APPEAL NO. 03 OF 2009



Andhra Bank, a body corporate with its Head Office at Hyderabad and amongst others, a branch at Sector 17-C, Chandigarh.



….Appellant.

Versus

Mrs.Shakuntla Malik, resident of House No.1241, Sector 43-B, Chandigarh.



….Respondent.



Appeal U/s 15 of Consumer Protection Act, 1986 against order dated 25.11.2008 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh.





BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

MRS. NEENA SANDHU, MEMBER.



Argued by: Sh.G.K.Juneja, Advocate for the appellant.

Sh.J.R.Syal, Advocate for respondent.



JUDGMENT

11.11.2009

Justice Pritam Pal, President

1. This appeal by OP – Andhra Bank is directed against the order dated 25.11.2008 passed by District Consumer Disputes Redressal-I, U.T., Chandigarh (hereinafter to be referred as District Forum) whereby its complaint case No. 637 of 2008 filed by Mrs.Shakuntla Malik, respondent/complainant (hereinafter to be referred as the complainant) was allowed and consequently the appellant/OP (hereinafter to be referred as the OP) was directed to refund the total amount of Rs.10,845/- on account of excess charges and further compensation to the tune of Rs.10,000/- was also imposed for causing mental and physical harassment, besides the litigation expenses of Rs.2200/- to be paid within 30 days, failing which interest @ 12% per annum was also awarded as mentioned in para No. 7 of the impugned order.

2. Briefly stated the facts culminating to the commencement of this appeal may be recapitulated thus ;

The complainant – Mrs.Shakuntla Malik in terms and conditions of the letter dated 3.4.2004 had taken a housing loan of Rs.10.00 lacs from the OP. The said loan was required to be paid in 60 EMIs of Rs.19,920/- starting from May, 2004. The complainant then had repaid 35 EMIs regularly vide post dated cheques and then desired to clear the outstanding amount of the loan as full and final settlement by paying lump sum amount. In that behalf, a request was made to intimate the exact lump sum amount and thereafter the OP bank vide its letter dated 22.3.2007 gave detail of total payment for pre-close as Rs.1,46,576/- + Rs.1171/- as service tax. The complainant in response thereto sent a cheque of Rs.1,47,747/- in good faith through letter dated 9.4.2007. At the same time when the complainant came to know that the OP has charged excess amount for fore-closure then she wrote a letter dated 16.2.2008 disputing the same. There upon the OP bank through its letter dated 1.3.2008 informed that the pre-closure charges were calculated as per their norms. Ultimately complainant sent a legal notice dated 25.4.2008 for the refund of excess charges which were in fact not payable by her.

3. In the written reply, the OP admitted the factum of taking of the loan and receipt of cheque to pre-close the housing loan account. However, it pleaded that it imposed the pre-closure charges at the agreed rate of interest and levied the service tax as per the prevailing rate in the nationalized banks. Ultimately the OP pleaded that there was no deficiency in service on its part.

4. The learned District Forum after taking into consideration the evidence led before it and hearing the learned counsel for the complainant allowed the complaint as indicated in the opening part of this judgment. Still dissatisfied, OP has come up in this appeal.

5. We have heard learned counsel for the parties and have also gone through the material placed on the file and find that the OP has failed to bring any evidence on the file which could show that in the year 2004 when the loan was sanctioned and delivered to the complainant, there were any such terms and conditions for imposing administrative charges or service charges in case of “fore-closing” the case of loan taken by the complainant. No doubt as per some instructions issued only in the year 2005 such kind of charges could be imposed but they cannot be taken to be applicable in a case of loan which was advanced to the complainant in the year 2004. Not only that even there is no agreement or contract arrived at between the parties, which could show that complainant was liable to pay such kind of charges as recovered from her by the OP for fore-closure of the case of loan.

6. In this view of the matter an adverse inference has rightly been drawn by the District Forum against the OP for not placing on record an instruction/ agreement applicable to the loan case of the complainant. So in the given facts and circumstances of the case, we hold that the refund of Rs.10,845/- on account of excess charges to be justified but at the same time, the order of the District Forum directing to pay Rs.10,000/- as compensation appears to be unreasonable and as such same is reduced from Rs.10,000/- to Rs.2,000/-. However the litigation charges of Rs.2200/- imposed by the District Forum are maintained.

7. In the result but for the above modification in the amount of compensation, this appeal is hereby dismissed.

Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.

FA.No.1131/2009 AGAINST C.D.No.29/2006 DISTRICT FORUM, MEDAK AT SANGAREDDY

Between:

1.D.V.Kishan Rao, S/o.late Radha Kishan Rao

Aged about 53 years, Occ: Manager,

New Light Company,

15-3-40, Gurudwara Complex,

Gowliguda, Hyderabad. ..Appellant/
Opp.party No.1

2. New Light Industries (Regd.) Engineers,

Manufacturers & Suppliers, Head Office,

Ram Talai, G.T.Road, Amritsar-143 001

Represented by its Proprietor

Mr.Harvinder Singh, S/o.S.Amar Singh,

Resident of as above. Appellant/
Opp.party No.3
A N D
1. K.S.Satyanarayana, S/o.Brahmaiah

Aged major, Occ:Goldsmith

R/o.H.No.10-3-21, Narsapura,

Siddipet, Medak District. Respondent/
Complainant

2. Andhra Bank,

Siddipet Branch, Medak District. Respondent/

Opp.party No.2

Counsel for the Appellants: Mr.M.Hari Babu

Counsel for the Respondents:-R1 appeared in person

R2-served.

QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER



FRIDAY, THE ELEVENTH DAY OF DECEMBER,

TWO THOUSAND NINE

(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
*

This is an appeal filed by one D.V.Kishan Rao, who on the face of it appears to be a third party to the C.D. and the opposite party No.3 in the C.D. against whom virtually there was no order passed by the District Forum in as much as the C.D. against him was dismissed.

