IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM U/C.P.ACT, 1986 AT NIZAMABAD.

Quorum : Sri P.Raghavender, B.Sc., LL.B., ….PRESIDENT

Sri.Y. Krishna, M.Com., …. MEMBER.

Smt K. Vinayakumari,M.A., LL.B., …MEMBER.

DATED THIS THE 20TH DAY OF MARCH 2009

Date of filing of complaint : 15-02-2008

Date of Order : 20-03-2009

C.C. NO. 52 OF 2008

Between :-


Smt.Vanaparthi Godavari W/o V.Venkataiah, aged 48 years, Housewife, R/o Flat No.103, 2nd Floor, Sri Sai Nilayam Apartments, Namdevwada, Nizamabad.

Complainant

AND

The ING Vysya Bank Ltd., (formerly known as Vysya Bank) Devi Road, Nizamabad, represented through its Branch Manager.

Opposite Party

This Consumer Complaint Case coming on 13-03-2009 for final hearing before us in the presence of Sri D.Venkat Ramana Goud, Advocate for complainant and Sri K.Maruthi, Advocate for Opposite Party and upon hearing the arguments of both side advocates and the matter having stood over for consideration till this day, this Forum made the following :

:: O R D E R ::

(ORAL ORDER BY Smt.K.VINAYA KUMARI, MEMBER)

1. THIS IS A COMPLAINT FILED U/SEC.12 OF C.P.ACT, 1986.

2. The brief facts of the complaint are:

3. The complainant a house wife and a resident of Nizamabad is the owner of Plot No.21, Sy.No.34 situated at Mubaraknagar Village.
The husband of the complainant without the knowledge of his wife mortgaged the said plot with opposite party towards security for the repayment of the loan amount he obtained for Unique Electronics. The staff of the opposite party also obtained the signatures of the complainant on several blank papers and unfilled proforma papers misrepresenting the facts and being uneducated the complainant has signed on blank papers.

Thought the Opposite Party promised to return the orignal plot documents once the loan amount is re-paid did not do so and dodged the matter one are pretext on another. Hence gave legal notice to the Opposite Party. The Opposite Party in their reply notice stated that as the complainant stood as guarantor to other loan pertain to Telangana Seeds Private Ltd., the papers could not be returned. The complainant issued notice to the Opposite Party on 13-08-2007 denying all the allegations of the Opposite Party.
The acts of the Opposite Party in not returning the original documents immediately after repayment of loan pertaining to M/s Unique Electronics amounts to unfair trade practice and deficiency in service and therefore prayed to direct the Opposite Party to return the original document bearing No.1957/86 dated 25-03-1986 in respect of plot No.21 measuring 303 Sq.Yards situated at Mubaraknagar Village, Nizamabad district, and also to pay Rs.50,000/- as compensation for causing mental agony along with costs of the complaint.

4. The Opposite Party filed counter materially contending that the husband of the complainant Sri V.Venkataiah approached them for credit facility for business purpose. The Opposite Party sanctioned the credit facility against the security of the property bearing plot No.21, situated at Mubarak Nagar in pursuance of the sanction, the complainant deposited the title deeds of the property with the Opposite Party. Further the Opposite Party also sanctioned credit facility to the M/s Telangana Seeds Company on the request of the complainant husband who is the director of the Company against the personal guarantee of all the partners in the firm. The complainant is also one of the partner of the company.

In pursuance of the sanction all the partners of M/s Telangana Seeds conditioning company have jointly created mortgage by deposit of title deeds over the property belonging to the firm and also executed personal guarantees in their individual capacity.

Even though the outstanding loan paid towards M/s Unique Electronics was paid by the complainant husband original documents were not released since M/s Telangana Seeds Company Pvt. Ltd. is due to pay amount to the bank as the liability of the complainant as a guarantor to the said loan is subsisting. The Opposite Party bank in exercise of powers conferred under bankers general lien is entitled to withhold the title deeds pertaining to the property of the complainant as security for repayment of the amount outstanding in loan account of M/s Telangana Seeds Company Pvt. Ltd.

Therefore, the claim of the complainant for return of the title deeds is invalid and hence prayed to dismiss the complaint against them with exemplary costs in the interest of justice and equity.

5. During the enquiry both parties lead their evidence by filing their affidavit and Ex.A1 to Ex.A5 documents are marked on behalf of the complainant, Ex.B1 document marked on behalf of Opposite Party.

6. Heard arguments of both side advocates.

7. The points for consideration are :

1)Whether there is deficiency in service on the part of Opposite Party to the complainant ?
2)Whether the complainant is entitled for any of the reliefs as prayed for ?

8.POINT No.1 :- The admitted undisputed proven facts as per complaint, counter, evidence adduced on both side are the complainant husband deposited title deeds of the property bearing No.21, in Sy. No.34 situated at Mubarak Nagar with the Opposite Party as security for the repayment of credit facility given by Opposite Party for business purpose and is also admitted that the complainant husband totally repaid the loan amount vide the voucher dated 20-05-2000 (Ex.A1).

The point of dispute is the complainant alleged deficiency in service and unfair trade practice on the part of Opposite Party in retaining the title deeds of the property even after total repayment of loan pertaining to M/s Unique Electronics towards which credit facility was given and in evidence produced affidavit of complainant.

The Opposite Party counters the said allegation and contended that the complainant stood as personal guarantor to the loan sanctioned to M/s Telangana Seeds Pvt. Ltd., Company and executed all the required documents in favour of the Bank including the guarantor agreement dated 03-02-1998. The Opposite Party in exercise of powers conferred under Bankers general lien is entitled to withhold the title deeds pertaining to the complainant and in evidence produced Ex.B1 document. As there is no deficiency and unfair trade practice on their part to the complainant prayed to dismiss the complaint against them.
Heard arguments of both side Advocates and perused the material on record.
It is clear from Ex.A5 that the complainant created mortgage on the property bearing plot No.1 in Mubarak Nagar to secure the loan sanctioned by the bank to M/s Unique Electronics.
Ex.A1, A3 clearly go to proof that the entire outstanding loan amount under O.D. facility amounting to Rs.2,14,367/- in the name of Unique Electronics was cleared by the complainant husband.
The Ex.B1 produced as evidence by the Opposite Party only go to show that the complainant is one of the borrower and stood as personal guarantor for the loan amount taken towards M/s Telangana Seed Company.
The Opposite Party though contended that the complainant mortgaged her property towards security loan to M/s Talangana Seed Company have not produced the said documents.
Keeping in view of the National Commission judgement reported in 1992 (2) CPR (8) (NC) in State Bank of India and others V/s Anand Mohan Shah, material on record and the pleadings put forward we are of the considered opinion that there is deficiency in service on the part of Opposite Party in retaining the title deeds of property even after repayment entire amount of loan towards which the documents were kept as security.

Accordingly this pint goes in favour of the complainant and against the Opposite Party.

9. POINT No.2 :- In view of our findings on the foregoing pint No.1 and the reasons mentioned there in we are of the opinion that the complainant is entitled for the following reliefs. The Opposite Party is directed to return original documents of plot No.21 in Sy.No.34, situated at Mubarak Nagar, Nizamabad immediately to the complainant and also to pay Rs.5,000/- as compensation for causing mental agony along with Rs.2,000/- as costs of the complaint.

10. IN THE RESULT, the complaint is allowed partly as under:

The Opposite Party is directed to:
1)Return original document bearing No.1957/86 dated 25-03-1986 in respect of plot No.21 in Sy.No.34 measuring 303.33 Square yards, situated at Mubarak Nagar Village, Nizamabad.

2)To pay Rs.5,000/- as compensation for causing mental agony.

3)And also to pay Rs.2,000/- as costs of the complaint.

4)Time one month to comply from the date of receipt of order copy.

Typed to dictation, corrected and pronounced by the Lady Member in Open Forum on this the 20th day of March 2009.

MEMBER MEMBER PRESIDENT

:: APPENDIX OF EVIDENCE ::

(Witnesses examined on behalf of)

For the Complainant : For the Opposite Party :
Affidavit of Complainant Counter affidavit of Opposite Party
filed as evidence filed as evidence

:: EXHIBITS MARKED ::

Ex.A1
Photostat copy of Loan account receipt issued by The Vysya Bank Limited for Rs.5,06,475/- and Rs.2,14,367/- in the name of Opposite Party.
Ex.A2
Copy of Legal Notice Dt.13-08-2007 addressed to The Manager, Vysya Bank Ltd., Nizamabad by the counsel for the complainant.
Ex.A3
Original register post receipt bearing No.4638 addressed to The Manager, ING Vysya Bank Ltd., Nizamabad.
Ex.A4
Original postal acknowledgement duly served on The Manager, ING Vysya Bank Ltd., Nizamabad.
Ex.A5
Original reply to Legal notice addressed to counsel for complainant issued by The Manager, ING Vysya Bank Ltd., Nizamabad.

