BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.            

                                                          Consumer Complaint no. 166 of 2017                                                                        

                                                          Date of Institution         :    18.7.2017

                                                          Date of Decision   :    29.11.2018.

Rameshwar, aged 57 years son of Shri Munshi Ram, resident of village Jogiwala, Tehsil and District Sirsa. 

                      ……Complainant.

                             Versus.

1. Reliance General Insurance Co. Ltd., SCO 145-146, Sector-9, Madhya Marg, Chandigarh.

2. State Bank of India, Kagdana Branch, Tehsil and District Sirsa, through its Branch Manager.                                                      

...…Opposite parties.

            Complaint under Section 12 of the Consumer Protection Act,1986.

Before:        SH. R.L.AHUJA…………………………PRESIDENT

SH. ISSAM SINGH SAGWAL …… MEMBER.

Present:       Sh. M.K. Singla,  Advocate for the complainant.

                   Sh. H.S. Raghav, Advocate for opposite party no.1.

                   Sh. Ravinder Chaudhary, Advocate for opposite party no.2.

ORDER

                   The case of the complainant in brief is that complainant is an agriculturist by profession and his land is situated in village Jogiwala, Tehsil and District Sirsa. The complainant owns and possess about 30 kanal of land and had sown Narma crop in May, 2016 in his above land. It is further averred that complainant raised a crop loan under Kissan Credit Limit facility from opposite party no.2 and as per policy of the Govt., the op no.2 got insured the crops with op no.1. For the Kharif 2016 crop, the op no.2 debited a sum of Rs.1822/- in the said loan account of complainant as crop insurance premium for the sum assured of Rs.91,080/-. In the Kharif 2016 crop season, the op no.2 had got insured the Narma crop of the complainant. It is further averred that said Narma crop grown by the complainant in Kharif 2016 crop season was destroyed due to climatic conditions. The Agriculture Department had surveyed the agricultural fields of village Jogiwala, Tehsil and District Sirsa and submitted its report to the ops. The op no.1 thereafter settled the claim of the farmers of village Jogiwala and also paid the insurance claim to farmers of village Jogiwala but very strangely left the complainant and few other farmers of village Jogiwala and did not pay any amount to them as compensation qua insurance claim. That the complainant and other farmers of village Jogiwala contacted the officers of op no.1 and inquired about non payment of their insurance claim for damaged crop, whereupon the complainant and other farmers were told that such compensation has been paid to the farmers of village Jogiwala and that since the complainant and like him other farmers who are farmers of village Chaharwala, Tehsil and District Sirsa have not been paid any compensation. The complainant and other farmers were shocked and surprised to hear this from the officer of op no.1 because they are farmers of village Jogiwala and not of village Chaharwala. The complainant and other farmers apprised the officer of op no.1 that they are permanent residents of village Jogiwala and own and possess their agricultural land in village Jogiwala and showed them their I.D. proof and proof of their landed property but the officer of op no.1 did not pay any heed to the same, rather stated that op no.2- bank has provided them the detail that they are farmers of village Chaharwala, so no compensation can be paid to them and thereby refused to entertain the claim of the complainant. It appears that op no.2 made a wrong report to op no.1 that complainant is a farmer of village Chaharwala instead of village Jogiwala, which is negligence on the part of op no.2 and same has led to the losses to the complainant. The op no.1 has also failed to appreciate the fact that complainant is a farmer of village Jogiwala by ignoring the documentary proof submitted by complainant about his residence and landed property. That in this manner, both the ops have committed gross deficiency in service towards the complainant and thereby have put him to severe crop losses as well as also put him to suffer unnecessary harassment, agony and disappointment. Hence, this complaint seeking direction to the ops to make payment of Rs.91,080/- the amount of sum assured to the complainant alongwith interest thereon at the rate of 12% per annum from Kharif 2016 till realization of the same, further to pay a sum of Rs.25,000/- as compensation and Rs.5500/- as litigation expenses. 

