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As the insured Peril (IAR Policy) has not operated for above type of loss, we are not in a position to recommend for payment but to recommend for closure on the above grounds."

7.         As per OP insurer the failure of the work of construction was in the absence of any abnormal or unforeseeable occurrence. There was no accident whatsoever.  The tripping of the Grid and the stoppage of flow causing stagnation of water were not unusual and had occurred several times earlier. As the wall was not designed as per specifications, it could not hold the water. The masonry wall not only failed prematurely, but also against foreseeable circumstances. As such, the loss was not due to any "accidental damage" and hence the same is not covered under the policy. OP insurer concluded that there is no liability on the insurers as the cause of loss also falls within the excluded clause under the relevant insurance policy issued on the property. OP insurer after considering the Technical reports, the survey report and other material/documents on record, repudiated the claim of the complainant by letter dated 21.02.2013. However, on receiving various representations and report of M/s Bangalore Hydro Engineers and Consultant Pvt. Ltd. (BHEC) countering the rejection of the claim, OP insurer sent that report to Indian Institute of Science, Bangalore for examination and for submitting a further report on the same. Addendum reports were received from Prof. Dr. J.M. Chandra Kishen of Indian Institute of Science, Bangalore and Technical Consultant, and, on the basis of these report and the addendum survey report, OP insurer vide letter dated 22.07.2014 (above) re-communicated to the complainant that the claim stood repudiated as communicated earlier.     

15.       We note that the complainant's main focus in this complaint is to point out what are the defects or incorrect finding inferences and observations in the reports of the surveyor and in the technical inputs from the experts. After considering issues raised by the complainant and discussed in the joint meeting, the addendum report has been submitted by the surveyor after which the OP reiterated the repudiation vide communication dated 22.07.2014. It is the contention of the complainant that this communication implies that the insurer has given up the ground of non-operation of the insured peril for repudiation and rather has relied on the exclusions of defective design, workmanship, material, etc. and erosion due to normal wear and tear as the ground. We do not agree. The letter dated 22.07.2014 is the communication of the outcome of the discussions and the addendum report prepared by the surveyor after the technical evaluation was attempted to be countered by the complainant. The said letter obviously makes reference only to the strength, structure and defects in the construction of forebay with particular reference to river side wall, as only such portion was attempted to be rebutted by the complainant in their subsequent reference to reports of BHEC and IIT, Roorkee. This in no way can be deemed to be giving up of the fundamental objection already earlier pointed out in original repudiation letter dated 21.02.2013, particularly so when the last line of communication dated 22.07.2014 reads that "as per the survey report, addendum report and expert report of Dr. J.M. Chander Krishan, the claim stands repudiated, as communicated earlier. 

