BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 22 of 2018.
Date of Instt.:09.01.2018.
Date of Decision:.26. 02 .2019
Sarvan S/o Shoraj resident of village Chinder, Tehsil and District Fatehabad.
...Complainant
Versus
- ICICI Lombard Plot No.149 Fourth floor, Industrial Area, Phase 1 next to Hometel Hotel, Phase 1, Chandigarh.
- Sarva Haryana Gramin Bank, Kharakheri, VPO Kharakheri, Tehsil and District Fatehabad through its Branch Manager.
..Opposite Parties/ Respondents.
Before: Sh.Raghbir Singh, President.
Sh.Jasvinder Singh, Presiding Member.
Dr.Rajni Goyat, Member.
Present: Sh.Pankaj Bansal, Advocate for the complainant.
Sh.Vishnu Delu, Advocate for the OP No. 1.
Sh.Inder Singh Sihag, Advocate 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 (hereinafter to be referred as OPs) with the averments that the complainant is owner in possession of 1/3 share of agricultural land bearing Khasra No.48//20/2, 21/1, 22, 63//3, 4/1, 4/2, 5/1, 6/1, 7/1, 8, 13, 88//12/1 situated in village Chinder, District Fatehabad. It is further submitted that the above said land insured with OP No.1 for a sum of Rs.24,000/- per acre and the total agriculture land which was insured was 3 acres and payment of the premium amounting to Rs.844/- was deducted on 27.07.2016 from the bank account of the complainant bearing No.83598800001327 maintained by the complainant with OP No.2. The above said insurance was under the scheme Pradhan Mantri Fasal Bima Yojna and as such the complainant is the consumer of the Ops as defined in Consumer Protection Act 1986.
2. It is further submitted that the complainant had sown cotton crop in the above said insured land but on account of heavy rains and flood the insured cotton crop was considerably damaged and as such an application on 09.11.2016 in the office of Agriculture Department at Fatehabad was moved by the complainant. Thereafter, on 11.11.2016 the land measuring 3 acres was inspected and loss to the tune of 85% was assessed by the inspecting team in the above said insured land. Therefore, the OP No.1 being insurer is liable to indemnify the complainant in respect of the loss suffered by the complainant.
3. It is further submitted that the complainant got a cotton yield of just 50 kg per acre whereas one acre of land gives a yield of 10 quintals of cotton on an average. The market rate of cotton was Rs.6000/- per quintal in the year 2016. Therefore, the complainant has suffered a loss of Rs.1,71,000/- and the Op No.1 is liable to indemnify the complainant by making him a payment of said amount. It is further submitted that the above said act on the part of Ops amounts to deficiency in rendering service to the complainant and as such the complainant is entitled for compensation amounting to Rs.25,000/-. The complainant has further prayed that the Ops may be directed for making a payment of Rs.1,71,000/- as loss caused to the complainant alongwith Rs.25,000/- as compensation. Hence, the present complaint.
4. On being served the OP No. 1 appeared through its counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, not covered under the policy, jurisdiction, privity of contract, and non-joinder of necessary parties etc. have been raised.
5. In reply on merits, it is submitted that the complainant never supplied any document to prove his version. It is further submitted that the premium was collected by the bank of the complainant and it is responsibility of bank to collect the premium for the crop which is being sown by the loanee in his agriculture land. It is further submitted that no intimation was ever received by the OP no.1 regarding the loss of crop from the complainant as well as from other agency. It is further submitted that the production of any crop should be proved on the basis of record and mere verbal assertion is not sufficient to prove a fact. The claim of the complainant in the present case was rejected as the loss occurred due to heavy rains and speedy winds and the same was covered under the localized damage. Therefore, the case of the complainant was not covered under the individual insurance policy. It is also submitted that the insurance issued to the complainant was not individual policy rather it was a group insurance policy. The complainant should have approached to DAC and FW Department for any kind of grievance related to scheme or claim. However, instead of filing complaint or grievance before DAC and FW Department the complainant approached this Forum. It is also submitted that the complainant never contacted to OP No.1 regarding his claim. It is also submitted that intimation regarding the alleged loss was given by the complainant after a delay of long period i.e. 28.10.2016 whereas as per the terms and conditions of the insurance policy the intimation was to be given within 48 hours from the time of loss. It is further submitted that there is no deficiency on the part of OP No.1 in rendering service to the complainant.
6. OP No.2 also resisted the complaint by filing a written statement wherein various preliminary objections with regard to abuse of process of law, cause of action, suppression of true and correct facts, maintainability etc. have been raised.
