BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint No.: 148 of 2018
Date of Institution: 11.05.2018
Date of order: 12.04.2019.
Krishan Kumar son of Shri Om Parkash, resident of village Samain, Tehsil Tohana, District Fatehabad.
….. Complainant.
Versus
- ICICI Lombard General Insurance Company Limited, Plot no. 149, Fourth Floor, The Statement Nektous-to-Home-Tal Hotel, Industrial Area, Phase-1, Chandigarh.
- Sarva Haryana Gramin Bank, Branch Samain, Tehsil Tohana, District Fatehabad.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act
Before: Sh.Raghbir Singh, President.
Sh. Jasvinder Singh, Member.
Present: Sh. K.R. Jangra, counsel for the complainant.
Sh.Vishnu Delu, counsel for the OP No.1.
Sh. Inder Singh Sihag, counsel for the OP No.2.
ORDER:
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that the he is owner in possession of the agriculture land measuring 4 acres situated in village Samain, Tehsil Tohana, District Fatehabad. The complainant has Kissan Credit Card Account with OP no. 2 and from the said account the OP no. 2 got insurance of crop of the complainant issued from OP no. 1. Therefore, the complainant is consumer of Ops as defined in Consumer Protection Act, 1986.
2. It is further submitted that the complainant had sown wheat crop in the above said land but unfortunately due to hailstorm wheat crop of the complainant was considerably damaged. Therefore, the complainant moved an application on 13.02.2017 in the office of Agriculture Department at Fatehabad and thereafter on 27.2.2017, the abovesaid land of the complainant was inspected and a loss to the tune of Rs.9900/- in one acre and Rs.39,600/- in four acres of land was observed by the Inspection Committee.
3. Thereafter, the complainant time and again requested OPs to indemnify him by making the payment of the abovesaid amount but all in vain. It is further submitted that the abovesaid act on the part of OPs amounts to deficiency in rendering service to the complainant. The complainant has further prayed that the OPs may be directed for making a payment of Rs.39,600/- along-with interest at the rate of 18% per annum to the complainant along-with Rs. 25,000/- as compensation on account of mental agony and physical harassment suffered by him. Hence, the present complaint.
4. On being served OP No.1 appeared through counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, territorial jurisdiction, non-intimation of the damage, non-submission of proof of loss or weather report, loss not covered under the scheme, no survey and no quantification of loss, privity of contract, impleading of necessary parties etc. have been raised. In the preliminary objections, the OP no. 1 has inter alia reproduced the objectives and relevant provisions of the scheme. It is also averred that the following stages of the crop and risks leading to crop loss are covered under the scheme.
a) Prevented Sowing/Planting Risk: Insured area is prevented from sowing/planting due to deficit rainfall or adverse seasonal conditions.
b) Standing Crop (Sowing to Harvesting): Comprehensive risk insurance is provided to cover yield losses due to non-preventable risks, viz. Drought, Dry spells, Flood, Inundation, Pests and Diseases, Landslides, Natural Fire and Lightening, Storm, Hailstorm, Cyclone, Typhoon, Tempest, Hurricane and Tornado.
c) Post-Harvest Losses: Coverage is available only up to a maximum period of two weeks from harvesting for those crops which are allowed to dry in cut and spread condition in the field after harvesting against specific perils of cyclone and cyclonic rains and unseasonal rains.
d) Localized Calamities: Loss/damage resulting from occurrence of identified localized risks of hailstorm, landslide, and inundation affecting isolated farms in the notified area.
It is further submitted that in view of the above provisions of the scheme except localized claims, all other perils were to be finalized by the Government Agencies on the basis of yield of crop and thereafter claims were to be paid to bank of farmers. It is further submitted that in localized claims only three perils are covered under the scheme i.e. hail storm, land slide and inundation affecting isolated farmers in the notified area. For localized claims there was a condition of immediate intimation of claim i.e. within 48 hours of the loss. After intimation of the claim necessary survey of affected area had to be conducted by surveyor for decision of the claim of farmers.
5. In reply on merits, it is submitted that as per Loss Assessment Report the damage in the insured crop has been caused on account of hailstorm. However, no date and time of rain fall or hailstorm is mentioned in the Loss Assessment Report. It is also further submitted that assessment of loss has been mentioned in the report, but the loss cannot be assessed without harvesting of crop. only assessment of loss has been given without harvesting the crop. Therefore, the present complaint is liable to be set aside on this ground alone. It is also submitted that the intimation regarding the damage in the crop was conveyed by the complainant on 13.2.2017 whereas the survey was conducted on 27.2.2017 after a huge delay of 14 days. The loss assessed by the Inspection Committee has not been assessed as per record. It is also submitted that no intimation was ever received regarding the loss of crop by the answering OP from the complainant as well as any other agency. However, the claim of the complainant was rejected as in the loss assessment report the reason of loss is mentioned as hail storm and the same is not covered under the scheme. It is also submitted that it is not an individual insurance policy rather it is a Group Insurance Scheme. Moreover, the complainant should have approached to DAC & FW Department for any kind of grievance related to the scheme or claim. However, instead of filing the complaint before DAC & FW Department the complainant has approached this Forum by violating the terms and conditions of the scheme.
6. The OP no. 2 also resisted the complaint by filing a written reply, wherein various preliminary objections with regard to abuse of process of law, cause of action, maintainability and concealment of true and correct facts have been raised.
7. In reply on merits, it is submitted that in accordance with the notification dated 17.6.2016 issued by Agriculture Department of Haryana and in accordance with the instructions and directions of the Government an amount of Rs.1919.78/- has been debited from the account of the complainant as a premium of wheat insurance at the rate of 22,000/- per acre and under this the crop of the complainant standing in the abovesaid land for which the complainant had obtained the standard loan was insured by the OP/Bank from the ICICI Lombard General Insurance Company. Therefore, if there is any claim regarding the alleged damage stated by the complainant in that eventuality the complainant can claim only of the damage crop from OP no. 1 and not from the answering OP. OP no. 2 is not liable to pay any amount of the alleged damage or compensation to the complainant. It is further submitted that there is no deficiency on the part of OP no. 2 in rendering service to the complainant and as such the present complaint is liable to be dismissed against OP no. 2.
8. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Annexure C-1 wherein the averments made by the complainant in his complaint have been affirmed. The learned counsel for the complainant also tendered in evidence the documents as Annexure C-2 to Annexure C-4. On the other hand, the learned counsel for the OP no. 1 tendered in evidence affidavit of Nishant Gera, Authorized Signatory of OP no. 1 as Annexure R-5. The learned counsel for the OP no. 2 tendered in evidence affidavit of Shri Lokesh Beniwal, Branch Manager as Annexure R-1 and the documents as Annexure R-2 to Annexure R-4.
9. The learned counsel for the complainant in his arguments contended that the complainant is having K.C.C. account bearing number 81778800011047 with OP no. 2. The OP no. 1 issued insurance of wheat crop sown by the complainant in 4 acre of agriculture land situated in village Samain and a total premium of Rs.1919.78/- was debited on 09.01.2017 from his KCC account by OP no. 2 as premium of insurance of wheat crop. The insurance of the above said crop was issued at the rate of Rs.22,000/- per acre. The said insurance was issued by OP no. 1 under the scheme namely Pradhan Mantri Fasal Bima Yojna. It is further contended by the learned counsel that unfortunately on account of hail storm the insured wheat crop of the complainant was considerably damaged. Therefore, on the application of the complainant dated 13.02.2017 submitted in Agriculture Department, Haryana, the above-said agriculture land of the complainant was inspected by team consisting of Agricultural Development Officer and Sh. Sandeep Singh Loss Assessor. After inspection the inspecting team assessed the loss to the tune of 40 to 45% amounting to Rs.9900/- per acre. It is further contended by the learned counsel that OP no. 1 being insurer is liable to indemnify the complainant in respect of the losses suffered by him. Therefore, the complainant requested the OPs for making payment of the compensation but all in vain. The learned counsel further contended that the case of the complainant for grant of insurance claim by OP no. 1 is fully covered under the terms and conditions of the policy. The non-payment of insurance claim to the complainant by OP no. 1 falls within the definition of deficiency on its part in rendering service to the complainant. The learned counsel further prayed that the present complaint may be accepted and OP no.1 may be directed for a payment of Rs.39,600/- to the complainant on account of damage of insured crop along-with compensation for mental agony and physical harassment suffered by him.
10. On the other hand, the learned counsel for OP no. 1 vehemently rebutted the contentions raised by learned counsel for the complainant and reiterated the averments made in the written statement filed by OP no. 1. It is further contended by learned counsel that the damage caused to the insured crop of the complainant is not covered under the localized claim. The learned counsel further contended that only localized claims/risks were to be decided by the insurance company and other risks of coverage were to be handled by the Government Agencies. The learned counsel also contended that as per notification dated 17.6.2016 issued by State Government the isolated/individual farmers are not covered, whereas the damage caused to the insured wheat crop of the complainant falls within the purview of Group Insurance Schemes and the same was to be handled and finalized by Government Agencies. The learned counsel further contended that as per terms and conditions of the policy an intimation regarding the loss was to be given by the complainant within 48 hours from the time of occurrence of the damage. However, in the present case the information was furnished by the complainant after expiry of 48 hours. It is also contended by the learned counsel that the complainant before approaching this Forum should had approached DAC and FW Department for any kind of grievance related to the scheme or for claim and as per the terms and conditions of the insurance policy the decision of the said department would be binding on all the parties. It is further contended by the learned counsel that there is no deficiency on the part of the OP no. 1 in rendering service to the complainant and as such the present complaint is liable to be dismissed.
