Haryana

Karnal

208/2013

Birmi Devi W/o Pirthi - Complainant(s)

Versus

Head Post Office, Senior Superintendent Of General Post Office - Opp.Party(s)

Sh. N.K. Zak

25 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.208 of 2013

                                                             Date of instt.: 30.4.2013

                                                               Date of decision:25.4.2017

 

Birmi Devi wife of Shri Pirthi son of Shri Ghasi Ram, resident of village Kurlan, Tehsil Ballah, District Karnal.

 

                                                                   ……..Complainant.

                                      Vs.

1. Head Post Office, through its Senior Superintendent of General Post Office, Kunjpura Road, Karnal.

2. Postmaster, Post Office, Salwan, Tehsil Ballah, District Karnal.

3. Shiv Kumar son of Shri Khazan Singh, Gram Dak Sewak, Branch Post Master, village Kurlan, Tehsil Ballah, District Karnal.

                                                                                ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

Before                   Sh.K.C.Sharma……….President.

Ms. Veena Rani….Member

                   Sh.Anil Sharma…….Member.

                            

Present:-     Shri N.K. Zak  Advocate for the complainant.

                   Shri Ashok Gupta Advocate for opposite parties 1 and 2.

                   Shri Virender Bahal Advocate for opposite party no.3.

                                       

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that she was having two accounts bearing no.723255 and 722969 with opposite party no.2. She deposited as FDR of Rs.1,20,000/- on 17.5.2010 for a term of one year and Rs.53,200/- on 17.5.2010 for a term of one year. The said FDRs matured on 16.5.2011. When the said FDRs matured, she approached opposite party no.2 through opposite party no.3 for withdrawal of the amount of the said FDRs. Opposite party no.3 made excuse for not releasing the amount and also threatened with dire consequences, if she demanded the money from the opposite parties. Thereafter, on 21.11.2011 she approached the Incharge of Sub Post Office, village Salwan and narrated the incident to him, but to no avail. She made representations to higher authorities of the opposite parties, but inspite of that the amount of her FDRs amounts were not released to her. Opposite party no.3 was working for opposite party no.2 and as per the instructions/directions, rules and regulations of opposite party no.1. Such acts and conduct on the part of the opposite parties amounted to deficiency in service and unfair trade practice, which caused her mental pain, agony and harassment apart from financial loss.

2.                Notice of the complaint was given to the opposite parties. Opposite parties no.1 and 2 filed joint written statement controverting the claim of the complainant on various grounds. Objections have been raised that the complainant has no locus standi to file the complaint; that the complainant has not approached this forum with clean hands; that this forum has got no jurisdiction to entertain and adjudicate the complaint and that the complaint is an abuse of process of law.

                   On merits, it has been submitted that the complainant opened  Savings Bank Account no.723255 on 5.11.2005 and deposited  an amount of Rs.2300/-. She had withdrawn an amount of Rs.2000/- on 8.11.2005. After withdrawal of Rs.2000/-, a sum of Rs.361/- remained balance in the said account. Pay in slip dated 5.11.2005 for Rs.2300/- was submitted by depositor at the time of opening of account and withdrawal form dated 8.11.2005 for Rs.2000/-was duly signed by the complainant. The complainant had also opened a savings bank account no.722969 dated 10.4.2004 with an amount of Rs.320/-. Pay-in-slip regarding the same was also submitted by the complainant. As part of procedure of post offices, the pass book prepared by Post Office is given to the depositor and receipt on the reverse of SB26 is given by the depositor. The complainant handed over the Savings Bank receipts of SB-26 no.5 dated 5.11.2005 and no.43 dated 10.4.2004 after putting her thumb impressions, which clearly show that the complainant had received the pass books of account nos.723255 for Rs.2300/- on 6.11.2005 and passbook pertaining to account no.722969 for Rs.320/- on 11.4.2004.   Moreover, there was no scheme of FDR in the post office savings bank scheme and as such the claim of the complainant is bogus and based upon presumption, conjecture and surmises. A case bearing First Information Report no.38 dated 18.1.2012 was registered against opposite party no.3 in Police Station Assandh, on the complaint of Sada Nand son of Shri Ram Dutt of village Karlan and the same is still under investigation. The complaint of the complainant was received in the office of the opposite parties and the matter was investigated departmentally. The claim of the complainant was found bogus, therefore, the same was rejected in view of the grounds mentioned in the para no.4 of the written statement. It has been denied that the complainant deposited in FDRs an amount of Rs.1,20,000/- on 17.05.2010  in account no.723255 and Rs.53,200 on 17.5.2010 in account no.722769 for a term of one year, as alleged. The other allegations made in the complaint have also been denied

3.                Opposite party no.3 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complainant has no locus standi; that the complainant has not approached this form with clean hands; that the complaint is not maintainable under the provisions of Consumer Protection Act; that this forum has no jurisdiction to entertain and decide the complaint and that the complaint is an abuse of process of law.

