JUSTICE A.P. SAHI, PRESIDENT IA/1108/2023 1. This revision petition has been filed with a reported delay of 1027 days by the Registry. This delay condonation application has been filed contending that the order impugned was passed on 11.04.2019, which was uploaded on 27.06.2019 and was received by the revisionist on 01.07.2019. 2. The explanation thereafter is that the revisionist approached Mr. G.G. Ray, a counsel in Kolkata with vast experience of consumer matters, who assured him that he would do the needful. Despite of a lapse of considerable time Mr. Ray could not draft the revision due to his poor eye health and therefore the revision petition could not be filed within time. 3. Paragraph 4 of the said application is interesting, which is reproduced herein under: “4. That despite a sufficient passage of time, Shri Gouranga Gupta Ray could not draft the present Revision Petition owing to his poor eye health within the limitation to file the same by 30.09.2019 and in the meantime by the month of March 2020 the entire world was gripped under the pandemic for which the present revision could not be filed by the Revisionist within its limitation despite all the possible efforts at its end and finally it came to be filed before this learned Court on 02.05.2022 after delay of 1027 days.” The said explanation conveniently skips over the period between 30.09.2019 and March 2020 and then a plea is taken of the delay on account of the Covid period and exemption is sought on the basis of the order passed by the Apex Court in the case of Suo Motu Writ Petition (Civil) No. 3 of 2020 in Re: Cognizance for Extension of Limitation, on the basis whereof it is claimed that the present revision petition has been filed within time upon exclusion of the said limitation period provided by the Apex Court. 4. It has to be noted that the revisionist is no ordinary person and appears to be a businessman dealing in automobile parts, spares, etc. The complaint was that due to heavy rainfall, where the premise was situate, water entered inside causing destruction. It is thus clear that the complainant is no ordinary layman and is running a substantial business in Siliguri. He was therefore under an obligation to explain the delay more appropriately as against any layman or a person from a rural area. There is no cogent explanation for the huge and inordinate delay and therefore delay nonetheless learned counsel was permitted to argue on merits. Revision Petition 5. Learned counsel for the revisionist urged that his case deserves to be considered on merits as there are substantial grounds for interfering with the impugned order. 6. The contention is that the findings of both the fora below that the complainant had failed to maintain his premises that there were cracks in it is an erroneous, in as much as, the cracks were already repaired and the water had overflown over and above the guard wall of 2’ 6’’ height. 7. It is urged that the loss suffered was on account of the heavy rainfall which was secured under a risk covered, but the Insurance Company unjustifiably resisted the claim and the District Commission as well as the State Commission have committed an error in rejecting the claim which amounts to a patent illegality and hence the revision should be entertained. 8. Having considered the submissions raised, the findings recorded by the District Commission on this issue are as follows: “Admitted fact is that on 16-07-2012 complainant intimated about the fact to the OP1 and also reported that they suffered loss Rs. 15,00,000/ approximately. At the same time it is undisputed fact that on receipt of said intimation Sri S.N. Mittra was appointed by the OP1 as Surveyor to survey and to assess the loss and complainant also filed a claim form raising a total claim of Rs. 14,82,333.40 No doubt surveyor submitted his report on 22-09-2012 after local inspection and assessing the value of damaged stock and other matter. At the time of inspection Surveyor that considering the total area and height of the Diamond Plaza building etc. is 2'6" and on the date actually from the evening of 15-07-2012 and up to 9.00 am of 16-07-2012 incessant rainfall all over Siliguri caused water-logging in few areas but the Surveyor went to the Diamond Plaza building where the shop of the complainant is situated and found there are marks of water-logging in the passage of the guard wall of Daga Auto Distributors and on the boundary wall of the Diamond Plaza Building at a height varying between 1'4" and 2'2". Surveyor also found that the maximum height of logged water was 2'2" in the rear side of the passage where the passage slopped further downwards. Surveyor also marked the slight water-logging inside the shop-cum-godown of the insured at Diamond Plaza and after checking it was found that logged water rose up to height of only 2" and on enquiry it was revealed that there was no water-logging on the main Sevoke Road in front of Diamond Plaza as the level of such passage was lower than the main road level and definitely the rain water sloped downwards and logged on the passage of the building which was down than the front road level but it was found by the surveyor that guard walls are of height of 2'6", then under any circumstances, the outside logged water cannot enter into the insured shop-cum-godown of the complainant when water level on the down passage rose up to height of 2'2" and there was no question of reaching the said water at a height of 2'6". Further it was learnt from the complainant and their employees that severe earthquake held in Siliguri during September, 2011, which completely affected the Diamond Plaza building when cracks developed in the walls and floors, plinth and it was found that insured repaired such cracks as far as visible but many cracks were found there still exists in the shop-cum-godown but even then the articles were kept in the godown that means even after damage of the said godown due to earthquake in the month of September, 2011 complainant did not take any step to repair the said floor to remove the cracks so that any water may anyway caused seepage and entered into the godown. At the same time during inspection it was found that the godown was not properly maintained and after considering entire matter surveyors came to a conclusion that the cause of water-logging inside the shop-cum- godown of the complainant was not caused due to outside inundation on 15/16th July, 2012 but it was caused due to seepage of subsoil water through the latent cracks in the ground/plinth and leakage of rainwater through cracks in the wall and all developed after earthquake in September, 2011 and had the outside logged water would have actually entered the insured's shop-cum-godown overflowing above the entrance guard walls then the water logging inside the insured's shop-cum-godown would have been 2'6" at the minimum because the floor levels of the insured's shop-cum-godown was almost at par the outside passage levels but it was below the guard wall so the surveyor came to a conclusion due to seepage of subsoil through the latent cracks in the ground/plinth and leakage of rainwater through the cracks in the walls and all developed during earthquake in September, 2011 and so, caused such damage of articles. But complainant was not satisfied about that report so, he himself subsequently engaged his surveyor and submitted a claim. Subsequently, surveyor's report was sent to the complainant and asked the complainant to submit his comments if any. Moreover on receipt of the letter dated 08-11-2012 of the complainant, insurance company was confirmed that the insured stated the cause of loss for the above mentioned claim was due to inundation from the cracked boundary walls of the Diamond Plaza Building and of seepage of subsoil water and insured themselves admitted that the cause of rain water inside their shop- room was due to poor structure of the premises but not for outside inundation so, the loss was not covered under AOG perils of the policy. So, considering the report of the surveyor admitted position is that cracks on the wall and plinth and the floor due to earthquake is undisputed. Not only that complainant also admitted the fact that through that leakage water entered into the shop-room and that cracks were developed due to earthquake but it was not damaged due to because guard wall is at the height inundation of 2'6" whereas water level was at low level of 2'2" and in fact no inundated water entered into Diamond Plaza building but only this complainant filed this complaint claiming false claim that due to inundation water entered into the said shop-room and it is proved in view of the fact that complainant and their employees admitted that water entered into the shop-room through cracks of the floor and in fact, as per provision of policy condition it is the duty of the insured to keep the godown always safe and protected from any entry of water from outside that means complainant did not keep the said shop-room safely to guard and protect his goods which are kept and in respect of which the policy was purchased. But it is mandatory provision of law as per policy condition insured is bound to keep such protection always but when it is admitted fact that the said shop-room was damaged due to earthquake then it is the duty of the complainant to make the shop room repaired to protect from any seepage or entry of outside water through cracks of the floor or guard wall or the walls of the room. But all sorts of cracks was found by the surveyor and that was not denied and it is admitted by the complainant and their staff also that the said cracks was caused due to earthquake that means after earthquake that rooms were not repaired properly to protect the goods in the said godown. On the other hand complainant admitted by their letter dated 08-11-2012 that insured admitted that the outside logged water did not enter in 15/16th July, 2012 but the water logging was due to entry of water through cracks developed in the wall during earthquake. So, it is proved that the cause of logged water inside the shop room was not for inundation of outside but for poor structure of the premises so during rainfall water entered through the cracks. So, considering that fact we have gathered that as per terms and condition of the policy the complainant is not entitled to any benefit of the claim amount and no doubt under such circumstances, after considering the policy conditions and also fort not causing damage due to inundations the said claim was rightly repudiated by the OPs.” 9. The said finding is based on cogent evidence and after full discussion demonstrating that the premises was ill maintained and was full of cracks, which finding has been affirmed by the State Commission in the following terms: “Since the Building's having a structural instability was confessed to by the Appellant/Complainant himself, we had reasons to believe that seepage of water through ground plinth and cracked wall of the boundary might be the cause of inundation of the floor of the subject shop cum godown. Our apprehension was strengthened by the reasoned explanation of the surveyor while observing that the Respondent/OP Company did not have any liability for the damage of the stored articles for so called inundation. We do not deny the fact that the spot enquiry has been conducted by the surveyor 5 days after the happening of the incident but, we cannot deny the fact that in such cases, it is the normal practice that the mark left at the highest point on the wall by water before receding is taken to consider maximum height of the accumulation water. The report indicated that the maximum height of the accumulated water surrounding the subject building did not exceed the height of 2' 2". The said water, therefore, hardly had any capability to inundate the subject shop cum godown over- flowing the guard wall of 2' 6" height surrounding the said godown.” 10. It is evident from the facts that were collected during the investigation that the claim of the petitioner about the flood water having inundated the premises by overflowing above the boundary wall is found to be incorrect, in as much as, the mark of water logging, which was observed at the time of survey after four\ five days of the incident indicated that the water had overflown at the level varying between 1’4” and 2’2”, whereas the Diamond Plaza building was at a height of 2’6”. It was also found that the passage and the entry also reflects the fact that the flooding water passed down the lane on a slope and consequently, the water could have passed inside the premises only through cracks of the boundary walls. The other findings noticed by the surveyor were that the godown had not been kept in good shape after having suffered cracks in the earthquake of 2011, which was subsisting at several places, even though some of it had been repaired. The water therefore seeped into the shop room on account of this ill maintained structure and the flooding was not on account of any external inundation. It was also found that the seepage was also internal on account of the weak stature of the building as they were not repaired properly. 11. The aforesaid observations of the surveyor were dealt with in detail by the District Commission as highlighted hereinabove and the said observations and findings have been confirmed by the State Commission after examining the same. It is thus evident that an assessment with regard to the cause of water entering into the premises has been found to be weak structure of the building, which was ill maintained and was in breach of the terms of the policy, where the owner was obliged to keep the godown well maintained and in good shape. Consequently, the observations made cannot be faulted with and there is no substantial material available to contradict the said observations. 12. The aforesaid finding of facts being based on full description of the evidence which does not suffer from either any infirmity, irregularity or perversity does not extend to any illegality, consequently, the revision fails and is hereby dismissed. | 
