National Consumer Disputes Redressal
M/S. Landmark Buildwell Pvt. Ltd. & ... vs M/S. Royal Sundaram Alliance Insurance ... on 27 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 274 OF 2013 1. M/s. LANDMARK BUILDWELL PVT. LTD. & ANR., 42, Deepak Building, 13, Nehru Place, NEW DELHI. 2. M/S. SPLENDOR LANDBASE LTD. SPLENDOR FORUM, 5th Floor 03, Jasola District Centre New Delhi ...........Complainant(s) Versus 1. M/s. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., Regd. Office: 21, Patullos Road, CHENNAI - 600002. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Complainant : Ms. Namitha Mathews, Advocate
: Ms. Poorva Pant, Advocate For the Opp.Party : Mr. S.M. Tripathi, Advocate
Dated : 27 Sep 2022 ORDER
1. Heard Ms. Namitha Mathews, Advocate, for the complainants and Mr. S.M. Tripathi, Advocate, for the opposite party.
2. M/s. Landmark Buildwell Pvt. Ltd. and M/s. Splendor Landbase Ltd. (the Insured) have filed above complaint for directing Royal Sundaram Alliance Insurance Company Limited (the Insurer) to pay (i) Rs.27121164/- with interest @24% per annum, from 26.03.2012 till the date of payment, as the insurance claim, (ii) Rs.50/- lacs, as the compensation for mental agony and harassment, (iii) Rs.10/- lacs as the cost of litigation; and (iv) any other relief, which is deemed fit and proper, in the circumstances of the case.
3. The facts, as stated in the complaint and emerged from the documents attached with the complaint, are as follows:-
(a) M/s. Landmark Buildwell Pvt. Ltd. (complainant-1) was a company, registered under the Companies Act, 1956 and engaged in construction of all types of buildings on contract basis, including multi-stories residential complex, institutional buildings, hospitals and large industrial projects. M/s. Splendor Landbase Ltd. (complainant-2) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing and commercial complex. M/s. Splendor Landbase Ltd. (complainant-2) undertook a project of commercial complex, namely "Splendor Trade Tower" at Sector-65, Gurgaon, in the year 2009. M/s. Splendor Landbase Ltd. gave contract for construction work of Phase-1 of the said project to M/s. Landmark Buildwell Pvt. Ltd. vide agreement dated 30.06.2009.
(b) Royal Sundaram Alliance Insurance Company Limited (the opposite party) is a Private Insurance Company and engaged in the business of providing different types of insurance services to the general public. The complainants obtained 'Contractors All Risk Insurance Policy' No.EC00000950000100, for a sum of Rs.88520000/- for Material Damage and Rs.4120000/-for Third Party Liability, for the period of 11.07.2009 to 10.11.2010 from the opposite party, of the said commercial complex. The Insured also obtained another "Workmen Compensation Insurance Policy" from the Insurer.
(c) Phase-1 of "Splendor Trade Tower" consisted two parts i.e. Tower part, having three basements, ground floor plus seven stories and other was Lower rise Structure, having three basements, ground floor and first floor. The basements of both portions were connected with each other and had only one expansion joint. In Soil Testing Report, underground water level was found 10.5 meter below the natural ground level. The road in one side of the project was 2 meter high from natural ground level. After obtaining Soil Testing Report, excavation for Tower portion was done by "Sapna Earth Movers" and Lower rise Structure was done by complainant-1, up to 12 meters deep from road level. Basement was constructed around June, 2009 to July, 2009 of Tower portion. In the portion of Lower rise Structure, TIE slab connecting isolated foundation/footings of different sizes for various columns and retaining walls were constructed. As per Soil Testing Report, possibility of underground water level rise was up to -8 meter and the foundation was designed as an inverted flat slab, capable to bearing ground water pressure up to 3 meter.
(d) Delhi and NCR region experienced a torrential rainfall during July, 2010 to September, 2010, which broke the rainfall record of previous 20 years. Total rainfall of 811.90 mm was recorded during July, 2010 to September, 2010. Due to continuous heavy rainfall, huge quantity of water along with soil gushed in the basement pit of the Project site up to the height of 5 meters from basement and buried various structures in the basement although the Project site was at a higher level than adjoining areas and sufficient precautions were taken to prevent entry of water from outside the Project. The surrounding fields were completely submerged in water as such pumping out the water from basement had become impossible.
