The insurer's liability under a Contractors All Risk Policy includes damages from natural calamity unless the insured portion has been fully handed over, requiring substantial evidence to substantiate claims and denials.

ORDER

PER SUBHASH CHANDRA

1. This Consumer Complaint under Section 21 (a)(i) of the Consumer Protection Act , 1986 (in short, the “Act”) alleges deficiency in service in repudiation of its liability by the Opposite Party under a Contractors All Risk Insurance Policy (the “Policy”) obtained by the Complainant from it with regard to a road construction contract.

2. Upon notice, the Opposite Party filed its written version, and the Complainant filed its rejoinder thereto. Parties led their evidence on affidavit and both parties filed their written synopsis of arguments. We have heard the learned counsel for both the parties and given our thoughtful consideration to the material on record and the submissions made.

3. The relevant facts of the case, in brief, are that the Complainant was awarded a road construction contract under the Pradhan Mantri Gram Sadak Yojana, Phase-6 (PMGSY) in District Bageshwar, Uttarakhand for a length of 43 kms between Rikhari and Bachham on 20.02.2009. Complainant obtained a Contractors All Risk Insurance Policy from the Opposite Party on 04.03.2009 valid till 03.03.2011 to cover the risk in this contract. The contract was scheduled to commence on 28.02.2009 and to be completed by 27.08.2010. On account of heavy and continuous rainfall in July-August 2010, landslides and falling of heavy boulders from the mountain damaged the road under construction at multiple locations. On 05.08.2010, the Complainant informed an official of the contracting party regarding damage to retaining walls, scuppers and culverts that had been constructed. On 01.09.2010, the Executive Engineer, PIU, PMGSY, Irrigation Department, Bageshwar was requested to prepare an estimate on the basis of which the Opposite Party could be approached. Opposite Party was also informed on 01.09.2010 of the incident. The Opposite Party appointed Mr. JC Joshi on 17.10.2010 to conduct a survey and accordingly, a preliminary survey report was prepared by the said spot surveyor on 05.01.2011.

The Complainant contends he approached the Opposite Party at Almora on 01.11.2010, 18.11.2010, 09.12.2010 and 21.12.2010 following up his request. Opposite Party, thereafter appointed Sqn. Ldr. Kapil Mohan (retd.) as Surveyor and Loss Assessor to prepare a final survey/loss assessment report. The surveyor submitted a report dated 09.04.2011 assessing the loss to be Rs.10,70,030/-. It was also held that the claim under the Policy was not valid since the road had been handed over to the PWD which, according to the surveyor was evident from the fact that the road was under usage at the time of loss and the repair estimates had been prepared by the engineers of PWD, Bageshwar. It was also concluded that part of the repair expenses of Rs.7,39,085/- had been paid for by the State Government under AOG fund (‘Act Of God’ fund).

Vide letter dated 05.06.2012, the Opposite Party conveyed to the Complainant that the surveyor had assessed the loss incurred to be Rs.10,70,030/- and sought consent to proceed in the matter.

Since the Complainant had preferred a claim of Rs.1,28,61,082/- based on the estimate of the PWD department, the Complainant is before us in this Complaint praying for the following reliefs:

“a) The opposite party be directed to pay a sum of 1,28,61,082/- alongwith interest @ 24% per annum from the date of intimation of loss i.e. 05.08.2010 till payment to the petitioner as compensation towards loss suffered by him at site due to heavy rains.

b) The opposite party be ordered to pay 20,00,000/- to the petitioner towards mental harassment and financial loss and the cost of filing this complaint.

c) That any other relief as this Hon'ble Commission may deem fit and proper in the above circumstances of the cas