BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 447 of 2019
Date of Institution : 07.08.2019.
Date of Decision : 09.08.2021.
Dalbir Singh, aged about 33 years son of Sh. Rajinder Singh, resident of village Kheowali, Tehsil Kalanwali, District Sirsa.
……Complainant.
Versus.
- Oriental Insurance Company, Janta Bhawan Road, Near Anaj Mandi, Sirsa, Tehsil and District Sirsa through its Manager/ Proprietor.
- Axis Bank, Branch Kalanwali, District Sirsa through its Manager.
- Deputy Director of Agriculture Department, Sirsa (Haryana)
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. JASWANT SINGH…………………………PRESIDENT
MRS.SUKHDEEP KAUR………MEMBER.
Present: Sh. K.J. Singla, Advocate for complainant.
Sh. Rakesh Bajaj, Advocate for opposite party No.1.
Sh. M.S. Sethi, Advocate for opposite party no.2.
Sh. Satvir Singh, ASO for opposite party no.3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment under Section 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as Ops) on the averments that complainant is an agriculturist and is owner of 24 kanal land situated at village Kheowali, Tehsil Kalanwali, District Sirsa. He is having his account with op no.2 vide account No. 915030035277374. It is further averred that complainant sown crop of the kharif, 2018 season in his above said land. The op no.2 got insured the crop of complainant with op no.1 and debited the amount of premium of Rs.1813.11 from his account. That at the time of insurance of crop, it was assured by op no.1 to the complainant that in case of damage to the crop of complainant, they will make payment of Rs.17,300/- per acre. That cotton crop of complainant of Kharif, 2018 was completely destroyed and the complainant visited the office of ops to get insurance claim for the damage of his crop but the ops did not adhere to the requests of complainant and finally refused to make compensation of Rs.51,900/- to the complainant as per Prime Minister Fasal Bima Yojna. It is further averred that as per PMFBY scheme, it is the duty of op no.2 bank to get the crop insured from op no.1 till 31st July, 2017 and to provide all relevant documents to op no.1. If due to any fault of op no.2, the insurance premium is refunded into the bank account of complainant, then op no.2 is liable to pay insurance claim alongwith compensation, otherwise op no.1 is liable to pay the compensation to the complainant. That in this manner, both the ops have committed gross deficiency in service towards the complainant and have caused financial loss as well as harassment to the complainant. Hence, this complaint.
2. On notice, opposite parties appeared. OP no.1 filed written version taking certain preliminary objections. It is submitted that it is clarified that except localized claims, all other perils were to be finalized by government agencies on the basis of yield of crop and thereafter, claims were to be paid to bank of farmers. The insurance company is playing a role of implementing agency in the scheme in accordance with guidelines prescribed by Government. Further more, in localized claims, three perils are covered under the scheme i.e. Hailstorm, Landslide and Inundation affecting isolated farms in the notified area. For localized claims, there was a condition for immediate intimation of claim within 48 hours of loss. After intimation of claim, necessary survey of affected area had to be conducted by surveyor for decision of claim of farmers. 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 complainant 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/ Bank and farmers. But instead of filing complaint or grievance before DAC & FW department, the complainant has approached this Forum by violating standard terms and conditions of scheme and thus, present complaint cannot be adjudicated before this Forum. It is further submitted that complainant never intimated any claim to insurance company for loss of crop and thus, connected story of claim of complainant cannot be believed in absence of credible evidence of loss of crop and proof of timely intimation of claim. Merely allegation of claim intimation is not enough to establish that loss had actually occurred. Further, in absence of immediate intimation of claim, survey of damage field could not be conducted and therefore, it is almost impossible to determine quantification of loss. As per guidelines of scheme, immediate intimation was to be given within 48 hours but complainant has failed to give any claim intimation to company for loss of crop which reveals violation of terms and conditions of scheme. Other preliminary objections regarding non submission of proof of loss or weather report, limited coverage as per scheme, yield basis claims are decided by Government, no survey no quantification of loss, no privity of contract, non impleading of necessary parties and involvement of complicated facts and law are involved are also taken. On merits, it is submitted that op no.1 used to do the insurance of crop on the information supplied by the bank i.e. op no.2 and there is no direct contract in between the complainant and op no.1 as the present crop insurance is done under the group insurance scheme as per the terms and conditions of Pardhan Mantri Fasal Beema Yojna as per information supplied by the bank to insurance company. On portal, there is no entry of insurance in respect of the crop of complainant till the closure of the Portal and as per record, there is no loss suffered to the crop of complainant and due to this reason, no compensation is payable to the complainant. Remaining contents of complaint are also denied. With these averments, prayer for dismissal of complaint made.
