IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                          Thursday the 06^th day of February, 2020.

                                      Filed on 17-01-2017

  Present

1. Smt. Sholy P.R, B.A.L,LLB (President-in-charge)
2. Smt.C.K.Lekhamma, B.A, LLB (Member)

In

CC/No.14/2017

   between

  Complainant:-                                                         Opposite party:-

Smt.Aswathy M.C                                             1.   State Bank of Travancore

W/o Vasudevan                                                       Kavalam Branch

Mangalam Vadakke Chira House                             Kavalam P.O., Alappuzha.

Kunnumma West Muri                                            Rep.by its Manager

Kunnumma Village                                                 (By Adv.Manoj George)

Kuttanadu Taluk

Alappuzha                                                         2.   The Regional Manager

                                                                                Agricultural Insurance Co.

                                                                               India Ltd., Regional Office

                                                                               TC/14/1765, Bakery Junction

                                                                               Vazhuthakkadu Road,
                                                                      Trivandrum- 695014

                                                                               (By Adv.C.Muraleedharan)

     O R D E R

SMT.SHOLY P.R (PRESIDENT-IN-CHARGE)

This case is based on a consumer complaint filed under section 12 of the Consumer Protection Act, 1986.

2.       The averments in the complaint in short, are as follows:-

                The complainant is an agriculturist and cultivated paddy in 10 acres of paddy land in Mangalam manikyamangalam padasekharam.  While so in connection with paddy cultivation the complainant availed a loan of Rs.1.5 lakhs from the 1^st opposite party on 26.05.2011 under the Kissan Credit Card Scheme wide KCC 9/C No.67149655928 offering security of 5.60 acres of property in block No.18, resurvey No.126/20 of Kunnumma Village Kuttanad Taluk.  At the time of availing the said loan, as insisted by the 1^st opposite party the complainant was insured the crops with the 2^nd O.P and the premium paid towards the insurance was deducted by the 1^st O.P at the time of disbursal itself.  Thereafter the complainant suffered 3 bad crops consecutively in 2011,2012,2013 on account of flood and breach of bund and thus the complainant was put to huge loss.  Since the crops were insured with the opposite party validly and the complainant suffered 3 consecutive bad crops as per the terms of the insurance policy the 2^nd opposite party is bound to indemnify the complainant by remitting the amounts due to the 1^st O.P in the loan account.  On 03.01.2017 the opposite parties issued notice to the complainant demanding an amount of Rs.2,74,350/- along with future interest at the rate of 11.70% per annum.  Thereupon the complainant informed the afforesaid facts to the 1^st opposite party, but they started initiating realization proceedings against the complainant for the said amount and interest.  In the above circumstances the complainant filed this complaint seeking a declaration that the complainant is not liable to remit the amount demanded in the notice dated 03.01.2017 in the KCC account No.67149655928 of the complainant with the 1^st O.P. and also restrained the O.P. from all further proceedings pursuant to the said notice.

