1. The Insurance Co. has filed this Revision Petition questioning the correctness of the order of the District Commission dated 24.06.2013 as modified by the order of the State Commission dated 05.04.2016 regarding the insurance claim of a heavy commercial vehicle owned by the contesting Respondent and insured with the Petitioner.
2. The outline facts are that the Respondent/Complainant purchased a Caterpillar Excavator in the year 2009 that was insured with the Petitioner company for its declared value of Rs.46,55,000/-. The Insurance cover was valid for the period 07.08.2009 to 16.08.2010. it is alleged by the Complainant that while the said caterpillar was in use on 27.06.2010 at an excavating site at Limkheda at the Hadaf river site in Gujarat, a sudden gush of water about 5 feet height rose from the river, and the flow submerged the vehicle. The driver and the workers who were present at the site tried to recover the vehicle but as the water level increased to almost 5 feet, the same could not be pulled out and was damaged.
3. The Insurance Co. appointed a surveyor who submitted a report. The claim was repudiated for the grounds mentioned in the said letter dated 25.10.2010.
4. Aggrieved CC/212/2011 was filed by the Complainant-Respondent No.1 that was converted into new Complaint No. 208 of 2012. It was allowed by the District Commission on 24.06.2013 awarding a sum of Rs.11,41,123/-  along with 9% interest from the date of application and Rs.7,000/- as compensation to the Complainant.
5. Aggrieved the Insurance Co. filed Appeal No.1609/2013 before the State Commission at Ahmedabad Gujarat that was partly allowed by modifying the order of the District Commission and reducing the damages to the tune of Rs. 7,09,931/-. Aggrieved by both the orders, the present Revision has been filed by the Insurance Co. where an interim order was passed on 06.12.2016 extracted hereinunder:-

“Dated:06.12.2016

ORDER

Heard

          Issue notice of the revision petition to the respondent, returnable on 09.05.2017.

          In the meanwhile, operation of the impugned order passed by the State Commission shall remain stayed till the next date of hearing, subject to petitioner depositing 50% of the awarded amount along with upto date interest with the District Forum concerned within a period of four weeks, if not already deposited.

          On receipt of the amount District Forum shall put the same in a Nationalized Bank in a Fixed Deposit initially for a period of one year and will be renewed from time to time until the matter is finally disposed of.

          In case, petitioner fails to comply with above directions within the prescribed period, then the stay granted today shall stand vacated, automatically without any further order.

          I.A. No. 9923 of 2016 for stay stands disposed of accordingly.”

