:: JUDGMENT ::

By Sri S.M. Reddy, President.

            This is a complaint filed by the above named complainant U/s.12 of the Consumer Protection Act, 1986 against the OPs, claiming the benefits of a Weather Based Crop Insurance Policy, due to failure of the crop and also compensation for mental agony, hardship and inconvenience, attributing deficiency in service on the part of the OPs. 

2.         Brief facts of the case of the complainant are that;

          The complainant is permanent R/o Kudloor village of Saidapur Hobli Taluk & Dist:Yadgir and he is an Agriculturist by profession. The complainant owns a land bearing Sy.No.59 measuring 20 acres 3 guntas situated at Kudaloor village of Saidapur Hobli, Taluk and Dist:Yadgir and during the Kharif season of the year   2010, the complainant had sown green gram crop in the said land to an extent of 10 acres out of the total extent and at the same time, he had insured the said crop with the OPs under the Weather Based Crop Insurance Scheme by paying the premium of Rs.884/- to the OPs  for an assured sum of Rs.32,000/- and the OPs had declared and assured that in the event of loss of crop due to unhealthy weather, the said assured sum of   Rs.32,000/- will be given to the complainant.  Further, it  is the case of the complainant that, due to continuous and excess rain, there was total failure of the insured crop, as a result of which, the complainant has sustained total loss and the same was initiated to the OPs by the complainant and other farmers of the said area and after the receipt of the said information and collecting report from rain gaze station, the OPs declared that the said insured crop of Saidapur Hobli was lost.   Further, it is the case of the complainant that, thereafter the OPs assured the complainant and other farmers, who had obtained insurance that they will be paying the assured amount, immediately and believing the words of the OPs, the complainant and other farmers waited for some days.    But even after expiry of months together, the OPs did not pay the assured crop insurance amount to the complainant and other farmers.   So, the complainant issued notice to the OPs on 31-5-2011 requesting them to pay the assured amount.   But, inspite of the receipt of the said notice, the OPs did not gave any kind of proper response to the complainant.   So, the complainant approached the OPs, Gulbarga office on several times and requested them to pay the insurance amount.   But,  lastly the OP1 gave information to the complainant that the OP2 has sanctioned Rs.208/- only to the complainant and the complainant being shocked by the said information, requested the OPs to pay Rs.32,000/-, which is the sum assured as there was total loss of the crop.   But, the OPs have failed to respond to the request of the complainant, which act of the OPs amounts to deficiency in service and thereby the OPs cheated the innocent farmers like complainant, which also amounts to unfair trade practice on their part, as a result of which, the complainant has suffered huge loss and also suffered mental agony, hardship and inconvenience, so, the complainant is constrained to file this complaint against the OPs, claiming the sum assured amount of Rs.32,000/- with interest @ 12% p.a and also claiming Rs.20,000/- towards compensation for mental agony, hardship and inconvenience and Rs.10,000/- towards cost of the proceeding.

            This complaint was originally filed before the District Consumer Disputes Redressal Forum at Gulbarga and after the establishment of the District Consumer Disputes Redressal Forum, newly formed Yadgir District, the same was transferred to this Forum on the point of jurisdiction.

