M/S. GALADA POWER AND TELECOMMUNICATION LTD.versusUNITED INDIA INSURANCE CO. LTD. AND ANOTHER ETC.

                              [2016) 4 S.C.R. 69



     MIS. GALADA POWER AND TELECOMMUNICATION LTD.                              A
                                      v.
    UNITED INDIA INSURANCE CO. LTD. AND ANOTHER ETC.
                    (Civil Appeal Nos. 8884-8900of2010)
                                JULY28, 2016                                   B

              [DIPAK MISRA AND R. F. NARIMAN, JJ.)
           Consu111er Protection Act, 1986: Insurance - Duration Clause
    - Waiver of right under, through positive conduct - Delivery of
    goods - Claim for shortage/Transit loss - In terms of Cl.5
    ('"Duration") such intimation ofloss was to be given to insurer within
                                                                               c
    7 days of arrival of good1· at the destination -Appellant/ co111p/ainant
    made a claim for transit-loss with insurer beyond period of 7 days
    - Insurer appointed surveyor who concluded that there was a loss
    - Despite such report, insurer sent repudiation letter refuting
    appellant's claim stating that claim lodged by appellant did not fall      D
    under the purview of transit-loss - Propriety of - Held: C/.5 of the
    policy related to duration - In absence of any mention of duration
    clause in repudiation letter and from the conduct of insurer in
    appointing a surveyor despite such duration clause, the insurer
    had by positive action waived its right to invoke duration clause -
                                                                               E
    As regards the merit of the claim, the surveyor had given a report
    that there was a loss - No error found in it - Insurer was thus liable
    to pay.
          Waiver - MeaninK of - Explained.
          Allowing the appeals, the Court                                      F


-          HELD: 1.1. CI. 5 of the policy relates to "Duration". Letter
    of repudiation does not whisper a single word with regard to delay
    or, in fact, does not refer at all to duration clause of the policy. It
    states that the claim lodged by the complainant does not fall under
    the purview of transit-loss. The insurer had taken cognizance of           G
    communication made by the appellant and nominated a surveyor
    to verify the loss. Once the said exercise was undertaken, the
    insurer could not be allowed to take a stand that the claim was hit
    by the clause pertaining to duration. In absence of any mention

                                                                               H
                                      69
                                                                             -
70             SUPREME COURT REPORTS                     [2016) 4 S.C.R.


A    in letter of repudiation and also from the conduct of insurer in
     appointing a surveyor, it could be safely concluded that the
     insurer had waived the right which was in its favour under the
     duration clause. [Para 12] (75-G-H; 76-A-BJ
           Krishna Wanti v. Life Insuranr° Corporation of India
B          2000 (52) DRJ (DB) - app1·uved.
           Manak Lal v. Dr. Prem Chand Singhvi AIR 1957 SC
           425 : 1957 SCR 575 - followed.
           Krishna Bahadur v. Purna Theatre (2004) 8 SCC 229 :
           2004 (3) Suppl. SCR 833; State of Punjab v. Davinder
c          Pal Singh Bhullar (2011) 14 SCC 770 : 2011 (15) SCR
           540 - relied on.
           Hals bury s Laws of England Vol.16(2), 4•• Edn. -
           referred to.
D          1.2. In the instant case, the insurer was in custody of the
     policy. It had prescribed clause relating to duration. It was very
     much aware about the stipulations therein, it appointed a surveyor.
     Additionally, in repudiation letter, it only stated that claim lodged
     by the insured was not falling under the purview of transit loss.
     Thus, by positive action, the insurer waived its right to advance
E    the plea that the claim was not entertainable because conditions        -
     enumerated in duration clause were not satisfied. The National
     Commission could Iiot 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. [Para 17] (78-E-G]                             ·
F
                            Case Law Reference
        2000 (52) DRJ (DB)                approved           Para 12
        1957 SCR 575                      followed           Para 14
        2004 (3) Suppl. SCR 833           relied on          Para 15
G
        2011 (15) SCR 540                 relied on          Para 16
           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8884-
     8900 of20 I 0.
          From the Judgment and Order dated 06.01.2009 of the National
H    Consumer Disputes Redressal Commission, New Delhi in Revision
 M/S. GALADA POWER AND TELECOMMUNICATION LTD.                              71
         v. UNITED !NOIA INSURANCE CO. LTD.

