1.      Heard Mr. Amit Agrawal, Advocate and Ms. Ashmi Mohan, Advocate, for the complainant and Mr. K.K. Bhat, Advocate, for the opposite party.

2.      Hindustan Petroleum Corporation Limited (the complainant) (hereinafter referred to as the Insured) filed aforementioned complaint, for directing The Oriental Assurance Company Limited (opposite party) (hereinafter referred to as the Insurer) to pay (i) Rs.5.20/- crore, the compensation already paid to the dependants of deceased workmen of the contractors, (ii) Rs.20/- lakhs as the compensation to be paid to the dependants of the deceased workmen of the contractor, namely Krishna Chandra Majhi, (iii) Rs.10156094/- as the expenses incurred in Air Ambulance, Hospitalization and Medical to the deceased and the injured workmen of the contractor, (iv) Rs.62156094/-, i.e. interest @ 18% per annum on the above total amount (v) cost of litigation and (vi) any other relief, which may deemed fit and proper in the facts and 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)     Hindustan Petroleum Corporation Limited (the Insured) had a refinery in Visakhapatnam, known as Diesel Hydro Treater Project at Visakh Refinery. On the date of incident, Cell Nos. 1 to 4 were under reconstruction and Cell No. 5, was under erection. Reconstruction and erection works were done through the contractors by their workmen, under the supervision of the employees of the Insured.

(b)     The Insurer was a Public Insurance Company and engaged in business of providing insurance services. The Insured obtained Marine-cum-Erection Insurance Policy No. 111700/44/2011/16, for a sum of Rs.27657100000/-, from the Insurer. The Policy covers all risks or loss of damage to the subject matters attached with the policy except as excluded by the provisions of clauses-4, 5, 6 and 7, and included “General Average Clause” and “Both to Blame Collision Clause”. The Policy was initially valid for the period of 25.05.2010 to 24.01.2013. It was renewed for the periods of 25.01.2013 to 24.10.2013 and 25.10.2013 to 24.06.2015.

(c)     On 23.08.2013, fire broke out in Cell No.-5, initially. Soon it took devastating turn and spread in Cell Nos.-1 to 4 also. Due to which tremendous loss was caused to lives and properties. Many of the workmen of the contractors were badly burnt in the incident. The Insurer immediately arranged for their treatment. The burnt workmen were shifted to Hospital in Bombay, airlifting them. In spite of best efforts, 17 workmen of Cell Nos.-1 to 4 and 10 workmen of Cell No.-5 lost their life. 

(d) The Insured paid total compensation of Rs.5.20/- crores to the dependants of 26 deceased workmen. Krishna Chandra Majhi, one workman, survived for some time in hospital and died thereafter, as such, the Insured had to pay compensation of Rs.20/- lacs to his dependants. The Insured incurred total Rs.10156094/- as the expenses in Air Ambulance, Hospitalization and Medical of the injured/deceased workmen of the contractors.

(e) The Insured informed the Insurer about the incident. On which, the Insurer appointed Mr. Kalahasti Satyanarayanan as an Investigator, on 03.10.2013. The Insured set up the insurance claim of Rs.100039999/- vide letter dated 15.10.2013 and submitted the requisite papers. Thereafter various discussions and meetings were held between the officers of the Insured and the Insurer. However, the Insurer vide email dated 10.02.2014, repudiated the claim on the ground that fatal or non-fatal injury or illness of the employees or contractor’s workmen would not fall within the scope of the policy Section-II (Third Party Liability with Cross Liability).   

(f)      The Insured, vide letter dated 09.05.2014, requested for reconsideration of the matter. The Insured again, vide letter dated 03.02.2015, reiterated its inability to accept the liability in respect of loss of the contractor’s workmen. Then this complaint was filed on 09.02.2016, on the allegations that the claim was covered under the insurance policy and has been wrongly repudiated.           

4.      The Insurer filed its written reply on 08.04.2016, in which, the material fats have not been denied. The preliminary objections that the complaint was not maintainable as the Insured was engaged in commercial activities and the insurance policy was obtained for the business and profit making purpose. General Condition No.8 of the policy provides that if a claim is made and rejected and no action or suit is commenced within 3 months, the benefits flowing from the policy shall stand forfeited and consequently any subsequent action would not be maintainable. In this case, the claim was repudiated on 10.02.2014 and 3 months period for challenging it had expired long before. Complicated questions of facts are involved in this complaint, which could not be adjudicated in exercise of summary jurisdiction of     this Commission. Insurance policy issued to the Insured was a Marine-cum-Erection Insurance Policy, covering specified risk and perils, subject to terms and conditions as contained therein. “All Risk Insurance” means and denotes that coverage of all risks unless specifically excluded. The claim under the policy has to be considered within overall framework of the policy. The fatal or non-fatal injury or illness of the employees of the Insured and the contractor’s workmen were in exception clause, in clear terms. There is no ambiguity in this respect as such the claim was repudiated as admittedly the claim was in respect of the compensation paid/incurred to the contractor’s workmen. There is no illegality in the impugned order. The complaint is liable to be dismissed on merit also. 

5.      The Insured filed Rejoinder Reply, in which, the facts stated in the complaint were reiterated. The Insured filed documentary evidence and Affidavit of Evidence of Amit Mitra, Chief Manager Treasury. The Insurer filed Affidavit of Evidence of P.P. Gupta, Chief Manager. Both the parties filed their written synopsis.

6.      In the schedule of the Policy “Third Party Liability with Cross Liability” was insured for a sum of Rs.10/- crores. The repudiation letter dated 10.02.2014 relied upon Section II- Third Party Liability, Clause-(b) and Exclusion clause-3 (a) which are quoted below:-

Section II- Third Party Liability

The Company will indemnify the Insured against-

b)  Legal liability (liability under contract excepted) for fatal or non-fatal injury to any person other than the Insured’s own employees or workman or employees of the owner of the works or premises or other firms connected with any other erection work thereon, or members of the Insured’s family or of any of the aforesaid; directly consequent upon or solely due to the erection of any property described in the Schedule.

Provided that the total liability of the Company during the period of insurance under this clause shall not exceed the limits of Indemnity set opposite thereto in the Schedule.

Exclusions to Section II

The Company will not indemnify the Insured in respect of-

Liability consequent upon

a) bodily injury to or illness of employees or workmen of the Contractor(s) or the Principal(s) or any other firm connected with the project which or part of which is insured under Section I or members of their families.

7.      The counsel for the complainant submitted that the workmen of the contractors were covered under “Third Party Liability with Cross Liability” clause and the claim has been wrongly repudiated. Under Exclusion clause-3 (a) liability consequent upon bodily injury to or illness of employees or workmen of the contractor is excluded. In the present case, the liability arose due to fatal injuries as such exclusion clause is not applicable. He relied upon the judgment of this Commission in Harsolia Motors V. National Insurance Co. Ltd. (2004) SCC Online NCDRC 11 in which it has held that the insurance policy to cover envisaged risk and not for commercial purpose and therefore, the complainant falls under the definition of ‘Consumer. Judgments of Supreme Court in United India Insurance Co. Ltd. V. Pushpalaya Printers, (2004) 3 SCC 694 in which it has held that it is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations, one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. National Insurance Co. Ltd. V. Ishar Das Madan Lal, (2007) 4 SCC 105, in which it has been held that however, there may be an express clause excluding the applicability of insurance cover.  Wherever such exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview thereof. Oriental Insurance Co. Ltd. V. Ozma Shipping Co. (2009) 9 SCC 159, in which it has been held that the object of taking insurance policy is frustrated if the assured is not reimbursed for the loss suffered in case of risk covered by the Insurance. Export Credit Guarantee Corporation of India Ltd. V. Garg Sons International (2014) 1 SCC 686, in which it has been held that while construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for court to add, delete or substitute any words.  It is also well settled that since upon insurance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured an account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer. Union of India Vs. Indusind Bank Ltd. (2016) 9 SCC 720, in which the amendment to Section 28 of the Indian Contract Act, 1872 has been considered and held that it seeks to bring about a substantive change in the law by stating, for the first time, that even where an agreement extinguishes the rights or discharges the liability of any party to an agreement, so as to restrict such party from enforcing his rights on the expiry of a specified period, such agreement would become void to that extent.      

8.      I have considered the arguments of the counsel for the parties and examined the record. Section II relates to Third Party Liability. Clause-(b) provides for legal liability (liability under the contract excepted) for fatal or non-fatal injury to any person other than the Insured’s own employees or workmen or employees of the owner of the work or premises or other firms connected with any erection work thereon or member of the Insured’s family or of any of the aforesaid; directly consequent upon or solely due to the erection of any property described in the schedule. A bare reading of this clause makes it clear that the legal liability for fatal or non-fatal injury to the workmen of the contractor is not covered rather specifically excluded in Clause (b). There is no ambiguity in this clause. The repudiation letter does not suffer from any illegality. 

                                                      O R D E R

In the result, the complaint has no merit and is dismissed.