3.         The OPs 1 and 2 have appeared through their common counsel and resisted the claim of the complainant by filing their common written version, wherein the OPs for want of personal knowledge, have denied about the complainant being the owner of the land Sy.No.59 measuring 20 acres 3 guntas situated in Kudaloor village and about his sowing of green gram crop in the said land during the kharif season of 2010 in an extent of 10 acres of land out of its total extent.   But, however, the OPs have admitted that, the complainant has insured the said crop by paying the required premium, regarding which the OPs have issued a certificate bearing No:0751089 to the complainant for the period from 15-6-2010 to 15-9-2010.  But, according to the OPs, their liability is to be determined in accordance with the terms and conditions of the policy issued by the OPs.   The OPs have denied the allegation of the complainant that, due to continuous and excess rainfall, there was total failure of the said green gram crop of the complainant and as a result, he sustained total loss and on the same being intimated, the OPs having collected the reports from Rain gaze Station, have declared the said insured crop of Saidapur Hobli was lost and that they had assured the complainant and other farmers that they will pay the assured amount immediately etc., as false and baseless.   It is the case of the OPs that, during initial and end stage, there was no ERC (Excess Rainfall Count) adjustment factor for the purpose of calculating total loss index.   Since, no loss has been occasioned to the complainant during the policy period, in accordance with the terms and conditions of the policy, the cap on phase wise excess rainfall strike cannot be there as also an aggregate ERC during the policy period is also not there.   Further, it is the case of the OPs that, according to the terms of insurance and as per the Govt. Notification, the assessment of rainfall strike should be governed upon the records maintained by the IMD (Indian Metrological Department) and KNDMC (Karnataka Natural Disaster Monitoring Centre Station), it is run by the Karnataka Water Resources Department.   The records maintained by the said authorities do not reveal or disclose any rainfall strike has been taken place during the policy period and to the extent of the limit prescribed at the initial stage, middle stage and the end stage.  It is also being noted that, while taking the rainfall strike, the records maintained by the Nodal Organization Officer should be taken into consideration while assessing the damage.   The OPs are producing the Govt. Order i.e., the Govt. of Karnataka for kind perusal of this Forum, which also makes it clear that, no damage has been caused to the complainant, as per the terms of the contract of insurance.   Therefore, the OPs are not liable to answer the claim of complainant.  Further, it is the case of the OPs that, they are liable to compensate the complainant by taking into consideration of the total index and the excess rainfall during the policy period.   But, as per the rainfall data issued by the KNDMC Station, there is no excess rainfall during the policy period.   Further, it is stated, without admitting the liability, if the company is calculated the loss, which should calculate as under i.e., 2.5 acres = 1 Hectare, for unit claim is Hectare as per the policy conditions, that in the policy period there was three phases i.e., phase 1) Initial stage 15^th June to 15^th July, phase 2) Middle stage 16^th July to 15^th August and phase 3) End stage 16 August to 15^th September and after going through the entire phases, the loss will be calculated.   Since there is no heavy rainfall in the policy period, the OPs are not liable to pay any compensation to the complainant.   The complainant has not submitted any documents to show about there being excess rainfall in the land of the complainant.   Hence, there is no deficiency in service on the part of the OPs.   Therefore, there is no cause of action to file the present complaint and the complaint is also barred by time, as it is filed after the lapse of more than 2 years of the policy period.  On these grounds, the OPs have prayed for dismissal of the complaint with costs.

4.         The complainant in support of his case has filed his own affidavit evidence as PW-1 and got marked Ex.P.1 to P10 and closed his side.   As against this, on behalf of the OPs, the Manager of OP1 in its legal department has filed his affidavit evidence as RW1 and also filed the affidavit evidence of its Manager in Weather Department as RW2 and got marked Ex.R1 to R3 and closed their side.   Both the sides have submitted their written arguments, wherein they have put forward the very same contentions, which they have urged, in their  complaint written version and affidavit evidences.   The oral arguments of learned counsel for the complainant was heard and the learned counsel for the OPs did not chose to advance any oral arguments.       

5.  Now, on the basis of these facts, the following points arise for our consideration:

1.      Whether the complaint is barred by limitation?  

2.      Whether complainant has proved that, there is any deficiency of service on the part of OPs, in not extending the benefits of crop insurance policy?

3.      What order?

6.         Our findings on the above points are as under;

            1.         In the Negative.

            2.         In the Affirmative.

            3.         As per the final order for the following;

:: REASONS ::

7.         POINT NO.1:-As already stated above, the OPs in their written version (in para-10) have taken a contention that, the complaint filed by the complainant is barred by time, as the policy is valid for the period from 15^th June to 15^th September-2010 and the complaint ought to have been filed on or before 15^th September-2012.  But, this complaint has been filed on 30-10-2012 i.e., after the period of two years of the policy, hence, the complaint is barred by limitation and the same shall have to be dismissed on that ground alone.   But, as rightly contended by the learned counsel for the complainant, this contention of the OPs have no merits, because admittedly the complainant has put forward his claim, seeking the benefits of crop insurance policy with the OPs and when the OPs did not respond, the complainant has also issued notice on 31-5-2011 as per Ex.P6, which is served on the OPs.  But, in spite of it, the OPs have not taken any decision and have not disposed off his claim on one or the other way.   So, the cause of action would continue.   In this regard, we would like to refer to a decision of the Hon’ble National Commission reported in 2010 (1) CPR 58 (NC), in which it has been held that, till the insurance claim is disposed off in one or the other way, the cause of action would continue.  In this regard, we would also like to refer to a decision of the Hon’ble National Commission reported in 2011 (4) CPR 64 (NC), in which it has been held, where a claim is made with insurance company within the period of two years and the said claim has remained undecided, in such a case, cause of action will continue till the day insurance company pays or rejects the claim and in a case where claim is rejected by the insurance company, cause of action arises from the date of such rejection.   Again the Hon’ble National Commission in the decision reported in 2012 (4) CPR 626 (NC) has held that, the cause of action arises on the date of repudiation of the claim of the insurance.   In the instant case, the OPs have not placed any evidence on record for having taken any decision and disposing of the claim in one or the other way before filing the present complaint.   So, under such circumstances, the cause of action would continue and so it is not possible to hold that, the complaint filed by the complainant is barred by limitation.   Accordingly, we answer Point No:1 in the negative.

