V/s

//  JUDGMENT  //

JUDGEMENT DELIVERED BY SRI.RAJU. N. METRI, MEMBER

          The complainant has filed the complaint u/Sec.12 of the C.P. Act, 1986, for the loss of crop for a sum of Rs. 24,840/-, with interest @ 18% p.a, Rs.50,000/- for mental agony and cost of the proceedings.

           1.    The brief facts of the complaint are as under:

       The complainant states that he had sowed Ground nut in Sy. No.683 measuring 3-30 guntas and Jowar crop, in Sy.No. No.691/3 measuring 1-30 gunta of Mulgund village, during the year 2005-06 Khariff season and insured the crop with OP No.1 for a sum of Rs.19,550/- and Rs.4,330/- and also paid premium of Rs.684/- and Rs.108 each respectively through the Nodal Bank.  The crops were destroyed due to lack of rain and Gadag Taluk declared as a drought affected taluk.  Thus, complainant did not get the yield and suffered heavy loss.   In spite of bringing this to the notice of OPs by issuing notice to OP No.1, the OP No.1 has failed to settle the insurance amount of the complainant, hence there is a deficiency in service and prayed to order the OP’s to pay the maximum insured amount along with court expenses.

        2.   In pursuance of service of notice, OP No.1, 3 and 4 appeared through their counsels, OP No.2 appeared through the DGP.  OP No.5 has remained absent, in spite of service of notice. 

        3.  The brief facts of the Written Version filed by OP No.1 are as under:

                  OP No.1 has stated that complaint is not maintainable, both in law and on facts.  It is submitted that NAIS, RKB is implemented in the country under the order of Government of India vide ref. 13011/15/99 credit II dated 16.07.1999 of the Ministry of Agriculture and Co-operation, New Delhi w.e.f 01.10.1999.  All the insured farmers growing the crops in the defined area are deemed to have suffered short fall in their yield, the scheme seeks to provide coverage against such contingency indemnity shall be calculated as per the following formula (Shortfall in/Threshold yield) x sum insured of the farmer = Indemnity claims where are shortfall in yield = Threshold yield - Actual yield for the defined area. As per NAIS claims in general, will be disbursed through nodal banks as per shortfall in the notified area for the respective notified crop during Kharif/Rabi 2005-06 the OP have settled all eligible claims as per the scheme to all insured farmers under area approach. The Director of Economics and Statistics had furnished crop wise, hobli wise yield data for all crops during the season. As per the data, there is no shortfall in the area claimed by the complainant and claims that the complainant is hiding the material facts and fraudulently claiming the undue amount and prays to dismiss the complaint.

                The brief facts of the Written Version filed by OP No.2 dated 11.08.2008 and 27.04.2010 are as under:

        OP No.2 denied the contents of the complaint and contended that, OP No.2 is not a consumer and no way concerned to the case as the role of this OP is advise and create awareness among the farmers regarding crop insurance and hence, prays to dismiss the complaint.

                The brief facts of the Written Version filed by OP No.4 dated 10.09.2008 are as under:

        OP No.4 partly admitted the contents of the complaint and denied the remaining allegations.  OP No.4 contended that, complainant has not at all paid the premium amount to this Bank.  In fact, the complainant paid the premium amount in OP No.5 Bank and there is no deficiency of service on the part of OP No.3 and 4 and there is no privity of contract with the complainant.  Hence, prays for dismiss the complaint. 

         4.  In order to prove the case, complainant filed evidence on affidavit on 15.09.2008 and examined as PW-1 and got marked the documents as Ex.C-1 to C-15.   OPs have not chosen to file evidence on affidavit and no documents have been produced.   

           5.   Heard the counsel for complainant and DGP for OP No.2. Taken as no arguments for OP No.1 and 3 to 5 as there is no representation.    

         6.   The points for consideration to us are as under:

1. Whether the complainant proves that, there is a     shortfall of the crops and deficiency in service on the part of OPs?

2. Whether the complainant is entitled the relief?

3. What Order?

         7.    Our findings to the above points are as under:

            Point No. 1: Affirmative

            Point No. 2: Affirmative

            Point No. 3: As per the final Order

R E A S O N S

8.  POINT NO.1 & 2:- Both points are taken together to avoid the repetition of facts.    The learned counsel for the complainant argued that, as per contents of complaint and affidavit with documents, complainant has proved the case and entitled for the relief.  The learned DGP argued that, complainant has failed to prove the case against OP No.2.

