There Was Deficiency In Service While Repudiating Rightful Claim: NCDRC While Directing ICICI Lombard To Pay Claim Of Loss
|While observing that deficiency in service on the part of the Opposite Party (Insurance Company – ICICI Lombard) is writ large while repudiating the rightful claim of the Complainant, the National Consumer Disputes Redressal Commission, New Delhi, directed the Opposite Party to settle the claim of the complainant by paying a sum of Rs.9,61,90,263/- along with interest @9% p.a. from the date of lodging of the claim till realization within 8 weeks.
Since the insurance policy is taken for reimbursement or for indemnity of the loss which may be suffered on account of insured perils, and the services of the insurer cannot be said to have been hired or availed for a commercial purpose, the Coram of Justice B.K Agrawal (President) and Dr. S.M Kantikar (Member) opined that “the Complainant Company is a ‘Consumer’ as defined under Section 2(1)(d) of the Act”.
Advocate Anubha Agrawal and Advocate Tadimalla Bhaskar Gowtham appeared for the complainant, whereas, Advocate Katta Laxmi Prasad appeared for the Opposite Party.
Going by the background of the case, since the Complainant Company is specialized in Canal Earthworks, Hydro Based Projects and Tunneling Projects, the Government of Andhra Pradesh awarded a contract to the Complainant for executing the Vellgonda Tunnel Irrigation Project. In response to quotations invited from various Insurance Companies, the Opposite Party Insurance Company offered an All-Risk Insurance Policy for the total cost of the Project, which was accepted by the complainant. Accordingly, the complainant obtained a policy for a period of 60 months, from the Opposite Party after paying the entire premium.
The Project was going on smoothly from 2007 till 2011 but unfortunately, on June 06, 2011, head of the tunnel under construction collapsed due to a geographical accident resulting in damage to the Tunnel Boring Machine (TBM) and loss to Insured Contract Works.
When the complainant intimated about the said loss, which was repudiated by the Opposite Party communicating that there has been no indemnifiable loss and the claim was not admissible under the Policy. Alleging that as per IRDA guidelines, claims under the Insurance Policy issued by Indian Insurers should be surveyed by an Indian Surveyor licensed by IRDA, but Opposite Party Insurance Company had appointed a surveyor which is the sister company of one of its Partner, Lombard, the complainant argued that the Surveyor’s approach could be far from being impartial and fair. Even, the Independent Surveyor appointed by the complainant was also not accepted by the Opposite Party. Hence, alleging deficiency in service and unfair trade practice on the part of the Opposite Party for issuing two policies in respect of one Project and repudiating the legitimate claim, the present complaint seeking various reliefs.
The NCDRC after considering the objection raised by the Opposite Party Insurance Company that the Complaint is required to be relegated to the Civil Court to decide the complicated questions of law involved in the present case, rejected the same by taking aid from the law laid down by the Supreme Court in the case of Dr. J.J. Merchant and Ors. Vs. Shrinath Chaturvedi [2002 (6) SCC 635], wherein it has been held that the procedure prescribed under the Act for disposal of the Complaint is adequate to decide cases involving complicated questions of law and the facts.
“M/s Mehta & Padamsey Surveyors Private Limited, Surveyors, were appointed by the Complainant Company / Insured to survey and assess the loss, which is permitted as per Guidelines issued by IRDA. Accordingly, Survey Report filed by M/s. Mehta & Padamsey Surveyors Private Limited cannot be simply brushed aside for the reason that they had been appointed by the Complainant Company/Insured. M/s. Mehta & Padamsey Surveyors Private Limited, after conducting the detailed survey at the site concluded that the Complainant’s Claim is well within the scope of the Opposite Party Company”, added the Coram.
Therefore, after perusing the two competitive Surveyors’ Reports available on record, the NCDRC opined that the Report filed by the complainant’s surveyors is more authentic which is based on the rightful appreciation of the terms and conditions mentioned in the Policy, and therefore, the complainant company is entitled to Rs.9,61,90,263/- towards loss claim under Contractor’s All Risk (CAR) Policy issued by the Opposite Party Insurance Company.
Cause Title: HCC-CPPL JV v. ICICI Lombard General Insurance Company Ltd and Anr.
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