6. The delay in the filing of the Revision Petition was condoned on 10.09.2018 with an imposition of Rs.20,000/- as cost to be paid to the Consumer Legal Aid Account. The matter seems to have remained pending during the Covid period and was adjourned on one ground or the other.
7.  The original Petitioner M/s Bharti Axa General Insurance Co. Ltd. has been taken over by the ICICI Lombard Insurance Co. and accordingly a revised/amended memo of parties was filed online. The same is accepted and the office is directed to correct the array of parties accordingly.
8. Mr. Navneet Kumar has advanced his submissions on behalf of the Insurance Co. and Mr. Pancholi has appeared for the contesting Respondent who has also been heard at length.
9. Learned Counsel for the Petitioner has urged that the complaint before the District Commission did not raise any objections to the grounds of repudiation contained in the repudiation letter dated 25.10.2010. Since the complaint is silent on that score therefore there was no reason for the District Commission or the State Commission to have allowed the complaint.
10. He further submits that the conditions of the policy particularly the exclusion contained in clause 2(a) regarding consequential losses and condition no.4 of the Motor Policy, that requires reasonable steps for safeguarding the insured vehicle, have been breached and therefore the complaint could not have been allowed. 
11. He then contends that the surveyor report categorically speaks about Hydrostatic lock having impacted the engine which was solely on account of the default of the Complainant hence the claim was not admissible. This technical aspect of the matter stood proved by the surveyor's report who himself was an engineer and no evidence to the contrary or any pleading was raised to contradict the said conclusion. In such circumstances, the cause of loss was clearly attributable to the Complainant. To substantiate this submission, learned Counsel invited the attention of the Bench to paragraph 4 of the Complaint to urge that it was the Complainant's driver/operator who had erroneously against the precautionary conditions specified in the working manual attempted to restart and crank the engine that had been flooded with water and mud and as such this faulty attempt resulted in damage to the pistons, connecting rods, and other internal parts of the engine. 
12. The contention is that this covert act of attempting to restart the engine, upon being submerged in water, was a major fault committed by the Complainant or his driver causing damage to the internal parts of the engine, and this being a consequential loss and also a breach of the conditions of the policy for not taking due care and operating the vehicle against the working manual, completely disentitled the Complainant from seeking any damage or claim from the Insurance Co. against the risk covered under the policy.
13. He then very ably explained the cause of Hydrostatic loss with the aid of the surveyor’s report and the interrogatories answered by him and also relied on the report of the company that undertook the repairs dated 07.10.2010. Mr. Navneet Kumar supported his arguments by also referring to the evidence led by the Complainant through their engineer Mr. Brahm Prakash Bhawani Singh Yadav to contend that the Statement of the Complainant’s witness also corroborates the fact that the vehicle was attempted to be restarted and pulled out from the river bed which circumstance also lends support to the breach committed by the Complainant.
14. He then points out that invariably all Insurance Companies generally do issue Insurance Covers separately for all losses, and particularly the Petitioner Company has an add on cover for the risk of Hydrostatic Lock. He submits that this cover had not been taken by the Respondent/Complainant and to fortify his contention he has also relied on an RTI reply dated 22.10.2013 urging that since this add on coverage was not there in the policy the Complainant it could not have claimed any indemnity on that count and therefore the repudiation is valid.
15. Mr. Navneet Kumar extensively read the surveyor’s report dated 26.10.2010 to point out that this report remains unchallenged which is the foundation of the contention raised by the Insurance Co. and was also pleaded in the written version before the District Commission as well as the State Commission. In spite of these issues having been raised the District Commission as well as the State Commission have erroneously concluded that the claim was indemnifiable as the loss had occurred on account of inundation by water which is covered under the policy.
16. Mr. Pancholi, learned Counsel for the Respondent/Complainant vehemently argued that the entire theory of the damage caused by Hydrostatic Lock is a creation of the Insurance Co. which is nowhere reflected in the repudiation letter dated 25.10.2010. He also points out that it is strange that the repudiation letter had emanated one day before the final survey report which is dated 26.10.2010. The contention therefore is that the document of the final survey report seems to have been prepared later on to create the story of Hydrostatic loss.
17. He submits that the argument raised by Mr. Navneet Kumar regarding Hydrostatic loss being a separate add on cover, on the basis of sample policies, is an evidence which has been filed before this Commission and was not part of the evidence before the District Commission. He submits that even otherwise it could not have been part of it inasmuch as the sample policy is of 2016-17 and even the RTI reply was obtained by someone in 2013. The complaint was filed in 2011 and was decided in 2013. The said evidence therefore cannot be read in support of the Revision Petition.
18. He further submits that the affidavit of the surveyor is contrary to the record and no evidence at all was led to establish the contention that it was the fault of the Complainant’s driver who attempted to restart the engine while the machine was submerged in water. It is urged that this fact has been categorically discussed by the District Commission and again by the State Commission to hold that there was lack of evidence to support the allegation of attributing an operational fault on the Complainant. He therefore submits that the impugned orders do not require any interference and the Revision Petition deserves to be dismissed.
19. Having considered the submissions raised and having also perused the written submissions filed on behalf of both the parties, it would be apt to commence with the letter of repudiation dated 25.10.2010. The same is extracted hereinunder:

“Date: 25/10/2010

To,

M/s Corrtech International P Ltd

51, Maha Gujarat Industrial Estate,

Near Nova Petro Chem, changodar,

Ahmedabad-382213

Gujarat

Dear Sir,

Ref: Claim no. C0038920 under Policy no. 10074541

Sub: Repudiation of claim Catterpillar Machine Chs No. CAT0320DHFAL01983

We refer our earlier letter dated 08.09.10 in connection with the above claim and regret our inability to admit it for consideration since it falls outside the purview of the coverage intended under the policy.

We would like to bring to your kind notice the following:

The loss purportedly occurred due to water ingress into engine assembly. We submit that merely traversing through stagnant water and leaving the vehicle immersed in water or cranking it once inadvertently could not result in such damage.

Under such circumstances, there is no disputing the fact that the duty of ordinary care expected of the insured has been breached by keeping the engine of Machine in running condition in the water logged situation. Water ingress into the engine and further damage to the internal components is solely attributable to the failure on the part of the driver to exercise ordinary prudence as expected of every insured.

In this connection, we refer you to condition 4 of Motor policy which clearly sets out the duties of the insured as under:

'The Insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the Insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the Insured's own risk.’

In the light of the above we regret our inability to consider your claim and look at this as an opportunity lost to serve you.

