Kerala

Idukki

CC/202/2018

Surendharn - Complainant(s)

Versus

Divisional Manager - Opp.Party(s)

30 Sep 2020

ORDER

DATE OF FILING : 22/11/2018

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 30^th day of September 2020

Present :

SMT.ASAMOL P. PRESIDENT-IN-CHARGE

SRI.AMPADY K.S. MEMBER

CC NO.202/2018

Between

Complainant : M.K.Surendran, S/o Kuttappan,

Molathu puthenpura House,

14^th Mile, Valara P.O., Mannakkandam Village,

Devikulam Taluk, Idukki District – 685 561.

(By Adv: Padayattee Eldo)

And

Opposite Party : 1 . The Divisional Manager,

National Insurance Company Limited,

Vellington Island, Kochi- Kerala.

(By Adv: K.Pradeep Kumar)

2 . Bindhu Sasikumar,

Deputy Manager,

V.F.P.C.K. Training Centre,

Adimaly P.O., Idukki District.

Pin – 685 561.

(By Adv: Shiji Joseph)

 

O R D E R

SRI. AMPADY K.S. (MEMBER)

 

Allegations of the complainant are as follows:-

 

Complainant took property situated in ward 18 of Adimali Grama Panchayath on lease and cultivated 420 numbers of banana plants. Out of this 400 numbers of plants were insured with first opposite party and paid the premium.

 

While so, due to flood and storm happened in June-July 2018 period, 210 numbers of plants were fell down and he immediately informed this in the office of first opposite party. Within 1 week, the second opposite party visited the property to ascertain the loss occurred to the cultivation. She told that

 

(Cont....2)

-2-

instead of 210 numbers of lost banana plants, she shall report loss of 300 numbers plantains for which she requested Rs.3000/-. He was under mental pressure due to the loss occurred to his cultivation and house during calamity, he had not paid the above amount. Hence the second opposite party reported loss of 92 numbers of plantains instead of actual loss of 210 numbers. As per her report, Rs.8000/- only was sanctioned by the first opposite party and this was known at the time when he approached the first opposite party to receive the amount. Since the amount sanctioned was too low, he refused to receive this.

 

Insured amount is Rs.100/- per plant. So, he is entitled to get Rs.21,000/-. So, he had not received the allowed amount. Hence he prayed for allowing insurance amount for eligible 210 numbers of banana plants and to take action against the second opposite party for demanding bribe.

 

Both opposite parties filed written version. Contentions of the first opposite party are as under.

 

All the allegations in the complaint except those which are specifically admitted hereunder are denied.

 

The complaint is not maintainable. Complainant has no cause of action against this opposite party. It is submitted that there is no deficiency of service of this opposite party to attract the jurisdiction of this Hon'ble Commission.

 

This opposite party had an insurance contract with the Vegetable and Fruit Promotion Council Keralam for insuring certain participating farmers of the above counsel for the period 15/05/2017 to 31/03/2018. True copy of the agreement is filed herewith may be marked as Exhibit R1.

 

This opposite party denies the averment that 210 insured banana plants of the complainant were damaged due to flood and wind. It is a highly exaggerated baseless statement. As per the claim form signed and submitted by the complainant, damaged plants were only 95. The said assessment of loss was verified and confirmed by the officials of the Vegetable and Fruit Promotion Council Keralam. As per the contract of insurance, complainant is entitled to get the insured amount less value of debris. Accordingly after

(Cont....3)

-3-

deducting the price of debris this opposite party offered to pay Rs.8,000/-. Which is the amount entitled by the complainant as per the contract?

 

It is reliably understood that the allegations of demand of bribe against the second opposite party is made only for the purpose of the claim.

 

It is humbly prayed that the complaint may be dismissed with costs.

 

The second opposite party's contentions are in the following lines.

 

All the averments and allegations in the complaint, except those that are specifically admitted or otherwise dealt with here under are denied as false frivolous and vexatious.

 

The complaint is not maintainable either in law or on facts of the complaint.

 

The complainant is not a consumer of the second opposite party. The second opposite party, as part of her duty inspected the property of the complainant and gave a report regarding the loss of the banana plants. The complainant has not paid no consideration or other remuneration for the services rendered by the second opposite party. Hence the complaint is not maintainable against the second opposite party.

 

All the averments in para 1 of the complaint are not disputed.

