This appeal is directed against the Final Order dated 30.09.2019 delivered by Ld. D.C.D.R.F., Malda in CC No 48 of 2014. The fact of the case in nutshell is that the Complainant cum Appellant Mr. Biswanath Sarkar is a reputed and enlisted contractor of PWD Malda Central Division. He obtained an order by submitting the tender for construction work of IBB Road and fencing under phase (ii) along Indo-Bangladesh border from 212-NB to 218-1-7 loop area in Kalaibari under Pakurpur P.S. The length of fencing was 6.7 km. The work order also consisting of filing of soil for development an embankment through out the border road including fencing the river bandh area of river Punarbhaba. The total estimated cost of the said tender of Rs. 91,24,284/ and 95,66,812/-. The date was finalized for starting the work from 24.10.2011 and completion date was stipulated was 03.01.2012 but ultimately the actual date of completion work was held on 25.05.2012 and for carry out the said work smoothly and for any damage or loss due to natural calamity he obtained an insurance coverage under the contractors of all risk Insurance Policy for the said work from United India Insurance Company, English Bazar for the period from 13.03.2012 to 12.11.2012 for which the Complainant paid a premium of Rs. 19,797/-. That at the end of monsoon while the flood water was receding to its back flow the Complainant/Appellant observed on 01.11.2012 that the embankment of IBB Road got damages due to soil erosion by heavy water flow and over flow of Punarbhaba River and the tentative damages of earth work has become more or less 7,000 cube meters at the rate of Rs. 200 per cube meter and total cost in this ratio was assessed Rs. 14 Lakh. As soon the Appellant/Complainant who detect such damages he forthwith verbally intimated the matter to O.P Insurance Company and thereafter on 02.12.2012 he submitted the written intimation to the Insurance Authority. The Insurance Company engaged a Surveyor/Loss Assessor, ultimately the claim was repudiated and for that reason he registered the Consumer Complaint. The Opposite Party United India Insurance Company who happens to be the respondent of this appeal has contested the Consumer dispute by filing the W.V and contended inter-alia that the case of the Complainant was defective for misjoinder of necessary party and the definite case of the O.P Insurance Company is that the loss was not covered with the Insurance Policy and as such the Insurance Company was compelled to repudiate the claim. The Complainant cum Appellant has recorded the evidence and they were cross-examined from the end of the other side. The Opposite Party also examined himself as OPW1 and the Surveyor appointed by the Insurance Company was examined as OPW2. Thereafter, Ld. Advocate after consulting the evidences documents and hearing the arguments has delivered the impugned order by which the Ld. Forum found that the Complainant was failed to prove that the alleged damaged was held due to overflow of rain water. Being aggrieved with this order this appeal follows on the grounds that Ld. Forum has acted in excise with jurisdiction with material irregularity and thereby committed a gross miscarriage of justice without properly appreciating the documentary and oral evidences and factual proportions also has not established in the Final Order of the Ld. Forum and for that reason he wants to set aside the impugned order. The appeal was registered in due course and the Insurance Company as respondent had received the notice in appeal in due course and contested the appeal through Ld. Advocate Mr. A, Bhattacharjee. Ld. Advocate Mr. J.N. Chowdhury & Mr. D. Laskar has conducted the hearing on behalf of the appellant while the Insurance Company has conducted the hearing of the appeal through Ld. Advocate Mr. A. Bhattacharjee.