Petition Nos. 2774-2790 of2006.                                            A
     Rana Mukhe1jee, Sr. Adv., D. Bharat Kumar, T. Bhaskar
Gowtham, Abhij it Sengupta, Ad vs. for the Appellant.
     Rakesh Kumar, Arun Kumar, Bipin Kumar, Prabhat Kaushik,
Rameshwar Prasad Goyal. M. K. Dua, Advs. for the Respondents.
                                                                           B
      The Judgment of the Cou11 was delivered by
       DIPAK MISRA, J. 1. The appellant-complainant filed a batch
of2 l complaints i.e. C.D. Nos.539 to 559 of2000, claiming compensation
ofRs.43.59 lacs along with interest@ 18% p.a. from the respondents,
namely, United India Insurance Company Limited and India Transport         c
Organization, on the ground that there had been sho11age/loss of' All
Aluminium Alloy Conductor' (for short, 'AAAC') wire, which was
supplied by the complainant to the Power Grid Corporation of India
Limited (PGCIL). The case of the complainant before the Consumer
Disputes Redressal Forum, Ranga Reddy District (for short, 'the District
Forum') was that between 1.3.1998 to 13.4.1998, twenty-one trucks of       D
AAAC wire packed in wooden drums were delivered at stores of PGCIL
at Assam. In all the trucks shortage was noticed by PGCIL on 25'11
March, 1998. As there was shortage, which is called transit-loss for
which the appellant had taken a policy from the insurer, it put forth a
claim before the insurer for Rs.35 lacs. The said claim was lodged          E
before the insurance compai1y vide letter dated 3rd April, 1998.
       2. On the basis of the communication made by the appellant, the
insurer appointed a surveyor who gave a repo11 on I" September, 1998,
assessing the loss approximately at Rs.2 lacs in each case, thereby the .
amount in toto assessed by the surveyor was approximately Rs.43 lacs. F
Though the surveyor had assessed the loss and sent it to the insurance
company, the insurer vide letter dated 20' 11 September, 1999, repudiated
the claim by stating thus:-
      " Dear Si rs,
                                     .•.
       Re:       Marine claim No.050202/2112617I18/97I                      G
                  Policy No.050202/21/26/16/2101/97
      On perusal of the records pe11aining to the above claim, and
      subsequent investigation into the matter, we find that the above
      claim lodged by you does not fall under the purview of"TRANSIT
                                                                            H
72             SUPREME COURT REPORTS                        [2016] 4 S.C.R.



A          LOSS". As such, the claim is not tenable under the terms of the
           policy. In view of this, we are treating your above claim as "NO
           CLAIM''."
                                                           [Emphasis added]
           3. As the claim was not accepted, the appellant knocked at the
B    doors of the District Forum for grant of compensation, but the District
     Forum declined to accept the claim on three counts, namely, that there
     was non-joinder of necessary parties; that the al legation of theft was
     not proved; and that in a summary proceeding the factual dispute could
     not be decided.
c           4. Dissatisfied by the order passed by the District Forum, the
     appellant preferred twenty-one appeals before the Andhra Pradesh
     Consumer Disputes Redressal Commission (for short, 'the State
     Commission'). The State Commission after analysing the materials
     brought on record opined that the investigator could not be relied upon
     as the investigation had been completed after six months from the date
D
     of occurrence; that the report of the investigator could not be said to
     have been based on any material worthy of verification; that since it
     was the carrier who had undertaken to deliver the goods at Assam, it
     was they who are responsible to give reasons as to how, when and
     where the goods were transshipped and in what condition the goods
E    were delivered; that the length and net weight of AAAC wire was
     mentioned on each drum and also dispatch documents and the respondent
     No.2, that is, the carrier company had issued ExhibitA-3 (lorry receipts)
     wherein cross reference to the invoice and delivery challan numbers
     were given which clearly established the fact that the complainant had
     dispatched as per the said Exhibit; that since the persons present at the
F
     site at the relevant point of time i.e. unloading, were the drivers, there
     was no reason to disbelieve their endorsements, specifically when the
     documents, viz., ExhibitsA-25 and 27 confirm the shortage on 25.04.1998
     in 109 drums; that the finding of the District Forum that the complaint
     was not maintainable due to non-joinder of necessary party, that is,
G    PGCfL, was not correct and the complaint could not have been dismissed
     on that score; that the repo11 of the surveyor, that is, Exhibit A-12 was
     based on physical verification of the consignment of AAAC wire and
     hence, the repudiation of claim by the insurer was unjustified; and that
     there was no inordinate d~lay in intimating the claim to the insurance
     company. Being of this view, the State Commission allowed the appeals
H
    M/S. GALADA POWER AND TELECOMMUNICATION LTD.                                 73
   v. UNITED INDIA INSURANCE CO. LTD. [DIPAK MISRA, J.]