16.       We have minutely perused the addendum survey report and the respective other technical reports from both the sides, the relevant extracts from which have been summarized or extracted earlier in this order. We note that all the technical issues have finally been crystallized in the addendum survey report dated 18.07.2014. The said report has additionally and in full detail re-brought out the findings of Dr. J.M. Chander Krishan(JMC) who has prepared "failure analysis of forebay wall collapse" after duly considering BHEC's all observations in support of the complainant. The critical findings are that (i) guide walls not having any special function: the insurer's technical expert JMC states that in case of failure of the spill way masonry portion, the guide wall should provide additional resistance and support which has not happened, (ii) failure is not due to sliding but due to under scour and subsidence : it is already mentioned in the main report that intensive scouring is the main reason for failure of the spill way, which is only concurred by BHEC, (iii) both BHEC and JMC agree that failure is due to under scour and subsidence of the wall, (iv) the guide walls were good quality structure : not the construction quality of the guide walls but the design detailing has been found faulty, (v) 3 mtr. head on the down stream portion: the report has made scenario analysis for the down stream side with 0, 1, 2 and 3 mtrs. (vi) cohesive strength of 0 is not acceptable : given the fact that there is excessive scouring with contact loss, the effective contact width gets reduced, (vii) failure is not due to sliding : scouring could be the main reason for failure. However, the sliding could have occurred on account of excessive scouring. It is well known in hydraulic engineering that erosion or scouring of hydraulic structure cause loss of stability. Therefore, the surveyor has incorporated the re-affirmed findings of the technical expert, who has carried out the scientific and technical investigation into "why the slip wall collapsed". Such report would obviously consider and weigh different factors in scientific fashion to arrive at the most likely cause of failure which have to be, when incorporated into a survey report and found to be absolutely objective, accepted unless the material has been placed to establish the arbitrariness and adhocism in such report. As held by the Supreme Court in Khatema Fibers Vs. New India Assurance Co. Ltd, 2021 SCC OnLine SC 818 and Sri Venkateshawara Syndicate Vs. Oriental Insurance Co. Ltd. (2009) 8 SCC 507 SC the surveyor's report cannot be lightly brushed aside and that once when survey report is not based on adhocism or is vitiated by arbitrariness, then the jurisdiction of the consumer forum to go further would stop. There is no credible material with us placed by the complainant to put any real serious challenge to the detailed reports and therefore we have no hesitation in holding that not only the collapse of the hydraulic structure within a period of 3 years of its life itself, in the absence of any other established reasons, establishes that the structure was weak and below standard, the same after investigation has rightly been found to be so.  In view thereof, the additional invocation of exclusion clause 1 (page 295) of the policy, cannot also be faulted with. There is absolutely no merit in the contention of the insured that the strength and design excellence of the collapsed wall should be inferred from the fact that the opposite side wall which withstood hydraulic forces far higher than those faced by the collapsed wall, was not affected. This contention itself is wrong because the question is not why three of the four walls have survived. The question is why at all one of the walls' collapsed. Also, the contention in the BHEC report that the construction is not weak because the entire system performed very well for three successive seasons without having any indication of damage or distress has no merits. This contention also needs to be repelled because premature failure of the structure cannot be explained on the ground of survival of the part of the structure merely for three years. Similarly, we find no substance in the contention on behalf of the complainant that the collapse "due to accident of sudden tripping due to unprecedented overflow of water" does not fall within the exclusion clause or that the conclusion of the surveyor regarding cracks having been developed in the structure are baseless. The scouring seen by the technical team/surveyor, as alleged by the complainant, is after the damage, which was caused by a huge 10 mtr. of wall column suddenly gushing out of the forebay wall and hence cannot be made the basis. The evidence only in the nature of photographs have been placed on record to substantiate this contention, which is already countered by the surveyor by way of rainfall data. Otherwise also, such "10 mtrs. water column" as alleged by the complainant would have equally caused damage at places other than the complainant's for which no evidence has also been placed on record. 

17.       The complainant has contended that the repudiation of the claim has defeated the very purpose of the policy and such actions frustrating the purpose of the policy have been held to be untenable by Supreme Court in United India Insurance Co. Ltd. Vs Levis Strauss (India) Pvt. Ltd (2022) 6 SCC 29. The complainant also relied on Texco Marketing Pvt. Ltd. Vs. Tata AIG General Insurance Co. Ltd. & Ors. (2023) 1 SCC 428 to contend that the exclusion clauses have to be strictly read and that in cases of ambiguity, the principles of blue pencil and contra proferentem have to be applied. However, we find that there is neither any ambiguity nor any loose reading applied to the policy clause including that to the exclusion clause applied by the insurer and therefore the decisions have no applicability. In conclusion, we hold that the complainant has not established any "accident" within insurance terminology to attach liability under the policy on insurer.  Additionally, we hold that once there is no accident, the attempt of the insurer and the technical experts was only to additionally find out the "cause of premature failure", and drilling of any holes in such additional exercise by the complainant cannot bring the incident within the "accident", though complainant has also not been successful in drilling any such hole. The addendum survey report dated 18.07.2014 is fair and objective, which has duly and fairly considered all objections raised by the complainant and we agree that the forebay wall has just collapsed on its own, due to structural defects, design faults and strength deficits, and therefore "not an accident". Additionally, we therefore also hold that there is no adhocism or arbitrariness in the surveyor's reports and therefore, as a matter of fact, it has to be held that not only there is no accident, the design and maintenance of the structure itself was faulty and defective which caused the collapse of the forebay wall which also described in detail in survey report and in addendum survey report. Therefore, the claim is rightly repudiated, there is no deficiency in service and therefore there is no merit in the complaint.