TARUN KANTI CHOWDHURY Vs. ORIENTAL INSURANCE CO LTD
Tarun Kanti Chowdhury
ORIENTAL INSURANCE CO LTD
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V.K. Jain, J. -
(1.) The complainant/appellant was awarded works by Hooghly Zila Parishad for construction of a road from Chhatarsal Bazar to 24 Purbazar and Muchigata to Nadippur. Two different works were awarded to the complainant/appellant for constructing two different portions of the road. The appellant/complainant was also required to maintain the road so constructed by it for a period of five years. The complainant/appellant obtained two separate policies from the respondent in respect of the afore-said works entrusted to him by the Hooghly Zila Parisahd.
(2.) The road constructed by the complainant/appellant got damaged on account of floods during August-September, 2007 and the case of the complainant is that the road got damaged, due to heavy rains and floods, was repaired by him at his own costs. The claims for reimbursement in terms of the insurance policy taken by him were submitted by the complainant to the insurer. A surveyor was appointed to assess the loss alleged to have been sustained by the complainant. Vide his report dated 10.03.2018 Partha Choudhary who was the surveyor appointed by the insurer assessed the loss to the complainant at Rs.462428/- in respect of one portion of the damaged road and Rs. 2359778/- in respect of another portion of the damaged road. The first report is dated 10.03.2008 and the other report is dated 15.03.2008. The claim, however, was repudiated by the insurer vide its letter dated 13.03.2009 which to the extent it is relevant reads as under:-
"The contract of insurance is based on utmost good faith and every fact of materiality and all material facts must be disclosed at the time of obtaining insurance cover. On happening of loss you are under policy condition liable to furnish required documents/papers as may be reasonably required by the Company. It has been observed that by not furnishing the 'Contract Data', copy of Contract separately, if any, for maintenance contract, concealment of the material fact has been done. Likewise in the Proposal Form you have declared that there is no river/nullah/drain or water body near the insured 'property' and there was no flood /inundation since last five years. Your kind attention is drawn to your own statement in the Claim Form where main reason for flood has been given by you is release of water from two number of dams, the surveyor's report corroborated the same.
On examination of the available papers with us, we can say that you did not have insurable interest in terms of Clause 11.1, 12.1 And 13.3. The insured may be interested in the property as owners, lessor, lessee, mortgagee, mortgager, vendor, purchaser, trustees etc. You were obliged to provide in terms of Clause 13.3 the insurance cover in the joint names of yourselves and your Employer from the date of completion to the end for defect liability period in the amounts and deductibles staled in the 'Contract Data' for the following events. Further this clause binds you to forward insurance policies and certificate to your employer for his/her approval.
The property is not owned by you nor you possess in any of the capacity mentioned above.
The Surveyor has in his reply vide his letter dated 13th September 2008 to the then Divisional Manager has said that accepting liability is the discretion of the insurer. Where insurable interest is not there, the surveyor can make the assessment of loss but the same is 'Without Prejudice'
Your kind attention is also drawn to the surveyor's Report in which he has stated that the loss of or damage to the 'Road' was caused by flood due to extremely heavy and continuous rainfall measuring 400 mm per day in average during July. August, 2007 onwards. The above statement shows that condition of the road must have already been in a deplorable condition in July, August 2007 itself. .In this respect we needed to know the date of completion of the road duly certified by the concerned authority and the starting date of the maintenance cover for defect liability period. The insurance cover was obtained by you on and from 22.08.2007 during the peak period of rainy season and date of the captioned loss is 25.9.2007. In this respect we sought a clarification from the surveyor by our Registered Letter dated 27th February 2009. The surveyor received the letter on 4th March 2009 which he confirmed verbally over phone but as said by him he is unable to reply before May 2009.
You neither submitted the required papers/information nor you interacted with the concerned authority for good number of months which would have facilitated in disposing off your claim much earlier. Instead Suddenly and abruptly after 9-10 months you started putting pressure on newly joined Division In-charge for settling the claim. Reference of your letter dated i 6.2.2009 may be taken in this regard by which you chose to hold Division in-charge personally responsible for liability of interest that may entail due to delay in settlement of claim. Such personal attack is unwarranted and uncalled for. Your Bid Document dated 3rd August 2005 was accepted by your Employer vide his letter dated 25th November 2005 for execution of work of 'Road' construction and Defect Maintenance for five years of the work. You were responsible for 'defect liability' and were specifically exempted from a loss caused by natural calamities among other risks for maintenance period under Clause 13.3 side by side during execution period under Clause 11.1 & 12.1 of the Bid Document.
As per Clause 11.1 & 12.1 and 13.3 embodied in Bid Document dated 3'"'' August 2005 read together, the contractor will not be responsible for any loss or damage to the work 'Road' arising from act of Natural Calamities among other risks mentioned in the clauses for which you have been specifically exempted from responsibility.
Since the actual case of loss is not in consistence with liability to your employer, we regret to inform that your reported claim is not payable and as such the claim is repudiated by the competent authority."
(3.) It would thus be seen that the claims were repudiated on the following grounds:-
(1) As per the terms of the contract executed between the complainant and the Hooghly Zila Parishad the insurance policy was required to be taken in the joint names of the complainant and the Corporation but it was taken in the sole name of the complainant.
(2) While taking the insurance policy the complainant had concealed a material fact that there was a river nearby the site where the work was to be executed by him.
(3) As per the bid documents the complainant was not responsible for any loss or damage whatsoever arising out of the natural calamities.
(4) The complainant did not have an insurable interest in the subject matter of the insurance
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