2024 INSC 431 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1496 OF 2023

United India Insurance Co. Ltd. ...Appellant(s)

Versus

M/s Hyundai Engineering & Construction

Co. Ltd. & Ors. …Respondent(s)

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA, J.

1. The appellant, United India Insurance Co. Ltd., an insurance

company, challenges the decision by the National Consumer

Disputes Redressal Commission (hereinafter ‘the NCDRC’), which

by its impugned order dated 16.01.2023 allowed the Consumer

Complaint No.160 of 2019 and directed the appellant to release

and pay an insurance claim of Rs. 39,09,92,828/-.

2. Facts: The National Highway Authority of India (‘NHAI’),

respondent no. 3 herein, awarded a contract for the design,

construction and maintenance of a cable-stayed bridge across the

river Chambal on NH-76 at Kota, Rajasthan to a joint venture

company comprising of respondent no. 1 and respondent no. 2.

2

The value of the project under the contract was Rs.

213,58,76,000/-. The contract provided that the construction

work was to be completed within 40 months and the joint venture

was thereafter assigned the task of maintaining the said bridge for

a period of 6 years, of which, 2 years was the ‘defect-notification

period’. NHAI also assigned consultancy services for design,

construction and maintenance of the bridge to a nother joint

venture of M/s Louis Berger Group Inc. (USA) and M/s COWI A/S

(Denmark).

3. The appellant issued a Contractor’s All Risk Insurance Policy

covering the interest of NHAI as principal, and M/s Hyundai

Engineering Infrastructure Co. Ltd. along with M/s Gammon India

as JV Contractor under the policy bearing No.

011900/44/07/03/60000001 for the period from 05.12.2007 to

04.12.2011 for a total amount of Rs. 213,58,76,000/ -. The

relevant clauses of the policy are extracted as follows:

“SECTION I - MATERIAL DAMAGE:

1. The Company hereby agrees with the Insured

(subject to the exclusions and conditions contained

herein or endorsed hereon) that if, at anytime

during the period of insurance stated in the

Schedule, or during any further period of extension

thereof the property (except packing materials of

any kind) or any part thereof described in the

3

Schedule be lost, damaged or destroyed by any

cause, other than those specifically excluded

hereunder, in a manner necessitating replacement

or repair, the Company will pay or make good all

such loss or damage upto an amount not exceeding

in respect of each of the items specified in the

Schedule the sum set opposite thereto and not

exceeding in the whole the total Sum Insured

hereby.

The Company will also reimburse the Insured for

the cost of clearance and removal of debris

following upon any event giving rise to an

admissible claim under this Policy but not

exceeding in all the sum (if any) set opposite thereto

in the Schedule. The term debris only of the Insured

property and the cost of clearance and removal of

debris pertaining to property not Insured by the

policy will not be payable.”

“EXCLUSIONS TO SECTION - I

The Company, shall not, however, be liable for;

a) the first amount of the loss arising out of each

and every occurrence shown as Excess in the

Schedule;

b) loss discovered only at the time of taking an

inventory;

c) normal wear and tear, gradual deterioration due

to atmospheric conditions or lack of use or

obsolescence or otherwise, rust, scratching of

painted or polished surfaces or breakage of glass;

d) loss by damage due to faulty design;

e) the cost of replacement, repair or rectification of

defective material and/or workmanship, but this

exclusion shall be limited to the items immediately

affected and shall not be deemed to exclude loss of

or damage to correctly executed items resulting

from an accident due to such defective material

and/ or workmanship;

f) the cost necessary for rectification or correction of

any error during construction unless resulting in

physical loss or damage

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g) loss of or damage to files, drawings, accounts,

bills, currency, stamps, deeds, evidence of debt,

notes, securities, cheques, packing materials such

as cases, boxes, crates;

h) any damage or penalties on account of the

Insured's non-fulfilment of the terms of delivery or

completion under this Contract of construction or of

any obligations assumed thereunder or lack of

performance including consequential loss of any

kind or description or for any aesthetic defects or

operational deficiencies;

i) loss of or damage to vehicles licensed for general

road use or waterborne vessels or

machinery/equipment mounted or operated or

fixed on floating vessels/craft/barges or aircraft.”