2.                On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding no coverage for alleged crop. It is submitted that as per complaint, loss of Narma crop has been effected at village Jogiwala which has not been insured by insurance company. As per declaration form submitted by Bank, village Farwain was insured with insurance company for paddy crop whereas complainant is claiming for loss of Narma crop which is not covered under policy coverage and thus, complaint is liable to be dismissed on both the ground of non coverage of village and non coverage of crop as well. The copy of declaration form submitted by Bank is enclosed. That present complaint is not maintainable on the ground of privity of contract as insurance scheme has been provided to bank and consideration has also been received from bank only. In absence of any consideration from complainant or want of any written contract of insurance, present complaint is not maintainable before this forum as complainant is unable to establish any direct relation with insurance company and thus, complainant cannot be treated as consumer under definition of consumer laws in absence of any consideration and privity of contract.

          Further while explaining about the Pradhan Mantri Fasal Bima Yojna in detail, 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 present complaint is not maintainable before this Forum because complainant has approached this Forum with bad intention even without approaching to grievance cell of government agencies as prescribed in operational guidelines of scheme. 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/ Banks 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. It is further submitted that complainant never intimated any claim to insurance company for loss of crop and thus concocted 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. It is further submitted that apart from non intimation of claim, complainant has also not supplied any proof for loss or weather index report of Metrological Department of India in support of claim which establishes that alleged loss of crop had never occurred in the area. Further, in absence of credible proof for loss of crop such as news cutting, government recommendation and weather report of metrological department of India, it cannot be believed that loss had actually happened in the village of complainant. It is further submitted that as evident from scheme of insurance that only localized claims were to be decided by insurance company and other risks of coverage were to be handled by government agencies by finalizing yield of crop. The present case of complainant is not clear about nature of loss. It is further submitted that yield basis claims are settled by insurance company only upon receiving of yield from government agencies and completion of other necessary formalities as prescribed in operational guidelines of scheme. That quantification of loss cannot be determined in absence of necessary survey of loss which ought to be conducted immediately after occurrence of loss and thus, illegal and high demand of complainant is liable to be dismissed. It is further submitted that onus to prove about loss of crop at the end of complainant himself which cannot be believed unless cogent evidences are submitted to insurance company in accordance with terms of scheme. It is further submitted that complainant has not made all the government agencies as necessary parties in the complaint and thus, adjudication of cases cannot be initiated without impleading necessary ops in the case. On merits, while reiterating the pleas of preliminary objections, it is also submitted that every farmer who wants to get the benefits of KCC then he should have compulsorily get the insurance under the scheme of Pardhan Mantri Fasal Suraksha Beema Yojna. No intimation ever received regarding the loss of crop from the complainant as well as any other agencies, but the bank details received by the answering op, the crop shown to be paddy crop and received premium of the same. It is further submitted that there is no deficiency in service on the part of op no.1 and op no.1 used to make 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 the Yojna. With these averments, dismissal of complaint has been prayed for.

3.                Opposite party no.2 resisted the complaint vide separate reply on the ground that as per the terms of the insurance policy, the farmer/ complainant was required to give immediate information regarding the loss to the insurance company/ op no.1 and the Bank giving the details of survey number wise insured crop and acreage effected. The premium payment verification was also to be reported in the next 48 hours by the farmer. It is the clear violation of agreed terms and scheme as the complainant had not given any such intimation to the Bank or to the insurance company and thus complaint is not maintainable. It is further submitted that in absence of timely intimation of claim and necessary survey, it is difficult to determine genuineness and quantification of loss in summary proceeding by this Forum and it requires a lot of evidence and cross examination of the witness and thus, this matter need to be referred to appropriate Civil Court for adjudication, in the interest of justice.

