Jarnail Singh aged 46 years son of Shiv Singh resident of village Bassi Maruf P.O. Baghpur District Hoshiarpur.



Complainant


vs.



1.

State Bank of India, Administrative Block, Sector 17, Chandigarh, Punjab through its General Manager.
2.

State Bank of India, Branch Office Mandi Area, Hoshiarpur through its Manager.


Opposite parties


1.

The complainant namely Jarnail Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant opened A/c No.10138566408 on 28.5.2005 with OP No.2.
2.

It is the case of the complainant that on 29.9.2008, he went to the military canteen for purchasing the household articles. The complainant parked his scooter in front of the canteen and kept his hand bag in the dickey of the scooter containing ATM,FDR and pass book of post office alongwith other documents. When the complainant returned, he found his bag missing. The complainant approached OP No.2 to stop the payment and lock the ATM. That OP No.2 assured the complainant that the payment will be stopped and the ATM will also be locked. It is further the case of the complainant that he lodged DDR no. 51 dated 30.9.2008 with the police. The complainant also sent an application alongwith copy of DDR to OP No.2. The complainant also contacted the ATM department through phone to stop the payment. However,OP No.2 also assured the complainant that they will inform the ATM department. The complainant also paid Rs.150/- on 29.9.2008 and applied for new ATM with OP No.2.
3.

It is the allegation of the complainant that he went to OP No.2 and it was to his surprise that only the amount of Rs.1487/- was lying in his account. It is further the allegation of the complainant that due to negligency and deficiency on the part of the OP No.2, his ATM had been used by some stranger and the amount of Rs.17000/- had been withdrawn.
4.

It is further the allegation of the complainant that he received new ATM, and thereafter, he made a request to the OP-bank to provide secret code/ pin number but of no consequences and on the contrary, the bank directed him to deposit Rs.17000/- in his account , It is further the allegation of the complainant that he received letter dated 2.2.2009 from OP No.2 with the direction to deposit the amount of Rs.18400/-. The said demand is stated to be illegal, hence this complaint.
5.

OPs filed the joint reply. Preliminary objections vis a vis maintainability and non joinder of necessary party as Balbir Kaur, wife of the complainant is joint account holder were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the complainant alongwith his wife are the joint account holder of the bank. It is replied that secret pin code is directly sent to the party concerned and the ATM cannot be operated without using pin code. That in case of any problem or loss of ATM card, the complaint is lodged on toll free number , which is scribed on the ATM card. The complainant should have immediately lodged the claim on the aforesaid number by disclosing his secret code. It is further replied that as per information received, the complaint was lodged by the complainant at the call centre on 23.10.2008. The operation of the ATM card is controlled at Belapur, New Mumbai , where a server has been installed. The complainant only made a request to issue duplicate ATM on 29.9.2008 and never asked the bank to lodge any complaint regarding the loss of ATM card.


It is further replied that the possibility cannot be ruled out that the wife of the complainant or some family member /friend of the complainant might have used the ATM card , who had the knowledge of secret code. . No one else could use the ATM card except by a person knowing the secret code. The complainant made a request to issue duplicate ATM on 29.9.2008 and copy of DDR had not been attached as the same is dated 30.9.2008. However, it is admitted that an amount of Rs. 150/- was deposited on 29.9.2008 by debiting the amount to the saving fund account of the complainant and not on 29.10.2008. It is further replied that when a duplicate ATM card is issued, or applied , the original ATM is delinked from the account but if any transaction is made from the card , then the amount is debited to the suspense account of the branch to which the card lost/destroyed is allocated. The transaction from the card is not possible without the secret pin code. The transaction by ATM card takes place, V-sat system. When the transaction is made by ATM , firstly it hits V-sat installed at Belapur, and then, to the branch account and if the account does not match , it is debited to the suspense account of the branch with the remarks 'cash disbursed but account not debited'
6.

It is further replied that in the present case, an amount of Rs.17000/- was withdrawn on 29.9.2008 through ATM from State Bank of Patiala, Branch Piplanwala. Similarly, a sum of Rs.18400/- in total was withdrawn through ATM card on 2.10.2008 from SBI, Branch Chabewal and in these withdrawals , the account of the complainant was not debited and on the contrary, the suspense account of the branch was debited. . That at the time of reconciliation of the suspense entries, the account of the complainant was debited and a sum of Rs.17000/- was recovered from the account of the complainant, which had been withdrawn from the suspense account of the branch. However, the remaining amount of Rs.18400/- could not be recovered as there was no balance in the account of the complainant, as such, the demand of Rs.18400/- alongwith interest was made from him. It is further replied that a camera had been installed in the ATM room at SBI, Chabewal and the photo of the person operating on 2.10.2008 was handed over to the police for necessary enquiry. Since, the complainant has failed to pay the amount of Rs.18400/-, therefore, the new ATM card cannot be issued unless the previous overdue amount alongwith interest is not paid by him.
7.

In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, copy of pass book Mark C-2, identity card Mark C-3, copy of application for ATM Mark C-4, DDR Mark C-5, application dated 29.10.2008 Mark C-6, copy of ATM card Mark C-7, notice Mark C-8, letter dated 22.12.2008 Mark C-9 and affidavit of Balbir Kaur Ex. C-10 and closed the evidence.
8.

In rebuttal, the opposite parties tendered in evidence affidavit of D.K.Sharma Ex.OP-1, debit voucher dated 3.10.2008 Mark OP-2, statement of account Ex.OP-3, suspense account statement Ex.OP-4, application form for ATM Ex.OP-5 and letter dated 22.12.2008 Ex.OP-6 and closed the evidence.
9.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
10.

The case of the complainant is that he opened A/c No.10138566408 on 28.5.2005 with SBI-OP No.2. That on 29.9.2008, the ATM card of the complainant was misplaced. It is the allegation of the complainant that he approached OP No.2 to stop the payment and lock the ATM, who in turn assured him that the payment will be stopped and the ATM will also be locked. The complainant also lodged DDR no. 51 dated 30.9.2008 with the police and its copy was sent alongwith application to the Bank-OP No.2. The complainant also contacted the ATM department through phone to stop the payment. The bank also assured the complainant that they will also sent the information to the ATM department. The complainant also paid Rs.150/- to OP No.2.on 29.9.2008 and applied for new ATM .
11.

It is the grouse of the complainant that it was to his surprise that only the amount of Rs.1487/- was lying in his account. It is further the allegation of the complainant that due to negligency and deficiency on the part of the OP No.2, his ATM had been used by some stranger and the amount of Rs.17000/- had been withdrawn.
12.

It is also the grouse of the complainant that although he received new ATM but the bank has not provided secret code .
13.

The OPs have admitted that the complainant alongwith his wife are the joint account holder of the bank. The Bank has raised the defence that secret pin code is directly sent to the party concerned and the ATM cannot be operated without using pin code. The complainant should have immediately lodged the claim and as per information received, the complaint was lodged on 23.10.2008. The complainant only made a request to issue duplicate ATM on 29.9.2008 and never asked the bank to lodge any complaint regarding the loss of ATM card. The bank has also raised the plea that when a duplicate ATM card is issued, or applied , the original ATM is delinked from the account but if any transaction is made from the card , then the amount is debited to the suspense account of the branch to which the card lost/destroyed is allocated. The transaction from the card is not possible without the secret pin code.


The bank has also raised the plea that an amount of Rs.17000/- was withdrawn on 29.9.2008 through ATM from State Bank of Patiala, Branch Piplanwala. Likewise, a sum of Rs.18400/- was withdrawn through ATM card on 2.10.2008 from SBI, Branch Chabewal and in these withdrawals , the account of the complainant was not debited and on the contrary, the suspense account of the branch was debited. . That at the time of reconciliation of the suspense entries, the account of the complainant was debited and a sum of Rs.17000/- was recovered from the account of the complainant, which had been withdrawn from the suspense account of the branch. However, the remaining amount of Rs.18400/- could not be recovered . Since, the complainant has failed to pay the amount of Rs.18400/-, therefore, the new ATM card cannot be issued unless the previous overdue amount alongwith interest is not paid by him.
14.

Now the only point which calls decision from this Court is whether the transaction from the ATM Card is not possible without the secret pin code ? The answer to this is in the affirmative.
15.

This court can take the judicial notice that the ATM machine cannot be operated without using pin code. The case of the complainant is that on 29.9.2008, his ATM card was misplaced. The complainant approached the Bank with the request to stop the payment and lock the ATM. The complainant also lodged DDR and its copy alongwith application was forwarded to the bank. On the contrary, the bank has raised the plea that the complainant made a request to issue duplicate ATM and never lodged the complaint regarding the loss of ATM.
16.

The complainant has produced his affidavit Ex.C-1 in support of the averments contained in the complaint and has not filed any other evidence to prove that he made a request to the bank to stop the payment and lock the ATM. The Court can also take the judicial notice that secret code is directly sent to the party concerned and in this case to the complainant, therefore, the duty is casted upon the account holder to keep the secret code in safe and proper custody and in this case, the complainant has failed to do so and money was withdrawn through ATM, therefore, in such like eventuality, he cannot blame the bank as without using the secret code, neither ATM can be operated nor money can be withdrawn.

The case of the complainant is that his ATM card was misplaced on 29.9.2008, therefore, it was for the complainant to get his account freezed but he has failed to do so, therefore, he can not draw any advantage from his own wrong and the bank cannot be held guilty for negligence or for rendering deficient services. Besides this, the bank has raised the plea in the reply supported with the affidavit Ex.OP-1 that the complainant only made a request to issue duplicate ATM. The complainant never lodged the complaint with regard to loss of ATM.


17. The case of the complainant is that he moved an application dated 29.9.2008 for the loss of ATM to the opposite parties with the request to issue the new ATM. The said application dated 29.9.2008 with regard to the loss of ATM had not seen the light of the day. So much so, the complainant moved an application for direction to the bank to place on record the copy of application dated 29.9.2008. The opposite parties did not file the reply to the said application and the ld. Counsel for the opposite parties made a statement on 10.7.2009 that only the application dated 29.9.2008 moved by the complainant is already exhibited on the file as Ex. C-4 and no other application was filed by him. This being so the adverse inference is drawn against the complainant to the effect that either he had not moved the application dated 29.9.2008 or the said application, if produced, is not sufficient to support and supplement his plea with regard to intimation to the opposite parties qua the loss of ATM on 29.9.2008.


18. As a result of the above discussion, it is held that the complainant has failed to prove any deficiency in service on the part of the OPs, with the result, the complaint is dismissed. No order as to costs.

Radhey Sham aged 35 years s/o Ram Swarup r /o Village Siana, Tehsil and Distt. SBS Nagar.

….Complainant.

Versus



State Bank of India, Branch Railway Road, Nawanshahr through its Manager, Railway Road, Nawanshahr Tehsil Nawanshahr District SBS Nagar.

….Respondents



O R D E R



Present complaint has been filed by the complainant Radhey Sham U/s 12 of the Consumer Protection Act (hereinafter referred as the Act) against State Bank of India, Branch Railway Road, Nawanshahr through its Manager, Railway Road, Nawanshahr, Tehsil Nawanshahr District SBS Nagar. The complainant has alleged that he is earning his livelihood from the income of agricultural products. That the representative of the State Bank of India, the Op, approached the complainant with an offer that their bank advances loan to the farmers under the Kissan Credit Scheme with very low rate of interest with no hidden costs.


On these assurances that the complainant availed loan facility under Kissan Credit Scheme and got an account bearing No. KCC 30311262927 on 16/01/2008 opened in his name with the Credit facility up to Rs.17,00,000/-. That he mortgaged his agricultural land situated in village Siana, Tehsil Balachaur as a security of the loan at the time of the opening of the account the Ops advanced token amount of loan and debited an amount of Rs 4,250/- as processing charges and Rs 8500/- as inspection charges. That on enquiry he was explained that he Bank charges 2½% of the total credit limit as processing charges and 5% as inspection charges. However, the complainant was constrained to pay this amount despite his objections to these charges. Subsequently when the complainant realised that the said concessional scheme is nothing but mere eyewash and no special incentive is being given to the farmers and the interest charged is also the same.


In March 2009 he expressed his intention before the OPs to make one time payment of the KCC loan amount, that in spite of this disclosure and information the OPs further/again charged an amount of Rs.4.200/- under processing fee and Rs.8,500/- under inspection fee. Therefore, the charging of these amounts under the processing and inspection fee is unconstitutional, un contractual, unilateral, arbitrary etc. It has been alleged that this is the deficiency in service towards the complainant by the Ops. It has been averred that the complainant has suffered great mental as well as physical agony on account of the indifferent attitude of the Ops. Therefore he has sought for directions to the OPs to reimburse the amount illegally charged and to pay Rs.20,000/- as compensation for mental and physical agony plus Rs.10,000/- as litigation expenses.



2. Notice of the complaint was sent the OPs. In their written statements the Ops have denied that any representative of Op the Bank went to the complainant with an offer for KCCS, it is alleged that complainant himself approached the bank for raising loan against Mortgage of land. It has been averred that the OP is governed by the circulars issued by its office at Bombay from time to time, regarding the charges to be recovered from the concerned loanee, at the time of advance of loan.


The OP bank has charged the amount of inspection charges and service charges as per circular no. NBG/DOD-GB/62/2008-2009 dated 02/03/2009. It has been denied that the OPs have charged the service charges @ 2.5% as alleged, however admittedly the Ops has charged only 0.25% as service charges and Rs.8,500/- as inspection charges. It has been contended that the charges are very much legal as the complainant was also informed about these before advancing the loan. Therefore, there is no deficiency in service on the part of the Ops as such there is no question of torturing the complainant as alleged. It has further been averred that the complaint is without any merit and merits dismissal.

3. To prove his allegations Sh. Uma Shankar, advocate, counsel for the complainant tendered in his evidence affidavit of the complainant Ex C1, Copy of pass book Ex C2, Clearance certificate Ex C3.

4. And to rebut the complainant’s evidence Sh. Gaurav Sareen, advocate, counsel for the OPs tendered his evidence Ex R1/A affidavit of Sh. B.C. Bhatia, Manager, State Bank of India, Nawanshahr and Ex RA Master Circular and closed their evidence.





5. We have heard the arguments by both the Learned. Counsels for the complainant Sh. Dhiraj Sehjpal and Sh. S.K. Sareen, Counsel for the Ops.

6. Sh. Dhiraj Sehjpal, Advocate, counsel for the complainant has mainly focused on the arguments that the Bank has illegally burdened him with the processing charges in the tune of Rs.4250/- and inspection charges to the tune of Rs.8500/- twice by the time of the full payment of the loan obtained by him! To prove his case he has drawn our attention to the evidence i.e. Ex.C2 a copy of the passbook and Ex. C3 is the clearance certificate by the Bank. On the other hand, the Learned. Counsel for the Ops has mainly argued that the Ops Bank is governed by the circulars issued by its head office, Bombay from time to time regarding the service to be recovered from the concerned loanee at the time of advancing of the loan. Therefore, the Op bank has charged the amount of inspection charges and inspection as per circular No. NBG/DOD-GB/62/2008-2009. It has further been argued that the bank has charged the service charged @ 0.25% not @ 2.5% as alleged by the complainant, that the Op bank has duly discharged his duty to inform the complainant about these charges at the time of advancing the loan.


To prove his contention the Op has tendered evidence Ex. R1/A affidavit of Sh.B.C. Bhatia, Manager, State Bank of India, Nawanshahr and copy of Master circular No. NBG/DOD-GB/62/2008-2009 is Ex RA. During the argument only on the directions of the Forum the Op also produced the record about the spot inspection containing the exact remarks and observation of the officials conducting spot the inspection. The copy of the permission or intimation given to the higher officials of the Bank as well as the copies of the log book, movement register and personal diary were also presented. Perusal of the sanction of short term loan, inspection register etc amply clears that the bank has duly followed the procedure laid down by the bank for advancing a loan.

7. We appreciate the learned counsel for the Op’s contention that the bank has duly followed its circular no. NBG/DOD-GB/62/2008-2009 i.e. part of IG-2 which clearly states that the service charges for the advance related service as Working Capital for all fund-based limits irrespective for the size of the loan:-0.25% PA on the entire unutilized portion if average utilization is 60% or less or inspection charges (modified as on 25/07/2006) non submission of audited balance sheet:-above Rs.2 lacs but up to Rs.5 crore & Rs.500/- per lac per PA for inspection within the municipal limit.

8. After due application of mind to the facts, circumstances & evidence of the OP on file we are of the view that, the bank is within its right to charge the processing & service charges etc as per the circular no. NBG/DOD-GB/62/2008-2009 @0.25% which comes to Rs.4,250/- only and not as per the complainant’s allegations i.e. @2.5%. Even the processing charges Rs.8,500/- too have been charged @ given in the Master circular i.e. Rs.500/- per lac PA. Thorough perusal of the OP bank’s record and due consideration of the arguments of the learned counsel for the Op Sh. S.K. Sareen, advocate we are of the opinion that there is no deficiency in service by the Op bank in the present case.



