National Consumer Disputes Redressal
M/S. Jitendra Singh Gp. vs Iffco-Tokio General Insurance Co. Ltd. on 23 February, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 43 OF 2009 1. M/S. JITENDRA SINGH GP. Through Its. Proprietor Shri Jitendra Singh 707, Sacred World, 7th Floor, North Block, Jagtap Chowk. Wanowre . Pune-411040 Maharashtra ...........Complainant(s) Versus 1. IFFCO-TOKIO GENERAL INSURANCE CO. LTD. Through Its. Manager, 303, Stellar Enclaves, Above Mc. Donal,s Restaurant, Aundh Pune-411007 Maharashtra ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE DR. B.C. GUPTA, MEMBER
For the Complainant : Mr. Ravi Gupta, Sr. Advocate with
Mr. Junaid Akhtar, Advocate,
Mr. Sachin Jain, Advocate
Ms. Bhoomija Verma, Advocate For the Opp.Party : Mr. S.M. Tripathi, Advocate
Ms. Lata Lochav, Advocate
Dated : 23 Feb 2016 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER
CONSUMER COMPLAINT NO. 43 OF 2009
The complainant in this matter was awarded a contract by National Highways Authority of India (NHAI) for improvement of road being Westerly Diversion to Pune City from Km. 0.000 to K. 34.423 on NH4, in the State of Maharashtra. The work was to commence from 18.3.2008 and completed by 17.03.2009. The complainant obtained a Contractors All Risk Insurance policy from the opposite party. The duration of insurance policy was the construction period from 09.4.2008 to 08.4.2009, and maintenance period from 09.4.2009 to 08.10.2009 (six months). The case of the complainant is that during the progress of the work and subsistence of the policy, the road, for which the work was in progress, got badly damaged due to heavy rainfall between 5th to 10th August, 2008. The intimation of the damage having been given to the insurance company, M/s. B.P. Shah & Associates were appointed as the surveyors to visit the site and assess the loss to the complainant. The damaged road was also inspected by a team, headed by Professor S.L. Dhingra, IIT Mumbai, who submitted the report dated 06.09.2008. Though, the surveyor submitted its report to the insurer on 06.1.2009, the case of the complainant is that the copy of the said report was not supplied to him.
2. Vide letter dated 28.2.2009; the insurer rejected the claim on the following grounds:
"2. There is no report in respect of any flood or inundation having taken place. The extent of rain which is claimed to have fallen there during the period is not the apparent and likely cause of loss.
3. Several parts of the road widening had been completed by you much before the dates of loss and were put into service prior to the said rainfall which is claimed to be the cause of loss. In terms of Period of Cover defined in the policy, which states as "the liability of the Company shall commence, (notwithstanding any date to the contrary specified in the Schedule) only from the time of commencement of work after the unloading of the property specified in the schedule from any conveyance at the site specified in the schedule whichever is earlier and shall expire on the date specified in the schedule. However, the Company's liability expires also for parts of the insured contract works taken over or put into service by the Principal prior to the expiry date specified in the policy whichever shall be earlier", the insurance had expired before the loss is stated to have occurred.
4. The loss is caused by various factors including bad workmanship, traffic etc., which have contributed to the loss".
3. Being aggrieved from the rejection of the claim, the complainant is before this Commission, seeking the following reliefs:
"1. To pay the claim amount of Rs.3,75,82,336/- as submitted by the complainant;
2. To pay interest @ 24% from the date of receipt of the claim to the date of repayment by the opposite party;
3. To pay Rs.50.00 lakhs on account of mental agony and harassment and loss due to unreasonable and inordinate delay in settling the claim;
4. The complaint has been resisted by the opposite party, primarily on the grounds that after completing the work on the damaged part of the road by June, 2008, the traffic was allowed immediately thereafter on the said part and since the insurance cover expired on the date the said part of the road was put into service, they are not liable to reimburse the complainant, even if the said part got damaged during the subsistence of the insurance policy. It is further alleged in the reply / written version filed by the opposite party that in view of the report of the surveyor M/s. B.P. Shah & Associates and the expert Professor S.L. Dhingra, Professor of IIT Mumbai, since the rainfall was not excessive and loss occurred due to traffic on wet road, which resulted in potholes, that grew bigger since the traffic was not stopped. Several other factors, including bad workmanship, traffic etc., also contributed to the loss, they are not liable to reimburse the complainant, the liability in such a case, having been excluded in terms of Clause [(c) & (e) of Section I of the policy which contains exclusions to the said policy.