It is further submitted that complainant has raised a crop loan under KCC facility from the answering op and got his crops insured with op no.1. It is denied for want of knowledge that the complainant had ever sown Narma as alleged and if it is proved that he has sown Narma, the complainant has not given the details of acreage of the same. The complainant has never informed the answering op regarding the loss due to climatic conditions of the Kharif, 2016. It is wrong and denied that the Agriculture Department had surveyed the fields of the complainant regarding the loss. It is further submitted that complainant had never made any complaint to the answering op regarding the fact that claim has not been disbursed to them or that for what reason. The complainant had not informed the answering op or the insurance company regarding the loss in the prescribed time. It is wrong and denied that the answering op was negligent while mentioning the name of the village, although this is a clerical mistake. If the complainant had informed the answering op regarding the loss, the clerical mistake would have been corrected. It is further submitted that it is correct that the complainant is resident of village Jogiwala and that op no.1 should have made the correction regarding the clerical mistake of the residence and ownership of land of village Jogiwala. Remaining contents of complaint are also denied and prayer for dismissal of complaint qua op no.2 has been made.

3.                The parties then led their respective evidence by way of affidavits and documents. The complainant also examined Sh. Satvir Singh, Assistant Statistical Officer, office of Agriculture department, Sirsa as CW1 who has proved copies of documents Ex.C1 to Ex.C3.  He has deposed that the threshold yield is block wise. Village Jogiwala is situated in Nathusari chopta block. The threshold yield in Nathusari chopta block is 606.78 Kg. per hectare. Ex.C1 is the copy of letter No.8193 dated 1.12.2017 issued by Deputy Agricultural Director, Sirsa to Om Parkash son of Zile Singh, resident of village Jogiwala (Sirsa). Ex.C2 is copy of information given through RTI. According to information given through RTI by their department, average yield of village Jogiwala on the basis of crop cutting experiments is 279.30 Kg. per hectare. If the average yield is less than threshold yield, then the insurance claim is given to all the insured farmers as per Pardhan Mantri Fasal Bima Yojna. He has further deposed that on the basis of average yield as per crop cutting experiences, the insured farmers of village Jogiwala are entitled to insurance claim for the kharif/ cotton crop of year 2016. Narma and kapas comes under the definition of cotton crop. The formula for calculating the insurance claim is mentioned on the page no.18 of guideline, copy of which is Ex.C3. There is no need of giving information to the insurance company/ bank in case of claim on yield base. The insurance of notified crops is compulsory for loanee farmers. In his cross-examination he has proved the copy of operational guidelines of the scheme as Ex.R1 and copy of Haryana Govt. notification Ex.R2. The complainant has also produced his affidavit Ex.C4, copy of email Ex.C5, copy of list of farmers Ex.C6, copy of mortgage deed Ex.C7, copy of jamabandi for the year 2012-2013 Ex.C8, copy of khasra girdawari Ex.C9, copy of voter card Ex.C10,  copy of adhar card Ex.C11, copy of his ration card Ex.C12, copy of pass book Ex.C13. On the other hand, op no.2 produced affidavit of Sh. Ranjeet Singh, Branch Manager as Ex.R3, copy of mail dated 29.6.2017 Ex.R4, copy of another mail Ex.R5. OP no.1 produced affidavit of Sh. Suryadeep Singh Thakur Ex.R6, copy of declaration form Ex.R7, copy of list Ex.R8 , copy of Haryana Govt. notification Ex.R9, copy of Annexure A regarding threshold yield Ex.R10, copies of document regarding sum insured, premium and subsidy cluster-I, II and III Ex.R11 to Ex.R13, copy of Annexure-C Ex.R14, copy of Annexure-D Ex.R15, copies of letters Ex.R16, Ex.R17, copy of form-2 Ex.R18, copy of list Ex.R19, copies of letters Ex.R20 to Ex.R23 and  copy of minutes of meeting Ex.R24.

