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2012 DIGILAW 353 (PAT)

Surendra Prasad Singh v. Union Of India

2012-02-28

S.N.HUSSAIN

body2012
ORDER Both the aforesaid writ petitions have been filed by the same petitioner for direction to respondent-United India Insurance Company Limited and its authorities for modifying their discharge vouchers, which were for compensation of loss to the petitioner, but were far below the First Surveyor’s Report, whereby the loss of the petitioner was assessed to the tune of much larger sums and, therefore, the amounts indicated in letter dated 18.03.2010 for the damage of road covering Chanage 00.00 KM to 10.00 KM and 10.00 KM to 17.745 KM ( respectively in the aforesaid two writ petitions), Rosera Shivajee Nagar Baheri Path in Rosera Block of the district of Samastipur, were not only against the First Surveyor’s Report, but were also in no way reasonable to meet the damages caused by the flood. 2. A further relief was claimed in both the writ petitions for directing the respondents to compensate the loss of the petitioner in view of the earlier interim Surveyor’s report, which was done in presence of the Superintending Engineer, Executive Engineer, S.D.O. and Jr. Engineer of the Central Pubic Works Department (hereinafter referred to as `the C.P.W.D.’ for the sake of brevity) and by the Company appointed Surveyor, C.P.W.D. being co-insured had already written to respondent-Insurance Company to pay the compensation amount at the higher rate. 3. In both the cases parties are same, reliefs sought for are also same and they are based on similar facts, whereas, only the works allotted and the amounts fixed for them are different in both the cases and hence both of them have been heard together and are being decided by this common order. 4. The claim of the petitioner is that two contracts for construction of two portions of the road (respectively in the aforesaid two writ cases) connecting Rosera Shivajee Nagar Baheri Path in Rosera Block in the district of Samastipur were awarded to the petitioner and work orders were issued in November, 2006. As per terms of the contracts, insurance coverages were signed between respondent-Insurance Company as insurer and the department and the petitioner as insured and the said policies of insurance were effective from 03.07.2007 to 02.04.2008 for the whole construction and one time premium was, admittedly, paid to respondent-Insurance for such coverages. 5. As per terms of the contracts, insurance coverages were signed between respondent-Insurance Company as insurer and the department and the petitioner as insured and the said policies of insurance were effective from 03.07.2007 to 02.04.2008 for the whole construction and one time premium was, admittedly, paid to respondent-Insurance for such coverages. 5. Learned counsel for the petitioner claimed that he started the work in January, 2007 with respect to both portions of the road and the works were completed, except top layer bitumen and roller works, by 04.08.2007. It is also claimed by the petitioner that on 05.08.2007, there was heavy flood, due to which embankment of the river breached and all the works completed by the petitioner up till that date were washed away. 6. Learned counsel for the petitioner also averred that since the works were insured and constructed road was damaged during the period of insurance, the petitioner claimed the insured amounts for completing the works, whereafter respondent-Insurance Company appointed a Surveyor, who submitted his report assessing the damage caused by flood to the petitioner, but respondent-Insurance Company started delaying in payment of amount of damage and the petitioner was constrained to file C.W.J.C. No. 16895 of 2008, which was disposed of by a Bench of this Court on 12.08.2009 directing the respondents to settle the insured amount with the petitioner within three months. The Insurance Company filed Civil Review No. 257 of 2009 for review of the aforesaid order, but the said case was dismissed on 24.02.2010. 7. Learned counsel for the petitioner stated that the respondents were irked by the petitioner’s approaching this Court and called for another report from the said Surveyor, whereafter the second surveyor’s report was submitted and its contents were exactly the same as of the first surveyor’s report without any difference regarding fact and loss, but the losses/damages were brought down from Rs.1,27,60,183.00 to Rs.17,75,648.00 and from Rs.54,00,564.00 to Rs.1,16,843.00. According to the second report of the Surveyor, discharge vouchers were issued by respondent-Insurance Company, which are under challenge in the instant writ petitions. 8. According to the second report of the Surveyor, discharge vouchers were issued by respondent-Insurance Company, which are under challenge in the instant writ petitions. 8. Learned counsel for the petitioner argued that insurance for construction was effective from 03.07.1977 to 02.04.2008, whereafter maintenance was to be done for five years and hence insurance was not for any period, rather it was for the work to be completed by the petitioner as per the agreement, which is apparent from Contractors All Risk Insurance Policy Schedule (Annexure 5), which provides that all losses prior to the date of payment of premium were to be excluded and not the works done by the petitioner prior to the payment of premium. Hence he submitted that respondent-Insurance Company was also liable to compensate the damages for the work done by the petitioner prior to 03.07.2007. 