CONSUMER COMPLAINT NO.58 OF 2010
5. The complainant in this matter was awarded a contract by Nashik Municipal Corporation for resurfacing, Methodology, Metal Asphalting of various roads in the territory of the said Corporation. In order to protect itself against any loss, the complainant had taken a Contractors' All risks Insurance Policy from the opposite party for the period from 22.5.2006 to 21.8.2007 to the extent of Rs.23,73,72,032/-. A perusal of the said policy shows that the complainant also paid an additional premium of Rs.1,18,686/- towards one year maintenance visits. It is a common case of both the parties that the aforesaid policy covered the construction period as well as the maintenance period of the work which the complainant had to execute for Nashik Municipal Corporation.
6. The case of the complainant is that as a result of heavy rainfalls between 25th June to 5th July, 2007, there was accumulation of the flood water, which caused damage to the roads where resurfacing work was executed by it. The intimation of the damage having been given to the insurance company, M/s. B.P. Shah & Associates were appointed as the surveyor to assess the loss. Though, the surveyor assessed the loss to the complainant at Rs.1,22,15,928/-, the claim was rejected by the insurer, vide its letter dated 28.3.2008, on the ground that the cause of the damage to the road were monsoon rains and damage / peeling off the lop surface of the Asphalt due to plying of vehicular traffic on the wet roads and resultant wear and tear. Drawing attention to Section-I of the policy, it was stated in the said letter that no liability attaches in case of damage arising due to atmospheric conditions. It was further claimed that the damage was not caused by flood but was caused by defective workmanship and material and / or non-provision of alternative route for traffic. It was also claimed that the complainant ought to have stopped traffic from plying on the freshly laid section of the road and should have constructed an alternative route for traffic when the work was being executed. It was further alleged that the complainant had failed to minimize the loss by having permitted traffic to continue to ply on damaged sections of the road, thereby causing further damage and also delayed undertaking the repairs, which were not commenced immediately after the damage. The insurer also denied its liability on the ground of the damaged section of the road having been put to use.
7. Being aggrieved form the rejection of the claim, the aforesaid complainant is before this Commission, seeking a total sum of Rs.3,55,04,770.66, along with interest @ 18% per annum from the date when the amount became due till the date of realization.
8. The complaint has been resisted by the opposite party on several grounds, denying the alleged heavy rainfall. It is alleged that the maximum rainfall of 116.6 mm happened on 2nd / 3rd July, which was quite low and no fresh damages were reported by the complainant in September, 2007 when rainfall to some extent happed. It is also claimed in the reply that the damage was found to have been caused due to wear and tear and no rain cut or erosion of the base soil due to rain / flood water was observed by the surveyors, who found damage to the top surface of the Asphalt that had peeled off / got damaged due to regular movement of traffic on the wet road. According to the opposite party, the loss was a result of the wear and tear of gradual deterioration due to atmospheric conditions for which it is not liable to reimburse the complainant. The alleged flood / inundation had been emphatically denied by the opposite party. It is also alleged that as soon as the road was put into service, the insurance cover in respect of that part of the road which was put into service expired and no claim can be set up for the damage which took place thereafter. This is also the case f the opposite party that the complainant ought to have stopped traffic from plying on the freshly laid section of the road and ought to have constructed an alternative road for traffic.
9. The insurance policies, to the extent they are relevant, read as under:
PERIOD OF COVER:
........ However, the company's liability expires also for parts of the insured contract work, taken over or put into service by the Principal prior to the expiry date specified in the policy whichever shall be earlier. If actual construction period is shorter than the period indicated in the schedule, no refund of premium shall be allowed unless specifically allowed by Insurers'.