  preferred by the appellant and determined the compensation                     A
  approximately at Rs.43 lacs in all the appeals. Be it noted, the State
  Commission while determining the quantum, made the insurer and the
  carrier jointly and severely liable.
         5. The judgment and order passed by the State Commission
  compelled the insurer and the carrier to file independent revisions before     B
  the National Consumer Disputes Redressal Commission, New Delhi (for
  short, 'the National Commission). The revisions preferred by the carrier
• stood dismissed and the same have not been challenged and, therefore,
  the view expressed in the case of the carrier has attained finality.
         6. As far as the insurer is concerned, it preferred twenty-one          c
  revisions, out of which four were dismissed by the National Commission
  vide judgment and order dated 611t March, 2009, on the foundation that
  as they dealt with the transactions pertaining to "open delivery". We
  are not concerned with those four revisions. As far as the seventeen
  revision are concerned, the National Commission allowed them on the
  ground that the intimation by the complainant to the insurer was not           D
  made within seven days of arrival of the vehicles at the destination
  mentioned in the policy. The reasoning of the National Commission is to
  the following effect:-
         " In this regard, the dates of delivery are important to us. As per
         material brought on record, the first intimation of the claim or loss   E
         was reported to the petitioner insurer only on 27.3.1998 and
         confirmed by letter dated 3.4.98. There is no dispute that the
         arrival dates of the different consignments in question start from
         1.3.98 onwards till 11.4.98. In the above circumstances and
         keeping in view the terms of the Policy, condition 5 of Inland           F
         Transit Clause, we are of the view that there was no Policy Cover
         in existence and the risk stood not covered after delivery of goods
         to the consignee. We further note that, even on practical side, not
         reporting the loss in time deprived the Insurer to have a first a
         first hand appreciation/assessment of the extent ofloss, more so
         when, as per statement on record, against number of consignments/       G
         delivery notes it is c!:::arly noted 'seal tempered'.
         There can be no dispute that Insurance is a contract of utmost
         good faith. Failing to report the loss, noted at the time of receipt/
         delivery is a decisive and a determinate factor against the
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74             SUPREME COURT REPORTS                        . [2016] 4 S.C.R.



A          complainant. We also note with some dismay, and wonder as to
           why PGCJL was not made a pai1y as it was at their warehouse in
           Assam that sh011age/loss is alleged to have been notice. It is
           stated by the Ld. Counsel of the Petitioner that an effort was
           made before the State Commission praying for making PGCIL a
           party but it was declined. The whole episode leaves us with a
B
           single thought that complainant did not care for the terms of the
           contract and went on to compound the wrongs.
           Jn retrospect one could only observe that at least in cases/
           consignment where material was found tempered, matter shou Id
           have been reported to the underwriters immediately and delivery
c          should not have been made by the complainant to the consignee
           till the loss had been assessed by the surveyor after perhaps asking
           for an open-delivery. This could have been the case of the
           consignee also - not making him a pai1y should be held against
           the complainant.
D          Jn the aforementioned circumstances, we are of the view that
           there was no coverage of risk at the time of reporting the loss to
           the petitioner/insurer, hence the complainant is not entitled to any
           relief in terms of condition(s) of Policy as also law and other
           material on the subject discussed earlier and also the law laid
E          down by this Commission in the cited judgment (supra)."
            7. Being ofthis view, the National Commission allowed the revision
     petitions and set aside the orders passed by the State Commission.
            8. We have heard Mr. Rana Mukhe1jee, learned senior counsel
     for the appellant and Mr. Rakesh Kumar. learned counsel for the
F    respondent No.2. None has appeared on behalf of the respondent No. I,
     the insurer.
            9. lt is submitted by Mr. Rana Mukhe1:jee, learned senior counsel
     that the National Commission has grossly erred by opining that the PGCIL
     is a necessary pa11y. It is his further submission that the view expressed
G    by the National Commission that the claim stands defeated because of
     delayed intimation as postulated in clause no. 5, of the policy is not
     sustainable, inasmuch as a survey was conducted and that apart the
     letter of repudiation does not refer or even remotely touch upon any of
     the aspects enumerated in clause 5. Additionally, it is urged by Mr.
     Mukherjee, learned senior counsel that the National Commission has
H
  MIS. GALADA POWER AND TELECOMMUNICATION LTD.                                     75
 v. UNITED INDIA INSURANCE CO. LTD. [DIPAK MlSRA, J.]

