Tamil Nadu

South Chennai

CC/28/2022

Sekhar Deepak Constructions Ltd., Rep. by its Managing Director - Complainant(s)

Versus

The Oriental Insurance Company Ltd., Rep. by its Managing Director - Opp.Party(s)

V. Shankar

22 May 2023

ORDER

Date of Complaint Filed: 03.12.2021

Date of Reservation      : 05.05.2023

Date of Order               : 22.05.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                          : PRESIDENT

                     THIRU. T.R. SIVAKUMHAR, B.A., B.L.,         :  MEMBER  I 

                     THIRU. S. NANDAGOPALAN., B.Sc., MBA.,  : MEMBER II

               

                        CONSUMER COMPLAINT No.28/2022

MONDAY,THE 22^NDDAY OF MAY 2023

 

Sekhar Deepak Constructions Ltd,
Rep by its Managing Director,

#242 Peters Road, 2^nd Floor
Gopalapuram,

Chennai -600 086.                                                         .. Complainant.

• Vs –

 

The Oriental Insurance Company Ltd.,
Rep by its Managing Director,
Kamala Arcade,

669 Anna Salai
Chennai - 600 006.                                                      .. Opposite Party.

* * * * * * *

Counsel for the Complainant  :M/s.V.Shankar, Advocate.

Counsel for Opposite Party   :  M/s. Nageswaran&Narichania, Advs.,

 

On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, this Commission delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

 

(i)      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to pay a sum of Rs.3,70,21,500/- towards the loss of materials/equipments with interest @ 18% from 10.12.2015 till date  of payment covered under the “Contractors All Risk Policy” bearing No.411901/44/2016/12; and to pay a sum of Rs.1,50,000/- towards costs of the proceedings.  

I.    The averments of Complaint in brief are as follows:-

 

1.     The Complainant is a private limited company and is engaged in construction activities. The Complainant was successful bidder floated by Chennai Metropolitan Water supply and Sewerage Board, for the "construction of sewage treatment plants for Designing, Providing  Constructing, Erection and Commissioning, start up and Performance Trial Run for 6months followed by 5 years of O&M of 31 MLD Capacity Sewerage Treatment Plant (STP) at Thiruvottiyur with selected Modern Technology on Design, Build, operate and Transfer basis for a contract value of Rs.19,49,31,100/- vide letter of acceptance Ref:CMWSSBICNTC2SEW/TNUDP/033/2009-10 dated 22/10/2010
under Thiruvottiyur sewerage scheme, STP Package- VI.

2.     The Complainant submitted that the value of the contract was fixed at Rs.19,49,31,100/- including Rs.17,77,23,000/- towards construction cost & cost of equipments, Rs.2,82,100/- towards performance trial run for 6 months and Rs.1,69,26,000/- towards  O &M cost for 5 years.

 

3.     The Complainant taking into consideration the volume of the project decided to protect their interest diligently for an insurance coverage and during the process of identifying as who would be not only service friendly so also trustworthy in the long run and the Complainant happened to come across advertisement circulated by the Opposite Party through the mass media.

4.     The Complainant being Carried away by the pep talk and tall  promises made by the Opposite Party decided to go with the Opposite Party and it would not be out of place to mention that the Complainant fairly disclosed all material facts on the basis of which the Opposite Party chose to issue  “Contractors All Risk Policy", bearing No. 411901/44/ 2016 / 12, from 28.10.2015 till midnight of 27.04.2016, schedule covered the contract works including the contract price, materials and items supplied by the principal valued at Rs. 19 crore which includes damage caused by natural calamities.

5.     The Complainant submitted due to the unprecedented rains in Chennai during November 2015 the entire site was totally flooded and the water continued to stagnate at the site since no outlet was available and the  accumulated water could not be drained out as it was raining consequently the materials stored in the site completely got damaged.