4. The construction project commenced in December, 2007.

While the construction was in progress, a part of the constructed

bridge collapsed on 24.12.2009, resulting in the death of 48

workmen. On 26.12.2009, the Ministry of Road Transport and

Highways, Government of India constituted a Committee of

Experts (hereinafter, ‘Expert Committee’) under the chairmanship

of the Director General (Road Development) and Special Secretary,

Ministry of Road Transport and Highways . The task of this

committee was to investigate and report the cause of the collapse.

An FIR was also lodged against the respondents for offences under

Sections 304/308 of the Indian Penal Code, 1860. After

investigation, a final report dated 19.03.2010 was filed wherein the

officials of the respondent companies were charged under the said

5

provisions. It was found that they were liable for the loss of 48 lives

due to several defects at the stage of design, construction and

supervision.

5. The NHAI intimated the appellant about the incident on

29.12.2009 and requested the deputation of a surveyor to assess

the damage caused due to the accident and also sought

indemnification of the loss. A surveyor was appointed . He

commenced his work and by a letter dated 06.01.2010, he called

for certain details and clarifications from the respondents. While

furnishing the details, the respondents made a claim of Rs.

151,59,94,542/-.

6. The Committee of Experts constituted by the Government of

India submitted its report on 07.08.2010. Relevant parts of some

of the important findings of the Committee are as follows:

“8.2.2 Views of the Committee

8.2.2.1 The majority of failures in structures occur

during construction stages when they are most

vulnerable. The Chambal Bridge Accident was a

sudden and catastrophic structural failure. It may

be pointed out that the bridge was at one of its

critical stages at the time of the accident. […]

8.2.2.2 […] At this stage, as noted in para 5.8, the

stabilizing moment would become less than the

overturning moment. Uncontrolled rotation of the

pylon about the base would take place which

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would result in its gaining momentum as it fell.

This is borne out by the fact that the catastrophic

failure involved a catapult action wherein the

span P3-P4 as a whole, (which was tied together

by prestressing cables) was thrown some 100 m

away.

8.2.2.3 The serious distress in span P3 -P4

referred to para 8.2.2.2 could have been caused

by shortfall in design, poor workmanship,

unexpected load, sub-standard material or

distress in foundation P4 or a combination of some

of these. […]

8.2.2.4 It can be seen that had there been

additional stability devices in place (such as those

mentioned in para 8.2.2.1) the cycle involving

progressive loss of rotational restrain at the base

of the pylon and accentuation of distress in P3-P4

might not have been initiated and the collapse

might not have occurred.”

7. The final conclusions of the committee are relevant for this

case, and are as follows:

“CONCLUSIONS

9.1 From all the information made available by

the various agencies as also the analysis and

evaluation made by the Committee, it is felt that

a combination of factors such as lack of stability

and robustness in the partially completed

structure, shortfalls in design and lack of quality

of workmanship in the construction of span P3-

P4 have contributed to the collapse of this bridge.

The trigger for initiation of the collapse appears

to have been unpredictable and sudden

additional loading due to failure of supporting

arrangement of the form traveller.”

7

9.2 Since this is a design -build "Turnkey

Contract" which covers planning, investigation,

design, construction and maintenance of the

cable stayed bridge, the primary responsibility

for the collapse lies with the Contractor, M/s

Hyundai — Gammon (JV). The Contractors are

responsible for allowing the structure to reach a

vulnerable stage without taking adequate

precautions with respect to stability and

robustness of the partially completed structure

and the short fall in the design. They are also

responsible for deficiency in workmanship in the

construction of span P3-P4.

