The instant case was started on the basis of a petition of complaint filed by the complainant Biswanath Sarkar of Maheshmati, P.O. & Dist.- Malda, P.S. English Bazar, u/s. 12 of Consumer Protection Act, 1986 which was registered as before the Consumer Forum as Complaint Case No. 48/2014

The fact of the case is as revealed from the petition of complaint as well as from the evidence is that the complainant is engaged himself in contractor business as he is a Class I Contractor under P.W.D. of Govt. of West Bengal as Class II enlisted Contractor of Central PWD under Malda Central Division No.1.

From the petition of complaint it is revealed that the CPWD invited a tender for construction work of IBB Road and Fencing under Phase II  along Indo Bangladesh Border from BP No. 213/MP to 218/1-S Loop Area in Kalaibari  under the P.S. Habibpur, District – Malda. The length of fencing was 6.7 Km. etc. The complainant took part in the tender and he was the successful contractor for getting the work for construction of the said work as mentioned above. Thereafter, the complainant executes an agreement with Executive Engineer, CPW, Malda Central Division No.1. The said work order was for construction of Indo – Bangladesh Border Road i.e. filling of soil for development of embankment throughout the Indo- Bangladesh Border at Kalaibari area including fencing by iron wire near the river ‘ Purnabhaba’. The total estimated cost on the tender and the amount of the said work order was Rs.91,24,284/- and Rs. 95,66,812/- respectively. The value of work was Rs.1,25,75,461/-. The stipulated date of start of the said work was 24/10/2011 and stipulated date of completion was 03.01.2012. But the actual date of completion of work was 25.05.2012. The complainant to carry out the work peacefully and to meet any damage /loss due to natural calamity the said work was insured with the O.P. Insurance Company  for the period from 13.02.2012 to 12.11.2012 for which the complainant paid a premium of Rs. 19,797/-.

It has been further stated in that petition of complaint that at the end of monsoon while the flood water was receding to its backflow the complainant observed on 07.11.2012 that the embankment of IBB road got damage due to soil erosion by heavy water flow over the river ‘Punarbhaba’ and the damages was cost to the tune of Rs. 14,00,000/- (Rupees Fourteen Lacs Only). Thereafter, on 02.11.2012 the complainant informed the matter to Insurance Company by writing and on the basis of such written information the Insurance Company engaged a Surveyor and Loss Assessor to estimate the loss and damages. But ultimately the claim was repudiated by the Insurance Company. This is why the complainant has come before this Forum by filing a petition of complaint claiming Rs. 14,00,000/- (Rupees Fourteen Lacs Only)towards the loss and damage of the contractual work and sum of Rs. 30,000/-(Rupees Thirty Thousand Only) for deficiency in service and mental pain and agony and Rs.10,000(Ten Thousand Only) as litigation cost.

The petition has been contested by filing a written version by the O.P., United India Insurance Company Limited denying all the material allegations as leveled against the Insurance Company contending inter alia that the instant case is not maintainable in law and facts. The case is barred by law and limitation. The case is also bad for non-joinder of necessary parties and the case is also bad for pecuniary jurisdiction of this Forum. The definite defense case is that the loss is not covered into the policy as such the Insurance Company repudiated the claim.

In order to prove the case the complainant himself was examined as P.W.-1 and another witness viz. Sambhunath Sarkar examined as P.W.-2. During the proceedings the complainant exhibited the documents from Ext.-1 to Ext.-8 as per exhibit list.  Besides that no other witness was examined by the complainant. On the other hand the O.P. Insurance Company has examined one Naren Barman as O.P.W-1 and examined one Indranil Bhattacharya as O.P.W-2. Besides that no other witness was examined on behalf of O.P. During trial the O.P. has marked and proved the document from Ext.-A to Ext.-D as per exhibit list.  

                   POINTS FOR CONSIDERATION

Whether the complainant is entitled to get any relief as prayed for or not?

