DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 25th Day of November 2011 Present : Smt.Seena H, President : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member Date of filing: 09/01/2009 (C.C.No.6/2009) K.R.Jayaram Kumar, Kulappadam Estates, Kumaramputhur (PO), Mannarkkad,Palakkad (Party in Person) - Complainant V/s 1.National Insurance Co.Ltd. Divisional Office, Kottayam. (By Adv.Rajivijaya Sankar) 2.Rubber Board, Rep.by the Chairman, Head Office, Kottayam (By Adv.Girish K Nochulli) 3. Rubber Board Regional Office, Mannarkkad Rep.by Deputy Rubber Production Commissioner, (By Adv.Girish K Nochulli) - Opposite parties O R D E R By Smt.SEENA.H. PRESIDENT Facts that lead to the filing of the present complaint is as follows: Complainant has been insuring his rubber plantation since 1991 with 1st opposite party through 3rd opposite party. In the brochure issued by 1st opposite party, its clearly stated that the compensation for a damaged tree to be paid is Rs.250/- per tree for the age group 17 – 22 years. Complainant was paid compensation as per the said calculation from 1991 till 2004. In the brochure its also stated that the maximum liability of the insurer for plantation in the age group 8 – 22 years would be Rs.60,000/ha. On 27/2/2003 complainant insured 1978 replanting having 3311 trees by payment of Rs.7395/- as premium vide policy dated 13/3/2003 having coverage for 3 years. On 28/2/2002 insured 1988 replanting having 4258 trees by paying Rs.5368/- as premium vide policy dated 28/8/02. On 13/5/05, 30 trees in 1978 replanting and 48 trees under 1988 replanting were damaged for which complainant was paid Rs.2757/- and Rs.5012/- respectively by adopting Maximum liability --------------------- x No.of trees damaged 479 trees as the mode of calculation. According to complainant the mode of calculation is wrong. On 19/8/05 also 28 trees were damaged under 1978 replanting for which Rs.2507 was paid adopting the same calculation. According to the complainant, balance amount in all these claims is payable by opposite parties. In the year 2006, rate of premium and compensation was raised as per the advertisement of 1st opposite party. There by compensation for damaged tree was Rs.500/- for the age group 17 – 22 years and maximum liability was Rs.1,25,000/ ha. It was also stated that insurance cover starts 30 days after payment of premium. Accordingly complainant applied for insuring 1988 replanting by payment of premium on 12/5/2006. On enquiry it was understood that date of acceptance of the same is on 21/7/2006 and date of issue of policy is 22/5/2006. On 17/7/06 31 trees in the said area was damaged. But the claim preferred was repudiated on the ground that the insurance cover starts 30 days after the date of acceptance by 1st opposite party. So according to complainant, the amount for the said damages also is payable by opposite parties. On 11/7/07 12 trees in the same area was damaged for which adopting the same untenable calculation paid only Rs.4400/- and the balance is payable by opposite parties. Complainant has applied to the Insurance Ombudsman for relief, but Ombudsman has only partially allowed his complaint. Hence the complaint. Complainant is claiming a sum of Rs.47,404/- together with interest being the claim payable and balance claim payable together with compensation. Opposite parties filed version contending the following: Policy is admitted by all opposite parties. As per the version of 1st opposite party since the Ombudsman has passed the award, applying the rule of resjudicata complaint is not maintainable before the Forum, 1st opposite party is settling claim as per the recommendations of the Rubber Board. Complainant has made a claim on 17/7/2000 under certificate No.7498 & 7455 for damage of 235 trees. Opposite party recommended for 160 trees and the said claim was paid. Aggrieved by this complainant has taken up the matter before Ombudsman who in turn dismissed all other claim except one for 75 trees. 1st opposite party is issuing rubber plantation insurance based on a memorandum of understanding with 2nd opposite party. Opposite party No.1 is issuing a common policy number to the scheme. Certificate which contains the elaborate provisions of the scheme are issued to each beneficiary. As per the certificate, the insurer has the liability to arrive the compensation either by maximum liability basis or on tree basis as per condition No.(d) of the certificate of insurance. 