6.     The Complainant vide letter dated 10.12.2015 notified the above calamity to the Opposite Party by requesting them to visit the site to gather a first-hand information about the state of affairs and assess the quantum of damage thus enabling the Complainant to submit a claim and this was trailed by another letter dated 16.12.2015 wherein the Complainant notified the list of materials damaged during the floods and requested the Opposite Party to take the matter forward.

7.     The Complainant submitted that the Opposite Party appointed a Surveyor to assess the loss suffered due to nature’s wrath and the surveyor inspected the site on 15.12.2015 and the Complainant shared the requisite details asked for by the surveyor and the Complainant was sincerely hoping that their claim will be processed by the Opposite Party without any qualms.

8.     The Complainant submitted that though the surveyor appointed by the Opposite Party inspected the site on 15.12.2015, however the Opposite Party for reasons best known were not updating the Complainant about the thick of happenings or in other terms concerned thereby constraining the Complainant to issue a legal notice to the Opposite Party on 14.3.2018, directing them to conform with the claims made therein.

9.     The Complainant submitted that the Opposite Party addressed a communication on 19.3.2018, which came to be served upon the Complainant only on 12.4.2018, seeking certain clarification so that the claim could be sorted out. The Complainant issued a reply on 18.4.2018 explaining in detail to every concern raised by the Opposite Party, yet the Opposite Party has not settled the claim thus pressuring the Complainant to approach this Commission for apposite party remedy. Thus the failure on the part of the Opposite Party to disburse the claim for the actual loss suffered by the Complainant tantamount to deficiency of service as defined under the Consumer Protection Act therefore the Complainant is rightly entitled to question the Opposite Party’s laid-back approach.

II. Written  version of  Opposite Party is as follows:

 

10.    The Opposite Party submitted that the Complainant is called upon to prove the capacity of the person who has signed and verified the complaint as to whether the said person in the capacity of the director can sign and file the complaint on behalf of the Complainant. The Complainant has not filed any document to prove that the director of the Complainant Competent to represent the Complainant in the present complaint before this Commission.

11.    The Opposite Party submitted that the Complainant has filed a complaint for a sum of Rs.3,70,21,500/- towards the alleged loss of materials/ equipment with interest at 18% from 10.12.2015 till date of payment under the Contractors All Risk Policy issued by the Opposite Party. Under section 34 of the Consumer Protection Act, 2019, under subsection (1) subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees. Therefore, as per the enactment, this Hon'ble Commission does not have jurisdiction to entertain this complaint. Hence, the complaint has to be rejected for want of proper presentation and is liable to be dismissed.

12.    The Opposite Party submitted that the complaint filed by the Complainant is barred by limitation. As per the enactment, the complaint has to be filed within two year from the date of repudiation. The claim was repudiated on 19.03.2018. A complaint as to be filed on or before 20.03.2020. The present complaint was filed only on 03.12.2020. The Contention of the Complainant that due to Covid-19, the complaint could not be filed is baseless. Nothing prevented the Complainant from filing the complaint after receipt of the letter of repudiation. Further, there was no lockdown or any other contingency when the limitation period expired on 20.03.2020 as the lockdown was announced subsequently. The contention of the Opposite Party that the communication was served only on 12.04.2018 was their own making as they did not inform the change in address and further the delay in filing the complaint was not properly explained or condoned. The complaint is hopelessly barred by limitation and hence, liable to be dismissed.

13.    The Complainant is not a consumer as defined under Section 2(5) (1) of the Consumer Protection Act, 2019 and under Section 2(7) (ii) of the enactment. It is admitted by the Complainant that in paragraph one of the complaint that they are a company registered under the companies act. Admittedly, the Complainant has stated in the complaint paragraph six that they are involved in construction activities. Therefore, the business of the Complainant is a commercial act under trade and commerce and the conduct of their business activity is to generate profit.  The service was not availed exclusively for the purpose of earning its livelihood by means of self employment. A corporate entity carrying on business with the capital contributed by its shareholders being one of the factors for business of construction cannot be construed as on in self employment for the purpose of earning its livelihood. The Complainant is into construction activity which is an important commercial activity. It is therefore prayed that the Complainant be directed to avail remedy, if any, under any other law governing contracts, if so advised not before this Commission.