9.3 The design for this bridge was prepared by

M/s SYSTRA, the Design Consultants of the

Contractor M/s Hyundai-Gammon (JV). Since

there have been shortfalls in design, the

responsibility for the same also lies with M/s

SYSTRA.

9.4 The Supervision Consultants for this Project

are M/s LBG -COWI whose duties include

construction supervision along with the proof-

checking of the design through M/s COWI While

carrying out the proof-checking work M/s COWI

have not highlighted the shortfalls in the design

which have been observed subsequently by the

Committee. Further, the Supervision Consultants

have not been sufficiently proactive in preventing

lapses in workmanship. They have also given

tacit approval for major changes during

construction without insisting on a proper review

of the design by the Contractors / Design

Consultants. As such, the Supervision

Consultants are responsible for these lapses.

9.5 M/s Freyssinet acted as specialist Agency to

M/s Hyundai for supply, installation and

operation of the form traveller equipment for

cantilever construction, post - tensioning work

and installation of stay cables. Since the trigger

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for the collapse appears to be the failure of the

Freyssibar and / or the supporting arrangement

for the form traveller, the extent of their

responsibility may be examined keeping in view

the Contract Agreement between the concerned

agencies.

9.6 Apportioning of extent of responsibility to the

various agencies for the collapse of the structure

could be examined further by the Employer

(NHAI) keeping in view the contracts for this

Project entered into between various agencies

with each other and with NHAI.”

8. On 06.12.2010, NHAI issued a show-cause notice to the

respondent nos. 1 and 2 calling upon them to justify as to why

they should not be debarred. The respondents replied to the show

cause notice, and after perusing the reply, the NHAI took a decision

to permit them to carry out the remaining part of the contract.

9. In the meanwhile, the surveyor appointed by the appellant

submitted its final report on 28.02.2011. While assessing the net

loss at Rs. 39,09,92,828/-, the surveyor recommended to the

appellant that the insurance claim must be rejected as the

respondents no. 1 and 2 had violated the conditions of the

insurance policy. Based on the surveyor’s report and also the

findings and conclusions of the Expert Committee, the appellant

repudiated the insurance claim in its letter dated 21.04.2011.

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10. By their letter dated 17.06.2011, respondents nos. 1 and 2

requested the appellants to reconsider the decision of repudiation.

In support of their contentions, the respondents relied on certain

independent reports submitted by i) Mr. Jacques Combault; ii) M/s

SETRA/CETE (French Ministry of Transportation Technical

Department); iii) M/s Halcrow Group Ltd. and iv) AECOM Asia Co.

Ltd. Relying on these reports, the respondents urged stated that

there is no fault in the design of the bridge, and this is clearly

reiterated by technical experts, who are specialists in the field.

11. As the appellant agreed to reconsider the repudiation,

respondents no. 1 and 2 submitted various documents in support

of their claim. The appellant re-considered the claim, and by a

letter dated 17.04.2017 informed the respondents that the original

decision of repudiation is affirmed as they did not find any

justifiable reason for accepting the claim. The relevant portion of

the said communication dated 17.04.2017 is as follows:

“We refer to your letter Ref: 17011/27/2006-

kota/CAR/RJ-05/3909, dt: 18.01.2017 and

Contractor letter Ref: HZ-6718, dt: 04.02.2017

and also the subsequent meeting held at ou r

office-Chennai. On perusal of the documents

provided, we find that no further points have

emerged in support of the claim.

In view of the above we regret our inability

to reconsider the claim which was repudiated.”

10

12. In the meanwhile, respondents no. 1 and 2 completed the

work under the contract by 31.07.2017. The bridge was

inaugurated and put to public use from 29.08.2017, and it is said

to be operating since then.

13. Almost after 2 years of the rejection of the claim, o n

24.01.2019, respondents no. 1 and 2 filed a Consumer Complaint

No. 160 of 2019 before the NCDRC alleging deficiency in the

appellant’s service and unfair trade practice adopted by it.