3.       Opposite parties No.1 and 2 resisted the complaint by filing separate versions which in short are as follows:-

Version of opposite party No.1

          The complaint is not maintainable either in law or on facts.  The opposite party contented that there is no cause of action arose against the opposite parties and the alleged cause of action is time barred.  However the 1^st opposite party would admit that the complainant is an agriculturist and she availed a loan under KCC scheme from the 1^st O.P on 26.05.2011, the opposite party alleged that it is to be proved by the complainant with documentary evidence whether the same is on crop improvement purpose.  The 1^st opposite party contended that it is utter false that the 1^st O.P has insisted to take the insurance.  Admittedly it is mandatory to the every agricultural loan to take crop insurance through Agriculture Insurance Corporation of India as per RBI guidelines and as per norms the premium amount for the same is deducted from the loan amount.  The alleged crop failure during the period of 2011,2012,2013 is utter false and since it is not reported the crop failure in Mangalam Manikyamangalam padasekharam during those periods the cultivation conducted by the complainant was in profit.  The only intention of the complainant is to protract the period of loan remittance.  More over the complainant had not informed the 1^st O.P regarding the crop failure at the proper time for raising a valid claim.  It is further contented that the complainant filed on an experimental one initiated after receiving the lawyers notice dated 3.1.2017 from the 1^st O.P demanding repayment  to avoid the legal proceedings initiated by the 1^st O.P in recovering the defaulted amount.  It is admitted that the 2^nd O.P ought to have responsible for loan repayment if there was a crop failure as alleged and as per the complainant ought to have reported the same before the 1^st and 2^nd O.Ps.  Moreover the complainant did not remitted any amount as repayment of the loan amount after loan disbursement.  Regarding the rate of interest of the said loan the rate is 7% up to 25.05.2012 and if the instalments are not repaid within the stipulated time the interest rate automatically changed to non subsidized rate and the same is 11 % per annum.

Version of opposite party No.2

          The 2^nd O.P in the written version would contented further that the complainant has no locus standi to file this complaint against the 2^nd O.P.  the 2^nd O.P alleged that the complainants paddy crop is not included in the consolidated list for insurance coverage vested with the designated nodel bank, here it is State Bank of India, Alappuzha.  Otherwise it shall be proved by the complainant with substantial evidence.  The 2^nd O.P also contended that above said nodel bank is a necessary party in this case and as such this complaint is barred by non jointer of necessary party and also it is barred by limitation since the period of loss if any was in the year 2011-13 and the cause of action has arisen in 2011-13.  According to the 2^nd O.P as per the government notification issued for each season for the National Agricultural Insurance Scheme it is designated with the nodel bank ie, State Bank of India, Alappuzha branch to collect the details of total number of loanee insured borrowers devoid of any individual identification along with consolidated area and sums insured in the prescribed formats of “declarations” with consolidated premium, from all the lending branches under its jurisdiction and sent it to the 2^nd O.P within the prescribed cut-off dates.  And as per the above provisions the details of the insurance under NAIS for the complainant could be available with the nodel bank and thereby the 2^nd O.P issued a letter to the 1^st O.P and the said nodel bank seeking the details regarding the insurance coverage of the complainant’s paddy crops.  It is further alleged by the 2^nd O.P that the NAIS is propounded by Government of India and implemented season after season in states jointly with respective State Government as per notification issued by State Govt.  It is an area based scheme in the notified areas and the 2^nd O.P is an implementing agency as per the scheme.  On implementing the NAIS during kharif, 2011 as per G.O (Rt) No.1031/2010/AD dated 03.06.2011 O.P 2 issued the above notification and instructions to nodel banks.  O.P No.2 also contented that neither O.P No.2 nor the NAIS is in any way linked with loan lending and recovery process and banks with their customers.   There is no negligence and deficiency of service on the part of the opposite party No.2 and the complainant is not entitled for any relief sought for the complainant and the complaint is liable to be dismissed.

4.       In view of the above pleadings the points that arise for consideration are:-

1.  Whether the complaint is barred by limitation.
2.  Whether there is any deficiency in service or negligence on the side of O.P No.1 & 2.
3. Whether the complainant is entitled to get a declaration and injunction as claimed in the complaint.
4. Reliefs and costs.
5. Evidence on the side of the complainant consists of PW1 to PW4 and Ext.A1, Ext.A2 series and Ext.A3 to Ext.A9 and all documents marked as subject proof.  On the side of opposite parties RW1 and RW2were examined and marked Ext.B1 to Ext.B5.

          The learned counsels appearing for both sides have filed notes of arguments.  Heard both sides.