The repudiation of the claim has been done keeping in view the available facts & policy terms and conditions.

You may represent your case, if you have any additional facts in support of admissibility of claim either to us directly or our Grievance Cell located at our corporate office.

In unlikely event if we are unable to redress your grievance, you may approach the Insurance Ombudsman for the redressal for the same.

Thanking you,

Yours truly,

For Bharti AXA General Insurance Co. Ltd.

Sd/-

Area Manager Claims”

20. A perusal thereof demonstrates that it records the cause of loss “purportedly” on account of water ingress into the engine assembly. The word “purportedly” ordinarily means intending or implying to convey something which seems perplexing or puzzling. It then goes on to record that merely because the vehicle had traversed through stagnant water and lay immersed, even cranking it once inadvertently could not result in such damage.
21. Thus, the repudiation narrates that the movement of the machine through stagnant water or simply lying immersed in water by even cranking it once could not be the cause of loss. This seems to have been mentioned as a cause to keep the claim outside the risk cover under the policy where under Section 1- loss of or damage to the vehicle insured (1) (v) covers the loss by “flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost”. Thus, the said coverage of loss by flood or by inundation that is guaranteed to be indemnified, was presumably sought to be excluded on the one hand and on the other also conveys that if it is attempted to be cranked once for restart, there is no possibility of a damage.
22. The repudiation in the second part of the letter states that the Complainant had breached the condition by not taking due ordinary care expected of the insured as the engine of the machine was kept in a running condition in a water-logged situation. The water ingress into the engine and further damage to the internal components was attributable to the failure on the part of the driver to exercise ordinary prudence. The aforesaid reason given in the repudiation letter seems to create an impression as if the Complainants driver had deliberately kept the engine of the machine running in spite of water logging. There is absolutely no evidence to demonstrate any such deliberate attempt as alleged in the letter of repudiation. For this one has to turn to the allegations recited in the complaint Reference be had to paragraph 3 and 4 of the complaint that are extracted hereinunder:

“3. On 27.06.2010 at 11-30 this vehicle was in use at the site at Limkehda. At that place, a little away from this commercial vehicle, the wall that was build for the purpose of stopping the vehicle suddenly broke and the water gushed towards the commercial vehicle (machine) of the complainant. The driver Babubhai Bhalabhai Pateliya was working on the vehicle and along with him were some other persons working. Viewing the water gushing towards them, these people were frightened, tried to take out the vehicle but in vain. The level of the water suddenly rose and these people left the vehicle in as it is situation in order to save their own lives.

4. This vehicle drowned entirely in the water of Hadaf river. The water level got down after 4-5 hours after a lot of efforts, the vehicle stopped working as it got submerged in water for 4-5 hours and it did not start again.”

23. The said narrative clearly states that a parapet/wall built to protect inundation broke and the water gushed towards the vehicle. The driver and the other workers who were working on the vehicle attempted to take out the vehicle but in vain but since the level of the water suddenly rose, they withdrew as it was a life threatening situation. Thus, this allegation in the complaint even though denied in paragraph 11 of the written version could not be successfully dislodged as the surveyor’s report records the same under Clause7 which is extracted hereinunder:-

"7. NATURE & CAUSE OF ACCIDENT:

The said machine was working on the site near river bed. All of a sudden, rains started and the water got accumulated. The man at the site tried to pull the machine from the river bed but suddenly the chain slipped and the said machine could not be pulled out. All of a sudden the water level increased and the machine got dipped in the water and remained dipped in the water for about 5 to 6 hours.”