Thus the very maintainability of this appeal is vitiated for the reasons articulated in greater detail hereunder:

As could be seen from the impugned order dated 14-5-2007 passed by the District Forum, it granted relief to the complainant only as against opposite party no.1 in the following terms:

‘In the result, the complaint is allowed directing the opposite party No.1 to pay to the complainant Rs.50,000/- towards the Demand Draft amount with interest at 12% p.a. from 26-7-2005 till the date of realization. It is further directed to pay Rs.5,000/- towards damages and compensation and also pay Rs.1,000/- towards costs of this complaint. This order shall be complied within one month from the date of receipt of this order. The complaint against the opposite party Nos.2 and 3 is dismissed’.

In the cause title of the said order, opposite party No.1 is described as follows

Chiraj Arora C/o.New Light Company,

Engineers, Manufacturers & Suppliers at

15-3-40, Gurudwara Complex,

Gowliguda, Hyderabad.



But as it came to filing this first appeal, the description of the first appellant is as follows:

D.V.Kishan Rao S/o.late Radha Kishan Rao

Aged about 53 years, Occupation:

Manager,

New Light Company,

15-3-40, Gurudwara Complex,

Gowliguda, Hyderabad.



A close examination of these two descriptions viewed in juxtaposition makes it amply clear that the first appellant is not the same as opposite party No.1 concerned in the CD though the appeal is purportedly filed on behalf of opposite party No.1 apart from opposite party no.3 whose eligibility to maintain this appeal will be presently dealt with separately. The only feature that is common to the appellant No.1 and opposite party no.1 in the C.D. is that they claim connection with New Light Company. But in the C.D. one Chiraj Arora was arrayed as opposite party No.1 in his personal capacity in as much as his description adverted to New Light Company only for the purpose of the said Chiraj Arora having been C/o. the said New Light Company. Likewise as it came to the appeal, D.V.kishan Rao, described himself as Manager, New Light Company. In either case, their status in the array of parties remained personal. So the maintainability of the appeal by D.V.Kishan Rao on behalf of Chiraj Arora is simply absurd in the absence of any amendment at the appropriate stage of the litigation, if really any such amendment is tenable in law. It is not for this Commission to go hankering after such justification. Thus the present frame of the appeal showing D.V.Kishna Rao as appellant No.1 is absolutely uncalled for and unauthorized and therefore the appeal is liable to be dismissed on that ground alone as D.V.Kishan Rao being a third party to the litigation lacks locus standi.

Now coming to the maintainability of the appeal by opposite party No.3, the situation is all the more puzzling. It is incomprehensible as to how a party who succeeded in the lower Forum can maintain an appeal without any grievance whatsoever. The appeal on behalf of opposite party no.3 suffers from this fundamental infirmity. The operative part of the order has already been excerpted in the foregoing paragraphs and it clearly shows that the District Forum dismissed the complaint as against opposite party no.3.

Thus the appeal preferred by both the appellants turned out to be utterly incompetent.

In congruence with the above finding, there is no other go except to dismiss the appeal and when it is crystal clear from the record that the appellants had no competence to prefer the appeal, it is rather otiose to go into the merits of the appeal and strictly speaking the Commission should not go into the merits at the instance of unauthorized appellants.

For the reasons stated above, the appeal is dismissed but without costs.

F.A.No.126 OF 2007 AGAINST C.C.NO.52 OF 2006 DISTRICT CONSUMER FORUM CHITTOOR

Between
1. The Branch Manager,
Andhra Bank, Chittoor,
Chittoor District

2. The Regional Manager,
Andhra Bank, Tirupathi
Chittoor District

Appellants/ opposite parties

A N D

1. Smt Doramma W/o late Sri Yesu
aged 36 years

2. Sri Gopi, S/o late Sri Yesu
aged 21 years

3. Sri Rajesh, S/o late Sri Yesu
aged 19 years,
(all are residing at Konepalle village
Periambadi Post, Yadamari Mandal
Chittoor District)

Respondents complainants



Counsel for the Appellant Sri A.Krishnam Raju
Counsel for the respondent Sri B.Rajendra

QUORUM:

THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER

THURSDAY THE TENTH DAY OF DECEMBER

TWO THOUSAND NINE



Oral Order ( As per R.Lakshminarsimha Rao, Member)
***

The opposite parties are the appellant. The appeal is filed challenging the order of the District Forum, Chittoor in C.C.No.52 of 2006.

The factual matrix of the case is that the respondent no.1 is the wife and respondents nos.2 and 3 are the children of Yesu who died in a road accident on 21.8.2004 in Tamil Nadu leaving behind him the respondents as his legal heirs. Yesu during his life time had a savings Bank A/c No.207906 with the appellants’ bank. The appellants introduced Andhra Bank Abhaya Gold Savings Scheme for coverage of risk on the life of their customers who included the husband of the respondent no.1 herein. After the death of Yesu, the respondents lodged claim with the appellant for a sum of Rs.one lakh as provided by the Andhra Bank Abhaya Gold Savings scheme. As the claim was not settled, the respondents filed the complaint alleging deficiency in service on the part of the appellants.

The appellant had filed written version admitting that Yesu was their customer with S.B.A/c 207906 as also that he was provided insurance coverage under Abhaya Savings Account Scheme to the maximum extent of Rs.25,000/- in case the account holder meets an unnatural death. It was stated that as per the rules governing the Abhaya Gold Savings scheme, information of death of the account holder should be given within 90 days and claim should be lodged within 180 days from the date of such death. The appellant bank is only a facilitator to its account holders. The respondents had not intimated about the death of the account holder within the stipulated period. The appellants came to know for the first time about the death of their account holder, Yesu only after receiving a notice issued by the District Forum, after a period of two years from the date of death of the husband of the respondent no.1. The claim was barred by limitation. There was no negligence nor deficiency in service on the part of the appellant.

The respondents have filed their respective affidavits and Exs.A1 to A3.

The appellant no.1 has filed his affidavit and Exs.B1 and B2 are marked on their behalf.

