ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against Opposite Party (herein referred to as OP) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not returning the deposited amount inspite of meeting all the requirements of the bank and hence for the payment of loss of interest to the extent of Rs.7,94,223/- and for compensation of Rs.2,45,850/- for the unproductive use and wastage of complainant’s time, for compensation of Rs.5,00,000/- for harassment, discomfort, mental causing mental anguish and sufferance and punitive/ exemplary damages of Rs.50,00,000/- and for grant of Rs.1,00,000/- as legal expenses and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant is a resident of USA  and this complaint is filed by her brother as under the power of attorney. It is contended that, her mother ‘Kamalu K Advani’ died on 06.10.2018, she was having an account with OP bearing NO. 06700300017028 which is a joint account in her name as well as in the name of the complainant. It is a joint account and nomination was also made. The said account was for Rs.54,03,240/- and the amount was fixed and the complainant was a nominee.  Account No. 06700300001861 is again a Fixed Deposit for Rs.1,49,550/- which is a joint account with the complainant with a condition of payment to “anyone or survivor” or survivors. The proceeds of the  both these accounts were paid on 12.11.2020, 25 months after its due payment. It is contended that after the death of the mother OP was requested to transfer the amount to her name and provide access to the joint account over internet by providing and resetting the passwords on 10.03.2019.  Although the Mumbai branch of the OP sent password to the Bangalore Branch to hand over the same to the complainants after getting the accounts transferred from Mumbai to Bangalore Branch, the Bangalore branch official refused to hand over the password and other access codes only for holding the deposit amount in the bank, even though the account is very specific that the amount to be paid to any one or the survivors, and nominees, much against to the circular issued by the RBI with a clear instruction that the banks to desist from insisting on production of succession certificate, letter of administration or probate, etc or obtain any bond of indemnity or surety from the survivors / nominees irrespective of the amount standing to the credit of the deceased account holder. 

3.     OP directed the complainants on 25.10.2018 to provide indemnity bond and surety from the survivors / nominee.  Left with no other alternative and option to save their time and money, on 27.11.2018 as per the request all the documents were provided to the OP bank.  However Op bank did not bother about the application.  On the Contrary to Section 6(5) of the Foreign Exchange Management Act 1999, OP directed the complainant to open NRO account for granting access to the said accounts on 24.04.2020. 

4.     It is contended that after repeated requests by the complainant OP processed the request transfer /granted access to their account after 25 months from the date of request.  An amount of Rs.50,83,112/- was arbitrarily held by OP in much violation of the RBI guidelines yielding only 5% interest which resulted a loss of Rs.7,94,223/- had the said amount has been paid to them, and if the same was deposited in the SEBI approved debentures and bonds and RBI approved fixed deposit schemes which would have more interest. Complainant is an engineer with honour from BITS PILANI and MS in project management from  Texas A and M university USA having 30 years of industry experience in USA and is a consultant in India and his billing per hour for his service is Rs.1,100/-.  Complainant has contacted OP for more than 84 times and spent 223 hours and 30 minutes and further another 40 hours has been spent by the Power of attorney holder.

5.     They are the consumer and OP is the service provider and there is deficiency in service on  the part of OPs in not paying the amount within the reasonable time and have taken 25 months from the date of request and that too insisting them to provide the documents which RBI guidelines desist from demanding the same and hence there is deficiency in service on the part of OP, harassment by OP which resulted in loss of prestige and status of the complainant putting him under mental agony and financial loss and hence prayed the commission to allow the complaint.

6.     Upon the service of notice, OP appeared before this commission through its advocate and filed the version contending that the complainant is not entitle for the compensation claimed in the complaint and also the legal expenses and further the complaint is not maintainable in law or facts and liable to be dismissed.

7.     It is contended that the mother of the complainant Smt. Kamalu Khemchand Adwani deposited some amount in FD, Current account deposit and Savings Account deposit in their bank branch at Bhulabai Desai Road Branch, at Mumbai, Maharashtra state. Savings account 06700100015962  and Current Account No. 067000200000168 in the joint name of herself, and one Aruna Advani and R Anil Advani with operation, anyone or survivor and FD account No. 0670003000035388 in her name with Anil Adwani with operation clause ‘either or survivor’. 