14. Decision of the NCDRC: At the outset, the NCDRC rejected

the preliminary objection of the appellant that the summary

jurisdiction under the Consumer Protection Act, 1986 (hereinafter,

‘the CPA’) is not appropriate for dealing with complicated questions

of law and fact. The objection relating to limitation in filing the

complaint was also dismissed by holding that the period for

calculating the limitation would commence from 17.04.2017 and

not from 21.04.2011.

14.1 On merits of the matter, the NCDRC held that the report of

the Committee of Experts was inconclusive as it could not identify

the precise reasons for the collapse of the bridge. On the other

hand, the NCDRC placed reliance on the reports of i) Mr. Jacques

11

Combault, ii) the Halcrow Group, iii) SETRA and iv) AECOM Asia

Co. Ltd., and came to the conclusion that there is no defect in the

design of the bridge and that the respondent nos. 1 and 2 are not

at fault.

14.2 Finally, the NCDRC relied on the decision of the NHAI

permitting the respondent nos. 1 and 2 to proceed with the

construction of the remaining part of the bridge and held that if

the NHAI found the respondents to be competent enough to

continue with the contract, it can safely be concluded that they

were not at fault.

14.3 In this view of the matter, the NCDRC directed the

appellant to pay the respondents no. 1 and 2 a sum of Rs.

39,09,92,828/- with an interest at 9% p.a. from the first date of

repudiation, i.e., 21.04.2011.

14.4 Strangely, while the judgment of the NCDRC was

pronounced on 16.01.2023, an addendum came to be added to the

judgment. This addendum is undated and seeks to amend

paragraphs 28 and 29 and directs payment of Rs. 151,59,94,542/-

instead of Rs. 39,09,92,828/-. The relevant portion of the

addendum is extracted here for ready reference:

12

“32. It will be relevant to mention here that though

the Complainant No.1, vide letter dated

27.02.2010 had submitted a detailed Claim

Statement of ₹93,67,17,876 to the Surveyor but it

was revised vide e-mail dated 07.03.2010 to the

tune of ₹149,87,44,914/-. It was again revised

vide letter dated 24.06.2010 (Serial No.2 of the

Claim Statement - ₹8,29,15,604 to ₹10,01,65,232)

to a final Claim of ₹151,59,94,542/-. The

Surveyor had, however, assessed the total loss at

₹39,09,92,828/- . Even though in the Written

Submissions filed by the Learned Counsel for the

Complainants they have claimed that at least a

net loss of ₹39,09,92,828/- be payable towards

the insurance claim but in my considered opinion

the Complainants are entitled for the payment of

entire loss of ₹151,59,94,542/- claimed by them.

33. Consequently, the Complaint is partly allowed

with a direction to the Insurance Company to pay

a sum of ₹151,59,94,542/- to the Complainants

along with interest @9% p.a. from the date of

repudiation of the claim i.e. 21.04.2011 till the

actual realization, within a period of 8 weeks from

the date of passing of the order failing which the

amount shall attract interest @12% p.a. for the

said period. The Complainants shall also be

entitled for a costs of ₹50,000/-.”

15. Mr. Dama Seshadri Naidu, learned senior counsel appearing

for the respondents has submitted that he is not in a position to

support the judgment amending the paragraphs 28 and 29 and

directing the payment of the revised amount of Rs.

151,59,94,542/-. It is unimaginable as to how the NCDRC could

unilaterally revise the claim from Rs. 39,09,92,828/- to Rs.

151,59,94,542/-, without hearing the parties and more

13

surprisingly when respondent nos. 1 and 2 have themselves filed

written submissions confining the claim to Rs. 39,09,92,828/-. Be

that as it may, in view of the submission of the learned counsel for

the respondent that he will confine the claim Rs. 39,09,92,828/-,

this issue need not detain us any further.