9. Learned counsel for the petitioner also claimed that the impugned letter of respondent-Insurance Company has been issued on the basis of the second surveyor’s report, in which findings are the same as in the first surveyor’s report, but in the second surveyor’s report it has been added that the damage caused to the works done by the petitioner prior to insurance cannot be insured and compensated. This, according to the petitioner, is illegal and arbitrary as insurance was done not for any period, rather it was for the entire work, which is apparent from Annexure-5, mentioned above. 10. On the other hand, learned counsel for respondent-Insurance Company contested the claim of the petitioner and submitted that they are ready to compensate the loss of the petitioner for the works done by him within the period of insurance, but the petitioner not being satisfied has been raising undue claims and has refused to accept the amount offered by respondent-Insurance Company, to which the petitioner was legally entitled. 11. Learned counsel for respondent-Insurance Company also stated that the document of insurance contains Clause 7, which is an arbitration clause and hence the petitioner has got an adequate and appropriate alternative remedy, but without availing it, he has filed the instant writ petitions, which are fit to be dismissed on that score. 12. 11. Learned counsel for respondent-Insurance Company also stated that the document of insurance contains Clause 7, which is an arbitration clause and hence the petitioner has got an adequate and appropriate alternative remedy, but without availing it, he has filed the instant writ petitions, which are fit to be dismissed on that score. 12. So far question of alternative remedy is concerned, no doubt arbitration clause is included in the insurance policy, but since the pleadings of the parties are complete and they have also concluded their final arguments with respect to the merit or otherwise of the claims of the petitioner, this Court does not find it proper to dispose of these writ petitions merely due to the availability of an alternative remedy of arbitration. 13. From the arguments of learned counsel for the parties and the materials on record, specially the insurance policy, it is quite apparent that the insurance had commenced from 03.07.2007 and was valid till 02.04.2008 and only for that period respondent-Insurance Company had received the premium. Hence the payment of compensation is also to be made only for the same period. 14. It is further apparent from the said report that the insurance was not for the roads, rather it was for the works done on the road for a specific period i.e. 03.07.2007 till 02.04.2008 only and the petitioner was not entitled for compensation, as per the said policy, for works done either prior to 03.07.2007 or after 02.04.2008. 15. Respondent-Insurance Company has also produced a letter of the C.P.W.D., by which information was supplied by the Government regarding works done by the petitioner partwise and paragraph 3(kha) thereof specifically provided that the Insurance Company was liable only for the work done during the period insured. This squarely supports the case of respondent-Insurance Company and the petitioner has miserably failed to produce any paper to the contrary. 16. Section 64 UM of the Insurance Act, 1938 provides the limitation of an Insurance Company that it has to go as per the report of the Surveyor, who is licensed by the Government of India independently and not by the Insurance Company and hence such report has sanctity according to the provisions of the said Act. 17. 16. Section 64 UM of the Insurance Act, 1938 provides the limitation of an Insurance Company that it has to go as per the report of the Surveyor, who is licensed by the Government of India independently and not by the Insurance Company and hence such report has sanctity according to the provisions of the said Act. 17. Although learned counsel for the petitioner claimed that there were first surveyor’s report and second surveyor’s report, but from the materials on record, it is quite apparent that the first surveyor’s report was merely an interim report, whereas, the second surveyor’s report was the final report of the same Surveyor, in which the facts were not denied, but only liability of respondent-Insurance Company was considered in the final report after receiving the copy of the proposal. 18. From the aforesaid facts and pleadings as well as from perusal of the final report of the Surveyor keeping in view the specific provisions, it appears that the impugned final report was on cogent basis and hence the impugned discharge vouchers were rightly issued on its basis and the petitioner should have accepted the same as full and final settlement of his insurance claims, but he refused to accept the said amount offered by respondent-Insurance Company. 19. In the said circumstances, this Court does not find any merit in these two writ petitions, which are, accordingly, dismissed.