At the latest, the insurance shall expire on the date specified in the Schedule but if the work of construction included in the insurance is not completed within the time specified hereunder, the company may extend the period of insurance but the insured shall pay to the company additional premium at rates to be prescribed by the company.
EXCLUSIONS TO SECTION-I
...
..
Normal wear and tear, gradual deterioration due to atmospheric conditions or lack of use or obsolescence or otherwise, rust scratching of painted or polished surfaces or breakage of glass;
Loss or damage due to faulty design;
The cost of replacement, repair or rectification of defective material and / or workmanship, but this exclusion shall be limited to the items immediately affected and shall not be deemed to exclude loss of or damage to correctly executed items resulting from an accident due to such defective material and / or workmanship".
Memo 8. Major Perils / AOG Perils:
The major perils / Acts of God claims shall mean the claims arising out of Earthquake - Fire & Shock Landslide / Rockslide / Subsidence Flood / Inundation Storm / Tempest / Hurricane / Typhoon / Cyclone / Lighting or other atmospheric disturbances Collapse.
10. It is an admitted position that in CC/43/2009, the work on the section of the road alleged to have been damaged during rains between 5.8.2008 to 10.8.2008 had been completed by 6.6.2008 and it was opened to traffic immediately or soon thereafter. It is thus not in dispute that as on 5.8.2008, the aforesaid section of the road was already being used by regular traffic. In CC/58/2010, admittedly the work on the damaged section of the road had been completed and the said section had been opened to regular traffic prior to 15th June,2007. It would be pertinent to note here that as per terms of the contract between the aforesaid complainant and Nashik Municipal Corporation, it was not allowed to work between 15th June and 15th September, except for some small urgent repairs. The case of the opposite party is that their liability expired on the date the damaged sections were open to traffic and since this is complainant's own case that the road got damaged later, no insurance cover in respect of the aforesaid sections of the road was available at the time the damage happened.
On a strictly literal interpretation of the period of cover given in the insurance policy, the contention appears to be attractive, but on a deeper scrutiny and considering the fact that the policy covered not only the construction period, but also the maintenance period which was to begin immediately after the construction period, we are unable to accept the aforesaid contention. If we accept the contention of the opposite party, that would result in a situation where no insurance cover is available for the period commencing from the date part of the work is put into service till the construction period is over, but again becomes available during the maintenance period. It would be pertinent to note here that the work including the portion which got damaged was taken over by NHAI only on 23.3.2010 though it was actually completed on 25.5.2009 and the maintenance period in terms of the contract of the complainant with NHAI, was to start only from the date of the aforesaid taking over. In our opinion, this could not have been the intention of the parties to deny the benefit of the insurance to the insured during the period between pressing the part work into service and the construction period stipulated in the insurance policy and then again make the said benefit available during the maintenance period.
11. A similar policy came up for consideration of this Commission in M. Sitarama Reddy Vs. United India Insurance Company Original Petition No. 67 of 1996, decided on 13.7.2005. As per the policy taken by the complainant in that case, the period of insurance commenced from 01.10.1992 to 31.3.1994 and extended to one year for maintenance from 1.4.1994 to 31.3.1995. The complainant in that case, having taken an All Risk Insurance Policy for Contractors, commenced the road work from 3.8.1992. On 11.9.1993, the complainant informed the insurer that the road had developed cracks due to sudden inundation and heavy rains had resulted in seepage of soil beneath the road. The insurer opposed the complaint, inter-alia on the ground that the work had been completed by 31.5.1993 followed by resumption of traffic and since the cracks on the road surface were seen only in July, 1993, after completion of the road work, the liability of the insurance company had ceased. It was contended that the liability of the insurer expired for the parts of the contract works taken over or put into service by the Principal prior to the expiry date specified in the policy, as and when the work was completed and traffic was allowed on the completed part of the road. The period of cover contained in the policy taken in that case, was identical to the period of cover given in the policy taken by the complainant in this case and the relevant clause read as under:
"Construction period: The liability of the company shall commence (notwithstanding any date to the contrary specified in the Schedule) only form the time of commencement of work after the unloading of the property specified in the Schedule from any conveyance at the site specified in the schedule whichever is earlier and shall expire on the date specified in the schedule. However, the company's liability expires also for parts of the insured contract works taken over or put into service by the Principal prior to the expiry date specified in the policy whichever shall be earlier".