The District Forum has allowed the complaint with a direction to the appellants to pay a sum of Rs. 25,000/- along with interest @ 9% per annum and costs.

The appellants have filed the appeal contending that the respondents had not lodged claim nor furnished any documents and as such there was no deficiency in service on their part. It was also contended that United India Insurance Company is the insurer to whom the appellants remitted the premium to the insurance company, United India Insurance Company Limited as also the duty of the appellants is only to forward the claim papers submitted to the insurance company.

The point for consideration is whether the impugned order suffers from any legal or factual infirmity?

The fact that the husband of the respondent no.1 by name Yesu was an account holder with the appellants is not in dispute. It is also not disputed that Yesu who operated savings bank account bearing No.207906 with the Andhra Bank of the appellant was provided insurance coverage. The respondents claimed the extent of insurance amount, Rs.one lakh whereas the appellants contended that the maximum limit of insurance coverage is Rs.25,000/- only. A perusal of Ex.B2 particulars of Abhaya Savings Bank Account with accidental insurance and Abhaya Gold Savings Bank Account with accidental insurance would show that the insurance coverage is Rs.25,000/- and Rs.1,00,000/- respectively. The husband of the respondent no.1 had Abhaya Savings Bank Account as evidenced by Ex.A1 savings account passbook. A sum of Rs.18/- was debited to his account on 30.8.2003 by the appellant no.1 towards the premium for the insurance policy as provided under Abhaya Savings Bank Account Scheme, the maximum sum assured is Rs.25,000/-.

The husband of the respondent no.1 died in a motor vehicle accident in Tamil Nadu. Ex.A3 FIR was relied upon in this regard by the respondents. Ex.A3 has been scribed in Tamil. No English or Telugu version of Ex.A3 was filed by the respondents. The appellants had not challenged the finding as to the death of the husband of the respondent no1 in a motor vehicle accident. The appellants had contended that the respondents had not intimated about the death of Yesu within 90 days nor did they lodge the claim within 180 days as stipulated by the rules governing Abhaya Savings Bank Account Scheme. The appellants have not revealed the name of the insurance company with which they got insured at any time during the proceedings before the District Forum. The appellants for the first time had come with a plea that the insurer is United India Insurance Company Limited. Except stating that the United India Insurance Company was the insurer in so far as the coverage of insurance policy of the Abhaya Savings Bank Account Scheme concerned, they had not adduced any evidence either before the District Forum or in Appeal before this Commission.

The appellants contended that they are only facilitators to forward the claims lodged by the claimants to the insurance company concerned. However, as aforesaid, the name of insurance company with whom the insurance coverage was obtained for the customers under Abhaya Savings Bank Account Scheme was not disclosed at any time by the appellants. The appellants cannot be heard in appeal to say that it was the United India Insurance Company Limited which is liable to pay any amount much less the amount awarded by the District Forum to the respondents. The appellants had collected the amount of 18/- from the husband of the respondent no.1 stating that the amount was debited to his account towards premium for obtaining insurance policy. In fact, the appellants have not placed any evidence to the effect that they had obtained insurance policy under Abhaya Savings Bank Account Scheme for their customers who included the husband of the respondent no.1 herein nor did they come-forward with the name of the insurance company to whom the premium collected from the account of the husband of the respondent no.1 as also the other customers who held their respective accounts under Abhaya Savings Bank Account Scheme. Therefore, we have no hesitation in holding that the appellants had collected premium from their customers under Abhaya Savings Bank Account Scheme and they had not obtained any insurance policy.

The purpose of collection of amounts from various customers under Abhaya Savings Bank Account Scheme by the appellants is to obtain insurance coverage for their account holders. The appellants having collected the amounts from their customers under Abhaya Savings Bank Account Scheme on the premises that the amount was debited to their accounts for the purpose of obtaining insurance policy and it had not obtained only such insurance policy. Hence, the appellant had the obligation to pay the sum assured under Abhaya Savings Bank Account Scheme. We hold that the appellants are liable to pay a sum of Rs.25,000/- to the respondents. Insofar as the interest and costs awarded by the District Forum, we do not see the respondents entitled to the said amount for the reason that they had not lodged any claim with the appellants at any time after the death of the husband of the respondent no.1 except approaching the District forum by filling a complaint. Hence, the respondents cannot seek any such relief in regard to the interest and costs. The appeal is accordingly disposed of.

In the result the appeal is allowed in part modifying the impugned order. The appellants directed to pay an amount of Rs.25,000/- to the respondents/complainants. Time for compliance four weeks.

CC.No.207 of 2008

BETWEEN:

Bathula Srinivasa Varma,

S/o Late Venkateswara Rao,

R/o D.No.12-27-179,

Seelamvari Street,

Kothapet, Guntur. … Complainant

and

The Manager,

Andhra Bank,

Main Branch, D.No.12-21-56,

Gowri Sankar Talkies Road,

Guntur. …Opposite Party
This complaint is coming up before us for hearing on 06.11.2009 in the presence of Sri N. Jimbo, advocate for complainant and of Sri M.V. Subba Rao, Advocate for opposite party, upon perusing the material on record and after hearing both sides, having stood over till this day for consideration this Forum made the following:-

O R D E R
Per Sri M.V.L. Radhakrishna Murthy, Member::- This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant praying to direct the opposite party to pay the cheque amount of Rs.50,000/- towards damages caused to the complainant and for costs.