9. In view of the aforesaid discussion we find no merit in the complaint as the complainant has failed to give any substantial and cogent evidence to prove his allegation. Therefore, we are constrained to dismiss the complaint. Parties are left to bear their own costs.

10 The copy of this order be sent to the parties as per rules.



11. File be consigned to the record room.

Avinash Chander son of Sh. Kewal Krishan r/o 10-C, Railway Colony no.1, Ludhiana, Advocate, Chamber no.533, Lawyers’s Chambers Complex, New Judicial Courts, Ludhiana.

…..Complainant.

Versus



1- General Manager, SBI Cards & Payment Services Pvt. Ltd., SBI Local Head Office, 11, Parliament Street, New Delhi-110 011.

2- Manager, SBI Cards & Payment Services Pvt. Ltd., Plot no.90, Sector 18, Udyog Vihar, Gurgaon, Haryana.

…..Opposite parties.





O R D E R



1- Complainant being holder of SBI Credit Card No.4006661015071678 under Account No.4006661010851850, entered into one time settlement qua outstanding amount against use of his credit card. The amount was settled for Rs.13000/-, as full and final payment in one installment, vide letter dated 20.11.2002 of the opposite party. On that day, complainant paid amount of Rs.3000/- vide receipt dated 20.11.2002 and remaining Rs.10,000/- was paid vide receipt dated 30.11.2002. But despite it, opposite party did not issue no dues certificate in his favour, which act on their part, amounts to deficiency in service. Thereafter, recovery agents of opposite party started visiting house of the complainant, to pay outstanding dues against his credit card.


Though he apprised them having settled and paid the entire dues qua the credit card. But despite apprising them of settlement, opposite party had been sending monthly statements, making phone calls and sending legal notice, to pay outstanding amount immediately or otherwise, threatened to put him in the list of defaulters in banking record. He requested them to check their record and issue NOC, but to no avail. Therefore, took up matter with Banking Ombudsman, who took up matter with opposite party and consequently, informed complainant that opposite party had only received Rs.3000/- against outstanding balance of Rs.9080.61. But complainant could not find the receipt, so Banking Ombudsman filed his case. Now, he has discovered original receipt, showing payment of Rs.13,000/-. Therefore, he stood harassed due to act and conduct of opposite party. Hence, by through this complaint u/s 12 of the Consumer Protection Act, 1986, has sought refund of Rs.3000/-, got forcibly deposited from him by opposite party with 24% interest and claimed compensation of Rs.50,000/- for causing harassment.

2- Opposite party after notice appeared, but failed to file any reply, despite adjournments and subsequently, allowed themselves to be proceeded exparte.

3- To prove his case, complainant adduced exparte evidence and stood heard in person.

4- Claim of the complainant, in entirety, stands proved through one time settlement letter Ex.A1 dated 20.11.2002 on the letter head pad of opposite party and addressed to the complainant. Qua the SBI card no. No.4006661015071678 of the complainant, one time settlement for Rs.13000/- payable in one installment, was made in November, 2002. According to the complainant, this letter of one time settlement was handed over to him by opposite party, after receipt of Rs.3000/- on 20.11.2002 and Rs.10,000/- on 30.11.2002 qua which, they mentioned in one time settlement letter. Ex.A2 is the receipt dated 30.11.2002 of Rs.10,000/-. According to the complainant, first receipt of Rs.3000/- is lost. But it is a fact proved that under one time settlement, a sum of Rs.13,000/- was settled qua credit card of the complainant, payable by November, 2002 and complainant had paid the entire amount by 30.11.2002. It means after one time settlement, nothing was payable by the complainant to the opposite party.

5- When opposite party failed to issue NOC, complainant took up matter with Banking Ombudsman, who vide letter Ex.A3 dated 12.4.2007, intimated complainant, having taken up his grouse with the opposite party and then vide letter Ex.A4 dated 16.5.2007, conveyed to the complainant, to furnish documentary evidence of depositing Rs.13,000/-. But he failed to answer that letter and as a result, Banking Ombudsman, vide letter Ex.A5 dated 31.5.2007, given 3 days to file reply, failing which, conveyed to treat his case as closed. But complainant failed to respond to above letters, so the matter was closed by the Banking Ombudsman, vide their communication Ex.A6 dated 29.6.2007.

6- But thereafter, opposite party sent statement Ex.A7 dated 23.9.2008 to the complainant, showing an amount of Rs.29,953.58 due from the complainant qua his credit card. Then, complainant filed the complaint.

7- Once opposite party had settled the amount in one time settlement with the complainant and he had paid that amount, so settled mutually between the parties, means that nothing remained due qua the card from him. But opposite party failed to issue NOC in his favour and on the other hand, started claiming amount of Rs.29,953.58 due from him qua his credit card, vide statement dated 23.9.2008 Ex.A7. Such act on part of opposite party, certainly would amount to breach of the agreement, resulting in deficiency in service on their part towards the complainant. For such deficiency in service, complaint deserves to be allowed.

8- However, it was contended on behalf of the complainant that he is also entitled for refund of Rs.3000/-. Because as per letter Ex.A4 of the Banking Ombudsman, balance of Rs.9080/- was due from him towards the bank. Therefore, they have wrongly taken Rs.3000/- extra from him. But in our view, such refund can not be allowed, as he himself had agreed to pay Rs.13,000/- under one time settlement to opposite party. Therefore, this prayer has no legs to stand with.

9- In view of aforesaid discussion, we for deficiency in service on part of opposite party, allow this complaint and as a result, direct opposite party, to issue NOC to the complainant qua his credit card no. No.4006661015071678 and also pay him compensation and litigation costs compositely assessed at Rs.3000/- within 45 days of receipt of copy of order, which be provided to the parties free of charge. File be completed and consigned to record room.

Human Rights & consumer Protection Cell – BMRWS (Regd.)

BHEL MIG 982, Hyderabad – 502032, Andhra Pradesh, India.

Rep. By: -

Thakur Rajkumar Singh S/o Shri. T. Deen Dayal Singh

General Secretary & Authrorised Representative/Spl. GPA of Mr. Lokapur



….. Complainant

Vs



1. Sh. Wazid Khan – Commandant,

CISF Unit, BHEL Ramachandrapuram,

Medak District - 502 032,

Andhra Pradesh.



2. The Branch Manager,

State Bank of India – Serilingampally Branch – 06314

Rajyalakshmi Compex, Chandanagar,

GHMC Hyderabad – 500 050,

Andhra Pradesh.



3. The Post Master,

Ramachandrapuram Post Office,

BHEL – Campus,

Medak District – 502 032,

Andhra Pradesh.

….Opposite parties





This case came up for final hearing before us on 13.08.2009 in the presence of Sri Thakur Raj Kumar Singh, representing the complainant cell as its general secretary, Opposite party No. 1 in person, Sri M. Sunil Kumar, Advocate for opposite party No. 2 and Sri. N. Shiva Kumar, advocate for opposite party No. 3, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following:



O R D E R



This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct opposite party No. 1 to give back Rs.30,000/- to Mr. Lokapur and to direct the opposite parties to pay Rs.1,00,000/- each to Mr. Lokapur for deficiency in service and negligence etc.

The averments in the complaint in brief are as follows:

1. The complainant’s consumer Protection Cell is a specialized wing of BMRWS (Registered No. 2351). It is a recognized voluntary welfare society actively involved in Consumer Protection. It is registered under A.P. Societies Registration Act, 2001. The complainant’s Cell had received a grievance from one Mr.Y.H. Lokapur (Schedule Caste) Const. No. 963512309 who is working as CISF Constable (NLC Neyveli, Tamil Nadu) Resident of NLC Neyvili CISF unit barracks, stating that Rs.30,000/ has been robbed from his account – State Bank of India. Mr. Lokapur had authorized the complainant to take up this case by making the complainant’s cell his attorney by executing special general power of attorney to attend court cases as required under Regulation 16 of Consumer Protection Regulations, 2005. On receipt of the complaint the complainant’s cell went into fact finding massion and the investigation and enquiry revealed that the amount was robbed due to deficiency in service on the part of opposite parties No. 1 and 2 and due to negligence of opposite party No. 3.



2. Mr. Y.H. Lokapur has SB Account No. 3006902605 -1 with opposite party No. 2. On 05.01.2007 he went to bank and withdrew Rs.2,000/- through a cheque and updated his pass book. He was surprised to note that Rs.30,000/- has been drawn from his account through ATM card on 01.01.2007 which was actually not issued to him. Immediately he enquired with the branch manager and brought the facts to his notice in writing. Opposite party No. 2 told Mr. Lokapur that an ATM card had been sent to his office address, from Mumbai head office, on 20.12.2006 which was received by opposite party No. 1 on 22.12.2006 from opposite party No. 3.


The said theft amount was part of loan given by opposite party No. 2 to Mr. Lokapur. Even after more than eight months, opposite party No.2 has been deducting monthly EMIs from the account of Mr. Lokapur on the whole loan amount. Opposite party No. 2 had fraudulently given away Mr. Lakapur’s ATM password / Number to an un authorized person due to which Mr. Lokapur had lost his money. Opposite party No. 2 has wantonly and maliciously deducted monthly EMIs on the whole loan amount. FIR 105/07 has been booked on 25.03.2007 by R.C. Puram Police who closed the case illegally, upon which a complaint was filed with A.P. State Human Rights Commission (HRC 2095 of 2008) and the matter is pending.



3. Earlier the complainant’s cell filed a Consumer Complaint before this forum in C.C. No. 37/2007 which was dismissed mainly on the ground of maintainability, with a finding that the complainant is not shown to be a Recognized voluntary consumer association registered under Companies Act or under any other Law. The complainant is a Registered Voluntary Society / Association / Organization Registered under A.P. Society Registration Act (Government of A.P) and had represented victims / sufferers in number of cases pertaining to human Rights, consumer protection, Right to Information and Anti corruption, from the year 2004. Also this forum passed a favorable order on 27.08.2007 in C.C. No. 163/2006 awarding a compensation of Rs.40,000/- to the sufferers / victims who were represented by the Complainant’s Cell. Opposite party No. 1 claimed to have received Rs. 30,000/- from unknown person through post in the form of bankers cheque which was stolen from the account of the complainant which is lying with him.


Opposite party No. 1 further claimed that Mr. Lokapur is not willing to receive the bankers cheque. Even till today the amount is illegally held by opposite party No. 1. Mr. Lakapur’s ATM card in sealed cover was received by opposite party No. 1from opposite party No. 3 un authorizedly when it was sent to his office address by the Head office of opposite party No. 2. After receiving the ATM card opposite party No. 1 did not give it to Mr. Lokapur. Opposite party No. 2 gave away the secrete password / Number to an un authorized person who withdrew the money from ATM fraudulently. Instead of giving registered letter directly to Mr. Lokapur, opposite party No. 3 gave it to opposite party No. 1. Therefore all the opposite parties are liable. Hence the complaint.



4. The complaint is resisted by the opposite parties No. 1 to 3 by filing their versions separately. The averments in the said versions are almost similar. In brief they are as follows:



The complaint is not maintainable as opposite party No. 1 is not working for the complainant for rendering service on payment, as such there is no deficiency in service. Provisions of Consumer Protection Act are not applicable, therefore this forum has no jurisdiction. The complainant has no locus standii to file a consumer case on behalf of Mr. Lokapur. The complainant is a society registered to address grievances of resident members of that society.


It is neither a consumer nor a Registered Consumer Association. Opposite party No. 1 is not aware of SB account of Mr. Lokapur with opposite party No. 2 and withdrawal of Rs.30,000/- there from through ATM. On the complaint of Mr. Lokapur, Ramachandrapuram Police registered FIR No. 105/07 in connection with theft of ATM card and money by using the same, and that case was closed as un detectable. This forum cannot adjudicate cases of theft. As the earlier complaint of the complainant in C.C. No. 37/2007 was dismissed on 05.05.2008, this complaint is barred by principles of resjudicata. The allegation that opposite party No. 1 illegally held money of the cheque of Mr. Lokapur is denied. In fact opposite party No. 1 was on leave for ten days from 22.12.2006 to 31.12.2006 therefore he is not responsible for receiving ATM card of Mr. Lokapur by somebody else.


The allegations made in the complaint are not true in correct and the complainant is not entitled to any amounts including compensation as claimed in the complaint. The complaint may therefore be dismissed with exemplary costs.



5. Evidence affidavits of complainant and opposite parties No. 2 and 3 are filed to prove the contentions raised in their respective pleadings. Counsel for opposite party No. 1 filed a memo to treat the counter version of opposite party No. 1 as evidence affidavit on his behalf. On the request of the complainant Exs. A1 to A59 are marked. On behalf of opposite party No. 1 Exs.B1 to B7 are marked. On behalf of opposite party No. 2 Exs. B8 to B13 are marked and on behalf of opposite party No. 3 Ex.B14 is marked. Written arguments of complainant and opposite party Nos. 1 and 2 are filed. Counsel for opposite party No. 3 filed a memo to treat the evidence affidavit of opposite party No. 3 as written arguments on his behalf . Oral arguments on both sides heard. Perused the record.



6. The point for consideration is whether the complainant is entitled to the amounts claimed in the complaint?



Point:

The case of the complainant is that Mr. Y.H. Lokapur has been working as constable in CISF in the office of opposite party No. 1. It is its further case that the said Lokapur has a Savings Bank account in the bank of opposite party No. 2 and the said bank sent ATM card of Mr. Lokapur through registered post to his office address and the office of opposite party No. 1 received the same but it was wrongly handed over to somebody else and opposite party No. 2 has also wrongly delivered the secrete PIN to operate the ATM card to a person other than Mr. Lokapur and with the help of the said ATM card and by using the PIN somebody stealthily withdrew Rs.30,000/- from the account of the said Lokapur which is part of loan amount obtained by him.


It is also the case of the complainant that post man of opposite party No. 3 handed over the registered cover addressed to Mr. Lokapur in the office of opposite party No. 1 in the inward section, instead of directly delivering it to Mr. Lokapur. According to the complainant the said Y.H. Lokapur engaged the services of the complainant to file a case and deal with it and a special power of attorney is also executed by him in the name of the complainant, therefore this complaint is filed for return of the amount of Rs.30,000/- and to award compensation of Rs.1,00,000/- against each of the opposite parties in favour of Mr. Lokapur.



7. The common defence of all the opposite parties is that the complainant is not a “consumer” within the meaning of the Consumer Protection Act and it also does not come within the definition of the expression “complainant” and hence there is no “consumer dispute” as such between the parties and hence the complaint is liable to be dismissed.



8. After going through the record and considering the written and oral arguments submitted by both parties, we are of the opinion that it is necessary to consider the maintainability of the complaint in the first instance before going to the merits of the case. To appreciate the rival contentions it is necessary to refer to the definitions of the expressions “Complainant” and “Consumer” in the Consumer Protection Act, 1986.



9. Section 2(1)(b) “Complainant” means, - i). a consumer ; or ii). Any voluntary consumer association registered under The Companies Act, 1956 or under any other law for the time being in force; or iii) the Central Government or any State Government, who or which makes a complaint; iv). One or more consumers, where there are numerous consumers having the same interest; v). in case of death of a consumer, his legal heir or representative.



10. Section 2(1)(d) “Consumer” means any person who – i). buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or ii). Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose; Explanation: - For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.



11. During arguments Mr. Thakur Raj Kumar Singh, claiming to be General Secretary of the complainant’s cell, contended that the complainant is within the four corners of Section 2 (b)(ii) as it is a voluntary consumer association registered under A.P. Societies Registration Act. It is further argued by him that such a registered voluntary consumer association can file complaint under Section 12(1)(b). But according to the counsel for opposite parties the complainant’s society is registered to address grievances of resident members of their society and it is neither a consumer nor a registered consumer association as such there is no consumer and service provider relationship between the complainant and the opposite parties and therefore the complainant has no locus standii to file this complaint and hence the complaint is liable to be dismissed.



12. It is to be observed here that a recognized consumer association which is registered, can file a complaint for and on behalf of a consumer, figuring him as a party to the proceedings. Ignoring, the actual consumer, the voluntary consumer association cannot independently present a complaint as the same is not maintainable. In the case now in hand the complainant’s cell filed this complaint alleging that Mr. Y.H. Lokapur, who is the alleged aggrieved party , has executed a power of attorney in the name of the complainant and basing upon the same this complaint is filed. Such complaint is not maintainable. This view is supported by a decision of Hon’ble Bihar State Commission rendered in the case of Punjab National Bank vs. Ramakant Yadava reported in I(1997) CPJ 44. Paragraph 8 of the said order is as follows: “A person holding power of attorney has not been included in this definition of complainant under the Act. Hence the present complainant is not entitled to file this case as a complainant under the Act.”



13. The complainant’s cell has not made the consumer a party to the proceedings nor his signature is obtained in the complainant. Such complaint is liable to be dismissed. Hon’ble Gujarat State Commission had an occasion to deal with a similar situation while disposing of the case of Gujarat Electricity Board & others vs. Grahak Hit Suraksha Mandal Kodimar reported in I(2003) CPJ 125. In para 6 of the said decision it is stated as follows: “In our considered opinion a recognized Consumer Association might file complaint but in that event the consumer/s for whose cause the Association was filing the complaint he/they would have to be party to the complaint. In the present case the concerned consumer is neither a party to the complaint nor has he signed the complaint. Under such circumstances, the complaint could not have been entertained by the learned Forum.” Therefore in view of the ratio in the decisions referred above also the present complaint is not maintainable.



