Page 33 - The Insurance Times September 2025

who benefits by the waiver, but mere acts of indulgence will insurer had waived the condition relating to delay in
not amount to waiver; nor may a party benefit from the intimation by appointing a surveyor. While in the
waiver unless he has altered his position in reliance on it." Galdada Power case, the appointment of a surveyor
was considered a waiver; however, in the case of M/S
Alluding to the case above, the Court observed that the Sonell Clocks and Gifts Ltd., the appointment of a
insurer had custody of the policy and was fully aware of the surveyor was not considered a waiver of right.
prerequisites outlined in clauses 5(3) to 5(5). Despite being
aware of the conditions of the above clause, the company 4. In the Galdada Power case, the insurer had possession
appointed a surveyor. The repudiation letter just mentioned of the policy. It was aware of the clause relating to
that the claim lodged by the insured did not fall under the duration, but despite these stipulations, it appointed a
purview of transit loss. The Court observed that, by its surveyor. Additionally, as stated earlier in the letter of
positive action, the insurer had waived its right to raise the repudiation, it only stated that the claim lodged by the
plea that the claim was not tenable, as the conditions insured did not fall under the purview of transit loss.
outlined in the duration clause were not met by the insured. Thus, the Court held 'by positive action, the insurer has
waived its right to raise an appeal that the claim was
The Court, while commenting on the merits of the claim, not entertainable because conditions enumerated in
observed that the surveyor had provided a report stating a the duration clause were not satisfied'.
loss, which he had quantified. The Court held the decision
of the State Commission, which ignored the investigator's In the case of M/S Sonnel Clocks and Gifts Ltd, the letter of
report, as the investigator was appointed on 16 April 1998, repudiation dated 18th February 2005 mentioned that the
without any valid reasons. The first surveyor confirmed in claim was rejected because neither the intimation of the
its reports the shortage/loss of AAAC due to pilferage during loss had been given to the insurer immediately after the loss
transit and estimated the loss, which was subsequently nor were the requisite particulars of the loss conveyed within
confirmed by the Katigorah police. the stipulated period. It categorically stated that there was
a breach of the terms and conditions of Clause 6 of the
Having satisfied itself with the surveyor's report and policy's general conditions.
scrutinised the judgment and order passed by the State
Commission in this regard, the Court observed that it was The survey report also mentioned that it was challenging to
completely satisfied that the determination made by it ( estimate the damages for the reasons stated therein and that
State Commission) was absolutely impeccable. the complainant's claim was not payable due to a breach of
Clause 6 of the policy's general conditions. So, there was no
Thus, we find that by appointing a surveyor to assess the quantification of the loss for the apparent reason.
loss, the insurer had waived the right which was in its favour
under the duration clause. 5. In the Galdada Power case, the Court considered Clause
5 of a Marine Insurance Policy. The issue of contention
Distinguishing features - M/s. Sonell Clocks and Gifts was whether the insurance cover itself expired by efflux
Ltd.:Versus: The New India Assurance Co. Ltd and Galada of time, and whether the intimation given by the insured
Power and Telecommunication Ltd.Vs. United India to the insurer, not made within 7 days of the vehicle's
Insurance Co.Ltd. arrival at the destination mentioned in the policy.

1. M/s Sonnel Clocks and Gifts Ltd had a fire policy on a According to the policy (assuming there is no Concealed
reinstatement value for one year; Galada Power and Damage clause), the insurance cover expires 7 days after
Telecommunication Ltd., on the other hand, had an delivery, and there would be no coverage beyond the stated
inland marine Transit policy. 7-day period.

2. In both cases, there was a delay in intimation. While It is in this context that the Court rightly noted that the
condition 6 of the fire policy dealt with intimation about insurer's appointment of the surveyor beyond the said period
loss, in marine insurance, the same is addressed in can be deemed an act of waiver by the insurer of the
clause 5 of the duration clause. position that the policy stands extinguished. In other words,
the Court inferred that the appointment of a surveyor by
3. The bone of contention in both cases was that the the insurer was an expression of the insurer's stand that the

The Insurance Times September 2025 31