The averments of complaint in brief are as follows: The complainant is having an account bearing No.ABG 500534 in opposite party bank. One G. Srinivas issued a cheque bearing No.847409, dated 10-01-08 for Rs.15,000/- drawn on Andhra Bank, Koritepadu Branch, Guntur in favour of the complainant. The complainant presented the said cheque in opposite party’s bank on 10-01-08 for collection. But the same was dishonored and returned by the Andhra Bank, Koritepadu branch, Guntur for the reason “payment stopped by drawer” vide its memo dated 11-01-08. But the opposite parties branch did not return the same to the complainant inspite of repeated requests and demands made by him even though he approached the opposite party branch several times and requested to return the cheque and memo. After a lapse of 8 months, the opposite party sent the same through RP on 29-08-08 and it was received by the complainant on 30-08-08. Due to attitude of the opposite party, complainant lost his chance to take proceedings against said G. Srinivas under the provisions of N.I.Act. The complainant suffered a lot due to opposite parties deficiency of service. As such opposite party is liable to compensate the complainant. Finally, complainant got issued a registered notice on 13-09-08 calling upon opposite party to pay the cheque amount of Rs.15,000/- and Rs.50,000/- towards damages caused to the complainant within a week after receipt of notice. The opposite party received the same and got issued a reply dated 19-09-08 with all false allegations. Hence, the complaint.

The opposite party bank filed its version which is in brief is as follows: Most of the averments made in the complaint are all false and frivolous and invented for the purpose of complaint. The complainant demanding for cheque amount of Rs.15,000/- and further a sum of Rs.50,000/- towards damages is not maintainable either at law or on facts. The complainant is no doubt holding savings bank account as stated in the complaint and the cheque referred in the complaint was also presented for clearance. Subsequent to presenting of the said cheque there are number of transactions periodically operated by the complainant and the complainant has been visiting branch of the opposite party. With regard to the cheque referred in the complaint it was informed to the complainant several times to take back the said cheque and the complainant was not interested to receive the same for reasons best known to him. However, as a prudent banker the opposite party returned the cheque to the complainant through registered post on 29-08-08 along with the memo. The complainant may note that from the date of returning said cheque through memo, cause of action to initiate proceedings U/S 138 of N.I.Act., will arise. The complainant got sufficient time to issue notice for a period of one month i.e., by 29-09-08. Without opting to the issuance of legal notice the complainant resorted for issuance of notice through this Forum for illegal benefits. The opposite party is not liable for any demands made by the complainant. Hence, the complaint may be dismissed with costs.

On behalf of complainant affidavit in support of the version has been filed reiterating the same. Opposite party filed affidavit in support of its version reiterating the same. On behalf of complainant Exs.A-1 to A-6 are marked and on behalf of opposite party Exs.B-1 to B-3 are marked subject to protest by the complainant.

Ex.A-1 is the returned cheque which was presented by the complainant. Ex.A-2 is the copy of registered notice. Ex.A-3 is the reply registered notice issued by the opposite party. Ex.A-4 is the cheque returned memo. Ex.A-5 is the registered post cover addressed to the complainant by the opposite party. Ex.A-6 is the postal receipt and acknowledgement.

Ex.B-1 is the statement of account of complainant. Ex.B-2 is the copy of subsidy reserve fund register. Ex.B3 is the copy of out word clearing ledger maintained by opposite party.

Now the points for consideration are that,

1. Whether there is deficiency of service on the part of opposite party?

2. To what relief the complainant is entitled to?

POINT No.1:- It is the case of complainant that he presented a cheque under Ex.A-1 in opposite party bank for collection and same was returned for the reason, ‘payment stopped by the drawer vide its memo dated 11-01-08 and that the opposite party has not returned the said cheque inspite of repeated requests whenever he visited the bank and there by he lost chance of filing case against the person who issued cheque under N.I.Act and thereby he sustained loss due to attitude and deficiency of service on the part of the bank.

It is the case of the opposite party that the cheque in question was not taken by the complainant even though he was asked to take back whenever he visited bank and finally opposite party sent returned cheque to the complainant by registered post on 29-08-08 along with memo and there is sufficient time for the complainant to take action against the person who has issued cheque under N.I. Act.

It is not in dispute that complainant has got account with the opposite party and that he has presented a cheque under Ex.A-1 for collection to opposite party bank on 10-01-08 and it was returned for the reason “payment stopped by drawer”. The point in dispute is that inspite of repeated requests made by the complainant the opposite party has not returned the cheque. Admittedly the cheque was presented on 10-01-08 and it was returned on 11-1-08 since the payment was stopped by the drawer. It is the case of the opposite party that inspite of their requests to take back the cheque complainant has not taken the cheque and he has not shown interest in taking back the cheque in question and as a prudent banker the opposite party returned the cheque by registered post to the complainant on 29-08-08. Even according to the opposite party bank the cheque in question was returned after a lapse of 8 months by registered post. When the complainant has not taken back the returned cheque inspite of requests made by the opposite party bank what prevented them to send the said cheque immediately by registered post without waiting for a long lapse of 8 months. This aspect is not explained by the opposite party bank. The counsel for the opposite party bank argued that there is sufficient time to take action against the person who has given the cheque to the complainant, under N.I.Act even after return of the cheque by the opposite party on 30-08-08 and if the complainant is really interested in taking action against the person who has issued the cheque he would have given notice to him as there is one month time till 29-09-08. The reason for not returning the cheque to the complainant for the long lapse of 8 months as explained by opposite party is not convincing. If the opposite party is really prudent they would have returned the cheque earlier by registered post to the complainant. The step that was taken by the opposite party bank for returning the cheque after a long lapse of 8 months would show that there is deficiency of service on the part of the opposite party bank. Accordingly, this issue is answered in favour of complainant.

POINT No.2:- The opposite party is liable to compensate for the loss sustained by the complainant.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite party is directed to pay an amount of Rs.2,000/- towards compensation to the complainant for deficiency of service.
2. The opposite party is further directed to pay an amount of Rs.500/- towards costs of the complaint.
3. The aforesaid amounts shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @9% p.a. till the date of realization.

Dictated to steno typist, transcribed by her, corrected by me and pronounced in the open Forum dated this the 11th day of November, 2009.