(e) The insured informed the Insurer about the incident and consequent loss. The Insurer appointed J.B. Boda, Surveyors Private Limited, New Delhi, as the preliminary surveyor, who inspected the Project site on 03.08.2010, 07.09.2010 and 25.01.2011, took photographs of affected Project. J.B. Boda, surveyor submitted Preliminary Survey Report dated 04.02.2011, in which, he confirmed that water logging in all the fields in three sides of the project and inside the basement was found on 03.08.2010. Pumping out the water from the site was not possible due to which water logging on the Project site remained for about three months.
(f) On draining out the water and removing soil silt from basement, it was noticed that water logging led to cracks in the junctions of footing and raft slab and also damaged the columns, retaining walls, footings and stitch labs of the Project. The Insured engaged M/s. TPC Retrofitting and Structural Consultants, New Delhi, for inspection of the Project, assess the loss and to suggest remedies, who carried out various tests and submitted his report that the slab were having cracks as marked in the crack mapping. Due to increased hydrostatic pressure and subsequent failure of TIE slab, the TIE slab has to be strengthened. The Insured also engaged M/s. Isha Consultants Pvt. Ltd., New Delhi to review the design adopted by the Insured for construction of the basement, who after review submitted report that the works carried out were definitely required for the stability of structure without retrofitting methods, only rectification by nominal repairs of cracks would not have sufficed to ensure stability of the structure. As per reports, the Insured undertook various remedial measures to remove the defects and damages caused to under construction basement.
(g) The Insured took remedial works i.e. (i) De-watering of surrounding areas. (ii) Pumping out the water from basement. (iii) Removal of silt from basement. (iv) Laying down and fixation of reinforcement bars into existing RCC. (v) Laying RCC to tie up footing of various columns. Cost of de-watering was Rs.8117028.59, de-silting was Rs.4981467.83 and repairing foundation, raft etc. was Rs.14022667.54 (total Rs.27121163.96). The complainant submitted insurance claim of Rs.27121164/- on 26.05.2011 along with various papers and above reports to prove the loss.
(g) The Insurer appointed Adarsh Associates, New Delhi as the surveyor on 30.01.2011, who inspected the Project on the same day. The surveyor submitted his Final Survey Report dated 14.03.2012, assessing the loss to Rs.5925181/-. But he observed that no damage had taken place due to water logging in the basement or due to bouncy pressure. Thereafter, Head Commercial Claim of the Insurer, vide letter dated 26.03.2012, repudiated the claim. Hence the complaint was filed on 30.08.2013, claiming deficiency in service.
4. The Insurer filed its written reply on 12.11.2013 and contested the complaint. It has been stated that as soon as the incident was reported to the Insurer that they appointed J.B. Boda, Surveyors Private Limited, New Delhi, as the preliminary surveyor, who inspected the Project site on 03.08.2010, 07.09.2010 and 25.01.2011, took photographs of affected Project. J.B. Boda, surveyor submitted Preliminary Survey Report dated 04.02.2011, in which, he confirmed water logging in all over the fields in three sides of the project and water inside the basement. He further reported that pumping out the water from the site was not possible and water logging on the Project site remained for about three months. The Insurer appointed Adarsh Associates, New Delhi as the surveyor on 30.01.2011, who inspected the Project on the same day. The surveyor engaged M/s. Choudhury & Associates, Structural Consultant, New Delhi, as an expert to ascertain the damage, who inspected the site on 18.02.2011, along with representative of M/s. TPC Retrofitting and Structural Consultants, New Delhi, Mr. N.K. Gupta and Mr. Amit Mittal (the Insured) and Mr. A.K. Gupta, the surveyor. He found that prediction in Soil Testing Report that water table may rise up to -8 Mts during rainy season, was incorrect. During the period of water flooding, water pressure on the TIE slab from bottom and from top were equal as such there was no bouncy pressure from the bottom. Bouncy pressure may be possible on pumping out the water from basement. The alleged cracks were a construction joint and not crack. No damage was caused to TIE slab due to bouncy pressure. The slab can neither fail by bending moment nor by shear force. There was small construction defect and do not have any relevance with bouncy. The water was accumulated in both sides of retaining walls, as such, retaining walls were not subject to any force. Hair pin cracks in the columns were due to shrinkage of concrete. On these reasons, he submitted his report dated 23.02.2011 that no damage had taken place due to water logging in the basement or due to bouncy pressure. Additional work was done to give strength to the construction to counter bouncy pressure during rainy season in future. The surveyor submitted Final Survey Report dated 14.03.2012, assessing the loss to Rs.5925181/- but he observed that no damage had taken place due to water logging in the basement or due to bouncy pressure. Thereafter, Head Commercial Claim examined all the papers and vide letter dated 26.03.2012, repudiated the claim. The claim for de-watering and de-silting was not falling in the clause for removal of debris as such it was also not payable. There was no deficiency in service on the part of the Insurer.