erroneously held that the complainant went on compounding the wrongs,              A
whereas the material brought on record clearly establish that it was
quite vigilant and diligent in putting forth his claim and, in fact, its conduct
shows intrinsic faith in the insurer.
       I 0. Mr. Rakesh Kumar, learned counsel appearing for the
respondent No.2 made an endeavour to support the order passed by the               B
National Commission, but, as has been stated earlier, when the revisions
preferred by the carrier have already been dismissed and the said orders
have attained finality having not been assailed, we do not think he can be
permitted to argue to sustain the order passed by the National Commission.
Be that as it may, it really does not make any difference.
                                                                                   c
       11.-Clause 5 of the Policy that relates to "Duration", reads as
follows:-
       "5. Duration -      This insurance attaches from the goods leave
       the warehouse and/or the store at the placed name in the policy
       for the commencement of transit and continues during the ordinary
                                                                                   D
       course of transit including customary transhipment if any,
       (i) until delivery to the final warehouse at the destination named in
       the
       (ii) in respect of transit by Rail only or Rail and Road, until expiry
       of7 days after arrival of the railway wagon at the final destination
                                                                                    E
       railway station or
       (iii) in respect of transit by Road only until expirty of7 days after
       arrival of the vehicle at the destination town named in the policy
       whichever shall first occur.
       N.B. I. The period of 7 days referred to abvoe shall reckoned
                                                                                    F
       from the midnight of the day of arrival of railway wagon at the
       destination railway station or
       2. Transit by Rail only shall incidental transit by Road performed
       by Railway Authorities to or from Railway Out-Agency."
       12. The National Commission has relied upon Clause 5 and on
                                                                                    G
that basis has rejected the claim by putting the blame on the complainant.
The letter of repudiation dated 2Q 1h September, 1999, which we have
reproduced hereinbefore, interestingly, does not whisper a single word
with regard to delay or, in fact, does not refer at all to the duration
clause. What has been stated in the letter of repudiation is that the claim
lodged by the complainant does not fall under the purview of transit-loss           H
76               SUPREME COURT REPORTS                      _ [2016) 4 S.C.R.



A    because of the subsequent investigation report. It is evincible, the insurer
     had taken cognizance of the communication made by the appellant and
     nominated a surveyor to verify the loss. Once the said exercise has
     been undertaken, we are disposed to think that the insurer could not
     have .been allowed to take a stand that the claim is hit by the clause
     pertaining to duration. In the absence of any mention in the letter of
B
     repudiation and also from the conduct of the insurer in app9inting a
     surveyor, it can safely be concluded that the insurer had waived the right
     which was in its favour under the duration clause. In this regard, Mr.
     Mukherjee, learned senior counsel appearing for the appellant has
     commended us to a decision of High Court of Delhi in Krishna Wanti v.
c    Life Jnsurance Corporation of I11dia 1• wherein the High Court has
     taken note of the fact that ifthe letter of repudiation did not mention an
     aspect, the sall!e could not be taken as a stand when the matter is decided.
     We approve the said view.
           13. In this context, we may with profit, reproduce a passage from
D    Halsbury Law of England, which reads as follows:-
             "In Halsbury s Lm11s ofEngland, Vol. 16(2), 4th Edn., Para 907,
             it is stated:
             "The expression 'waiver' may, in law, bear different meanings.
             The primary meaning has been said to be the abandonment of a
E            right in such a way that the other party is entitled to plead the
             abandonment by way of confession and avoidance ifthe right is
             thereafter asserted, and is either express or imp! ied from conduct.
             It may arise from a party making an election, for example whether
             or not to exercise a contractual right ... Waiver may also be by
             virtue of equitable or promissory estoppel; unlike waiver arising
F            from an election, no question arises of any particular knowledge
             on t'1e part of the person making the representation, and the
             estoppel niay be suspensory only ... Where the waiver is not
             express, it may be implied from conduct which is inconsistent
             with the continuance of the right, without the need for writing or
G            for consideration moving from, or detriment to, the party who
             benefits by the waiver, but mere acts of indulgence will not amount
             to waiver; nor may a party benefit from the waiver unless he has
             altered his position in reliance on it.""