14.    Initially, the Complainant had taken a Contractors all risk policy with Divisional Office-l, Madurai for a period from 13.02.2014 to 12.11.2014 which was not continued for the reasons best known to the Complainant. After a gap of almost one year, the very same Policy was taken with the Opposite Party for a period from 28.10.2015 to 27.04.2016. The Complainant has not stated the reasons for taking a Policy initially with the Divisional office. II, and the nature of coverage during the interregnum period or whether there was any insurance, coverage covering various risks, If there was no coverage, then the proposal form is bereft of information regarding non coverage which enhances the risk. Thus the conduct of the Complainant is not proper/ malafide in nature. As the Complainant has not come forward with clean hands and failed to disclose proper particulars, any claim under the Policy is not payable as the same is a clear breach of Policy terms and conditions. As there was concealment/suppression of facts, there is breach of utmost good faith based on which a contract of insurance entered into between the insured and the insurer. Hence, on this ground the complaint is liable to be dismissed.

15.    The Opposite Party submitted that upon intimation of claim due to floods during the relevant period, a licensed surveyor was appointed to conduct survey. During the course of survey, the surveyor sought particulars relating to the claim. Upon inspection of the Complainant's premises, the surveyor sought for various documents to evaluate the loss and inspection of all the documents for assessment of loss. The Complainant did not furnish the relevant documents relating to the insured material in the premises for re-instatement of the damaged equipment and for arriving at the exact value of the damaged/ insured material. The act of the Complainant is a clear failure in assisting the surveyor for proper assessment of the claim. The licensed surveyor issued a survey report dated 24.03.2017.

16.    The Complainant through their Advocate sent a notice dated 11.07.2017. The surveyor perused the same and gave a detailed reply dated 09.09.2017 reiterating the finding as per the survey report issued. The surveyor categorically observed that the insured/Complainant had not revealed all material facts related to the project and the earlier insurance policy, to the insurers at the time of taking the policy which amounts to concealment of material facts by the insured. The coverage under the policy is void as the material facts about the project had not been revealed by the insured to the insurers at the time of taking the insurance under the policy.

17.    The Opposite Party submitted that the Complainant had claimed a sum of Rs.3,70,21,500/-. The amounts claimed were for replacement of the affected equipment and had no basis for the amount claimed. The surveyor jointly inspected the equipments/items being claimed by the Complainant after the water from the site had receded. It was agreed that there was no damage to most of the equipments and most of the equipments were in repairable condition. The surveyor had informed the Complainant/ insured that the equipments classified as contractor's plant and machinery are not covered under the policy and therefore, the loss on account of damage to the same is not admissible under the policy. The surveyor informed that the dewatering, site levelling, labour vessels clothes and idle labour charges are not covered under the Policy and the claim under these heads are not admissible.

18.    The Opposite Party submitted that the surveyor requested the Complainant/insured to furnish the repair estimates for the equipments that are repairable and the quotations for the replacement cost of the equipments that were not repairable and also the stock and purchase records of sand, quarry dust and cement.  The Complainant/insured provided only some of the documents, Based on the available documents, the surveyor made an assessment. But the copies of the bills for the reinstatement of the damage and documents evidencing the payments against such bills were not provided by the Complainant. Hence, it is clear that the claim of the Complainant/insured for Rs.3,70,21,500/- was without any basis and also includes the items which were either not damaged or are not covered under the Policy. Therefore, the complaint has to be dismissed on the ground of concealment/ suppression of facts.

19.    It is submitted by the Opposite Party that the Complainant claims a sum of Rs.3,70,21,500/-. No document is filed to establish the loss suffered by them to the extent of the amount claimed by the Complainant. Hence prayed to dismiss the complaint.

III. The Complainant has filed his proof affidavit, in support of his claim in the complaint and has filed 10 documents which are marked as Ex.A1 to A10. The Opposite Party had submitted his proof affidavit and Ex.B1 to B5 documents were marked on their side. Both side written argument filed.