4.                We have heard learned counsel for the parties and have perused the case file carefully.

5.                Learned counsel for complainant has contended that complainant has proved on record that the complainant is owner of about 30 kanals of agricultural land situated in village Jogiwala. The complainant had raised a crop loan under Kissan Credit Limit facility from opposite party no.2 and got insured his crops with opposite party no.1 through op no.2 for Kharif 2016. A sum of Rs.1822/- was debited by op no.2 in the account of complainant as premium for crop insurance for the sum assured of Rs.91,080/-. It is also proved that Narma crop of complainant in Kharif 2016 crop season was destroyed due to climatic conditions. The Agriculture Department had surveyed the agricultural fields of village Jogiwala and submitted its report to the ops. The op no.1 thereafter settled the claim of the farmers of village Jogiwala and paid insurance claims to the farmers but did not pay any amount to the complainant as compensation qua his loss of Narma crop despite insurance. It has been further contended that complainant approached the ops time and again for the payment of compensation. Thereafter, complainant came to know that op no.2 bank has provided the details to op no.1 that they are farmers of village Chaharwala, so no compensation was paid to the complainant. It is also proved that the respondent no.2 made a wrong report to op no.1 that complainant is farmer of village Chaharwala instead of Jogiwala which is negligence on the part of op no.2 and same led to the losses to the complainant. It has also been contended that non payment of compensation to the complainant clearly amounts to gross deficiency in service of ops.

6.                On the other hand, learned counsel for op no.1 has contended that no coverage for alleged crop was there. The loss of crop has been effected at village Jogiwala which has not been insured by insurance company. As per declaration form submitted by bank, village Farwain was insured with insurance company whereas complainant is claiming for coverage of village Jogiwala which does not fall under coverage of policy scheme and complainant is not entitled to any compensation claimed for. It has also been contended that insurance company cannot be questioned for proposal related disputes. The insurance company cannot be held liable for any mistake done by either complainant himself or by bank of complainant. It has also been contended that as per clause XVII of the operational guidelines, the Bank is liable for payment, if any for misreporting. It has further been contended that complainant has got yield more than average yield assessed by agriculture department. The reports of agriculture department are not binding on the rights of insurance company as same are arbitrary and were prepared at the back of op no.1. The complainant never intimated to insurance company for any loss of crop and has concocted a false story of claim. The complainant has not placed on record proof of loss or weather index report. There is a limited coverage as per scheme. The present case of complainant is not clear about nature of loss and thus deserves dismissal. The yield based claims are always decided by Government or by Govt. agencies. The quantification of loss cannot be determined in absence of necessary survey. There is no privity of contract between complainant and op no.1 as the insurance scheme has been provided to bank and consideration has also been received from bank only. In absence of any consideration from complainant or want of any written contract of insurance, the present complaint is not maintainable against op no.1. He has further contended that it is not an individual insurance policy like other insurance policies rather it is a group insurance scheme as per terms and conditions of the scheme. There is no direct contract between the complainant and op no.1. Ld. counsel for op no.1 has relied upon judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Manager, Andhra Pragathi Grameena Bank & Anr. Versus Singam Siva Sankar Reddy & Anr. 2015 (4) CLT 545.

7.                Learned counsel for op no.2 has contended that complainant had raised crop loan from the bank and is holding KCC account with the bank. In order to get the crop of Kharif, 2016 insured with op no.1, op no.2 had deducted a sum of Rs.1822/- from the account of complainant on account of premium and has deposited same with op no.1 without any loss of time and also sent declaration of the farmers of village Jogiwala alongwith list of farmers including the present complainant. It has also been contended that inadvertently, the name of village was mentioned as Farwain instead of village Jogiwala in the declaration form. When the bank received complaint regarding non payment of claim from the complainant, the bank discussed the matter with the authorized representative of op no.1 and thereafter sent two mails on 29.6.2017 and on subsequent date which are Ex.R4 and Ex.R5 on file. There was no intention or malafidy on the part of op no.2 in sending wrong declaration qua the name of village rather it was only a clerical mistake. It is proved case of op no.2 that the premium received from farmer was duly paid to op no.1 under the group insurance scheme and therefore, it is legal obligation of op no.1 to compensate the complainant for the loss which he has suffered due to climatic condition in village Jogiwala. The complainant is entitled to compensation from op no.1 and not from op no.2, since the op no.2 was only acting as post office and the insurer is op no.1 who gave insurance coverage to the standing crop of the farmers like complainant. It has also been contended that compensation to other farmers of village Jogiwala has already been paid by op no.1, as such op no.1 should be directed to pay the compensation to the present complainant also.