24. Thus, the nature and the cause of the incident/accident as alleged by the complainant stood corroborated by the surveyor’s report extracted hereinabove. There was no deliberate act on the part of the driver which could be remotely termed as a negligent act on his part or any imprudent move undertaken by him. The attempt to pull out the excavator was clearly before it was submerged and could not be driven out as its chain had slipped. It is thereafter that the vehicle was abandoned when the water gushed in. The machine was left behind but there is no evidence that it remained in a running state when it was submerged nor was the driver operating it upon its drowning.
25. Thus, the second reason of water entering into the engine on account of any carelessness on the part of the driver is sheer imagination and does not deserve to be accepted. The contention of Mr. Navneet Kumar that there is no challenge raised to these findings is an incorrect argument inasmuch as it is settled that a surveyor’s report cannot be ignored even though the Insurance Co. is entitled to form its independent opinion provided, there is any evidence to support the same. In the present case there is nothing on record to dislodge the nature and the cause of the accident that damaged the vehicle.
26. There is something very peculiar and needs to be mentioned. The surveyor’s report is dated 26.10.2010 and is one day after the letter of repudiation. Learned Counsel for the Insurance Co. urged that this was a typographical error but he has been unable to explain the error of the date occurring as to in which of the two documents, that is whether in the letter of repudiation or in the surveyor’s report.
27. Coming to the observations of the surveyor, who is stated to be an engineer himself, it is recited that the engine assembly was found to be “Hydaullically” locked. The conclusion drawn is further sought to be corroborated with the opinion of the engineer of the repairer that the piston broke and the connecting roads bent due to the starting of the engine in the said submerged condition. It is this which is the main bone of contention, inasmuch as, there is no evidence to indicate that the engine was restarted after the water had receded or even during the machine being submerged under water. The presumption drawn in the report is that the piston and the connecting roads could not have been damaged internally unless the engine had been started prior to its being dismantled or opened for removing the water and the oil. This assumption seems to be as if the driver had attempted to run the engine in spite of the machine having been impacted by the water. There is no evidence to this effect and to the contrary the probability as stands narrated in the complainant, and also by the surveyor that while the machine was in use the water suddenly rushed in and flooded the machine inundating the area where the machine was located which might have caused the entry of water into the engine while the machine was in use. Consequently, the conclusion drawn about the driver being careless or negligent on the strength of the surveyor’s report which arrived one day later than the letter of repudiation cannot be given credit as pleaded by the Insurance Co. To the contrary, the incident narrated by the surveyor as quoted above lends support to the complainant’s claim. The stand of the Insurance Co. seems to be an attempt to somehow the other put the blame on the Complainant or the driver for having invited the damage which does not stand proved by any evidence.
28. Thus, the contention of the Insurance Co. taken before the District Commission about Hydrostatic locking being caused by the default of the driver is not proved at all. Hydrostatic locking is a mechanical failure caused by a force applied to an imprisoned body of liquid to balance another force. It is a product of a science concerning the equilibrium of fluids and their pressure when they are at rest. A small force applied in a hydrostatic manner is made to exert a much greater force and is based on the principles of a science that deals with the pressure and equilibrium of fluids at rest. There is no technical report other than the observations of the surveyor to confirm the loss being caused due to this mechanical failure. Nonetheless, the failure cannot be attributed because of the alleged negligence or lapse of the driver as there was no proof or evidence that the driver had operated the machine when it was submerged or even after the water had receded. As noted above, the surveyor himself has indicated about the machine being sought to be rescued before the machine got submerged and it could not be done because the chain of the vehicle had slipped. In the absence of any fault or lapse in taking precaution by the driver, there is nothing to connect the allegation of Hydrostatic locking with any omission or commission of negligence by the driver.
29. What is more interesting is that the letter of repudiation extracted hereinabove nowhere mentions Hydrostatic lock being the cause of damage. It is well settled by now that the Insurance Co. cannot travel beyond the reasons stated in the letter of repudiation as held by the Apex Court in the case of Galada Power & Telecommunication Ltd. v. United India Insurance Co. Ltd., (2016) 14 SCC 161.and followed later on in the case of Saurashtra Chemicals Limited Vs. National Insurance Company Limited, (2019) 19 SCC 7. Consequently, for both the reasons as recorded hereinabove, the defense taken by the Insurance Co. is untenable. The probable reason for the repudiation letter not citing the same could be because of the fact that the survey report is dated one day later to the letter of repudiation. The subsequent arrival of the report after the repudiation in all probability may be the reason for the same.  
30. The argument supplemented about hydrostatic lock being an add on cover is neither here nor there and no such evidence was either led or pleaded before the District Commission. Consequently, the said argument cannot be  appreciated for the first time in a Revision Petition.
31. Coming to the affidavit of the surveyor while answering question no.2, the surveyor has stated that no written evidence was required as the damage speaks for itself. The said answer of the surveyor is more diplomatic than exact and as a matter of fact it avoids to answer the question.
32. The contention of the Insurance Co. that this was a consequential loss and therefore excluded is against the weight of evidence of record inasmuch as the loss was due to the flooding of water and the inundation in which the machine got submerged for 4 to 5 hours. This was not consequential and was a direct loss caused by flooding which is also evident from the findings recorded by the District Commission as well as by the State Commission on the basis of whatever material was placed on record.
33. For all the reasons given hereinabove, we find no infirmity in the orders passed by the Fora below and no ground much less a material irregularity has been pointed out for any interference in the exercise of revisional jurisdiction of this Commission. The Revision lacks merit and accordingly rejected.