Decision with reasons

In this case the vital question arises whether the Complainant could establish beyond any doubt at the relevant point of time there was heavy rainfall and the river Punarbhaba was overflown and due to such flood and over rainfall the construction work was totally damaged. Ld. Forum observed that there was no Meteorological Departmental record to show that at the material point of time there was heavy rain. The Ld. Forum also observed that no report has also come from any local panchayat or any local government authority that there was heavy flood at the relevant point of time. Ld. Forum further observed that the Complainant was performing the alleged work as contractor under CPWD and extent of damage was not assessed by the CPWD Authority concerned and in this case the Complainant has failed to produce any engineer as witness of CPWD to prove that such damage was held due to heavy rain water or overflown rain water from the nearby river Punarbhaba. Ld. Advocates of the appellant at the time of argument in the appeal mentioned that total period of insurance had coverage under the caption contractors of high-risk insurance policy from 13.02.2012 to 12.11.2012 and the alleged damage was detected on 01.11.2012 and it was duly intimated to the Insurance Company within a short span of time. He further mentioned that the said insurance policy had two parts, one meant for construction period from 13.02.2012 to 12.05.2012 and the second part was the maintenance period from 13.05.2012 to 12.11.2012 and total premium was collected to the tune of Rs. 19,797/- for any kind of damage, erosion of filing soil for development of embankment and fencing during construction period and during maintenance period. The respondent Insurance Company in their Written Notes of Argument mentioned that the case of the Complainant was defective from the beginning as the CPWD was the necessary party of this case as the appellants were performing the work as contractor under the CPWD, Central Division, Malda and for that reason the CPWD Malda was the necessary party to this case. This argument cuts no eyes as because after obtaining the work order from the CPWD the Complainant/Appellant purchased the insurance policy to protect his interest in the construction work for any loss or damage due to natural calamity and for that reason he was no necessity to implead any persons of CPWD in this case. The Insurance Company in this case has repudiated the claim on the basis of the Surveyor’s Report. The surveyors in this report mentioned the loss is not covered into the policy or loss is beyond the scope of policy and even if there is loss the same falls under policy excess as surveyor has found successive loss on various date. Ld. Advocate by highlighting the clause of the policy mentioned that in the policy the construction period was fixed from 13.02.2012 to 12.05.2012 and the policy was purchased only for the construction period but the loss was assessed or detected during the maintenance period while for the period of maintenance no policy premium was paid and the insurance policy does not cover the said period. Now, if we take care the conditions of the policy after going through the contents of the policy it is found that the construction period of the policy covers from 13.02.2012 to 12.05.2012 and maintenance period from 13.05.2012 to 12.11.2012 while the payment of insurance for maintenance periods shows nil. So, the policy itself speaks the maintenance period of the alleged work was not covered with any insurance as there was no payment of insurance premium on the part of the Complainant/Appellant while the damage was held within the maintenance period. The clause of the insurance policy has a provision where in case the completion of work could not be executed within the stipulated time then the company may extend the period of insurance but the insured shall have to pay additional premium at rates to be prescribed by the company. So, the literal meaning of the clause of the insurance policy clearly speaks that neither the Complainant/Appellant paid for any insurance premium for the period of maintenance while the loss or damage was detected during the period of maintenance and secondly the period of the said policy was not further extended at the instance of the Complainant/Appellant. Ld. Advocate of the appellant pointed out the evidence of surveyor and his cross-examination. After, going through the investigation report submitted before the Insurance Authority by the surveyor appointed by them and from his evidence including cross-examination it is revealed that total volume of work was damaged in course of inundation continued for at least more than a month during rainy season which was determined as 5,646 m3 and it is also found from the report that after completion of the work the completion certificate was issued on the part of the CPWD on 25.05.2012. The observation of the investigator also clarifies that all the loss on account of inundation of water sustained after completion and handing over the construction works and at that time the company’s liability was already expired. So, considering all aspects in this case we found that the Ld. Forum has rightly observed that the Complainant/Appellant could not prove the damage as claimed by the Complainant was held within the insurance period and for that reason the Complainant could not sustain the claim and the Insurance Company has rightfully repudiated the claim of the Appellant/Complainant. The order under appeal no infirmity or irregularity are detected from the end of the Ld. Forum in the Final Order.

Hence, it’s ordered

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

Let the order be communicated to the Ld. D.C.D.R.F., Malda.