IMPORTANT POINT
‘Reasonable precaution’ - Use of the term ‘reasonable precaution’ does not envisage for performance of impossible act.

ORDER

Heard Mr. K.V. Girish Chowdary, Advocate, for the appellant and Mr. Dhruv Kumar, Advocate, for the respondent.

2. IFFCO TOKIO General Insurance Company Limited (the opposite party) has filed above appeal from the order of State Consumer Disputes Redressal Commission, Uttar Pradesh, dated 15.09.2015, allowing CC/10/2010 and directing the appellant to pay Rs.6851441/- with interest @9% per annum, from the date of filing of the complaint till the date of payment and litigation cost of Rs30000.

3. PNC Infratech Limited (the respondent) (the Insured) filed CC/10/2010, for directing IFFCO TOKIO General Insurance Company Limited (the appellant) (the Insurer) to pay (i) Rs. 6851441/- with interest @14.5% per annum under Regulation-9 till actual payment, as the insurance claim, (ii) Rs.50000/- as incidental expenses, (iii) Rs.40000/- as cost of the litigation; and (iv) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

4. The complainant stated that the Insured was a company, registered under the Companies Act, 1956 and engaged in the business of construction of road and other like projects. The Insured was granted Rehabilitation Contract No.51/PD/SRP/2005-2006 dated 01.10.2005 by Public Works Department, Government of U.P., for rehabilitation works of State Highway-33 from Chainage 159.00 (near Kasganj) to Chainage 222.00 (Hathras). The Insured obtained “Contractor’s All Risk Policy” No.DZ/ICA/05-06/CB/000011/32010092 from IFFCO TOKIO General Insurance Company Limited (the Insurer), for the period of 09.11.2005 to 30.09.2007 + 12 months maintenance visit cover, for sum insured of Rs.265010339/- and Rs.20/- lacs, for Third Party Liability for the said Project. Modus operendi for construction of the road was that half of width of existing road was blocked for construction and remaining half of the width of road was opened for movement of traffic. There were torrential rains on 09/10.07.2006 and 27/28.07.2006. Unprecedented extra-ordinary rains resulted in inundation on the newly constructed road. There was a lot of traffic jam on the road, as such, newly constructed road was opened for traffic movement. Due to inundation and traffic movement, newly constructed road was damaged. The Insured intimated the loss to the Insurer, vide letter dated 23.08.2006. The Insurer appointed J.N. Sharma & Company, New Delhi as the surveyor. The surveyor visited the road site on 27.08.2006, inspected the damaged road, prepared inventory and took photographs. The Insured submitted claim form for Rs.14919330/- and supplied all the papers to assess the loss. The surveyor wrote a letter dated 04.08.2007 to the Insured, requiring its consent for unconditional acceptance of Rs.6851447/- as final settlement. As the settlement of the claim was unduly prolonged, the Insured gave its consent for that amount. The surveyor submitted its Survey Report dated 27.08.2007, assessing loss to Rs.10011120/- and loss payable as Rs.6851447/-. The surveyor assessed the loss on Bill of Quantity basis and not on Standard Data Basis, as prescribed by Ministry of Road Transport and Highways. The Insured wrote a letter dated 15.09.2007 to the surveyor, with its copy to the Insurer, for settlement of the claim. The Insurer wrote letters dated 15.10.2007 and 27.11.2007, asking the Insured to submit the proof of flood at the site of road. The Insured had already submitted Rain Records as maintained by Meteorological Department, issued from the office of District Magistrate, Hathras and the same document was again supplied. However, the Insurer vide letter dated 08.02.2008, repudiated the claim of the Insured on the ground that damage was not caused due to flood rather it was caused by (i) Defective design of the work, (ii) Use of defective workmanship and materials, (iii) Non-provision of an alternative route for traffic and (iv) The road was put in use. The Insured protested the letter dated 08.02.2008, vide its letter dated 24.03.2008