16. Analysis: Insurance is a contract of indemnification, being a

contract for a specific purpose

1, which is to cover defined losses

2.

The courts have to read the insurance contract strictly.

Essentially, the insurer cannot be asked to cover a loss that is not

mentioned. Exclusion clauses in insurance contracts are

interpreted strictly and against the insurer as they have the effect

of completely exempting the insurer of its liabilities.

3

17. In Texco Marketing P. Ltd. v. TATA AIG General Insurance

Company Ltd.,

4 while dealing with an exclusion clause, this Court

has held that the burden of proving the applicability of an

exclusionary clause lies on the insurer. At the same time, it was

stated that such a clause cannot be interpreted so that it conflicts

1

Oriental Insurance Co. Ltd. v. Sony Cheriyan, (1999) 6 SCC 451.

2

United India Insurance Co. Ltd. v. Levis Strauss (India) (P) Ltd., (2022) 6 SCC 1.

3

New India Assurance Co. Ltd. v. Rajeshwar Sharma, (2019) 2 SCC 671;

Canara Bank v. United India Insurance Co. Ltd., (2020) 3 SCC 455;

Oriental Insurance Co. Ltd. v. Samayanallur Primary Agricultural Coop. Bank,

(1999) 8 SCC 543.

4

(2023) 1 SCC 428.

14

with the main intention of the insurance. It is, therefore, the duty

of the insurer to plead and lead cogent evidence to establish the

application of such a clause

5. The evidence must unequivocally

establish that the event sought to be excluded is specifically

covered by the exclusionary clause.

6 The judicial positions on the

nature of an insurance contract, and how an exclusion clause is

to be proved, shall anchor our reasoning in the following

paragraphs.

18. Seeking to justify their repudiation, the appellant relied on

the affidavit of evidence by Mr. S. Ananth a Padmanabhan,

examined as RW 2. He produced the surveyor’s report as well as

the Expert Committee’s report as Ex. RW 2/2. On the other hand,

the reports of the independent experts relied upon by the

respondents no. 1 and 2 were not marked as exhibits. They were

not adduced in evidence as none of these experts was examined as

a witness. Under these circumstances, we have no hesitation in

coming to a conclusion that the appellants have discharged the

burden as enunciated in Texco (supra).

5

National Insurance Company Ltd. v. Vedic Resorts and Hotels Pvt. Ltd., 2023

SCC OnLine SC 648.

6

National Insurance Co. Ltd. v. Ishar Das Madan Lal, 2007 (4) SCC 105.

15

19. The Expert Committee was constituted by the Ministry of

Road Transport and Highways (‘MORTH’), Government of India. It

was chaired by the Director General (Road Development) and

Special Secretary, MORTH. The other members of the Committee

were Mr. Ninan Koshi DG (RD) & AS (Retd.), Prof. Mahesh Tandon,

Bridge Specialist, and Prof. A.K. Nagpal, Dept. of Civil Engineering,

IIT Delhi. We have referred to the constitution as well as the

expertise of the Committee only to assure ourselves that it

comprised of experts in the field of civil engineering. It is also

indicative of the fact that the members were independent and well-

qualified to examine and submit a report. We would, therefore, be

justified in relying on the findings of the Expert Committee. In fact,

the NCDRC’s opinion about the Expert Committee is not about

lack of credibility, or lack of expertise, rather its opinion was only

that the Committee was not conclusive in its findings.

20. The proof of the pudding is in its eating - we will straight away

refer to the relevant portions of the Expert Committee’s report.