           DECISION WITH REASONS

 At the time of argument the Ld.Lawyer of the complainant submitted that due to heavy rain at the end of monsoon flood water was receding to its back flow for which there was an extensive damage due to the soil erosion. He further argued that for such work the complainant insured the work with the O.P. and premium was paid to that effect for a period.

Now the first point is to be considered whether the complainant has been able to prove that during the work undertaken by the complainant there was a heavy rain and that matter was noticed by complainant on 01/11/2012. Though in the petition it has been mentioned that the complete work was done on 25/05/2012. The complainant will have to first prove that at the relevant time there was a flood water due to the heavy rain. No report has been filed by the complainant from the Meteorological Department that at the relevant time there was a heavy rain. No report has been come from any local Panchayet or any Local Government Authority that there was a heavy flood at the relevant time. How this Forum will come to a conclusion that there was heavy flood at the relevant time. It is not understood why the complainant did not notice earlier prior to the date on 01.11.2012. Generally, the monsoon season comes to an end at the end of September. No information was lodged by the complainant to the local P.S. that there was extensive damage of work. No local people has been examined by the complainant to prove such fact that there was a damage of work due to flood. It may be the fact that there is no locality at the border area but no labour or any person having the vicinity of the area has been examined to prove such fact. Moreover, in this case the CPW is a best authority to say the extent of damage caused due to flood but no Engineer of CPW has been examined by the complainant.

On perusal of the evidence of PW-2 it is found that the Executive Engineer of CPW directed him to assess the measurement of the damages in writing on 01.11.2012 but that document has not been filed by the complainant. Moreover, that writing has not been called for from the Office of the Executive Engineer, CPW. The evidence of PW-2 is not believable as because he is an interested person and he happens to be the relative of PW-1 as the name of father of PW-2 appears to be same with PW-1 and address is also the same. On perusal of the written version in Para No. 11 the O.P. has completely denied the fact of damage due to flood so the complainant should have prove such fact either by any cogent evidence or by any documentary evidence. But nothing was done by the complainant. So on considering the facts and circumstances the complainant has failed to prove that the damage was caused due to flood.

At the time of argument the Ld.Lawyer of the Insurance Company draws the attention that the policy was for the period from 13.02.2012 to midnight of 12.11.2012. From the policy it is also found that the policy was for construction from 13.02.2012 to 12.05.2012 for which the premium was paid.  The Ld.Lawyer of the complainant submitted that the policy was for maintenance from 13.05.2012 to 12.11.2012. From the policy it is found that maintenance period is nil. According to the argument as advanced by the Ld.Lawyer of the O.P. is that as no premium was paid for the maintenance period as such the complainant is not entitled to get any relief as prayed for. The Ld.Lawyer of the complainant submitted that the premium was paid for the construction work including the maintenance work. According to the argument that for the Major Perils Claims as per Memo No.8 of Sec.1 “ 5% of the amount subject to the minimum of Rs.1,00,000/- each and for Maintenance Period Claims will 5% subject to the minimum of Rs. 20000/- each.”  According to the policy for Major Perils Claims it is found that for flood or inundation claim is maintainable. But the complainant

has failed to prove that damage was caused due to flood. It is a fact that for maintenance period claim is entertain able as per rate as mentioned in the insurance policy but on perusal of record it is found that the maintenance period is nil as no amount was paid by the complainant.

The Ld.Lawyer of the complainant argued that  in the report submitted by the surveyor  it has been mentioned that damage was caused by the flood. So the complainant did not require to prove the fact that the damage was caused by flood.

But on perusal of Surveyors Report it is found that as reported by the ‘insured’ it has been mentioned that damage was caused due to flood.

Moreover, it is well settled Principle of Law, the plaintiff /complainant will prove his own case. But on the above discussion it is found that the complainant has failed to prove that the damage was caused due to flood.

So considering the facts and circumstances the instant case is liable to be dismissed without any cost.

                                                                                              C.F. paid is correct.  

Hence, ordered that

the case be and the same is dismissed on contest without  any  cost. 

Let a copy of this order be given to the parties free of cost on proper application.