For the Opposite Party:-


Ex.B1
Photostat copy of Translation certificate in the name of complainant issued by Hranch Head, ING Vysya Bank Ltd., Nizamabad.

III ADDL,DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

No.8,Sahakara Bhavan,Cunningham Road,Bangalore-560 052.

consumer case(CC) No. CC/2430/2008

Madhav Ram.
...........Appellant(s)
Vs.

The Manager, Ing Vysya Bank Ltd.

The Manager, ING Vysya Bank
...........Respondent(s)

BEFORE:
1. Dr. Subhashini
2. H.M.SHIVALINGAPPA
3. N. SRIVATHSA KEDILAYA


Complainant(s)/Appellant(s):
1. Madhav Ram.


OppositeParty/Respondent(s):
1. The Manager, Ing Vysya Bank Ltd.
2. The Manager, ING Vysya Bank


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


Though the Complaint does not disclose the requisite details, from the evidence on record, we can make out what exactly the case of the Complainant is. Accordingly, the case of the Complainant is summarized as hereunder:

(b) The Complainant holds a Current Account bearing No.112011018098 in the 1st Opposite Party-Branch of the Opposite Party-Bank. On 10.9.2008, the Complainant presented 3 cheques to that Branch for clearance and credit. The first cheque bearing No.355925 for Rs.35,000/- was drawn on Andhra Bank. The second cheque bearing No.355923 for Rs.1,00,000/- was drawn on Andhra Bank and the third cheque bearing No.879715 was drawn on Canara Bank for Rs.20,000/-.


The Complainant had withdrawn a sum of Rs.49,500/- through self, another sum of Rs.10,000/- through cheque, another sum of Rs.40,000/- through cheque, another sum of Rs.10,000/- through Debit Card and another sum of Rs.5,000/- through Debit Card totalling Rs.1,14,500/- on 11.9.2008 from that Account in the 1st Opposite Party-Branch. There was a balance of Rs.45,625=56 in that Account. Subsequently, the Complainant had deposited Rs.14,000/- into that Account and another sum of Rs.1,017/- was accrued by way of interest totalling Rs.60,642/- at credit. Inspite of the same, the Opposite Party-Bank people with the help of rowdy elements and police, threatened the Complainant demanding Rs.1,00,000/- contending that it was for the clearance of the overdue. The Opposite Party-Bank people had no right to take law into their own hands. Subsequently, they also caused a letter dt.20.9.2008 to the Complainant stating that the cheques so presented were returned without clearance and claimed certain amount by way of cheque return charges apart from seeking refund of the amounts so drawn. The Opposite Party-Bank could not have claimed the cheque return charges. In the circumstances, the Complainant sought for the return of those uncleared cheques. But the Opposite Party-Bank people failed to return. That resulted in a legal notice dt.27.10.2008 to the 1st Opposite Party-Branch. Inspite of the same, those cheques were not returned. Hence, this Complaint is filed to direct the 1st Opposite Party to return those uncleared cheques to the Complainant and to compensate the Complainant in a sum of Rs.80,000/- for the inconvenience caused to him and also to pay a sum of Rs.2,000/- by way of litigation charges.


(c) Along with the Complaint, the Complainant has made available Xerox copies of certain documents.

2 (a). Originally, there was only one Opposite Party. Subsequently through amendment, the Opposite Parties 2 and 3 were impleaded. The 1st Opposite Party has made available their Version of the case on 22.12.2008. The Opposite Parties 2 and 3 have adopted the same.

(b) In brief, the defence of the Opposite Parties is as hereunder: The Complainant was a Customer of the Opposite Party-Bank having Current Account referred to in the Complaint. It was for a period of one year. It is true, the Complainant had presented 3 cheques for clearance and credit as stated in the Complaint. Further, it is true that on 11.9.2008, the Complainant had drawn in all a sum of Rs.1,14,500/- from that Account. However, the contention that he maintained sufficient balance in a sum of Rs.45,625=56 in the said Account is false. Infact, the cheques so presented which were sent for clearance by Andhra Bank came to be returned uncleared on 11.9.2008. However by that time, the Complainant knowing fully well that those cheques could be bounced had withdrawn a sum of Rs.1,14,500/- from that Account on 11.9.2008 itself which resulted in debit balance in his Account to the tune of Rs.1,12,560=44. Without clearing the same, the Complainant was not entitled for those cheques. Infact, the 1st Opposite Party-Branch had acted as an Agent between the Drawer and the Drawee of those cheques and the 1st Opposite Party is not liable to pay any claim as alleged in the Complaint. On the other hand, the Complainant is liable to pay Rs.1,12,617=44 as on 16.9.2008 to the 1st Opposite Party-Branch. It is true, the Complainant had deposited a sum of Rs.14,000/-. It was so deposited only on account of the persuasion to repay the amounts so withdrawn.

The allegation that the Complainant was harassed by the police and the goonda elements at the instance of the Opposite Party-Bank is not true to facts. The 1st Opposite Party-Bank has written a letter to the Complainant on 20.9.2008 to make that payment immediately. The 1st Opposite Party-Bank had so allowed the Complainant to withdraw the amount on 11.9.2008 since they were under the impression that the cheques so sent by them for clearance on 10.9.2008 are cleared for the reason that there was no information from the respective Bank regarding those cheques on 10.9.2008. In good faith and thinking that those cheques were honoured, the Complainant was allowed to withdraw the amount on 11.9.2008 as stated supra, otherwise there could not have been such a withdrawal for the reason that there was no sufficient amount at credit in that Account on 11.9.2008 but for those cheque amounts. Now, the Complainant wants to take undue advantage of the bonafides of the 1st Opposite Party-Bank. Unless and until the Complainant clears the over-dues and regularize the Account, he cannot seek for the return of those cheques. Absolutely there is no deficiency of service whatsoever by the Opposite Party-Bank.


In the circumstances, this very Complaint has to be dismissed. 3. By way of evidence, the Complainant has chosen to swear to an affidavit which is made available in evidence on 25.2.2009. On the same date, a list with as many as 11 documents has been made available by the Complainant by way of evidence. For the Opposite Parties, one Sudheer.D.Nadiger, S/o B.N.Dattoba Rao said to be the Branch Manager of the 1st Opposite Party-Branch of the Opposite Party-Bank has sworn to an affidavit for the Opposite Parties 2 and 3 also which is made available on 7.3.2009. In the mean time, the learned counsel representing the Opposite Parties produced a Memo dt.29.1.2009 stating that the cheques so deposited for collection by the Complainant were sent to Andhra Bank for clearance on 10.9.2008 and since till 3.00p.m. on that date, there was no “advise” from that Bank regarding the clearance of those cheques, it was presumed that those cheques were cleared and accordingly, showing the cheque amounts to the credit of the Complainant in the relevant Account, those withdrawals on 11.9.2008 were allowed. It is further recited that subsequently that Andhra Bank forwarded late advise reversing the credit entry.


The said issue was now settled amicably through the intervention of the Reserve Bank of India and as per the direction of the Reserve Bank of India, the Andhra Bank had remitted the cheque amount to pass it on to the Complainant by collecting the cheques from their Bank on 27.1.2009 and that in lieu of the said credit, the dispute is resolved. Significantly, there is no response whatsoever by the Complainant to that Memo.


4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are:

(i) Whether the Opposite Parties remained deficient in rendering services to the Complainant within the purview of the Consumer Protection Act, 1986?


(ii) Whether the Complainant is entitled for any relief in this case? (iii) What Order?


5. Our Findings to these points are as hereunder: i) No ii) Yes iii) As shown in the operative portion of the Order here below.