14. It is argued by Mr. Thakur Raj Kumar, on behalf of the complainant, that the complainant’s organization has filed number of complaints in various District Consumer Fora and most of them were allowed in favour of the complainant by passing orders benefiting the consumers therefore the technical objection raised by the opposite parties cannot be given much importance. It is further argued by him that as this is a consumer case, forum should not go to the technicalities. In this connection he has referred to regulation No. 26(1) of The Consumer Protection Regulations, 2005. Regulation No. 26(1) is as follows: “Miscellaneous: - 1). In all proceedings before the Consumer Forum, endeavor shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil procedure, 1908 (5 of 1908): Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made there under”.



15. Under The Consumer Protection Act a District Forum shall have the same powers as are vested in a Civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of certain matters enumerated in sub Section 4 of Section 13. Therefore use of other provisions in CPC has to be avoided. This is nothing to do with the technical ground which is agitated by the opposite parties regarding the maintainability of the present complaint.





16. As per a decision rendered by the Hon’ble Maharashtra State Commission in the case of Vishnu Kumar Vershney vs. Dynamatic Forgings India Ltd. reported in III(2002) CPJ 277 if a complaint is dismissed for non compliance of pre requisite formalities, such a dismissal is not proper. In para 8 of the said judgment it is stated as follows: “Since Consumer Protection Act, 1986 is the beneficient Statute, it is expected that Consumer Forums do not get unduly swayed with hyper technicalities at the cost of justice”. Therefore it is to be understood that technicalities means such technicalities as stated in the above decision but not regarding the maintainability of the complaint as in this case.



17. It is therefore held that the complainant is not a consumer and there is no consumer dispute between the complainant and any of the opposite parties. As the alleged consumer Mr. Y.H. Lokapur is not a party to the proceedings and as this complaint does not contain his signature, in view of the discussion supra and the ratio in the decisions referred above, it is held that the complaint is not maintainable.



18. In the circumstances discussed the above, as the alleged consumer Mr. Y.H. Lokapur is a not a party to the proceedings, in his absence and behind his back, the case cannot be decided on merits, hence the evidence placed before this forum by both parties is not being considered as the same is not necessary. In the circumstances the complainant is not entitled to any of the reliefs prayed for in the complaint and the complaint is liable to be dismissed. The point is answered against the complainant.



19. In the result the complaint is dismissed and the complainant is directed to pay Rs.2,000/- to each of the opposite parties towards costs within one month, bearing its own costs.

Sri Kasireddy Satyanarayana, S/o Late Tatalu, Hindu, aged 53 years, R/o D.No.58-20-31, Ward No.67, Butchirajupalem, Visakhapatnam – 530 027.

… Complainant

And:

1. The Branch Manager, State Bank of India, Dondaparthi Branch, Visakhapatnam.

2. The Assistant General Manager, State Bank of India, Retail Assets Central Processing Center, State Bank Premises, 1 Town, Visakhapatnam – 530 001.

3. Deputy General Manager (NCM) State Bank of India, Siripuram Junction, Visakhapatnam

4. Authorized Officer, Stressed Assets Resolution Center, State Bank of India, Zonal Office, Siripuram Junction, Visakhapatnam.

… Opposite Parties





: O R D E R :

1. The complaint averments in brief are: the Complainant was sanctioned a loan of Rs.3,40,000/- for construction of a house and the loan was released by the opposite parties on installment basis of Rs.1,50,000/- on 31-12-2005; Rs.50,000/- on 12-06-2006 and Rs.1,00,000/- on 27-06-2006, in total Rs.3,00,000/-. The loan account No. 10667808528. It is pleaded the balance amount of Rs.40,000/- was not released and he was informed that it would be released by sending intimation to him, but it was never received by him. It is complained that he received a notice dated 11-02-2008 from the 2nd opposite party to make payment of 16 installments @ 3,834/-. He made a payment of Rs.25,000/- on 31-03-2008. Similar letter was received by him on 28-05-2008 informing him that 7 installments were due.


Inspite of repeated letters by the complainant the opposite parties did not inform as to the details of EMIs and commencement of his loan in order to enable him to repay the loan. This amounted to deficiency in service. Hence this complaint for a direction to inform the date of commencement of loan account and details of EMI, damages of Rs.2,00,000/- for the deficiency of service and costs of Rs.5,000/-.

2. The 4th opposite party filed a counter denying the complaint allegations and pleaded that subject matter of the complainant relates to liability of the complainant on account of loan availed by him and as such this Forum has no jurisdiction under the securitization as such this Forum has no jurisdiction to entertain the complaint and remedy if any at Debt Recovery Tribunal but not the Forum. The complainant never requested the bank to release the Rs.40,000/- as alleged by him. As per the terms of sanction the loan shall be repaid in 175 equated monthly installments of Rs.3,201/- each along with floating rate of interest @ 2.75% below State Bank Advance Rate (SBAR), effective rate being 7.5% with monthly rests.


The rate of interest is subject to revision from time to time whenever there is change in SBAR and the borrower is deemed to have constructive notice as to change of interest. At present, the rate of interest is 10% p.a., with monthly rests. The complainant, dispite agreeing to repay the amount regularly, has failed to comply with the terms of the loan agreement and allowed the account to become a non-performing assert (NPA) despite several demands and reminders from the bank.


Hence he was issued a demand notice dated 11-09-2008 under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (hereinafter referred as SARFAESI Act). The bank received objections from the complainant and a reply with due clarification to the complainant as per the provisions of law was issued on 30-09-2008, but the complainant kept quite. The complainant failed to pay atleast a single installment within time and paid only Rs.25,000/- on 31-03-2008, ever since availing of the loan. There is no deficiency in service on the part of the bank. Hence the complaint has to be dismissed.

3. At the time of enquiry both the parties filed affidavits in support of their respective contentions. Besides it, the complainant marked Ex.A.1 to Ex.A.15 and opposite parties marked Ex.B.1 to Ex.B.4.

4. In view of the pleadings and contentions raised by either side at the time of enquiry the point that would arise for determination is

Whether there is any deficiency in service on the part of the opposite parties and the complainant is entitled for the relief asked for?

5. The grievance of the complainant who obtained house building loan from the opposite parties is that he was not informed of commencement of repayment date or EMI to enable him to repay the loan.

6. He availed altogether Rs.3,00,000/- loan from the bank and the last installment of Rs.1,00,000/- obtained by him was on 27-06-2006. Evidently he did not make any payment of EMI. When a notice Ex.A.1 dated 11-02-2008 was issued by the bank showing that he did not pay 16 installments and EMI was Rs.3,834/-, by his reply Ex.A.2 date, for the first time, he raised a question that he should be informed the mode of repayment and the rate of interest to be paid by him. Ex.A.3 is another letter from the bank dated 28-05-2008, for this also he sent a letter Ex.A.4 seeking for copy of the ‘Statement of Account’. At the outset it is absurd to contend by the complainant that, he was not aware of EMI to be paid by him and other terms of the loan, as the sanction of loan would be after obtaining necessary documents from him. Having kept quite for nearly two years without making any payment of EMI after availing loan amount, when demand note was issued by the bank the complainant came up with this lame excuse of lack of knowledge of EMI and rate of interest.


The correspondence filed by him would show that he is harping upon this point only instead of making any payment. He paid only one lump sum payment of Rs.25,000/- i.e., two months after Ex.A.1 notice. When Ex.A.1 and Ex.A.3 specifically mention about the amount of EMI, nothing prevented him from making payment of such EMI. In our view this attitude of the complainant is nothing but an attempt to cover up his default in repayment of the laon.

7. Apart from this, the opposite party issued Ex.A.14 notice under Section 13 (2) of SARFAESI Act (Securitization Act) and the objection raised by him under Ex.A.15 dated 22-09-2008 were not accepted by the bank by issue of Ex.B.1 letter dated 27-09-2008. Moreover the bank has issued Ex.B.2 possession notice also under Ex.B.4 dated 09-03-2009. Thus as things stand, as pointed out by the counsel for the opposite party, a notice under Section 13(2) of SARFAESI Act (Securitization Act) and the objection of the borrower was not accepted by the bank under Section 13(3A) of SARFAESI Act (Securitization Act) and it proceeded under Section 13 (4) of the SARFAESI Act (Securitization Act), issuing possession notice, the remedy open to the complainant is to approach the Debt Recovery Tribunal having jurisdiction. Section 34 of SARFAESI Act (Securitization Act) clearly bars the Civil Court to entertain any suit or proceedings, in respect of any matter which Debt Recovery Tribunal is empowered under the Act to determine the dispute. Thus there is a statutory bar in entertaining this complaint.

8. In the light of the above discussion, it is quite clear, that there are no bonafidies in the complaint finding fault with the bank for the alleged non-furnishing of the details of repayment of loan and only to evade repayment, came up with this complaint alleging deficiency in service and in our view the complainant failed to establish his allegation of deficiency in service and even otherwise this Forum has no jurisdiction to entertain this dispute in view of the SARFAESI Act (Securitization Act). Accordingly this point is answered.

9. In the result, the complaint is dismissed. In the circumstances of the case complainant is directed to pay costs of R.3,000/- (Rs. Three thousand only) to the opposite parties. Advocate fee Rs.2,000/- (Rupees two thousand only).

Dictated to the Stenographer, transcribed by him, corrected by me and pronounced by us in the open Forum on this the 21st Day of August, 2009

K. Srinivasa Reddy,

S/o Kesava Reddy,

R/o D.No.5-13-11,

Brodipet, 2/12,

Guntur-2. …Complainant

and

The Manager,

State Bank of India,

Treasury branch,

2/14, Brodipet,

Guntur-2. …Opposite party






O R D E R



The complaint in brief is as follows, the complainant has taken APGLI policy bearing No.472390-C paying Rs.300/- per month through his salary deduction. Complainant applied for APGLI loan towards medical expenses and family necessities through his office NECP (S) Unit, Amaravathi Road, Guntur on 15-07-06. The Joint Director, District Insurance Office, Guntur, sanctioned the loan amount of Rs.10,000/- on 16-10-06 by deducting Rs.400/- pm in 25 instalments and issued a cheque bearing No.A.019070, dated 6-10-06 of the SBI, Treasury Branch, Guntur in favour of the complainant.


The complainant presented the above said cheque through his bank i.e., ICICI Bank, Lakshmipuram branch, Guntur for collection. The opposite party dishonored the cheque inspite of the fact that there was sufficient balance to cover the amount of the cheque. The ICICI bank returned the dishonored cheque with an endorsement “funds insufficient” by a memo dated 17-10-06. The banker deducted Rs.56/- for return charges of cheque. The complainant received the cheque on 30-10-06 by a private courier service. The complainant issued a legal notice by a registered post acknowledgement due on 2-11-06 to the APGLI authority. The Joint Director, District Insurance Office, Guntur reissued the cheque to the complainant.


The complainant presented the cheque in the SBI., Treasury branch, Guntur to credit the amount in his account on 15-11-06 and the amount was credited in his account. The opposite party has deliberately and intentionally dishonored the cheque, even though there is sufficient balance amount in the APGLI account. Even though the complainant was badly in need of money he could not draw the amount due to the irregular action of the opposite party and thereby the complainant sustained huge loss. The cheque was dishonored inspite of the fact that there was sufficient balance to cover the amount of the cheque due to negligence of the opposite party. Thus there is deficiency of service on the part of the opposite party. Hence, the complaint.

The opposite party filed his version which is in brief is as follows: Most of the averments in the complaint are all false, incorrect and misleading and the complaint is not maintainable at law. There are no valid or tenable grounds to allow the complaint and the same may be dismissed in limini. The provisions of law under which the complaint is filed has no application to the facts of the case. The complainant did not assign any valid or cogent reason in the complaint to obtain reliefs prayed for in the complaint. On the otherhand, the complainant is guilty of supprecio vari and suggestio falsi and as such the complaint is liable to be dismissed. When the cheque of the complainant came to this opposite party bank for clearance there was no sufficient balance in the account of the Joint Director, District Insurance Office, Guntur. On that day there is a balance of Rs.1,835/- only in the account, as such the opposite party returned the cheque with an endorsement ‘funds insufficient’ vide its memo dated 17-10-06. As such there is no deficiency of service on the part of the opposite party. The complaint is filed to gain unlawfully. Hence, the complaint may be dismissed with costs.

The complainant filed his affidavit in respect of the contentions raised in his complaint reiterating the same. The opposite party also filed the affidavit inrespect of his contentions reiterating the facts mentioned therein.

On behalf of complainant Exs.A-1 to A-9 xerox copies of the documents are marked. On behalf of opposite party Exs.B-1 is marked. Ex.A-1 is the copy of cheque issued to the complainant dated 6-10-06 by the Joint Director of District Insurance Office, Guntur. Ex.A-2 is the cheque returned memo. Ex.A-3 is the letter issued by the ICICI Bank to the complainant. Ex.A-4 is the ATM receipt of ICICI bank, Guntur. Ex.A-5 is the registered legal notice issued to the Joint Director, District Insurance Office, APGLI, Guntur by the counsel of the complainant. Ex.A-6 is the letter issued to the counsel of the complainant by the District Insurance Office, Guntur. Ex.A-7 is the letter addressed by the complainant to the Joint Director, District Insurance Office bearing the endorsement of the o/o District Insurance Office, Guntur. Ex.A-8 is the cheque issued to the complainant for Rs.10,000/- dated 8-11-06. Ex.A-9 is the account copy of the Joint Director of District Insurance maintained by the SBI, treasury branch, Guntur.

Ex.B-1 is the copy of account of Joint Director of District Insurance Office maintained by the SBI, treasury branch, Guntur showing the balance entry of Rs.1835/- as on 16-10-06.



Now the points that arise for consideration are:

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

2. Whether the complainant is entitled for the relief claimed for?

POINT No.1:- The complainant herein filed an earlier complaint in CC 1136/06 on the file of this Forum against the Joint Director, District Insurance Office and the Manager, ICICI Bank, Lakshmipuram, Guntur claiming compensation against the opposite parties for the dishonor of the cheque issued to him by the Joint Director, Insurance dated 6-10-06 which is also the subject matter of the present CC. The earlier CC was dismissed on the ground of non joinder of necessary party. After dismissal of the said CC the complainant filed this complaint against the opposite party herein.


It is not in dispute that the Joint Director sanctioned loan to the complainant and issued a cheque for a sum of Rs.10,000/- dated 6-10-06 and the same was presented by the complainant in ICICI bank, Lakshmipuram branch, Guntur for collection and it was dishonored by the opposite party herein with an endorsement ‘funds insufficient’ and same was returned to the complainant by the ICICI Bank by its memo dated 17-10-06. The Joint Director issued a reply letter under Ex.A-6 to the counsel of complainant stating that “a cheque bearing No.A.19070 dated 6-10-06 towards sanction of loan to Sri K. Srinivasa Reddy, MPHS was issued after verification of budget. Banker returned the cheque while dishonoring the same with an endorsement ‘funds insufficient’ by mistake.


Hence, you are requested to kindly return the cheque to this office so as to enable this office to revalidate the cheque and reissue the same to him”. This clearly shows, even though there is budget the banker i.e., the opposite party herein dishonored the cheque by mistake. Further, the Joint Director of District Insurance who was shown as 1st opposite party in the earlier complaint i.e., the CC 1136/06 on the file of this Forum, in his affidavit stated that as on the date of issue of the cheque an amount of Rs.8,27,176/- is available towards their loan account and as per the day wise expenditure maintained in their office.


Further, he has also stated that when the cheque in question was dishonored, the policy holder has brought the issue to his notice, that immediately on ascertaining from the SBI, it is learnt that the cheque presented by other Government Departments were debited from the APGLI loan account balance due to oversight resulting in deficiency of funds. Ex.B-1 shows that an amount of Rs.1835/- is shown as balance as on 16-10-06 in the account of the Joint Director of District Insurance maintained by SBI. Immediately under the said entry it is noted as “erroneously debited instead of ------- on 19-08-06 & now received’ Rs.10,40,864/-”.


Thus even in Ex.B-1 account copy also it is noted that some amount is erroneously debited. The contention of the complainant is that the opposite party dishonored the cheque inspite of the fact that there was sufficient balance to cover the amount of the cheque and that the Joint Director, District Insurance stated that as on the date of issue of cheque an amount of Rs.8,27,176/- is available towards the loan account in their accounts as per the day wise expenditure register maintained by them, is also specifically not denied by the opposite party. The opposite party simply stated that when the cheque of the complainant came for clearance there is no sufficient balance in the account of the Joint Director, District Insurance and that there is only a balance of Rs.1,835/- in the account.