C.C.No.159 of 2008

BETWEEN:

Pagadala Jhansi,

W/o. Sambasiva Rao,

R/o. Sakechapuram,

H.No.4-16-90, Koritepadu,

Guntur. … Complainant

AND

The Branch Manager,

Andhra Bank,

4/13, Brodiepet,

Guntur. … Opposite party

This complaint coming up before us for final hearing on 05-11-09 in the presence of Sri P.Syam Kumar, Advocate for complainant and of Sri P.Prabhakara Rao, Advocate for opposite party, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANEYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant seeking direction on the opposite party to return gold ornaments (Nantaadu) and also claiming compensation of Rs.10,000/- and legal expenses of Rs.2000/-.

The case of the complainant is that

She is a native of Koritepadu, Guntur town. She has obtained gold loan for an amount of Rs.10,000/- from Andhra Bank, Brodiepet Branch, Guntur on 10-11-06 by pledging gold ornaments (Nanthadu) weighing 3 soverins. Subsequently, she has repaid total amount of loan in her account bearing No.01/00203536. The receipts are filed herewith to an amount of Rs.6,370/-. The complainant submits that after payment of total loan amount, she has requested the opposite party to return the pledged gold ornaments. But the opposite party delayed in returning gold armaments stating that the appraiser was not available. Subsequently, she has also approached the Bank but the matter was delayed. As there was no alternative she got issued legal notice dt.19-05-08. The opposite party received same and kept quite. Hence, the complaint.

The opposite party has filed its counter affidavit through its Branch Manager namely Y.Nagendra. The Bank has admitted about obtaining gold loan of Rs.10,000/- on 10-11-06 by pledging gold armaments under account No.GL NAG/01/20060553 by the complainant but denied rest of the allegations as they are not correct and untenable. The net weight of gold ornaments is 17 grams worth Rs.12,240/- consisting of one ring and chain. The complainant has executed an agreement abiding the terms and conditions to repay the same with interest within one year. As per the terms and conditions in application in Sl.No.8 reveals that if the borrower fails to repay the loan to Bank, the Bank is authorized to dispose of the ornaments pledged by public or private sale as deemed fit and appropriate sale proceeds for adjustment of loan. As per terms and conditions, the opposite party issued a notice through registered post to complainant on 30-01-08 and also made paper publication in Eenadu Daily in Guntur Edition on 07-03-08 wherein the complainant was shown at Sl.No.17. As per paper publication, the opposite party conducted auction on 24-03-08 and realized an amount of Rs.18,564/- Out of sale proceeds 2% of sale tax recovered and on the rest of total amount of Rs.18,200/-, on it an amount of Rs.6,029/- adjusted to loan account and the balance amount of Rs.12,171/- obtained pay order and sent to complainant by register post. The said pay order returned to Bank with false endorsement. Till today the pay order is in the name of complainant. As per terms and conditions and guidelines of RBI , the complainant has to pay loan amount within one year with agreed interest. In case of failure, the Bank is at liberty to put public auction. The opposite party has followed the same procedure and realized the loan amount. There is no deficiency of service on the part of Bank. Hence, the complaint is dismissed with costs.

Both parties have filed their respective affidavits apart from marking documents. Ex.A1 to A17 are marked for complainant and Ex.B1 to B6 are marked for opposite party.

Now the points for determination are that

1. Whether the opposite party has committed an act of deficiency of service in conducting sale of pledged gold ornaments for realization of loan amount?
2. Whether the complainant is entitled for amounts as sought for?

POINT No.1

The complainant seeks return of her pledged gold ornaments weighing about 3 soverins and also compensation of Rs.10,000/- from Bank on the ground that she has repaid entire loan amount and filing receipts to an extent of Rs.6,370/- vide Ex.A1 to A14.

It is the case of Bank that loan amount was not discharged entirely and as on the date of conducting auction of pledged ornaments, an outstanding due amount of Rs.6029/- was still in balance as per statement of account maintained by Bank vide Ex.B6 and out of sale proceeds, the said amount was adjusted and after adjusting amount balance remained Rs.12,171/- and the same was sent to complainant through pay order but she did not receive the same and still it is lying with them. According to it loan was sanctioned on 10-11-06 for a sum of Rs.10,000/- as per loan documents executed by her vide Ex.B1 and B2, it would be overdue within a period of one year from the date of its sanction, as such it proposed to put the pledged articles for sale by auction along with items of other loans and she was intimated about the same on 30-01-08 by register letter (Ex.B3) postal receipt. This apart notice of auction is also published in Telugu Daily in Eenadu Guntur Edition dt.07-03-08. Copy of publication is also filed (Ex.B4). Therefore, the Bank claims that it has followed the procedure as per terms and conditions and guidelines of RBI in conducting public auction and there is no deficiency of service on their part.

The complainant though claims that she has repaid entire loan amount of Rs.10,000/- there is no documentary evidence for the same except payment showing to an extent of Rs.6,370/- as per receipts available on record. The Bank statement vide Ex.B6 also support payment made by her to that extent only. It is not her case that she lost some of the receipts and filing available receipts with her. However, it is vehemently contended that the Bank has not intimated her about conducting auction on 24-03-08 though she has made payment on 15-03-08 to the tune of Rs.360/- vide Ex.A13. Therefore, she claims completely no knowledge about conducting auction of her pledged ornaments. She has also no knowledge about paper publication given by the Bank. As seen from paper publication, the gold ornaments belonging to 66 loanees were put to auction. The Bank also claimed that they have intimated her by letter dt.30-01-08 through register post, of course no copy of that letter on record, the receipt for register post vide Ex.B3 is on record. On the reverse of it there is postal endorsement that there is no door number is found. Therefore, basing on such record, we cannot find fault with the Bank that it has not taken steps to intimate about auction.

