BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 674 of 2019.
Date of Institution : 21.11.2019.
Date of Decision : 31.10.2023.
1. Madan Lal aged 59 years son of Shri Mansukh, resident of village Jamal, District Sirsa.
2. Amit Kumar aged 32 years son of Shri Madan Lal, resident of village Jamal, District Sirsa, Haryana.
……Complainants.
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 Branch 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
Present: Sh. Mukesh Arya, Advocate for complainants.
Sh. R.K. Mehta, Advocate for opposite party No.1.
Sh. R.K. Chaudhary, Advocate for opposite party no.2.
ORDER
The complainants have filed the present joint 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 complainants are having agricultural land measuring 68 kanals 16 marlas (as detailed in para no.2 of complaint) in the revenue estate of village Jamal, District Sirsa. They are having joint Kissan Credit Card account with op no.2 bank bearing account number 3299008800009040. 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.4804.86 on 29.7.2017 from the account of complainants for insuring cotton crop of Kharif, 2017. That in this way, the complainants had got insured their cotton crop of Kharif, 2017 in 68 kanals 16 marlas of land with op no.1 through op no.2 but to the surprise of complainants, the premium deducted from the account of complainants by op no.2 was deposited back in their account on 17.10.2017. It is further averred that premium was deducted by op no.2 from their account on the cutoff date of the deposition of premium. The complainants inquired about premium amount from op no.2 and they were told that premium for insurance of crop of Kharif, 2017 has been deposited with op no.1. However, the amount was deposited back in their account on 17.10.2017 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 them that op no.1 has not accepted their 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 complainants of the Kharif, 2017 season was damaged and other farmers 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 complainants did not get any claim. When they inquired from the officials of the insurance company, they came to know that op no.2 has not deposited the insurance premium on time with op no.1. That complainants are farmers by profession and are wholly dependent on agriculture income. The complainants approached the ops and requested them to pay the insurance claim for the damage of cotton crop but every time the complainants were informed that they are not liable to pay the insurance claim as their 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, ops appeared. Op no.1 filed written version taking certain preliminary objections. It is submitted that as per complaint loss of cotton crop has been effected in village Jamal, Tehsil and District Sirsa due to the reason mentioned in the loss assess report “Rains not lead to Inundation” which has not been covered under the terms and conditions of the insurance policy. The insurance of farmer has been done on the basis of good faith and declaration made by banker of farmer and if any mistake is done either by complainants or by bank of complainants, insurance company cannot be held liable for claim amount and as such complaint is liable to be dismissed being not maintainable. Other preliminary objections regarding jurisdiction, non intimation, non submission of proof of loss or weather report, limited coverage as per scheme, yield basis claims are decided by Government, no survey no quanification of loss, no privity of contract and non impleading of necessary parties are also taken. On merits, it is submitted that no intimation ever received regarding the loss of crop from the complainants as well as any other agencies. However, the claim of complainants was rejected as the crop loss occurred due to Rains but the same is not leading to Inundation which is covered for loss under the scheme and complainants have made a false, bogus and baseless story just to grab the compensation. It is further submitted that it is not an individual insurance policy like other insurance policies rather it is a group insurance scheme in accordance with agreed terms and conditions of scheme which are binding on all of concerned related to the scheme. The complainants should have approached to DAC & FW department for any kind of grievance related to scheme or claim and the decision of said department would be binding on all state Government/ Insurance Company/ Banks and farmers but instead of this, complainants have approached this Commission by violating standard terms and conditions of scheme. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint qua op no.2 made.
3. Op no.2 also filed written version submitting therein that the bank has debited the premium amount from the account of complainants as insurance premium for Kharif, 2017. As per clause 6.3.1 of revised operational guidelines of PMFBY, the adhar card had been made 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 complainants, they 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, complainants are estopped by their 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 complainants could not be uploaded on the portal of insurance company due to non availability of adhar card and amount debited in the account of complainants was not remitted to the insurance company. As such the amount was refunded back in the account of complainants. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.
4. Complainants tendered in evidence affidavit of complainant Amit Kumar Ex.C1 and copies of documents i.e. letter/ report of Deputy Director Agriculture department, Sirsa Ex.C2, adhar cards Ex.C3, Ex.C4, pass books Ex.C5, Ex.C6, jamabandi for the year 2012-2013 Ex.C7, mutation Ex.C8, CM Window action taken report Ex.C9, and application for information under RTI Ex.C10.
5. On the other hand, op no.2 has tendered affidavit of Sh. Ravi Kumar, Branch Manager as Ex.R1 and copies of documents i.e. mail of insurance company dated 31.7.2017 Ex.R2, mail of bank sent to insurance company on 9.10.2017 Ex.R3, mail of insurance company Ex.R4 and mail sent by bank to Chief Manager, Circle Office, Hisar as Ex.R5.
6. Op no.1 did not lead any evidence despite availing several opportunities.
7. We have heard learned counsel for the parties and have gone through the case file carefully.
8. Learned counsel for the complainants 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 complainants are agriculturists and have also availed crop loan from the opposite party no.2 by mortgaging their agricultural land. He has further contended that as per scheme of Prime Minister Fasal Bima Yojna, the opposite party no.2 deducted premium amount of Rs.4804.86 on 29.7.2017 for insuring the cotton crop of Kharif, 2017 of complainants with the opposite party no.1 insurance company, but to the very utter surprise of complainants, the premium amount of Rs.4804.86 deducted by op no.2 bank on 29.7.2017 was remitted back to their account on 17.10.2017 without any prior information, reason or notice to the complainants. He has further contended that ops have not given any reason to the complainants for not accepting premium by op no.1 and the complainants are not at any fault in this regard. The cotton crop of complainants of Kharif, 2017 was damaged and other farmers of their village have already received insurance claim against damage of their insured cotton crop of Kharif, 2017 but complainants have not received any insurance claim for the damage of their cotton crop of Kharif, 2017. The complainants have suffered financial loss due to the damage of cotton crop of Kharif, 2017 and as such they are also entitled to the claim amount for the same from the ops besides compensation and litigation expenses and prayed for acceptance of complaint.
9. On the other hand, learned counsel for op no.1 while reiterating the contents of written version has contended that op no.1 has not received any premium amount from op no.2 bank for insurance of crop of complainants of Kharif, 2017 and as such op no.1 is not liable to pay any compensation to the complainants. 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. Ld. counsel for op no.1 has also drawn our attention towards clauses 2.9 and 35.5.27 of the operational guidelines of PMFBY according to which only farmers whose data is uploaded on the National Crop Insurance Portal shall be eligible for insurance coverage and Concerned Bank and its branches should ensure uploading / submission of notified crop-wise, insurance unit-wise declarations in prescribed format on National Crop Insurance Portal alongwith details of remittance of premium within stipulated time. Ld. counsel for op no.1 prayed for dismissal of complaint qua op no.1.
10. Learned counsel for op no.2 has contended that op no.1 had not accepted the premium amount for insurance of crop of complainants of Kharif, 2017 due to the reason that adhar card of the complainants was mandatory for enrolment for all the farmers and op no.2 bank made its best efforts to get insured the crop of complainants 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 complainants were also advised to deposit the adhar card with the bank but the complainants refused to get their crop insured and therefore, complaint deserves dismissal.
11. We have duly considered the rival contentions of the parties.
12. The complainants in order to prove their complaint have furnished affidavit of complainant Amit Kumar Ex.C1 in which he has reiterated all the contents of complaint. Further, the complainants in order to prove their ownership over the agricultural land in village Jamal, District Sirsa has placed on file copy of jamabandi for the year 2012-2013 Ex.C7. The complainant has also placed on record copy of their pass book as Ex.C5, from which it is proved on record that on 17.10.2017 premium amount of Rs.4804.86 deducted from their account by op no.2 as insurance premium for insuring the cotton crop of kharif 2017 with op no.1 was returned back to their account.
13. Admittedly, the complainants had taken crop loan against their agricultural land from op no.2 and op no.2 deducted an amount of Rs.4804.86 on 29.7.2017 from their account for insuring the cotton crop of Kharif, 2017 with op no.1 under Pardhan Mantri Fasal Bima Yojna. According to the complainants, the premium amount of Rs.4804.86 deducted by op no.2 bank was remitted back in their account on 17.10.2017 after retaining the same for more than two months and same was remitted back without any justification and reason and they have not received any insurance claim for the damage to their cotton crop of Kharif, 2017. The factum of remitting of premium in the account of complainants is also proved from the copy of pass book.