The Divisional Manager of the insurance company in that case stated in his affidavit that the maintenance cover has to be reckoned form the date of handing over the road stretches for traffic. It was held by this Commission that if the road stretches were handed over in the month of June, 1993, the insurance coverage for maintenance would be applicable and this is in conformity with the insurance policy as insurance coverage for maintenance period was for one year and that normally would commence as soon as relaying of the road was completed and handed over for traffic. It was observed in this regard that if there is any ambiguity or a term is capable of two possible interpretations, the one beneficial to the insured should be accepted which is consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain events.
12. We are absolutely in agreement with the above-referred reasoning. In our opinion on a harmonious construction of all the clauses, including that the policy covered not only the period during which the work was to be executed but also the maintenance period of six months, which was expected to start immediately thereafter. The maintenance period, as far as the completed / pressed into service portion of the road is concerned, would begin from the date the aforesaid stretch was pressed into service by NHAI. Such an interpretation will be in consonance with the objective of the policy, which was to cover the risk during the construction period as well on the maintenance period. Since the maintenance period in this case was six months, the insurance cover in respect of the aforesaid damaged road was available in August, 2008.
13. The learned counsel for the insurer contended that the liability during the maintenance period will be restricted only to such a damage which happens before the work is complete, but surfaces during the maintenance period. In support of his contention he has submitted an article by L.J Piper, in respect of the Contractors' All Risks Insurance. In the aforesaid article, the Author was of the view that under ICE conditions, the insurance of works during maintenance is confined to loss or damage to the works arising from an occurrence during the construction which shows itself during the maintenance period or which is caused by contractor's workmen while carryout out his maintenance obligations. He was of the opinion that loss or damage by outside perils during the maintenance period is not the responsibility of the contractor, and when the policy shows the employer and the contractor as joint insured, it must be limited to the contractor's restricted responsibility under the contract. It is quite evident from a bare perusal of the aforesaid article that it is based upon the obligations of the contractor to the employer under the ICE conditions. Since the said conditions require him to take care of only those damages to the work which arise from a cause occurring prior to the commencement of the maintenance period, the liability of the insurer is also correspondingly restricted, since the insurance is taken in the joint name of the employer and the contractor. However, in the case before us, the policy is not in the joint names of the employer and the contractor and more importantly, the obligation of the complainant to rectify the damages to the work executed by him, during the maintenance period is not restricted only to those damages which occurred during the construction period but surfaced only during the maintenance period. The liability of the contractors during the maintenance period is absolute irrespectively of the nature of the defect and the maintenance period commences from the date the work is taken over by employer and not on the date on which it is actually executed. Therefore, we find no merit in the contention that the damage to the road happening during the maintenance period is not covered under the policy taken by the complainants.
14. The major peril / act of God perils have been defined in the insurance policies to include the claims arising out of flood / inundation and atmospheric disturbances. The policies however, exclude the gradual deterioration of the insured work due to atmospheric conditions. Giving a harmonious constructions to both the above referred provisions of the insurance policy, it appears to us that if the work gets gradually damaged due to normal rainfalls which one reasonably expects in the area in which the work is executed, such a damage will not be covered under the insurance policy but if rain water results into flooding or inundation of the road or there is a sudden heavy rainfall, which is abnormal or unexpected and such flood / inundation / heavy rainfalls results in immediate damage to the road, the loss to the insured would be covered under the insurance policy.