        9.     At the very outset, it is pertinent to note that, first time the judgment was passed and the complaint came to be allowed on 07.10.2008 against OP No.1, who preferred appeal before the State Consumer Disputes Redressal Commission in A.No.711/2009 and same came to be dismissed.  OP No.1 preferred Revision Petition No.2860/2009 before the Hon’ble National Consumer Disputes Redressal Commission and same came to be allowed on 12.08.2009 and remanded for fresh disposal.  OP No.1 again preferred SLA before the Hon’ble Supreme Court in SLA No.382 to 539/2009 in respect of cost awarded by NCDRC.  As per order dated 18.11.2019, OP No.1 deposited an amount of Rs19,920/- before this Commission.   After receipt of the order and observation, again second time judgment was passed and the complaint was allowed on 27.05.2010.  Meantime, OP No.1 preferred an appeal before the State Commission in A.No.2747/2010 and same is allowed and remanded for fresh disposal.  After receipt of order, notice was issued to the parties and third time judgment was passed and complaint came to be allowed on 30.12.2015.  Again OP No.1 preferred an A.No.385/2016 before the State Commission and same was allowed on 03.02.2020 in common Judgment  and remanded for fresh disposal with an observation that, affidavit of each complainant shall be taken.  After receipt of records and in pursuance of notice, Sri KVK, Advocate filed vakalath for OP No.1 on 17.07.2021.  On 05.05.2022, Sri.PSD, Advocate for complainant and DGP, Gadag were present and got marked the documents as Ex. C-1 to C-15.  Counsel for complainant submitted that, in fact sole complainant filed this complaint; through oversight judgment is set aside in common judgment along with Appeal filed by other complaints wherein there were more than one complainant.  

        10.   To prove the case, complainant/PW-1 filed evidence on affidavit and reiterated the contents of the complaint.  PW-1 has stated that, he sowed Ground nut in Sy. No.683 measuring 3-30 guntas and Jowar crop in Sy.No. No.691/3 measuring 1-30 gunta of Mulgund village during the year 2005-06 khariff season in the above lands and insured with OP No.1 for a sum of Rs.19,550/- and Rs.4,330/- and also paid premium of Rs.684/- and Rs.108 each respectively through the Nodal Bank.  The crops were destroyed due to lack of rain and Gadag Taluk was declared as a drought affected taluk.  Thus, complainant did not get the yield and suffered heavy loss.   In spite of bringing to the notice of OPs and issued notice to OP No.1, the OP No.1 has failed to settle the insurance amount to the Complainant.

        11.   Ecx.C-1 and 2 RTC of Sy.No.683 and 691/3 stands in the name of complainant wherein crop shown as groundnut and jowar and also shown as dry land.  Ex.C-3 is the notice issued by the complainant through counsel to the OPs, Ex.C-4 to 8 are the postal acknowledgements reveals that, notice was duly served to the OPs.  Ex.C-9 reply notice issued by OP No.4, K.C.C. Bank, Gadag, Ex.C-10 is the Notification issued by the Government on 07.10.2006, Ex.C-11 is the endorsement issued by the District Statistical Office in favour of Advocate for complainant along with other Advocates stating that, there is no document available in the office in respect of report for each crop and compensation paid to the beneficiary.  Ex.C-12 is the letter issued to the District Statistical Officer by the counsel for complainant for supply of report. 