Referring to the variations introduced on-site without any approval

by the design checker, the Committee held as follows:

“5.1.2 Since this is a Design Build Contract, the

Contractors M/s Hyundai -Gammon (JV) had

appointed M/s SYSTRA of France as their Design

16

Consultant. The designs prepared by M/s

SYSTRA were proof checked by M/s COWI, the

Proof Check Consultant. During the course of

presentations and discussions with various

agencies, there were some contradictions in the

stand taken by M/s SYSTRA and M/s COW I as

regards the extent of proof checking of designs by

the Proof Check Consultant. In fact, M/s COWI in

their submission dated 28th May, 2010 (Annexure

L-21) have stated as follows: “The Design Checker

verified the Final Design prior to start of

construction. The variations introduced on site

were introduced by the BOT Contractor. We expect

that all variations were subject to verification and

approval of the Designer. The Design Checker was

not requested to review any design verification

following variations on site from the Final Design.

[…]”

(emphasis supplied)

20.1 The Committee noted that each lateral span of the bridge

was supposed to be a monolithic structure. A lateral span is the

structure between two support pillars. However, the collapsed

lateral span was cast in multiple parts, as noted in the following

paragraph:

“5.3.3 M/s SYSTRA have expressed vide their

submission dated 17th April, 2010 (Annexure

H-11, page 3) that they have envisaged “one go”

(i.e. monolithic construction) for each lateral span

during the development of the design. However,

during actual construction the lateral span P3-P4

was cast in seven parts. The lower part of the box

girder (U-shaped section comprising bottom slab

and webs upto about mid height) was concreted

in four different stages with three vertical

construction joints. The upper part of the box

girder (comprising deck slab and top half of the

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webs) was later concreted in three stages (with

two vertical construction joints). It has been

informed by M/s Hyundai-Gammon JV vide their

letter HN-1656 dated 1st September, 2009

(Annexure L-18, page 3) that M/s SYSTRA, the

designer of the main bridge including lateral

spans, were aware of this. In fact, Mr. J. Mirailles

of M/s SYSTRA had visited the site in the month

of July 2009 and stayed there for a couple of

weeks to inspect the ongoing construction. The

construction of lateral span P3- P4 in parts was

being carried out at that time…”

“5.3.5 The query of the Committee regarding

position of M/s LBG -COWI in respect of

applicability of Clauses of AASHTO relating to

“Segmentally Constructed Bridges” to the design

of lateral span P3-P4, was discussed with Mr.

Nielsen of M/s COWI on 23rd June, 2010. Mr.

Nielsen mentioned that as per his understanding,

it was a case of segmental construction. […]”

(emphasis supplied)

20.2 The Committee noted that the point at which the cable was

going to be suspended with the pylon was crucial. It observed that

the height at which the suspension took place was 77 metres,

whereas, it was supposed to be 40 metres. The relevant paragraph

is as follows:

“6.2 The drawing No.A104 -DWG-MB-FD-1301

REV. 1 dated 28th May, 2009 [Annexure H-01(ii)]

shows that the lateral spans P3-P4 as well as P2-

P3, should have been completed and external

tendons tensioned before the first stay cable was

installed. The steel box for anchoring the first stay

cable was to be placed in the pylon at the height

of 33.30m. Also, the first cantilever segment

towards the river side from P4 was to be

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constructed only after the lateral spans P3-P4 and

P2-P3 had been completed and fully prestressed.

It is seen that this sequence was changed in the

actual construction. Further, drawing No.A104-

DWG-MB-FD-846 REV. 2(c) dated (??)/07/09

[Annexure H-01(ii)] specifically mentions that

“tendons tensioning on span P2 -P3 must be

performed before pouring segment S10”. This

requirement was also changed during actual

construction. […]

6.3 …This implies that the height of the pylon

should have been about 40 m at the time of

tensioning of first stay cable at cantilever segment

S10. However, it is seen that at the time of casting

of segment S10, the free-standing pylon had

already been constructed to a height of 77 m.”