6. We shall substantiate our findings on the following:



R E A S O N S


POINT NO.1 (a): It is an admitted fact that the Complainant was a Customer of the Opposite Party-Bank holding a Current Account in their 1st Opposite Party-Branch. Admittedly, 3 cheques have been presented by the Complainant on 10.9.2008 for clearance and credit to the said Account. As revealed in the evidence, those cheques were sent for clearance on 10.9.2008 itself and that there was no “advise” by the Andhra Bank regarding the cheques sent to them on that date and that in the circumstances, the 1st Opposite Party-Bank presumed that those cheques must have been cleared and accordingly, credited the cheque amount in that Account on 11.9.2008. The fact that the Complainant had withdrawn a sum of Rs.1,14,500/- on 11.9.2008 from that Account, is not disputed here. Nodoubt, the Complainant had contended since he had sufficient money in that Account, the said withdrawals on 11.9.2008 could not be treated as illegal. However, there is no evidence on record to infer that but for those cheque amounts, there was sufficient amount in the said Account of the Complainant on 11.9.2008. Having credited those cheque amounts to that Account and holding that there is sufficient amount in the Account, the 1st Opposite Party had permitted the Complainant to make those withdrawals in all to the tune of Rs.1,14,500/- on 11.9.2008.



(b) It is the case of the Complainant that since there was no “advise” by that Andhra Bank regarding those cheques on 10.9.2008, they had to credit the cheque amounts to the said Account and permitted the Complainant to withdraw the same and that after the withdrawal, on the same date i.e. 11.9.2008, they received the Invoice from Andhra Bank stating that those cheques have been bounced. It is the contention of the Opposite Parties that no sooner it was made known, they approached the Complainant with a request to get the needful done by remitting the amount so withdrawn to the said Account and regularize the said Account and that the Complainant except making a partial payment of Rs.14,000/-, did not make the payment of the balance amount. Therefore according to them, they were constrained to cause a letter to the Complainant calling upon him to get the needful done and the Complainant without getting the needful done, had attempted to take undue advantage of the helplessness of the Opposite Parties with a malafide intention of making wrongful gain if possible. Therefore according to the Opposite Parties, their bonafides were exploited by the Complainant. The fact that but for those cheque amounts, there was no sufficient amount in the said Account of the Complainant is very much revealed in the copy of the Statement of Account made available by the Complainant himself.



(c) Further according to the Opposite Parties, since there was no compliance by the Complainant, they had to sent a registered letter dt.20.9.2008 to the Complainant calling upon him to make payment to the tune of Rs.1,12,617=46 including the cheque return charges to neutralize the debit balance. The Complainant has made available that letter in evidence here. As revealed on the same date, the Complainant had sent a letter to the 1st Opposite Party-Branch of the Opposite Party-Bank contending that there was no wrong on his part and that those uncleared cheques be returned to him to proceed against the Drawers of those cheques. The Complainant has made available the copy of that letter in evidence here. Further, the Complainant has also produced another letter dt.10.10.2008 addressed to the 1st Opposite Party requesting them to return those cheques and waive the interest on the amounts so drawn and also the cheque return charges and cooperate. A copy of that letter is also made available by the Complainant along with the Complaint. The Complainant has also made available a copy of that legal notice dt.27.10.2008 addressed to the 1st Opposite Party with copy to the 3rd Opposite Party. As revealed, the said legal notice came to be sent through RPAD.



(d) In a situation like this, the conduct of the Complainant as Customer of the Opposite Party-Banker gains relevance. Having come to know of the fact that those cheques were dishonoured and having known of the fact that there was no sufficient amount to his credit in the said Account but for those 3 cheques, he ought not have attempted to withdraw certain amounts as stated supra. According to the Opposite Parties, the Complainant knew fully well that those cheques would be dishonoured and that knowing fully well, he had withdrawn certain amounts in the early part of the next day i.e., on 11.9.2008. It is the very case of the Opposite Party-Bank that immediately they received the Invoice from the Clearance Bank namely the Andhra Bank stating that those cheques were not cleared and that immediately, they contacted the Complainant to regularize the said Account by making payment of the overdue. Admittedly, the Complainant did not make any payment except that sum of Rs.14,000/- which was only a fraction of the amounts so withdrawn. Now, the Complainant wants to bank upon the technicalities. However, he shall not forget that one who seeks equity, must do equity. Instead of doing so, the Complainant has attempted to take advantage of helplessness of the Opposite Party-Bank. The above conduct of the Complainant according to us, is not only unjust and improper, but also iniquitous.



(e) Now the fact remains that at the intervention of the Reserve Bank of India, the Andhra Bank had to make payment of those cheque amounts to the credit of the concerned Account of the Complainant. The learned counsel representing the Opposite Parties had brought that fact to the notice of this Forum as per the Memo dt.29.1.2009. The Complainant has not questioned the same in any way. In the circumstances, the learned counsel representing the Opposite Parties submitted that they are ready to return the uncleared cheques. Wherefore in a situation like this, we are of the opinion that it may not be proper on our part to hold that the Opposite Parties remained deficient in rendering services to the Complainant as alleged by the Complainant. No malafides can be attributed to the Opposite Parties regarding their commissions and omissions touching the transaction in question. Accordingly, this point is answered against the Complainant. 7. POINT NOs. 2 & 3: As already stated, the Opposite Parties are ready to return the uncleared cheques to the Complainant. However, they could have returned the same by this time. Even then, we are not inclined to attribute any motive to the Opposite Parties in not returning the uncleared cheques so far. However, they shall return the same without further delay to the Complainant. As far as the cost and compensation is concerned, in the light of our finding on Point No.1 supra, we do not think that the claim of the Complainant in that regard need be sustained. Accordingly, we proceed to pass the following:


O R D E R The Opposite Parties are hereby directed to return the uncleared cheques pertaining to this case to the Complainant forthwith. In the peculiar circumstances of the case, the parties shall bear themselves the costs incurred by them in this proceeding. Accordingly, this Complaint is disposed-off.

Complainant:


Sri Shohom Roy
S/o Rabindranath Roy
Aged about 27 years
W/at Procall Pvt. Ltd., Solitaire
36/37, Chinnappanahalli
Marthahalli
Bangalore- 560 037



/vs/




Opposite Party:


ING Vysya Bank
Registered and Corporate Office
No.22, M.G. Road
Bangalore- 560 001
R/by its Manager




O R D E R



SRI. G. SIDDANAGOUD, PRESIDENT:

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite party (Op in short) for the refund of an amount of Rs.5,000/- with compensation of Rs.50,000/- with costs and for such other reliefs.

The brief facts of the case are that the complainant is working at Procall Pvt. Ltd., Solitaire, 36/37, Chinnappanahalli, Marthahalli, Bangalore-560 037. That the complainant has a advantage salary A/c No.218010064039 and Customer No.32574136 in the Op and that the complainant on 29.2.2008 tried to withdraw Rs.5,000/- from the ATM belonging to Corporation bank situated at Arkere Gate, Bannerghatta Road, near Mantri Apartment, Bangalore, but due to some reason unknown the complainant was not able to withdraw the aforesaid amount from the ATM machine thereafter the complainant did not get the ATM statement as such. The complainant on 11/3/2008 at around 1.30 PM received a (SMS) on his mobile bearing No.97400 12976 where by the complainant was informed that Rs.5,000/- was debited from the complainant’s account, and the complainant was shocked and surprised to note the same. The complainant on 15/3/2008 made a visit to Koramangala Branch belonging to the OP and enquired about the deduction as per the SMS dated 11/03/2008, that thereafter the representative of the Op had informed the complainant to file a “Claim Form’ (dispute form) and accordingly the complainant submitted the ‘Claim Form’, after signing it to the Branch of the Op office.

After the submission of the ‘Claim Form’ seeking for the fair and proper adjudication of the dispute/claim, the representative of the OP Branch informed the Complainant that it would be rectified within 10 working days, the same has not resolved till date. Till date, the Op has neither resolved the dispute as per the ‘Claim Form’ nor informed the complainant with regard to the status quo of the ‘Claim Form’ as on date. Further the complainant got in touch with one Sri. Anil, Sri. Ramesh and Mr. Shantanu Banerjee (employees of the Op) through land line No.41504742 and 41504741. But the above mentioned person kept informing him that as per the switch report (Corporation Bank) money came out from the machine which is denied by the complainant in toto. The complainant also sought for the video record of the ATM but the Op did not comply with his legitimate request. Having no other alternative sent a Legal Notice to the Op through his Counsel dated 7/8/2008. The OP has addressed on untenable and evasive reply to the same. Hence the complainant approached this forum.