        12.   Ex.C-13 issued by the Joint Director, Crop Loan Plan Section, Finance and Statistical Director, Government of Karnataka, Bangalore reveals that, as per direction of Director all the reports and documents have been destroyed after five years and no documents are available for the year 2003-04.  Ex.C-14 the letter issued by the District Statistical Office, Gadag reveals that, for the year 2005-06, there is no crop cutting experiment made for the khariff season for groundnut and jowar for rain fed.  OPs filed their written version separately and denied the allegations made in the complaint.  However, none of the OPs have come forward to file affidavit evidence and to produce relevant documents which are in their proper custody.  It is settled law that, mere filing of the written version denying the case of complainant,  is not sufficient.  Mere pleadings without supporting oral or documentary evidence cannot be accepted.  OP No.1 Agricultural Insurance Company filed the objection on 05.08.2008 and simply denied the allegations of the complaint and pleaded regarding the guidelines issued by the Central and State Government.  Once again filed second counter statement on 25.05.2011 and reiterated the procedure and guidelines.  In para-3 it is contended that, yield data for the Khariff season 2005-06 and specifically mentioned the Betageri and Gadag Hobli regarding groundnut and rain fed and Jowar rain fed.  In fact complaint filed for Sy.No.683 and 691/3 are of Mulgund Hobli.  OP No.1 has not stated regarding the yield data for Mulgund Hobli for the land of complainant.  So, the objection raised by OP No.1 is not pertaining to the lands of complainant.  In the objection OP No.1 specifically stated that, as per the Notification during 2005-06 Khariff and Rabi, there was no shortfall in the yield.  Further it is stated in the objection that, as per the scheme the claims are to be settled only on the basis of yield data furnished by Economics and Statistics and not on any other basis.  Other OPs have also denied the case of the complainant without filing any affidavits and documents.  In the objection filed by OP No.4 admitted the partial contents of the complaint and stated that, no premium amount has been paid with OP No.4 but, credited the premium amount in OP No.5 Bank, Ron who in turn submitted to Head Office, K.C.C. Bank and then proposal form submitted to OP No.1.  The premium paid by the complainant for both crops is not disputed by the OPs.  The main contention of OP No.1 is that, there was no shortfall during 2005-06 and hence, OP No.1 is not liable to pay compensation to the complainant.  Without filing affidavit in support of the objection raised and producing the relevant document, the contention of OP No.1 cannot be acceptable.

        13.   After remanding the case for fresh disposal, this Commission issued a letter to District Statistical Department, Gadag to furnish the report regarding shortfall.  In turn, the said office issued Ex.C-14 dated 22.09.2012 to this Commission stating that, during the year 2005-06 they have not conducted CCE for Khariff season in Mulgund village, Gadag Hobli.    So. Ex.C-14 is a crucial and vital document for deciding the dispute.  As per Ex.C-14, there was no crop cutting experiment conducted during the year 2005-06.  Such being the case, the contention taken by OP No.1 that, there was no shortfall during the year 2005-06 is false.  OP No.1 filed objection without obtaining necessary report from Statistical Department as to whether there is a shortfall or not.  Ex.C-10 letter dated 03.11.2009 issued by the Joint Director, crop loan plan section, Finance and Statistical Director, Government of Karnataka, Bangalore in favour of District Statistical Office, Gadag reveals that, no report or document are available for the year 2003-04 as all the documents have been destroyed after five years as per the direction of Director.  Of course, the burden of proof is on the complainant to prove the case.  However, all the documents are in the custody of OPs but, none of the OPs have produced the documents which are available in their office and custody.  Even though, OP No.1 filed objection but not chosen to produce the documents to show that, there was no shortfall during the year 2005-06.  Such being the case, this Commission has drawn an adverse inference against the OPs for non-production of documents which are in their custody.  So, the complainant has proved that, there is a deficiency of service committed by the OP No.1.

        14.   It is pertinent to note here that, the complainant knocked the door of the OPs in the year 2008.  The conduct of OP No.1 in dragging the matter since then for more than 14 years is not proper and correct.  OP No.1 was not diligent in settling the compensation to the poor farmers like the complainant for whom this scheme is specifically made.  Even OP No.1 is not diligent enough to conduct the proceedings.  Even though counter objection were filed in the year 2008-11, but, has not bothered to file affidavit and documents to prove the contention.  OP No.1 is in the habit of preferring the appeal before the Hon’ble State Commission, Revision Petition before the Hon’ble National Commission and SLA before the Hon’ble Supreme Court. OP No.1 challenged the order and succeeded to get set aside the order and remanded for fresh disposal.  After remand again OP No.1 has not taken any interest to proceed with the case.  As stated above, already three times the judgment passed by our predecessor have been set aside and remanded for fresh disposal on one or the other grounds.  Even though, counsel for OP No.1 filed power after third time remanded to this Commission but was not due diligent to produce the evidence or argue the case.

The Hon’ble National Commission has made an observation indecision dated 21.01.2020 rendered by a Five Member Bench in RP No.533/2019 & other connected matters – Universal Sompo General Insurance Co. Ltd. & Ors. Vs. Didwaniya Exim Pvt. Ltd. & Ors.Where the Larger Bench held that either of the parties is entitled to produce additional evidence in the appeal and/or revision petition at any stage if it establishes that notwithstanding the exercise of due diligence such evidence was not in its knowledge and could not, even after exercise of due diligence be produced by it at the time when the consumer complaint was decided.In the present the petitioner has not even alleged in the application that the additional documents sought to be filed by it could not have been produced by it before the District Forum, even if it had exercised due diligence.The petitioner is a company set up by Government of India. The document sought to be filed by it also emanate from a department of Government of Karnataka.Had the petitioner made efforts to obtain the relevant data from the concerned department of the Government of Karnataka during pendency of the consumer complaints, it would not have been difficult for the petitioner to collect and produce the said data.Since the data was available even in the year 2019 it must be available at the time when the consumer complaint was pending before the District Forum.Another noteworthy thing it is in this regard is that despite the District Forum having written to the Economics and Statistics of Gadag District seeking the relevant data no effort was made by the petitioner to obtain the relevant data or its own from the concerned department of Government of Karnataka and furnish the same to the District Forum.

The consumer complaints came to be decided by the District Forum on 30.11.2015, in the second round of litigation.Though appeals were preferred by the petitioner before the State Commission challenging the order passed by the District Forum no application seeking permission to produce the relevant data was filed even before the State Commission.In fact that data was not even obtained during pendency of the consumer complaints or during pendency of the appeals before the State Commission.Therefore, it can hardly be disputed that had the petitioner been diligent enough there would have been no difficulty in producing the relevant data before the concerned District Forum and in any case before the state Commission during the pendency of the appeals.

The respondents herein are farmers.They claim to have suffered losses on account of shortage in rainfall.The scheme framed by the Government was meant for ameliorating the financial conditions of the farmers who suffered on account of natural calamities such as shortfall in rainfall.Therefore, considering all the facts and circumstances as discussed hereinabove, no justification for allowing additional evidence at this highly belated stage is made out when the consumer complaints were instituted between 2007 to 2009 and the matter is yet to see final adjudication in last more than 10 to 12 years.The applications are, therefore, dismissed.

It is next contended by the learned senior counsel for the petitioner that the letter relied upon by the District Forum did not at all pertain to the year 2003 – 2004 and, therefore, reliance upon the said letter by the District Forum was wholly misplaced.Though the submission appears to be correct, the fact remains that the petitioner did not make any efforts to obtain and submit the relevant data to the District Forum.Since the complainants had claimed in their respective consumer complaints that they had suffered on account of shortfall in the yield on account of deficient rains and had claimed compensation from the petitioner is it was expected of the petitioner which is an entity of the Government of India to place full facts before the District Forum and submit the relevant data.The complainants being farmers could not be expected to be in possession of such data which is available primarily with Government departments.Therefore, in my opinion, the order passed by the fora below, even in the absence of the data for the relevant year does not call for interference by this Commission in exercise of its revisional jurisdiction.

It would also be pertinent to note here that vide order dated 15.01.2014 in Revision Petitions No.1521 – 1538/2011 – Agriculture Insurance Co. of India Ltd. Vs. Krishnaraddi Yallaraddi Hirekoppa & Ors. this Commissiondismissed the revision petitions filed by this very petitioner arising out of consumer complaint filed by farmers alleging failure of kharif crops in various taluks of Gadag District in the crop year 2003 – 2004.

        15.   For the above observation, the Insurance Company did not produce the relevant document before the District or Hon’ble State Commission and for the first time tried to produce before the Hon’ble National Commission.  However, the Hon’ble National Commission did not permit to produce the documents.  But the case on hand, As OP No.1 has not made any efforts to produce the documents to show that, there was no shortfall during the year 2005-06.  Moreover, the District Commission issued a letter to District Statistical Department to furnish the report regarding shortfall.  In turn, the said office issued the document dated 22.09.2022 which was got marked as Ex.C-14 pertaining to the year 2005-06 saying that, they have not conducted any crop cutting experiment for the Khariff season in Mulgund Village.  The same is a vital document, which goes to show that, the CCE was not conducted, the question of destroying the documents does not arise. 