6. Point No.1 to 3

          For avoiding repetition of discussion of materials these 3 points are considered together.  Admittedly the complainant has filed the present complaint seeking a relief of declaration that the complainant is not liable to remit the amount demanded in the notice issued by the first opposite party dated 03.01.2017 in Kissan Credit Card account No. 67149655928 of the complainant with the 1^st O.P.  The learned counsel for the opposite parties avered in the version regarding the cause of action for the complaint and affirmed in the arguments also that the complaint is barred by limitation.  So the matter of limitation is considered as the 1^st point.  On perusal of the complaint and other evidence adduced by the complainant the complainant availed a loan under KCC scheme from the 1^st O.P on 26.05.2011 and remitted the insurance premium for the period of 2011 for its benefit.  It is also evidenced that the complainant is claiming benefit under the said scheme for the crop loss due to the affected flood and brockage of bund in Mangalam Manikyamangalam padasekharam where in the complainants paddy situated.

          As per the provision of the Consumer Protection Act the complainant shall be filed within a period of 2 years of its cause of action arises.  According to the opposite parties, the complaint was filed after 2 years of its cause of action commences.  It is clear from the complaint that the complainant avered that the cause of action is 3.1.2017 which is the date on which the lawyers notice issued by the 1^st O.P to the complainant intimating to remit the loan amount.  It is also affirmed by the complainant on cross examination that in 6^th page of her (PW1) deposition that the counsel for the 2^nd O.P put a question “ \n§Ä ]cmXn sImSp-¯n-cn-¡p-¶Xv 2011,2012 \v tijw 5 hÀjw Ignªv 2017  Asà Sn t^md-¯n ]cmXn sImSp-¯Xv”.  She answered:- “AsX”  03.01.2017  F\n¡v h¶ eoK t\m«okv In«n-b-Xn\v tij-amWv ]cmXn sImSp-¯n-cn-¡p-¶-Xv.  More over the complainant does not made any whisper in the complaint nor made any clarification in the deposition for the acknowledgment of the matter during the period preceding 03.01.2017 after elapsing 2 years from 26.05.2011.  No arguments were advanced by the complainant regarding the claim of insurance to the opposite parties and thereby its repudiation or else.  All these period the complainant kept silent in the matter and woke up only at the time of receiving the legal notice dated 03.01.2017 issued by the opposite parties.  PW2in cross examination deposed that during 2011-2013 the crop was secured and collected through supplyco from the above said Mangalam Manikyamangalam  padasekharam, were as in chief examination the witness deposed that the crop was a loss.  More over the PW2 & PW4 the President and Secretary of the said paadasekharam respectively have deposed that the brothers of the complainant were cultivating the paddy land for and on behalf of the complainant and PW4 also stated that the paddy was secured by supplyco during 2011.  The complainant also admitted above facts in the cross examination.   Admittedly the complainant claims insurance coverage during the period of 2011, but the relief sought for in respect of insurance policy through this complaint is on the basis of the legal notice dated 03.01.2017.  On perusal of the evidence it is clear that the complainant has not filed the complaint within a period of 2 years from the date of crop loss and as such compliant is barred by limitation.   Regarding the claim of insurance we observe that if the crop failure had occurred during 2011 the complainant would have claimed for insurance benefit at the earliest.  The Ext.A6, the court exhibit, the judgment in CC 330/2011 of this Forum is not binding this case since the cause of action for the above case is repudiation of the insurance claim of the opposite party and filed the complaint within the period of limitation.  We do not find any justification for holding complaint within limitation and clearly complaint is barred by limitation which is liable to be dismissed.  Hon’ble National Commission in State Bank of Bikaner and Jaipur and another Vs. M/s Jegdemba Eant Udyog and another 2016(3) CPR 707 (NC) by dismissing the appeal held that no relief can be given on a time barred complaint were the complainant has not filed complaint within a period of 2 years from date of loss and as such complaint was barred by limitation.