(emphasis supplied)

20.3 The other relevant portions cited to us from the Committee’s

Report include para 6.5, which speaks about the changes in the

sequence of construction without consulting or informing the

design consultants of the project. Para 6.8 was relied on to

highlight further discrepancies between the approved drawing

plans and the actual construction. Concrete batching plants

involved were of a lower capacity, leading to delays in construction

of the lateral spans. Para 8.1.2 (iii) was also brought to our notice,

as it spoke about the changes which were brought about without a

proper technical review. The conclusions of the committee have

already been quoted by us in paragraph 7 above, and it was found

that:

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a) a combination of factors such as lack of stability and

robustness in the structure, shortfall in design, lack of

quality workmanship have all contributed to the

collapse;

b) the primary responsibility lies with the contractor, M/s

Hyundai and Gammon (JV) who are responsible for

allowing the structure to reach a vulnerable stage

without taking adequate precautions and there is a

shortfall in the design;

c) there were shortcomings in the design for the bridge

prepared by M/s SYSTRA and the responsibility for the

design lies with M/s SYSTRA;

d) M/S COWI, the supervision consultants have not

highlighted the shortfall in the design. M/s COWI has

not been sufficiently proactive in preventing lapses in

workmanship. They have given tacit approvals for

major changes without insisting on a proper review of

the design;

e) The trigger for the collapse appears to be the failure of

M/s Freyssinet. Their responsibility must be examined

in detail.

20

21. We are inclined to accept the appellant’s submission that

there is sufficient evidence to justify repudiation of the claim on

the basis of the exclusion clause. On the other hand, there is

absolutely no evidence on behalf of the respondents. His argument

is only that the Surveyor/Committee report is not clinching, it is

open ended and does not hold that the respondents no. 1 and 2

are responsible for the negligence.

22. We will now refer to the surveyor’s report, the findings of

which are as follows:

“C) After a detailed study of the Insured’s

submission vide their letter dt;27.02.2010 and

several rounds of face to face interactions with the

Insured’s Engineers at site, we derived the

following inferences;

1). The junction at Pylon P4, was the most critical

and vulnerable in the entire construction and had

to be handled with due care and diligence.

2). It was clear and obvious, that, an unstable

equilibrium has been created at this junction,

(where, the over turning moment was in excess of

resisting moment), due to the shearing of the slab

in lateral span P3 -P4 at about 15 mts from the P4

junction, which has caused the tilting of the Pylon,

dragging with it, spans P3-P4, P3-P2 and Piers P4,

P3. The shearing of the slab is purely a Design

aspect.

3). The restraints imposed on the movement of the

Bearings at P4 were released by the Insured prior

to completion of the main spans, which facilitated

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movement of Pylon along with Lateral spans and

this is one of the most significant factors,

contributing to this massive failure.

4). The sequence of operations in the construction

of the Bridge were changed in actual construction

to make up for the time lost and this has adversely

affected the stability of the P4 joint.

5). Raising Pylon P4 to an abnormal height of 77

mts (out of 80 mts) without any lateral anchorage

in the form of stringers, had left the Pylon P4

exposed to heavy wind pressure and in a state of

unstable equilibrium, ready to collapse at any

time, with the application of a little external force

in excess.

6). We were informed that, the concreting of

Lateral span P3-P4 was done in 7 stages,

whereas, it should have been done at ONE GO.

This leaves vertical joints which are vulnerable.

We also noted that, the Insured had to resort to

concreting in stages, due to insufficient Batching

Plants.

7). Change in allocation of works amongst the

Joint Venture Partners also played a key role in

the quality of workmanship. At several places,

M/s.Gammon had to carryout the jobs, supposed

to have been carried out by M.s,Hyundai. Even in

the affected location of P4, the construction of Pier

P4 was the responsibility of M/s. Hyundai,

whereas, it was carried out by M/s Gammon.

8). Lack of co-ordination and planning between

proof checking consultant and design consultants

could have been streamlined.

