State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs M/S Gorsi Construction Pvt. Ltd. on 13 April, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 341/2016
Date of Presentation: 26.10.2016
Order Reserved On : 17.03.2017
Date of Order : 13.04.2017
......
The United India Insurance Company Ltd. Branch Office near
College Gate Dhalpur Kullu District Kullu through its Branch
Manager.
...... Appellant/Opposite Party
Versus
M/s. Gorsi Construction Private Ltd. Village Takoli Post Office
Panarsa Sub Tehsil Aut District Mandi H.P. through its Director
Shri Rakesh Kumar son of late Shri Lachhman Dass.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Vivek Negi Advocate.
For Respondent : Mr. Parmod Negi Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :- Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 27.08.2016 passed by Learned District Forum Kullu in consumer complaint No.28/2014 title M/s. Gorsi 1 Whether reporters of the local papers may be allowed to see the order? Yes. United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) Construction Private Ltd. Versus The United India Insurance Company Ltd..
Brief facts of Case:
2. Complainant filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant obtained All Risk Insurance Policy from opposite party relating to risk of work awarded to the complainant by H.P.P.W.D. vide award letter No. CTR-I-WB-P.M./08 dated 22.10.2008. It is pleaded that work was to be completed till 16.11.2009 and it is pleaded that complainant completed the work within stipulated period. It is pleaded that due to heavy rains and snow fall between 06.02.2010 to 10.02.2010 the road between Kararsu to Manali was badly damaged. It is pleaded that complainant intimated the opposite party regarding loss suffered by the complainant. It is pleaded that opposite party deputed a surveyor and asked complainant to submit all the documents pertaining to work. It is pleaded that as per surveyor complainant suffered gross loss to the tune of Rs.140178/- (One lac forty thousand one hundred seventy eight). It is pleaded that surveyor assessed net adjusted loss to the tune of Rs.17000/- (Seventeen thousand).
It is pleaded that opposite party repudiated the claim on the ground that complainant had suffered loss due to snow fall and rains and did not suffer loss due to defect of construction. Complainant sought relief of payment of 2 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) Rs.141201/- alongwith interest at the rate of 12% per annum from the date of damage of road till payment. Complainant also sought additional relief of Rs.2.00 lac on account of harassment.
2. Per contra version filed on behalf of opposite parties pleaded therein that complaint has sustained loss due to snow fall and rains and was not attributed to defects of the construction and it is pleaded that insurance company is not liable to indemnify the complainant. It is pleaded that controversy inter se the parties could not be solved in a summary proceeding. Prayer for dismissal of complaint sought.
3. Learned District Forum allowed the complaint on dated 27.08.2016 and ordered opposite party to pay a sum of Rs.75000/- (Seventy five thousand) to complainant alongwith interest at the rate of 9% per annum from the date of filing of complaint till actual payment. Learned District Forum further ordered opposite party to pay compensation and special damage to the complainant to the tune of Rs.10000/- (Ten thousand). Learned District Forum also ordered opposite party to pay litigation costs to the tune of Rs.5000/- (Five thousand) to the complainant. Feeling aggrieved against the order passed by learned District Forum insurance company filed present appeal before State Commission. 3 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016)
4. We have heard learned counsel for the parties and we have also perused entire record carefully.
5. Following points arises for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
6. Complainant filed affidavit by way of evidence.
There is recital in the affidavit that complainant took All Risk Insurance Policy from opposite party. There is further recital in the affidavit that work was to be completed till 16.11.2009. There is further recital in affidavit that due to heavy rains and snow fall between 06.02.2010 to 10.02.2010 road between Kararsu to Manali was badly damaged. There is further recital in affidavit that complainant intimated opposite party regarding loss. There is further recital in affidavit that opposite party deputed surveyor who submitted report. There is further recital in affidavit that opposite party was directed to reassess claim in earlier complaint No.36 of 2012 but opposite party did not reassess the claim. There is further recital in affidavit that insurance company repudiated the claim on the ground that loss was suffered by complainant due to heavy rains and snow fall and was not attributed to 4 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) the defect of construction. There is further recital in affidavit that there is no exclusion clause mentioned in the insurance policy relating to snow fall and heavy rains.
7. Opposite party also filed affidavit of Harish Kumar Branch Manager The United India Insurance Company Ltd. by way of evidence. There is recital in affidavit that deponent is Branch Manager of United India Insurance Company Ltd. Kullu Branch and is conversant with the facts of present case. There is recital in affidavit that complainant obtained insurance policy relating to construction work of Kullu-Manali Left Bank road. There is further recital in affidavit that opposite party deputed surveyor to conduct spot survey and to submit report. There is further recital in affidavit that insurance company has legally repudiated the claim of complainant and there is further recital that loss is not covered under insurance policy.