Op appeared through its counsel, filed its version and also gave evidence by way of affidavit. Complainant gave his evidence by way of affidavit. Counsels of both parties submitted their written arguments and counsel of complainant submitted oral arguments also.

The main contention of the learned counsel for complainant that on 29/02/2008 when the complainant operated an ATM counter of Corporation Bank, the amount was declined, but the statement of Op showing the debit of amount even though the amount was not withdrawn and after rectification, they themselves have credited the said amount. But on 11/03/2008 again the said amount was debited in the account of the complainant and the said transaction was illegal as the amount was not at all taken by the complainant. As per the submission of learned counsel for OP, on 29/02/2008, the amount was withdrawn by the complainant but due to mechanical defect in the machine on the same day it was credited and during reconciliation of the bank account it was noticed by the Corporation Bank and put its demand and accordingly an amount of Rs.5,000/- was debited in the account of the complainant.

Now the point for consideration is whether an amount of Rs.5,000/- was withdrawn on 29/02/2008 or not. It is an oral submission of the complainant that the amount was declined by the ATM Machine, therefore he did not received the amount. Again the question arouses when the amount itself is not released from the machine and the credit of Rs.5,000/- took place in the account. The Op has produced the journal record of ATM machine of Corporation Bank in which it discloses that on 29/02/2008 an amount of Rs.5,000/- was withdrawn from the complainant. When the amount has been withdrawn from the complainant again the question arouses then how the amount of Rs.5,000/- has been credited to the account of the complainant on the same day. When we peruse the e-mail correspondences between Op and Corporation Bank in one of the E-mail it discloses that due to New Switch Migration ‘there were 176 Corporation Bank transactions which were auto reversed to the various customers account though they were approved and legitimate transactions as per their and Switch and Net work. From this e-mail correspondence, it discloses that it is not the one account of the complainant and there were other 176 transactions of Corporation Bank were auto reversed the customer account even though they were approved transactions. According to them, all these mistakes were rectified by debiting the amount including the account of the complainant. The complainant operated the ATM machine of Corporation Bank. Journal records of Corporation Bank discloses the withdrawal of the amount. The proper party to explain the transactions is the Corporation Bank. But the Corporation Bank is not a party in this complaint. After operating the ATM machine by the complainant, the demand was made by the Corporation Bank and the amount was deposited by the Op. Therefore, the Corporation Bank is a proper and necessary party in this complaint to explain how the transactions took place. Inspite of contentions taken by the OP in respect of transactions, the complainant has not impleaded the Corporation Bank as one of the party. The complainant’s main allegation is that he has not withdrawn the amount as the machine has not released the amount. If the amount is not released from the ATM machine, a message will be displayed the reasons for not released the amount. But the complainant has not disclosed the reasons which were displayed in the machine. The claim form for rejecting the ATM transaction was submitted by the complainant. When we peruse the said form there is a clear column in the said form in respect of ‘messages displayed’ in the machine. But the said column is left vacant by the complainant. The complainant is entirely depending on the oral evidence of his own but the Op is depending on the documentary evidence furnished by the Corporation Bank. Unless, the Corporation Bank explains the circumstances, we can not straight away believe the evidence of the complainant and held that the OP is at deficient in its service.

In view of the discussions made above, we are of the opinion that the complainant has failed to prove any deficiency in its service on the part of the Op. Accordingly, we pass the following order.

O R D E R

Complaint is dismissed. No order as to costs.

Since the complainants and the subject matter are same, these two complaints are taken together for disposal.

In O.P.753/02 the case of the complainants is as follows: First complainant is the wife of Late Raveendranathan and 2nd and 3rd complainants are the children of first complainant and the said Late Raveendranathan. On 14.12.01 Raveendranathan died due to an accidental fall from the terrace of his residential house. The accident occurred due to slip of feet at about 6.30 P.M. when he was checking the water level in the tank on the roof of the house. Immediately he was taken to nearby M/s.Maria Thressia Hospital at Kuzhikkattussery by family members and neighbours and at 8.10 p.m. he was died. Death certificate was issued from the hospital stating the cause of death as “Cardio Respiratory Arrest Secondary to Head Injury”. The deceased Raveendranathan was maintaining a premium saving bank account as A/c.No.825 with 2nd respondent. As per the terms of the said account, the said Raveendranathan is entitled for Personal Accident Insurance cover under first respondent’s Group Accident Insurance Policy for a sum of Rs.3,00,000/- for a period of 3 years from 5.2.99 to 15.2.02. After the death of said Raveendranathan 3rd complainant as the nominee of the bank account and the insurance policy intimated the death to the Ist and 2nd respondents. Ist respondent issued a claim form to 3rd complainant on 12.3.02 and she submitted the same on 23.3.02. But the first respondent refused to accept the same stating that the form is not accompanied by the police report and post mortem report. Since 3rd complainant was employed at Doha, she was unable to pursue the matter thereafter for some time. Hence later again vide lawyer notice dated 25.5.02 duly filled up claim form along with all available documents were submitted. Then the first respondent issued a reply stating that without postmortem report and FIR they are unable to honour the claim and repudiated the claim under the policy. The 2nd respondent is made as a proper and necessary party and no relief is sought against the 2nd respondent. Hence the complaint.

2. In O.P.512/03 the case of complainants is that the deceased Raveendranathan was the holder of Janatha Personal Accident Policy No.100104/47/97/E-47/13354 for a period of 10 years from 30.1.1998 to 29.1.2008 for an amount of Rs.1,00,000/- and the policy covers accidental death also. First complainant is the wife of Late Raveendranathan and 2nd and 3rd complainants are the children of first complainant and the said Late Raveendranathan. On 14.12.01 Raveendranathan died due to an accidental fall from the terrace of his house situated at Ashtamichira Desom Vadakkumbhagam Village. The accident occurred due to a slip of feet at about 6.30 p.m. when he was checking the water level in the tank on the roof of the residential house. Family members and neighbours immediately took him to nearby M/s. Maria Thressia Hospital at Kuzhikkattussery and at 8.10 P.M. he died due to injury sustained. Death certificate was issued from the hospital stating the cause of death as “Cardio Respiratory Arrest Secondary to Head Injury”. Since the death was due to an accidental fall, no postmortem was conducted. The doctors at hospital also suggested that postmortem is not necessary in such cases. It is also told that postmortem is required only in cases of death of suspicious circumstances or in case of suicide. Hence later funeral was conducted observing religious obsequious. After the death of said Raveendranathan 3rd complainant as the nominee under the bank account and the insurance policy intimated the death to the Ist respondent and submitted the claim form. Thereafter the correspondence to get the claim form processed was not fruitful. Hence at last on 27.5.02 vide lawyer notice, 3rd complainant demanded the settlement of the claim for which respondent issued a reply dated 13.6.02 stating that the claim is under investigation and they will proceed. As no action is forthcoming, a further reminder dated 30.4.03 was issued. They sent a letter dated 9.5.03, and intimated that they are repudiating the claim for want of production of post mortem certificate and police report. The denial of claim under the policy constitutes deficiency in service on the part of respondent.

3. The version filed by respondents-1 and 3 in O.P.753/02 and the respondent in O.P.512/03 are as follows: It is not evident that the accident occurred due to a slip of feet, when the deceased was checking the water level in the tank on the roof of the residential house. The insurance cover provided by the company is subject to the terms and conditions of insurance policy. The documents to be produced in case of accidental death are death certificate, post mortem report, FIR, name of the nominee, banker’s certificate and other relevant documents. In the absence of the said documents the company is not in a position to process the claim. The repudiation of the claim was with valid and proper reasons and in accordance with the terms and conditions of the policy. Here no post mortem was conducted and no crime has been registered in connection with these cases. Hence there is no deficiency in service on the part of these respondents. The complaints are not maintainable due to lack of territorial jurisdiction. The complainants may be directed to produce the documents as requested earlier and to comply the terms and conditions of the policy. Without which the reliefs sought in the complaints are not allowable. The reliefs and compensation claimed is without any basis and hence denied. The 3rd respondent in O.P.753/02 is not in any way connected with the said policy. Therefore the 3rd respondent is an unnecessary party. Hence dismiss.

4. The counter of 2nd respondent in O.P.753/02 is as follows: The averments in paragraph 1 and 2 of the complaint are to be proved by the complainants. The decision in respect of the settlement of claims rests solely with the insurance company, which is the first respondent. In view of the above, this respondent has no role to play in the settlement of claims. Further it is clear from the complaint that there is no claim made by the complainant against this respondent. Hence dismiss the complaint as against the second respondent.