[…]

22

11). The sequence of concreting carried out on the

date of failure, as informed to us, was different

from the versions of the Insured. […]”

23. It is important to note that the surveyor was examined as

RW-1 and his evidence remained unrebutted. In

National Insurance Company Ltd. v. Hareshwar

Enterprises (P) Ltd.

7 and National Insurance Company Ltd. v. Vedic

Resorts and Hotels Pvt. Ltd.,

8 this court has held that the

surveyor’s report is a credible evidence and the court may rely on

it until a more reliable evidence is brought on record. In the

present case, the surveyor’s report was the evidence tendered by

the insurance company, and it has not been treated as unreliable

by the NCDRC.

24. Mr. Naidu, appearing on behalf of the respondents,

commenced his submission by referring to certain portions of the

judgment of this court in Texco (supra) to emphasise that

exclusionary clauses place extraordinary burden on the insurance

company. We have already answered this question by referring to

the evidence adduced by the appellant, which we consider to be a

sufficient discharge of the burden. On the Expert Committee’s

7

(2021) SCC Online SC 628.

8

2023 SCC OnLine SC 648.

23

report, Mr. Naidu has re-iterated the finding of the NCDRC that it

is inconclusive apart from being a mere opinion. Even this

submission stands answered by extracting specific and categorical

findings of the Committee as well as the surveyor’s report.

25. Mr. Naidu sought to draw support from the reports of

independent experts on the issue of design to establish that the

respondents are not at fault. Mr. Naidu sought to rely on reports

by (i) Mr. Jacques Combault; (ii) M/s SETRA/CETE (French

Ministry of Transportation Technical Department); (iii) M/s

Halcrow Group Ltd.; and (iv) AECOM Asia Co. Ltd.

26. At the outset, the concerned experts were never examined

before the NCDRC. Further, these reports were not based on site-

inspection. They are all theoretical in nature. For example, the

report Mr. Jacques Combault is based on:

“The analysis reported in the following pages is

based on:

- The description of Bridge Concept as proposed

by Systra

- The Main characteristics of the Structural

Concept as proposed by Systra

- The State of the Art in the field of prestressed

concrete cable stayed bridges

- Examples of similar bridges successfully

achieved in the past”

24

After a theoretical analysis, the following conclusion is drawn:

“The structural concept of the Chambal Bridge as

proposed by Systra is: -

- perfectly fitting the site-conditions

- conforming to the state of the art in the field of

cable stayed bridges

The construction methods, as proposed by Systra,

are simple and proven processes well adapted to

the structural concept.”

27. A similar approach was adopted by the other experts. On the

other hand, the surveyor has examined himself and adduced

documents. Further, there is sufficient evidence to indicate that

the surveyor has made site-visits and the proof of that was part of

the pleadings filed before us.

28. The submission that NHAI continuing the contract with

respondent nos. 1 and 2 and they have, in fact, completed the

contract does not impress us. The continuation of work by

respondent nos. 1 and 2 could be due to various reasons. Even if

the NHAI’s decision to continue is taken to be a valid economic

decision, that by itself cannot be a reason for not applying the

applicable clause of the contract if such applicability is otherwise

proved by cogent evidence.

29. For the reasons stated above, we are of the opinion that the

NCDRC fell into a clear error of law and fact in allowing the

25

consumer complaint for multiple reasons. As we have not agreed

with the preliminary objection of the appellant to reject the

complaint and relegate the respondents to civil court, we made

extra efforts to examine the facts in detail. It is for this reason that

the evidentiary value of the reports, their scope and ambit, and

their contents were examined by us in some detail.

30. For the reasons stated above, we allow the appeal and set-

aside the impugned order dated 16.01.2023 passed by the NCDRC

in Consumer Complaint No. 160 of 2019.

31. Pending applications, if any, shall be disposed of.

32. There shall be no order as to costs.

………………………………. J.

[PAMIDIGHANTAM SRI NARASIMHA]

………………………………. J.

[ARAVIND KUMAR]

NEW DELHI;

May 16, 2024