As rightly pointed out the ornaments pledged by her are one ring and chain with a gross weight of 20 grams after deducing weight of stones at 3 grams, the net weight is shown as 17 grams of 22 ct. The appraiser certificate shows the rate at Rs.720/- per gram and its total value is Rs.12,240/-, which is evident from Ex.B1 itself. In the auction conducted by Bank it fetched sum of Rs.18,564/- as against value of Rs.12,240/-. They have deducted 2% of sale tax and also adjusted balance outstanding loan amount of Rs.6,029/-. After these adjustments there remained Rs.12,171/- which was sent to her by pay order. But it appears that she has refused to receive the same. As seen from statement of account interest is also added from time to time as per agreed rate at 11.5% p.a. which is evident from Ex.B1 and B2. Since the loan remained unpaid completely by it’s over due date, the Bank had to sell them by conducting public auction as per the guidelines of RBI and realize the loan amount through such sale proceedings. Therefore, there appears to us no deficiency of service on the part of Bank. The point is answered accordingly.

POINT No.2

In view of findings given above, the complainant is not entitled for return of her pledged ornaments from Bank apart from compensation claimed.

In the result, the complaint is disposed of with a direction to opposite party to remit sum of Rs.12,171/-, the balance amount remained in her account out of sale proceedings forthwith and the complainant shall receive the same. Each party shall bear their own costs.

Dictated to Junior Steno, transcribed by her, corrected by us and pronounced in the open Forum, this the 11th day of November, 2009.

C.C.No.624 of 2007
BETWEEN:
Yarlagadda Venkateswara Rao,

S/o. Koteswara Rao,

R/o. Uppudi village,

Repalle Mandal,

Guntur District. … Complainant

AND

1. The Branch Manager,

Andhra Bank,

Repalle Branch, Repalle,

Guntur District.

2. The Branch Manager,

United India Insurance Company Ltd.,

Tenali Branch, D.No.6-42-1,

Ward No.5 or Vellakki Street,

Salipet, Tenali.

P.B.No.30, Tenali,

Guntur District. … Opposite party





This complaint coming up before us for final hearing on 25-11-09 in the presence of Sri P.V.Ramana, Advocate for complainant and the OP1 is remained exparte, Sri G.Srinivasu, Advocate for OP2, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANEYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant claiming compensation of Rs.1,40,000/- in all from opposite parties towards damage of vehicle, loss of earnings, mental agony and legal expenses.

The brief facts of case are that

The complainant is a permanent resident of Upuudi Village. He completed his Automobile Engineering Technician Course. He started self employment scheme by applying for loan under PMRY. The Industries Department selected his application and forwarded the same to 1st opposite party for sanction of loan. He was sanctioned loan of Rs.95,000/- on 06-10-04 fixing repayment period as 7 years. He was paying monthly installments @ Rs.2000/- as fixed by 1st opposite party. He has purchased Bajaj Goods Vehicle. The 1st opposite party collected premium and paid the same to 2nd opposite party for insuring the vehicle from time to time. The sum assured under the policy is Rs.1,00,000/-. The policy is valid from 22-09-06 to 21-09-07. The vehicle is bearing No.AP-07-TT-3352.

On 02-09-07, the complainant vehicle met with an accident while crossing unmanned railway gate in between Repalle and Pallikona. The vehicle was unable to move forward as it was struck up the engine and gear wheel. It was loaded with granite chips. The train No.319 dashed the auto, due to that it was damaged completely. The Railway Protection Force registered the case as crime No.34/07 under section 151 of Railways Act and produced the same before the Hon’ble II Addl. Munsif Magistrate for Railway, Vijayawada. The complainant took custody of vehicle from Railway Department and kept the vehicle in a garage at Repalle. He has informed about the same to opposite parties. The 2nd opposite party did not appoint any surveyor for assessing the damage of vehicle. The mechanic is of opinion that the vehicle was totally damaged. As the vehicle was damaged, the complainant lost his earnings and unable to pay monthly installments to 1st opposite party. The complainant has no other income source except plying the goods vehicle. The complainant himself is owner cum driver. Therefore, the insurance company shall appoint surveyor and assess the damage and pay to complainant. The complainant himself is unable to carry out repairs with his own funds. Non-settlement of claim is sheer negligence. Thus both the opposite parties have committed deficiency of service. Hence, the claim.

The 1st opposite party remained exparte. The 2nd opposite party filed its version denying the allegations made in the complaint in a formal way.

It is admitted that it has issued Goods Carrying – Public Carrier Package Policy to complainant for the vehicle bearing No.AP07 TT 3352. The period of policy is from 22-09-06 to 21-09-07 and the sum assured is Rs.1,00,000/-. The driver of vehicle has no valid and effective driving license at the time of accident and the vehicle was over loaded at the time of accident, as such the insured intentionally violated the terms and conditions of policy. It is further submitted that as soon as it received information regarding accident, this opposite party requested the complainant to intimate the address of garage with estimation of repairs and for appointment of surveyor, for which no response from complainant till date. The opposite party also issued claim form to insured and requested him to furnish all relevant material papers along with estimation report prepared by repairer. The complainant has not submitted claim form till today along with required documents as sought for. If he submits the same, the surveyor will be deputed immediately for loss assessment. Thus there is deficiency of service on the part of this opposite party. Therefore, it is prayed to dismiss the complaint.

Both sides have filed their respective affidavits. On behalf of complainant Ex.A1 to A12 are marked. On behalf of opposite party Ex.B1 to B3 are marked.

Now the points for determination are that

1. Whether the 2nd opposite party has committed deficiency of service as alleged?
2. Whether the complainant is entitled for the amounts as sought for?
3. To what extent?