15. CAUSE OF DAMAGE IN CC/43/2009 According to the complainant in CC/43/2009, the damaged section of the road, which had been opened to traffic, got damaged on account of the heavy rains. In this regard, the surveyor M/s. B.P. Shah Associates noted that the rainfall was 6.1 mm, 2.8 mm, 1.8 mm, 3 mm, 3.5 mm, 68.1 mm on 5th August 2008, 6th August 2008, 7th August 2008, 8th August 2008, 9th August 2008 and 10th August 2008 respectively. The total rainfall between 05.08.2008 to 15.08.2008 was 145.1 mm. The rainfall in the year 2004 was 330.3 mm and that was the highest rainfall in the last 10 years. The surveyor, based upon the data obtained from Metrological Department and the report of IIT Mumbai, concluded that the rainfall during the period the road got damaged was not excessive. The complainant did not produce, before the surveyor, any proof of accumulation of water or flooding on the damaged road. No such photographs have been filed before this Commission. No expert evidence has been led by the complainant to prove that the rainfall to the extent of 145.1 mm from 05.08.2008 to 15.08.2008 could have resulted in flooding or inundating the road or could have damaged the road which had been laid/re-laid just two months earlier, in June 2008. No expert evidence has been produced before us to prove that the rain to the extent of 68.1 mm on 10.08.2008 or 68.1 mm on 10.08.2008, coupled with rain 38.1 mm on 11.08.2008, could have so extensively damaged such a road. Considering the stand taken by the insurance company while repudiating the claim, it was necessary for the complainant to produce expert evidence before us to opine that the rainfall to the extent of 145.1 from 05.08.2008 to 15.08.2008 or the rainfall on 10th & 11th August 2008 could have flooded and damaged road in question. No Engineer from NHAI or even from Lion Engineering Consultants has been produced by the complainant to prove that the damages found on the subject portion of the road could have been caused by rains to the extent of 68.1 mm on 10.8.2008 either alone or coupled with rain of 38.1 mm on 11.08.2008. In the absence of such an expert evidence it will be difficult for us to reject the conclusion drawn by the surveyor, particularly when his report is read along with the opinion given by IIT Mumbai. It would be pertinent to note here that IIT Mumbai also felt that the rainfall was not excessive. In his report Dr. S.L. Dhingra, Professor in IIT Mumbai specifically stated that rainfall of 141.5 mm between 5th August to 15th August, 2008 was normal and was not the cause of the damage. Thus, the expert engaged by the insurer expressly ruled out rainfall being the cause of the damage. In the absence of any expert evidence from the complainant, there is no reason for us to reject the aforesaid opinion of the expert from IIT Mumbai. Another circumstance which supports the stand taken by the insurer in this regard is that no water cuts were seen anywhere, when the road in question was inspected by the expert from IIT Mumbai and no evidence of water accumulation or flooding of the damaged road was produced even before the aforesaid expert from IIT Mumbai. In these circumstances, we have no hesitation in holding that the rainfall between 05.08.2008 to 15.08.2008 could not have damaged the road in question.
16. A perusal of the report dated 02.1.2009 submitted by Professor S.L. Dhingra of IIT Mumbai shows that they had inspected the damaged road and after discussion with the representative of the complainant, they had got three samples, two of which were analyzed for BC and the third one for DBM. They extracted the bitumen from the aforesaid samples and carried out analysis in an effort to ascertain the cause of damage of the road. The Bitumen Contents was found to be 6.06% in one sample and 6.02% in other sample, whereas DBM was found to be 5.1% in the sample. The following extracts from said analysis are relevant:
"Aggregate Gradation for BC (As per MORT & H Section 500: Table No.500-18) For sample 2 Sl. No. IS Sieves (mm) Weight Passing (g) % wt of passing MORTH Limit 1,2,3, ..
...
....
....
4. 4.75 209.6 44.92 53-71
5. 2.36 142.6 30.57 42-58
6. 1.18 79.6
17.06 34-48
7. 0.6 48.5 10.39 26-38
8. 0.3 34.8 7.45 18-28
9. 0.15 26.7 5.73 12-20
10. 0.075 21.9 4.70 4-10 "Aggregate Gradation BC (As per MORT & H Section 500: Table No.500-18) For sample 1 Sl. No. IS Sieves (mm) Weight Passing (g) % wt of passing MORTH Limit 1,2,3, ..
...
....
....
4. 4.75 196.3 42.07 53-71
5. 2.36 122.9 26.34 42-58
6. 1.18 63.4 13.59 34-48
7. 0.6 40.1 8.59 26-38
8. 0.3 30.4 6.52 18-28
9. 0.15 24.6 5.27 12-20
10.