3. Op no.2 filed written version raising certain preliminary objections. It is submitted that an amount of Rs.1813.11 has been debited to the account of complainant on 26.7.2018 and was paid to op no.1 for insuring the kharif crops of complainant as proposed by him in his loan application. It is further submitted that as per clause 19 (XXII) of Haryana Govt. Agriculture and Farmer, Welfare Department Notification No. 941-Agri-II (I)- 2018/ 4332 dated 30.3.2018, Insurance Company shall verify the data of insured farmers pertaining to area insured, area sown, address, bank account number (KYC) as provided by the banks independently on its own cost within two months of the cutoff date and in case of any correction must report to the State Govt. failing which no objection by the insurance company at a later stage will be entertained and it will be binding on the insurance company to pay the claim. It is further submitted that insurance company op no.1 has accepted the premium for insuring crop of complainant then they are liable to pay the compensation to the complainant. If insurance company has not insured the crop of complainant, then they had to refund the amount of premium and if any loss has been caused to the complainant, then op no.1 is liable to compensate the complainant. It is further submitted that an amount of Rs.39679.18 has been credited in the account of complainant on 12.2.2019 as insurance claim for Kharif, 2017. Remaining contents of complaint are also denied and prayer for dismissal of complaint qua op no.2 made.
4. Op no.3 also filed separate written version raising certain preliminary objections as taken by op no.1. It is submitted that yield basis claims are settled by the insurance company only after completion of other necessary formalities as prescribed in operational guidelines of scheme, which have already been given by answering op within specific time period as prescribed by Government of India and the same has already been sent to the ops as well as to higher authorities. Remaining contents of complaint are also denied and prayer for dismissal of complaint qua op no.3 made.
5. The parties then led their respective evidence.
6. Learned counsel for complainant has tendered in evidence affidavit of complainant as Ex.CW1/A, document regarding particulars of complainant issued by Bank Ex.C1, copy of statement of account Ex.C2, copy of jamabandi for the year 2017/2018 Ex.C3, copy of khasra girdawari Ex.C4.
7. On the other hand, Sh. Satvir Singh, Assistant Statistical Officer on behalf of op no.3 has tendered affidavit of Sh. Babu Lal, Deputy Director of Agriculture, Sirsa as Ex.R1, copy of Haryana Government notification dated 30.3.2019 Ex.R2 and copy of village wise tabulation sheet of sum insured and claim under PMFBY During Kharif, 2018 Ex.R3.
8. Learned counsel for op no.2 has tendered in evidence affidavit of Sh. Sonu Dhaka, Manager & Principal Officer as Ex.R4, copy of statement of account as Ex.R5, copy of loan application Ex.R6.
9. Learned counsel for op no.1 has tendered affidavit of Sh. S.K. Malhotra, Senior Divisional Manager as Ex.RW4/A.
10. We have heard learned counsel for the parties as well as Sh. Satvir Singh, ASO on behalf of op no.3 and have perused the case file carefully.
11. Learned counsel for the complainant has contended that as per Prime Minister Fasal Bima Yojna (PMFBY scheme), which was launched in the year 2016, the crops of every farmers who have obtained crop loan from any Financial Institutions i.e. Banks etc. and are growing notified crops were to be compulsorily insured with the insurance company by the Bank of the loanee farmers. The complainant is an agriculturist and has also availed crop loan from the opposite party no.2 by mortgaging his 24 kanals of 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.1813.11 on 26.7.2018 for insuring the cotton crop of Kharif, 2018 of complainant with the opposite party no.1 insurance company. That cotton crop of complainant of Kharif, 2018 was completely destroyed but the complainant has not received any claim amount from the insurance company or bank despite his repeated requests in this regard. The complainant has suffered financial loss due to the damage of cotton crop of Kharif, 2018 and as such he is also entitled to the compensation for the same and prayed for acceptance of the complaint.
12. On the other hand, learned counsel for op no.1 while reiterating the contents of written version has contended that complainant is not consumer of op no.1 as there is no direct contract in between the complainant and op no.1 as the crop insurance is done under the group insurance scheme as per the terms and conditions of the scheme as per information supplied by the bank to the insurance company. On portal, there is no entry of insurance in respect of the crop of complainant till the closure of the portal and as per record, there is no loss suffered to the crop of complainant. So, no compensation is payable to the complainant and prayed for dismissal of complaint.