8.                We have considered the rival contentions of the parties and have gone through the record.

9.                It is undisputed fact between the parties that complainant is an agriculturist of village Jogiwala, P.O. Chaharwala and is holding a KCC account with op no.2 bank and has raised crop loan for Kharif, 2016. It is further undisputed fact that a sum of Rs.1822/- was deducted by op no.2 from the account of complainant on account of premium for insurance of crop Kharif, 2016 which was allegedly paid by op no.2 to op no.1. It is further undisputed fact that the declaration of the members of group for insurance was filed alongwith list of farmers to op no.1 by op no.2 alongwith demand draft of Rs.11,73,123.42.

10.              It is further admitted fact on record that there was loss of crop to some extent in village Jogiwala, as a result of which complaints were lodged with concerned authorities and the ops as a result of which team of the officials of agriculture department visited village Jogiwala and assessed average yield and threshold yield and also reported that there is loss of crop in village Jogiwala and loss was assessed by agriculture department. The said fact of loss of crop of village Jogiwala is proved from the statement of CW1 Sh. Satvir Singh, Assistant Statistical Officer. Consequently, claim was lodged with insurance company and insurance company op no.1 paid claim to the farmers of village Jogiwala who were found entitled thereto. During the course of arguments, learned counsel for complainant has also produced certain photostat copies of the pass books of the farmers of village Jogiwala who got the compensation credited in their account which was paid by op no.1 insurance company and this fact has not been denied by learned counsel for op no.1 during the course of arguments.

11.              The bone of contention between the parties is qua wrong declaration of village made by op no.2 to op no.1 which shifts the liability to pay the compensation from one party to another party. Though, during the course of arguments, learned counsel for op no.2 has strongly contended that there is only clerical mistake qua name of village in the declaration form submitted to op no.1 on the part of op no.2 but that does not absolve op no.1 from its liability to pay compensation to the complainant/ farmer, since op no.1 has received the premium of the crop insurance from complainant through op no.2. Further op no.1 has not returned amount of premium to the bank despite two mails sent by op no.2 which are Ex.R4 and Ex.R5 on file. On the other hand, there is specific plea of op no.1 that it is an admitted fact on record that a wrong declaration was made by op no.2 qua the name of village Farwain though complainant belongs to village Jogiwala. There was insurance coverage of village Farwain on the basis of this declaration of the complainant and not of village Jogiwala. So, if there is any liability to pay compensation that shifts on the shoulder of op no.2 as per clause 17 of the guidelines. The perusal of the declaration form Ex.R7 reveals that it finds mention the name of village as Farwain and in the list of farmers which have been attached with the declaration form having name of farmers have also been shown as of village Farwain. There is admission of op no.2 that it is a clerical mistake. It is proved fact on record that complainant is resident of village Jogiwala having his agricultural land situated in village Jogiwala and this fact also finds mention in the account of the bank which was opened in the name of complainant and same is evident from the copy of pass book, copy of which is on file as Ex.C13 and further more bank had got mortgaged land of complainant vide a registered mortgage deed, copy of which is Ex.C7 which also reflects that land of complainant is situated in village Jogiwala. So, it appears that the bank was having all relevant record regarding proof qua the residence as well as land of complainant at village Jogiwala, but however, the bank took it in a very casual and ordinary manner while making declaration of the farmers including present complainant showing their place of residence as well as of agricultural land at village Farwain while knowing well that they are from village Jogiwala and their land is situated at village Jogiwala against which bank had made advancement of crop loan to the complainant. So, it appears from the evidence of the parties that there is a blunder mistake on the part of officials of the bank and same cannot be overlooked while putting the fate of claim of complainant in air.  