POINTS 1 to 3

During the course of hearing of case it is represented by learned counsel for complainant (16-09-09) that the surveyor had come to workshop and insisted upon the complainant to sign on full satisfaction voucher without assessing actual damages as per directions given by this Forum on 08-09-09. In this regard, he is awaiting further instructions from his client and prayed short adjournment. Earlier on 08-09-09 while hearing arguments oral directions were given to the counsel for 2nd opposite party, that the surveyor shall visit the garage as per the address given by complainant and assess the damages. However, they insisted for total dismantle of vehicle as per the norms of insurance policy. Accordingly, the vehicle was dismantled. It is reported on 23-09-09 that the surveyor had inspected the dismantled parts in the garage and likely send his report. The Forum has waited for sufficient time for report of surveyor in respect of damages assessed by him. At the time of conclusion of arguments, the 2nd opposite party has filed copy of policy vide Ex.B1 and also letter dt.19-09-08 vide Ex.B2 under which it was informed that the surveyor has taken photographs of damaged vehicle on 11-08-08 and gave instructions for dismantling the same. But the repairer required the presence of complainant and surveyor did not get any intimation about the same so far. Therefore it is requested to dismantle the vehicle. From this letter it is understood that the vehicle was in mud water and not in movable condition and require week days time to dismantle. Anyway the vehicle was ultimately dismantled and totally made as scrap. Thereafter on 24-11-09, final survey report was filed under Ex.B3.

Now basing on this report, the learned counsel for 2nd opposite party submits that the surveyor has shown three types of liabilities Viz. (I) On repair basis, net liability is shown as Rs.62,000/- (II) On cash – Loss basis, net liability is shown as Rs.41,358/- (III) On salvage – Loss basis, net liability is shown as 28,950/-. Therefore, in view of the same it is left to the discretion of Forum to adopt any one and award damages but without interest.

In the remarks column, the surveyor has noted the following points:

1. As it is abnormally delayed, I am submitting my survey report basing on my observations.

2. Insured said that all records were seized by Railway Authorities, hence not produced for my verification. So, they may be called for verification at your end.

3. Engine No. and Chassis No. were physically noted from the vehicle.

4. I applied depreciation on metal parts basing on the photocopies of RC and insurance policy received from your end.

5. Final survey photographs 58 Nos. with CD are enclosed herewith.

6. Insured’s letter dt.05-12-08 relating to “cause of accident” and scrap dealer’s quotation dt.11-12-08 are enclosed herewith.



From the documents filed by complainant it is observed that the vehicle bearing No.AP-07-TT-3352 met with an accident at unnamed railway gate in between Repalle and Pallikona. The Railway Protection Force registered the case as crime No.34/07 under section 161 of Railways Act and they seized the vehicle. As passenger train hit the auto, it was thrown aside of track about 4 feet. The driver was also remanded for 14 days vide Ex.A2. Ex.A3 and A4 are the copies of photographs of damaged auto. The certificate of registration for the vehicle is Ex.A5 in which all the particulars are given including chassis and engine number. Immediately after accident, the complainant has given intimation to the Branch Manager of 1st opposite party as seen from Ex.A6. The vehicle was released from the custody of Railway police as per letter dt.19-09-07 vide Ex.A7. Ex.A10 is the copy of driving license in the name complainant along with batch number and its validity period till 23-02-09. There is also letter dt.09-10-07 it is addressed to both the opposite parties by the complainant giving intimation of accident and requesting for appointment of surveyor. This letter also shows that he has already intimated about this accident. He has also mentioned that at present, the vehicle was in auto garage at Repalle. Further he has filed bunch of photographs of damaged vehicle.

The aforesaid material sufficiently discloses the fact that the vehicle met with an accident and it was informed to both the opposite parties requesting for assessment of damage and appointment of surveyor. Thereupon the subsequent events developed in the aforesaid manner. It leads to file a final report of surveyor. There appears no lapse on the part of complainant either in giving intimation about the accident or in requesting for assessment of damages. Some delay is caused in taking custody of vehicle from Railway protection force. Thereafter there was in ordinate delay on the part of insurance company in making preliminary inspection and as well as final inspection. When vehicle could be repaired to the extent possible, it is not understood as to why surveyor demanded for complete dismantle of the same. After dismantle of the same it just became scrap, on which basis, the surveyor estimated the loss at the lower of Rs.28,950/-. On repair basis it is estimated Rs.62,000/-. As seen from the material available on record, the complainant has filed required documents. The surveyor did not take any initiative in collecting the same from complainant. In the light of aforesaid discussion, we hold that there is any amount of deficiency of service on the part of 2nd opposite party.

The complainant has obtained loan under the scheme PMRY from 1st opposite party. The loan is repayable on monthly installment basis @ Rs.2000/-. After the accident as the vehicle is not plying, the complainant has lost his source of livelihood, the loan amount remains unpaid since then. The bank would charge interest over the balance amount unpaid. All these factors certainly would cause mental agony to complainant. Having regard to the same, it is felt appropriate to adopt estimation as reported by surveyor i.e., damages on repair basis amounting to Rs.62,000/-. Accordingly, we award the same. We also award Rs.2000/- towards compensation for mental agony, pain and suffering. However, we decline to award interest and other amounts as sought for since damages are being awarded on repair basis.

In the result, the complaint is allowed in part in terms as indicated below:

1. The 2nd opposite party is hereby directed to pay sum of Rs.62,000/- (Rupees sixty two thousand only) towards damages of vehicle bearing No.AP-07-TT-3352 to complainant.
2. The 2nd opposite party is further directed to pay Rs.2000/- towards mental agony, pain and suffering and Rs.1000/- towards legal expenses to the complainant.
3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which they shall carry interest @ 9% p.a. till the date of realization

C.C.NO. 29 Of 2009
Between:-

Mohd. Mubasheer, S/o Mohd. Afzal, aged 23 years, Occ: Business,

r/o Saw mills, Jadcherla village and mandal.
… Complainant
And

The Manager, Andhra Bank, Jadcherla Branch, Mahabubnagar Dist.

… Opposite Party
This C.C. coming on before us for final hearing on 07-01-2010 in the presence of Sri M. Chennaiah Goud, Advocate, Mahabubnagar for the complainant and Sri V.Maheshwar Reddy, Advocate, Mahabubnagar for the opposite party and having stoodover for consideration till this day, this Forum delivered the following:
O R D E R

(Sri P. Venkateshwara Rao, Member)

1. This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite party to pay a sum of Rs.20,506/- towards cheque amount and Rs.10,000/- towards compensation and Rs.5,000/- towards interest loss and also pay Rs.3,000/- towards costs of the complaint.