8.  POINT NO:2:- Now coming to the question of alleged deficiency in service on the part of the OPs, attributing by the complainant in not extending the benefits of the said crop insurance policy, there is no serious dispute that the complainant is the owner of the land bearing Sy.No:59 measuring 20 acres 3 guntas situated at Kudaloor village of Saidapur Hobli Tq and Dist: Yadgir and there is also no serious dispute that, out of its total extent, the complainant had sown green gram crop in 10 acres of land during the kharif season of the year 2010 and it is also an admitted fact that, the complainant has obtained Weather Based Crop Insurance Policy in respect of the said crop grown in 10 acres of land by paying the premium of Rs.884/- to the OPs for an assured sum of Rs.32,000/-.   The complainant has also produced the said policy issued by the OPs in this regard, which is marked at Ex.P1 regarding which there is no dispute.   The complainant has also produced the certificate issued by the Village Accountant along with the copy of the R/R for having sown green gram crop in the said 10 acres of land, which are marked at Ex.P2 and P3, respectively.   Admittedly, it is a short term crop and the policy issued was for the period from 15-6-2010 to 15-9-2010.   It is the case of the complainant that, because of continuous excess rain, during the said period, there was total failure of the crop, as a result of which, the complainant has suffered huge loss, so, he approached the OPs claiming the benefits of the said crop insurance policy.  But, the OPs have failed to extend the benefits of the said policy, so, there is deficiency in service on the part of the OPs, which forced him to approach this Forum by filing the present complaint, seeking the benefits of the said policy obtained by him and also claiming compensation for mental agony, hardship and convenience, attributing deficiency in service on their part.  It has also come to record that, various other farmers in the said Hobli had obtained similar policies, whose crops have also been failed during the said kharif season.   It is important to note that, the OPs in their written version as well as in the affidavit evidence of RW-1 and even in the written arguments, submitted on their behalf, have categorically denied the allegation of the complainant that, there was continuous excess rain during the said period and as a result of which, there was total failure of the crop grown by the complainant and various other farmers.   So, According to them, they are not liable to pay any compensation to the complainant.   Therefore, there is no deficiency in service on their part and on that ground they have prayed for dismissal of the complaint with costs.   Therefore, the burden of proof would lie on the complainant to prove his case.

9.         The complainant in order to discharge his burden of proof apart from relying upon  his own affidavit evidence, has relied upon the data of the daily rainfall during the year 2010 marked at Ex.P4 and also relied upon the report of the OPs submitted to the Department of Agriculture Government of Karnataka for having taken a decision about the claim payable per unit to the farmers of Chitradurga and Yadgir District, who have sown Green Gram Crop for the kharif season of 2010 and have obtained Weather Based Crop Insurance Policies marked at Ex.P5 and also relied upon the affidavit evidence of RW2.   The learned counsel for the complainant contended that the above said evidence placed on record is sufficient to prove the case of the complainant.

10.       After carefully going through the entire evidence placed on record, we are of the considered opinion that, the contentions of the learned counsel for the complainant have got merits and the defense put forward by the OPs in their written version and the affidavit evidence of RW1 denying about there being any excess rain and failure of crop is false and baseless and it is contrary to their own documents.   Because, at the first instance the Ex.P4 Daily Rainfall Report of the Saidapur Hobli for the year 2010 clearly establishes that, there was heavy rainfall during the months of 15^th June onwards till the end of September-2010.  Because, during the said period, there was rainfall of 104 MM, 272 MM, 276.8 MM and 197.02 MM, respectively and even Ex.P5 report submitted by the OPs to the Director of Agriculture, Govt. of Karnataka goes to show that, there was excess rainfall of 72.5% during the said period of 10^th June-2010 to 10^th October-2010 in Saidapur Hobli of Yadgir District and based on the weather data received from Karnataka State Natural Disaster Management Centre, the OPs have decided to pay the claim of the farmers, who have obtained crop insurance of green gram crop during kharif season of 2010 in Chitradurga and Yadgir District at the rates mentioned in Ex.P5 per unit.   So, according to the said Ex.P5 the claim payable in respect of the farmers of Saidapur is decided to be 72.5% per unit and it is important to note that, the OPs have prepared the list of farmers of the said Saidapur Hobli showing the claim payable to them and also mentioned the claim number and the payment alleged to have been made through DD and the said list is marked at Ex.P10 and in the said list the name of the complainant appears at Sl.No:466 and his claim was said to have been settled only for Rs.208.32 paisa.   It is further important to note that, though, the OPs have denied about there being excess rain and resultant failure of the crops and their liability to pay the compensation in their written version as well as the affidavit evidence of RW1 and in their written arguments, but it is important to note that, the OPs have also filed the affidavit evidence of RW2, who is working as Manager of Weather Department of OP2, who for the first time, in his affidavit evidence, has admitted at Page-3 in para-8 stating that the OPs have assessed the loss as per the Govt. Notification and the same is submitted to the Govt. and it is approved by the Govt. and hence, it is declared as per the Govt. Notifications.   Further, he has stated in his said affidavit evidence about the assessment of the loss suffered by the complainant as Rs.208.32 and he has explained as to how the said assessment is made in para-9 of the said affidavit and further it is stated that, the loss so assessed in respect of the complainant has been paid to the complainant under DD bearing No:473824 dt:2-3-2011.  But, the same has not been encashed by the complainant.  So, there is no deficiency in service on their part.  So, this part of the evidence of the RW2 falsifies the defense of the OPs put forward in their written version and the affidavit evidence of RW1 denying about there being any excess rain and about the loss of crop of the complainant and other farmers during the said kharif season and denying their liability to extend the benefits of the said policy to the complainant and others.   Therefore, we have no hesitation to hold that this itself amounts to gross deficiency in service on the part of the OPs and according to the evidence discussed above, it is to be held that, the complainant has proved that, there is failure of the crop of green gram of the complainant during the kharif season of 2010 sown in land bearing Sy.No:59 to the extent of 10 acres and thereby the complainant has suffered loss and thereby by virtue of the crop insurance policy obtained by the complainant, the OPs are liable to indemnify the loss caused to the complainant.

