BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint No.: 258 of 2017
Date of Institution: 09.10.2017
Date of order: 15.03.2019.
Madan Gopal son of Chrichand, resident of village Bangaon, Tehsil and District Fatehabad.
….. Complainant.
Versus
- ICICI Lombard Plot No. 149 Fourth Floor Industrial Area, Phase I Next to Hometel Hotel, Industrial Area Phase !, Chandigarh through its Chairman-Cum-Managing Director.
- Canara Bank Branch Fatehabad Tehsil & District Fatehabad through its Branch Manager.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act
Before: Sh.Raghbir Singh, President.
Sh. Jasvinder Singh, Member.
Present: Sh. Sukhbir Dhaka, counsel for the complainant.
Sh.Vishnu Delu, counsel for the OP No.1.
Sh. Sandeep Bhatia, 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 comprising in Khewat No. 193/290 Khasra No. 194/291 measuring 24 acre situated in village Bangaon, Tehsil and District Fatehabad. The above said land measuring 24 acre was insured with the OP No.1 for a sum of Rs.24,000/- per acre and a total amount of Rs.5046/- was deducted by the OP no. 2 on 30.7.2016 from the bank account of the complainant bearing no. 2343840001950. The abovesaid insurance was issued by the OP no. 1 under the scheme namely Pradhan Mantri Fasal Bima Yojna (PMFBY). Therefore, the complainant is consumer of Ops as defined in Consumer Protection Act, 1986.
2. It is further submitted that the complainant had sown cotton crops in the above said land but unfortunately due to heavy rainfall and flood the cotton crop of the complainant was considerably damaged. Therefore, the complainant moved an application on 19.9.2016 & 09.09.2016 in the office of Agriculture Department at Fatehabad and thereafter on 13.09.2016 & 20.9.2016, the abovesaid land of the complainant was inspected and a loss to the tune of 40% was assessed on 20.9.2016 & 13.09.2016 in 24 acre of land by the Loss Assessing Team.
3. It is further submitted by the complainant that an average cotton yield in the area is 10 quintals per acre but the complainant produced less than 4 quintals per acre in the abovesaid land and as such the complainant suffered a total loss of 60 quintals in the abovesaid land of 24 acre. The market rate of the cotton during the relevant period was Rs. 6,000/- per quintal and as such the complainant had suffered a total loss of Rs.3,60,000/-.
4. It is further submitted that in view of the insurance policy issued by the OPs, the OP no. 1 is liable to indemnify the complainant by making him the payment of abovesaid amount. Therefore, the complainant time and again requested OP no. 1 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 OP no. 1 may be directed for making a payment of Rs.3,60,000/- 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.
5. 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 recovered 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.
6. In reply on merits, it is submitted that no intimation was ever received regarding the loss of the crop from the complainant as well as any other agency. It is further submitted that the claim of the complainant was rejected as the crop loss had occurred due to heavy rain and speedy wind, rotting of fruits and bodies due to lodging of the crops not leading to inundation which is covered for loss under the scheme and the complainant has made a false, bogus and baseless story to grab the compensation. It is also submitted that it is not an individual insurance policy rather it is a group insurance scheme in accordance with agreed terms and conditions of the scheme which are binding on all the concerned related to the scheme. It is further submitted that there is no deficiency on the part of OP no. 1 in rendering service to the complainant and as such the present complaint is liable to be dismissed.
7. 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.
8. 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.5046.00 has been debited from the account of the complainant as a premium of cotton crop insurance at the rate of 24,000/- 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.
9. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Exhibit CW1/A 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-1 to Annexure C-8 and documents as Exhibit C-1 and Exhibit C-2. 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-1. The learned counsel for the OP no. 2 tendered in evidence affidavit of Shri Pawan Kumar, Manager as Exhibit RW1/A & Exhibit R-1 and closed the evidence.
10. The learned counsel for the complainant in his arguments contended that the complainant is having K.C.C. account bearing number 2343840001950 with OP no. 2. The OP no. 1 issued insurance of cotton crop sown by the complainant in 24 acre of agriculture land situated in village Bangaon and a total premium of Rs.5046/- was debited on 30.7.2016 from his KCC account by OP no. 2 as premium of insurance of cotton crop. The insurance of the above said crop was issued at the rate of Rs.24000/- 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 heavy rains and flood the insured cotton crop of the complainant was considerably damaged. Therefore, on the application of the complainant dated 19.9.2016 submitted in Agriculture Department, Haryana, the above-said agriculture land of the complainant was inspected by team consisting of Agricultural Development Officer and Sh. Ram Niwas Loss Assessor. After inspection the inspecting team assessed the loss to the tune of 40%.. The another application of the complainant dated 9.9.2016 submitted in Agriculture Department, Haryana, the abovesaid agriculture land of the complainant was inspected by Agriculture Development Officer and inspection report does not bear the signature of Loss Assessor . After inspection the inspecting team assessed the loss to the tune of 30-40%. 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 OP no. 1 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 and moreover similar situated farmers whose cotton crop insurance had been issued had already been indemnified by the OP no. 1, which is evident from Annexure C-6 to Annexure C-8. 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.3,60,000/- to the complainant on account of damage of insured crop along-with compensation for mental agony and physical harassment suffered by him.
11. 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. In the localized claims 3 perils i.e. hailstorm, land slide and inundation affecting isolated farmers are covered. However, the loss caused to the insured cotton crop of the complainant in the present case was due to heavy rains and speedy winds. Therefore, the insurance claim of the complainant is not covered in the localized claims/risks. 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 cotton 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.
12. 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%. Therefore, if there is any claim regarding the alleged damage even then the complainant can claim only 40% 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.
13. 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 cotton crop sown in one hectare of land of the complainant for the year 2016. Since the complainant was a KCC account holder as such the total premium amounting to Rs.5046/- was debited from his account by OP no. 2. The cotton crop was insured by OP no. 1 for an amount of Rs.24,000/- per acre. It is further the case of the complainant that the insured cotton crop of the complainant was damaged considerably by heavy rains and flood. On the application submitted by him to Agriculture Department of Haryana the insured crop was inspected on 20.09.2016 & 13.09.2016. The inspecting team comprising of Agriculture Development Officer and the Loss Assessor i.e. the representative of OP no. 1 vide report dated 20.9.2016 observed that there is a loss of 40% in 4.40 hectare of insured area on account of heavy rains and speedy winds and vide report dated 13.9.2016 the inspecting team observed loss to the tune of 30% to 40% in 12 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 20.9.2016 (Annexure C-2), Inspection Report dated 13.9.2016 (Annexure C-3), copy of Jamabandi (Exhibit C-2), copy of Girdawari (Exhibit C-1). The complainant also tendered in evidence the documents as Annexure C-4 to Annexure C-7 to prove that in similar situated cases payment of insurance has been made by the OP no. 1. The complainant also placed on record the documents Annexure C-8 vide which information under PMFBY was sent by Deputy Director Agriculture Fatehabad to joint Director Statics Haryana regarding survey of loss.
14. 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.
15. In the present case it is not disputed that OP no. 1 had issued insurance of cotton crop of the complainant. It is also not disputed that premium of Rs.5046/- was debited through OP no. 2 from the KCC account of the complainant for insurance of the cotton crop at the rate of Rs.24,000/- per acre. It is also not in dispute that on the basis of complaint dated 19.9.2016 submitted by the complainant the insured crop was inspected on 20.9.2016 by a team comprising of Agriculture Development Officer and Loss Assessor i.e. the representative of OP no. 1. It is also not disputed that vide inspection report dated 20.9.2016 (Annexure C2) the inspecting team observed that there is a loss to the tune of 40% in 4.40 hectare of insured area wherein cotton was sown. Vide inspection report Annexure C-2, it is also observed that damage had occurred to the insured crop on account of heavy rains and speedy wind.
16. It is the case of OP no. 1 that only localized claims/damages are to be decided by the insurance company and other risks are to be handled by the Government and in the localized claims/damages only three types of perils/calamities i.e. hail storm, landslide and inundation are covered whereas in the present case the damage to the insured crop is on account of heavy rains and speedy winds and as such the same is not payable. As per the written statement filed by the OP no. 1 the case of the complainant for grant of insurance claim was processed and the same was declined on the ground that the peril of heavy rains and speedy wind is not covered under the localized claims/risks. However after examining the material placed on record and considering the legal position involved in the present case, we are of the opinion that the abovesaid ground taken by OP no. 1 for declining the claim is not tenable. The spirit and object behind the scheme is to protect the insured/farmers crops against the natural perils/calamities and adverse weather conditions. Undoubtedly, heavy rains and speedy winds are adverse weather conditions for the cotton crop. If mis-guided and narrow interpretations are taken by the implementers of the beneficial scheme than its very objective and purpose will be defeated. In the present case as per Inspection Report Annexure C-2 the damage to the insured cotton crop has occurred on account of heavy rains and speedy wind. It is a thing of common knowledge that inundation/water logging in the crops is caused on account of heavy rains. Therefore, we are of the considered opinion that damage caused to the insured cotton crop is covered under the localized risks. Moreover, the Hon’ble National Commission in case titled as Oriental Insurance Company Vs. M/s R.P. Bricks cited as 2013 (2) CPJ 613 has held that loss caused due to heavy rains is covered under the definition of inundation. The judgment rendered by the Hon’ble National Commission, New Delhi in case titled as Agriculture Insurance Company of India Vs. Kishan Lal and others and cited as 2014 (1) CPJ 391 is also relied upon.
17. It is also pertinent to mention here that in similarly situated cases wherein the damage to the insured cotton crop was caused on account of heavy rains and speedy wind the OP no. 1 has already paid insurance claim to the insured land owners. From perusal of the document Annexure C-4 and Annexure C-5, it is evident that an amount of Rs. 49,444/- has been paid as crop insurance to Sh. Suresh Kumar son of Om Parkash, resident of village Bangaon on 3.10.2017 and Rs. 102642/- has been paid to Sanjiv Kumar son of Om Parkash on 6.10.2017. The cases of Suresh and Sanjeev are similarly situated and in both the cases the damage was caused to the insured cotton crop by heavy rains and speedy wind. From perusal of the record it is revealed that in reply to an R.T.I. the Op No.1 has furnished a list of 318 insurance claims lodged in Fatehabad District under the abovesaid scheme. A perusal of the list further reveals that OP No.1 has decided the claims as payable in at least 10 cases i.e. at serial No.60, 74, 78, 111, 141, 151, 200, 238, 249, 277 wherein damage has been caused to the cotton crop on account of heavy rains and speedy winds. The policy of pick and choose in the payment of insurance claim adopted by OP no. 1 is not justified. Therefore, declining the payment of insurance claim to the complainant by OP no. 1 on ground that the damage caused to the cotton crop is not covered under the localized risk/claim, is not sustainable in the eyes of law.
18. As discussed above, it is not disputed that insurance of the cotton crop of the complainant was issued by OP no. 1 against perils/natural calamities and adverse weather conditions. It is also not disputed that the OP no. 1 has received premium in time for the said insurance. It is also not disputed that the insured cotton crop of the complainant was damaged due to adverse weather conditions/natural calamity i.e. heavy rains and speedy wind. Therefore, we are of the considered opinion that the claim of the complainant is a bonafide claim. It is a settled proposition of law that a genuine/ bonafide insurance claim cannot be repudiated on the technical ground of delay or procedural lapses. Rejection of the claims on purely procedural grounds in a mechanical fashion will result in policy holders losing 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).
19. 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 partly allowed as the complainant has been able to prove loss in only 4.40 hectare (11 acres) vide Annexure C-2 and not in 24 acres as alleged. The Inspection Report dated 13.9.2016 (Annexure C-3) is not signed by the surveyor of OP no. 1 as such the same is not as per terms and conditions of the policy.
20. Regarding quantification of loss, it is submitted that as per inspection report Annexure C-2, the total damaged area is 4.40 hectare i.e. 11 acres. As per Annexure C-2, the complainant has suffered a loss of 40% of insured crop in 11 acres. As per terms and conditions of the policy, the OP no. 1 had insured the cotton crop in question at the rate of Rs.24,000/- per acre. So, keeping in view the 40% loss the complainant has suffered a loss of Rs.9600/- in one acre and Rs.105600/- in 11 acres of the total insured area. Therefore, the OP no. 1 is directed to make a payment of Rs.105600/- (Rs.One Lakh Five Thousand Six Hundred only) to the complainant alongwith interest at the rate of 6% 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.3,100/- (Rs.Three 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:15.03.2019
(Raghbir Singh) President (Jasvinder Singh) District Consumer Dispute
Member Redressal Forum, Fatehabad.