Points for Consideration:-

 

1.  Whether the complaint is filed by duly authorized person of the company?

 

2. Whether the complaint is barred by limitation?

 

3.  Whether the Complainant is a consumer as defined in Consumer Protection Act 2019 and the transaction is a commercial transaction since the Complainant is involved in construction activities, which is to generate profit and that the Complainant has availed the service of the Opposite Party is to minimize the loss and maximize the profit?

 

4. Whether there is any deficiency in service on the part of the Opposite Party?

 

5. Whether the Complainant is entitled for the reliefs sought for?

 

6. To what other relief, the Complainant is entitled to?

 

Point No:1

20.    The Opposite Party contended that the complaint was filed by Mr.A.Sekhar, stating himself as the Managing Director of the Complainant’s company, but no document has been filed to show that Mr.A.Sekhar was a competent person to file the complaint and to depose on behalf of the company.  The counsel for Complainant contended that the Opposite Party itself has not filed any document to show that the written version and the proof affidavit was filed by the authorized person of the Opposite Party’s company and hence the Complainant could not take defence that the complaint was filed  by person who was not authorised by the company.

21.    The Learned counsel for the Opposite Party has placed reliance on the judgement of the Hon’ble Supreme Court, New Delhi reported in (2011) 11 SCC 524, State Bank of Travancore –VS- Kingston Computers India Private Limited, wherein it was held that the person who has instituted the suit on behalf of the company has not produced any evidence to prove that  he was appointed as a Director of the Company and resolution has been passed by the Board of Directors of the company to file a suit and that the letter of authority issued  by the Chief Executive Officer of the company, is not a valid document because no resolution was passed by the Board of Directors, authorising the Complainant to file a suit on behalf of the company.
A further reliance was placed the order passed by the Hon’ble State Commission, Chennai in F.A.No.22/2016, M/s. National Insurance Company limited M/s.KOG-KTV Food Products India Pvt Ltd., whereby the Hon’ble State Commission referring the above judgement of Hon’ble Apex Court held that a suit filed by person not duly authorised by the company is not maintainable and therefore for want of valid authorisation for the company, the complaint was not maintainable.

22. In view of the above and on perusal of records it is seen that the Complainant has not produced any document to show that the complaint was filed by an authorised person of the company and Mr. A.Sekhar, who has sworn in as the Managing Director of the Complainant was not duly authorised by the Board of Directors to represent the case on behalf of the company.  Therefore as per the law laid down by the Apex Court and as per the order of the Hon’ble State Commission, this complaint is not maintainable for want of valid authorisation by the Complainant company.

Point No : 2

23.    As regards the point of limitation raised by the Opposite Party the claim was repudiated on 19.03.2018 and that the complaint has to be filed on or before 20.03.2020 and the complaint was filed only on 03.12.2020, the Complainant has contended that the complaint was well within time as the Covid period has been waived by the Hon’ble Supreme Court of India by relying upon the Judgment of the Hon’ble Apex court passed on 10.01.2022 in Suo Moto Writ Petition No.3/2020.  As per the order of the Hon’ble Apex court the period from 15.03.2020 to 28.03.2022 was excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. Further reliance was placed by the Complainant on the order passed by the Hon’ble National Commission in Oriental Insurance Co. Ltd., vs Abdul Razak for non repudiation of claim gives rise to continuous cause of action. As the complaint was filed on 03.12.2020, which falls under the excluded period of limitation, as held by the Hon’ble Apex Court this complaint falls within the period of limitation.  Hence the complaint is not barred by limitation. 