13. Learned counsel for op no.2 has contended that bank has discharged its duty in pursuance of the insurance scheme of the Government of India by debiting the amount of Rs.1813.11 from the account of complainant on 26.7.2018 for insuring the crop of complainant of kharif, 2018 with op no.1 and said premium amount of Rs.1813.11 was remitted in the account of op no.1. As per clause 19 (XXII) of Haryana Government Agriculture and Farmer Welfare Department Notification dated 30.3.2018, it is the duty of the insurance company to verify the data of insured farmers pertaining to his area insured, area sown, address and bank account number as provided by the banks independently on its own cost within two month of the cut off date. In case of any correction, the insurance company must report to the State Government, failing which no objection by insurance company at a later stage will be entertained and it will be binding on the insurance company to pay the claim. He has further contended that as op no.1 has accepted the premium for insurance of crop of complainant, op no.1 is liable to pay the compensation to the complainant for loss if any to the crop of complainant. He has prayed that complaint qua op no.2 may be dismissed.
14. Sh. Satvir Singh, Assistant Statistical Officer on behalf of op no.3 has contended that role of agricultural department is to make survey of the fields of the effected farmers and to submit its report to the higher authorities about the damage of crops of the farmers on the basis of crop cutting experiments and they have duly discharged their duty. The complainant has no grievance against op no.3 and prayed for dismissal of complaint qua op no.3.
15. We have duly considered the rival contentions of the parties.
16. The complainant in order to prove his ownership over the agricultural land in village Kheowali, District Sirsa has placed on file copy of jamabanadi for the year 2017-2018 as Ex.C3. The complainant has placed on record copy of statement of account Ex.C2, from which it is proved on record that on 26.7.2018, an amount of Rs.1813.11 was deducted from his account by op no.2 as insurance premium for insuring the kharif crop of 2018 with op no.1.
17. Admittedly, the complainant had taken crop loan against his agricultural land from op no.2 and op no.2 deducted an amount of Rs.1813.11 on 26.7.2018 from his account for insuring the cotton crop of Kharif, 2018 with op no.1 under Pardhan Mantri Fasal Bima Yojna. According to complainant, his cotton crop of Kharif, 2018 was damaged but he has not received any insurance claim. In so far as damage to the crop of complainant of Kharif, 2018, is concerned, the op no.3 agricultural department has placed on file copy of village wise tabulation sheet of sum insured and claim under PMFBY During Kharif, 2018 as Ex.R3, according to which average yield of village Kheyowali of Kharif, 2018 is 242.39 and the average yield of the block is 487.64. As per Haryana Government Agriculture and Farmers Welfare Department Notification dated 30.3.2018 Ex.R2, shortfall in yield will be calculated by comparing the threshold yield with the actual yield estimated through crop cutting experiments (CCEs). Since, as per village wise tabulation sheet Ex.R3, the average yield of village Kheyowali was 242.39 and average yield of block was 487.64, therefore, as per above said notification dated 30.3.2018 Ex.R2, there was loss of cotton crop of Kharif, 2018 in village Kheyowali. Therefore, it can be safely held that there was also loss to the cotton crop of Kharif, 2018 of the complainant.
18. Now the question arises as to for how much amount of compensation, the complainant is entitled for the damage of his cotton crop of kharif, 2018 and from whom? The complainant has claimed that he had sown cotton crop in his 24 kanals of land and due to damage to his crop, he is entitled to an amount of Rs.51,900/- on account of damage, besides an amount of Rs.1,00,000/- on account of unnecessary harassment and Rs.25,000/- as litigation expenses.