5. The points for consideration in both cases are:

(1) Is there any deficiency in service?
(2) If so, reliefs and costs.

6. The evidence consists of Exts. P1 to P22, Ext. X-1, and Exts. R1 and R2.

7. Points: The case of complainant in both cases in brief narrates here: Complainants are wife and children of deceased Raveendranathan. Sri. Raveendranathan died due to an accidental fall from the terrace of his residential house on 14.12.2001. The accident occurred due to a slip of feet at about 6.30 p.m. when he was checking the water level in the tank on the roof of the house. Immediately he was taken to M/s. Maria Theresa Hospital at Kuzhikkattussery and at 8.10 P.M. he died due to the injury sustained. The deceased was the holder of Janata Personal Accident Policy No. 100104/47/97/E-47/13354 for a period of 10 years from 30.1.1998 to 29.1.2008 for an amount of Rs.1,00,000/- and the policy covers accidental death also. After the death the complainants applied for the accidental benefit but was not granted. So O.P.512/03 is filed to get the policy benefit.

8. In the counter company stated that the accident was not due to a slip of feet from the roof of the residential house. It is true that the deceased was the holder of Janata Personal Accident Policy. But the documents demanded by the Company were not produced. The documents like FIR, Post mortem certificate etc. are to be produced to process the claim. They also stated that no post mortem was conducted and no crime has been registered in connection with the alleged accidental death. So they repudiated the claim.

9. O.P.753/02 was filed to get policy benefit from the Ist and 3rd respondent Company as per the Personal Accident Insurance cover under first respondent’s group accident insurance policy for a sum of Rs.3,00,000/-. According to the complainants the deceased was maintaining a premium savings bank account as account No.825 with 2nd respondent. After the death the complainants approached the first respondent for the benefits of the policy. But the claim was dishonoured stating that without post mortem report and FIR they are unable to grant the claim. So O.P.753/02 is filed.

10. The averments in the counter of Ist and 3rd respondents are the same in O.P.512/03. So not repeating again. The 2nd respondent filed counter stating that the decision in respect of the settlement of the claim rests solely with the Insurance Company.

11. O.P.512/03 filed to get the benefit under the Janata Personal Accident Policy for an amount of Rs.1,00,000/-. O.P.753/02 filed to get the benefit under group accident insurance for an amount of Rs.3,00,000/-. In both the cases claim was denied due to lack of post mortem certificate and FIR. The definite case of the complainants is that the deceased was died due to fall from terrace. Ext. P4 is the copy of death certificate issued from Maria Theresa Hospital Kuzhikkattussery shows that the cause of death as cardio respiratory arrest secondary to head injury. It is also stated in the certificate that the patient came H/O fall from Terrace at about 6.30 p.m. with gasping and also stated that the patient was declared dead at 8.10 p.m. on 14.12.2001 itself. So as per the medical report the death was due to fall from terrace and died on the same day itself within two hours of the incident. Ext. X-1 case sheet explains the condition of the deceased at that time.

12. Both the claims were dishonoured due to lack of postmortem report and FIR. According to the insurance company both these documents are very essential for honouring the claim. But those documents were not produced before the company since no post mortem was conducted and no case was registered by the police. The complainants state that since the death was due to an accidental fall no post mortem was conducted. They also stated that the Doctors at the hospital also suggested that post mortem is not necessary in such cases. It is also stated that post mortem is required only in cases of death of suspicious circumstances or in a case of suicide. Regarding this aspect Ext. P20 and Ext. P21 were produced by the complainants. Ext. P21 is the copy of the debate done in Kerala Legislative Assembly. It contains the question regarding the conducting of post mortem in some circumstances. The Chief Minister replied that it is not necessary in undoubtful circumstances.

13. The more important thing noted is the medical records. There is nothing stated by the doctors about the need of postmortem. If the complainants disagreed to conduct post mortem it will definitely become a part of hospital records. There is no mention about it. The need of post mortem or the demand for post mortem from the hospital authorities is not stated in hospital records. So definitely there is no scope for any suspicion regarding the death. The company did not try to clear off their doubts by appointing their own investigators. They simply denied the claims for non-production of FIR and post mortem certificate. The need of those was not looked into. After accepting the premium the Insurance Company are taking every possible methods to dishonour claims. This is very bad practice and to be discouraged.

14. The wife of deceased was examined in O.P.735/02 as PW1 and that deposition is taken to this file and marked as Ext. P22. Joint trial was allowed with all these three cases and O.P.735/02 was settled by the respondent after due payment. She has established her own case during examination and nothing brought against. The Insurance Company cross-examined about the non-production of FIR and post mortem certificate. They not even put a case that they are suspicious about the death. If any suspicion they had to aver it in their counter. They had no such case. They demanded those certificates because it is their procedure to be followed in death cases. Here there is no need of post mortem certificate and the reasons already discussed above. The repudiation of both claims shows deficiency in service on the part of Insurance Company and the company is liable to pay compensation also.

15. In the result, both the complaints are allowed and the first and third respondents in O.P.753/02 are directed to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) to the complainants and Rs.5000/- (Rupees five thousand only) as compensation and costs Rs.1000/- (Rupees one thousand only). The respondent in O.P.512/03 is directed to pay Rs.1,00,000/- (Rupees one lakh only) the sum assured with Rs.5000/- (Rupees five thousand only) as compensation and costs Rs.1000/- (Rupees one thousand only) to the complainants. Comply the order within two months.

Ajay N.

S/o G.S.Nagaraj,

Aged about 28 yrs,

No.229, 4th Main,

MSR Nagar,

BANGALORE.

…. Complainant

V/s



01. ING Vysya Bank Ltd., (Housing Loan Section)

Regd. & Corproate Office, ING Vysya Bank Ltd.,

22, M.G.Road, Bangalore – 560 001.

By its General Manager (Housing Loan)



02. ING Vysya Bank Ltd., (Housing Loan Section)

No.1091, OTC Road, SRNGS Diamond Jubilee

Complex, Opp. Sharada Talkies, Nagarthpet,

Bangalore – 560 002. Reptd. By its B.M.

…. Opposite Parties



-: ORDER:-



This complaint is filed claiming Rs.1,25,000/- towards compensation, Rs.168-54 paise towards cheque return charges, Rs.50,754-00 towards pre-closure charges and broken period charges, Rs.2,500/- towards notice charges, in all Rs.1,78,422-54 paise from the Opposite Parties on the following grounds:-



2. The complainant had availed housing loan of Rs.17,50,000/- from the Opposite Party Bank on 28/03/2007 agreeing to re-pay the same with interest at 10% Per Annum in equated monthly installments of Rs.16,888/- . He had issued 36 post-dated cheques of CITI BANK, M.G.Road, Bangalore towards repayment of the EMIs. The rate of interest on the housing loan was hiked from 10% to 12.5% with effect from 09-05-2007. Therefore, he was asked to give fresh cheques with EMI of Rs.19,047/-. Accordingly he issued 10 post-dated cheques for Rs.19,047/-. The Bank had promised to return the earlier cheques issued towards EMI at the rate of Rs.16,888/-. But the Bank returned only 10 cheques and the remaining cheques were not returned. He had issued cheque No.9082228 dated 08/09/2008 for Rs.19,047/- towards EMI for the month of September 2008.


The said cheque on presentation was honored. In spite of it, the Bank presented cheque No.908194 for a sum of Rs.16,888/- issued earlier, but the said cheque was dishonored on 11/09/2008. The City Bank charged Rs.150/- towards cheque return charges, Rs.18/- towards service tax and 54 paise towards education cess and collected the same from his account. On enquiry, the authorized signatory of the Bank gave reply dated 11/09/2008 stating that the double presentation of the cheque happened due to technical error and expressed regret for the error and inconvenience caused to the complainant. The dishonour of a cheque has serious consequences on the future of the complainant.


The complainant apprehends that the Opposite Party Bank may misuse the remaining cheques and cause further damage to his reputation. In these circumstances, he thought of closing his loan account by paying the entire balance. After discussion, the Bank agreed for the same and asked to pay a total sum of Rs.17,91,000/-. At that time, the complainant was not informed that the Bank has charged any amount towards pre-closure charges and broken period charges. He was under the impression that the sum of Rs.17,91,000/- demanded was only towards the principal and interest due. He paid the above amount on 21/11/2008 and out of it, the Bank refunded Rs.1,000/- at the time of returning the papers stating that the said amount was collected in excess. Subsequently on verification of the accounts, he found that the Bank has charged Rs.38,704/- towards pre-closure charges at 2% and Rs.12,050/- towards broken period charges.


The Bank has no authority to charge any amount towards pre-closure charges or broken period charges as the account was closed on account of deficient service on the part of the Bank. The Opposite Party Bank has not informed that he is liable to pay pre-closure charges at 2% and Rs.12,050/- towards broken period charges. Therefore, the Opposite Party is liable to refund those amounts. He issued legal notice dated 22/01/2009 calling upon the Opposite Party to pay Rs.1,25,000/- towards compensation, Rs.168-54 paise towards cheque return charges and refund Rs.50,754/- collected towards pre-closure charges and broken period charges. In the reply dated 16/03/2009 Opposite Party No.2 denied the liability. Hence, the complaint.



3. In the version, the contention of Opposite Parties is as under:-

After availing the home loan, the complainant executed necessary loan documents. He had opted for floating rate of interest. He had issued post dated cheques towards EMI. As there was increase in the rate of interest, the complainant was requested to issue fresh 10 post dated cheques towards EMI pegging to the increased rate of interest and accordingly the complainant issued 10 fresh post dated cheques. In September 2008, the Bank presented a cheque from the old lot so also the cheque from new lot. The cheque from the new lot was honored and from the old lot was dishonored. On coming to know about the mistake, the Bank gave letter dated 11/09/2009 regretting the mistake in conceding the technical error that crept up inadvertently and returned the old cheques which was replaced with a new set of cheques.


Subsequently he requested for pre-closure of the loan account and after referring to the conditions of the pre-closure, the complainant was informed about the amount Payable. Accordingly the complainant made payment and got the home loan account closed. On reconciliation of the loan account, it was disclosed that Rs.10,085/- was received in excess and the said amount was returned to the complainant. No excess amount has been collected from the complainant and as such there is no deficiency in service. On these grounds, the Opposite Parties have prayed for dismissal of the complaint.

4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. We have heard the arguments on both side.



5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Parties?



2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No(1) : In the Affirmative so for

as the presentation of

two cheques is concerned

Point No(2) : As per final order,

for the following:-



-: REASONS:-

7. The grievance of the complainant is twofold. One is with regard to presentation of two cheques towards EMI for the same month and the other is with regard to the collection of pre-closure charges and broken period charges. Admittedly on his own request, the Opposite Party Bank pre-closed the loan account of the complainant. The complainant made payment towards the closure of the account on 21/11/2008. Before that date, the Opposite Party Bank had issued NOC dated 14/01/2008 disclosing the outstanding principal amount closure charges at the rate of 2% on the outstanding principal, Service Tax and broken period interest.


About one week thereafter the complainant made payment towards pre-closure of the account. On the face of the letter dated 14/01/2008 it cannot be believed that the complainant was not aware of the pre-closure charges and broken period interest collected by the Bank. The Opposite Parties have also produced the copy of the letter dated 20/03/2007 sanctioning the loan to the complainant and the general terms and conditions applicable to the transaction.


Clause-16 of the terms and conditions deals with charges and under the heading total Foreclosure it is clearly provided that 2% on the outstanding principal will be charged on the Foreclosure of the account. Therefore, charging 2% as pre-closure charges on the outstanding principal is as per the terms and conditions of the agreement and as such the complainant cannot be heard to say that the Bank is not entitled to collect pre-closure charges and broken period interest. Therefore, the complainant is not entitled to seek refund of the amount towards pre-closure charges and broken period interest.



8. So for as the presentation of two cheques for payment of the EMI for the same month is concerned, the same is also admitted by the Opposite Parties. After the interest rate was enhanced, the complainant issued fresh cheques in place of old cheques and on such replacement, the Opposite Party returned some of the cheques issued earlier and still it was in possession of some of such cheques. Towards payment of EMI for the month of September 2008, the Bank presented the cheque issued subsequently as well as the cheque issued earlier.


The cheque issued subsequently was honored and the earlier cheque was dishonored. The fact that the complainant had to pay cheque returned charges is also admitted. The Opposite Party wants to justify its action in presenting both the cheques stating that the same was due to technical error. We are unable to make out as to what is the technical error that prompted the Bank to present both the cheques, even though it was well aware that it was entitled to present the cheque issued subsequently. Therefore, this act of the Opposite Party in presenting both the cheques for encashment though it was entitled to present only one cheque clearly amounts to deficiency in service.

On account of dishonor of the cheque, the complainant appears to have suffered some amount of inconvenience and mental agony, therefore he needs to be compensated. In our opinion it is just and sufficient if the complainant is awarded compensation of Rs.10,000/- including the cheque bouncing charges paid by him to his banker. The sum of Rs.1,25,000/- claimed as compensation is on the higher side. Therefore we hold that the complainant is entitled to compensation of Rs.10,000/- from the Opposite Parties. In the result, we pass the following:-

-:ORDER:-



1. The complaint is ALLOWED IN PART.
2. The Opposite Parties are directed to pay compensation of Rs.10,000/- to the complainant.
3. Compliance of this order shall be made within 08 weeks from the date of communication failing which the amount shall carry interest at 9% Per Annum from the date of order till the date of payment.
4. Send a copy of this order to both parties free of costs, immediately.
5. Pronounced in the Open Forum on this the 21st Day of JULY 2009.

Mr.Mohammad Ashraf,

S/o Mr.Haji M.Hameed

Aged 33 years,

Ashrf Manzil, Kudroli,

Mangalore. …….. COMPLAINANT



VERSUS



1. ING VYSYA BANK,

Mangalore Branch,

Navarathna Complex,

K.S.Rao Road,

Mangalore,

Represented by its Manager.



2. State Bank of India,

Bagpath Branch,

Bagpath, Meerut District,

U.P. State. ……. OPPOSITE PARTIES




1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

It is submitted that on 1.1.2008 the Complainant’s father has sent four cheques for Rs.1,00,000/- each by speed post addressed to Mr. Mohanlal & Sons, Azadpura, New Delhi as per postal article No. SPA EK 3771801961 dated 1.1.2008. Out of the said four cheques two cheques bearing 381089 and 381090 are from the account of Mohammed Asif i.e. brother of the Complainant which pertains to the Account No.153011010116 with the Opposite Party No.1. The other two cheques bearing No.346991 and 346992 are from account of the Complainant bearing account No.153011010105 with Opposite Party No.1. The said cheques were payable to B.Chandiram Talreja. It is submitted that, Mr.Mohanlal informed the father of the Complainant that he has not received the postal article sent to him by speed post. Later it is learnt from the bank that all the four cheques were encashed.


On enquiry it is learnt that some miscreants have taken the cheques by forging the same and encashed the entire amount. It is submitted that the Opposite Party informed the Complainant that the cheques were encashed by one Ashok Kumar by presenting them for collection through Opposite Party No.2. The Complainant’s father informed about this Forgery to Opposite Party No.1, inturn the Opposite Party No.1 promised to look into the matter and hence the Complainant’s father did not lodge complaint to the police. Thereafter, the Opposite Party No.1 recovered Rs.2,00,000/- and credited to the account of Mohammed Asif who is brother of the Complainant and the remaining Rs.2,00,000/- not recovered till this date.

It is submitted that, Opposite Party No.1 and 2 have acted in most negligent manner. The cheque is encashed by changing the name of payee and forging the signature of account holder. The cheques were stolen in the transit, altered and deposited in Opposite Party No.2.


The Opposite Parties ought to have verified the genuineness of person depositing such huge amounts and encashing the amount by forging the signature of the account holder. That the banks have not taken minimum care required to be taken at the time of honouring huge amounts. Hence, it is contended that the service rendered by the Opposite Parties are amounts to deficiency and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.2,00,000/- with interest at 12% per annum from 12.2.2008 till the date of payment and Rs.50,000/- towards compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version. The Opposite Party No.1 submits that they are not aware whether the Complainant’s father had sent four cheques to Mr.Mohanlal & Sons. It is submitted that the Opposite Party No.1 not agreed to indemnify the Complainant or his father or brother for the loss of cheques in transit or in case of misuse of the same. The Complainant or his father not lodged any police complaint nor placed any stop payment or not given any instruction with regard to the missing/loss of cheques.


