TARUN KANTI CHOWDHURY Vs. ORIENTAL INSURANCE CO LTD

JUDGEMENT

(1.) The complainant/appellant was awarded works by Hooghly Zila Parishad for construction of a road from Chhatarsal Bazar to 24 Purbazar and Muchigata to Nadippur. Two different works were awarded to the complainant/appellant for constructing two different portions of the road. The appellant/complainant was also required to maintain the road so constructed by it for a period of five years. The complainant/appellant obtained two separate policies from the respondent in respect of the afore-said works entrusted to him by the Hooghly Zila Parisahd.

(2.) The road constructed by the complainant/appellant got damaged on account of floods during August-September, 2007 and the case of the complainant is that the road got damaged, due to heavy rains and floods, was repaired by him at his own costs. The claims for reimbursement in terms of the insurance policy taken by him were submitted by the complainant to the insurer. A surveyor was appointed to assess the loss alleged to have been sustained by the complainant. Vide his report dated 10.03.2018 Partha Choudhary who was the surveyor appointed by the insurer assessed the loss to the complainant at Rs.462428/- in respect of one portion of the damaged road and Rs. 2359778/- in respect of another portion of the damaged road. The first report is dated 10.03.2008 and the other report is dated 15.03.2008. The claim, however, was repudiated by the insurer vide its letter dated 13.03.2009 which to the extent it is relevant reads as under:- "The contract of insurance is based on utmost good faith and every fact of materiality and all material facts must be disclosed at the time of obtaining insurance cover. On happening of loss you are under policy condition liable to furnish required documents/papers as may be reasonably required by the Company. It has been observed that by not furnishing the 'Contract Data', copy of Contract separately, if any, for maintenance contract, concealment of the material fact has been done. Likewise in the Proposal Form you have declared that there is no river/nullah/drain or water body near the insured 'property' and there was no flood /inundation since last five years. Your kind attention is drawn to your own statement in the Claim Form where main reason for flood has been given by you is release of water from two number of dams, the surveyor's report corroborated the same. On examination of the available papers with us, we can say that you did not have insurable interest in terms of Clause 11.1, 12.1 And 13.3. The insured may be interested in the property as owners, lessor, lessee, mortgagee, mortgager, vendor, purchaser, trustees etc. You were obliged to provide in terms of Clause 13.3 the insurance cover in the joint names of yourselves and your Employer from the date of completion to the end for defect liability period in the amounts and deductibles staled in the 'Contract Data' for the following events. Further this clause binds you to forward insurance policies and certificate to your employer for his/her approval. The property is not owned by you nor you possess in any of the capacity mentioned above. The Surveyor has in his reply vide his letter dated 13th September 2008 to the then Divisional Manager has said that accepting liability is the discretion of the insurer. Where insurable interest is not there, the surveyor can make the assessment of loss but the same is 'Without Prejudice'

(3.) It would thus be seen that the claims were repudiated on the following grounds:-