1st opposite party has arrived at the amount as follows: Plantation gap of 15 x 15 between trees, there will be a minimum of 479 trees in a hectare. Maximum liability x No.of trees lost --------------------------------------------- less 10% or Stand per hectare Rs.1,000 which ever is higher or excess i.e. Rs.60,000 x 30 ---------------------- = 3758 less 1000 479 = 2758 1st opposite party followed the same formula for the loss of the next 48 trees and 28 trees. Further as per the 2006 revised scheme it is clearly stated in the certificate of insurance that the risk commences only after 30 days from the receipt of premium at the insurers exchequer. Hence 1st opposite party is only liable to pay claim for loss occurring after 30 days on receipt of premium. The remittance of the policy amount before the Rubber Board is not the criteria for the commencement of the risk because Board is only collecting the amount for the convenience of the planter and the real contract is between the insurer and the Rubber Board. Hence the premium of the complainant is accounted only on 21/7/2006. Hence Policy commenced only from 21/8/06. Certificate of insurance issued to the complainant contains all the terms and conditions of the policy. In this case, the trees were lost before the commencement of the risk and therefore the complainant is not eligible for compensation. 2nd and 3rd opposite party also filed version. 2nd and 3rd opposite party also has raised a contention that complaint is not maintainable since resjudicata applies. Further submitted that the insurance is based on a Memorandum of understanding between the Board and the Insurance Company. Rubber Board Regional office collects the amount towards premium and transfer the same to the Head Office. Insurance company collects the amount from the Head Office. Coverage of the insurance is for 3 years from the date of acceptance of premium by the Insurance Company. Compensation is given only for the fully damaged trees. The insurance certificate is issued by the insurer to the insured which contain the terms and conditions of the policy. The planter, remit the premium at their choice at the Regional Office of the Rubber Board. The Office send the amount collectively along with the list of planters on closing of the monthly account to the Head Office. Further Head Office remits the amount with the Insurance Company for acceptance. Cover incepts only after one month of date of acceptance by the Insurance Company. The Board is rendering the service free, whenever growers report claim to the Rubber Board, technical officers conduct inspection and reports the extent of compensation for the number of trees lost beyond rejuvenation according to the norms. Company is at liberty to make their own assessment and determine the amount of compensation. They can also conduct inspection of their own. Therefore 2nd and 3rd opposite party are unnecessary parties to the proceedings. The evidence led by the parties consists of their respective proof affidavits. Ext.A1..A39 marked on the side of the complainant. Opposite parties filed their chief affidavit. Ext.B1 to B.10 marked on their side. Issues for consideration are - Whether there is any deficiency in service on the part of opposite parties ?
- If so, what is the relief and cost complainant is entitled to ?
Issue No.1 We heard both parties and has gone through the entire evidence on record. Going through the facts of the case, we feel that to determine whether there is any deficiency in service on the part of opposite parties, the following points has to be answered first. - Whether ‘Resjudicata’ is applicable in this case ?
- Whether the calculation adopted by the 2nd opposite party for releasing the claim for 1978 and 1988 replanting is in accordance with the terms and conditions of the policy ?
- Whether the condition stipulated in the policy that the cover incepts 30 days after the acceptance of premium has to be taken to mean acceptance of premium by the Rubber Board or the Insurance Company.
- If its acceptance by the Insurance Company, whether the Board can be made liable for the delay in remitting the premium to the Insurance Company.
Point No.1 Opposite parties has contented that the complaint is not maintainable since it is already decided by the Ombudsman and hence resjudicata applies. As per Section 11 CPC, resjudicate applies only when the proceedings have been finally decided by a court constituted under the CPC. The award of the Ombudsman can never be treated as a decision of a court. Hence we find that complaint is maintainable before the Forum. Point No.2 Complainant is claiming balance claim amount payable by the opposite parties for the four incidents. - Loss of 30 trees in the 1978 replanting
- Loss of 48 trees in the 1988 replanting
- Loss of 28 trees under 1978 replanting
- Loss of 12 trees under 1988 replanting