It is submitted that, when the complaint was lodged immediately necessary actions were taken and Rs.2,00,000/- were recovered from the account of one Mr.Ashok Kumar who had misused the said cheques. Opposite Party No.1 submits that while honouring any cheques they exercise every caution by verifying the specimen signatures and the genuineness of the cheques and the Opposite Party No.1 cross verified the specimen signature before honouring the same. Opposite Party No.1 submits that they have lodged a complaint with State Bank of India to enquire into the matter and contended that there is no negligence what so ever and prayed for dismissal of the complaint.

Opposite Party No.2 appeared through his counsel despite of that version not filed.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?



(i) If so, whether the Complainant is entitled for the reliefs claimed?






(ii) What order?



4. In support of the complaint Sri Mohammad Ashraf (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on them. Ex C1 to C9 were marked for the Complainant as listed in the annexure. One Sri.K.Manohar Kini, Branch Manager of Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Opposite Party No.2 appeared through his counsel despite of that led no evidence. Complainant has filed written notes of arguments.

We have heard arguments, perused the pleadings, documents and evidence placed on record. We answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. POINTS NO. (i) to (iii):

In the present case, it appears on record that the father of the Complainant has filed complaint before this Forum in Complaint No.142/2008 and the said complaint was closed by this Forum on the ground that the complaint has to be filed by a proper person. Accordingly the present complaint has filed and placed before us.

It is undisputed fact that, four cheques bearing No.381089 and 381090 were issued from the Account No. 153011010116 of Mohammed Asif i.e. the brother of the Complainant and other cheques bearing No.346991 and 346992 are from the account No.153011010105 of the Complainant. The cheques were drawn in favour of Opposite Party No.1 payable to B.Chandiram Talreja. It is also not in dispute that the four cheques were issued for Rs.1,00,000/- each.

Now the grievances before the Fora is that the father of the Complainant sent four cheques pertaining to the Complainant and his brother by speed post to Mr.Mohanlal & Sons Azadpura, New Delhi as per postal article No.SPA EK 3771801961 N dated 1.1.2008 (as per Ex.C4). Mr.Mohanlal informed the father of the Complainant that the postal article sent by speed post was not reached by him and thereafter the Complainant persuaded the matter from the Opposite Party No.1 and it is learnt that all the four cheques were encashed by the miscreants by forging the cheque.


And the Opposite Party No.1 promised to look in to the matter and hence the Complainant did not lodged the complaint to the police and the Opposite Party No.1 recovered Rs.2,00,000/- and credited to the account of the brother of the Complainant but remaining 2 lakhs pertaining to the Complainant cheques were not recovered and it is contended that the Opposite Party No.1 and 2 acted in most negligent manner without verifying signatures found in the cheques and failed to take minimum care required to be taken at the time honouring the amounts.

On the contrary, the Opposite Party contended that, while honouring the cheque they have exercised caution by verifying the specimen signature and genuineness of the cheque or negotiable instrument and contended that there is no negligence on the part of the Opposite Parties if at all there is any negligence that is on the part of the Complainant.

In the present case, it could be seen from the cheque itself, one can easily make out that the name of the payee was altered, the signature found near the alteration does not tally with the signature found below. And we further observed that the amount involved in the cheque is a big amount i.e. Rs.1,00,000/-. When such being the case, it is the bounden duty of the Opposite Party bank to verify the specimen signature and also the alteration found in the cheque leaf whether it tallies with the signature of the account holder or not. In this case, the Vysya Bank is miserably failed to exercise their right before discharging the amount under the cheques. If at all the minimum care required to be taken then definitely the amount should not have been misused by the miscreants in a case like this nature. It shows a gross negligence on the part of the officials concerned of the Vysya Bank.


The Complainant lodged the complaint before the Opposite Party bank and Opposite Party bank recovered Rs.2,00,000/- and credited to the account of the Mohammed Asif who is the brother of the Complainant. The another two cheques pertaining to the Complainant was not recovered. In the present case, to report the police or lodging the complaint to the police is not such serious lapse on the part of the Complainant. Because the Opposite Party No.1 admitted that the Complainant’s father gave a complaint and recovered 2 lakhs under the two cheques as stated above.

In view of the above discussions, we are of the considered opinion that the name of the payee was altered the signature found near the alteration does not tally with the signature found below on the cheque. If the Opposite Party Bank if at all taken minimum care then definitely the amount should not have been misused by the miscreants. Because of the gross negligence on the part of the Opposite Party No.1 officials the amount has been misused by the miscreants. Under such circumstances, we hereby direct the Opposite Party No.1 i.e. Vysya Bank to pay a sum of Rs.2,00,000/- to the Complainant along with the interest at 10% per annum form the date of cheque till the date of payment and Further Rs.1,000/- awarded towards the cost of the litigation expenses.

As far as Opposite Party No.2 is concerned there is no deficiency proved against them hence complaint against Opposite Party No.2 is hereby dismissed.

However, the interest as well as compensation both cannot be allowed the interest is always inclusive of compensation. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. The Opposite Party No.1 is hereby directed to pay a sum of Rs.2,00,000/- to the Complainant along with the interest at 10% per annum form the date of cheque till the date of payment and Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Complaint against Opposite Party No.2 is hereby dismissed.

PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President 2. Smt. Sulochana V. Rao, Member

3. Sri. K. Ramachandra, Member

BETWEEN:

Mr.Kiran,

Aged years,

R/o. Kodial Mansions 403,

Kodialguttu West,

Bhagavathi Nagar,

Kodialbail,

Mangalore. …….. COMPLAINANT

(Advocate for Complainant: Smt.Asha Nayak)

VERSUS

1.The Manager,

M/s. ING Vysya Bank,

K.S.Rao Road Branch,

Mangalore.

2. the Chairman,

M/s ING Vysya Bank,

K.S. Rao Road Branch,

Mangalore.

3. The Manager,

ICICI Bank,

P.M.Rao Road Branch,

Mangalore. ……. OPPOSITE PARTIES

(Advocate for Opposite Party No.1 and 2: Sri Manoraj)

(Advocate for Opposite Party No.3: Sri P.Ashok Ariga)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain relief’s.

The Complainant is the Account holder of the first Opposite Party, 2nd Opposite Party is Chairman of the 1st Opposite Party and the 3rd Opposite Party is the ICICI Bank, Mangalore Branch.

It is stated that, on 20.2.2009 the Complainant tried to with draw Rs.4,000/- from the ATM of the 3rd Opposite Party situated at Kottara, Mangalore vide transaction bearing No.671171, that in response to the said transaction the Complainant had received only the balance slip and his card back but not received the cash/denominations from the machine.

Immediately, the Complainant brought to this notice of the Opposite Party No.1 and 2 and on checking the table of transactions of his account Complainant found that he had been levied a fine of Rs.1,513.80 for wrong claim. Thereafter, the Complainant issued a legal notice to the Opposite Parties to verify the balance of accounts and re-credit Rs.4,000/- to his account and the Opposite Parties have received the notices but failed to comply the same amount to deficiency in service and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to return of Rs.4,000/- and also pay Rs.28,000/- towards the compensation and cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 and 2 appeared through their counsel filed version contended that the Complainant had lodged a claim with these Opposite Parties and on his Complaint necessary enquiry/investigation was made with the Opposite Party No.3 and it was found that the Complainant made a false claim. It is stated that the transaction made by the Complainant on 20.2.2009 was successful and he had withdrawn Rs.4,000/- from their ATM, no excess cash was found on the said date or later on routine verifications. It is contended that since the Complainant had used ATM of Opposite Party No.3, Opposite Party No.1 and 2 have no control or access to their said ATM to verify whether there is any fault in the said ATM or not. Since the transaction between the banks takes online, moment a customer has a successful transaction in ATM for withdrawal the amount will be debited to his account immediately online and contended that since he had made false Complaint of Rs.1,513.80/- debited to his S.B. Account as per the rules prevailing for false claims by way of fine and contended that there is no deficiency in service what so ever.

Opposite Party No.3 filed separate version and submitted that Complaint given by card holder to his bank i.e. Opposite Party No.1 and 2 must be forwarded to VISA i.e. the main platform. The VISA will collect the particulars from the ATM Bank and it will be returned by the VISA to the card holders bank. And then if there is any shortage in crediting the amount it will be reversed. But in this case Opposite Party No.3 not received any such Complaint from VISA which is the main platform regarding transaction of the complaint on 20.2.2009. It is contended that there is no deficiency and prayed for dismissal of the Complaint.

3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(i) What order?

4. In support of the complaint Sri.Kiran (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on them. Ex C1 to C3 were marked for the Complainant as listed in the annexure. One Sri.Vivekanand B.Hegde, Branch Manager of Opposite Party No.1 (RW-1) and one Sri.Prasad Muloor Gopalakrishna, Authorized signatory & Collection Manager of Opposite Party No.3 (RW-2) filed counter affidavit and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure. Both parties are filed written notes of arguments.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:

Point No.(i): Affirmative.

Point No.(ii) & (iii): As per the final order.

REASONS

5. POINTS NO.(i) to (iii):

In the present case, it is admitted that the Complainant is a account holder of the 1st and 2nd Opposite Party i.e. ING Vysya Bank vide holding Account No.153010025745 and issued a debit Card bearing No.5048340000188565009.

Now the dispute before the FORA is that on 20.2.2009 the Complainant had tried to with draw Rs.4,000/- from the ATM of the 3rd Opposite Party using the ATM card of 1st and 2nd Opposite Party, though the Complainant had received a slip of successful transaction the Complainant had not received the amount of Rs.4,000/- denominations from the ATM machine pertaining to the 3rd Opposite Party. Immediately the Complainant approached the Opposite Party No.1 and 2 and lodged a complaint, initially the Opposite Parties credited the amount of Rs.4,000/- to his account and later Rs.4,000/- was debited along with penalty of Rs.1,513.80/- stating that the claim of the Complainant is false. Hence he came up with this complaint.

Per contra, Opposite Party No.1 and 2 appeared before the FORA and contented that the transaction made by the Complainant on 20.2.2009 was successful. Since the transaction between the branch takes online, moment a customer has a successful transaction in ATM for withdrawal the amount will be debited to his account immediately. And contended that the false claim has been made by the Complainant and charged Rs.1,513.80 as penalty and contended that the above said penalty was debited as per the rules prevailing for false claims by way of fine.

The Opposite Party No.3 filed separate version and contended that ICICI Bank is a formal party and shifted the onus of proving the above transaction on VISA and contended that all the complaint must forwarded to VISA i.e. the main platform and they will collect the particulars from the ATM Bank and Opposite Party No.3 not received such complaint from VISA and contended that there is no deficiency.

On careful scrutiny of the pleadings as well as oral and documentary evidences placed before us, the Opposite Party No.1 and 2 being a banker forwarded the Complaint of the Complainant to the 3rd Opposite Party and produced Ex.R1 the True Copy of Claim Form for rejecting the ATM transaction, Ex R2 i.e. ATM transaction slip and Ex.R3 i.e. EJ Proof (online transaction proof furnished by ICICI Bank). On receipt of the above documents the Opposite Party No.1 and 2 straight away treated the claim of the Complainant is false and imposed penalty of Rs.1,513.80/- appears to be very vague.

However, it is significant to note that Opposite Party No.3 admitted that the Complainant tried to with draw the money from their ATM i.e. ATM of ICICI Bank. And further in their version as well as in their evidence they specifically stated that Opposite Party No.1 and 2 must forward the complaint to VISA i.e. the main platform and VISA will collect the particulars from the ATM bank i.e. Opposite Party No.3 and it will be returned by the VISA to the Card Holders Bank. Further it is stated that 3rd Opposite Party not received such complaint from VISA. But it is evident that, Opposite Party No.1 and 2 lodged a complaint to the ATM Bank i.e. Opposite Party No.3. Opposite Party No.3 being a ATM Bank having all the particulars, they could have easily verified the authenticity of the Complainant’s claim. It is settled position that the VISA is a service provider and the ATM Bank i.e. ICICI provides the money/currency to the ATM machine by maintaining all printed records as well as log books. The Opposite Party No.3 being a ATM Bank not produced any cash log book or balance of accounts (closing/opening balance). Instead of producing the above documents the Opposite Party No.3 provided EJ proof (Online Transaction Proof). The online transaction slip discloses that the Complainant started the transaction at 8-48 and Pin entered, amount of Rs.4,000/- entered, cash presented and the amount under savings Account taken through online. But it is the definite case of the Complainant that, he had received the transaction slip from the ATM machine, but the cash i.e. denominations was not received from the machine. When that being the case, it is the bounden duty of the Opposite Parties i.e. Opposite Party No.1 and 2 to get the ATM cash log book maintained during the course of the business hours by the concerned ATM Bank i.e. ICICI Bank, Kottara Branch and also obtain the particulars from the Opposite Party No.3 with regard to the opening and closing balance of the ATM money deposited by the ICICI Bank to the ATM machine through the authorized persons of the VISA Company. If at all the Opposite Party would obtain the above particulars then definitely it would have been disclosed whether there is a short fall or excess of the money.

We find that, in the given case, the Opposite Party No.3 being a ATM service provider Bank not produced authenticated and important documents which is available in their custody in other words we can say the documents maintained by the ATM Bank while filling/refilling the currency/money to the ATM machine. The Opposite Party No.3 instead of producing all the necessary particulars to the Opposite Party No.1 and 2 simply issued a online proof transaction and turn round and said VISA is the main platform will collect particulars from the ATM Bank i.e. Opposite Party No.3 since Opposite Party No.3 not received such complaint from VISA they are not liable, which is not acceptable. Further, the Opposite Party No.1 and 2 being a banker knowing the procedure involved during the process of filling/refilling of the currency to Automated Teller Machine and are aware of the documents which the bank possess ought to have demanded those particulars from the Opposite Party No.3. But in the given case, Opposite Party No.1 and 2 without obtaining the particulars just based on online transaction proof furnished by the ICICI Bank treated claim of the Complainant as false claim, apart from that imposed penalty of Rs.1,513.80/- appears to be one sided. The Complainant being a layman not aware what those documents available in the ATM Bank but the Opposite Party No.1 and 2 are very much aware of the documents/particulars maintained by the ATM Bank should have called for the particulars from the ICICI Bank. But in this case the Opposite Party No.1 and 2 without seeking the particulars from the Opposite Party No.3 just basing on the online proof transaction rejected the claim of the Complainant amounts to deficiency/ unfair trade practice.

In view of the above discussions, we are of the considered opinion that Opposite Party No.1 and 2 being a banker and Opposite Party No.3 being a ATM Service provider having mutual understanding between the banks, Opposite Party No.1 and 2 without requesting necessary/appropriate documents from the ATM Service provider rejected the claim of the Complainant which amounts to deficiency. Therefore, we hereby direct the Opposite Party No.1 and 2 being a banker to refund the amount of Rs.4,000/- debited from the Complainant account and also refund the penalty of Rs.1,513.80 collected from the Complainant. Opposite Party No.1 and 2 are at liberty to recover Rs.4,000/- from Opposite Party No.3 i.e. the ATM Service provider. Since there is no contractual relationship between the Complainant and the Opposite Party No.3 the complaint against Opposite Party No.3 is not maintainable. Apart from the above Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:

ORDER

The complaint is allowed. The Opposite Party No.1 and 2 are hereby directed to pay/deposit a sum of Rs.4,000/- (Rupees Four thousand only) and Rs.1,513.80/- (Rupees One thousand five hundred thirteen rupees eighty paisa only) to the account of the Complainant and Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

On failure to pay the aforementioned amount within the stipulated period as mentioned above the Opposite Party No.1 and 2 shall pay interest at 10% per annum on the above said amount from the date of failure till the date of payment. The Complaint against Opposite Party No.3 not maintainable.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of November 2009.

hi
i have availed Home loan from ING Vysya bank, my Home loan was approved for 45 lakhs and ING dispersed first installment of 23 Lakhs to the builder, after that builder never completed the project and ING never released any further amount,but ING started collecting pre EMI of 23000.00 every month for the 18 months, after that it was to my surprise ING started collecting 67846.00 every month, when i inquired with them, started saying its EMI amount, I was surprised to see 67846.00 EMI for 23 lakhs, later they started saying the EMI is for 45 lakhs. When i questioned them how could they charge EMI for 45 lakhs when they actually paid 23 lakhs. they avoided this questions. And last 4 months i am back of these guys to close the account but they never respond to my emails or phone calls.
I would request some one take action on these guys
thanks
shashiraj