V.K. Jain ORDER
V.K. Jain, J. (Presiding Member)
1. The complaint was dismissed by this Commission vide its order dated 10.12.2015. Being aggrieved from the dismissal of the complaint, the review petitioner/complainant preferred an appeal before the Hon'ble Supreme Court. The said appeal came to be disposed of vide order dated 26.02.2016, which to the extent it is relevant for this review petition, reads as under:
"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 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 NCDRC.
In view of the aforesaid, we permit the appellant to file an application for review and put forth the issue of waiver before the NCDRC within a period of four weeks hence. The NCDRC will entertain the application for review singularly on this score".
2. In terms of the liberty granted by the Hon'ble Supreme Court, this review petition has been filed by the complainant. In view of the specific direction of the Hon'ble Supreme Court, the scope of the review petition is restricted to the issue as to whether the respondent insurer had waived the condition related to delay in intimation, by appointing a surveyor.
3. As noted by this Commission in its order dated 10.12.2015, the alleged loss to the complainant had happened on 04.8.2004 whereas the intimation of the loss was reported to the insurer on 30.11.2004, meaning thereby that there was delay of about three months and 25 days in reporting the loss to the insurer.
4. Clause-6 of the Insurance Policy, to the extent it is relevant required the insured to forthwith give notice to the insurer on the happening of any loss or damage. It is an admitted position that instead of rejecting the claim out rightly on account of the delay in intimating the loss to it, the insurer appointed a surveyor to visit the premises of the complainant/review petitioner and assess the loss sustained by it. It is also not in dispute that the surveyor so appointed by the insurer submitted his report dated 29.12.2004, assessing the loss suffered by the complainant but also pointed out the delay in intimating the loss to the insurer, despite repeated reminder, resulting in breach of the condition No. 6 of the insurance policy. He therefore, recommended that the loss was not payable as per para-6 of the policy conditions. It is contended by the learned senior counsel for the review petitioner that if the insurer was to reject the claim, solely on the ground of delay in intimating the loss, it ought to have out-rightly rejected the claim instead of appointing a surveyor to assess the loss. In his contention, by appointing the surveyor, the insurer waived its right to reject the claim on the ground of breach of condition No. 6 of the insurance policy. In support of his contention he relied upon New India Assurance Company Limited Vs. Trilochan Jane, First Appeal No. 321 of 2005 dated 09.12.2009, Oriental Insurance Co. Ltd. Vs. Parvesh Chander Chadha, Civil Appeal No. 6739 of 2010 dated 17.8.2010, United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, MANU/SC/0803/2004 : (2004) 8 SCC 644, Export Credit Guarantee Corporation of India Ltd. Vs. Garg Sons International MANU/SC/0039/2013 : (2014) 1 SCC 686 and M/s. Industrial Promotion & Investment Corporation of Orissa Ltd., Civil Appeal No. 1130 of 2007 dated 22.8.2016.
5. Per contra, the learned counsel for the insurer contended that waiver postulates a positive act giving up a right vested in a person and needs to be accompanied by the other party altering its position based upon such a positive act. He also contended that the term of the policy requiring immediate intimation of the loss to the insurer being mandatory, an impl........