        16.   For the above, the complainant has proved that, there is deficiency of service committed by the OP No.1 and entitled for the compensation.  Complainant paid the insurance premium amount of Rs.684/- for groundnut crop towards Sy.No.683 for sum insured amount of Rs.19,550/- and paid Rs.108/- for Jowar crop towards Sy.No.691/3 for a sum assured amount of Rs.4,330/-, in all sum total assured of Rs.23,880/-.  Therefore, the complainant is entitled for the said entire insured amount of Rs.23,880/- for both crops and interest @ 6% p.a from the date of complaint till realization.  However, the OP No.1 deposited the amount before the Hon’ble State Commission while preferring the appeal, the said amount has been transferred to this Commission.  A sum of Rs.14,170/- has been transferred on 04.07.2009, Rs.1,250/- on 01.07.2010, Rs.3,750/- on 14.02.2020 and Rs.750/- on 19.08.2020 and in all Rs.19,920/-.  So, complainant is entitled for interest @ 6% p.a for a sum of Rs.1,663/- on Rs.23,880/-from the date of complaint dated 05.05.2008 till 04.07.2009.  After deducting Rs.14,170/-, complainant is entitled interest @ 6% p.a for a sum of Rs.576/- on a sum of Rs.9,710/-.  Further after deducting Rs.1,250/-, complainant is entitled interest @ 6% p.a for a sum of Rs.4,884/- on Rs.8,460/- from 01.07.2010 to 14.02.2020.  Further after deducting Rs.3,750/-, complainant is entitled interest @ 6% p.a for a sum of Rs.426/- on Rs.4,710/- from 14.02.2020 to 18.08.2020.  Further after deducting Rs.750/-, the complainant is entitled interest @ 6% p.a for a sum of Rs.412/- on Rs.3,960/- from 19.08.2020  till 13.05.2022.  Accordingly, the complainant is entitled for interest @ 6% p.a from 05.05.2008 to 13.05.2022 after deducting the interim deposited amount on various dates by the OP No.1, it amounts to Rs.7,961/-.  Accordingly, we answer Point No.1 and 2 in affirmative.

          17.   Point No.3:-In the result, we pass the following: 

//O R D E R//

       The Complaint filed by the complainant u/Sec.12 of C.P. Act, 1986 is allowed against OP No.1 and Complaint against OP No.2 to 5 is hereby dismissed.

       The complainant is entitled a sum of  Rs.23,880/-  with interest at 6% p.a. from the date of filing of this Complaint till realization.

       Out of Rs.23,880/-, after deducting a total sum of Rs.19,920/- already deposited by OP No.1 on various dates, complainant is entitled for a sum of Rs.3,960/- with interest @ 6% p.a from the date of order till realization. 

       Further the complainant is entitled interest from the date of complaint i.e., 05.05.2008 till date of order i.e., 13.05.2022  a sum of Rs.7,961/-.

       The Complainant is entitled a sum of Rs.5,000/- (Rupees Five Thousand) towards mental agony. 

       The Complainant is entitled for a sum of Rs.4,000/- (Rupees Four thousand) towards cost of litigation.

        Send the copies of this order to the parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 13^th day of May, 2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Sri. Basavaraj M. Wali.

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 & 2: Record of Rights

Ex.C-3: Legal Notice

Ex.C-4 & 5: Postal acknowledgements.

Ex.C-6: Postal receipt

Ex.C-7 & 8: Postal Acknowledgements

Ex.C-9: Reply to notice from OP No.1

Ex.C-10: Notification by the Government of Karnataka

Ex.C-11: Letter from District Statistical Officer, Gadag

Ex.C-12: Letter from Sri. P.S.Dharmayath, Advocate to DSO, Gadag.

Ex.C-13: Letter from Jount Director, State Statistical Officer.

Ex.C-14:  Letter from DSO, Gadag

Ex.C-15: Reminder

EVIDENCE ON BEHALF OF OPs:

               -Nil-

DOCUMENTS ON BEHALF OF OPs:

               -Nil-

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER