)], the
     Court had considered Clause 5 of a Marine Insurance Policy wherein
     the issue was whether the insurance cover itself had extinguished by
     efflux of time and that the intimation given by the insured to the insurer
E    was not made within 7 days of arrival of the vehicle at the destination
     mentioned in the policy. According to the insurer, on expiry of 7 days
     from delivery the insurance cover stood perished and no cover would
     subsist beyond the said 7 days period. It is in that context, the Court
     noted that appointment of the surveyor by the insurer beyond the said
F    period can be construed as an act of waiver by the insurer of the
     position that the policy stands extinguished. 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
G    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
H    clause.
 M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                              47
      ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

       19. The expression “duration” is of some significance which is            A
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
                                                                                 B
insured to give forthwith intimation of the loss to the insurer. The two
clauses are materially different and relate to two different and distinct
insurance policies. In other words, Clause 5 of the Marine Insurance
Policy and Clause 6 of the present policy are incomparable being
qualitatively different.
       20. To put it differently, Galada’s case (supra) was not a case           C
which considered repudiation based on a premise or a reason similar to
condition No.6 of the present policy and a specific plea taken by the
insurer in that behalf in the repudiation letter itself. Notably, Clause 5 of
the Marine Insurance Policy which was the subject matter in Galada’s
case (supra) did not have a negative covenant as in this case in the             D
proviso to condition No.6 of the subject policy. 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.
      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            E
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.
       22. Suffice it to observe that Galada’s case (supra) will be of no        F
avail to the facts and circumstances of the present case. In that, the
event occurred on 4th August, 2004 but intimation was given to the
insurer only on 30th November, 2004 after a gap of around 3 months 25
days. No explanation was offered for such a long gap 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       G
insurer to make a meaningful investigation into the cause of damage and
nature 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 the
incident.
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48             SUPREME COURT REPORTS                         [2018] 10 S.C.R.


A          23. The respondent has also invited our attention to the fact that
     in Galada’s case (supra), this Court has had no occasion to consider the
     efficacy of Insurance Surveyors and Loss Assessors (Licensing,
     Professional Requirements and Code of Conduct) Regulations, 2000,
     which came into effect from 14th November, 2000. For, the claim in
     Galada’s case (supra) arose in 1998 and the repudiation took place in
B
     1999. 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
     regulations while submitting its report.
            24. Thus, the appointment of a surveyor by the respondent after
C    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
     18 th February, 2005 sent by the respondent to the appellant after
     consideration of the surveyor’s report, it cannot be construed to be a
D    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
E    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 that sense, is
     a mixed question of fact and law. The fact remains that the respondent
     had appointed a surveyor to enquire into the entire matter and submit its
     report. The surveyor expressly recommended that the claim was not
F    payable on account of the infringement of Clause 6 of the general
     conditions of the policy.
            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
G    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
H    the loss claimed by the insured. For the above reasons, the argument
    M/S. SONELL CLOCKS AND GIFTS LTD. v. THE NEW INDIA                          49
         ASSURANCE CO. LTD. [A. M. KHANWILKAR, J.]

that the Commission has not analysed the said issue, as has been done           A
by us, will make no difference to the conclusion recorded by it.
       27. The appellant has also placed reliance on the decision in Om
Prakash Versus Reliance General Insurance and Another, 6 to
contend that the genuine claim of the appellant ought not to be rejected
on technical ground, keeping in mind that the Consumer Protection Act           B
is a beneficial legislation warranting liberal construction. That
contention cannot be taken forward at the instance of the appellant who
has failed to fulfill the threshold stipulation contained in Clause 6 of the
general conditions of the policy and for which reason must suffer the
consequence. It is not a technical matter but sine qua non for a valid
claim to be pursued by the insured, as agreed upon between the parties.         C

       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 conditions of the
policy, by appointing a surveyor. Accordingly, these appeals must fail.
                                                                                D
         29. The appeals are dismissed with no order as to costs.


Nidhi Jain                                                 Appeals dismissed.


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6
    (2017) 9 SCC 724

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