5. The Insured filed Rejoinder Reply on 29.01.2016, Affidavit of Evidence of Manish Prakash, Supplementary Affidavit of Evidence of Madan Singh Bisht and documentary evidence. The Insurer filed Affidavit of Evidence of S. Srinivasa, Vice President (Legal) and documents. Both the parties filed their short synopsis.
6. I have considered the arguments of the counsel for the parties and examined the record. The Insurer repudiated the claim, vide letter dated 26.03.2012, on the ground there was no material damage. Hair line cracks in retaining wall/stich slab and minor gaps in some joints between the raft and columns footing were not because of ground water bouncy. Improvement measures were taken to counter the rise in ground water table in rainy season and expenditures for de-watering and de-silting were not removal of debris. Section-1- Material Damage- of the policy provides that the property or any part of it is lost, damaged or destroyed by any cause, other than those specifically excluded hereunder, in a manner necessitating replacement or repair was liable to be reimbursed. First question arises for consideration as to whether there was any material damage due to bouncy pressure of ground water or due to entering rain and flood water from surrounding fields?
7. M/s. TPC Retrofitting and Structural Consultants, New Delhi in his report has mentioned that due to heavy rains, the water table had risen up to natural ground level, which created hydrostatic pressure of 8 meters as depth of basement was 10.5 meter from ground level. Due to which, cracks at random locations in TIE slab had occurred. On the other hand, the Insured in paragraph-10 of the complaint has stated that due to continuous heavy rainfall, all the adjoining areas of Project site were completely submerged in water and huge amount of water along with soil gushed in the basement pit in intervening might of 30.07.2010 and 31.07.2010. Statement in the complaint appears to be correct as large quantity of mud/soil silt had been collected in the basement. As such the reports of M/s. TPC Retrofitting and Structural Consultants, New Delhi and Isha Consultants Pvt. Ltd. do not appear to be probable that due to rise of water table up to ground level, hydrostatic pressure and bouncy were created due to which TIE slab was cracked at various locations.
8. M/s. Choudhury & Associates, Structural Consultant, New Delhi inspected the site on 18.02.2011, along with representative of M/s. TPC Retrofitting and Structural Consultants, New Delhi, Mr. N.K. Gupta and Mr. Amit Mittal (the Insured) and Mr. A.K. Gupta, the surveyor. He found that during the period of water flooding, water pressure on the TIE slab from bottom and from top were equal as such there was no bouncy pressure from the bottom. He further found that prediction in Soil Testing Report that water table may rise up to -8 Mts during rainy season, was incorrect. He further found that the alleged cracks were a construction joint. No damage was caused to TIE slab due to bouncy pressure. The slab can neither fail by bending moment nor by shear force. There was small construction defect, which do not have any relevance with bouncy. The water was accumulated in both sides of retaining walls, as such retaining walls were not subject to any force. Hair pin cracks in the columns were due to shrinkage of concrete. As such material damage due to rain and flood water was not proved.
9. Depth of basement of 10.5 meter from normal ground level. The Insured constructed raft slab of 350 mm thickness, which was capable to bear ground water pressure of 3 meter only, which was neither logical nor based upon water table during rainy season in the area. Looking to the heavy rain, during 2010, additional construction was done to strengthen the basement to bear water bouncy in future and not due to any material damage. As there was no damage, the claim in the head of material damage was not payable.
10. Section-1-Material Damage of the policy further provides that the company will also reimburse the Insured for the cost of clearance and removal of debris following upon any event giving rise to an admissible claim under the policy. The claim for material damage was found not admissible as such the claim for de-watering and removing silt could not be categorised as "removal of debris". The repudiation letter does not suffer from any illegality. The complaint has no merit and is liable to be dismissed.
ORDER
In view of the aforesaid discussions, the complaint is dismissed.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER