BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 208 of 2019.
Date of Institution : 24.04.2019.
Date of Decision : 28.04.2022.
Kashi Ram aged 62 years son of Shri Rawta Ram, resident of village Jamal, District Sirsa, Haryana.
……Complainant.
Versus.
1. ICICI Lombard General Insurance Company Limited, ICICI Lombard House, 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Prabhadevi, Mumbai- 400025.
2. Punjab National Bank through its Manager, Branch V.P.O. Jamal, Tehsil N.S. Chopta, District Sirsa, (Haryana).
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986 as amended under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR………………PRESIDENT MRS.SUKHDEEP KAUR……………………….MEMBER
SH. SUNIL MOHAN TRIKHA…………………MEMBER
Present: Sh. Mukesh Arya, Advocate for complainant.
Sh. R.K. Mehta, Advocate for opposite party No.1.
Sh. R.K. Chaudhary, Advocate for opposite party no.2.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as Ops) on the averments that complainant is having agricultural land measuring 72 kanals 13 marlas (as detailed in para no.2 of complaint) in the revenue estate of village Jamal, District Sirsa. He is having Kissan Credit Card account with op no.2 bearing account number 3299008800018602. That as per notification of Government of India, all the Kisan Credit Card account holders are required to get their crop insured through their respective banker where they are maintaining their KCC account. Accordingly, op no.2 bank has deducted premium amount of Rs.5587.04 on 29.7.2017 from the account of complainant for insuring cotton crop of Kharif, 2017. That in this way, the complainant has got insured his cotton crop of Kharif, 2017 in 72 kanals 13 marlas of land with op no.1 through op no.2 but to the surprise of complainant, the premium deducted from the account of complainant by op no.2 was deposited back in his account on 7.10.2017. It is further averred that premium was deducted by op no.2 from his account on the cutoff date of the deposition of premium. The complainant inquired about premium amount from op no.2 and he was told that his premium for insurance of crop of Kharif, 2017 has been deposited with op no.1. However, the amount was deposited back in his account on 7.10.2017 without any intimation to the complainant and as a result of which the crop was not insured with op no.1 and op no.2 told him that op no.1 has not accepted his premium for insurance of cotton crop of Kharif, 2017 but they were not able to explain the reason why the premium was not deposited with op no.1. It is further averred that cotton crop of complainant for the Kharif, 2017 season was damaged due to natural calamities and other farmers of village Jamal, District Sirsa having land in the revenue estate of village Jamal have received insurance claim against the damage of their cotton crop of Kharif, 2017 at the rate of Rs.19,800/- per acre but the complainant did not get any claim. When he inquired from the officials of the insurance company, he came to know that op no.2 has not deposited the insurance premium on time with op no.1. That complainant is a farmer by profession and is wholly dependent on agriculture income. The complainant approached the ops and requested them to pay the insurance claim for the damage of cotton crop but every time the complainant was informed that they are not liable to pay the insurance claim as his cotton crop of Kharif, 2017 season was not insured. That thereafter, also the complainant approached the ops in this regard, but to no effect and the act and conduct of the ops clearly amounts to deficiency in service. Hence, this complaint.
2. On notice, opposite party no.2 appeared and filed written version submitting therein that as per the term of Prime Minister Fasal Bima Yojna (PMFBY scheme), which was launched by Hon’ble Prime Minister of India on 13.2.2016, for the farmers who have sought crop loan from any Financial Institutions, it was mandatory for the Banks to insure all the borrowers under the scheme. The premium of the insurance was to be deducted from the account of borrower and was to be remitted to op no.1 insurance company by the bank. In the present case, the bank has debited the premium amount from the account of complainant as insurance premium for Kharif, 2017. As per clause 6.3.1 of revised operational guidelines of PMFBY, the adhar card is mandatory for availing crop insurance from Kharif, 2017 season onward. One of the officials of op no.1, Shri Deepak Gupta also informed the answering op in clarification by Email on 31.07.2017 that as per newly issued communication from Ministry of Agriculture Farmer Welfare, Adhar Card was mandatory for enrolment for all the farmers. As such detail regarding some accounts could not be uploaded on the portal of the insurance company due to non availability of the adhar card and the amount debited in their account was not remitted to the insurance company and was kept in the sundry account. It is further submitted that thereafter, the Government gave relaxation to the condition of compulsory obtaining adhar number for taking the benefits of Government sponsored crop insurance scheme and the last date was revised to 17 October, 2017 and as such the answering op requested the insurance company through its official Shri Deepak Gupta on 9.10.2017 for permission to remit the premium amount and to enter the entries in portal as per new guidelines, but vide their reply they denied to accept the premium on the ground that the last date for remittance of premium to insurance company of Kharif, 2017 season was 16.8.2017. That the answering op at once informed the circle office of the Bank at Hisar, which on 11.10.2017 requested the Haryana State Level Banker Committee to take up the matter with the Ministry/ Insurance Company for accepting the premium. It is further submitted that after the debit of amount of premium in the account of complainant, he alongwith the office bearer of Kisan Union visited the Bank premises and showed their grievance regarding the transfer of amount for insurance of the crops as they had not authorized the bank to get their crop insured. They were advised to deposit the adhar card with the Bank as insurance was necessary on the instructions from Govt. of India, but they refused to get the crop insured. As such, complainant is estopped by his own act and conduct to file the present complaint against the answering op. It is further submitted that mere sanctioning/ disbursement of crop loan and submission of proposals/ declaration and remittance of premium by farmer/bank without explicit intent to raise the crop, does not constitute acceptance of risk by insurance company. It is further submitted that information regarding account of complainant could not be uploaded on the portal of insurance company due to non availability of adhar card and amount debited in the account of complainant was not remitted to the insurance company. As such the amount was refunded back in the account of complainant. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.
3. Opposite party no.1 appeared through counsel but did not file any written statement.
4. The complainant and op no.2 then led their respective evidence.
5. Complainant tendered in evidence his affidavit Ex.CW1/A, copy of his adhar card Ex.C1, copy of statement of account Ex.C2, copy of jamabandi for the year 2017-2018 Ex.C3 and copy of CM Window Action Taken Report Ex.C4.
6. On the other hand, learned counsel for op no.2 has tendered affidavit of Sh. R.P. Uttam, Branch Manager as Ex.R1, copy of statement of account Ex.R2, copy of mail of insurance company dated 31.7.2017 Ex.R3, copy of mail of bank sent to insurance company on 9.10.2017 Ex.R4 and copy of mail sent by bank to Chief Manager, Circle Office, Hisar as Ex.R6 (whereas it should be Ex.R5).
7. Op no.1 also did not produce on record any document.
8. Complainant has also tendered report of Deputy Director, Agriculture & Farmer Welfare Department, Sirsa as Ex.C5 in additional evidence.
9. We have heard learned counsel for the parties and have gone through the case file carefully.
10. Learned counsel for the complainant has contended that as per Prime Minister Fasal Bima Yojna (PMFBY scheme), which was launched in the year 2016, the crops of every farmers who have obtained crop loan from any Financial Institutions i.e. Banks etc. and are growing notified crops were to be compulsorily insured with the insurance company by the Bank of the loanee farmers. The complainant is an agriculturist and has also availed crop loan from the opposite party no.2 by mortgaging his agricultural land as detailed in para no.2 of the complaint. He has further contended that as per scheme of Prime Minister Fasal Bima Yojna, the opposite party no.2 deducted premium amount of Rs.5587.04 on 29.7.2017 for insuring the cotton crop of Kharif, 2017 of complainant with the opposite party no.1 insurance company, but to the very utter surprise of complainant, the premium amount of Rs.5587.04 deducted by op no.2 bank on 29.7.2017 was remitted back to his account on 7.10.2017 without any prior information, reason or notice to the complainant. He has further contended that ops have not given any reason to the complainant for not accepting premium by op no.1 and the complainant is not at any fault in this regard. The cotton crop of complainant of Kharif, 2017 was damaged and other farmers of village Jamal having their agricultural land in this village have already received insurance claim against damage of their insured cotton crop of Kharif, 2017 at the rate of Rs.19,800/- per acre but complainant has not received any insurance claim for the damage of his cotton crop of Kharif, 2017. The complainant has suffered financial loss due to the damage of cotton crop of Kharif, 2017 and as such he is also entitled to the claim amount for the same from the ops besides compensation and litigation expenses and prayed for acceptance of complaint.
11. On the other hand, learned counsel for op no.1 has contended that as per admission of op no.2 bank itself, op no.1 has not received any premium amount from op no.2 bank for insurance of crop of complainant of Kharif, 2017 and as such op no.1 is not liable to pay any compensation to the complainant. He has further contended that op no.2 has not placed on file any guidelines of Govt. of India whereby last date for insurance of crop of farmers was revised to 17th October, 2017 and relaxation of provision of compulsory obtaining aadhar card was given and prayer for dismissal of complaint qua op no.1 has been made.