Thus the evidence on record clearly shows even thought there is sufficient amount to clear the cheque amount of Rs.10,000/- as on 17-10-06 in the account of the Joint Director, District Insurance Centre, Guntur, due to wrong entries made debiting the account of the Joint Director the balance is wrongly shown as Rs.1835/- in Ex.B-1 and thereby the opposite party dishonored the cheque presented by the complainant and caused loss and mental agony to the complainant and thus there is deficiency of service on the part of the opposite party.

POINT No.2:- The 1st cheque was issued to the complainant by the Joint Director on 6-10-06 and as it was dishonored on 17-10-06 for the reasons mentioned above, the Joint Director received the dishonored cheque from the complainant under the endorsement made in Ex.A-7 and issued a second cheque dated 8-11-06 and it was encashed on 15-11-06. Thus the complainant could not avail the loan amount of Rs.10,000/- within time and he could able to receive the amount after a lapse of nearly one month. Thus he suffered mental agony and could not meet his medical and other requirements. Thereby he is entitled for a some amount of compensation for the loss suffered by him. We feel it appropriate to award a sum of Rs.500/- towards compensation and Rs.300/- towards costs of litigation.

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

1. The opposite party is hereby directed to pay Rs.500/- towards compensation to the complainant.
2. The opposite party is further directed to pay an amount of Rs.300/- towards costs of the complaint.



3. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order, failing which it shall carry interest @9% p.a., till the date of realization.

1. Dr.G.Vijaya Saradhi,

S/o. Yellamanda

2. Dr.V.Adi Anjaneya Lakshmi,

W/o. Dr.Vijaya Saradhi

Residents of 1st line, Sambasivapet,

Guntur.



C/o. L.V.S.Murthy, Advocate,

9-3-10, Railpet,

Guntur. … Complainants

AND



1. The Vice President,

S.B.I. Life Insurance Company Ltd.,

Parisrama Bhavan, Basheetbagh,

Hyderabad.

2. The State Bank of Hyderabad,

Rep. by its Branch Manager,

Tobacco Board Branch,

G.T.Road, Guntur. … Opposite parties








O R D E R





This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant seeking directions on the opposite parties to issue SUPER SURAKSHA insurance policy and to pay compensation of Rs.1,00,000/- for mental agony suffered by them and cost of litigation.





The case of complainant in brief is that

The complainants are husband and wife and are medical practitioners. They have borrowed an amount of Rs.20,00,000/- from the 2nd opposite party i.e., State Bank of Hyderabad, Tobacco Board Branch, Guntur for construction of a house at 1st line, Sambasivapet, Guntur. The 2nd opposite party insisted upon the complainants to have SBI Life Insurance under SUPER SURAKSHA insurance scheme for housing loan borrowers. Accordingly, as per instructions of 2nd opposite party and on the request of 1st opposite party i.e., SBI Life Insurance, Hyderabad, the complainants underwent various medical tests at Padmavathi Nursing Home, Guntur for the purpose of above referred policy. On completion of medical examination and on perusal of reports, both the opposite parties in consultation with each other demanded the complainants to pay Rs.1,81,522/- as one time premium promising to provide SBI Life Insurance cover under Super Suraksha Scheme.

The complainants having believed the version of opposite parties gave consent to the 2nd opposite party to deduct the demanded amount of premium of Rs.1,81,522/- out of their account. Accordingly, the 2nd opposite party deducted the said amount from the complainants account on 17-10-05. Thereafter, the complainants have been paying monthly installments regularly to the 2nd opposite party, which includes the amount borrowed for housing loan and the premium amount. While so to the surprise of complainants they have received separate letters from 1st opposite party dt.23-11-05 and 01-12-05 demanding the complainants to pay Rs.56,158/- (2nd complainant) and Rs.84,281/- (1st complainant), which comes to a total of Rs.1,40,439/- under the pretext of additional premium to provide Super Suraksha SBI Life Insurance. In fact, the demand of additional premium made by the 1st opposite party was very much vague and no reasons were assigned.

The complainants submit that it is only on the representations of the 2nd opposite party in consultation with the 1st opposite party, they were made to believe that the amounts paid by the complainants on 17-10-05 was one time premium only for the policy awarded to them. The complainants have also expressed their consent to deduct the amount by 2nd opposite party and under belief that they were covered by the said policy from 17-10-05 onwards.

Having received the demand for additional premium, the complainants got issued a registered notice dt.15-05-05 calling upon the opposite parties to provide the policy certificate and requested them not to claim any more premium. While so to the utmost surprise of the complainants they had received letter No.HYD/70/06 dt.3-05-06 from the 1st opposite party even without giving reply to a letter dt.27-02-06 sent by the complainants. The letter dt.03-05-06 reveals that due to elevated blood sugar, extra premium was sought by the 1st opposite party. The complainant submit that the attitude of opposite parties without reply to the letter dt.27-02-06 sent by the complainants and without replying to the notice dt.15-05-06 and having invented a false cause issued letter dt.03-05-06 alleging that medical examination reveal elevated blood sugar. The acts of the opposite parties are illegal and arbitrary and not maintainable under law.


The 2nd opposite party issued a letter to the complainants dt.24-06-06 stating that on the failure of payment of required premium, the amount paid by the complainants was returned by the 1st opposite party vide DD No.585903 dt.27-04-06 for Rs.1,36,957/- and DD No.585903 dt.21-04-06 for Rs.44,565/-. This letter also reveals that the amount credited to their account. Having promised to issue policy on receipt of one time premium amount and subsequently claiming additional premium, amounts to deficiency of service. Hence, the complaint.

The 1st opposite party filed its version in the following manner:

In paras 1 to 3 it has been explained about commencement of its business after registration under Insurance Act, 1938 offering insurance coverage to individuals and groups of individuals including borrowers of housing loan from State Bank of Hyderabad. It is submitted that it is only where insurance company decides to accept the risk under the proposal and only when such acceptance is communicated to the Master Policy Holder by the insurance company that a contract of insurance on the life of the borrower comes into existence.

The complainant herein had submitted proposal for insurance dt.21-10-05 as the loan amount sought by the complainants was more than Rs.7.5 lakhs, the company requested the complainants to undergo medicals. Based on the medicals, the company vide its letter dt.26-10-05 asked the complainants to submit Health and Diabetes Questionnaire. On receipt of Diabetes questionnaire, the same were also referred to re-insurers Swiss Re. It is submitted that on careful observation and study of medical reports and questionnaires, the underwriters of the company decided to accept the proposal of the complainants with extra premium on account of elevated blood sugar. The company had also written to the complainants for obtaining their consent for levy of Health Extra vide its letter dt.23-11-05 and 01-12-05. However, the complainants herein had never communicated their acceptance to the company for levy of Health Extra and nor any extra premium was remitted by the complainants within 90 days.


The company had therefore refunded the initial premium remitted by the complainants vide its letter dt.29-04-06. Under these circumstances, the present complaint is frivolous and an abuse of process of law. Without prejudice to their rights they have denied the allegations made in the complaint. It is alleged that the complainant is not a consumer within the meaning of Consumer Protection Act, 1986 since they have not availed any service from SBI Life Insurance. Therefore, it is prayed to dismiss the complaint.

The 2nd opposite party also filed its version denying all the allegations made in the complaint, which also explained about the coverage of Super Suraksha scheme to the borrowers of house loan, proposal submitted by the complainants to the said scheme by remitting amount of Rs.1,81,522/- on 17-10-05 out of their account from the bank as one time premium and subsequent demand of 1st opposite party for payment of additional premium etc. Further it is stated that as the complainants did not give their consent to deduct the additional premium amount from their account, ultimately refunded amount of premium and 1st opposite party has given credit to their account after giving intimation by letter dt.26-06-06, the interest amount of Rs.25,773/- was also collected and given credit and the same was accepted by the complainants.


The credit entries are reflected in the account statement on 24-04-07. The reply registered notice issued to the complainants by this opposite party was served on them on 29-06-06. Thus there is no deficiency of service on their part. Therefore, it is prayed to dismiss the complaint.

Both parties have filed their respective affidavits in support of their claim. On behalf of complainant Ex.A1 to A8 are marked. On behalf of opposite parties Ex.B1 to B15 are marked.

Now the points for determination are that

1. Whether there is any deficiency of service on the part of opposite parties as alleged by the complainants?
2. Whether the complainants are entitled for compensation as claimed for?

POINT No.1

The facts are not much in dispute. Both the complainants are husband and wife and they are medical practitioners in Guntur town. They intended to construct a house at Sambasivapet, Guntur and applied for house loan with the 2nd opposite party for a sum of Rs.20,00,000/- and the loan was sanctioned. The 2nd opposite party has insisted for coverage of insurance scheme of SUPER SURAKSHA for the loan obtained by the complainants. Both the complainants have agreed for the same and underwent medical examinations. It is their case that the 2nd opposite party in consultation with the 1st opposite party which is an insurer demanded one time premium amount of Rs.1,81,522/- promising to provide SBI life insurance coverage under Super Suraksha scheme. Accordingly, the complainants have agreed and authorized the 2nd opposite party to debit the said premium out of their account and remit to 1st opposite party.


On giving such instructions, the 2nd opposite party has debited an amount of Rs.1,81,522/- on 17-10-05 and remitted the same to 1st opposite party. While things stood thus, the complainants have received two letters dt.23-11-05 and 01-12-05 demanding additional payment of Rs.56,158/- and Rs.84,281/- respectively towards additional premium for coverage of said insurance policy, for which the complainants herein have protested. The facts mentioned so far are no way in dispute and born out by the record both orally and documentary evidence.

The case of the complainants is that having sent their proposal and one time premium amount as demanded by the 1st opposite party, it is under obligation to issue the policy coverage since they have completed all the formalities and the demand of additional premium amount on lame excuse of elevated blood sugar is nothing but breach of promise as such it amounted to deficiency of service. It is vehemently argued on behalf of complainants that the 1st opposite party is bound to accept their proposal and issue policy as assured earlier. But the 1st opposite party alleged to have unilaterally taken a decision in sending the premium amount back to the 2nd opposite party, which is unwarranted and the 2nd opposite party in its turn gave credit in their account as there was no alternative. Thus it is alleged that both the opposite parties have acted illegally and arbitrary and caused any amount of mental agony and harassment to the complainants.

The complainants rely upon Ex.A1 and A2 to show demand of additional premium amount by 1st opposite party on 23-11-05 and on 01-12-05. Ex.A3 is the copy of statement of account maintained by the 2nd opposite party pertaining to the complainants account. Ex.A4 is the letter dt.27-02-06 by the complainants to both the opposite parties stating that one time premium amount was remitted to cover under Super Suraksha Group Insurance Scheme and the demand of additional is not warranted since acceptance of one time premium along with proposal form is sufficient for issue of policy. It is their allegation that the insurance company did not give any reply to this letter. But the complainants did not enclose any postal receipt or copy of acknowledgement to show the service of this letter on the opposite parties.


Ex.A5 is another letter dt.03-05-06 addressed by 1st opposite party to 2nd opposite party for arrangement to send additional premium within a period of seven days failing which it is assumed that customers are not interested in paying extra premium and premium remitted would be refunded. Ex.A6 is the legal notice which was got issued by the complainants on 15-05-06 reiterating the same facts and protesting actions of opposite parties in not issuing policy and demanding additional premium.

The document vide Ex.B1 letter dt.26-10-05 sent by 1st opposite party shows that they have received proposal accompanied by medical reports for providing insurance cover to the customers of home loan account. This letter is addressed to the 2nd opposite party with a request to fill up the questionnaire under the head Quest & Diabetes Quest and send the same along with old medical reports. Ex.B2 and B3 are the same letters from 1st opposite party demanding extra premium as per the decision of their underwriter. Ex.B4 is the letter dt.29-04-06 from 1st opposite party refunding premium remitted earlier because of shortage of required premium. Ex.B8 is health questionnaire filled up by 1st complainant i.e., Vijaya Saradhi. In this he has declared that he is not suffering from any disease including diabetes mellitus. There is separate form of diabetes questionnaire. It is stated by him that there is diet control, no tablets, no insulin and not hospitalized for treatment of diabetes at any time. Ex.B10 and B11 and other records show that they underwent medical tests in Padmavathy Poly Clinic & Diagnostic Center, Guntur.


Ex.B11 reveals that the 2nd complainant also filled up the health questionnaire in the same manner like 1st complainant on 02-11-05. She has clearly stated in the diabetic questionnaire that she is non-diabetic, which is evident from Ex.B12. The clinical tests appear to have been done in the month of November, 2005 itself. They have given good health declaration stating that they do not have any physical defect or deformity and perform their individual activities on their own and never suffered any medical illness.


Ex.B3 is the letter dt.03-05-06 got issued by 1st opposite party assigning reason in asking additional premium on account of elevated blood sugar. It appear that the 1st opposite party has received reports lately about elevated blood sugar for the complainant and as the risk is highly involved they demanded additional premium amount for issuing policy under Super Suraksha scheme. But the complainants protest for the same on the ground that absolutely there was no reason and the same was invented for the purpose of demanding additional premium.

It is impressed upon by the learned counsel for opposite party that the insurance company will look into all the aspects before issuing policy to customers and on full satisfaction only, it will go ahead with the proposal and issue policy under different schemes as per the guidelines setout and thereupon the administration come into force. Acceptance of premium would not amount to concluded contract. As the proposal sent by the complainants was still under consideration, as the policy coverage was to the tune of Rs.20,00,000/- and as the complainants are suffering from diabetes mellitus with elevated blood sugar, the 1st opposite party demanded additional premium, the same was not obliged as such the service are not hired and no deficiency of service is caused. It is also impressed upon the Forum that mere acceptance of premium along with proposal form does not amount to acceptance of policy. In respect of all these contentions, the learned counsel for opposite party relied upon the following decisions:

1992 (2) CPR 715 (NC), LIC of India and another Vs. Smt.Mumtaz Begum, in which the National Commission, New Delhi observed setting aside the order of District Forum and State Commission in passing orders for payment of insurance amount to nominee of life assured in view of the fact that proposal neither accepted by LIC prior to the date of death of proposed nor any policy issued. Additional premium demanded on account of disparity in date of birth mentioned in proposal with that shown in school leaving certificate.

The principle laid down above is quite applicable to the instant case as proposal was not accepted and policy was not issued.

He also relied upon I (2006) CPJ 458, LIC of India & others Vs. Roshini Devi, in which the Haryana State Commission, Chandigarh observed that insurance company repudiated the claim as the proposer died before acceptance of proposal by holding that no concluded contract of insurance between the parties.

In AIR 1984 SC 1014, LIC of India Vs. Raja Vasireddy Komalavalli Kamba & Others, in which the Supreme Court of India held that a contract concludes only when the party to whom an offer has been made accepts it unconditionally and communicates his acceptance to the person making offer. Similarly the mere receipts and retention of premium until after the death of the applicant or mere preparation of the policy document is not acceptance and does not give rise to contract. Acceptance must be signified by some act or acts agreed on by the parties or from which the law raises a presumption of acceptance.



Above referred decisions are quite applicable to the facts and circumstances of the case in all force. Therefore, we are of the view that as the proposal was still under consideration with the 1st opposite party along with the premium initially paid and as the additional premium demanded was not remitted, the 1st opposite party could not issue the policy.


The demand for additional premium is for elevated blood sugar, for which there is no contrary evidence on the behalf of complainant. Therefore, the complainants cannot demand the opposite parties for issuing policy. Any contract concludes when it is agreed between the parties mutually and acceptable to the general guidelines of that particular scheme. As the contract is not completed since policy was not issued, it is deemed that the complainants have not engaged the services of opposite parties. Therefore, no deficiency of service is expected to cause. Thus we find no merits in the case. Accordingly, the complaint is dismissed without costs.

In the result, the complaint is dismissed. Each party shall bear their own costs.

Maddi Narayana Rao, S/o. Rama Rao, R/o. Door No. 26-16-5, Gandhinagar, Vijayawada, Krishna District.



….. Complainant.



Vs



1. Trackon Couriers Private Limited, represented by its Branch Manager, Branch Office, Ramarao Street, Gandhinagar,

Vijayawada -3. Krishna District.



2. The Branch Manager, State Bank of India, Gandhinagar Branch, Gandhinagar, Vijayawada – 3.



….. Opposite Parties.





ORDER






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



That the complainant purchased two D.Ds bearing No.106962817 and 212755 for Rs.15,000/- and 25,500/- respectively on 21.08.2008 and 22.08.2008 in State Bank of India, Gandhinagar Branch, Vijayawada payable at New Delhi to one M. Suresh and there after he send those D.Ds through courier (1st opposite party) and there after he enquired Mr. Suresh who has to receive but he did not receive there after he approached and requested State Bank of India, Karolbagh Branch to stop payment and also approached the 2nd opposite party to stop payment etc., but of no avail and in the mean time the complainant approached 1st opposite party in Vijayawada and Hyderabad but of no avail so, the complainant got issued legal notice to the opposite parties on 22.10.2008 and they received, the opposite party No.1 kept mum and the opposite party No.2 got replied with false and untenable allegations hence, the complaint.



