State Consumer Disputes Redressal Commission
United India Insurance Company Ltd vs M/S Gorsi Construction Pvt. Ltd. on 17 April, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA.
First Appeal No. : 342/2016
Date of Presentation: 26.10.2016
Order Reserved on : 17.03.2017
Date of Order : 17.04.2017
......
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.30/2014 title M/s. Gorsi Construction Private Ltd. Versus United India Insurance Company Ltd..
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.342/2016) Brief facts of Case:
2. Complainant M/s. Gorsi Construction Private Ltd.
filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant obtained Contractor All Risk Insurance Policy from opposite party w.e.f. 31.10.2009 to 31.10.2010 relating to risk of work awarded to the complainant by H.P.P.W.D. 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 opposite party regarding loss suffered by complainant. It is pleaded that opposite party deputed a surveyor and asked complainant to submit all documents pertaining to work. It is further pleaded that complainant filed earlier complaint No.37/2012 which was decided on 04.12.2013 by learned District Forum. It is further pleaded that learned District Forum did not believe the report of surveyor submitted by M/s. Puri Crawford and Associates India Pvt. Ltd. It is further pleaded that learned District Forum ordered the opposite party to reassess the claim of the complainant within 30 days. It is pleaded that learned District Forum had given liberty to complainant to file fresh complaint against opposite party on same cause of action. It is pleaded that on 20.01.2014 the opposite party again repudiated the claim of complainant. Feeling aggrieved complainant filed fresh present subsequent complaint and sought relief of 2 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016) Rs.1383000/-(Thirteen lac eighty three thousand) 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.5.00 lac (Five lac) on account of harassment.
3. 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 resolved in a summary proceeding. Prayer for dismissal of complaint sought.
4. Learned District Forum allowed the complaint on dated 27.08.2016 and ordered opposite party to pay a sum of Rs.1383200/-(Thirteen lac eighty three thousand and two hundred ) 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 complainant to the tune of Rs.25000/-. In addition learned District Forum also ordered opposite party to pay litigation costs to the tune of Rs.5000/- (Five thousand) to complainant. Feeling aggrieved against the order passed by learned District Forum insurance company filed present appeal before State Commission.
5. We have heard learned Advocates for the parties and we have also perused entire record carefully. 3 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016)
6. 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:
7. Complainant filed affidavit by way of evidence.
There is recital in affidavit that complainant obtained Contractor All Risk Insurance Policy from opposite party. There is further recital in the affidavit that work was completed within stipulated period. 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 filed earlier consumer complaint No.37/2012 against the opposite party which was decided by learned District Forum on 04.12.2013. There is further recital in affidavit that learned District Forum in complaint No.37/2012 ordered opposite party to reassess the claim of the complainant within 30 days and to pay the indemnify amount.
8. 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 4 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016) 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 M/s. Puri Crawford and Associates India Pvt. Ltd. to conduct spot survey and to submit report. There is further recital in affidavit that claim of complainant does not fall within preview of defect of construction. There is further recital in affidavit that complainant has sustained loss due to heavy snow fall which was not attributed to the defect of construction. There is further recital in affidavit that insurance company has repudiated the claim in accordance with law.
9. Insurance Company also filed affidavit of Shri G. Srinivasan Chairman of M/s. Puri Crawford and Associates India Pvt. Ltd. by way of evidence. There is recital in affidavit that deponent company 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 recital in affidavit that loss is assessed by the deponent after physical examination of damaged road and after observance of principle of indemnity.
10. It is observed by State Commission that learned District Forum Kullu in earlier consumer complaint No.37/2012 has held that report submitted by surveyor M/s. Puri Crawford 5 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016) and Associates India Pvt. Ltd. relating to loss caused to complainant is not reasonable report. It is also observed by State Commission that learned District Forum in consumer complaint No.37/2012 ordered opposite party to reassess the claim of complainant within 30 days and to pay indemnity to complainant.
11. 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.6
United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016)
12. It is well settled law 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 in exclusion clause. There is only reference of major Peril/Act of God Perils in memo No.8 of insurance policy. Major peril and Act of God peril has been defined as earth quake, fire & shocks, flood, storm, water damage i.e. contract involving works in river, canals, lakes and sea.
13. It is held that learned District Forum Kullu in consumer complaint No.37/2012 titled M/s. Gorsi Construction Private Ltd. versus The United India Insurance Company Ltd. ordered opposite party to reassess the claim of complainant with 30 days and to pay indemnity. It is also observed by State Commission that learned District Forum has held in consumer complaint No.37/2012 decided on 04.12.2013 that report submitted by surveyor M/s. Puri Crawford and Associates India Pvt. Ltd. assessing the loss is not reasonable report. Insurance company did not assess loss through some other surveyor thereafter but again relied upon the earlier report submitted by M/s. Puri Crawford and Associates India Pvt. Ltd. which was disbelieved by learned District Forum in earlier consumer complaint No.37/2012.
14. It is held that Himachal Pradesh is a hilly area. It is also held that rain fall and snow fall is the ordinary course of 7 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016) nature in the hilly area of Himachal Pradesh. It is held that rain fall and snow fall is not major peril and Act of God in Himachal Pradesh. Even snow fall and heavy rains have not been mentioned as major perils and Act of God in the insurance policy specifically. Snow falls means atmospheric water vapour frozen into ice crystals lying on ground as white layer. Rain means condensed moisture of atmosphere falling visibly in separate drops. It is well settled law that insurance company cannot be allowed to flout the terms and conditions of insurance policy. It is proved on record that insurance policy was operative at the time when complainant sustained loss due to heavy rain and snow fall and it is also proved on record that opposite party has received premium from the complainant. In view of fact that heavy rains and snow fall is the ordinary natural process in hilly area i.e. Himachal Pradesh and in view of fact that heavy rains and snow fall are not mentioned in exclusion clause of insurance policy it is held that insurance company cannot be exonerated from the liability. It is held that order of learned District Forum did not require any interference by State Commission. In view of above stated facts point No.1 is answered in negative.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum Kullu announced in consumer complaint No.30/2014 title M/s. Gorsi Construction 8 United India Insurance Company Ltd. Versus M/s. Gorsi Construction Pvt. Ltd.
(F.A. No.342/2016) Private Ltd. Versus The United India Insurance Company Ltd. is affirmed. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back 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 17.04.2017.
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