BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 209 of 2019.
Date of Institution : 24.04.2019.
Date of Decision : 30.10.2023.
Subhash Chand aged 46 years son of Shri Hari Singh, resident of village Kutiayana, 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
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 24 kanals (as detailed in para no.2 of complaint) in the revenue estate of village Kutiana, District Sirsa. He is having Kissan Credit Card account with op no.2 bank bearing account number 3299008800017409. It is further averred that on 29.07.2017 premium amount of Rs.1821.38 was deducted by op no.2 bank from his account for insurance of his cotton crop of kharif, 2017 with op no.1 as per Pardhan Mantri Fasal Bima Yojna. However, to the surprise of complainant, said premium amount was deposited back in his account on 17.10.2017. 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 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 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 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 and other farmers have received insurance claim against the damage of their cotton crop of Kharif, 2017 at the rate of Rs.16,500/- 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 parties appeared. Op no.1 filed written version raising certain preliminary objections. It is submitted that answering op is not insurer for the alleged crop and crop loss of complainant and no insurance premium has ever been remitted in the account of insurance company and no particulars regarding complainant are uploaded on the portal with detailed particulars regarding land, crop, village, block, loanee etc. or supplied to answering op at any point of time (within time period prescribed in the OGs) for getting the insurance coverage either by farmer/ complainant at his own or through his banker. It is further submitted that op no.2 bank has also admitted regarding no insurance of alleged crop of complainant due to non availability of aadhar card and refusal to get the crop insured by complainant, hence complainant is estopped by his own act and conduct to file the present complaint. That for any lapses/ latches on the part of bank or complainant, they be held responsible and to face the consequence of the same. It is further submitted that op no.2 bank supplied false, incorrect and misleading information in order to avoid their liability and with intent to shifting the liability on answering op deliberately and malafidely as in paragraph no.2 of preliminary objection of reply bank is submitting that complainant alongwith the office bearer of Kisan Union visited the bank and shown their grievances regarding transfer of amount for insurance of crop as they had not authorized the bank to get their crop insured. They were advised to deposit the aadhar card with the bank as insurance was necessary on the instructions from Govt. of India, but they refused to get the crop insured. It is further submitted that whereas in preliminary objection no.1, the bank is submitted that due to non availability of aadhar card details could not be uploaded on the portal and amount was not remitted to the insurance company. Thereafter bank is submitting that Govt. relaxed the condition of compulsory obtaining aadhar card for crop insurance and last date was revised to 17.10.2017 and on 09.10.2017 bank requested insurance company for permission to remit the premium amount and to enter the entries in portal as per new guidelines but insurance company denied to accept the premium. That no such new guidelines of Govt. has been placed on record by op no.2 nor any request has been made by any official of the bank to answering op. It is further submitted that when complainant refused to get his crop insured, then question of any request by bank for insuring the crop of complainant does not arise, hence complaint against answering op is liable to be dismissed. Other preliminary objections regarding maintainability, jurisdiction, non intimation, non submission of proof of loss or weather report, limited coverage as per scheme, yield basis claims are decided by Govt, no survey no quantification of loss, privity of contract and non impleading of necessary parties are also taken. On merits, the pleas taken in the preliminary objections are reiterated, the contents of complaint are denied to be wrong and prayer for dismissal of complaint qua op no.1 made.
3. Op no.2 also filed written version submitting therein that 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 has 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 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.
4. Complainant tendered in evidence his affidavit Ex.C1 and copies of documents i.e. adhar card Ex.C2, bank pass book Ex.C3, jamabandi for the year 2017-2018 Ex.C4CM Window action taken report Ex.C5 and letter/ report of Deputy Director of agriculture department, Sirsa as Ex.C6.
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. statement of account Ex.R2, e-mail of insurance company dated 31.7.2017 Ex.R3, e-mail of bank sent to insurance company on 9.10.2017 Ex.R4, email of insurance company Ex.R5 and email sent by bank to Chief Manager, Circle Office, Hisar as Ex.R6. Op no.1 tendered affidavit of Sh. Sonu Rathi, Legal Manager as Ex.R7.
6. We have heard learned counsel for the parties and have gone through the case file carefully.
7. In so far as damage to the cotton crop of kharif, 2017 is concerned, the complainant has placed on file copy of letter/ report of Deputy Director Agriculture department, Sirsa as Ex.C6 in which it is reported the average yield of cotton crop of kharif, 2017 of village Kutiana was 245.72 Kgs. per hectare and threshold yield of cotton crop of block Nathusari Chopta was 607.14 Kgs. per hectare. So as per this report Ex.C6 and as per operational guidelines of PMFBY, it is proved on record that there was loss to the cotton crop of complainant in kharif, 2017. The complainant has claimed compensation of the amount of Rs.49,500/- for the damage to his cotton crop in his 24 kanals of land at the rate of Rs.16,500/- per acre and we are of the considered view that complainant is entitled to said amount of Rs.49,500/- as he has claimed any exaggerated amount in this regard and even as per formula given in operational guidelines of PMFBY, the complainant is found entitled to the said amount of Rs.49,500/-.
8. Now the question arises for consideration that which of the opposite parties is liable to pay the above said claim amount of Rs,.49,500/- to the complainant? Admittedly the premium amount of Rs.1821.38 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.1821.38 was remitted back to the account of complainant by op no.2 bank on 17.10.2017 as op no.1 insurance company did not accept the premium amount on the ground that aadhar was mandatory and last date for remittance of premium was 16.08.2017. But however, it is proved on record by the op no.2 bank that last date for remittance of premium was extended up to 17.10.2017 by the Government and relaxation regarding entries in portal by non aadhar was also given as is evident from email Ex.R4 and Ex.R6 sent by op no.2 bank to insurance company as well as to their circle office, Hisar. The op no.1 insurance company has not proved on record through any cogent and convincing evidence that relaxation regarding obtaining of aadhar card was not given. The op no.1 insurance company who was having collaboration with op no.2 bank regarding insurance of crops of farmers was required to receive the premium amount of complainant through op no.2 and to insure the crop of complainant of kharif, 2017 but it has failed to do so without any other reason and as such op no.1 insurance company only is liable to pay the above said claim amount to the complainant. At the most the op no.1 insurance company can claim premium amount of Rs.1821.38 which was remitted back in the account of complainant. In this regard we are also fortified with the observations of the Hon’ble Supreme Court of India in the 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 in which the Hon’ble Apex Court 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.”
9. The above said authority is fully applicable to the facts and circumstances of the present case because 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.1821.38 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. As such op no.1 insurance company is liable to pay the above said amount 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.R6) 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 complainant. 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.
10. 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.49,500/- as insurance claim amount to the complainant for the damage of his 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.49,500/- to the complainant 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 complainant within above said stipulated period. However, op no.1 is well within its right to deduct the amount of Rs.1821.38 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 President,
Dated: 30.10.2023. District Consumer Disputes
Redressal Commission, Sirsa.