12.              Since it is proved fact on record that complainant has suffered loss of his crop alongwith other farmers of village Jogiwala and agricultural department had assessed loss and submitted their report on the basis of which other farmers of village Jogiwala have been paid compensation by op no.1, whose declaration was made by concerned bank showing their land holdings in village Jogiwala, but however, complainant has been deprived from getting compensation from the insurance company due to wrong declaration submitted by op no.2 to op no.1 which has definitely caused prejudiced to the rights of complainant.

13.              That as per clause XVII of the operational guidelines of the scheme which provides that the bank is liable to pay compensation to the farmers, if any mis-reporting has been made by bank to the insurance company. In the present case the bank has furnished a wrong declaration to the op no.1 as a result of which the insurance company insured the crop of Kharif 2016 of village Farwain in the name of complainant though neither the complainant is resident of village Farwain nor he is having any holding at village Farwain. Moreover, there is specific plea of the insurance company that there is no insurance contract between insurance company and complainant and contract is between bank and insurance company as there was crop insurance for which bank had received the premium from the farmers and had deposited the same with insurance company after charging their service charges at the rate of 4%, so the contract is interse between op no.1 and op no.2 qua terms and conditions of crop insurance. From the evidence of complainant, it is proved that complainant is holding land at village Jogiwala and is also resident of village Jogiwala but due to wrong declaration made by op no.2 to op o.1 qua name of village shown as Farwain, the complainant has not been paid any compensation by insurance company due to mistake on the part of bank, as such in view of clause XVII of the operational guidelines, the bank is liable to pay compensation and it also amounts to deficiency in service on the part of bank. We also find force from the judgment of the Hon’ble National Commission in case titled as Manager, Andhra Pragathi Grameena Bank & Anr. Vs. Singam Siva Sankar Reddy & Anr. (supra) in which it was observed that “Consumer Protection Act, 1986 Section 2(1) (d) Crop insurance scheme- Insurance premium debited in loan account of agriculturists by the bank by receiving service charges on premium collected from agriculturists- Damage of groundnut crops- Repudiation of claim- Deficiency in service- Complaint allowed against bank in appeal- Legality of- There was relationship of consumer and service provider between agriculturists and bank- As per clause 19 of guidelines to Financial Institutions, Financial Institutions were to be only responsible for all omissions and commissions committed by them- Prima facie, error has been committed by bank in remitting amount of premium recovered from agriculturists while sending it to insurance company in wrong name of village of complainants- Bank rightly held liable to reimburse all the losses.  

14.              In view of the above, we partly allow the present complaint and direct the opposite party no.2 to pay compensation to the complainant on the basis of report submitted by agriculture department at par with the other farmers of village Jogiwala to whom compensation has already been paid by insurance company and same has been credited in their accounts. The bank is further directed to pay interest @7% per annum on the payable amount from the date of payment made to other farmers till its realization and further directed to pay Rs.10,000/- to the complainant as composite compensation for harassment and litigation expenses. The complaint qua op no.1 stands dismissed. However, the op no.2 is at liberty to recover amount which will be paid to the complainant if same is payable to the bank under the terms and conditions of insurance contract arrived at between op no.1 and op no.2 or under any other law.  The op no.2 is liable to comply with this order within a period of 45 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.   

Announced in open Forum.                                                                  President,

Dated:29.11.2018.                             Member                          District Consumer Disputes

                                                                                                      Redressal Forum, Sirsa.