 

All the averments in para 2 of the complaint are not true hence denied. It is true that the complainant reported loss of his 200 numbers of banana plants on 14/06/2018 due to storm. On 20/06/2018, the second opposite party, as part of her duty, visited his plantation and found that only 95 banana plants were lost in the storm. All the lost crops were counted in the presence of the complainant and 5 numbers of photographs were also taken. The complainant has stated that only 200 plants were lost and the second opposite party cannot go beyond that. Another thing is that, if the loss of plants is 300 or above, it is to be verified by the insurance officer and not by the second opposite party. Thirdly, the insurance company has every right to verify the inspection report submitted by the second opposite party and on verification,

(Cont....4)

-4-

if is is found that, the second opposite party did anything illegally, the second opposite party could be prosecuted for cheating and also under the provisions of Prevention of Corruption Act. Hence entire allegation is made for tarnishing the morale of the second opposite party.

 

All the averments in para 3 of the complaint are not true hence denied. The complainant in the claim form has submitted that he had lost only 200 numbers of banana plants and not 210 numbers. In April 2015, the complainant had submitted the claim for 40 plants and he has received Rs.2140/- as compensation. The averment in the complaint that only when the compensation received, the complainant came to know that only Rs.8000/- was allowed damage is false. On the date of inspection itself, the complainant has signed in the inspection form. In the inspection the number of plants lost were only 95 and he received Rs.8,470/- as compensation.

 

The complainant by filing this complaint misused the provisions of Consumer Protection Act. Hence the complaint is liable to be dismissed with compensatory cost of Rs.10000/- and may award the same to the second opposite party.

 

Hence it is respectfully prayed that this Hon'ble Forum may be pleased to dismiss the case against the second opposite party.

 

Complainant filed proof affidavit. Complainant and 3 witnesses were examined as PW1 to PW4 on the complainant's side and marked following documents as Ext.P1 to P4.

 

1 . Ext.P1 (a) & (b) - Photograph of the property.

2 . Ext.P2 – Certificate dated17/12/2018 issued by Agricultural Officer, Adimali stating that complainant cultivated banana plants in 1 acre land and that no benefits were given from the Krishi Bhavan.

3 . Ext.P3 – Copy of complaint dated 05/11/2018 given by complainant to Hon'ble Minister for Agriculture.

4 . Ext.P4 – Reply dated 29/11/2018 given to the complainant from Minister's office stating that above complaint forwarded to Principal Agriculture Officer, Idukki for conducting enquiry and necessary action.

 

(Cont....5)

-5-

The first opposite party produced following documents and marked as Ext.R1, R2 and R3.

 

1 . Ext.R1 – Photocopy of claim and verification report dated 20/06/2018.

2 . Ext.R2 – Photocopy of voucher No. Nil dated Nil showing the amount of Rs.8470/- towards claim settlement. (Revenue stamp and signature of complainant not affixed).

3 . Ext.R3 – Master agreement 15/05/2017 between the first opposite party and Vegetable and Fruit Promotion Council Keralam (VFPCK).

 

No witness from the side of opposite parties was examined. Complainant filed argument notes.

 

Heard both sides.

 

We have examined the contentions, evidences, depositions from the side of complainant. On a perusal of above, following points arise for consideration.

 

1 . Whether complaint is maintainable before this Commission?

2 . Whether the complainant is entitled to claim the amount of Rs.21,000/- (Twenty one Thousand only) towards loss of banana plants.

 

Point No.1

 

Contentions of opposite parties regarding maintainability of complaint are not sustainable. Complainant had remitted premium for the insurance taken through second opposite party which is not disputed by the opposite parties. Definitely complainant fulfills the definition of “Consumer” and it is a consumer dispute. So the complaint is maintainable in law. Hence point No.1 is decided against the opposite parties.

 

Point No.2

 

Complainant's claim is that he has lost 210 numbers of un matured banana plants and since the insurance company offered only Rs.8470/- for loss of 95 banana plants on the recommendation of VFPCK. Since amount offered

(Cont....6)

-6-

was too low, he had not received the said amount. Non-receipt of above amount is not in dispute. Contention of the first opposite party is that as per contract of insurance, complainant is entitled to get the insured amount less value of debris. After deducting price of debris, the first opposite party offered Rs.8000/- which is the amount entitled by the complainant as per contract. On a careful examination of Ext.R1, it is seen that it is a photocopy and the signature of complainant is not fully seen. Besides, verification of signature in this document with complaint and other documents, it is seen that there is material difference in handwriting. Even though direction was given to the first opposite party to produce original of the above document, it is submitted that it is misplaced and therefore original cannot be produced. But it is astonishing to note this contention because, without original form how the photocopy is taken ?. So the submission cannot be accepted.

 

Learned counsel for the first opposite party relied on the following judgment of the Hon'ble High Court of Kerala in National Insurance Company Ltd., Vs Akber Badsha & others ( Motor Accident Claim Appeal No.1623/2013 dated 08/09/2015) and argued that since the complainant received Rs.12,000/- from Kerala Government he is not entitled to claim insurance under the present policy. On a careful study of the above judgment, it can be seen that the facts and circumstances of above case differs from the present claim. In that case, insurance was taken under the same insurer National Insurance Company Ltd., under “Mediclaim Policy” and also the owner of the car insured it under with the same insurer. Hon'ble High Court considered the matter in detail on a reference made by Single Bench. Hon'ble High Court observed that the point to be considered is whether re-imbursement of the medical expenses under a 'Mediclaim Policy' is liable to be set off from the amount of compensation worked out under S.166 of MV Act.

 

But as regards the complaint before us, banana plants were insured with first opposite party through VFPCK. If any relief was given for natural calamity by the government it cannot be equated with the situation referred by the Hon'ble Hogh Court in the above case. Government's relief is not a right but a help given to affected persons generally. There was no contact between the recipient and the government. In earlier cross examination by the first opposite party's counsel, complainant admitted that about Rs.12,000/- was received from Krishibhavan. Later he denied this. Besides, as per Ext.P2

(Cont....7)

-7-

Agricultural Officer, Krishibhavan, Adimali issued certificate dated 17/12/2018 stating that no benefits were given to the complainant. No evidence to the contrary is adduced by the opposite parties. So the above judgment is found be not applicable in the instant case. Hence the contention on this point is overruled.

 

Another irregularity noted in Ext.R1 is that 3 officials of VFPCK is signed in this. But as per Ext.P1 series photo and the avements of the second opposite party it is seen that she had only visited the site. At the same time, as per clause 5 & 6 of procedure for claim settlement (part of master agreement) verification team must consist of 3 officials of VFPCK. Here this condition is not complied with by the second opposite party.

 

It is a fact that the first opposite party has to act as per the report of the second opposite party. But terms of master agreement were not complied with in this case. No objection was seen raised by the first opposite party with regard to inspection report prepared by single officer of VFPCK. The first opposite party raised contention that insurance amount was offered after deducting value of debris. But on a perusal of master agreement, no such stipulation is shown for deducting value of debris. So the first opposite party cannot deduct it from assured amount. Here, the insured amount for a banana plant is Rs.100/- only. Since long time has elapsed there is no chance to conduct inspection and prepare commission report to ascertain the allegation of the complainant. Considering the evidences available on record and the depositions of witnesses from complaint's side, we can only hold that allegation of the complainant is to be accepted with regard to loss occurred. So, we direct the opposite parties to give insurance amount of Rs.21,000/- to the complainant.

 

In the light of above discussions, the opposite parties are directed to give above shown amount of Rs.21,000/- (Twenty One Thousand only) to the complainant within 30 days of receipt of this order, failing which the amount would carry 9% interest per annum from the date of complaint till full realization.

 

Hence point No.2 is answered accordingly.

 

(Cont....8)

-8-

Regarding the prayer for taking action against the second opposite party, it is not the proper authority to take action. Complainant has not adduced any evidence regarding the allegation also. From this it is clear that allegations are only for argument sake. Hence we decline the above prayer.

 

In the hearing note, Learned Counsel for the complainant prayed for allowing compensation of Rs.50,000/- and to grant cost of the case. No such claim was raised in the complaint. At this belated stage, we are not inclined to allow this prayer.

 

In the result, complaint is allowed to the above extent.

 

Pronounced by this Commission on this the 30^th day of September, 2020.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL P., PRESIDENT -IN -CHARGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont....9)

-9-

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - M.K.Surendran

PW2 - K.J.Thomas

PW3 - Ouseph

PW4 - Rajani Satheesan

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 - Photograph of the property.

Ext.P2 - Certificate dated17/12/2018 issued by Agricultural Officer, Adimali

stating that complainant cultivated banana plants in 1 acre land

and that no benefits were given from the Krishi Bhavan.

Ext.P3 - Copy of complaint dated 05/11/2018 given by complainant to Hon'ble

Minister for Agriculture.

Ext.P4 - Reply dated 29/11/2018 given to the complainant from Minister's

office stating that above complaint forwarded to Principal Agriculture

Officer, Idukki for conducting enquiry and necessary action.

 

On the side of the Opposite Party :

Ext.R1 - Photocopy of claim and verification report dated 20/06/2018.

Ext.R2 -Photocopy of voucher No. Nil dated Nil showing the amount of

Rs.8470/- towards claim settlement. (Revenue stamp and signature of

complainant not affixed).

Ext.R3 -Master agreement 15/05/2017 between the first opposite party and

Vegetable and Fruit Promotion Council Keralam (VFPCK).

 

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT

 

 

 

 

 

********************