Point No : 3

24.    The next ground of the defence raised by the Opposite Party is that the Complainant is not a consumer and the complaint filed by the Complainant does not come under the purview of the Consumer Protection Act 2019.  The Opposite Party submitted that the Complainant is involved in construction activities, which is a commercial act under trade and Commerce and the conduct of their business activities is to generate profit.  Further submitted that the Complainant does not fall under the definition of Consumer as they had availed services provided by the Opposite Party for commercial purpose., particularly when the Complainant is involved in construction activities working for the profit and for the benefit of shareholder, the service was not availed exclusively for the purpose of earning its livelihood by means of self-employment and therefore the Complainant could not be considered as a consumer under Consumer Protection Act 2019.

25.    The Learned Counsel for the Complainant  has drawn our attention to the  judgement of the Hon’ble Supreme Court of India, New Delhi in C.A. Nos.5352, 5353 of 2007, National Insurance Company –Vs- Harsolia Motors,  passed on 13.04.2023, in which it has been observed that in the transaction in reference to which the insurance claim has been raised there is no direct nexus to the profit generating activity and the insurance was obtained only to cover the loss if any, being suffered on account of theft or by natural calamities.

26.     In view of the above order passed by the Hon’ble Apex Court, though the Complainant is involved in the business of construction activities, the insurance policy taken by the Complainant from the Opposite Party to cover the risk involved in the project and not to generate profit, we are of the considered view that the contention of the Opposite Party that the Complainant is not a consumer as the policy was taken for commercial purpose is not acceptable. Therefore the Complainant is a consumer and the services availed by the Complainant from the Opposite Party is not for a commercial purpose.

Point No.4

27.    The contention of the Complainant is that the Complainant being a successful bidder floated by the Chennai Metropolitan Water supply and sewerage board for the construction of the Sewerage Treatment plants for Designing, Providing, Construction, Erection and Commissioning, start up and performance Trial Run for 6 months followed by 5 years of O & M of 31 MLD Capacity Sewerage Treatment Plant (STP) at Thiruvottiyur with selected Modern Technology on Design, Build, operate and Transfer basis for a contract value of Rs.19,49,31,100/- vide letter of acceptance Ref:CMWSSBICNTC2SEW/TNUDP/033/2009-10 dated 22.10.2010 under Thiruvottiyur sewerage scheme, STP Package- VI.  Further submitted that the Complainant has availed “Contractors All Risk Policy", bearing No. 411901/44/ 2016 / 12, from 28.10.2015 till midnight of 27.04.2016, schedule covered the contract works including the contract price, materials and items supplied by the principal valued at Rs. 19 crore which includes damage caused by natural calamities and also as seen from Ex.A-1. Due to floods in Chennai during November 2015, the entire site of the Opposite Party was damaged, for which the Complainant by letter dated 10.12.2015 Ex.A-3 had informed the Opposite Party to assess the quantum of damage.  The Opposite Party had appointed Surveyor to assess the loss on the requisite details shared by the Complainant. However, the Opposite Party did not  update the Complainant about the happenings and finally sent a letter dated 19.03.2018 Ex.A-6 instructing the Complainant to clarify the queries within period of 7 days, which the Complainant clarified by letter dated 18.04.2018, Ex.A-6.

28.    The Opposite Party contended that the Complainant has suppressed material facts of the earlier policy taken with the Division Office-II, Madurai for the period from 13.02.2014 to 12.11.2014, which conduct of the Complainant is malafide nature.  If there was no coverage, then the proposal form is bereft of information regarding non coverage which enhances the risk. The contention of the Opposite Party that the earlier policy taken was concealed by the Complainant and that the breach of utmost good faith, which is fatal to the case cannot be accepted as the Opposite Party has not produced the proposal form seeking information from the Complainant regarding their earlier policy and the suppression of earlier policy by the Complainant.