11. The learned counsel for OP no. 2 in his arguments contended that the complainant is only maintaining KCC account with OP no. 2 and OP no. 2 paid amount of premium to OP no. 1 on behalf of the complainant and no other role is there on the part of OP no. 2. It is further contended by the learned counsel that as per the site inspection report prepared by the Agriculture Department the loss of cotton crop of the complainant is to the tune of 40 to 45%. Therefore, if there is any claim regarding the alleged damage even then the complainant can claim only 40 to 45% from OP no. 1 and not from OP no.2. It is further contended that there is no deficiency on the part of OP no. 2 in rendering service to the complainant in the present case and as such the same is liable to be dismissed against OP no. 2.
12. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that under the scheme namely Pradhan Mantri Fasal Bima Yojna (PMFBY) the OP no. 1 issued insurance of wheat crop sown in 4 acre of land of the complainant for the year 2017. Since the complainant was a KCC account holder as such the total premium amounting to Rs.1919.78/- was debited from his account by OP no. 2. The wheat crop was insured by OP no. 1 for an amount of Rs.22,000/- per acre. It is further the case of the complainant that the insured cotton crop of the complainant was damaged considerably by hail storm. On the application submitted by him to Agriculture Department of Haryana the insured crop was inspected on 27.02.2017. The inspecting team comprising of Agriculture Development Officer and the Sandeep Singh Loss Assessor i.e. the representative of OP no. 1 vide report dated 27.2.2017 observed that there is a loss of 40 to 45% in 4 acre of insured area on account of hail storm and vide report dated 27.02.2017 the inspecting team observed loss to the tune of 40 to 45% in 4 acres of land. Therefore, it was the liability of OP no. 1 to indemnify the complainant for the damage occurred in the insured crop. In support of his case the complainant tendered an affidavit in his evidence wherein the averments made in the complaint have been affirmed. The complainant also placed on record copy of Inspection Report dated 27.2.2017 (Annexure C-2), Copy of Jamabandi (Annexure C-3), copy of KCC account with OP no. 2 as Annexure C-4.
13. No doubt, insurance scheme was launched by Union of India as Pradhan Mantri Fasal Bima Yojna and certain guidelines were framed regarding the regulations of terms and conditions of the insurance, coverage of the crops and the coverage of the area and it was suggested in the scheme that concerned State Governments will issue the notification in consonance with the scheme. In pursuant to that the State of Haryana issued a notification through Haryana Government Agriculture and Farmers Welfare Department on 17.6.2016 in which relevant points were notified as under:-
1. Crops to be covered (Notified crops)
Cotton, Paddy, Bajra and Maize crops will be covered during Kharif 2016 & Wheat, Barley, Mustard and Gram Crops during Rabi 2016-17.
2. Insurance Unit (IU)
The PMFBY will operate on the principle of “Area Approach” in the Insurance Unit (IU). The IU will be the revenue estate (village).
- Area to be covered
The PMFBY will be implemented in the entire State on cluster approach.
- Coverage of Risks and Exclusions
The following stages of the crop and risks leading to crop loss will be covered under the scheme.
- Prevented Sowing/Planting Risk: Coverage of risk in case the insured area is prevented from sowing/planting due to deficit rainfall or adverse seasonal conditions.
- Standing Crop (Sowing to harvesting): Comprehensive risk insurance will be provided to cover yield losses due to non-preventable risks, viz. Drought, Dry spells, Flood, Inundation, Pests and Diseases, Landslides, Natural Fire and Lightening, Storm, Hailstorm, Cyclone, Typhoon, Tempest, Hurricane and Tornado.
- Post – Harvest Losses: Coverage will be available only up to a maximum period of two weeks from harvesting for those crops which are allowed to dry in cut and spread condition in the field after harvesting against specific perils of cyclone, cyclonic rains and unseasonal rains.
- Localized Calamities: Loss/damage resulting from occurrence of identified localized risks of hailstorm, landslide and inundation affecting isolated farms will be covered. General Exclusions: Losses arising out of war and nuclear risks, malicious damage and other preventable risks will be excluded.
- Implementing agencies
- Cluster – I Reliance General Insurance Company Ltd.
- Cluster – II Bajaj Allianz General Insurance Company Ltd.
- Cluster – III ICICI Lombard General Insurance Company Ltd.
- Farmers to be covered
- All farmers including share – croppers and tenant farmers growing the notified crops in the IU will be eligible for coverage under the scheme.
- All farmers availing Seasonal Agricultural Operations (SAO) loans from Financial Institutions (i.e. loanee farmers) for the notified crops would be covered compulsorily.
- The scheme will be optional for the non-loanee farmers.
- Indemnity Level
The indemnity level will be 90% in case of all the notified crops.
14. In the present case it is not disputed that OP no. 1 had issued insurance of wheat crop of the complainant. It is also not disputed that premium of Rs.1919/- was debited through OP no. 2 from the KCC account of the complainant for insurance of the wheat crop at the rate of Rs.22,000/- per acre. It is also not in dispute that on the basis of complaint dated 13.2.2017 submitted by the complainant the insured crop was inspected on 27.2.2017 by a team comprising of Agriculture Development Officer and Sandeep Singh Loss Assessor i.e. the representative of OP no. 1. It is also not disputed that vide inspection report dated 27.2.2017 (Annexure C2) the inspecting team observed that there is a loss to the tune of 40 to 45% in 4 acre of insured area wherein wheat was sown. Vide inspection report Annexure C-2, it is also observed that damage had occurred to the insured crop on account of hail storm.
15. It is the case of the OP no. 1 that as per the Loss Assessment Report damage to the insured crop has been caused on account of hail storm. However, no date of hailstorm has been mentioned in the Loss Assessment Report and as such the insurance claim is not covered under the terms and conditions of the policy. It is also the case of OP no. 1 that intimation regarding the damage was conveyed on 13.2.2017 but the survey was conducted on 27.2.2017 after a delay of 14 days which is also violation of the terms and conditions of the insurance policy. It is also the case of OP no. 1 that it is not an individual insurance policy rather it is a Group Insurance Scheme and as such the complainant is not entitled for insurance claim on the basis of localized perils. The other ground taken by OP no. 1 to resist the present complaint is that the complainant should have approached to DAC & FW Department before filing the present complaint. However, after examining the material placed on record and considering the legal position involved in the present case, we are of the considered opinion that the abovesaid ground taken by OP no. 1 for declining the claim is not tenable. The loss/damage resulting from occurrence of identified localized risks of hailstorm, landslide and inundation are covered under the localized calamities. In the present case, as per inspection report Annexure C-1, damage to the insured crop has occurred on account of hail storm. Therefore, we are of the considered opinion that damage caused to the insured crop of the complainant is covered under the localized risks and the claim of the complainant is a bonafide one. It is a settled proposition of law that a genuine/bonafide insurance claim cannot be repudiated on the technical ground of delay and procedural lapses. Rejection of the claims on purely procedure grounds in a mechanical fashion will result in policy holders loosing confidence in the insurance industry. The spirit of insurance policy be kept in mind while deciding the insurance claim. It is also pertinent to discuss here that the complainant is a KCC account holder and in his case as per policy issued by the Government of India the crop insurance is mandatory and as such the premium of insurance was debited from his account without his consent and knowledge and no terms and conditions of insurance policy was issued to him. Moreover, in its reply the OP no. 1 has not mentioned that the terms and conditions of the policy were issued to the complainant. Therefore, we are of the considered opinion that the claim of the complainant cannot be denied on the ground of any delay of some days in giving intimation or any other procedural lapse on the part of the complainant. Reliance is placed on the judgment recorded by Hon’ble State Commission, Haryana in case titled as Shriram General Ins. Company Ltd. Vs. Rajesh Kumar 2014 (2) CLT 390 (HR).
16. So, in view of the aforesaid discussion, we are of the considered opinion that the complainant has been able to prove deficiency on the part of OP no. 1 in rendering service to the complainant. The present complaint is accordingly allowed.
17. Regarding quantification of loss, it is submitted that as per inspection report Annexure C-2, the total damaged area is 4 acres. As per Annexure C-2, the complainant has suffered a loss of 40 to 45% amounting to Rs.9900/- per acre and Rs.39,600/- in four acres. Therefore, the OP no. 1 is directed to make a payment of Rs.39,600/- (Rs. Thirty Nine Thousand Six Hundred Only) to the complainant alongwith interest at the rate of 8% from the date of filing of the present complaint till its realization. The OP no. 1 is also further directed for making a payment of Rs.5,100/- (Rs.Five thousand one hundred only) as litigation charges to the complainant. The abovesaid order be complied with within a period of 45 days, otherwise the abovesaid amount shall carry an interest at the rate of 9% per annum during the period of default. No deficiency is found on the part of OP no. 2. The present complaint is accordingly disposed of. Copy of this order be supplied to both the parties free of cost. File be consigned to the record after due compliance.
Announced in open Forum. Dated:12.04.2019
(Raghbir Singh) President (Jasvinder Singh) District Consumer Dispute
Member Redressal Forum, Fatehabad.