H    I   2000 (52) DRJ (DB)
    MIS. GALADA POWER AND TELECOMMUNICATION LTD.                                77
    v. UNITED INDIA INSURANCE CO. LTD. [DIPAK MISRA, J.]

         14. In Mmiak L{I/ v. Dr. Prem Clt"nd Sin1:ltvf, it has been            A
held:-
         "8 . ... It is true that waiver cannot always and in every case be
         inferred merely from die failure of the pa1ty to take the objection.
         Waiver can be inferred only if and after it is shown that the party
         knew about the relevant facts and was aware of his right to take       B
         the objection in question. As Sir John Rom illy, M.R. has observed
         in Vyvyan v. f'.'yvyan-': (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          c
         instead ofanother, either, but not both, of which he might claim'."
      15. Yet again, in Krishn" B{l/uulur v. Purn{I T/te{lfre', 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          D
         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."                    E
         16. In Sf{lfe o.f Punj{lh v. D{lvinder P{l/Singlt Bltullar5, 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    F
         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 6,
                                                                                 G
         Basheshar Nath v. CIT, Mademsetty Satyanarayana v. G
2
   AIR I 957 SC 425
3
   (1861)30Beav65: 54ER813
• (2004) s sec 229
' (201n14sec110
'' AIR 1935 PC 79
7
   AIR 1959 SC 149                                                              H
78                 SUPREME COURT REPORTS                       (2016] 4 S.C.R.


A             Yelloji Rao", Associated Hotels of India Ltd. v. S.B. Sardar
              Ranjit Singh", Jaswantsingh Mathurasingh v. Ahmedabad
              Municipal Corpn. 10 , Sikkim Subba Associates v. State of
              Sikkim 11 and Krishna Bahadur v. Purna Theatre.)
              42. This Court in Municipal Co17J11. of Greater Bombay v. Dr
B             Hakimwadi Tenants' Assn. 1' 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
c           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 ....
            I 5. There is no question of estoppel, waiver or abandonment.
            There is no specific plea of waiver, acquiescence or estoppel,
            much less a plea ofabandonment ofright. That apatt, the question
D           of waiver really does not arise in the case. Admittedly, the tenants
            were not parties to the earlier proceedings. There is, therefore,
            no question ofwaiverof 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
E    had prescribed the clause relating to duration. It was very much aware
     aboutthe 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
F
     action, the insurer has waived its right to advance the plea that the claim
     was not entertainable 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.
G            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
          AIR 1965 SC 1405
     9
          AIR l 968 SC 933
     '"   J 992 Supp< I) sec 5
     " (200·1 J 5 sec 629
H    " 1988 Supp sec 55
 MIS. GALADA POWER AND TELECOMMUNICATION LTD.                                   79
 v. UNITED INDIA INSURANCE CO. LTD. [DIPAK MISRA. J.]

State Commission after elaborate discussion has held as follows:-               A
      "The surveyor also confirmed in their repo11s, the shortage/loss
       of AAAC due to pilferage during transit and estimated the loss as
       per Ex.A 12. This shmiage was also confirmed by Katigorah
       police as per Ex.A 13 and as reiterated earlier by the Tage Over
       Certificate, Ex.A 19. Taking into consideration thatthe surveyros        B
       appointed by the insurance company have completed their
       investigation and submitted their reports and thereafter an
       investigator was appointed on I 6-4-1998 without any valid reasons.
       It is held by the National Commission in l (2004) CP J l 0 (NC) in
       Gammon India Ltd., v. New India Assurance Co. Ltd. that 'Repo11
       of first surveyor not accepted, second surveyor appointed-               c
       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
                                                                                D
       opinion that the appellant/complainant was able to establish that
       there was shortage/damage to the consignment which was given
       to second respondent for transpo11ation."
       1~-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    E
on record in such a situation we do not think it appropriate that an exercise
ofremit should be carried out asking the National Commission to have a
further look at it. In any case, the exercise ofrevisionaljurisdiction by
the National Commission is a limited one. We may hasten to add that to
satisfy ourselves, we have perused the surveyor's report and scrutinized        F
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.
       20. In view of the aforesaid analysis, the appeals are al lowed.
The judgment and order passed by the National Commission in the batch
of appeals is set aside. We have been apprised that 50% of the amount
                                                                                G
was deposited and the appellant has withdrawn the said amount. The
balance amount along with interest, as directed by the State Commission,
shall be paid by the insurance company within four months from today.
There shall be no order as to costs.
Divya Pandey                                                 Appeals allowed.   H