          As far as merits of the complaint is concerned at the time of availing the loan from the 1^st O.P they deducted the amount for insurance premium under the scheme NAIS.  According to the 2^nd O.P they are the implementing agency and it is the duty of nodel bank ie, State Bank of India, Alappuzha is the authority who is not made as a party in the complaint, to collect the list of the insured agriculturist under the scheme from the lending banks.  Regarding the insurance policy is concerned, in the materials available on record there is not produced even a single piece of evidence demanding the insurance claim by the complainant to the O.Ps after affecting crop loss as alleged by them.  On condition the insured has a right to claim the insurance amount from the insurer if there is a valid policy.  Here in the instant case the complainant has taken an agricultural insurance policy for the year 2011 and during that period itself affected crop loss due to brockage of bunds in Mangalam Manikyamangalam padasekharam   in which the paddy land of complainant situated.  On perusal of Ext.A1 and Ext.A3 which are issued from same office, the agriculture office, Kavalam by which Ext.A1 shown no date and for the same purpose the complainant has produce Ext.A3 and on cross examination of PW3 it is reveal that he has issued the same without perusing any authenticated documents in his custody bound by law.  More over in Ext.A1 it reveals that during the period 2010-11, 2011-12 in mangalam manikyamangalam padasekharam sustain crop loss due to brockage of bund.  And it can be understood that Ext.A3 was issued only for more clarification to include the word “complete” crop loss during the said period.   Therefore the veracity of the said document is doubtful.

          The complainant miserably fails to establish any written or oral information handed over to the opposite parties regarding the breach in bund and consecutive crop loss if any.  The deposition of PW1 itself shows that there was crop transaction during the year 2011.  When a suggestion was made to PW1 regarding sale of paddy through PRS, the complainant failed to object and replied as she is unaware, despite she ought to have denied the same on the other hand.  According to the 1^st O.P there is no direct nexes between the loan and insurance policy and insurance policy under NAIS is mandatory to all the loan connected with agriculture.  On cross examination RW1 also deposed that the compensation shall be paid to the cultivators after declaring the crop loss in an area and not to the single claims by any person.  In view of this we understood that the crop must be totally destroyed in an area declaration for that effect is necessary for getting insurance coverage under National Agricultured Insurance Scheme.    

          Regarding the insurance benefit is concerned the matter can be adjudicate even this time, but as there is no claim for insurance coverage has been submitted to the opposite parties by the complainant during the policy period, it is taken as a deemed weiver on the part of the complainant and abstain from seeking relief on the ground of deficiency in service on the part of opposite parties.  And thus the complainant is also not entitled to grant a declaration sought for in the complaint.

          In the result the complaint stands dismissed.  No costs.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 06  day of February, 2020.

Sd/-Smt. Sholy P.R (President-in-charge) :

Sd/-Smt.C.K.Lekhamma (Member) :

Appendix:-

Evidence of the complainant:-

PW1                    -        Aswathy M.C (Witness)

PW2                    -        Sahadevan P.K (Witness)

PW3                    -        Anil K Anto (Witness)

PW4                    -        Mohandas (Witness)

Ext.A1                -        Certificate from the agricultural officer

Ext.A2 Series      -        Copy of news paper (3 Nos.)

Ext.A3                -        Certificate from agriculture officer dtd 21.08.2017

Ext.A4                -        Printout of western bund photograph

Ext.A5                -        Letter dtd 16.09.2011

Ext.A6                -        Letter dtd 16.06.2012

Ext.A7                -        Letter dtd 16.06.2012

Ext.A8                -        Siteplan

Ext.A9                -        Siteplan

Evidence of the opposite parties:-

RW1                             -        Tom Mathew (Witness)

RW2                             -        Meena. R (Witness)

Ext.B1                 -        Copy of letter dtd 13.04.2017

Ext.B2                 -        Copy of statement

Ext.B3                 -        letter dtd 16.05.2011

Ext.B4                 -        Letter dtd 19.12.2011

Ext.B5                 -        Letter No.M/P- 04/2012

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                         By Order

                                                                                    Senior Superintendent

Typed by:- Sa/-

Compared by:-