12. Learned counsel for op no.2 has contended that op no.1 had not accepted the premium amount for insurance of crop of complainant of Kharif, 2017 due to the reason that adhar card of the complainant was not linked with his account number and op no.2 bank made its best efforts to get insured the crop of complainant of Kharif, 2017. The op no.2 bank sent mail dated 9.10.2017 to op no.1 requesting that as per new guidelines of Govt. of India, the last date has been revised to 17th October, 2017, so please permit them to remit the amount and enter the entries in portal by non aadhar/ as per GOI guidelines. Op no.2 bank also sent mail to their Chief Manager, Circle Office, Hisar on 11.10.2017 to take up the matter with the Ministry/ Insurance Company for accepting the premium. The complainant was also advised to deposit the adhar card with the bank but the complainant refused to get his crop insured and therefore, complaint deserves dismissal.
13. We have duly considered the rival contentions of the parties.
14. The complainant in order to prove his ownership over the agricultural land in village Jamal, District Sirsa has placed on file copy of jamabandi for the year 2017-2018 Ex.C3. The complainant has placed on record copy of statement of account Ex.C2, from which it is proved on record that on 29.7.2017, an amount of Rs.5587.04 was deducted from his account by op no.2 as insurance premium for insuring the cotton crop of kharif 2017 with op no.1.
15. Admittedly, the complainant had taken crop loan against his agricultural land from op no.2 and op no.2 deducted an amount of Rs.5587.04 on 29.7.2017 from his account for insuring the cotton crop of Kharif, 2017 with op no.1 under Pardhan Mantri Fasal Bima Yojna. According to the complainant, the premium amount of Rs.5587.04 deducted by op no.2 bank was remitted back in his account on 7.10.2017 after retaining the same for more than two months and same was remitted back without any justification and reason and he has not received any insurance claim for the damage to his cotton crop of Kharif, 2017. The factum of remitting of premium in the account of complainant is also proved from the statement of account.
16. The complainant has alleged that his cotton crop of Kharif, 2017 season was damaged and other farmers of village Jamal, Tehsil and District Sirsa have received insurance claim against the damage of their cotton crop of Kharif, 2017 season at the rate of Rs.19,800/- per acre and as such he is also entitled to the claim amount. The complainant has also placed on file copy of letter/ report dated 22.12.2021 of Deputy Director, Agriculture and Farmers Welfare Department, Sirsa Ex.C5, according to which average yield of cotton crop of Kharif, 2017 in village Jamal was 156.44 Kg. per hectare and threshold yield of Block Nathusari Chopta was 607.14 Kg. per hectare and according to complainant as the average yield of village was less than threshold yield of block, as per Prime Minister Fasal Bima Yojna, there was loss of crop of cotton in his village Jamal and other farmers whose crops were insured under the above said scheme have already received insurance claim for damage of their cotton crop of Kharif, 2017. The ops have not led any cogent and convincing evidence to prove that there was no damage to the crop of cotton of Kharif, 2017 in village Jamal including complainant and that other farmers of village Jamal have not received any insurance claim for damage of their cotton crop of Kharif, 2017. From the above said report of Agriculture Department Ex.C5, it is proved on record that there was loss to the crop of cotton of Kharif, 2017 in village Jamal and as such complainant who is also having his agricultural land in village Jamal is also entitled to claim amount.
17. Now the question arises for consideration that which of the opposite parties is liable to pay the claim amount to the complainant? The op no.1 insurance company after joining the proceedings of this case through their counsel filed an application for supply of documents on 5.3.2021 which was dismissed vide order dated 9.8.2021 but op no.1 did not file any written statement and also did not place on record any document though at the time of arguments learned counsel for op no.1 has taken a stand that op no.1 did not receive any premium for insuring the crop of complainant of Kharif, 2017 and as such op no.1 is not liable to pay any claim to the complainant. On the other hand, the plea of op no.2 bank is that op no.1 had not accepted the premium amount for insurance of crop of complainant of Kharif, 2017 and op no.2 bank made its best efforts to get insured the crop of complainant of Kharif, 2017 but same was not insured.
18. Admittedly the premium amount of Rs.5587.04 was deducted by op no.2 bank on 29.7.2017 from the account of complainant which was to be remitted to op no.1 insurance company for insuring the crop of complainant of Kharif, 2017. However, the premium amount of Rs.5587.04 was remitted back to the account of complainant by op no.2 bank on 7.10.2017 as op no.1 insurance company did not accept the premium amount. No doubt, vide mail Ex.R3 dated 31.7.2017 produced on record by op no.2, the op no.1 insurance company asked the bank that as per newly issued communication from Ministry of Agriculture Farmer’s welfare, aadhar card is mandatory for enrolment for all the farmers (loanee & non loanee) and thus kindly update all the KCC records available with your banks with aadhar details for coverage to all the eligible farmers. But however, the OP no.2 bank also sent an email dated 9.10.2017 to op no.1 (Ex.R4) and requested the op no.1 insurance company that as per new guidelines of GOI, the last date has been revised to 17th October, 2017, so please permit them to remit the amount and enter the entries in portal by non aadhar/ as per GOI guidelines. The op no.1 has not produced on record any document to show that op no.1 gave any reply to that mail of op no.2 bank. Further more, the op no.2 bank also sent a mail dated 11.10.2017 (Ex.R5) to their Circle Office, Hisar requesting to take up the matter with Ministry/ Insurance Company for accepting the premium. The op no.1 insurance company has not shown any reason as to why premium was not being accepted by it for insuring crop of farmer despite the fact that as per Prime Minister Fasam Bima Yojna, there is contract between banks and insurance companies including op no.1 to compulsorily insure the crop of loanee farmers after receiving premium amount.
19. The op no.2 bank has discharged its duty by requesting op no.1 insurance company through email dated 9.10.2017 Ex.R4 to receive the premium amount as per new guidelines of Govt. of India, whereby the last date to receive the premium was revised to 17th October, 2017 and it was also requested to permit the bank to remit the amount and enter the entries in portal by non aadhar as per GOI guidelines, but the op no.1 insurance company has not placed on file any document showing the reason for non accepting the premium amount from the bank despite new guidelines of Govt. of India. Further, the op no.2 bank vide its mail dated 11.10.2017 Ex.R5 also requested to its Circle Office, Hisar to take up the matter with Ministry/ Insurance Company for accepting the premium as per new guidelines as Ministry has relaxed the provision of compulsory obtaining the aadhar number for taking benefit of Govt. sponsored crop insurance schemes viz. PMFBY/ RWBCIS for loanee farmers during Kharif, 2017 season. When the Govt. of India and Ministry of Agriculture Department had given relaxation in obtaining aadhar card of farmers, then there was no reason for not acceptance of premium amount by insurance company. But neither op no.1 insurance company accepted the premium on the request of the bank nor gave any reply to the mail of op no.2 bank showing any other reason for non acceptance of premium on behalf of complainant. So, the insurance company op no.1 has clearly contravened the newly guidelines of Govt. of India. It is proved on record that op no.2 bank has made every best efforts to get insured the crop of complainant of Kharif, 2017 and as such op no.2 is at any fault. There is also no substance in the contention of learned counsel for op no.1 that op no.2 has not placed on file any guidelines of Govt. of India whereby last date for insurance of crop of farmers was revised to 17th October, 2017 and relaxation of provision of compulsory obtaining aadhar card was given because op no.1 insurance company has not placed anything on file from which it could be presumed that last date for insurance of crop of farmers was not extended.
20. During the course of arguments, learned counsel for op no.1 has vehemently argued that there is no direct contract between complainant and insurance company and contract, if any is with op no.2 bank and complainant cannot be termed as consumer of the op no.1 insurance company in absence of any direct contract and also in absence of payment of any valid consideration i.e. premium amount for insurance of crop. But we found no substance in this contention of learned counsel for op no.1 because Hon’ble Supreme Court of India in recent judgment in case titled as Canara Bank Vs. M/s United India Insurance Co. Ltd. & others, CA No.1042 of 2020 with other civil appeals decided on 6.2.2020 also dealt with the above said issue and observed as under:-
“ To decide these issues, it would be apposite to refer to the definition of ‘consumer’ under Section 2(d) of the Act, which reads as follows:-
“2 Definitions- 1) In this Act, unless the context otherwise requires,-
xxx xxx xxx
d) “consumer” means any person who,-
(i) buys and goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
It has been further observed that:-
The definition of consumer under the Act is very wide and it not only includes the person who hires or avails of the services for consideration but also includes the beneficiary of such services who may be a person other than the person who hires or avails of services. Taking the issue of privity of contract, we are of the considered view that as far as the Act is concerned, it is not necessary that there should be privity of contract between the insurance company and the claimants. The definition of consumer under Section 2(d) quoted hereinabove is in 2 parts. Sub-clause (i) of Section 2(1)(d) deals with a person who buys and goods and includes any user of such goods other than the person who buys such goods as long as the use is made with the approval of such person. Therefore, the definition of consumer even in the 1st part not only includes the person who has purchased but includes any user of the goods so long as such user is made with the approval of the person who has purchased the goods. As far as the definition of the consumer in relation to hiring or availing of services is concerned, the definition, in our view, is much wider. In this part of the second, consumer includes not only the person who has hired or availed of the services but also includes any beneficiary of such services. Therefore, an insured could be a person who hires or avails of the services of the insurance company but there could be many other persons who could be the beneficiaries of the services. It is not necessary that those beneficiaries should be parties to the contract of insurance. They are the consumers not because they are parties to the contract of insurance but because they are the beneficiaries of the policy taken out by the insured.”
21. The above said authority is fully applicable to the facts and circumstances of the present case. Learned counsel for op no.1 has also contended that even the premium has not been received from the party to the contract i.e. op no.2 bank and as such, op no.1 is not liable to pay any compensation. However, we again found no substance in this contention of learned counsel for op no.1 because the op no.2 bank was requesting the op no.1 to receive the premium amount and op no.1 has already accepted the premium of 498 farmers as is clear from the mail of op no.2 bank Ex.R4 sent to op no.1 and therefore op no.2 was hiring the services of op no.1 for valid consideration. Moreover, in view of above said provisions of Consumer Protection Act quoted by Hon’ble Supreme Court of India, hiring or availing of the services for consideration paid, or promised or partly paid and partly promised or under any system of deferred payment will come under the purview of Consumer Protection Act. Further more, the op no.1 is receiving premium amount from the bank on behalf of farmers under group insurance scheme and admittedly huge amount has already been paid to op no.1 by op no.2 bank and therefore, it cannot be said that services of the op no.1 were being availed without any valid consideration. The complainant being beneficiary of the insurance scheme is also consumer of op no.1 and at the most op no.1 can claim amount of premium of the crop of Kharif, 2017 i.e. amount of Rs.5587.04 which was returned back in the account of complainant due to lapses on the part of op no.1 insurance company and same will be paid to op no.1 being deferred payment but op no.1 cannot deny insurance claim to the complainant due to its own lapses.
22. Now the question arises as to for how much amount of compensation, the complainant is entitled for the damage of his cotton crop of kharif, 2017? According to the complainant he had sown cotton crop in his 72 kanals 13 marlas of land and has claimed an amount of Rs.1,74,400/- as claim amount for the damage of his cotton crop in Kharif, 2017 on the ground that other farmers of same village have received claim amount at the rate of Rs.19,800/- per acre and there is nothing on file to disbelieve the version of complainant. In our considered opinion said amount of Rs.1,74,400/- for the damage of cotton crop in 72 kanals 13 marlas land is just and proper amount to be paid to the complainant. Besides above said amount, complainant is also entitled to compensation for harassment and litigation expenses from op no.1. However, no liability of op no.2 bank to pay any compensation to the complainant is made out as we have not found any mistake on the part of op no.2 because op no.2 bank duly discharged its duty by sending mails (Ex.R4 & Ex.R5) to op no.1 and also to its Circle Office, Hisar requesting op no.1 to receive premium amount and retained the premium amount with it in sundry account and waited for the response of op no.1 for receiving the premium. But however, when after lapse of considerable time, op no.1 insurance company did not adhere to the requests of op no.2 bank, it left with no other option and ultimately on 7.10.2017 op no.2 bank refunded back the premium amount to the complainant.
23. Thus, as a sequel to our above discussion, we allow this complaint qua opposite party no.1 insurance company and direct op no.1 to pay an amount of Rs.1,74,400/- as insurance claim amount to the complainant for the damage of his cotton crop of Kharif, 2017 alongwith interest @9% per annum from the date of filing of present complaint i.e. 24.4.2019 till actual payment within a period of 45 days from the date of receipt of copy of this order. We further direct the op no.1 to pay a sum of Rs.10,000/- as compensation for harassment etc. and also to pay a sum of Rs.5,000/- as litigation expenses to the complainant within above said stipulated period. However, op no.1 is well within its right to deduct the amount of Rs.5587.04 as premium amount at the time of payment of claim amount to the complainant or can make separate demand of this premium amount from complainant through op no.2. The complaint qua op no.2 bank stands dismissed. Copy of the order be supplied to the parties free of costs. File be consigned to the record room.
Announced. Member Member President,
Dated: 28.04.2022. District Consumer Disputes
Redressal Commission, Sirsa.
JK