14. The complainants have alleged that their cotton crop of Kharif, 2017 season was damaged and other farmers 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 they are also entitled to the claim amount. The complainants have also placed on file copy of letter/ report dated 22.12.2021 of Deputy Director, Agriculture and Farmers Welfare Department, Sirsa Ex.C2, 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 complainants 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 their 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 complainants and that other farmers of their village have not received any insurance claim for damage of their cotton crop of Kharif, 2017. From the above said report of Agriculture Department Ex.C2, it is proved on record that there was loss to the crop of cotton of Kharif, 2017 in village Jamal and as such complainants who are also having agricultural land in village Jamal are also entitled to claim amount. The complainants have claimed compensation of the amount of Rs.1,70,280/- at the rate of Rs.19,800/- per acre and there is nothing on file to disbelieve the version of complainants. Moreover, the sum insured amount of cotton crop in 2017 was Rs.69,000/- per hectare and as per formula given in the operational guidelines of PMFBY, the claim amount comes to more than of Rs.1,70,280/- and as such we are of the considered opinion that complainants are entitled to said amount of Rs.1,70,280/- as claimed by complainants.
15. Now the question arises for consideration that which of the opposite parties is liable to pay the claim amount to the complainants? Admittedly the premium amount of Rs.4804.86 was deducted by op no.2 bank on 29.7.2017 from the account of complainants which was to be remitted to op no.1 insurance company for insuring the crop of complainants of Kharif, 2017. However, the premium amount of Rs.4804.86 was remitted back to the account of complainants by op no.2 bank on 17.10.2017 as op no.1 insurance company did not accept the premium amount. No doubt, vide mail Ex.R2 dated 31.7.2017, 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.R3) 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. 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 led any evidence to show that 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.
16. The op no.2 bank has discharged its duty by requesting op no.1 insurance company through email dated 9.10.2017 Ex.R3 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 reason to the op no.2 bank 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 complainants of Kharif, 2017 and as such op no.2 is at any fault. Further more, learned counsel for op no.2 during the course of arguments has also placed on file email of Director Agriculture whereby the banks were informed that GOI has relaxed the provisions of obtaining aadhar number of farmers and last date was extended up to 17.10.2017. So 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.
17. During the course of arguments, learned counsel for op no.1 has vehemently argued that there is no direct contract between complainants and insurance company and contract, if any is with op no.2 bank and complainants 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.”
18. 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.R3 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 complainants being beneficiary of the insurance scheme are 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.4804.86 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 due to its own lapses. The plea of op no.1 that loss of cotton crop due to the reason Inundation and Hailstorm was not covered under the terms and conditions of the insurance policy has also no substance and is without any basis as op no.1 has not led any evidence in this regard and has not placed on file insurance policy. As such op no.1 insurance company is liable to pay the above said amount to the complainants. Besides above said amount, complainants are 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 complainants 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.R3 & 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 17.10.2017 i.e. on the last date to receive premium by op no.1, op no.2 bank refunded back the premium amount to the complainants. The contention of learned counsel for op no.1 that op no.2 was liable to upload data of farmer on portal has also no substance in the facts and circumstances of the present case because op no.1 itself did not accept the requests of op no.2 bank.
19. 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.1,70,280/- as insurance claim amount to the complainants for the damage of their cotton crop of Kharif, 2017 within a period of 45 days from the date of receipt of copy of this order, failing which op no.1 will be liable to pay the above said amount of Rs.1,70,280/- to the complainants alongwith interest @6% per annum from the date of this order till actual payment. We further direct the op no.1 to pay a sum of Rs.10,000/- as composite compensation for harassment and litigation expenses to the complainants within above said stipulated period. However, op no.1 is well within its right to deduct the amount of Rs.4804.86 as premium amount at the time of payment of claim amount to the complainants or can make separate demand of this premium amount from complainants 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 President,
Dated: 31.10.2023. District Consumer Disputes
Redressal Commission, Sirsa.