8.     Smt. Kamalu Khemchand Adwani died on 06.10.2018 at Mumbai and an email was sent to the branch on 25.10.2018 by the complainant seeking permission to operate the account as he is the survivor. He was directed by the branch to provide indemnity bond, surety form of the survivor /nominee is not within its knowledge. The complainant has not made the bank branch Bhulabai Desai Road Branch Mumbai as a party to this complaint. It has admitted that the base branch on the request of the complainant transferred the above accounts and the FDR vide letter dated 11.05.2019 and the same was received on 16.05.2019 by it.  On the request of the complainant OP informed to the complainant the necessary procedure to be followed and the documents that are required to be submitted for its verification in settling the claim and to safeguard the interest of the real beneficiary in accordance with law.  On 21.01.2019  the complainant provided all the documents along with indemnity bond which fact has been suppressed by the complainant.  The clauses the terms and conditions recitals mentioned in the indemnity bond are binding on the complainant Hence on these ground the present complaint liable to be dismissed.

9.     Further the request made by the complainant to reset the password made to Mumbai branch on 10.03.2019 is not within its knowledge. Complainant has made unwarranted allegations in this regard.  In the claim form for settlement of the claim, the complainant had mentioned the deceased had executed a Will, but the said alleged Will was  not produce nor any probate order or succession certificate was produced. Hence the OP informed the complainant on 14.01.2020 stating that Will \copy not produced no the probate order not produced, the Pan card mentioned in GPA of Arun Adwani differs with PAN card attached and Anil Adwani’s KYC’s were not attached. Thereafter upon the receipt of the required documents information and on obtaining the approval of the higher authorities on 11.11.2020, the claim of the complainant covering the FDR was settled by way of RTGS on 12.11.2020.  Hence there is no delay on the part of OP Bank and hence there is no deficiency on its part. 

10.   The contention that OP retained the amount of Rs.76,63,785/- arbitrarily violating the RBI guidelines and an average of 5% interest yielding account was resulted into loss Rs.11,97,447/- to the complainant as he would have got minimum 12.5% of the amount on the said amount had he invested the same in SEBI approved debentures and bonds and RBI approved deposits are all false, imaginary, baseless complainant is put to strict proof of the same. There is no loss of interest to the complainant and the amount were settled in accordance with law. The complainant has made baseless allegations only for monetary enrichment.  The contention of the complainant and the power of attorney holder lost their business hours and suffer loss are all imaginary and false ground, to seek compensation without any basis. 

11.   The judgment referred by the complainant is not applicable to the present facts of the case.  There is no loss caused to the complainant as contended and there is no deficiency in service on its part. There is no bona fide claim made by the complainant and the reason for filing this compal9int is only to make himself enrichment wrongly.  The allegation of delay in settling the claim of the complainant for about 25 months are all absolutely false and incorrect and prayed the commission to dismiss the complaint. 

12.   In order to prove the case, complainant has filed her affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

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

13.   Our answers to the above points are:-

POINT NO.1: IN THE AFFIRMATIVE

POINT NO.2: PARTLY IN THE AFFIRMATIVE

                                For the following.

REASONS

POINT No.1:-

14.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, the complainant is the joint account holder  of the FD’s  in respect of the Account No. 06700300001861 for a sum of Rs.1,50,000/- along with her mother Kamalu Adwani and she is a nominee in respect of the FD account bearing No.06700300017028 for a sum Rs.50,00,000/-.  It is the contention of the complainant that the original depositor Smt. Kamalu K Adwani died on 06.10.2018 and as a nominee and survivor and joint account holder of the fixed deposit which has been deposited under the condition any one of the survivor or survivor and as a nominee entitle to receive the amount made a representation to the bank in forming the death of her mother, requesting to pay the amount to her account for which OP issued a death claim form and the same was filled up and with submitted documents to the OP’s branch at Mumbai where the FD’s were standing and also requested to go through the forms duly filled for its completeness and inform her regarding any requirement to be done. Several correspondences have taken place between the complainant and the OP and afterwards inspite of providing the entire documents the OP insisted for surety, indemnity bond  and two sureties not relatives and also taking up the contention to furnish the duly self-attested KYC copies and also witnesses sureties, discharge on the FDR , Photos of PAN card of the complainant.  One way or the other OP kept on corresponding with the complainant requesting and demanding the documents and ultimately they did not care to pay the amount inspite of complainant issuing the legal notice.   Further not providing the pass word for the complainant to operate the account and ultimately on 12.11.2020 the OP branch has paid the amount to the account of the complainant and intimation was given to the complainant on 11.12.2020, which amounts to deficiency in service.