7. In reply on merits, it is submitted that in accordance with the terms and instructions of Government dated 27.07.2016 an amount of Rs.2644/- with regard to the land of the complainant measuring 54 Kanals 18 Marlas situated in village Chinder was debited from the account No.82568800000181 of the complainant as premium of cotton crop insurance @ 24000 per acre. The cotton crop of the complainant was got insured by OP No.2 from OP No.1. It is further submitted that if there is any claim regarding the alleged damage of cotton crop of the complainant than the complainant can claim insurance claim from Op No.1 only and not from the Op No.2. The Op No.2 is not liable to pay any amount of alleged damage or any compensation to the complainant. It is further submitted that there is no deficiency on the part of OP No.2 in rendering service to the complainant and as such the present complaint is liable to be dismissed against Op No.2.
8. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to Annexure C-6 and closed the evidence. On the other hand, Sh.Nishant Gera, Authorized Signatory filed his affidavit as Ex.OPW1/A on behalf of OP No.1 and closed the evidence of OP No.1. Learned counsel for the OP no.2 also tendered in evidence the documents as Annexure R1 and R2.
9. The learned counsel for the complainant in his arguments contended that the complainant is having K.C.C. account bearing number 8256880000181 with OP no. 2. The OP no. 1 issued insurance of cotton crop sown by the complainant in 3 acres of agriculture land situated in village Chinder and a total amount of Rs.844/- was debited from his KCC account by OP no.2 as premium of insurance of cotton crop. The insurance of the abovesaid 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 inundation the insured cotton crop of the complainant was considerably damaged. Therefore, on the application of the complainant dated 09.11.2016 submitted in Agriculture Department, Haryana, the abovesaid agriculture land of the complainant was inspected by team consisting of Agricultural Development Officer and surveyor of the OP No.1. After inspection the inspecting team assessed the loss to the tune of 85% vide inspection report dated 11.11.2016. 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. 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.1,71,000/- to the complainant on account of damage of insured crop along-with compensation for mental agony and physical harassment suffered by him.
10. On the other hand, the learned counsel for OP no. 1 vehemently rebutted the contentions raised by learned counsel for the complainant and reiterated the averments made in the written statement filed by OP no. 1. It is further contended by learned counsel that the damage caused to the insured crop of the complainant is not covered under the localized claim. 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 have approached DAC and FW Department for any kind of grievance related to the scheme or for claim and as per the terms and conditions of the insurance policy the decision of the said department would be binding on all the parties. It is further contended by the learned counsel that there is no deficiency on the part of the OP no. 1 in rendering service to the complainant and as such the present complaint is liable to be dismissed.
11. The learned counsel for OP no. 2 in his arguments contended that the complainant is only maintaining KCC account with OP no. 2 and OP no. 2 paid amount of premium to OP no. 1 on behalf of the complainant and no other role is there on the part of OP no. 2. It is further contended by the learned counsel that as per the site inspection report prepared by the Agriculture Department the loss of cotton crop of the complainant is to the tune of 85%. Therefore, if there is any claim regarding the alleged damage even then the complainant can claim assessed loss from OP no. 1 and not from OP no.2. It is further contended that there is no deficiency on the part of OP no. 2 in rendering service to the complainant in the present case and as such the same is liable to be dismissed against OP no. 2.
12. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that under the scheme namely Pradhan Mantri Fasal Bima Yojna (PMFBY) the OP no. 1 issued insurance of cotton crop sown in 3 Acres 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.844/- 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 inundation. On the application submitted by him to Agriculture Department of Haryana the insured crop was inspected on 11.11.2016. The inspecting team comprising of Agriculture Development Officer and the Loss Assessor i.e. representative of OP No.1 vide report dated 11.11.2016 observed that there is a loss of 85% on account of heavy rains and inundation. 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 Annexure C-3, copy of Jamabandi Annexure C-1, copy of Khasra Girdawari (Annexure C-2), copy of KCC Account with OP no. 2 (Annexure C-5).
13. No doubt, insurance scheme was launched by Union of India as Pradhan Mantri Fasal Bima Yojna and certain guidelines were framed regarding the regulations of terms and conditions of the insurance, coverage of the crops and the coverage of the area and it was suggested in the scheme that concerned State Governments will issue the notification in consonance with the scheme. In pursuant to that the State of Haryana issued a notification through Haryana Government Agriculture and Farmers Welfare Department on 17.6.2016 in which relevant points were notified as under:-
1. Crops to be covered (Notified crops)
Cotton, Paddy, Bajra and Maize crops will be covered during Kharif 2016 & Wheat, Barley, Mustard and Gram Crops during Rabi 2016-17.
2. Insurance Unit (IU)
The PMFBY will operate on the principle of “Area Approach” in the Insurance Unit (IU). The IU will be the revenue estate (village).
3. Area to be covered
The PMFBY will be implemented in the entire State on cluster approach.
4. Coverage of Risks and Exclusions
The following stages of the crop and risks leading to crop loss will be covered under the scheme.
- Prevented Sowing/Planting Risk: Coverage of risk in case the insured area is prevented from sowing/planting due to deficit rainfall or adverse seasonal conditions.
- Standing Crop (Sowing to harvesting): Comprehensive risk insurance will be provided to cover yield losses due to non-preventable risks, viz. Drought, Dry spells, Flood, Inundation, Pests and Diseases, Landslides, Natural Fire and Lightening, Storm, Hailstorm, Cyclone, Typhoon, Tempest, Hurricane and Tornado.
- Post – Harvest Losses: Coverage will be available only up to a maximum period of two weeks from harvesting for those crops which are allowed to dry in cut and spread condition in the field after harvesting against specific perils of cyclone, cyclonic rains and unseasonal rains.
- Localized Calamities: Loss/damage resulting from occurrence of identified localized risks of hailstorm, landslide and inundation affecting isolated farms will be covered. General Exclusions: Losses arising out of war and nuclear risks, malicious damage and other preventable risks will be excluded.
- Implementing agencies
- Cluster – I Reliance General Insurance Company Ltd.
- Cluster – II Bajaj Allianz General Insurance Company Ltd.
- Cluster – III ICICI Lombard General Insurance Company Ltd.
- Farmers to be covered
- All farmers including share – croppers and tenant farmers growing the notified crops in the IU will be eligible for coverage under the scheme.
- All farmers availing Seasonal Agricultural Operations (SAO) loans from Financial Institutions (i.e. loanee farmers) for the notified crops would be covered compulsorily.
- The scheme will be optional for the non-loanee farmers.
- Indemnity Level
The indemnity level will be 90% in case of all the notified crops.
14. In the present case it is not disputed that OP no. 1 had issued insurance of cotton crop sown in 17 Kanals 8 Marlas of agriculture land of the complainant. It is also not disputed that premium of Rs.844/- 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 09.11.2016 submitted by the complainant the insured crop was inspected on 11.11.2016 by a team comprising of Block Agriculture Development Officer and Loss Assessor i.e. representative of OP No.1. It is also not disputed that vide inspection report the inspecting team observed that there is a loss of 85% in insured crop. Vide inspection report Annexure C-3, it is also observed that damage had occurred to the insured crop on account of heavy rains and speedy wind and stagnation of water/ inundation.
15. 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 inter-alia 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 correct.
16. Vide inspection report dated 11.11.2016 (Annexure C-3), the inspecting team in the column of reason of loss to the crop has opined that loss to the insured crop has been caused on account of rain falls, speedy winds, stagnation of water/ inundation. In view of the above, the loss to the insured crop has been caused on account of inundation of the cotton field and as such the same is covered in the localized calamities
17. 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 inundation. 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).
18. It is also pertinent to mention here that in similar situated cases the Ops have already paid compensation to the farmers whose insured crop was damaged on account of heavy rain falls, water stagnation and inundation. From perusal of the copy placed on record as Mark A, it is evident that in a number of cases wherein loss to the crop was on account of heavy rains and inundation was caused to the insured farmers for the crop of Kharif 2016. It has been decided by the OP No.1 that the insurance claim is payable. Therefore, the Ops cannot adopt the policy of pick and choose for making the payment of the compensation for the insured crop.
19. So, in view of the aforesaid discussion, we are of the considered opinion that the complainant has been able to prove the deficiency on the part of OP No.1 in rendering service to the complainant. The present complaint is accordingly allowed.
20. Regarding quantification of loss, it is submitted that as per written statement filed by the OP No.2, 17 Kanals and 8 Marlas of cotton crop of complainant was insured for Kharif 2016. As per Annexure C-3 the complainant has suffered a loss of 85% in the above said cotton crop area. As per terms and conditions of the policy the OP No.1 had insured the cotton crop in question @ Rs.24,000/- per acre. So, keeping in view the 85% loss, the complainant in the present case has suffered the loss of Rs.20,400/- in one Acre and Rs.44,350/- in 17 Kanals and 8 Marlas i.e. the total insured area. Therefore the OP No.1 is directed for making a payment of Rs.44,350/- to the complainant alongwith interest @ 8% from the date of filing of the present complaint till its realisation. The OP no. 1 is also further directed for making a payment of Rs.3100/- 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 @ 9% per annum during the period of default. No deficiency has been proved 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:26.02.2019
(Raghbir Singh) President
(Rajni Goyat) (Jasvinder Singh) Distt. Consumer Disputes
Member Member Redressal Forum, Fatehabad.