2. Brief facts of the case are that the Hon’ble District and Sessions Judge, Mahabubnagar issued a cheque in favour of the complainant in connection with the settlement of claim in OP.No.134/2005 on the file of MACT for Rs.20,506/- vide cheque No.A 653771 dt. 22-04-2008 and sent the same to the opposite party bank with a direction to credit it into the account of the complainant. The cheque was received by the opposite party bank on 30-04-2008 but failed to credit the cheque amount to his account. The complainant severally approached the bank but they failed to respond. As such he got issued a legal notice to the opposite party on 20-01-2009 through his advocate. On receipt of the said notice the opposite party bank returned the cheque issued by Hon’ble District Court unpaid with a return memo stating that the cheque is out dated. Thus the opposite party rendered deficiency in service by not sending the cheque for realization and not credited the amount into his account. Therefore, the complainant is entitled for the cheque amount apart from Rs.5,000/- towards interest thereon and Rs.10,000/- towards compensation and costs of Rs.3,000/-.



On the other hand, the contention of the opposite party bank is that the cheque was received by it on 30-04-2008. The cheque is pertaining to CCD account of the Hon’ble District Court, Mahabubnagar. Therefore, it shall not be honoured after 27th of particular calendar month in which it was issued. The cheque being out dated it was not sent for collection and cheque was kept ready to return with a return memo on 06-05-2008 itself and the opposite party was waiting for complainant to return the cheque to get it revalidated. But he did not turned by. Hence they returned the cheque on 18-01-2009 through registered post by advising him to get the cheque revalidated. Instead of getting revalidation, the complainant has filed complaint before the Forum. As such there is no fault or deficiency of service on the part of the opposite party. Therefore the complaint is liable to be dismissed with costs.

3. The complainant filed his affidavit and got marked Exs.A-1 to A-5.

4. The opposite party filed its affidavit but not filed any document.

5. The complainant and the opposite party filed their respective written

arguments.

6. The points which fall for consideration are:-

(i) Whether the opposite party rendered deficiency of service?

(ii) Whether the complainant is entitled to the reliefs as prayed for?


7. There is no dispute with regard to the facts that the complainant is a Account holder of the opposite party bank and the Hon’ble District Judge, Mahabubnagar issued a cheque for Rs.20,506/- vide cheque No. A 653771, dated 22-04-2008 in favour of the complainant and send it to OP bank for crediting the cheque amount into the complainant’s account and the same was received by the opposite party bank on 30-04-2008 and the same was unpaid for want of revalidation.



8. Point No.1 :- According to the complainant, as per Ex.A-4, endorsement of postal department the subject cheque was served on OP on 30-04-2008. However it was not sent for realization till 24-01-2009. The opposite party contended that it was waited till 18-01-2009 for the complainant to return the cheque, but he did not turned by. Hence the cheque was returned by post to the complainant. Firstly, it has to be seen whether the cheque is out dated or not. Ex.A-1 is the original cheque, dated 22-04-2008 issued by Hon’ble District and Sessions Judge, Mahabubnagar and it is pertaining to CCD account. It is mentioned on the cheque that “Not payable it presented after close of the month in which issue”. Admittedly the cheque was received by OP on 30-04-2008. Therefore, it should be sent on 01-05-2008 for realization which is not permissible. As such we are of the opinion that the cheque is out dated and unless and until it is revalidated, it cannot be encashed.



Now it has to be seen whether the opposite party bank chosen to inform the said fact to the complainant or tried at any point of time till January, 2009 to return it to the District Court, Mahabubnagar. The very contention of the opposite party bank is that they prepared a cheque return memo on 06-05-2008 and waiting for complainant, but he did not approached. For that reason after lapse of 8½ months they send the cheque to the complainant vide Exs.A-2 & A-3 with a advise to get the cheque revalidated. It is not the case of the opposite party bank that it was not having address of the complainant. There is no explanation in its counter why it was not returned to the District Court, Mahabubnagar when the complainant not turned up. It is evident from the postal cover enclosed to Ex.A-5 that the opposite party dispatched the cover containing Exs.A-1 to A-3 is on 24-01-2009, so it can be safely presume that after receiving the Ex.A-5 legal notice, dated 20-01-2009 only the opposite parties send the cheque to the complainant. The opposite party bank ought to have done the same immediately in the first week of May, 2008 itself. The opposite party bank neither choose to return the cheque to the complainant in first week of May, 2008 nor to return it to the District Court, Mahabubnagar for revalidation of the cheque. The bank authorities arbitrarily withhold the cheque with them without any reason. Therefore in our view the OP bank rendered deficiency in service. Therefore we are of the considered opinion that the complainant is entitled for the reliefs.



9. Point No.2:- The complainant seeking direction to the opposite party to pay the cheque amount. No doubt the opposite party rendered deficiency in service. However, the opposite party bank is not liable to pay unless it is properly revalidated. The complainant can get his cheque amount after it’s revalidation. At the same time the complainant is not entitled to get the cheque amount from the opposite party bank as well as from District Court after revalidation of the cheque. No doubt the deficiency of service rendered by the opposite party bank is caused monetary loss in the shape of interest for all these period to the complainant and also forced the complainant to file a complaint before this Forum by spending court fee and advocate fee etc. In our opinion, Rs.1000/- is just and proper to award as compensation to the complainant for all his damages and other sufferance’s and Rs.500/- towards costs of the proceedings which is payable by the opposite party bank for its deficiency in service.



10. In the result, the complaint is allowed partly directing the opposite party bank to pay Rs.1000/- towards compensation and Rs.500/- towards costs of the proceedings within 30 days from the date of receipt of the order. The complainant is directed to submit the cheuqe No. A 653771, dated 22-04-2008 of Rs.20,506/- before the Hon’ble District Judge, Mahabubnagar for revalidation to get his amount.

Thanks for this information.