19. From the copy of statement of account of complainant Ex.C2 as well as Ex.R5, it is evident that an amount of Rs.1813.11 was debited from his account on 26.7.2018 by op no.2 for insurance of crop of complainant of Kharif, 2018 with op no.1. The said amount of Rs.1813.11 debited from the account of complainant was remitted back to his account on 22.5.2019 as also evident from copy of statement of account. According to op no.2 bank, an amount of Rs.1813.11 was debited from the account of complainant on 26.7.2018 and was paid to op no.1 for insurance of Kharif crop of 2018 of complainant, but the op no.2 in its written version has no where mentioned that said amount of Rs.1813.11 deducted as premium from the account of complainant was refunded to the complainant and what was the reason of refund of premium amount to his account. Similarly, though op no.1 has alleged that on portal there is no entry of insurance in respect of the crop of complainant till the closure of the portal, but the op no.1 has not placed on file any document or evidence in support of its plea. The op no.1 has also not led any evidence to prove the fact that it did not receive any premium amount from op no.2 on behalf of complainant, whereas op no.2 bank has stated that amount of premium of Rs.1813.11 was remitted to op no.1 for insuring the cotton crop of complainant of Kharif, 2018. Both the ops no.1 and 2 have not led any evidence showing any reason for refunding back the premium amount in the account of complainant. They have also not proved on record that complainant raised any objection regarding deduction of premium amount from his account due to which the same was refunded back in his account. The op no.1 has also not led any evidence to prove the fact that there was no damage to the cotton crop of complainant of Kharif, 2018. The Pardhan Mantri Fasal Bima Yojana has been launched by the Centre Government in order to safeguard the interest of the farmers who face financial crisis due to the damage of their crops due to any natural calamities and the loanee farmers are to be compulsorily insured under the above said scheme and the duty has been casted upon their banker to get insured the crop of complainant with insurance companies including op no.1. There is also contract between op no.1 and op no.2 for insuring the crops of the loanee farmers and therefore, the complainant who is also a loanee farmer and whose cotton crop of Kharif, 2018 has been damaged cannot be allowed to suffer on account of any lapses either on the part of op no.1 insurance company or op no.2 bank. The matter is between op no.1 and op no.2 bank regarding receiving of premium amount by op no.1 on account of insurance of crop for which no fault can be fastened on the complainant who is wholly dependent upon agricultural income. Since the crop of complainant who is a loanee farmer was to be compulsorily insured with insurance company by op no.2 bank as per above said scheme, therefore, due to damage of crop of complainant of Kharif, 2018 complainant is entitled to insurance claim amount from op no.1 insurance company and op no.1 and op no.2 can point out fault of each other to their higher authorities but the complainant cannot be denied compensation for loss of his cotton crop and at the most, the op no.1 insurance company can claim premium amount of Rs.1813.11 from the complainant. In this regard, we also found support from the observations of the 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, in which it has been held 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.”
20. The above said authority is fully applicable to the facts and circumstances of the case. The complainant is also beneficiary of the above said scheme in this case and therefore, he is also consumer of op no.1 insurance company and the plea of op no.1 that there is no direct contract between complainant and op no.2 has no relevance. The op no.1 will also be paid the amount of premium of Rs.1813.11 which was remitted back in the account of complainant being deferred payment of consideration for insurance of crop of the complainant of Kharif, 2018.
21. In so far as claim amount is concerned, the complainant has claimed amount of Rs.51,900/- for damage of his cotton crop of Kharif, 2018 in three acres of agricultural land and the op no.1 insurance company or the bank have not rebutted the said claim of the complainant. So, in our view, the said amount of Rs.51,900/- to be paid to the complainant as compensation for damage to his crop in three acres of land would be proper and justified. The plea of the op no.2 bank that an amount of Rs.39679.18 was credited in the account of complainant on 12.2.2019 as insurance claim for Kharif, 2017 has no relevance because the complainant is claiming compensation for the damage to his cotton crop of Kharif, 2018 and not of Kharif, 2017. Rather, we also found some fault on the part of op no.2 bank as op no.2 bank remitted back the premium amount in the account of complainant without explaining any reason or without placing on file any letter written to the complainant showing any ground for remitting back the premium amount. So, we are of the considered opinion that op no.2 should also be penalized to some extent on account of said fault and therefore, the bank will pay the amount of compensation for harassment, mental agony and also litigation expenses alongwith op no.1 in equal share to the complainant. However, no liability of any kind of op no.3 in this case is made out.
22. In view of our above discussion, we allow the present complaint against opposite parties no.1 and 2. We direct the opposite party no.1 insurance company to pay the insurance claim amount of Rs.51,900/- to the complainant alongwith interest @9% per annum from the date of filing of present complaint i.e. 7.8.2019 within a period of 45 days from the date of receipt of copy of this order, failing which the above said amount of Rs.51,900/- will carry interest @12% per annum. Further, we direct ops no.1 and 2 to pay an amount of Rs.10,000/- as compensation for harassment and Rs.5500/- as litigation expenses to the complainant in equal share within above said stipulated period. However, op no.1 is well within its right to deduct the amount of Rs.1813.11 as premium amount at the time of payment of claim amount to the complainant. The complaint qua op no.3 stands dismissed. Copy of the order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Commission. President,
Dated:09.08.2021. Member District Consumer Disputes
Redressal Commission, Sirsa.
Typed by:
Jagdish Kumar (Stenographer)