2. Though the 1st opposite party appeared before this Forum but it neither filed version nor affidavit. The 2nd opposite party filed version and also affidavit. The averments of the version of the 2nd opposite party in brief are as follows:



That the complainant before exhausting his remedies that of Banking Ombudsman as per Arbitration Act, 1996 approached this Forum and so the complainant is a pre-mature one and there was no deficiency in service what so ever on the part of this opposite party and that this opposite party is nothing to do with the sending of the D.Ds purchased from this opposite party and it is for the complainant to see that those D.Ds has to reach the destiny and further, the complainant has to prove that he had sent those D.Ds through the 1st opposite party.


In fact the complainant approached this opposite party on 19.09.2008 for duplicate drafts that to after writing a letter to Karool Bagh Branch, New Delhi and then asked for stop payment are not true and correct and that the complainant approached this opposite party on 04.09.2008 for stop payment of drafts and to credit the same into his account on that he was advised to furnish an indemnity bond to accede his request for cancellation of drafts and for payment further, once drafts are issued for consideration and were delivered to the payee the payment cannot be stopped.


The complainant did not execute the indemnity bond. Again he approached this opposite party on 19.09.2008 and by the time this opposite party addressed a letter to Karool Bagh Branch and came to know that those D.Ds were realized as such there is no scope for issuance of duplicate D.Ds etc., and there was no deficiency in service on the part of this opposite party and the complaint against this opposite party is speculative one and that there is no cause of action to file this complaint against this opposite party and prayed to dismiss the complaint with costs.



3. On behalf of the complainant the complainant himself filed an affidavit and got marked Exs.A1 to A7. On behalf of the 1st opposite party no affidavit and on behalf of the 2nd opposite party Sri P. Krishna Murthy filed an affidavit and no documents are marked.



4. Heard both the counsel.



5. Now the point that arises for consideration in this complaint are:



I) Whether there was deficiency in service on the part of the 1st opposite party or in 2nd opposite party?



II) To what relief the complainant is entitled?

6. Point No.1: As could be seen from the material on hand the version of the complainant is that he purchased two D.Ds for Rs.15,000/- and 25,500/- respectively on 21.08.2008 and 22.08.2008 from the 2nd opposite party in fact, proof was filed Ex.A2. Further in view of Ex.A3 letter and in view of the contentions of the version of the 2nd opposite party admitted the issuing of D.Ds, but the other recitals of the version discloses that once issuance of D.Ds means they have no liability, why because, the complainant has to keep xerox copies of D.Ds while sending the D.Ds to the concerned person at a long distance that to the D.Ds are not crossed or account payee D.Ds so here in this case the complainant has committed a mistake for non-keeping of xerox copies and non crossing D.Ds further the D.Ds were purchased on 21.08.2008 and 22.08.2008 and were sent to a distance i.e., New Delhi by name Suresh on 22.08.2008 as per Ex.A1.


There is no dispute that he purchased two D.Ds in the name of one Suresh of New Delhi but as per Ex.A3 he addressed a letter to the 2nd opposite party but no date was mentioned. As per version and affidavit of the 2nd opposite party the complainant approached on 19.09.2008 i.e., after lapse of more than 20 days and prior to that the complainant approached 2nd opposite party on 04.09.2008 for stop payment on that the 2nd opposite party advised the complainant for remitting the same to give indemnity bond and again they enquired about the D.Ds with its counter part at Karol Bagh, New Delhi and came to know that those D.Ds were already realized as such where is the scope to attribute deficiency in service to the 2nd opposite party no scope. Of course, the complainant addressed another letter on 19.09.2008 but it is too late since the cover was send on 22.08.2008 it may reach New Delhi within two or three days or at least within one week so, there is no scope for the opposite party to issue any notice to stop payment etc.,


but yet the 2nd opposite party enquired and came to know that D.Ds were encashed as such there is no scope to attribute deficiency in service to the 2nd opposite party but however there is no doubt that the complainant booked the cover through 1st opposite party on 22.08.2008 but the cover has not reached the destination so, it is for the complainant to pursue with the 1st opposite party and of course he stated in his complaint and in the affidavit that he persuaded the matter but of no avail and he got issued legal notice to the 1st opposite party i.e., to say Office at Begumpet, Hyderabad but of no avail, and no reply even but the 2nd opposite party got replied with facts that was not denied by the complainant. Further, if any deficiency or otherwise arises between the consumer and the bank the consumer is at liberty to approach the Banking Ombudsman but in this case the complainant has not approached the Banking Ombudsman.


So it is a matter to be considered, further no proof filed from Suresh at New Delhi that he has not received the cover and D.Ds and further there is no cogent proof that he contacted with Suresh in written and further there is no proof that he addressed a letter to State Bank of India, Karoalbagh Branch, New Delhi so, the latches are also on the part of the complainant but much more on the part of the 1st opposite party as the 1st opposite party failed to return the proof of service to the complainant which is essential and it is the duty of the 1st opposite party, since the 1st opposite party failed in its duty to comply and also failed to rebut the evidence of the complainant so it amounts to deficiency in service on the part of the 1st opposite party and accordingly this point is answered.



7. Point No.2: In the result, the complaint is allowed and the 1st opposite party is hereby directed to indemnify the loss of the complainant within one month i.e., Rs.40,500/- (Rupees Forty Thousand and Five Hundred) only and do pay Rs.2,000/- (Rupees two thousand) only towards costs. The complaint against 2nd opposite party is dismissed without costs. Rest of the claim if any claimed by the complainant is rejected.

Akhil uppal son of Shri Madan Lal Uppal, resident of village and PO Bhawarna, Tehsil Palampur, District Kangra (HP)



Complainant

Versus



Chief Manager, State Bank of India, Main Branch, Palampur, Tehsil Palampur, District Kangra (HP)

Opposite party








ORDER/



It is alleged that one Sh. V.K. Thakur resident of House no.418/3, Jail Road, Mandi, (HP) had purchased certain goods from the complainant Sh. Akhil Uppal, who is having business of spare parts at “Maranda” and Sh. Thakur had issued a cheque No.507576 dated 19.3.2007 for Rs.5800/- drawn on ICICI bank Limited, Branch at Mandi Seri- Bazar Mandi from his saving account No.045101500381 to the complainant against the payment of purchased goods. Since, the complainant was having his account with the opposite party, so he had deposited the aforesaid cheque for collection with the opposite party. It is alleged that opposite party No.1 had collected the cheque and credited the amount to the account of the complainant. It is also alleged that the officials of the opposite party had met him after a period of one year in March 2008 and under threat and pressure, had taken the amount of Rs.5800/- from him by narrating that the official cheque was dishonoured by the ICICI bank on the ground that drawer was having in-sufficient funds in his account.


The aforesaid, dishonoured cheque was received by the opposite party on 25.4.2007. It is alleged by the complainant that the opposite party in it’s letter has falsely stated a fact that it had intimated/mailed a letter to him about the alleged factum of dishonour of the aforesaid cheque but the said letter was received back un-delivered by the opposite party due to wrong address of the complainant. It is alleged that the opposite party just to cover it’s mis-deeds has concocted a false story and had recovered, the aforesaid amount of Rs.5800/- from him under threat/pressure. It is alleged that had the opposite party informed him well in time about the dishonour of the aforesaid cheque, he would have filed a complaint against the cheque issuing authority under Negotiable Instruments Act, within the limitation period.


The complainant has alleged that he is surprised to know how the opposite party had credited the amount of cheque in his account, if it was dishonoured. The complainant has alleged that he had served a notice dated 22.4.08 to the opposite party but no reply was received by him from the opposite party. It is alleged that the opposite party has caused financial loss to him, apart from harassment, mental agony, stress and strain. Hence, this complaint for recovery of Rs.5800/- alongwith interest @ 12% per annum w.e.f. April 2007 till payment apart from damages and litigation charges.

2. The opposite party has contested this complaint by filing its reply on 13.1.2009 by alleging that when the complainant has presented this cheque in their branch, they had purchased the amount of this cheque, and had credited the amount of the cheque in the account of the complainant immediately. It is also alleged by the opposite party that they are extending the facility for their customers to afford immediate credit of their stationed cheques upto and inclusive of Rs.20000/- tendered for-collection by the customer for satisfactorily conducted accounts as per the RBI Rules. It is alleged by the opposite party that they had informed vide letter dated 3.5.07 to the complainant at his recorded address available in their office about the dishonour of the aforesaid cheque, but the letter was received back un-delivered. It is also contended by the opposite party that they had located the complainant after great efforts, and intimated him about the non payment of the cheque.


It is also contended that the opposite party had lot of satisfactory saving account in it’s credit. The complainant had deposited the amount of the cheque with them on 29.3.2008 on their persuasion. The complainant had changed his place of living, without intimating his new address to them. They have denied that they have ever given any threat or pressure to the complainant to make the payment of the cheque. They have contended that since the amount of the cheque was credited to the account of the complainant on purchase of the cheque, but subsequently, the cheque was found dishonoured due to in-sufficient funds of the drawer in his account, so they had every right to recover this amount from the complainant.

3. We have heard the arguments of the learned counsel for the parties and we have also carefully gone through the record of this file. Annexure C-1 is the photo copy of cheque dated 19.3.2007, annexure C3 is the copy of letter written by the opposite party to the complainant in the month of April 2008, and Annexure C2 is the carbon copy of notice dated 12.4.2008 issued by the learned counsel of the complainant. Ex.CW1 is the affidavit of the complainant and Ex.OPW1 is the affidavit of Sh. Gulshan K.Chitra, Manager of the opposite party.

4. It is admitted fact that the cheque issued by Sh. V.K. Thakur to the tune of Rs.5800/- was presented by the complainant with the opposite party in the year 2007, and the amount of the cheque was immediately credited to the account of the complainant. It is clear that the aforesaid cheque was purchased by the opposite party on behalf of the complainant, and the amount was credited to the account of the complainant immediately, but subsequently the cheque was dishonoured by the ICICI bank on the ground that drawer Sh. V.K. Thakur was not having sufficient amount in his account. Naturally, the opposite party was entitled to recover this amount from the complainant. Since they succeeded to recover the amount of the cheque from the complainant in the month of March 2008, on their- persuasion, so, there is no fault and deficiency in the services of the opposite party and they are not at fault, at all. The alleged delay in sending the intimation to the complainant by the opposite party about the dishonour of the cheque, was due to the fact that the new correct address of the complainant was not available with the opposite party.

5. Since, there seems to be no deficiency in service on the part of the opposite party, hence this complaint is not maintainable and the same is dismissed. The parties are left to bear their own-costs. The copy of this order be sent to both the parties, free of costs, and the file after it’s due completion be consigned to the record-room.

1. K. Suneetha,
2. K. Naga Raju,
3. K. Phanendra,

2 and 3 are being minors rep.by

their mother and natural guardian

Kothamasu Suneetha (1st Complainant)

W/o. Late Srinivasa Rao,

all R/o. 2/3 Yadava Street,

Old Guntur, Guntur. … Complainant

And



State Bank of India,

Rep. by its Branch Manager,

Kakumanu Village and Mandal,

Guntur District. … Opposite Party







O R D E R


This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainants seeking directions from the opposite party for return of gold ornaments weighing 188.1 gms pledged by late Kothamasu Srinivasa Rao and to pay compensation of Rs.5,000/- for mental agony and costs of litigation.

The case of the complainants in brief is that the husband of the 1st complainant namely Kothamasu Srinivasa Rao during his lifetime had availed agricultural gold loan vide A/c.No.34/1237 to a tune of Rs.90,000/- by pledging the gold ornaments of the 1st complainant weighing about 188.1 gms from SBI., Kakumanu branch (opposite party herein). Late Kothamasu Srinivasa Rao died in an accident intestate leaving behind the complainants 1 to 3 as his legal heirs.


After his death the 1st complainant enquired about the pledging of gold ornaments in the bank of opposite party but they failed to furnish necessary information thereafter she got issued a legal notice on 12-4-07 and also personally visited the bank after submission of necessary documents i.e., family members certificate issued by Tahsildar, Kakumanu (M), Guntur district, copy of FIR and post mortem report. The 1st complainant also came to know that her late husband has repaid the said gold loan to the maximum extent. In the reply notice dated 05-05-07, the bank has informed about availment of gold loan of Rs.90,000/- and the personal loan of Rs.25,000/- but, not revealed any information about payment of instalments by the deceased. The 1st complainant also came to know that her parents in law influencing the Manager of the Bank for not disclosing any information and for returning gold ornaments.

The Government of India recently declared interest remission of agricultural gold loan and 1st complainant also enquired about the same. But there was no proper response from the opposite party. Therefore, she approached this Forum for necessary relief. She is also ready to discharge the balance debt amount if any. The complainants being the legal heirs of late Kothamasu Srinivasa Rao and as pledged gold ornaments belongs to 1st complainant, they have right to claim for the same. Recently the mother of late Kothamasu Srinivasa Rao also died, as such there are no other legal heirs than the complainants herein. Hence, the complaint.

The opposite party has filed its version in the following manner. This Forum has no jurisdiction to entertain the complaint. The averments made in the complaint are hereby denied and the complainants are called upon to prove them strictly. It is submitted that one Kothamasu Srinivasa Rao had availed personal loan of RS.25,000/- on 08-09-06 and also an agricultural gold loan of Rs.90,000/- on 22-09-06 by pledging gold ornaments. Later he died in a road accident without discharging the said loan amounts.

Further, it is submitted that waiver of agricultural debts scheme was declared by the Central Government is applicable to the agricultural gold loan availed by the deceased Kothamasu Srinivasa Rao only to some extent. As he possessed more than 5 acres of land, he is eligible to get benefit of Rs.20,000/- towards waiver of agricultural debt, provided the entire balance due is to be discharged by end of June, 2009 as per the schedule mentioned in the waiver scheme. The said fact is also informed to the 1st complainant.

While it is so, the complainants who are the legal heirs of the deceased are insisting the opposite party bank for return of gold ornaments without choosing to discharge the gold loan incurred by the deceased Kothamasu Srinivasa Rao. As per the provision of Hindu Succession Act, the mother of the deceased also is legal heir of her deceased son. Even as per the averments made in the complaint the mother of the deceased died recently, she died leaving behind her husband and two daughters as her legal heirs. Suppressing these facts the complainants have resorted to file this complaint.

It is submitted that the opposite party has come to know that there are disputes in between the parents of the deceased and the complainants and they have filed cases against each other. In view of disputes in between them it is not permissible for this opposite party to return gold ornaments to the complainants even after discharge of the debts in absence of succession certificate.

Lastly, it is submitted that interest remission is not applicable to the gold loan incurred by the deceased and the same was also informed to the complainants in their reply notice. Therefore, it is prayed to dismiss the complaint with exemplary costs.

The 1st complainant K. Suneetha has filed her affidavit while explaining the documents on record. Exs.A-1 to A-11 are marked in support of her claim. She has also filed additional affidavit on 27-08-09 stating that the gold ornaments pledged by her husband are her absolute sridhana property which had purchased on 2-4-05 vide cash bill No.2002 to the extent of 206.550 gms for Rs.130,645/- she had also enclosed copy of the bill which is marked as Ex.A-11.

The opposite party through its Manager P. Venkatesh filed its affidavit in respect of their claim while marking documents vide Exs.B-1 and B-2. Ex.B-1 is the Certified copy of the Statement of Account No.01660/115035 (personal loan) of the deceased K. Srinivasa Rao. Ex.B-2 is the Certified copy of the Statement of Account No.01571/025050 (Agricultural gold loan) of the deceased K. Srinivasa Rao.



Now the points for determination are that,

1. Whether the opposite party bank has committed deficiency of service in not returning the gold ornaments pledged by late K. Srinivasa Rao while availing agricultural gold loan during his lifetime?

2. Whether the complainants are entitled for return of gold ornaments from the opposite party bank in the circumstances explained by them?

3. To what relief?



POINTS 1 TO 3:- The dispute is not much in between the parties except for return of gold ornaments pledged by late husband of the 1st complainant namely K. Srinivasa Rao. There is no dispute that during his lifetime late K. Srinivasa Rao had availed both personal loan of Rs.25,000/- vide Ex.B-1 and agricultural gold loan of Rs.90,000/- vide Ex.B-2. It appears that due to unfortunate death of the deceased K. Srinivasa Rao in a road accident in his early age, some misunderstandings arose in between the 1st complainant and her parents in law. They are residents of Kakumanu village. The 1st complainant as seen from the record vide Ex.A-3 the certificate issued by the Tahsildar, Kakumanu is aged about 25 years and having two sons aged about 8 and 7 years respectively. After the death of her husband the 1st complainant shifted her family from her in law’s house Kakumanu to Guntur. This fact is averred in the complaint itself. The copy of FIR Ex.A-4, copy of Post mortem report vide Ex.A-5, Death certificate vide Ex.A-2 certainly reveals the death of the deceased K. Srinivasa Rao in a road accident.


