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Judgment
THE Complainant, a registered partnership firm, entered into a contract with the Municipal Corporation of Greater Bombay (Opposite Party No. 2) for construction of a sewage pumping station at Sion-Koliwada in 1984. THE Complainant took out Contractors'' All Risk Insurance Policy for Rs. 89,52,000/- in April, 1984 for the Contract work. THE insurance cover was for a period of 18 months from 4.1.1984 plus 12 months maintenance period from the 4th July, 1985.
IN pursuance of this contract the Complainant excavated a pit which was protected by the construction of a retaining wall short creating of the exposed surface and stitching of the rock surface with steel pins. IN spite of all these precautions the pit collapsed on the 8th March, 1985 on its north and west sides. The Complainants had served notice on the Insurance Co., the Opposite Party, regarding the collapse of the excavated pit. But the Opposite Party No. 1 appointed a surveyor who is said to have estimated the loss at Rs. 10.83 lakhs approximately though the survey report has not been made available to the petitioner. The Complainant furnished details of the claim to the Opposite Party No.1 on the 5th February, 1987, an estimate of the claim on the 25th February, 1987 and preferred a claim on the policy in November, 1989.
The Municipal Corporation of Greater Bombay, Opposite Party No. 2, also informed the Opposite Party No. 1 (Insurance Company) that the Corporation had no objection to Opposite Party No. 1, Insurance Co. making the payment of the amount claimed against the Insurance Policy directly to the Complainant.
ON the 7th February, 1991, the Opposite Party No. 1 enquired from the Complainant whether he had suffered any loss under the contract, in particular, whether the Complainant had made good the loss arising from the collapse the pit to the Municipal Corporation of Greater Bombay, Opposite Party No. 2 and if not the Opposite Party No. 1 was not liable for any payment under the policy. During the hearing before this Commission the Counsel appearing for the Complainant explained that it had received payments for the work done (which was frustrated due to collapse) from the Opposite Party No. 2 and that it had furnished a bank guarantee to Opposite Party No. 2 for the payment received for its liability under the contract for the work done and paid for its maintenance for a period of 12 months after completion. The Counsel for the Complainant explained that his client had not refunded the amount received by him from the Opposite Party No. 2, the Municipal Corporation of Greater Bombay, for the work done till the work collapsed nor had the Opposite Party No. 2 encashed the bank guarantee. However, he submitted that after the collapse, the insured, i.e. his client, had undertaken the restoration work "without any cost to the Corporation."
IT is an evidence that the Opposite Party No. 2, Municipal Corporation of Greater Bombay, had undertaken an investigation into the cause of the mishap of collapse of the retaining wall of the pit, but the report of the Enquiry/Investigating Officer was treated as confidential by the Municipal Corporation, and as such the cause of collapse is not known. In that context, it appears that the claim of the Complainant was based not on the loss incurred due to the collapse of work; the ''on account'' payments received by him were not refunded and the bank guarantee was not enforced. The fact that the Complainant undertook to do restoration of work free for the Corporation i.e., without consideration, cannot be made a ground to fasten a liability on the Opposite Party No. 1 under the Insurance Police. It is abundantly clear that there was no deficiency in service on the part of the Opposite Party No. 1 Insurance Co. and hence the petition is not maintainable. The same is dismissed. The Complainant shall pay a sum of Rs. 3,500/- as costs to the Opposite Party No. 1. Appeal dismissed.