1.      Heard Ms. Kiran Suri, Advocate, for the complainant and Mr. Rakesh K. Gupta, Advocate, for the opposite party.

2.      Rithwik Projects Private Limited (the Insured) has filed above complaint, for directing Oriental Insurance Company Limited (the Insurer) to pay (i) Rs.17023294/- with interest @18% per annum from 18.06.2013 till the date of payment, towards insurance claim; (ii) Rs.20/- lakhs, as compensation for mental agony and harassment; (iii) Rs.5/- lacs, as litigation costs; and (iv) Any other relief, which is 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 it, are as follows:-

(a)     Rithwik Projects Private Limited (the Insured) was a company, registered under the Companies Act, 1956 and engaged in the business of integrated construction, infrastructure development and management. National Thermal Power Corporation Limited (NTPCL) invited bids for construction of Barrage and De-silting Chamber (balance work) package for Tapovan Vishnugadh Hydro Electric Power Project (4x130 MW) on the river Dhauliganga in Chamoli district, Uttarakhand on 17.11.2011. The Insured also submitted its bid. The NTPCL found the bid of the Insured as most suitable and accepted it. The NTPCL awarded work contract for construction of above Barrage and De-silting Chamber to the Insured vide agreement dated 27.08.2012. On the basis of this agreement, the Insured started construction of necessary infrastructure as well as works of Barrage and De-silting Chamber on the site.  The Insured was obligated to take “Contractors All Risk Insurance Policy” under clause-21.1(e) of the agreement.

(b)  Oriental Insurance Company Limited (the Insurer) was a Public Sector Insurance Company and used to provide insurance services to the general public. The Insured approached the Insurer for obtaining “Contractors All Risk Insurance Policy”, who provided a printed Proposal Form. The Insured filled up the Proposal Form for issue of  “Contractors All Risk Insurance Policy” for the period of 01.10.2012 to 31.10.2017, for coverage of Rs.4375669833/- on 01.10.2012.  The Insurer assessed the premium of Rs.23926434/-, which was payable in 19 quarterly instalments. First instalment of Rs.2688375/- was paid on 01.10.2012 and the balance premium was payable in 18 quarterly instalments of Rs.1344187/-. The Insurer issued “Contractors All Risk Insurance Policy” No.252108/44/2013/1, for the period of 10.10.2012 to 31.10.2017, for a sum of Rs.4375669833/-, for material damage and Rs.100000000/-, for third party liability on 05.10.2012. The Insured deposited second instalment of the premium on 26.12.2012, third instalment on 25.03.2013, fourth instalment on 25.06.2013, which were duly endorsed by the Insurer.

(c)     During 15.06.2013 to 17.06.2013, State of Uttarakhand experienced torrential rain and cloud burst. Unprecedented rain fall and cloud burst resulted in flash flood, in river Dhauliganga. High level flood water with extreme velocity breached the dyke and coffer dam, which were built for diversion of river water and to facilitate construction of the barrage and washed away the entire works under construction, materials and machines and caused severe loss to the Insured. Flood water severely damaged the site infrastructure including access roads, environment protection works. The Insured informed the Insurer about the flood incident and consequent loss vide email dated 18.06.2013. All the approach roads to the site were washed away/damaged due to which access to the site was blocked. The Insured, vide email dated 20.06.2013, informed the Insurer that the office of Insured had no contact with its staff present at the site as such, the estimate of actual loss would be intimated later on and requested to appoint a surveyor. The Insurer, vide email dated 25.06.2013, raised a query as to whether site was on ‘dry area’ or ‘wet area’. The Insured, vide email dated 04.07.2013, informed that the site was on ‘dry area’ and no works involved in water. The Insured, vide emails dated 04.07.2013 and 16.08.2013 informed the Insurer that loss was approximately of Rs.10/- crore.

(d)     The Insurer appointed ‘Protocol Insurance Surveyor and Loss Assessor, Delhi’ as the surveyor on 14.08.2013. The surveyor inspected the flood affected site on 11.09.2013, 09.10.2013 and 10.10.2013. He took photographs and prepared inventories. As desired by the surveyor, the Insured submitted claim form and the documents for assessment of loss through email dated 05.10.2013. The surveyor, vide email dated 11.10.2013, asked the Insured to do restoration work on the site and supply cost of restoration. The surveyor submitted Interim Survey Report dated 08.01.2014. The Insured completed restoration work and revised the claim for Rs.42063245/- on its basis. The surveyor verified restoration work on the site during 14.04.2014 to 18.04.2014. The surveyor submitted Final Survey Report dated 04.02.2015,  to the Insurer, without giving its copy to the Insured, assessing net loss to Rs.14870965/-.

(e)     The Insured went on depositing quarterly instalment of the premium and did not receive any communication either from the surveyor or from the Insurer, in respect of settlement of the claim, then wrote a letter/email dated 15.07.2015 and 13.10.2015 to the Insurer to expedite the process of settlement. The Insurer, vide letter dated 20.10.2015, informed that the surveyor had assessed the loss for Rs.17023294/-. At the time of issue of the policy, the premium was assessed on the basis of ‘dry risk’, while actually it was a ‘wet risk’ as such the premium has been revised for ‘wet risk’. After revision of the premium and adjusting excess premium, the claim was approved for Rs.2420822/- and the Insured was asked to sign the discharge voucher for that amount. Thereafter a meeting was held on 20.11.2015, in which the Insured signed the discharge voucher and handed over to the Divisional Office. The Insurer paid Rs.2420822/- through cheque No.574471 dated 30.11.2015.

(f)      The Insured, vide letter dated 26.10.2015, demanded break-up to the increased premium/instalments and for endorsement of the increased coverage for Rs.562.16 crores under the escalation clause. The Insured gave reminders dated 04.11.2015, 10.11.2015 and 23.11.2015. The Insurer, vide letter dated 05.01.2016, supplied the break-up of the settlement of the claim and enhanced premium. The Insured, vide letter dated 11.01.2016, raised a protest against settlement amount particularly for deductions made by the surveyor and the deduction in the head of salvage and excess clause. The Insured gave a reminder dated 19.01.2016 but it were not responded by the Insurer, then this complaint was filed on 26.04.2016.

4.      The Insurer filed its written reply on 25.07.2016 and contested the complaint. The facts relating to, obtaining insurance policy and loss occurred to the Insured due to unprecedented flood during 16.06.2013 and 17.06.2013, appointment of the surveyor on 14.08.2013, Final Survey Report dated 08.02.2015 and settlement of the claim on 30.11.2015, have not been disputed. The Insurer stated that the proposal form contained clause-8.(c)(vi) as “Water damage for ‘wet risk’ i.e. contract involving construction in rivers, canals, lakes or sea.”, which was replied as “not known”. After the incident, the Insurer, vide email dated 25.06.2013, raised a query as to whether site was on ‘dry area’ or ‘wet area’. The Insured, vide email dated 04.07.2013, informed that the site was on ‘dry area’ and no works involved in water. This was a material concealment of the fact. However, instead of repudiating the claim, the Insurer charged the extra premium for ‘wet risk’ and after deduction of additional premium, the claim was settled for the balance amount as assessed by the surveyor. The Insured executed discharge voucher and payment of Rs2420822/- was made through cheque dated 30.11.2015. Delay has occurred as the Insured took time in restoration of the work and submitting its claim. There was no deficiency in service on the part of the Insurer.   

5.      The Insured filed Rejoinder Reply, Affidavits of Evidence of T. Ravi Krishna, Authorised representative, P. J. Raghuram, General Manager and various documentary evidence. The Insurer filed Affidavit of Evidence of Bipin Kumar, Chief Manager. Both the parties have filed their written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. National Thermal Power Corporation Limited (NTPCL) invited bids for construction of Barrage and De-silting Chamber (balance work) package for Tapovan Vishnugadh Hydro Electric Power Project (4x130 MW) on the river Dhauliganga in Chamoli district, Uttarakhand. The bid of the Insured was accepted and the work was assigned to the Insured through agreement dated 27.08.2012. The Insured filled up the Proposal Form for issue of “Contractors All Risk Insurance Policy” for the period of 01.10.2012 to 31.10.2017, for coverage of Rs.4375669833/- on 01.10.2012. In the proposal form the Insured described the contract as “Construction of Barrage and De-silting chamber (Balance works) Package for Tapowan Vishnugadh, Hydro Electric Power Project (4 x 130 MW), Tapovan, district Chamoli (Uttarakhand). The proposal form contained clause-8.(c)(vi) as “Water damage for ‘wet risk” i.e. contract involving construction in rivers, canals, lakes or sea.”, which was replied as “not known”. After the incident, the Insurer, vide email dated 25.06.2013, raised a query as to whether site was on ‘dry area’ or ‘wet area’. The Insured, vide email dated 04.07.2013, informed that the site was on ‘dry area’ and no works involved in water. The work contract was for construction of barrage on the river Dhauliganga in Chamoli district, Uttarakhand. The Insured has cleverly concealed this fact not only in the proposal form for obtaining insurance policy but also in the subsequent query raised by the Insurer. For concealment of this material fact, the claim was liable to be repudiated but the Insurer settled the claim after deducting the extra premium, which was payable for “wet risk” and paid Rs2420822/- through cheque dated 30.11.2015.   

7.      The break-up of the settlement of the claim was supplied to the Insured vide letter dated 05.01.2016 (Annexure-P-17). The Insured, in the protest letter dated 11.01.2016 (Annexure-P-18), raised two objections i.e. deduction for salvage and excess deduction. So far as deduction of Rs.500000/- for salvage is concerned, the surveyor in paragraph-11 of the Final Survey Report has noticed that some stones and boulders remained on the site and did not wash away in the flood and cost of the stones and boulders was assessed to Rs.500000/-.  This finding has not been challenged by the Insured. The policy term was subject to ‘excess clause’ as such deduction under head of ‘excess clause’ was in accordance of the terms of the policy. Supreme Court in Amravati District Central Co-operative Bank Limited Vs. United India Fire and General Insurance Company Limited, (2010) 5 SCC 294, upheld deduction under excess clause. We do not find any illegality in it.

                                                  O R D E R

In view of the aforesaid discussion, the complaint is dismissed.