Soon thereafter, she got issued a legal notice to her in laws and other relatives including the Branch Manager of State Bank of India at Kakumanu, Jillellamudi and LIC of India, branch office at Bapatla which is evident from Ex.A-6 she has alleged that her parents have gifted one acre of land towards pasupukumkuma at the time of marriage which is situated in lingamguntlapalem and that her father in law wanted to sell away the same to purchase a house in Kakumanu village. She has also alleged the indifference attitude of her parents in law and other relatives towards them after the death of the deceased. Further alleged that the cash deposits held in the above banks belongs to joint family and her husband is also having share in them. She made an allegation against the Branch Managers of the banks that they are under influence of her parents in law as such they are not co-operating in taking back of gold ornaments. A reply notice dated 5-5-07 was got issued by the opposite party bank wahich is on record Ex.A-7.


In this reply it is mentioned that late Srinivasa Rao had availed two loans as referred in their version and that waiver benefit is not applicable to the gold loan amount availed by Srinivasa Rao. The bank also addressed a separate letter dated 14-2-09 (after filing this case) in the name of 1st complainant and her father in law namely K. Rama Rao for clearance of the gold loan account by availing eligibility of 25% of remission otherwise it would opt for auction of the ornaments. The 1st complainant protested for sending notice by the bank to her father in law as the pledged ornaments absolutely belongs to her. This is evident from Ex.A-9 which is dated 19-02-09.

While things stood thus, during pendency of proceedings in the above case, it is represented by the learned counsel for the complainant that the 1st complainant had expressed her readiness to discharge the balance gold loan amount, but on the influence of her father in law the Manger of the Bank is not co-operating and insisting upon the signature of father in law and further the bank is contemplating to hold an auction of the gold ornaments. This representation was made on 5-5-09. At that juncture the Forum ordered not to hold auction of the gold ornaments and receive the debt amount from the complainants if they come forward.


However, on making similar representations on 26-6-09 the learned advocate for the opposite party has expressed no objection for receipt of debt amount while giving remission in the loan as per the scheme, if they come forward to pay the amount before the end of June. But with regard to return of gold ornaments to the complainants he insisted upon production of succession certificate. Accordingly it appears the complainants have paid the balance debt amount in the bank while availing the remission. This is also admitted fact. Therefore, now the matter confines to the question whether succession certificate is necessary for return of gold ornaments to the 1st complainant.

The complainants have obtained legal heir certificate on 7-6-07 from Tahsildar vide Ex.A-3 showing the complainants as legal heirs. The certificate is given after making due enquiry by the revenue officials. It is also stated therein that the 1st complainant is the proper person to receive the pledged articles and also FD amounts lying in various banks. Of course, a note is made thereon that this certificate will not serve as succession certificate. There is no dispute that the mother of the deceased who is one of the class-I heir as per the Succession Act also died before filing the complaint. The bank alleges that old lady survived by other legal heirs who are not brought on record but there is no documentary proof in that regard. Even otherwise that is different issue altogether which would fall within the purview of Civil Court.


The 1st complainant claiming absolute right over the pledged ornaments as her sridhana property and also produced sale voucher dated 02-04-05 vide Ex.A-11. She had purchased gold ornaments from Swaraj jewellery, Guntur. The details of ornaments purchased and their weight is also mentioned therein with price amount. There is absolutely no protest in whatsoever in nature from father in law of the 1st complainant either by way of reply notice or personal appearance in these proceedings before the Forum. Thus the evidence on record and circumstances of the case do show prima facie that the pledged ornaments in the bank belongs to 1st complainant.


It is also not in dispute that the balance debt amount under this account has been discharged by her. The learned counsel for the complainant also submits that the bank has given notice to the 1st complainant demanding for payment of debt amount and on receipt of the same onceagain directing them to produce succession certificate not satisfying with the certificate on record issued by Tahsildar, and this amounts to harassment but nothing else and also it involves lot of expenditure, which they cannot afford to do so.

He also tried to impress upon the Forum that the complainants are not claiming the debt amounts of the deceased due by the 3rd parties or securities and debentures as such succession certificate is not required that too in a case of this nature where the debt amount due by her husband has been discharged and that she has every right to claim her own property.

The learned counsel for the opposite party relied upon a decision reported in 2006 (1) ALD 382 K. Srinivasu vs. A.P. Co-operative Bank Limited, Hyderabad. In that case the complainants claimed release of FDR’s amounts pertaining to the deceased who made deposits, the complainants are the legal heirs of the deceased. They have produced legal heir certificate issued by MRO., the bank has insisted upon succession certificate.

In the aforesaid circumstances, the Hon’ble High Court of Andhra Pradesh has observed in para 6 as follows,

“It is for the respondent bank to take a decision whether to act on the legal heir certificate issued by the Mandal Revenue Officer, Saroornagar, or to insist upon production of a Succession certificate or to take any another form of security from the petitioner for releasing the amounts covered by the fixed deposits of his parents in his favour, but this Court cannot interfere with the discretion exercised by the respondent, for its own safety.


As rightly contended by the learned counsel for the respondent since the petitioner did not produce any document to show that respondent insisted on his production of a succession certificate, petitioner is at liberty to make an application to the respondent for payment of the amount covered under the fixed deposit made by his parents to him basing on the Legal Heir Certificate issued by the Mandal Revenue Officer, Saroornagar. The respondent can consider that application of the petitioner and communicate its decision to the petitioner, but no relief can be granted by this Court to the petitioner on this petition”.

As seen from the above observation the High Court did not interfere in the matter and left to the discretion of the Bank Manager itself. Therefore, the aforesaid decision do not place any rider in returning the gold ornaments to the 1st complainant as the debt amount was discharged by her. She is entitled for return of the pledged ornaments.


As an abundant caution the bank may take an undertaking from the 1st complainant that in case if necessity arises in the event of a final order by a competent civil court that the pledged property belong to joint family of K. Srinivasa Rao and they got to be shared by all the joint family members, she would return the same or its cost. The 1st complainant also shall co-operate to that effect in giving that undertaking. With the aforesaid observations we dispose of this complaint in the following terms:

1. The 1st complainant is entitled for return of the gold ornaments pledged by her husband with the opposite party bank while availing agricultural gold loan amount. Accordingly, the opposite party bank shall return the pledged ornaments to the 1st complainant.

2. However, as an abundant caution and safety measure, we hereby direct the 1st complainant to give an undertaking in favour of the bank to the effect that in case necessity arise in the event of a final order or direction by a competent Civil Court holding that the above referred property belongs to joint family, she is ready to reproduce the same and keep at the disposal of the bank or alternatively its cost as noted in the sale voucher Ex.A-11. On receipt of such undertaking the bank shall forthwith return the ornaments to the 1st complainant.

3. In the circumstances of the case facts, each party shall bear their own costs.

Kinnera Divija,

W/o. K.Nagaraju,

Hindu, aged 42 years,

Sudesh Acquatech,

20-2-674, Maruthi Nagar, Korlagunta,

Tirupati. … Complainant



And



1. Sky Pack System,

by its authorized signatory,

B-7, Muthuswamy Street,

Vangaram Road,

Athipet,

Ambathur,

Chennai – 600 058.



2. State Bank of India,

By its Branch Manager,

Korlagunta,

Tirupati. … Opposite parties.





ORDER





This complaint is filed under Sections- 12 and 14 of Consumer Protection Act 1986, to pass an order directing the opposite party No.1 to refund the amount of Rs.9,00,000/- with bank rate of interest from 23.07.2007, to pay Rs.1,00,000/- towards compensation for causing harassment and hardship and to pay Rs.2,000/- towards litigation expenses to the complainant.

2. The averments of the complaint in brief are :- The complainant, who is an unemployed women in order to have source of livelihood, she wanted to install stainless steel plant and lab equipments as per ISI standard. The complainant in that connection obtained quotation from opposite party No.1 for Rs.9,00,000/- on 20.02.2007 and approached opposite party No.2 for financial assistance. The complainant, who is having S.B.A/c.No.30210049932 with opposite party No.2 raised loan for Rs.9,00,000/- on 23.07.2007.


The opposite party No.2 forwarded draft for Rs.9,00,000/- on behalf of complainant to opposite party No.1 towards full payment of R.O.system along with accessories and requested to dispatch the machinery to the complainant within 7 days. The opposite party No.1 acknowledged the receipt of the demand draft. The opposite party No.1, having received full consideration towards cost of the machinery failed to dispatch its obligation in supplying the unit to the complainant, which amounts to not only deficiency in service but also unfair trade practice. Frustrated by their inaction, the complainant got issued legal notice to the opposite party No.1 on 21.04.2008 calling upon to dispatch the machinery or in the alternative to refund the amount.


The opposite party No.1 though received the notice on 24.04.2008 neither supplied the machinery nor refunded the amount. As a last resort the complainant sent a telegram to opposite party No.1 on 25.05.2009 to expedite the dispatch of the machinery. This also became a futile exercise. The complainant suffered much at the hands of opposite party No.1. The complainant has not only put in loss of earnings but burdened to pay the loan amount with interest at 12% per annum to opposite party No.2. Hence the complaint.

3. The opposite parties, having received the notice, remained exparte.

4. In support of the averments made in the complaint, the complainant filed her affidavit and got marked Exs. A1 to A6. Ex.A1 is copy of letter dt:23.07.2007 addressed by opposite party No.2 to opposite party No.1 enclosing demand draft for Rs.9,00,000/-. Ex.A2 is office copy of legal notice dt:21.04.2008 got issued by the complainant to opposite party No.1. Ex.A3 is copy of letter dt:18.06.2008 addressed by the counsel for complainant to the Sub Post Master, West Post Office, Tirupati. Ex.A4 is letter dt:22.07.2008 of Superintendent, Post Office, Tirupati, to the advocate for complainant in reply to Ex.A3 letter. Ex.A5 is copy of telegram dt:25.05.2009 issued by the complainant to opposite party No.1. Ex.A6 is computer generated statement of loan account of complainant issued by opposite party No.2.

5. On behalf of the complainant written arguments were filed and we have heard the oral arguments of counsel for complainant.

6. On the basis of pleadings, the points that arise for determination are:-

1. Whether there is any deficiency in service on the part of opposite party No.1 towards the complainant?

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

7. Point No.1:- The averments of the complaint and Ex.A1 establish that the complainant in order to install stainless steel plant by purchasing the same from opposite party No.1 obtained loan of Rs.9,00,000/- from opposite party No.2 and opposite party No.2 sent demand draft No.842042 dt:23.07.2007 for Rs.9,00,000/- to opposite party No.1 towards the purchase price of R.O.system and other accessories, and opposite party No.1 received the demand draft on 26.07.2007. As the opposite party No.1 failed to send the machinery for nearly 9 months even after receipt of full payment, the complainant got issued Ex.A2 legal notice dt:21.04.2008 and the opposite party No.1 received the same on 24.04.2008 as seen from Exs.A3 and A4. The complainant issued telegram to opposite party No.1 on 25.05.2009 requesting to expedite dispatching of machinery. As there is no response from opposite party No.1, the complainant filed the complaint on 26.06.2009.

8. Ex.A1 shows that the opposite party No.1 issued quotation dt:20.02.2007 agreeing to supply R.O. systems and lab materials to the complainant. The opposite party No.1 received demand draft for Rs.9,00,000/- more than two years back. The act of opposite party No.1 in not supplying the R.O.system and other accessories even after receipt of cost price amounts to deficiency in service and unfair trade practice. Hence, we find that there is deficiency in service on the part of opposite party No.1 towards the complainant. This point is accordingly answered in favour of the complainant.

9.Point No.2:- In view of our finding on point No.1, the complainant is entitled for refund of the amount of Rs.9,00,000/- with interest from 26.07.2007. The averment in the complaint and Ex.A6 shows that the complainant is repaying the loan with interest at 12% per annum to opposite party No.2. The complainant is, therefore, entitled for interest at 12% on the amount of Rs.9,00,000/- from 26.07.2007, the date on which the opposite party No.1 received the demand draft. Having agreed to supply R.O.system and other accessories, and received the full consideration of Rs.9,00,000/-, the opposite party No.1 failed to supply the machinery for more than two years. The opposite party No.1 caused harassment and hardship to the complainant by not supplying the machinery for more than two years even after receipt of full payment.


The complainant claimed compensation of Rs.1,00,000/-. In our view, it is a fit case to award separate amount towards compensation as the interest awarded on the amount of Rs.9,00,000/- which is payable by the complainant to the opposite party No.2. In our view, it is just and reasonable to award a sum of Rs.25,000/- towards compensation. The complainant is also entitled to Rs.2,000/- towards litigation expenses as claimed. Hence, we find that the complainant is entitled for refund of Rs.9,00,000/- with interest at 12% per annum from 26.07.2007, Rs.25,000/- towards compensation and Rs.2,000/- towards litigation expenses. This point is accordingly answered.

10. Point No.3:- In the result, the complaint is allowed in part directing the opposite party No.1 to refund Rs.9,00,000/- (Rupees nine lakhs only) with interest at 12% per annum from 26.07.2007, to pay Rs.25,000/- towards compensation and to pay Rs.2,000/- towards litigation expenses to the complainant within six weeks from the date of receipt of copy of order.

The complaint against opposite party No.2 is dismissed, but without costs.

R. Nashar,

s/o Raja Mohammed,

21, High School Street,

Pugazhur, Karur. … Complainant

-versus-

The Chief Manager,

State Bank of India,

13-16, Old Bye-pass Road,

Karur Main Branch, Karur. … Opposite Party





This complaint coming on 23rd day of July 2009 for final hearing before us in the presence of Thiru P. Thangavel, Counsel for Complainant and Thiru K. Kumaran, Counsel for Opposite Party and after hearing both sides and having stood over till this day for consideration, this Forum passed the following
ORDER



1. The crux of the complaint is : -

The complainant is working as skilled boiler operator in Tamil Nadu News Print Limited. He is having Savings Bank Account No. 1190045141 with the opposite party with ATM Card facility. The complainant came to know that without prior notice a sum of Rs.4,400/- was debited on 31.3.2006 in his account alleging that he has already withdrawn on 29.10.2005. The complainant states that no such withdrawal was made by him. The complainant took up the matter with the opposite party who has not so far re-credited the amount. Again without notice or prior intimation a sum of Rs.11,000/- was debited in his account on 04.11.2006. This time the opposite party told that he has withdrawn the amount on 05.08.2006. The complainant took up the matter with the opposite party who has not so far re-credited the amount. On 05.01.2006 the opposite party has deducted Rs. 3,570/- twice towards personal loan deduction and the same was re-credited on 07.01.2006.


On 15.02.2006, the opposite party has credited Rs.43,000/- to his account and subsequently cancelled it as wrong credit. On 5.8.2006 the opposite party again deducted Rs.3,570/- from his account, in fact the personal loan was already closed in the last week of July 2006. Realizing the error the said amount was credited on 8.8.2006. Again the opposite party has recovered Rs.11,000/- on 4.11.2006 from the complainant account. There are lot of errors like this committed by the opposite party which has caused lot of hardship. The complainant has alleged deficiency in service on the part of the opposite party and has lodged this complaint for return the amount of Rs.4,400/- and Rs.11,000/- with interest for compensation, costs etc.



2. The crux of the opposite party’s written version is:-

The opposite party contends that all the withdrawals were made by the complainant. The withdrawals of Rs.4,400/- and Rs. 11,000/- were in fact made by the complainant. As there was large un-reconciled entries lying in the books of the opposite party, ATM transaction reconciliation work was undertaken by the opposite party in order to locate and rectify the outstanding entries. The opposite party submits that the complainant has withdrawn a sum of Rs.5,000/- from TNPL ATM on 29.10.2005 and another withdrawal of Rs.1000/- through the same ATM just one minute before the said transaction. The said withdrawal of Rs.1,000/- was debited to complainant’s savings bank account, the other withdrawal Rs.5,000/- could not be debited in complainant’s account but parked in bank’s office system suspense account due to the technical fault and satellite link failure.


The opposite party submits that in order to rectify the same a sum of Rs.3,600/- was debited to the complainant’s account on 2.11.2005 to recover maximum account from the available credit balance of Rs.3627.61 in his account. The remaining amount of Rs.1,400/- which alone should have been recovered from him but was wrongly calculated as Rs.4,400/- by inadvertence. Hence, a sum of Rs.3,158/- has been return to the complainant during the pendency of this complaint and endorsement to the said effect has been made. There is no deficiency in service or unfair trade practice has been committed by the opposite party. Hence the complaint has to be dismissed.



3. The point for consideration is whether there is any deficiency in service on the part of the opposite party and if so to what relief the complainant is entitled for?



4. The complainant has filed proof affidavit along with 3 documents and the same has been marked as Exhibit A1 to A3. The opposite party has filed proof affidavit along with 5 documents and the same has been marked as Exhibit B1 to B5.



5. POINT : The complainant is working as skilled boiler operator in Tamil Nadu News Print Limited. He is having Savings Bank Account No. 1190045141 with the opposite party with ATM Card facility. The complainant came to know that without prior notice a sum of Rs.4,400/- was debited on 31.3.2006 in his account alleging that he has already withdrawn on 29.10.2005. The complainant states that no such withdrawal was made by him. The complainant took up the matter with the opposite party who has not so far re-credited the amount. Again without notice or prior intimation a sum of Rs.11,000/- was debited in his account on 04.11.2006.