8. Insurance Company also filed affidavit of Shri G. Srinivasan surveyor by way of evidence. There is recital in affidavit that deponent is duly licensed by Regulatory Authority of India to conduct the spot survey and assess the loss. There is further recital in affidavit that service of deponent was hired by insurance company to conduct spot survey and assess loss and damage caused. There is further recital in affidavit that deponent visited the spot and after expert opinion submitted the final report. There is further 5 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) recital in affidavit that loss is assessed by the deponent after physical examination of damaged road and after observance of principle of indemnity.
9. It is proved on record that earlier complaint No.36/2012 title M/s. Gorsi Construction Pvt. Ltd. Versus The United India Insurance Company Ltd. was also filed before learned District Forum Kullu which was decided on 04.12.2013. learned District Forum ordered opposite party to reassess the claim of complainant within 30 days and also ordered opposite party to pay compensation of Rs.5000/- (Five thousand) on account of harassment and also ordered to pay Rs.3000/- (Three thousand) as litigation costs to complainant. Learned District Forum also ordered in earlier complaint No.36 of 2012 decided on 04.12.2013 that loss assessed by surveyor M/s. Puri Crawford and Associates India Pvt. Ltd. is not reasonable assessment. Learned District Forum further ordered that if the claim is not settled by the opposite party within stipulated period then complainant is at liberty to file fresh complaint against insurance company on same cause of action. Order of learned District Forum dated 04.12.2013 attained the stage of finality. Thereafter complainant again filed subsequent present complaint before learned District Forum Kullu when again on dated 20.01.2014 insurance company repudiated claim.
6United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016)
10. It is observed by State Commission that complainant obtained All Risk Insurance Policy from opposite party which was effective w.e.f. 06.04.2009 to 31.10.2009. It is proved on record that opposite party also received premium to the tune of Rs.74500/-. We have also perused exclusion clause of insurance policy. As per exclusion clause insurance company would not indemnify the complainant in respect of loss, damage and liability directly or indirectly caused due to :
a) War, invasion, act of foreign enemy, hostilities or war like operations (whether war be declared or not) civil war, rebellion, revolution, insurrection, mutiny, civil commotion, military or usurped power, martial law, conspiracy, confiscation, commandeering a group of malicious persons or persons acting on behalf of or in connection with any political organisation, requisition or destruction or damage by order of any Government de jure or defacto or by any Public, Municipal or Local Authority;.
b) Nuclear reaction, nuclear radiation of radioactive contamination
c) Willful at or willful negligence of the insured or of his responsible representative.
d) Cessation of work whether total or partial
e) Loss, damage, cost or expense of whatsoever nature directly or indirectly caused by resulting from or in connection with any act of terrorism regardless of any other cause or event contributing concurrently or in any other sequence to the loss are excluded.
11. It is proved on record that thereafter on 20.01.2014 the insurance company repudiated the claim of complainant 7 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) and informed the complainant that claim was rightly repudiated as per letter No.BOK/AKN/RSD/CLAIMS/922/ 2011 dated 12.12.2011. The insurance company relies upon the report of surveyor M/s. Puri Crawford & Associates Private Limited which was earlier disbelieved by learned District Forum. Insurance Company did not obtain the report of other surveyor and simply rely upon the report of surveyor M/s. Puri Crawford & Associates Private Limited which was disbelieved by learned District Forum Kullu in earlier complaint No.36/2012. Learned District Forum in complaint No.36/2012 ordered that loss assessed by M/s. Puri Crawford & Associates Private Limited is not reasonable report. We are of the opinion that when learned District Forum in complaint No.36/2012 has held in a positive manner that loss assessed by surveyor M/s. Puri Crawford & Associates Private Limited was not reasonable report then insurance company was under legal obligation to assess the loss from some other surveyor but in the present case insurance company did not comply the direction of learned District Forum relating to fresh assessment of loss and simply reply upon earlier report of M/s. Puri Crawford & Associates Private Limited which was disbelieved by the learned District Forum in earlier complaint No.36/2012. Complainant has claimed damage due to heavy snow fall. It is held that heavy snow fall does not fall within the exclusion clause of insurance policy. It is well settled law 8 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) that insurance company cannot be allowed to flout terms and conditions of the insurance policy and it is held that terms and conditions of insurance policy are binding upon the insurance company. There is no reference of snow fall in the insurance policy issued to the complainant. There is only reference of major Peril/Act of God Perils. Major peril and Act of God peril has been defined as earth quake, flood, storm, water damage i.e. contract involving works in river, canals, lakes and sea. It is held that snow fall did not fall within the definition of major peril and Act of God as mentioned in the insurance policy in a positive manner. It is held that snow fall is normal process of nature in hilly area and is not major perils/Act of God peril in hilly area. Himachal Pradesh is naturally hilly area. It is held that insurance company has committed deficiency in service by way of repudiating the claim of complainant. In view of above stated facts point No.1 is answered in negative.
Point No.2: Final Order
12. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum Kullu announced in consumer complaint No.28/2014 title M/s. Gorsi Construction Private Ltd. Versus The United India Insurance Company Ltd. is affirmed. Parties are left to bear their own litigation costs in State Commission. File of learned District Forum alongwith certified copy of order be sent back 9 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.341/2016) forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 13.04.2017.
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