0.075 19.2 4.11 2-8 I. Gradation of Bituminous Concrete:
The % weights of passing through IS Sieves (mm) 4.75, 2.36, 1.18, 0.60, 0.3, 0.15, 0.075 are not in the specified limits of MORT & H (Table 500-18), more over all the values are less than the lower limit value.
II ... III. Rainfall:
The claim is from 5th August to 15th August. The rainfall was 145.1 mm for this period. When we compare with the past ten years rainfall that happened in the month of August, the maximum rainfall was in 2004 i.e. 330.3 mm. Therefore rainfall is normal and is not the cause of damage."
It would thus be seen that percentage of weight of passing through IS Sieves was not within the specified limits of the Ministry of Road Transport & Highways (MORTH) specifications and the values were less than the lower limit value. The work executed by the complainant therefore, was not as per the prescribed standards.
17. Admittedly, there were portholes in large number found on the subject portions of the road. The following is the opinion of the expert from IIT with the respect to potholes:
"POT HOLE:
A pothole is a type of disruption in the surface of a roadway where a portion of the road material has broken away, leaving a hole. Most potholes are formed due to fatigue of the pavement surface. As fatigue cracks develop they typically interlock in a pattern known as "alligator cracking". The chunks of pavement between fatigue cracks are worked loose and may eventually be picked out of the surface by continued wheel loads, thus forming a pothole. The formation of potholes is exacerbated by cold temperatures, as water expands when it freezes and puts more stress on cracked pavement. Once a pothole forms, it grows through continued removal of broken chunks of pavement. If a pothole fills with water the growth may be accelerated, as the water 'washes away' loose particles of road surface as vehicles pass. In temperate climates, potholes tend to form most often during spring months when the subgrade is weak due to high moisture content. However, potholes are a frequent occurrence anywhere in the world, including in the tropics".
It is thus quite evident that the fatigue cracks had developed on the subject portion of the road and the said cracks resulted in formation of potholes. Rainwater also would have collected in the potholes, resulting in washing away of the loose particles of the road surface. In our opinion, fatigue cracks to such an extent that the subject portion of the road would develop large number of potholes, severally damaging the road, could not have occurred had there been no defect in the material used and / or workmanship employed in executing the work. A newly road laid / re-laid just two months earlier is not likely to get damaged to such an extent within a short period of two months, if there is no defect in the material and / or the workmanship employed by the contractor even if there is rainfall to the extent of 145.1 mm in a span of eleven days. If normal rains are capable of damaging the road to such an extent if in the absence of the use of any defective material and / or deployment of the poor workmanship, every road will get severally damaged on its being used for one monsoon season. The newly laid roads are not supposed to develop major cracks within such a short span if there is no use of defective material and / or deployment of poor workmanship. In taking this view, we are fortified with the above referred analysis carried out by the expert from IIT with respect of the samples taken from the affected portion of the road.
18. It was pointed out by the learned counsel for the complainant that the payment to the complainant by NHAI for the said portion of the road was released only after the work was certified by M/s. Lion Engineering Consultants, which after checking the quality of the work, found the same to be in conformity with the specifications laid down by NHAI and other provisions of the contract between the complainant and NHAI. The contention of the learned counsel was that the quality of the work having been certified by the consultants, the opinion given by the surveyor and / or the expert from IIT Mumbai should not be accepted. We have perused the quality certificates issued by Lion Engineering Consultants. They have stated in the said certificates that they had thoroughly checked the work at the site in respect of the quantity and quality and found the same to be in compliance with specifications and other contract provisions. However, the certificate attached to the quality Certificate No.1 dated 30.4.2008 shows the team leader of Lion Engineering Consultants had checked 15% of the measurements for payment certificate No.1, for the period from 03.4.2008 to 25.4.2008. The certificate dated 25.6.2008, also shows that the team leader had inspected 15% of the measurement for the payment certificate No.2 for the period from 26.4.2008 to 06.6.2008. It is thus seen that not the entire work was checked by Lion Engineering Consultants. Therefore, there is a possibility of the damaged portion of the road having not been checked by them before issuing the quality certificates dated 30.4.2008 and 25.6.2008. Moreover, there is no evidence of any sample of the work having been taken and analysed for the purpose of ascertaining the percentage of BC and DBM. More importantly, despite the insurance company based upon the report of the surveyor and the opinion given by expert from IIT Mumbai having rejected the claim, the complainant did not examine anyone from M/s. Lion Engineering Consultants to prove that the damage to the subject portion of the road could not have been caused on account of any defect in the material used or the workmanship employed for executing the work. In the absence of even an affidavit from the said consultant, not much reliance can be placed upon the quality certificate issued by them, particularly when the said certificates were based on the checking of only 15% of the measurements.