                   On merits, it has been averred that the complainant opened an account no.723255 by depositing Rs.2300/-.  After depositing the said amount, the opposite party no.3 issued a pay-in-slip to the complainant for the amount of Rs.2300/-, which was duly signed by the complainant/depositor. An amount of Rs.2000/- was withdrawn on 8.11.2005.  The other account was also opened by the complainant bearing no.722969 on 10.4.2004 with the amount of Rs.320/- and the pay-in slip for the same was also given to the complainant, which was signed by the complainant/depositor. There was no scheme of FDR in the Post Office. The complainant manipulated the entries of the copy of the Post Office given to him. There was no verification and signature by the opposite party no.3 or other competent authority in the said copies of the post office, which were with the complainant. The complainant misrepresented the record in the post office and the local police involved opposite party no.3 in false and frivolous cases. The claim of the complainant was found bogus by the competent authority and the same was rejected. In fact, the complainant altered the initial amounts deposited by adding one or more zeros in the pass books of post office, which were in her custody and such entry was not verified or signed by the opposite party no.3 or other competent authority. The complainant even could not produce of pay-in-slip regarding alleged amount deposited by him. Therefore, complainant is not entitled to any relief. The other allegations made in the complaint have not been admitted.

4.                In evidence of the complainant, her affidavit Ex.C1 and documents Ex.C2 to Ex.C32 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Shiv Kumar Ex.OP3/A and documents Ex.R1 to Ex.R9 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The complainant has alleged that she had deposited as FDR an amount of Rs.1,20,000/- on 17.5.2010  in her account no.723255. She further deposited an amount of Rs.53,200/- as FDR on 17.5.2010 for a term of one year, in account no.722969.  When she wanted to withdraw the said amounts after maturity, she was threatened by opposite party no.3 and her amounts were not released by opposite parties no.1 and 2 despite various representations. On the other hand, the opposite parties have denied the factum of  depositing of Rs.1,20,000/- and Rs.53,200/- by the complainant in FDRs on 17.5.2010, as alleged. It has been submitted that the complainant deposited only an amount of Rs.2300/- in the account no.723255 and she opened other account bearing no.722969 on 10.4.2004 by depositing an amount of Rs.320/-.

 8.               Learned counsel for the complainant contended that the opposite party no.3 had made entries in the pass books of the complainant, the copies of which are Ex.C2 and Ex.C4.  Postmaster also issued the receipts regarding depositor’s passbook, the copy of which is Ex.C5, in respect of account no.722969. After the said entries in the pass books, the complainant did not suspect the bonafide of opposite party no3, but the opposite party no.3 did not deposit the said amounts in her accounts in the main post office and misappropriated the same. It has further contended that opposite party no.3 had misappropriated the amounts of other persons also of village Kurlan and made false entries in their pass books, without depositing their amounts in the main post office. First Information Report dated 18.1.2012 was registered against opposite party no.3 in Police Station Assandh on the basis of the complaint made by Sadanand son of Ram Dutt. Another First Information Report no.485 dated 12.10.2012  was also got registered against opposite party no.3 in Police Station Assandh by Ramphal son of Ram Chander. Senior Superintendent of Post Office also wrote letter to Station House Officer Police Station, Assandh regarding mis-appropriation of public money relating to the accounts of Ms. Nirmla Devi, Karma and Vridhi, by opposite party no.3 and First Information Report no.192 dated 27.5.2012 was registered against opposite party no.3 in Police Station Assandh, on the basis of the said letter. Even the Senior Superintendent of Post Office Karnal wrote letter dated 23.3.2012 to Deputy Commissioner, Karnal, for recovery an amount of Rs.48,20,363.60 from opposite party no.3 under section 4 of the Public Account Act of 1850. It has been further canvassed that the facts and circumstances and the evidence are sufficient to prove that opposite party no.3 received the amounts of Rs.1,20,000/-and Rs.53,200/-from the complainant for depositing the same as FDRs, and made entries in her pass books, but committed fraud by not depositing the same in the post office.  It has lastly been argued that opposite party no.3 was employee of the Postal Department, therefore, the post office is accountable for his mis-conduct and the complainant is entitled to recover the amount from the post office. In support of his contention, he placed reliance upon Branch Manager, Central Bank of India Versus Bagwan Vishnoo Mahadeshwar 1(2004) CPJ 193, wherein deposits were regularly paid to the Agent, under Mini Deposit Scheme. Entries were made in the pass book evidencing payment. Agent Committed fraud and did not deposit the amount in bank. Under those circumstances, it was held by Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai that the bank was accountable for the misconduct of the Agent.

