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CASE NO.: Appeal (civil) 3593-3596  of  1996 Appeal (civil)  3688-3691        of  1996

PETITIONER: INTERNATIONAL CONSTRUCTION COMPANY

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & ORS.

DATE OF JUDGMENT:       01/02/2001

BENCH: S. Rajendra Babu & S.N. Variava.

JUDGMENT:

J  U  D  G  M  E  N  T L...I...T.......T.......T.......T.......T.......T.......T..J RAJENDRA BABU,  J.:

   These  appeals  arise out of orders made by  the  Andhra Pradesh  High  Court in two appeals Nos.  1200 and  1201  of 1987  and Civil Revision Nos.  3120 and 3121 of 1987.  By  a common judgment the High Court allowed the appeals and civil revision  petitions filed by the respondents and set aside a portion  of  the award made by the arbitrators for a sum  of Rs.   9,66,000 on account of claims towards losses  suffered by  the  contractor on account of severe cyclone  in  Andhra Pradesh  in November 1977 and on account of reimbursement of losses  due  to abnormal rains and unprecendented floods  in 1978.  The dispute arose out of two contracts awarded in the year  1977 to the appellants for the purpose of earth  work, excavation  and formation of embankments and construction of aqueducts  in  the Nagarjuna Sugar Left Canals  in  District Khammam  in  Andhra  Pradesh  The total value  of  both  the contracts  is about Rs.  1.57 crores.  The arbitrators  made an  award  which  was  made the rule of  the  court  by  the Additional  Judge,  City Civil Court, Hyderabad.   The  High Court,  however, reversed a portion of the award, as  stated earlier.   The  contention put forth before us is  that  the High  Court  has  sought  to interpret the  clauses  of  the agreement  which it was not entitled to do so and could  not have reappraised the evidence particularly in respect to the taking  over  of the site and that there was no  heavy  rain fall  in  June  1978  as per statistics  maintained  by  the Rainfall Station at Wyra which is near the work site.  It is contended that the High Court also erred in holding that new claims have been raised by the appellants.  The stand of the appellants  is  that  no new claims had been  made  and  the claims  already  made  were  elaborated  by  making  another statement.  It is further contended that the High Court also erred in holding that certain claims were time-barred.

   Clause 83 of the agreement, upon which much argument had been addressed, is to the following effect :-@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

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83,  CLAIMS AND DISPUTES

   Any  claims  or disputes out of the contract  should  be submitted  in writing to the Superintending Engineer  within 15  (fifteen) days from the date of cause of action, so that the  points at issue should be immediately verified at  site by  the  field  officers,  facts ascertained  and  a  prompt decision  given.   Claims  raised  subsequently  at  such  a distance  of  time  as to make it impossible to  verify  the facts  are  liable  to  be  rejected.   The  tenderer  shall carefully note this stipulation.

   The   appellants  had  made   representations   to   the Government  for reimbursement of losses suffered on  account of the cyclone of 1977 and abnormally heavy rains and floods in June 1978 and the Government had in September 1979 agreed to  advance a loan of Rs.  4.67 lakhs which was subsequently recovered  from  the running bills payments.  The  only  two claims that survive for our decision are Claim No.  I(A) and Claim No.  II(A).  Claim No.  I(A) is towards reimbursement of  losses sustained by way of advances to labour on account severe  cyclone  in  November 1977 and Claim No.   II(A)  is regarding  towards reimbursement of losses sustained due to abnormal rains and unprecendented floods in 1978.  In order to  make a claim and raise a dispute there should have  been compliance  with  clause  83 of the agreement  and  on  this aspect  there  is  no dispute.  The claim should  have  been submitted  in writing to the Superintending Engineer  within 15 days from the date of cause of action so that this aspect would  be verified.  On the interpretation of clause 83, the High  Court held that condition No.  83 is a condition meant for  convenience of both the parties and does not lay down a rule of limitation, much less a condition for the arbitrator to entertain a claim.  It is not necessary for us to examine whether  any new claim had been raised by the appellants  or not.   All  that we need to notice is whether, in fact,  any claim  had been made in terms of condition No.  83 at all or not.   It is clear from the materials placed before us  that there had been floods and, therefore, the appellants had put to  loss but a claim or a dispute in terms of condition  No. 83  does  not seem to have been addressed at all  either  in claim  No.   I(A)  or  claim   No.   II(A).   All  that  the appellants  stated in their letter dated 26.11.1977 is  that there had been severe cyclone and heavy rains as a result of which  communications  dislocated  and the  appellants  sent their  labour  recruitment  personnel to  Bilaspur,  Orissa, Mahboobnagar  and other labour recruitment areas and some of the labour gathered were on their way to site when they were held  up  due to the cyclone and were forced to return  back due  to  complete  break down of  communications  after  the cyclone,  but  there  are  no details as  regards  how  many labourers  have been engaged from different areas, as to who they  were and what arrangements had been made in regard  to them  and the extent of loss suffered by them.  That is  the dispute  that  is  contemplated under clause 83 and  such  a dispute had not been raised at all.