15.   It is to be noted from the correspondence that the base branch at Mumbai wherein the FD’s and SB accounts were opened, received the death claim request and afterwards sent all the papers to the St.Johns Branch of OP bank at Bangalore on the request of the complainant and her brother to operate easily as they are residing in Bangalore and even after the transfer of the said account at the branch at Bangalore, the said branch i.e. Op did not take care in settling the claim. Further when it sought for submitting the original bond, the complainant informed that it  was lost and requested for a duplicate FDR for which the OP has taken the indemnity bond to issue the FDR duplicate FD and further insisted the complainant to provide two sureties and indemnity bonds for paying the outstanding in the FDR.

16.   The main contention and argument of the complainant counsel is that the bank cannot insist and demand any surety bond , survival certificate, succession certificate, Probate in respect of the death claim made by the nominee of the account or survivor in case of the FD’s were the operation of the FD account is “either or survivor” or “anyone of survivor” or “farmer survivor” or later or survivors and in spite the said RBI guidelines, OP is insisted for the indemnity bonds and surety bonds which is violation of the RBI guidelines. It is also canvassed that since the amount payable on the death of the original depositor is a heavy amount which was deposited for a lessor interest, OP did  not want to return the said amount and dragged on the matter for a period of 25 months after the death of mother of the complainant in order to make use of the said amount to earn a higher interest to the bank and to pay the lessor interest to the complainant and harassed her like anything for a period of 25 months in order to pay the amounts.

17.   Complainant produced Ex.P4, the RBI guidelines issued to the all the executive officers of the Bank.  The chief executive officer of all the RBI is issued the said circular RPCD.CO.RRB-BC/22/03.05.33/2005-06 dated 19.07.2005, wherein it is mentioned that:

“Settlement of the claim in respect of the deceased depositors- Simplification of procedure.

Pursuant to the announcement in the mid-term review of the annual policy of the RBI on November 3, 2003, the committee on procedure and performance audit on public services (CPPAPS) was constituted by the RBI with a view to improving the quality of public services to the common person. The committee in its report NO.3 on ‘Banking operations: Deposit Accounts and other facilities relating to Individuals (non-business), observed that the tortuous procedures, particularly those applicable to the family of a deceased depositor, caused considerable distress to such family members. While the instruction regarding settlement of claims in respect of the deceased depositors had been issued to the banks vide our circular RPCD.CO.NO.RF.BC.09/07.38.01/2000-01 dated August 22, 2000 and RPCD. CO No. RF.BC. 59/07.28.01/2000-01 dated February 27, 2001, the existing dispensation has been review dint he light of the recommendations of the CPPAPS and the following instructions are being issued, in supersession of all the earlier instructions on the subject, to facilitate expeditious and hassle-free settlement of claims on the death of a depositor.

2. Access to balance in deposit accounts:

(A) Accounts with survivor/nominee clause

2.1 As you are aware, in the case of deposit accounts where the depositor had utilized the nomination facility and made a valid nomination or where the account was opened with the survivorship clause (“either or survivor”_), the payment of the balance in the deposit account to the survivor(s)/nominee of a deceased deposit account holder represent as a valid discharge of the banks liable provided.

(B) Accounts without  the survivor/nominee clause

2.3 In case where the deceased depositor had not made any nomination or for the accounts other than those styled as “either or survivor” (such as single or jointly operated accounts), banks are advised to adopt a simplified procedure for repayment to legal heir(s) of the depositor keeping in view the imperative need to avoid inconvenience and undue hardship to the common person. In this context, banks may, keeping in view their risk management systems, fix a minimum threshold limit, for the balance in the account of the deceased depositors, up to which claims in respect of the deceased depositors could  be settled without insisting on production of any documentation other than a letter of indemnity.

18.   When this is taken into consideration, in case of deposit wherein the nomination has been entered /registered and the terms and conditions of the operations of the FD’s i.e. Surpervorship clause (Either or Survivor, Anyone or survivors or former or survivor or latter or survivor) the payment of the amount in deposit has to be made to the nominee or surveyor as mentioned in the account/FD, without insisting for production of succession certificate , letter administration or probate or obtain any bond of indemnity or surety from the survivor /nominee irrespective the amount standing to the credit deceased account holder. In view of this OP insisting for surety bond and indemnity bond by the OP amounts to deficiency in service.

19.   Though it can be understandable OP insisted for indemnity bond for the loss of FD, insisting of surety and indemnity bond in respect of paying the amount in the FD’s inspite of the complainant being the joint holder of the FD amount and the nominee of the account, amounts to violating the RBI guidelines. Even insisting for the probate order by the OP in the letter, dated 14.01.2020 inspite of the complainant providing all the documents amounts to deficiency of service and harassing the complainant. It is not in dispute and also not the case of the OP that the operation mode of the FD account is not any one or survivor, and further that the complainant is not the joint account holder and the nominee with the depositor. When such being the case insisting the letter of indemnity for repayment of the said amount and seeking to open another account seeking to provide probate is only to harass the complainant, and not refunding the amount inspite of the complainant providing all the documents required of in respect of the death claim by a survivor who has been the joint account holder of the FD and also nominee of the FD, amounts to unfair trade practice and deficiency in service and hence we answer POINT NO.1 IN THE AFFIRMAITIVE.

POINT No.2:

20.   It is the contention of the complainant that OP has taken 25 months to clear the death claim. Whereas on 06.10.2018 the original depositor i.e. Kamlu Advani the mother of the complainant in whose name the 2 FD’s standing, died for which complainant is the nominee in one of the FD and a joint account holder in respect of the another FD.  When the matter was brought to the notice the base bank branch at Mumbai, it issued the claim form which was later filled up by providing all the documents in the month of January 2019 itself. The same was not settled. Afterwards with a request by the complainant herself, the said FD accounts were transferred to the OP branch at Bangalore and in spite of the complainant at the request of OP providing all the documents by the end of 2019 OP did not settle the matter till November 2020 and only on 12.11.2020 the proceeds of the said FD’s were transferred. As per the said guidelines issued by the Reserve Bank of India from the date claim, amount has be transferred and also in case the Original FDR is lost, the duplicate FD has to be provided within 15 days from the date of request. When such being the case during May 2019 itself the complainant sought for duplicate FD after obtaining the same made the claim along with the said Copy of the FD, OP took its own time to settle the claim only on 12.11.2020 which is in ordinate delay.

21.   It is the contention of the complainant that for a lesser interest payable to them,  and to earn more interest by utilizing the said amount which is a huge amount about Rs.55 lakhs, OP purposefully did not return the said amount in a reasonable time. Had the said amount returned within a reasonable time, it would have been invested in SEBI /RBI approved bonds and FD’s so that she could have earned atleast 12.5% interest. Hence complainant  has sought the difference of the interest which OP had paid to the FD rested with it On perusing the document OP has paid the interest of 7.20 % per annum in respect of the FD to the complainant. 

22.   No material has been placed by the complainant to show that he could earn more money by investing in FD’s and bonds approved by the SEBI or RBI to the extent of 12.5% . However risk is also involved if the said amount is invested in the equity market. Hence taking all the above into consideration we are of the opinion that it would be just and proper to direct the OP to pay interest at 10% per annum on the said FD for 01.06.2019 (as all the documents were received by OP)  to 12.11.2020  less the interest paid i.e. 2.8% in addition to what is already paid. Since the complainant who lost the FD obtained the copy of it and filed further claim.  Further the act of OP in settling the claim made the complainant to lot of harassment inconvenience and making her to file this complaint for which we direct OPs to pay a sum of Rs.25,000/- towards compensation for damages and Rs.10,000/- towards litigations expenses.  Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed in part with cost.
2. OP i.e. Bank of Baroda represented by its Branch manager is hereby directed to pay interest at 10% per annum on the said fixed deposits for the period from 01.06.2019 to 12.11.2020  less the interest paid i.e. to pay 2.8% in addition to what is already paid to the complainant.
3. Further OP is directed to pay a sum of Rs.25,000/- towards compensation for damages and Rs.10,000/- towards litigations expenses.
4. OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 09^th day of SEPTEMBER 2022)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the ID proof of POA holder

Ex P2: Copy of the ID proof of the complainant

Ex P3: Copy of the power of attorney

Ex P4: Copy of the RBI circular

Ex P5: Copy of the mail dated 25.10.2018

Ex P6: Copy of the communications between the parties

Ex P7: Copy of the letter send by the complainant

Ex P8: Copy of the letter send by OPPOSITE PARTY

Ex P9: Copy of the letter send by OPPOSITE PARTY

Ex P10: Copy of the receipt of the tax returns filed for the year 2019-20

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: - Nil -

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER         MEMBER       PRESIDENT

RAK*