According to opposite parties in all these cases, claim amount was paid by following the calculation. Maximum liability x No. of trees lost -------------------------------------------- Stand per hectre We have gone through the brochure and policy certificate covering the said loss. In Ext.A1 brochure scale of compensation payable for trees for a particular age group is clearly stated. Compensation payable for trees of the age group 17 to 22 is Rs.250/ per tree. It is also stated that maximum liability of the insurer for plantations in the age group 8 to 22 years would be Rs.60,000/- By this statement we understand that what ever may be the loss of the insured, the maximum liability of the insurer is limited to Rs.60,000/-. No where in the brochure the calculation adopted by the Insurer viz., Maximum liability x No. of trees -------------------------------------------- is seen. Stand per hectare The planter will be opting for insurance policy by going through the brochure. The Memorandum of understanding is between the insurer and the master policy holder i.e. the Rubber Board. Both parties have no contention that the contents of the MOU is made known to every insured planter. Hence we are of the view that claim as to the matters referred above has to be calculated on tree basis. Therefore the Insurance Company is liable to pay the balance amount on the said claims. Point No.3 & 4 The question to be decided is what is the exact point of time at which risk commences. The grievance of the complainant is that 1988 replanting was insured by payment of premium at the Rubber Board Regional Office on 12/5/06. Date of acceptance of the same is seen as 21/7/06 and date of issuing of policy is 22/8/2006. Hence the opposite parties repudiated the claim for loss of 31 trees dated 17/7/06 on the ground that the cover starts 30 days after the date of acceptance by 1st opposite party. All the opposite parties contented that the risk commences only after 30 days from receipt of premium at the insurance company and it is clearly stated in the certificate of insurance. The disputed claim is with respect to the revised scheme in the year 2006. As per Ext.A8 complainant has paid the premium on 12/5/2006. As per Ext.A9 date of issue of the policy is 22/8/2006. Ext.A9 also reveals the fact that the policy is accepted by the company on 21/7/2006. It is true that the risk commences only 30 days after acceptance of premium by the Insurance Company. But the question is whether there is any time stipulation for payment of premium collected at the Regional Office to the Insurance Company. Complainant here in has paid premium on 12/5/2006 as per Ext.A8. In Ext.A6 Brochure is specifically stated that “doPnbW Hm^okn ]Ww AS¨v GsX¦nepw ImcWhim 2 amk¯n\Iw kzoIcn¨ C³jqd³kv kÀ«n^n¡Áv e`n¡p¶nsæn DSs\ {]kvXpX Hm^okpambn _Ôs¸«v t]mfnkn hm§Ww”. So its understood that maximum period for issuing the policy is 2 months. Here the date of acceptance of the premium by the company is 21/7/2006 i.e. after 2 ½ months. As per the MOU marked as Ext.B7 the method of implementation of the scheme is specifically stated. Method of implementation of scheme All Regions should submit area wise list of planters along with permit details to the insurer in advance in triplicate. Proportional premium should be deducted from the subsidy and that amount should be transferred to H.O. Rubber Board. The Insurer will collect that amount from H.O. of the Insured collectively. The risk will commence after 30 days of receipt of the premium. So at any cost the insured can not be made liable for the delay in accepting the premium. The damage caused to the complainant was on 17/7/2007 i.e. after 2 months after payment of premium at the Regional Office of the Rubber Board. The Rubber Board also failed to intimate the payment details to the company. So it is seen that the complainant was made to suffer for no fault of his. Hence with regard to this issue we feel that all opposite parties are liable to pay compensation to the complainant. We find that claim as such is not payable since there is a specific condition with respect to the commencement of the risk in the policy. In view of the above stated discussions we are of the view that there is deficiency in service on the part of opposite parties and complainant is entitled for the balance payment with respect to the 4 claims and compensation with respect to the repudiated claim and cost of the proceedings. In the result we allow the complaint and order the following. - 1st opposite party is directed to pay complainant an amount of Rs.28,000/- (Rupees Twenty eight thousand only) being the balance amount payable with respect to the four claims.
- All opposite parties jointly and severally directed to pay Rs.30,000/- (Rupees Thirty thousand only) as compensation for the loss on account of the repudiation of claim and deficiency in service on the part of opposite parties and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings.
- Order to be complied with in one month from the date of receipt of order failing which the whole amount shall carry 9% interest per annum from the date of order till realization.
Pronounced in the open court on this the 25th day of November 2011 Sd/- Seena.H President Sd/- Preetha G Nair Member Sd/- Bhanumathi.A.K. Member APPENDIX Exhibits marked on the side of the complainant Ext.A1 – Publicity brochure of the National Insurance Company (1991) Ext.A2 - Insurance policy covering 9.39HA of Rubber plantation having 3311 trees. Ext.A3 – Copy of Application to insure 10.8 HA of rubber plantation having 4258 trees. Ext.A4 – Receipt issued by Rubber Board premium paid for Rs.5368 Ext.A5 – Insurance certificate No.7153 issued by opposite parties dated 28/08/2002 for 10.8HA Ext.A6 – Copy of publicity brochure of the National Insurance Company (2006) Ext.A7 – Copy of Application to insurance 10.8HA of rubber plantation 4007 trees Ext.A8 – Receipt issued by Rubber Board premium paid for Rs.12118 Ext.A9 – Insurance certificate issued by opposite parties dated 22/08/2006 Ext.A10 –Letter to Rubber Board dated 17/07/2006 intimating policy has not been received. Ext.A11 – Letter to rubber Board intimating damage to 31 trees. Ext.A12 – Claim form to the same. Ext.A13 – Copy of award Insurance Ombudsman, Kochi dated 01/04/2008 Ext.A14 Series – Letter dated 14/05/2008 sent to Insurance Ombudsman, Kochi along with courier receipt. Ext.A15 – Letter sent to Rubber Board Chairman, Kottayam dated 17/07/2008 along with courier receipt . Ext.A16 – Reply letter dated 05/08/2008 received from Rubber Board, Kottayam. Ext.A17 – Copy of Master policy No.570600/47/07/93/000251 dated 23/12/1993 for immature arrears. Ext.A18 – Copy of Memorandum of understanding dated 30/03/2007. Ext.A19 – Letter to Rubber Board dated 16/08/2008. Ext.A20 – Reply dated 08/09/2008 received from rubber Board. Ext.A21 – Copy of application under RI Act 22/09/2008 sent to Chairman, Rubber Board. Ext.A22 – Reply to application under RI Act dated 04/11/2008 Ext.A23 – Copy of covering letter dated 03/10/2008 received from Rubber Board, Kottayam. Ext.A24 – Copy of Master policy No.603500/3300119/89 dated 19/05/89 Ext.A25 – Copy of Memorandum of understanding dated 09/01/2007. Ext.A26 – Application under RI Act dated 22/09/2008 to the National Insurance Company, Kottayam. Ext.A27 – Reply of National Insurance Company dated 23/12/2008 Ext.A28 – Copy of letter sent to Rubber Board, Mannarkkad 19/12/2006. Ext.A29 – Covering letter sent to National Insurance Company, Kottayam dated 04/10/2000. Ext.A30 – Receipt dated 25/08/2005 issued by National Insurance company, Kottayam. Ext.A31 – Receipt dated 24/10/2010 issued by National Insurance company, Kottayam. Ext.A32 series– Complaint to Grievance National Insurance Company 24/08/2007 along with courier acknowledgement. Ext.A33 – Reply to Greivance National Insurance Company dated 21/11/2007. Ext.A34 – Copy of Publicity brochure of National Insurance Company with certain notings. Ext.A35 – Office note dated 16/02/2009 of Rubber Board, Kottayam. Ext.A36 – Copy of Office Circular dated 28/07/1989 of Rubber Board, Kottayam Ext.A37 – Letter under RI Act dated 23/01/2009 sent to National Insurance company Kottayam Ext.A38 - Reply letter dated 17/02/2009 of national Insurance Company, Kottayam Ext.A39 series – Rubber Grower’s Companion containing Rubber Board functions & activities, Rubber statistics etc. Exhibits marked on the side of the Opposite parties Ext.B1 – Copy of the order of Hon’ble Ombudsman for Insurance. Ext.B2 – Copy of Certificate No.7153 issued by Insurance Company Ext.B3 – Copy of plantation stand per hectare chart of Rubber Board. Ext.B4 – Copy of Field Inspection Report dated 31/5/05 Ext.B5 – Copy of Field Inspection Report dated 31/5/05 Ext.B6 – Copy of Field Inspection Report dated 9/9/05 Ext.B7 – Copy of Memorandum of Understanding relevant to the period dt.9/1/06 Ext.B8 – Copy of Memorandum of Understanding applicable w.e.f. 1/4/07 Ext.B 9 – Copy of letter sent by 2nd opposite party to complainant dated 8/9/08 Ext.B10 - Copy of letter sent by 2nd opposite party to complainant dated 5/8/08 Cost Allowed Rs.2,000/- allowed as cost of the proceedings. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Civil Station, Palakkad 678001, Kerala
Dated this the 27th day of January, 2010
Present: Smt.Seena.H, President Smt.Preetha.G.Nair, Member Smt.Bhanumathi.A.K, Member
C.C.No.6/2009
K.R.Jayaram Kumar, Kulappadam Estates, Kumaramputhur.P.O, Mannarkkad, Palakkad. - Complainant (By Adv.K.R.Kochu Narayanan) Vs
1. National Insurance Co. Ltd., Divisional Office, Kottayam. (By Adv.Rajivijaya Sankar)
2. Rubber Board, Represented by the Chairman,
Head Office, Kottayam. (By Adv.Girish.K.Nochulli)
3. Rubber Board Regional Office, Mannarkkad, Rep by Deputy Rubber Production Commissioner - Opposite parties (By Adv.Girish.K.Nochulli)
O R D E R
By Smt.Seena.H, President
Brief case of the complaint:- Complaint is regarding repudiation of the insurance claim of the complainant. Complainant has been insuring the rubber plantations with the National Insurance Company through the Rubber Board. It is the case of the complainant that on 27.02.03 he insured 9.39 ha of 1978 replanting having 3311 trees by payment of Rs.7395/- to 1st opposite party. Like wise on 28.8.02 he insured 10.80 ha of 1988 replanting having 4258 trees by paying Rs.5368/- as premium to Rubber Board, Regional Office. On 13.05.05 30 trees covered under the former policy and 48 trees covered under the latter policy were damaged.
Complainant was paid only Rs.2757/- and Rs.5012/- respectively by adopting untenable calculation viz maximum liability/479 trees X No. of trees damaged. The grievance of the complainant is that he is entitled for the balance amount. On 19/8/05, again 28 trees were damaged under the area covered under the 1st policy. An amount of Rs.2507/- was only paid by adopting the same untenable calculation. Opposite parties are liable to pay the balance amount to the complainant. Subsequently the rates of premium and compensation were revised in May 2006. As per the new advertisement brochure, compensation for damaged trees is Rs.500/- for the age group 17-22 years. It is also stated that the maximum liability of the insurer is Rs.1,25,000/-/ha and was taken to mean that in the event of a total loss claim, the insurer would be at liberty to restrict payment to Rs.1,25,000/- or that once the total of many claim reaches Rs.1,25,000/-, the insurer can refuse further payment. It is also stated that insurance cover starts 30 days after payment of premium. Accordingly complainant applied for insuring 1988 replanting on 25.04.06. On 12.05.06 complainant insured the said area by paying a premium of Rs.12118/- to the Rubber Board Regional Office. In the policy sent by the company on request, it is seen that the date of acceptance as 21.07.06 and date of issue as 22.08.06. On 17.07.06, 31 trees in this area were damaged. But the claim was repudiated on the ground that insurance cover starts 30 days after date of acceptance by the company. On 11.07.07, 12 trees in this area were damaged and the complainant was paid only Rs.4400/- and the complainant is entitled for the balance amount.
Matter was remitted back by the Hon’ble State Commission directing the forum to hear both sides and dispose of the preliminary issue by a considered order. Heard both parties in detail regarding the preliminary issue of limitation.
Going through the facts of the case we understand that the grievance of the
complainant is regarding repudiation of one claim and partial repudiation of 3 other claims.
Regarding the claim dtd.13.05.05, it is seen that the opposite party has inspected the site on 20.05.05 itself and an amount of Rs.2751/- and Rs.5012/- was disbursed for damages of 30 trees and 48 trees. Complainant’s case is that calculation adopted is not correct and he is entitled for the balance amount. Regarding the claim dtd.19.08.05 it is seen that the opposite party has inspected the site on 29.08.05 itself and an amount of Rs.2507 was disbursed to the complainant. In this case also complainant claims balance amount from the opposite parties. In both these it is seen that the claim is with respect to a damage occurred in the year 2005. Complaint is filed in the year 2009. Complainant has stated in the delay condonation petition that it is usual practice of the opposite parties to cause delay for about 6 to 42 months in disbursing the claims. That stand of the complainant cannot be accepted for not filing the complaint in time. Complainant has not properly explained the delay for not filing the complaint in time.
With respect to the other claims dtd.17.07.06 the date of repudiation of the claim is not stated in the complaint. Regarding the claim for damages caused to the rubber trees on 11.07.07 it is stated that only an amount of Rs.4,400/- was disbursed and the complainant is entitled for the balance amount. In the said case also date of payment is not stated. Even then as the damages is caused on 11.07.07, complaint filed on 09.01.09 can be said to be filed in time. But as the complainant has clubbed all the claims together we are not in a position to allow the petition as such.
In these circumstances, we dismiss the complaint with liberty to the complainant to file fresh complaint.
Pronounced in the open court on this the 27th day of January, 2010 Sd/- Seena.H, President Sd/- Preetha.G.Nair, Member Sd/- Bhanumathi.A.K, Member | 