29.    The Opposite Party contended that the Complainant did not produce the document as required by the Surveyor. The letter dated 16.12.2015 by the Complainant to the Opposite Party, Ex.A-4 and the legal notice dated 14.03.2018 to the Opposite Party, Ex.A-5 shows the list of items and the corresponding amount without any supporting documents. The Opposite Party by its letter dated 19.03.2018, Ex.A-6 made it clear that non submission of documents would result in failure of reinstatement of damages and gave another opportunity to substantiate the claim within a week from the date of receipt of letter, if no response from the Complainant the claim would stand repudiated for the reason indicated therein. The Complainant alleging that the letter of the Opposite Party dated 19.03.2018, was delivered to them only on 12.04.2018 had issued a reply dated 18.04.2018 stating that certain documents are furnished therewith and that they were trying to retrieve supporting documents subsequently two letters dated 06.02.2019 and 09.12.2019 Exs.A-9, A-10 were addressed by the Complainant to the Opposite Party for settlement of claim.

30.    The contention of the Complainant is that as per the Policy Terms and Conditions, Ex.B-2, the Opposite Party is liable to pay the loss accrued due to flood/Inundation to the extent of sum assured. As per Ex.B-3, the Survey Report dated 24.03.2017 after inspection of the site the surveyor has observed that  “We during our visit had handed over to the Insured a list of documents required by us for finalisation of our Survey Report and the assessment of loss. The same had been confirmed to the Insured vide our Letter Ref: RLS/15/CH/OIC/05 dated 25.01.2016. we had continuously followed up with the Insured for the same through our repeated written and telephonic reminders. The Insured inspite of our best efforts has till date not provided to us the requested documents. As sufficiently long time has elapsed since the occurrence of loss, we have no alternative but to presume that the insured is not interested in pursuing the claim and submit our Survey Report recommending the closure of the Claim File as NO CLAIM”. Even before this Commission the Complainant has not produced the documents to substantiate the loss as claimed in the complaint. 

31.    The contention of the Opposite Party that the Complainant had not revealed the previous insurance policy and there was no insurance coverage between the previous policy and the present policy based on which a claim was filed which had increased the risk surrounding the property and hence the act of the Complainant in not disclosing the correct particulars prior to seeking coverage of insurance vitiates the contract of insurance which is based on utmost good faith and that the complaint has to be dismissed on the ground of suppression of facts could not be accepted because the Opposite Party had failed to establish that they had sought for the details of the earlier policy from the Complainant and the same was supressed by the Complainant. Further as the claim is based on the subsisting policy and the relevancy of the existence or non existence of the earlier policies to the present claim is not established by the Opposite Party and hence the non disclosure of the earlier policies will not disentitle the Complainant in maintaining the present complaint which is based on the subsisting policy availed by the Complainant from the Opposite Party.

32.    The Complainant contended that insured should not be compelled to approach the Court of law for adjudication of claim and had relied on the Judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd., vs Hindustan Safety Glass Works Ltd.

33.    Per contra the Opposite Party relied upon the order dated 31.10.2022 passed by our Hon’ble State Commission in C.C.No.170 of 2016,M/s Mahaveer Sales Corporation Vs United India Insurance Co. Ltd., where the Complainant who availed Standard Fire and Special Peril Policy made claim towards the damages and loss suffered due to floods in November 2015, and the surveyor had recommended closure of claim as the Complainant did not co-operate in the assessment process by submitting necessary document and hence it was held that when there is a disputed question of facts merely by relying upon the pleadings the Commission could not come to a justifiable conclusion in the summary proceedings and that the Complainant had to work out his remedy only before the appropriate civil court. Further reference was made to the judgment of the Hon’ble Supreme Court in United India Insurance Co., Ltd., Vs. Kantika Colour Lab & Ors., reported in (2010) 6 SCC 449, paragraph 19, wherein it is observed as follows:-

"19. Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness of contracts of contingency Insurance, all other contracts of insurance entitle the assured for the reimbursement of actual  loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance company's liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured. The law on the subject in this country is no different from that prevalent in England; which has been summed up in Halsbury's Laws of England - 4^th Edition in the following words:

"The happening of the event does not of itself entitle the assured to payment of the sum stipulated in the policy; the event must, in fact, result in a pecuniary loss to the assured, who then becomes entitled to be indemnified subject to the limitations of his contract. He cannot recover more than the sum insured for that sum is all that he has stipulated for by his premiums and it fixes the maximum liability of the insurers. Even with in that limit, however, he cannot recover more than what he establishes to be the actual amount of his loss. The contract being one of indemnity only, he can recover the actual amount of his loss and no more, whatever may have been his estimate of what his loss would be likely to be, and whatever the premiums he may have paid, calculated on the basis of that estimate."