This time the opposite party told that he has withdrawn the amount on 05.08.2006. The complainant took up the matter with the opposite party who has not so far re-credited the amount. The opposite party has strongly contended that all the withdrawals were made by the complainant himself since there was large un-reconciled entries lying in the books of the opposite party, ATM transaction reconciliation work was undertaken by the opposite party in order to locate and rectify the outstanding entries. In support and to establish the withdrawals made by the complainant, the opposite parties has produced and placed before us ATM Web Page Report and ATM Transaction Journal Log file as Exhibits B1 to B3.


With regard to the deduction of Rs.3,570/- twice on 05.01.2006 towards personal loan deduction by the opposite party from the complainant they have admitted that by inadvertence the same has been made and the opposite party has re-credited on 7.1.2006. On 15.2.2006 the opposite party has credited Rs.43,000/- to his account and subsequently cancelled it as wrong credit. The opposite party has admitted this as clerical error. On 5.8.2006 the opposite party again deducted Rs.3,570/- from complainant’s account, in fact the personal loan account was already closed in the last week of July 2006. Realising the error the said amount was credited on 8.8.2006. The opposite party submits that the complainant has withdrawn a sum of Rs.5000/- from TNPL ATM on 29/10/2005 and another withdrawal of Rs.1,000/- through the same ATM just one minute before the said transaction.


The said withdrawal of Rs.1,000/- was debited to complainant’s savings bank account the other withdrawal of Rs.5,000/- could not be debited in complainant’s account but parked in bank’s office system suspense account due to the technical fault and satellite link failure. The opposite party submits that in order to rectify the same a sum of Rs.3,600/- was debited to the complainant’s account on 2.11.2005 to recover maximum amount from the available credit balance of Rs.3627.61 in his account. The remaining amount of Rs.1,400/- which alone should have been recovered from him but was wrongly calculated as Rs.4,400/- by inadvertence. Hence, a sum of Rs.3,158/- has been return to the complainant during the pendency of this complaint and endorsement to the said effect has been made and recorded by this Forum.


There are lot of errors like these committed by the opposite party and the same has been admitted by the opposite party too. With regard to withdrawal of Rs.4,400/- and Rs.11,000/- the opposite party contends that the same has been withdrawn by the complainant and this can be evidenced from the Exhibits placed before us by the opposite party. The perusal of the exhibits clearly establishes the withdrawal was made from the complainant’s ATM card. The ATM card is in safe custody of the complainant and as such there is no question of withdrawal taking place without his knowledge or consent. In this regard, we are not inclined to accept the contention of the complainant that he has not at all withdrawn the said amount. As such no order for crediting the amount to the complainant’s account is made by this Forum.


However, this Forum is of the view that the opposite party ought to have reconcile their statements immediately without any delay and they are not supposed to debit the account of the customers months after the transactions takes place, which would definitely cause hardship to the complainant. In the present complaint before us the debits to the complainant’s account were made after two to three months after the alleged transaction has taken place. The complainant, in case, if he has given a cheque to third party on the belief that he is having sufficient balance in his account and if the opposite party on one fine morning debits the complainant’s account, the same would result in dishonour of the cheque issued by the complainant and he would be put in an embarrassing position. The opposite parties are not supposed to make debits according to their whims and fancies which may embarrass and hardship to the complainant.


With regard to the deficiency in service it can be seen that a wrong credit has been made to the complainant’s account for Rs.43,000/-, loan installment for personal loan was debited twice, installment for loan has been deducted after closure of the personal loan account, wrong debit was made in the complainant’s account and amount reimbursed during the pendency of the proceedings etc., clearly establishes the deficiency in service on the part of the opposite party. Such acts on the part of the opposite party would have definitely resulted in mental agony to the complainant. In view of the above discussions, we have no hesitation to hold the act of the opposite party as deficiency in service. Point is answered accordingly.



6. In the result, the complaint is allowed and the opposite party is directed to pay a sum of Rs.5,000/-(Rupees five thousand only) to the complainant as compensation for mental agony. Further, the opposite party is also directed to pay Rs. 1,500/- (Rupees one thousand and five hundred only) as cost of this complaint to the complainant. Time for payment one month from the date of this order.

Akhil uppal son of Shri Madan Lal Uppal, resident of village and PO Bhawarna, Tehsil Palampur, District Kangra (HP)



Complainant

Versus



Chief Manager, State Bank of India, Main Branch, Palampur, Tehsil Palampur, District Kangra (HP)

Opposite party



ORDER



It is alleged that one Sh. V.K. Thakur resident of House no.418/3, Jail Road, Mandi, (HP) had purchased certain goods from the complainant Sh. Akhil Uppal, who is having business of spare parts at “Maranda” and Sh. Thakur had issued a cheque No.507576 dated 19.3.2007 for Rs.5800/- drawn on ICICI bank Limited, Branch at Mandi Seri- Bazar Mandi from his saving account No.045101500381 to the complainant against the payment of purchased goods.


Since, the complainant was having his account with the opposite party, so he had deposited the aforesaid cheque for collection with the opposite party. It is alleged that opposite party No.1 had collected the cheque and credited the amount to the account of the complainant. It is also alleged that the officials of the opposite party had met him after a period of one year in March 2008 and under threat and pressure, had taken the amount of Rs.5800/- from him by narrating that the official cheque was dishonoured by the ICICI bank on the ground that drawer was having in-sufficient funds in his account.


The aforesaid, dishonoured cheque was received by the opposite party on 25.4.2007. It is alleged by the complainant that the opposite party in it’s letter has falsely stated a fact that it had intimated/mailed a letter to him about the alleged factum of dishonour of the aforesaid cheque but the said letter was received back un-delivered by the opposite party due to wrong address of the complainant.


It is alleged that the opposite party just to cover it’s mis-deeds has concocted a false story and had recovered, the aforesaid amount of Rs.5800/- from him under threat/pressure. It is alleged that had the opposite party informed him well in time about the dishonour of the aforesaid cheque, he would have filed a complaint against the cheque issuing authority under Negotiable Instruments Act, within the limitation period.


The complainant has alleged that he is surprised to know how the opposite party had credited the amount of cheque in his account, if it was dishonoured. The complainant has alleged that he had served a notice dated 22.4.08 to the opposite party but no reply was received by him from the opposite party. It is alleged that the opposite party has caused financial loss to him, apart from harassment, mental agony, stress and strain. Hence, this complaint for recovery of Rs.5800/- alongwith interest @ 12% per annum w.e.f. April 2007 till payment apart from damages and litigation charges.

2. The opposite party has contested this complaint by filing its reply on 13.1.2009 by alleging that when the complainant has presented this cheque in their branch, they had purchased the amount of this cheque, and had credited the amount of the cheque in the account of the complainant immediately.


It is also alleged by the opposite party that they are extending the facility for their customers to afford immediate credit of their stationed cheques upto and inclusive of Rs.20000/- tendered for-collection by the customer for satisfactorily conducted accounts as per the RBI Rules. It is alleged by the opposite party that they had informed vide letter dated 3.5.07 to the complainant at his recorded address available in their office about the dishonour of the aforesaid cheque, but the letter was received back un-delivered. It is also contended by the opposite party that they had located the complainant after great efforts, and intimated him about the non payment of the cheque. It is also contended that the opposite party had lot of satisfactory saving account in it’s credit.


The complainant had deposited the amount of the cheque with them on 29.3.2008 on their persuasion. The complainant had changed his place of living, without intimating his new address to them. They have denied that they have ever given any threat or pressure to the complainant to make the payment of the cheque. They have contended that since the amount of the cheque was credited to the account of the complainant on purchase of the cheque, but subsequently, the cheque was found dishonoured due to in-sufficient funds of the drawer in his account, so they had every right to recover this amount from the complainant.

3. We have heard the arguments of the learned counsel for the parties and we have also carefully gone through the record of this file. Annexure C-1 is the photo copy of cheque dated 19.3.2007, annexure C3 is the copy of letter written by the opposite party to the complainant in the month of April 2008, and Annexure C2 is the carbon copy of notice dated 12.4.2008 issued by the learned counsel of the complainant. Ex.CW1 is the affidavit of the complainant and Ex.OPW1 is the affidavit of Sh. Gulshan K.Chitra, Manager of the opposite party.

4. It is admitted fact that the cheque issued by Sh. V.K. Thakur to the tune of Rs.5800/- was presented by the complainant with the opposite party in the year 2007, and the amount of the cheque was immediately credited to the account of the complainant. It is clear that the aforesaid cheque was purchased by the opposite party on behalf of the complainant, and the amount was credited to the account of the complainant immediately, but subsequently the cheque was dishonoured by the ICICI bank on the ground that drawer Sh. V.K. Thakur was not having sufficient amount in his account. Naturally, the opposite party was entitled to recover this amount from the complainant.


Since they succeeded to recover the amount of the cheque from the complainant in the month of March 2008, on their- persuasion, so, there is no fault and deficiency in the services of the opposite party and they are not at fault, at all. The alleged delay in sending the intimation to the complainant by the opposite party about the dishonour of the cheque, was due to the fact that the new correct address of the complainant was not available with the opposite party.

5. Since, there seems to be no deficiency in service on the part of the opposite party, hence this complaint is not maintainable and the same is dismissed. The parties are left to bear their own-costs. The copy of this order be sent to both the parties, free of costs, and the file after it’s due completion be consigned to the record-room.

1. K. Suneetha,
2. K. Naga Raju,
3. K. Phanendra,

2 and 3 are being minors rep.by

their mother and natural guardian

Kothamasu Suneetha (1st Complainant)

W/o. Late Srinivasa Rao,

all R/o. 2/3 Yadava Street,

Old Guntur, Guntur. … Complainant

And



State Bank of India,

Rep. by its Branch Manager,

Kakumanu Village and Mandal,

Guntur District. … Opposite Party






O R D E R



This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainants seeking directions from the opposite party for return of gold ornaments weighing 188.1 gms pledged by late Kothamasu Srinivasa Rao and to pay compensation of Rs.5,000/- for mental agony and costs of litigation.

The case of the complainants in brief is that the husband of the 1st complainant namely Kothamasu Srinivasa Rao during his lifetime had availed agricultural gold loan vide A/c.No.34/1237 to a tune of Rs.90,000/- by pledging the gold ornaments of the 1st complainant weighing about 188.1 gms from SBI., Kakumanu branch (opposite party herein). Late Kothamasu Srinivasa Rao died in an accident intestate leaving behind the complainants 1 to 3 as his legal heirs. After his death the 1st complainant enquired about the pledging of gold ornaments in the bank of opposite party but they failed to furnish necessary information thereafter she got issued a legal notice on 12-4-07 and also personally visited the bank after submission of necessary documents i.e., family members certificate issued by Tahsildar, Kakumanu (M), Guntur district, copy of FIR and post mortem report.


The 1st complainant also came to know that her late husband has repaid the said gold loan to the maximum extent. In the reply notice dated 05-05-07, the bank has informed about availment of gold loan of Rs.90,000/- and the personal loan of Rs.25,000/- but, not revealed any information about payment of instalments by the deceased. The 1st complainant also came to know that her parents in law influencing the Manager of the Bank for not disclosing any information and for returning gold ornaments.

The Government of India recently declared interest remission of agricultural gold loan and 1st complainant also enquired about the same. But there was no proper response from the opposite party. Therefore, she approached this Forum for necessary relief. She is also ready to discharge the balance debt amount if any. The complainants being the legal heirs of late Kothamasu Srinivasa Rao and as pledged gold ornaments belongs to 1st complainant, they have right to claim for the same. Recently the mother of late Kothamasu Srinivasa Rao also died, as such there are no other legal heirs than the complainants herein. Hence, the complaint.

The opposite party has filed its version in the following manner. This Forum has no jurisdiction to entertain the complaint. The averments made in the complaint are hereby denied and the complainants are called upon to prove them strictly. It is submitted that one Kothamasu Srinivasa Rao had availed personal loan of RS.25,000/- on 08-09-06 and also an agricultural gold loan of Rs.90,000/- on 22-09-06 by pledging gold ornaments. Later he died in a road accident without discharging the said loan amounts.

Further, it is submitted that waiver of agricultural debts scheme was declared by the Central Government is applicable to the agricultural gold loan availed by the deceased Kothamasu Srinivasa Rao only to some extent. As he possessed more than 5 acres of land, he is eligible to get benefit of Rs.20,000/- towards waiver of agricultural debt, provided the entire balance due is to be discharged by end of June, 2009 as per the schedule mentioned in the waiver scheme. The said fact is also informed to the 1st complainant.

While it is so, the complainants who are the legal heirs of the deceased are insisting the opposite party bank for return of gold ornaments without choosing to discharge the gold loan incurred by the deceased Kothamasu Srinivasa Rao. As per the provision of Hindu Succession Act, the mother of the deceased also is legal heir of her deceased son. Even as per the averments made in the complaint the mother of the deceased died recently, she died leaving behind her husband and two daughters as her legal heirs. Suppressing these facts the complainants have resorted to file this complaint.

It is submitted that the opposite party has come to know that there are disputes in between the parents of the deceased and the complainants and they have filed cases against each other. In view of disputes in between them it is not permissible for this opposite party to return gold ornaments to the complainants even after discharge of the debts in absence of succession certificate.

Lastly, it is submitted that interest remission is not applicable to the gold loan incurred by the deceased and the same was also informed to the complainants in their reply notice. Therefore, it is prayed to dismiss the complaint with exemplary costs.

The 1st complainant K. Suneetha has filed her affidavit while explaining the documents on record. Exs.A-1 to A-11 are marked in support of her claim. She has also filed additional affidavit on 27-08-09 stating that the gold ornaments pledged by her husband are her absolute sridhana property which had purchased on 2-4-05 vide cash bill No.2002 to the extent of 206.550 gms for Rs.130,645/- she had also enclosed copy of the bill which is marked as Ex.A-11.

The opposite party through its Manager P. Venkatesh filed its affidavit in respect of their claim while marking documents vide Exs.B-1 and B-2. Ex.B-1 is the Certified copy of the Statement of Account No.01660/115035 (personal loan) of the deceased K. Srinivasa Rao. Ex.B-2 is the Certified copy of the Statement of Account No.01571/025050 (Agricultural gold loan) of the deceased K. Srinivasa Rao.



Now the points for determination are that,

1. Whether the opposite party bank has committed deficiency of service in not returning the gold ornaments pledged by late K. Srinivasa Rao while availing agricultural gold loan during his lifetime?

2. Whether the complainants are entitled for return of gold ornaments from the opposite party bank in the circumstances explained by them?

3. To what relief?



POINTS 1 TO 3:- The dispute is not much in between the parties except for return of gold ornaments pledged by late husband of the 1st complainant namely K. Srinivasa Rao. There is no dispute that during his lifetime late K. Srinivasa Rao had availed both personal loan of Rs.25,000/- vide Ex.B-1 and agricultural gold loan of Rs.90,000/- vide Ex.B-2. It appears that due to unfortunate death of the deceased K. Srinivasa Rao in a road accident in his early age, some misunderstandings arose in between the 1st complainant and her parents in law. They are residents of Kakumanu village. The 1st complainant as seen from the record vide Ex.A-3 the certificate issued by the Tahsildar, Kakumanu is aged about 25 years and having two sons aged about 8 and 7 years respectively. After the death of her husband the 1st complainant shifted her family from her in law’s house Kakumanu to Guntur. This fact is averred in the complaint itself.


The copy of FIR Ex.A-4, copy of Post mortem report vide Ex.A-5, Death certificate vide Ex.A-2 certainly reveals the death of the deceased K. Srinivasa Rao in a road accident. Soon thereafter, she got issued a legal notice to her in laws and other relatives including the Branch Manager of State Bank of India at Kakumanu, Jillellamudi and LIC of India, branch office at Bapatla which is evident from Ex.A-6 she has alleged that her parents have gifted one acre of land towards pasupukumkuma at the time of marriage which is situated in lingamguntlapalem and that her father in law wanted to sell away the same to purchase a house in Kakumanu village. She has also alleged the indifference attitude of her parents in law and other relatives towards them after the death of the deceased.


Further alleged that the cash deposits held in the above banks belongs to joint family and her husband is also having share in them. She made an allegation against the Branch Managers of the banks that they are under influence of her parents in law as such they are not co-operating in taking back of gold ornaments. A reply notice dated 5-5-07 was got issued by the opposite party bank wahich is on record Ex.A-7.


In this reply it is mentioned that late Srinivasa Rao had availed two loans as referred in their version and that waiver benefit is not applicable to the gold loan amount availed by Srinivasa Rao. The bank also addressed a separate letter dated 14-2-09 (after filing this case) in the name of 1st complainant and her father in law namely K. Rama Rao for clearance of the gold loan account by availing eligibility of 25% of remission otherwise it would opt for auction of the ornaments. The 1st complainant protested for sending notice by the bank to her father in law as the pledged ornaments absolutely belongs to her. This is evident from Ex.A-9 which is dated 19-02-09.

While things stood thus, during pendency of proceedings in the above case, it is represented by the learned counsel for the complainant that the 1st complainant had expressed her readiness to discharge the balance gold loan amount, but on the influence of her father in law the Manger of the Bank is not co-operating and insisting upon the signature of father in law and further the bank is contemplating to hold an auction of the gold ornaments. This representation was made on 5-5-09. At that juncture the Forum ordered not to hold auction of the gold ornaments and receive the debt amount from the complainants if they come forward.


However, on making similar representations on 26-6-09 the learned advocate for the opposite party has expressed no objection for receipt of debt amount while giving remission in the loan as per the scheme, if they come forward to pay the amount before the end of June. But with regard to return of gold ornaments to the complainants he insisted upon production of succession certificate. Accordingly it appears the complainants have paid the balance debt amount in the bank while availing the remission. This is also admitted fact. Therefore, now the matter confines to the question whether succession certificate is necessary for return of gold ornaments to the 1st complainant.

The complainants have obtained legal heir certificate on 7-6-07 from Tahsildar vide Ex.A-3 showing the complainants as legal heirs. The certificate is given after making due enquiry by the revenue officials. It is also stated therein that the 1st complainant is the proper person to receive the pledged articles and also FD amounts lying in various banks. Of course, a note is made thereon that this certificate will not serve as succession certificate. There is no dispute that the mother of the deceased who is one of the class-I heir as per the Succession Act also died before filing the complaint.


The bank alleges that old lady survived by other legal heirs who are not brought on record but there is no documentary proof in that regard. Even otherwise that is different issue altogether which would fall within the purview of Civil Court. The 1st complainant claiming absolute right over the pledged ornaments as her sridhana property and also produced sale voucher dated 02-04-05 vide Ex.A-11. She had purchased gold ornaments from Swaraj jewellery, Guntur.


The details of ornaments purchased and their weight is also mentioned therein with price amount. There is absolutely no protest in whatsoever in nature from father in law of the 1st complainant either by way of reply notice or personal appearance in these proceedings before the Forum. Thus the evidence on record and circumstances of the case do show prima facie that the pledged ornaments in the bank belongs to 1st complainant. It is also not in dispute that the balance debt amount under this account has been discharged by her.


The learned counsel for the complainant also submits that the bank has given notice to the 1st complainant demanding for payment of debt amount and on receipt of the same onceagain directing them to produce succession certificate not satisfying with the certificate on record issued by Tahsildar, and this amounts to harassment but nothing else and also it involves lot of expenditure, which they cannot afford to do so.

He also tried to impress upon the Forum that the complainants are not claiming the debt amounts of the deceased due by the 3rd parties or securities and debentures as such succession certificate is not required that too in a case of this nature where the debt amount due by her husband has been discharged and that she has every right to claim her own property.

The learned counsel for the opposite party relied upon a decision reported in 2006 (1) ALD 382 K. Srinivasu vs. A.P. Co-operative Bank Limited, Hyderabad. In that case the complainants claimed release of FDR’s amounts pertaining to the deceased who made deposits, the complainants are the legal heirs of the deceased. They have produced legal heir certificate issued by MRO., the bank has insisted upon succession certificate.

In the aforesaid circumstances, the Hon’ble High Court of Andhra Pradesh has observed in para 6 as follows,

“It is for the respondent bank to take a decision whether to act on the legal heir certificate issued by the Mandal Revenue Officer, Saroornagar, or to insist upon production of a Succession certificate or to take any another form of security from the petitioner for releasing the amounts covered by the fixed deposits of his parents in his favour, but this Court cannot interfere with the discretion exercised by the respondent, for its own safety.



As rightly contended by the learned counsel for the respondent since the petitioner did not produce any document to show that respondent insisted on his production of a succession certificate, petitioner is at liberty to make an application to the respondent for payment of the amount covered under the fixed deposit made by his parents to him basing on the Legal Heir Certificate issued by the Mandal Revenue Officer, Saroornagar. The respondent can consider that application of the petitioner and communicate its decision to the petitioner, but no relief can be granted by this Court to the petitioner on this petition”.

As seen from the above observation the High Court did not interfere in the matter and left to the discretion of the Bank Manager itself. Therefore, the aforesaid decision do not place any rider in returning the gold ornaments to the 1st complainant as the debt amount was discharged by her. She is entitled for return of the pledged ornaments. As an abundant caution the bank may take an undertaking from the 1st complainant that in case if necessity arises in the event of a final order by a competent civil court that the pledged property belong to joint family of K. Srinivasa Rao and they got to be shared by all the joint family members, she would return the same or its cost. The 1st complainant also shall co-operate to that effect in giving that undertaking. With the aforesaid observations we dispose of this complaint in the following terms:

1. The 1st complainant is entitled for return of the gold ornaments pledged by her husband with the opposite party bank while availing agricultural gold loan amount. Accordingly, the opposite party bank shall return the pledged ornaments to the 1st complainant.

2. However, as an abundant caution and safety measure, we hereby direct the 1st complainant to give an undertaking in favour of the bank to the effect that in case necessity arise in the event of a final order or direction by a competent Civil Court holding that the above referred property belongs to joint family, she is ready to reproduce the same and keep at the disposal of the bank or alternatively its cost as noted in the sale voucher Ex.A-11. On receipt of such undertaking the bank shall forthwith return the ornaments to the 1st complainant.

3. In the circumstances of the case facts, each party shall bear their own costs.

1. K. Suneetha,
2. K. Naga Raju,
3. K. Phanendra,

2 and 3 are being minors rep.by

their mother and natural guardian

Kothamasu Suneetha (1st Complainant)

W/o. Late Srinivasa Rao,

all R/o. 2/3 Yadava Street,

Old Guntur, Guntur. … Complainant

And



State Bank of India,

Rep. by its Branch Manager,

Kakumanu Village and Mandal,

Guntur District. … Opposite Party







O R D E R



This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainants seeking directions from the opposite party for return of gold ornaments weighing 188.1 gms pledged by late Kothamasu Srinivasa Rao and to pay compensation of Rs.5,000/- for mental agony and costs of litigation.

The case of the complainants in brief is that the husband of the 1st complainant namely Kothamasu Srinivasa Rao during his lifetime had availed agricultural gold loan vide A/c.No.34/1237 to a tune of Rs.90,000/- by pledging the gold ornaments of the 1st complainant weighing about 188.1 gms from SBI., Kakumanu branch (opposite party herein).


Late Kothamasu Srinivasa Rao died in an accident intestate leaving behind the complainants 1 to 3 as his legal heirs. After his death the 1st complainant enquired about the pledging of gold ornaments in the bank of opposite party but they failed to furnish necessary information thereafter she got issued a legal notice on 12-4-07 and also personally visited the bank after submission of necessary documents i.e., family members certificate issued by Tahsildar, Kakumanu (M), Guntur district, copy of FIR and post mortem report. The 1st complainant also came to know that her late husband has repaid the said gold loan to the maximum extent.


In the reply notice dated 05-05-07, the bank has informed about availment of gold loan of Rs.90,000/- and the personal loan of Rs.25,000/- but, not revealed any information about payment of instalments by the deceased. The 1st complainant also came to know that her parents in law influencing the Manager of the Bank for not disclosing any information and for returning gold ornaments.

The Government of India recently declared interest remission of agricultural gold loan and 1st complainant also enquired about the same. But there was no proper response from the opposite party. Therefore, she approached this Forum for necessary relief. She is also ready to discharge the balance debt amount if any. The complainants being the legal heirs of late Kothamasu Srinivasa Rao and as pledged gold ornaments belongs to 1st complainant, they have right to claim for the same. Recently the mother of late Kothamasu Srinivasa Rao also died, as such there are no other legal heirs than the complainants herein. Hence, the complaint.

The opposite party has filed its version in the following manner. This Forum has no jurisdiction to entertain the complaint. The averments made in the complaint are hereby denied and the complainants are called upon to prove them strictly. It is submitted that one Kothamasu Srinivasa Rao had availed personal loan of RS.25,000/- on 08-09-06 and also an agricultural gold loan of Rs.90,000/- on 22-09-06 by pledging gold ornaments. Later he died in a road accident without discharging the said loan amounts.

Further, it is submitted that waiver of agricultural debts scheme was declared by the Central Government is applicable to the agricultural gold loan availed by the deceased Kothamasu Srinivasa Rao only to some extent. As he possessed more than 5 acres of land, he is eligible to get benefit of Rs.20,000/- towards waiver of agricultural debt, provided the entire balance due is to be discharged by end of June, 2009 as per the schedule mentioned in the waiver scheme. The said fact is also informed to the 1st complainant.

While it is so, the complainants who are the legal heirs of the deceased are insisting the opposite party bank for return of gold ornaments without choosing to discharge the gold loan incurred by the deceased Kothamasu Srinivasa Rao. As per the provision of Hindu Succession Act, the mother of the deceased also is legal heir of her deceased son. Even as per the averments made in the complaint the mother of the deceased died recently, she died leaving behind her husband and two daughters as her legal heirs. Suppressing these facts the complainants have resorted to file this complaint.

It is submitted that the opposite party has come to know that there are disputes in between the parents of the deceased and the complainants and they have filed cases against each other. In view of disputes in between them it is not permissible for this opposite party to return gold ornaments to the complainants even after discharge of the debts in absence of succession certificate.

Lastly, it is submitted that interest remission is not applicable to the gold loan incurred by the deceased and the same was also informed to the complainants in their reply notice. Therefore, it is prayed to dismiss the complaint with exemplary costs.

The 1st complainant K. Suneetha has filed her affidavit while explaining the documents on record. Exs.A-1 to A-11 are marked in support of her claim. She has also filed additional affidavit on 27-08-09 stating that the gold ornaments pledged by her husband are her absolute sridhana property which had purchased on 2-4-05 vide cash bill No.2002 to the extent of 206.550 gms for Rs.130,645/- she had also enclosed copy of the bill which is marked as Ex.A-11.

The opposite party through its Manager P. Venkatesh filed its affidavit in respect of their claim while marking documents vide Exs.B-1 and B-2. Ex.B-1 is the Certified copy of the Statement of Account No.01660/115035 (personal loan) of the deceased K. Srinivasa Rao. Ex.B-2 is the Certified copy of the Statement of Account No.01571/025050 (Agricultural gold loan) of the deceased K. Srinivasa Rao.



Now the points for determination are that,

1. Whether the opposite party bank has committed deficiency of service in not returning the gold ornaments pledged by late K. Srinivasa Rao while availing agricultural gold loan during his lifetime?

2. Whether the complainants are entitled for return of gold ornaments from the opposite party bank in the circumstances explained by them?

3. To what relief?



POINTS 1 TO 3:- The dispute is not much in between the parties except for return of gold ornaments pledged by late husband of the 1st complainant namely K. Srinivasa Rao. There is no dispute that during his lifetime late K. Srinivasa Rao had availed both personal loan of Rs.25,000/- vide Ex.B-1 and agricultural gold loan of Rs.90,000/- vide Ex.B-2. It appears that due to unfortunate death of the deceased K. Srinivasa Rao in a road accident in his early age, some misunderstandings arose in between the 1st complainant and her parents in law. They are residents of Kakumanu village. The 1st complainant as seen from the record vide Ex.A-3 the certificate issued by the Tahsildar, Kakumanu is aged about 25 years and having two sons aged about 8 and 7 years respectively. After the death of her husband the 1st complainant shifted her family from her in law’s house Kakumanu to Guntur.


This fact is averred in the complaint itself. The copy of FIR Ex.A-4, copy of Post mortem report vide Ex.A-5, Death certificate vide Ex.A-2 certainly reveals the death of the deceased K. Srinivasa Rao in a road accident. Soon thereafter, she got issued a legal notice to her in laws and other relatives including the Branch Manager of State Bank of India at Kakumanu, Jillellamudi and LIC of India, branch office at Bapatla which is evident from Ex.A-6 she has alleged that her parents have gifted one acre of land towards pasupukumkuma at the time of marriage which is situated in lingamguntlapalem and that her father in law wanted to sell away the same to purchase a house in Kakumanu village.


She has also alleged the indifference attitude of her parents in law and other relatives towards them after the death of the deceased. Further alleged that the cash deposits held in the above banks belongs to joint family and her husband is also having share in them. She made an allegation against the Branch Managers of the banks that they are under influence of her parents in law as such they are not co-operating in taking back of gold ornaments. A reply notice dated 5-5-07 was got issued by the opposite party bank wahich is on record Ex.A-7.


In this reply it is mentioned that late Srinivasa Rao had availed two loans as referred in their version and that waiver benefit is not applicable to the gold loan amount availed by Srinivasa Rao. The bank also addressed a separate letter dated 14-2-09 (after filing this case) in the name of 1st complainant and her father in law namely K. Rama Rao for clearance of the gold loan account by availing eligibility of 25% of remission otherwise it would opt for auction of the ornaments. The 1st complainant protested for sending notice by the bank to her father in law as the pledged ornaments absolutely belongs to her. This is evident from Ex.A-9 which is dated 19-02-09.

While things stood thus, during pendency of proceedings in the above case, it is represented by the learned counsel for the complainant that the 1st complainant had expressed her readiness to discharge the balance gold loan amount, but on the influence of her father in law the Manger of the Bank is not co-operating and insisting upon the signature of father in law and further the bank is contemplating to hold an auction of the gold ornaments. This representation was made on 5-5-09. At that juncture the Forum ordered not to hold auction of the gold ornaments and receive the debt amount from the complainants if they come forward.


However, on making similar representations on 26-6-09 the learned advocate for the opposite party has expressed no objection for receipt of debt amount while giving remission in the loan as per the scheme, if they come forward to pay the amount before the end of June. But with regard to return of gold ornaments to the complainants he insisted upon production of succession certificate. Accordingly it appears the complainants have paid the balance debt amount in the bank while availing the remission. This is also admitted fact. Therefore, now the matter confines to the question whether succession certificate is necessary for return of gold ornaments to the 1st complainant.

The complainants have obtained legal heir certificate on 7-6-07 from Tahsildar vide Ex.A-3 showing the complainants as legal heirs. The certificate is given after making due enquiry by the revenue officials. It is also stated therein that the 1st complainant is the proper person to receive the pledged articles and also FD amounts lying in various banks. Of course, a note is made thereon that this certificate will not serve as succession certificate. There is no dispute that the mother of the deceased who is one of the class-I heir as per the Succession Act also died before filing the complaint. The bank alleges that old lady survived by other legal heirs who are not brought on record but there is no documentary proof in that regard. Even otherwise that is different issue altogether which would fall within the purview of Civil Court.


The 1st complainant claiming absolute right over the pledged ornaments as her sridhana property and also produced sale voucher dated 02-04-05 vide Ex.A-11. She had purchased gold ornaments from Swaraj jewellery, Guntur. The details of ornaments purchased and their weight is also mentioned therein with price amount. There is absolutely no protest in whatsoever in nature from father in law of the 1st complainant either by way of reply notice or personal appearance in these proceedings before the Forum. Thus the evidence on record and circumstances of the case do show prima facie that the pledged ornaments in the bank belongs to 1st complainant. It is also not in dispute that the balance debt amount under this account has been discharged by her.


The learned counsel for the complainant also submits that the bank has given notice to the 1st complainant demanding for payment of debt amount and on receipt of the same onceagain directing them to produce succession certificate not satisfying with the certificate on record issued by Tahsildar, and this amounts to harassment but nothing else and also it involves lot of expenditure, which they cannot afford to do so.

He also tried to impress upon the Forum that the complainants are not claiming the debt amounts of the deceased due by the 3rd parties or securities and debentures as such succession certificate is not required that too in a case of this nature where the debt amount due by her husband has been discharged and that she has every right to claim her own property.

The learned counsel for the opposite party relied upon a decision reported in 2006 (1) ALD 382 K. Srinivasu vs. A.P. Co-operative Bank Limited, Hyderabad. In that case the complainants claimed release of FDR’s amounts pertaining to the deceased who made deposits, the complainants are the legal heirs of the deceased. They have produced legal heir certificate issued by MRO., the bank has insisted upon succession certificate.

In the aforesaid circumstances, the Hon’ble High Court of Andhra Pradesh has observed in para 6 as follows,

“It is for the respondent bank to take a decision whether to act on the legal heir certificate issued by the Mandal Revenue Officer, Saroornagar, or to insist upon production of a Succession certificate or to take any another form of security from the petitioner for releasing the amounts covered by the fixed deposits of his parents in his favour, but this Court cannot interfere with the discretion exercised by the respondent, for its own safety.


As rightly contended by the learned counsel for the respondent since the petitioner did not produce any document to show that respondent insisted on his production of a succession certificate, petitioner is at liberty to make an application to the respondent for payment of the amount covered under the fixed deposit made by his parents to him basing on the Legal Heir Certificate issued by the Mandal Revenue Officer, Saroornagar. The respondent can consider that application of the petitioner and communicate its decision to the petitioner, but no relief can be granted by this Court to the petitioner on this petition”.

As seen from the above observation the High Court did not interfere in the matter and left to the discretion of the Bank Manager itself. Therefore, the aforesaid decision do not place any rider in returning the gold ornaments to the 1st complainant as the debt amount was discharged by her.