IMPORTANT POINT
Surveyor’s report cannot be disbelieved and cannot be rejected without any forceful evidence on part of complainant.

Prem Narain, Presiding Member—This revision petition has been filed by the petitioner, National Insurance Company Ltd. against the impugned order dated 27.4.2016 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Jaipur (for short, ‘State Commission) in FA No.49 of 2016.

2. Brief facts of the case are that respondent/complainant had insured his petrol pump under the Policy No.371101/11/10/3100001134 issued by the petitioner/OP-National Insurance Company Ltd. and the insurance was valid from 20.3.2011 to 19.3.2012. The complainant’s case is that on 23.7.2011 at around 11-12 p.m., the goods train of 50-60 bogeys passed from the nearby track and he felt a sudden heavy jerk and heard a loud sound due to sudden and screeching halting of goods train. The petrol pump has underground tanks and is about 100 mtrs. away from the railway track. Particularly tank no.2 got damaged due to sudden impact of the stopping of the train. This was found when readings for the two days were compared that 15,529 litres of diesel has leaked inside the soil due to this heavy yank resulting in cracks and holes in the tank. The complainant filed an insurance claim before the petitioner insurance company which was repudiated vide letter dated 9.5.2012. Aggrieved with the repudiation, the complainant filed Consumer Complaint No.188/2013 before the District Forum, Churu. The complaint was resisted by the petitioner/OP on the ground that the loss of diesel is due to holes due to rusting of the tank as confirmed by the surveyor’s report. The District Forum, however, allowed the complaint and passed the following order:

“(a) The respondent is ordered to pay the amount of Rs.6,33,562/- which was estimated by the surveyor, to the complainant towards the loss of diesel which was caused due to the incident dated 23.7.2011 and in addition to this, respondent should pay simple interest on that amount at the rate of 9 percent annually after exact three months from the survey report dated 15.11.2011 i.e. date 14.2.2012 to the actual payment.

(b) The respondent is also ordered to pay Rs.5,000/- to the complainant towards the cost of complaint.”

3. Aggrieved with the aforesaid order, the petitioner /OP preferred First Appeal No.49/2016 before the State Commission which was dismissed vide its order dated 27.4.2016.

4. Hence, the revision petition.

5. Heard the learned counsel for both the parties and perused the record. The learned counsel for the petitioner stated that both the fora below have not gone into the details of the policy as the terms and conditions of the policy are binding on both the parties. As soon as the information was received by the insurance company, a surveyor was appointed in the matter. The surveyor has clearly submitted in his report that the damage in the diesel tank is due to rusting as the tank is about 20 years old and this damage/loss is not covered under the policy. The learned counsel further emphasized that no proof was ever filed by the complainant to prove that the damage was due to impact of the sudden stoppage of the train. First of all, it is not clear whether any goods train passed on that day or not and whether it had suddenly stopped or not. No letter or report of the Railway Authorities has been filed. In fact, before repudiation, the complainant was asked to submit certificate from the Railways in respect of the impact due to sudden stoppage of the goods train. However, the complainant never submitted the same. Accordingly, the matter was repudiated stating clearly that the certificate of Railways has not been filed and the surveyor has reported damage/loss due to rusting of the diesel tank. Moreover, the impact damage clause of the Fire and Special Peril Policy clearly states that the damage should be due to direct contact and in this case there was no direct contact of the train with the diesel tank of the complainant. Hence, the case is not covered under the impact damage clause of the policy. Th