11.       Now coming to the quantum of compensation, in our opinion, the loss assessed by the OPs in respect of the complainant as Rs.208.32 paisa as mentioned above, cannot be accepted and more over the OPs have not placed any evidence on record at least to show that, the DD for the said amount has been sent to the complainant and the same has been received by the complainant, but he has not encahsed it.   Further, it is important to note that the OPs for assessing the said loss have taken into consideration the one Hectare of land i.e., 2.5 acres equivalent 1 unit and 10 acres of land has been taken into consideration as 4 units and the claim payable is considered as 52.8 and have arrived at the figure of 208.32 paisa.   But, it is important to note that, in the policy or the certificate of insurance policy issued by the OPs to the complainant, which is marked at Ex.P1, the number of units is mentioned as 10 and not as 4 units as claimed by the complainant now for assessment of the loss.   So, while issuing the policy one acre of land has been considered as one unit and accordingly number of units has been mentioned as 10 and the total sum assured has been shown as Rs.32,000/- and the premium paid by the complainant as Rs.884/- and further it is important to note that, even according to the document submitted by the OPs to the Govt. marked at Ex.P5, the claim payable in respect of the farmers of the Saidapur Hobli has been shown as 72.5% and even in one of the documents produced by the OPs marked at Ex.R3 the claim payable has been shown as 72.5%.   If the interpretation of the OPs for calculation of the loss is accepted, then the loss assessed for 10 units would come to Rs.725/-, which is far less than the premium paid by the complainant for obtaining the said policy.   Because, he has paid the premium of Rs.884/-.   Therefore, we are of the considered opinion that, the extent of the excess rainfall and thereby loss of failure of crop will have to be taken into consideration as 72.5% as per the weather data issued by the KSNMDC.   Therefore, the compensation payable to the complainant will have to be assessed at least as 72.5% of the sum assured under the said policy and since the sum assured is Rs.32,000/- and the 72.5% of it would come to Rs.23,200/- and therefore, the minimum compensation payable by the OPs to the complainant will have to be determined as Rs.23,200/- and since the OPs have knowingly taken a false defense that there was no excess rain and that the complainant has not suffered any loss contrary to their own documents, having assessed the loss suffered by the complainant and other farmers and claims to have paid the loss so assessed by them and thereby they have harassed the innocent farmer and caused him mental agony, hardship and inconvenience.  The OPs will have to be made liable to pay the said compensation amount together with interest @9% p.a from the date of filing of the complaint and shall also have to be made liable to pay Rs.5,000/- towards compensation for mental agony, hardship and inconvenience and Rs.2,000/- towards cost of the proceeding.   Accordingly, we answer Point No:2 in the Affirmative and proceed to pass the following:

:: ORDER ::

            For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act 1986 is hereby allowed, partly with costs.

            The OPs jointly and severally are ordered to pay a sum of Rs.23,000/- to the complainant towards loss of crop, which was insured with the OPs, together with interest @ 9% p.a from the date of filing of the complainant till realization.

            The OPs jointly and severally shall also pay a sum of Rs.5,000/- to the complainant towards compensation for mental agony, hardship and inconvenience.

            The OPs shall also pay a sum of Rs.2,000/- towards cost of the proceeding.

            The OPs are granted four weeks time for compliance of this order.

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 1^st day of August-2014)