   The  appellants made a claim No.  II(A) in the following terms :-

   CLAIM   NO.   II.   TOWARDS   REIMBURSEMENT  OF   LOSSES SUSTAINED DUE TO ABNORMAL RAINS AND UNPRECENDENDED FLOODS IN 1978.

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   The  claimants  submit that while the work was  in  good progress,  in  June,  1978, there were  heavy  unprecedended rains  in the catchment of Pedavagu.  These were found to be the  heaviest recorded in the preceding about 20 years,  for the month of June as could be verified subsequently from the I.M.D.   data (enclosed).  This resulted in many floods  one following  the  other breaching all protective works in  the river  bed and resulting in heavy siltation of the excavated foundations,  heavy  erosion of the banking already  formed, and  damage  to machinery and loss of stacked materials,  in addition  to idling of labour and transport vehicles.  These heavy  rains  had also an adverse effect on the  cart  track used  for  conveyance  of materials from the quarry  to  the work-site.   The cart track became slushy and loaded lorries could  negotiate the cart track only with reduced loads;  it also  took  extra  time  for   each  trip.   This  increased enormously the cost of transportation.

   The  rainfall  being  unusually heavy for the  month  of June,  exceeded  all expectations of the claimants based  on@@        JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ which  the  protection  arrangements had been  formed.   The@@ JJJJJJJJJJ total  losses  caused by the extraordinary heavy  rains  and floods  amount  to  Rs.    12,80,262/-.   As  the  claimants incurred  these  losses due to no fault of theirs, they  are entitled to be reimbursed.

   Again  it is not clear whether the appellants had raised any  dispute  or  a  claim.   Moreover,  clause  42  of  the agreement reads as under :-

42.  FLOODS  :

   In  case of flash and untimely floods during the working season  i.e.   resulting in over topping of protective  work and flooding of the work area, the contractor shall make his own  arrangement  at  his  cost   to  shift  the   machinery equipment,  material  and labour to a safe place.  The  work shall  have  to  be  resumed after receding  of  floods  and necessary  strengthening  of protective work and  dewatering done  by the contractor at his cost.  Suitable extension  of time shall however be granted on such occasions for the loss of working at the request of the contractor.  The Department is  not liable for any loss or damage to the men, machinery, work  or  materials  on  account  of  these  floods  and  no compensation  whatsoever in this regard shall be paid to the contract.

   1.    The  silt,  debrice,   sand  and  other  materials accumulated  in  the  working area during  flash  floods  or regular  floods  in  the  monsoon shall be  removed  by  the contractor  as required for continuing the work at his cost, by  any chance, if any, excavated portion that could not  be filled  with concrete and masonary by the contractor, get  a filled up during the monsoon period with earth and silt, its removal  will  not be paid for again.  The  contractor  will have to re-excavate at his own cost.

   2.   It  shall  be  distinctly  understood  that  it  is entirely  the responsibility of the contractor to make  such arrangements as may be required from time to time to project the  men,  machinery, materials and the work under  progress and  the  work for which the measurements were recorded  and payment made, against damage either during working season or

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during the flood season and department accepts no liability, whatsoever  for  any  damage  or  loss  of  men,  materials, machinery  and  work or hindrance caused to the progress  of work  except as provided in clause under contractors  risk and Insurance as mentioned herein.

   In the event of such situation, as is pointed out, as to what  arrangement  the appellants had made and what are  the claims  in  regard to the same and they had not made such  a claim  before  the  department.    These  two  findings  are sufficient  for  rejecting the claim made by the  appellants and  the view taken by the High Court, therefore, is correct and calls for no interference.

   The appeals, therefore, stand dismissed.  However, there shall be no order as to costs.@@                      JJJJJJJJJ