And held that as the claim of the Complainant was not supported by necessary documents he was not entitled for the claim.

34.    The above case is squarely applicable to the present case. The Complainant having claimed a sum of Rs.3,70,21,500/- had not produced any document  to establish the loss suffered by them with clear break up details of the damages to the property, cost for the repair / replacement, value of stocks damaged and such other particulars.

35.    From Ex.B-3, the Surveyor Report, it is evident that the Complainant had not produced the documents as sought by the Surveyor to assess the loss and damage to the site due to flood that occurred in 2015. Subsequently several communications were made by the Complainant for settlement of claim. From Ex.A-6, it is clear that another opportunity was given to the Complainant to submit required documents within 7 days. From the date of the receipt of the letter. The Complainant inspite of submitting the documents as required had sent many letters and notices as evident from Exs.A-8 to A-10. Further the Complainant had not produced the documents to substantiate the claim against each item llisted in the letter dated 16.12.2015, Ex.A-4 legal notice dated 14.03.2018, Ex.A-5.

36.    The Complainant is not entitled for the claim unless his claim is supported by documents to establish the loss suffered by them. As there are no proper documents filed by the Complainant to show that they had incurred loss due to damage to the various items covered under the policy the Complainant is not entitled for the claim made in the complaint. Therefore this Commission is of the considered view that there is no deficiency on the part of the Opposite Party. Accordingly, Point No.4 is answered.

Point Nos: 5 and 6

37. As discussed and decided above, the Opposite Party has not committed any deficiency in service, the Complainant is not entitled for the reliefs claimed in the complaint or for any other relief from the Opposite Party. Hence the complaint is dismissed. Accordingly these points are answered.

In the result, this complaint is dismissed.  No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 22^nd day of May 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	22.10.2010	Xerox copy of the work order favouring the  Complainant issued by Chennai Metro Water supply & Sewage   Board, vide letter of acceptance Ref. CMWSSB/CNT/C2/SEW/TNUDP/033/2009-10
Ex.A2	28.10.2015	Xerox copy of policy (Contractors All Risk Policy) issued by the Opposite Party bearing No. 411901/44/2016/12, f other period 28.10.2015  till midnight of 27.4.2016.
Ex.A3	10.12.2015	Xerox copy of communication addressed by the Complainant notifying the Opposite Party about the calamity.
Ex.A4	16.12.2015	Xerox copy of communication addressed by the Complainant notifying the damages caused to the materials.
Ex.A5	14.03.2018	Xerox copy of legal notice issued under the Complainant’s instructions to the Opposite Party.
Ex.A6	19.03.2018	Xerox copy of communication addressed by the Opposite Party.
Ex.A7	12.04.2018	Xerox copy of Office cover of the communication received from the Opposite Party.
Ex.A8	18.04.2018	Xerox copy of Reply issued by the Complainant.
Ex.A9	06.02.2019	Xerox copy of communication addressed to the Opposite Party and acknowledged by the Opposite Party.
Ex.A10	09.12.2019	Xerox copy of communication addressed to the Opposite Party and acknowledged by the Opposite Party.

List of documents filed on the side of the Opposite Party:-

Ex.B1		Xerox copy of  Contractors All Risk Policy between 13.12.2014 to 12.11.2014.
Ex.B2		Xerox copy of  Contractors All Risk Policy between 28.10.2015 to 27.04.2016 with policy terms and conditions.
Ex.B3	24.03.2017	Xerox copy of Survey Report of Mr.R.L.Agarwal
Ex.B4	11.07.2017	Xerox copy of legal notice issued by the Complainant.
Ex.B5	09.09.2017	Xerox copy of clarification to legal notice given by Surveyor.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT