BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Saturday the 29th day of November, 2008
C.C.No. 73 /07
Between:
1. G. Rangaswamy, S/o. Sanjappa, Contractor,
Residing at D.No.16-59(A)-6,College Road, Nandikotkur, Kurnool District.
2. The Executive Engineer, (S.W), District Schedule Caste, Co-operative Society Limited,
Kurnool. … Complainants
Versus
1. Regional Manager, Bajaj Allianz General Insurance Company Limited, Regional Office, Fore East Plaza, 3-6-111/B, Street No.18, Main Road, Himayath Nagar, Hyderabad.
2. The Branch Manager/ Relationship Manager, Bajaj Allianz General Insurance Company Limited,
Regional Office, Alankar Plaza, Kurnool. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.Y.Jaya Raju, Advocate, for the complainant, and Sri.P.Ramanjaneyulu , Advocate, for the opposite party No.1 and opposite party No.2 is called absent set ex-parte and upon perusing the material papers on record, the Forum made the following.
ORDER
(As Per Sri. K.V.H.Prasad, President)
C.C.No.73/07
1. This case of the complainants is filed U/S 12 of C.P.Act seeking direction on the opposite parties to pay to the complainants Rs. 6 lakhs towards the compensation for the loss of life of two workman , employed in contract work , @ Rs. 3 lakhs each , Rs. 1.5 lakhs as compensation for the three injured workman @ Rs.50,000/- to each , Rs. 6,31,012/- for the loss due to stoppage of work from 12-1-2007 to 7-7-2007 @ Rs.43,220/- per day and at the same rate the future loss , and Rs.98,000/- towards loss on account of collapse of the slab of the room of said building , Rs. 3 lakhs towards mental agony and financial loss and 24% interest on claim and cost of the case alleging that the complainant No.1 got a civil government contract of Rs.45,150/- for construction of additional infrastructure facilitated to Z.P. High School for girls at Nandikotkur, under the 11th Nabard RIDE financial assistance scheme from complainant No.2 and in pursuance of agreement with complainant No.1 obtained on 29-12-2006 a contractors all risk insurance cover note policy in favour of complainant No.2 for said work covering all the risks , damage to physical property , personal injury or death of any workman employed in said contract work during subsistence of said contract and in pursuance of agreement with complainant No.1 has approached the opposite party No.2 for a contractors all risk coverage policy as contemplated under Cl.9 of the said agreement furnishing all the documentary record relating to the said contracted work and a paying premium of Rs. 12,796/- and the opposite party No.2 directly issuing a policy cover note on 29-12-2006 without obtaining any proposal form from the complainant No.1 making him believe that the issual of the policy as sought and the regular policy will be given in due course . While the matter stood thus and contract work was in progress since 4-1-2007 , on 11-1-2007 during the demolition of the old school building there was an accidental collapse and in that four work man sustained injuries and two workman by name S. Maqbul Basha and Kuruva Sunkanna died and the insurance policy was furnished on 13-1-2007 on the insistence of complainant No.1 and there on the claim was submitted along with necessary documents and the surveyor of the opposite parties inspected cite and submitted his report . But as the opposite parties failed to act swiftly in settlement of the claim , the work stopped and ensured loss of Rs. 500/- per day besides to the penalities for not completing the work by schedule given . The opposite parties neither made the settlement of the claim nor responded to the notice letter dated 15-1-2007 and 2-3-2007 of the complainant and gave evasive reply on 12-3-2007 to the letter dated 2-3-2007 alleging non coverage of the policy to the claim of the complainant and so intimation of its repudiation vide its earlier letter 31-1-2007 which was alleged non at all reached complainant No. 1 and 2. The opposite parties played fraud in issuing policy not covering all risks as sought by them and there by committed deficiency of service and there by liable to the complainants claim.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant while the opposite party No.2 remained ex-parte by his abstention , the opposite party No.1 caused its appearance thorough its counsel and contested the case filling written version denying its liability to the complainants claim.
3. The written version of the opposite party No.1 pleading ignorance of complainant obtaining alleged contractor work of construction and approaching the opposite party No.2 for insurance of contractors all risks policy and payment of insurance premium to opposite party No.2 and the understanding given by the opposite party No.2, alleges that vide letter dated 29-12-2006 intimating to complainant No.1 the policy of insurance will be as per standard contractors all risks policy - the risk coverable and the premium to be collected of which shall be decided by insurance regulatory development authority only and the complainant did not raise any objection to the policy issued and terms and conditions governing to it or any complaint as to non inclusion of the risks scoped under Cl.9 of the agreement and the deny of any of its fraud in issuing policy and any of its deficiencies in adjudicating the claim and in giving intimation of repudiation and so seeks the dismissal of complaint with cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A15 besides to the evidence of PW.1 - Dilip Kumar Singh and the sworn affidavit of the complainant No.1 , the opposite party side has taken reliance on documentary record in Ex.B1 to B4 besides to his sworn affidavit of the opposite party No1.
5. Hence the point for consideration is whether the complainant has made out any deficiencies of the opposite parties and there by their liability to the complainants claim.
6. The Ex.A1 is the letter dated 8-12-2006 addressed by complainant No.2 to the complainant No.1 as to the documents to be submitted by the complainant No.1 to the complainant No.2 for further action as to agreement of construction contract work . It required the complainant No.1 to submit among the list of furnishments an insurance policy as per the conditions of tender in favour of the complainant No.2 and forfeiture of deposits and action under registration of contractors as per rules in force in case of failure in any manner the compliance of requirements sought in Ex.A1 . The EX.A3 conditions of contract pertaining to insurance under Cl.9 and Sub Cl. 9 (1 ) (a ) to ( d) , to provide insurance cover in the joint names of the Department and the contractor from the stock date to the end of defects liability period i.e., 24 months after to completion , to the events which are view to the contractors risk as to (a ) loss or damage to the work , plants and material (b) loss or damage to the equipment (c) loss or damage of property in connection with the contract and (d) personal injury or death of persons employed for construction. Hence the endevaour of the complainant No.1 naturally shall be to obtain such Contractors All Risks (CAR) Insurance Policy which satisfies the requirements of Cl. 9 (1) (a) to (d) of Ex.A3 . The Ex.A4 – letter of insurance cover issued by the opposite parties says the policy concerned there in was contractors all risks specified there in at a premium of Rs. 12,796/- for the insurance period from 29-12-2006 to 28-9-2007 for coverage as per standard contractors all risks policy.
7. The Ex.A5 / B1 policy schedule says the nature of insurance issued there under was for contractors all risks . The general exclusions of said mentioned in said contractors all risks insurance policy excludes the liability of the said insurance company in respect of losses , damage occurred on the events mentioned in (a) to (e) such as war nuclear reaction , radiation , willful act of negligence of insured or his personal representative , cessation of work whether total or partial , terrorism or damage and there by the said policy is not excluding from the scope of its coverage of insurance the events alleged in Cl.9 (1) (a) to (d) of conditions of contract requiring the contractor to obtain the insurance policy covering those contingencies in all risks policy and so the opposite parties are not remaining justified of their observation in Ex.A7 as to its no liability for claim of the complainant arising out of the accidental death / injuries of its labour during execution of contract work on 11-1-2007 as envisaged in documentary record of Ex. A10 to A15 especially when the unrebutted evidence of PW. 1 Dilip Kumar Singh ( Exparte opposite party No.2) also says to have recommended the claim of the complainant under Ex.A5/B1 for settlement by the opposite party No.1 . Further there is any Sec II 3 (a) as alleged in Ex.A7 /B4 in general exclusions of contractors all risks insurance policy to find any justification in the said conduct of the opposite party enunciated in Ex.A7/B4 for rejecting the claim especially when the claim of the complainant being not under any workman compensation Act but under the contractors all risks insurance policy taken for coverage of the insurance contemplated for contingencies mentioned in Cl.9 (1) (a) to (d) of the conditions of the contract.
8. Therefore there being any justification in the repudiation of the complainants claim by the opposite party and the complainants being entitled to insurance claim for the injuries / the accidental death of the persons employed for construction and if accidental death of two workman i.e., S. Maqbul Basha and Kuruva Sunkanna being established by Ex.A12 to A15 there appears every bonafidees in the claim of compensation of Rs. 3 laksh for each of them under the Ex.A5/B1 contractors all risk insurance policy .
9. As any material is placed as to the injuries sustained in the said accident to the three employed workman viz., Babu , Ramana Reddy, and Venkateswarulu - there appears any merit in the claim of Rs.50,000/- on each of them as compensation under said insurance policy, from the opposite parties and so the said claim for Rs. 1. 5 lakhs is rejected .
10. For want of cogent substantiated material as to the alleged stoppage of work from 12-1-2007 to 7-6-2007 and the financial loss occurred on said account , there being any merit in the said claim for Rs. 6 ,31,012/- of the complainant is rejected.
11. As the survey report in Ex.B2 observes no property or material damaged in said accident and the complainant also not placed any such cogent material as to alleged value of the loss on account of collapse of slab , the said claim of Rs. 98,000/- is rejected .
12. As the conduct of the opposite parties in repudiating the claim of the complainant for accidental demise of two persons employed in execution of said contract work as not only ensured mental agony to the complainants but also driven them to the forum for redressal , the opposite parties hold a liability for payment to the complainant an amount of Rs. 20,000/- as compensation for mental agony and Rs.10,000/- as cost of the case.
13. Consequently, the case of the complainants is allowed accordingly at the joint and several liability of the opposite parties 1 and 2 , with a direction to them for payment of Rs. 6 lakhs for accidental demise of two workers in the accident occurred on 11-1-2007 during execution of contract work , Rs.20,000/- as compensation for mental agony of complainant at the deficient conduct of the opposite parties in wrongly repudiating the claim of the complainants and Rs.10,000/- as cost of the case within a month of receipt of this order. In default the opposite parties jointly and severally shall pay the supra stated award amount with 12% interest from the date of default till realization .
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 29th day of November, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :Nil
PW.1 Deposition of PW.1 dated
17-07-2008 of Deelip Kumar Singh.
List of exhibits marked for the complainant:-
Ex.A1. Proceedings of SC APSCCFC dated 08-12-2006.
Ex.A2. Copy of agreement dated 02-01-2007.
Ex.A3. Copy of condition of contract.
Ex.A4. Cover note issued by OP.No.2 dated 29-12-2006.
Ex.A5. Policy schedule dated 13-01-2007.
Ex.A6. Letter dated 02-03-2007 of complainant No.2 to OP.No.1
Ex.A7. Letter dated 12-03-2007 of OP.No.1 to complainant No.2
Ex.A8. Dated 03-04-2007 of OP.No.1 to complainant No.1
Ex.A9. Office copy of legal notice dated 21-04-2007 along with
Postal receipts and acknowledgement
Ex.A10 CCFIR in Cr.No.5.07/Nandikotkur, PS along with complainant.
Ex.A11. Certified copy of discharge sheet in C.C.No.27/07
(JFMC,Nandikotkur)
Ex.A12. Certified copy of inquest relating to Kuruva Sunkanna.’
Ex.A13. Certified copy of relating to Shaik Maqbul
Ex.A14. Certified copy of post mortem report relating to K. Sunakanna
Ex.A15. Certified copy of post mortem report relating to Shaik Maqbul.
List of exhibits marked for the opposite parties:
Ex.B1. Copy of policy with terms and conditions.
Ex.B2. Survey report.
Ex.B3. Letter dated 03-04-2007.
Ex.B4. Letter dated 31-01-2007.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
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