19. In M. Sitarama Reddy (supra) on which reliance is placed by the complainant, the complainant had proved by leading positive evidence that there was no defective workmanship in the work executed by him. For this purpose he had examined Mr. K. Laxminarayana, M.E. who at the relevant time was Superintending Engineering, incharge of the work and he had clearly stated that there was no deviation by the complainant from the specifications. The aforesaid Engineer had overseen the construction undertaken by the complainant, which was executed under the direct control and supervision of the Department. Engineers from Quality Control Wing of the Department had also made surprise visits to assess the quality of the work and necessary rectifications were ensured through the contractor, before making payment to him. The complainant had also examined Mr. S. Chandra Mohan, B.E., M.I.E. who was the Executive Engineer at the relevant time and he had stated that on verification of the work, it was found that the work was done as per the specifications. After going through the survey report he had stated that the reasons given by the surveyor for rejecting the claims were technically wrong and were made without any understanding on the subject. He had also stated that the stretch of the road in question was also inspected by one expert from UK and the Superintending Engineer, Quality Control, Hyderabad to ascertain the reasons for the damage and both of them had expressly opined that likely cause of damage was unexpected presence of subsoil water and raising of subsoil water to the level of B.M. layer. However, in the case before us, no expert either from NHAI or from Lion Engineering Consultants has been examined by the complainant to prove that the damage to the subject road could have been caused due to rains or that the said damage could not have been caused on account of any defect in the material used or the workmanship deployed in execution of the work.
20. For the reasons stated hereinabove, we are of the considered view that the loss suffered by the complainant in Consumer Complaint No.43 of 2009 was not reimbursable under the insurance policy taken by him. The rainfalls to the extent of 145.1 mm between 5th August, to 15th August, 2008 could not have resulted in such extensive damage to the road and the report of the expert from IIT Mumbai clearly shows not only that the rain could not have caused the said damage to the road but also that the damage was likely to be the result of the use of the defective material and / or poor workmanship in execution of the work.
CAUSE OF DAMAGE IN CC/58/2009
21. In the intimation sent to the insurance company on 09.7.2007, the complainant Mahavir Road & Infrastructure Pvt. Ltd. referred to heavy rainfall in Maharashtra in last fifteen days and imputed the damage to the completed section of the road, to the alleged heavy rainfall. No specific date of the alleged damage was given in the said intimation. In the claim form submitted to the insurance company, the complainant claimed the date of the said loss to be from 25.6.2007 to 05.7.2007. However, in its letter dated September 14, 2007 to the insurer, the complainant alleged that due to heavy rains on 29.6.2007, the road got inundated in water, the top layers were washed off and the bonding between bitumen and metal was lost when it came into contact with water. The report of the surveyor shows that the stand taken before him was that the damage had occurred on 2nd / 3rd July, 2007. Thus, the complainant did not stick to a uniform date (s) of the alleged damage. As per the Clause 5 of the General Conditions of the Insurance Policy, the complainant was required to give immediate intimation of the loss or damage to the insurer either by telephone or by telegram as well as in writing. If the damage had happened/started happening on 25.6.2007, or on 29.6.2007, or even 2nd / 3rd July, 2007, the complainant ought to have given immediate intimation to the insurer. The said intimation however, came to be given only on 09.7.2007. The requirement of the giving immediate intimation to the insurer is not a mere formality, the purpose of the said requirement being to enable the insurer to get the site inspected and determine the cause of the damage as well as to compute the loss to the insured at a time when the evidence at site is still fresh and capable of verification. There is no explanation from the complainant for not giving immediate intimation to the insurer as soon as the damage to the road took place or even started. The aforesaid delay becomes important in the light of the fact that no photographs showing flooding or inundation of the road, in question, was submitted by the complainant either to the surveyor or to the insurer. It is alleged in para 7 of the complaint that the flood water and / or inundated accumulated water cannot remain on road for a period of more than ten days. If that is so, it was all the more necessary for the complainant to give immediate intimation to the insurer so that the site could be inspected by the surveyor before the water recedes and the evidence of the alleged flooding / inundation disappears. If the insured neither gives immediate intimation of the damage to the insurer nor produced photographs / video recording showing flooding / inundation of the road, such an omission on its part will put a serious question mark on the truthfulness and credibility of his claim and in the absence of an adequate explanation, the insurer would be justified in contending that had the road been actually flooded / inundated due to rainwater, the insured would not only have given immediate intimation to the insurer and asked it to depute a surveyor to inspect the site, it would also have preserved the evidence of alleged flooding / inundation by taking photographs or video recording of the inundated / flooded portion of the road.
22. As noted earlier by the surveyor no rain cuts or erosion of base soil of the roads on account of flood water was seen by them when they inspected the site and only surface damages were found. As per the data quoted from the Meteorological Department, the rainfall was 15.2 mm on 25.6.2007, 9.2 mm on 26.6.2007, 0 mm on 27.6.2007, 5mm on 28.06.2007, 0mm on 29.6.2007, 0mm on 30.6.2007, 10.6 mm on 01.7.2007, 49.2 mm on 02.7.2007 and 116.6 mm on 30.7.2007.
23. As noted earlier, in its letter dated September 14, 2007 to the insurer, the complainant had alleged that the road got inundated in water, the top layers were washed off and bonding between bitumen and metal was lost due to heavy rains on 29.6.2007. In fact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6 mm. No expert evidence has been led by the complainant to opine that the rainfall to the extent of 111.6 mm on 03.7.2007, either alone or coupled with rainfall of 49.2 mm on 02.7.2007 could have resulted in flooding / inundation of the road. No expert has been examined by the complainant to prove that the rainfall to the above referred extent could have resulted in severe damage to the road which had been constructed just a fortnight or so earlier. It has come in the report of the surveyor that though rainfall in September, 2007 was also to the same extent, no damage to the road during the aforesaid period was reported by the complainant. If the rainfall which occurred between 25.6.2007 to 03.7.2007, would have damaged one section of the road to an extent that it required repairs at a cost of about Rs.1.44 crores, atleast some damage would have been reported on account of the rainfalls to the same extent in September, 2007. The aforesaid circumstance needs to be viewed in the light of the fact that no evidence of the flooding / inundation of the road has been submitted by the complainant and no expert has been examined to prove that the subject portion of the road could have been damaged on account of the rainfall which happened between 25.6.2007 to 05.7.2007, to the extent claimed by the complainant. We would also like to note here that the rainfall on 19.9.2007 was 112.2 mm which is almost the same as the rainfall on 03.7.2007. Even Mehta & Padamsey Pvt. Ltd. whose opinion was taken by the insurance company was of the view that the rainfall of July 2/3, 2007 was normal in range in that region. In our opinion, considering the stand taken by the insurer, while repudiating the claim it was necessary for the complainant to lead expert evidence before us to prove that the rainfall to the extent it happened during about ten days between 25.6.2007 to 05.7.2007 was capable of damaging the road to the extent it has been reported or that the damage which the surveyor found at the time of inspection had actually occurred due to flooding / inundation of the road. We are therefore satisfied that there was no flooding / inundation of the damaged portion of the road and the rains which happened from 25.6.2007 to 05.7.2007 could not have caused the said damage. The complainant in Consumer Complaint No. 58 of 2010 therefore, is not entitled to any reimbursement from the insurer.
24. For the reasons stated hereinabove, both the complaints are dismissed, with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER