Delay condoned. We have heard learned Counsel for the appellant and have perused the impugned order rendered by the State Commission, Maharashtra in Consumer Complaint No.96/2006. The Counsel for the appellant submits that the State Commission erroneously appreciated the fact situation and there was no justification to reject the report of the surveyor. He contended that the surveyor categorically gave finding that the petrol tank and diesel tank were not filled up with water in spite of inundation and contained the stock of petrol and diesel. The learned Counsel, therefore, submits that the loss of the petrol and diesel is not at all proved. He would submit that the State Commission should have believed the report of the surveyor. There is no dispute about the fact that the respondent had obtained Standard Fire and Special Perils Policy from the appellant. The policy period was between 12.1.2005 to 11.12006. The policy covered damage to the petrol pump inclusive of the building, plant/machinery and accessories, furniture, fixtures and fittings, stock of petrol and diesel lubricant and oil. The amount insured was Rs.17 lakhs in the stocks and total amount covered by the Insurance Co. was Rs.28,44,700/-. It is not in dispute that on 27.7.2005, there was flood due to heavy rains in the area. There is also no dispute about the fact that the petrol pump of the respondent had submerged in water for about 10 days. The water level was approx. 5 to 6 ft. above the ground level in the area where the petrol pump is situated. The case of the respondent was that due to the inundation in water the stock of petrol and diesel was lost besides the loss of barrels of lubricants, furniture, etc. Therefore, the respondent had put forth claim for Rs.21,87,990/-. A part of the claim was accepted by the appellant and part of the claim was repudiated on the ground that the water did not enter the petrol tank and the diesel tank which were underneath the level of the petrol pump and were duly sealed, with no possibility of entry of water in the said tanks. The State Commission did not accept such contention of the appellant and held that the storage tank of the oil and the lubricant barrels were also affected and damaged due to the water logging. Hence, the complaint was partly allowed. Upon hearing, learned Counsel for the appellant and on going through the report of surveyor, Mr. A.T. Kulkarni, it is amply clear that the surveyor did not collect samples of the contents of the petrol and diesel tanks. The survey report shows that he had placed stick in the said tanks and found that the tanks were not filled up with floodwater. The measuring stick was placed inside the tanks and a video shooting was allegedly taken. By mere placing of a measuring stick inside the tanks, ordinarily, it could not have been discovered as to whether the water was mixed up with the petrol or tanks were filled up with petrol and diesel, respectively. It is worthy to be noted that a day earlier, the representative of the Hindustan Petroleum visited the petrol pump. The representative of the oil company clarified that he had visited the insured petrol pump on 9.8.2005. He stated on oath that he carried out the inspection and found that petrol tanks were full with water and no product could be found after taking the dips. He had visited the insured petrol pump on 10th and 15th August, 2005. He noticed that the petrol pump had been engulfed in the floodwater. During the visits, the Surveyor noticed that residual stagnated water was still around the petrol pump. He claimed to have opened the deep stick holes of the underground storage tanks for the petrol and diesel by opening the lids and further claimed that he found that the tanks were not filled up with floodwater. His affidavit is not accepted by the State Commission for the reason that the representative of Hindustan Petroleum had personally verified the situation on 9.8.2005 much prior to the visit of the surveyor. The report of the surveyor and his affidavit do not specify as to on what date the measuring stick was placed inside the petrol tank and the diesel tank. His affidavit does not show that on 10.8.2005 such process was adopted. On the contrary, it appears that he did not verify the fact situation because of stagnation of water and because total height of the floodwater inside the petrol pump was 5 ft. Under these circumstances, the State Commission appears to have accepted the version of Mr. Ashishkumar S. Gaikwad who is the representative of the Hindustan Petroleum Corporation Ltd. in preference to the surveyor appointed by the appellant. It also appears that the affidavits of one Jaffer Imam Ihalkaranje who are the traders of the same vicinity were given by the complainant in support of his case. Considering the relevant material placed on record, the State Commission appears to have duly appreciated the evidence of the parties. There appears no substantial error committed by the State Commission while appreciating the facts and evidence placed on record. The Appellate Court will not ordinarily interfere with the order of the State Commission only because some other view is possible. There appears no justification to replace some other view merely on the basis of the surveyor report, which is rather unacceptable in view of the reasons ascribed by the State Commission. Taking overall view of the matter, we are of the opinion that there is no substance in the appeal. Hence, it is dismissed in limine with no order as to cost. |