9.                To wriggle out the aforesaid contentions, learned counsel for the opposite parties no.1 and 2 vehemently argued that the complainant deposited only an amount of Rs.2300/- in her account no.723255 and Rs.320/- in account no.722969 and the pass books prepared by the post office were given to her and she gave receipts, the copies of which are Ex.R1, Ex.R3, Ex.R4 and Ex.R9 after putting her thumb impressions, which are sufficient to show that she had received pass books of her accounts no.723255 and 722969 regarding deposit of Rs.2300/- on 5.11.2005 and Rs.320/- in account no.722969 on 10.4.2004. She also signed the receipt Ex.R5. She had withdrawn Rs.2000/- from account no.723255 and thumb marked the withdrawal form Ex.R2. It has further been argued that First Information Report lodged against opposite party no.3 by some other depositors and one First Information Report lodged by Postal Department regarding accounts of some other persons, do not establish in any manner that the complainant had deposited amount of Rs.1,20,000/- and Rs.53,200/- for a term of one year in Fixed Deposit as alleged. It has further been canvassed that the Postal Department in the letter dated 23.3.2012 to the Deputy Commissioner, Karnal did not accept that the complainant had deposited amount of Rs.1.20,000/- and Rs.53,200/- for term of one year in Fixed Deposit and that the amount was mis-appropriated by the opposite party no.3.  It was made clear in the said letter that the departmental enquiry was under way and no recovery could be made till date. Departmental Enquiry was conducted, but the complainant could not establish her claim, therefore, her claim was rejected.  It has lastly been argued that the complainant has failed to establish that she had deposited Rs.1,20,000/- in Fixed Deposit for term of one year on 17.5.2010 and Rs.53,200/- on 17.5.2010 for a term of one year.  Moreover, the allegation of the complainant that the opposite party no.3 made false entries and played fraud by mis-appropriating the amount deposited by her, cannot be decided by this Forum under summary jurisdiction because for establishing forgery and fraud elaborate evidence is required.

10.              The copy of the pass book of the complainant Ex.C2 regarding account no.723755 shows that nine entries were made in the pass book. First entry dated 5/7.11.2005 was of Rs.2300/-,  next entry dated 24..2.2007 was of Rs. 24520/-, third entry dated 24.2.2007/- was of Rs.30,000/-, fourth entry dated 3.3.2008 was of Rs.31.920/-, fifth entry dated 3.3.2008 was of Rs.55,00/- sixth entry was dated 3.3.2004, seventh entry dated 13.3.2009 was of Rs.60,000/-, eighth entry dated 17.5.2010 was of Rs.63840/-and the last entry dated 17.5.2010 was of Rs.1,20,000/-.  The passbook regarding the account no.723255 Ex.C4 shows that three entries were made in the passbook. First entry dated 22.4.2009 was of Rs.47,880/-, second entry dated 22.4.2009 was of Rs.50,000/- and last entry dated 17.5.2010 was of Rs.53,200/-. The copies of the receipts Ex. R1, Ex.R3, Ex.R4 and Ex.R9 were purportedly thumb marked by the complainant. She also signed the receipt Ex.R5 and thumb marked the withdrawal form Ex.R2. During the course of arguments learned counsel for the complainant submitted that these documents were not signed/thumb marked by the complainant.  The opposite party no.3 has also not admitted the correctness of the entries made in the pass books of the complainant and the documents Ex.C2 and Ex.C4.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    11.              A perusal of the letter of the Senior Superintendent of Post Office to Deputy Commissioner, Karnal also makes it quite clear that the Postal Department had not accepted that the opposite party no.3 had mis-appropriated the amounts of Rs.1,20,000/- and Rs.53,200/- deposited by the complainant, because at the time of sending the said letter departmental enquiry was going on. Therefore, on the basis of such document, it cannot be said in any manner that the postal department had admitted the allegations regarding claim of the complainant and other persons. Even after enquiry, the claim of the complainant was not accepted as correct. First Information Reports lodged against opposite party no.3 also do not substantiate the claim of the complainant.

12.              Under Such facts and circumstances, we have no hesitation in observing that issues regarding fraud and forgery are required to be decided in the present complaint. Thus, complicated questions of law and facts are involved and elaborate evidence by examining and cross-examining the witnesses and opinions of the Handwriting and other Experts are required to decide the matter in controversy between the parties, which cannot be done by this forum under summary jurisdiction. Only Civil Court is competent to decide such intricate questions of law and facts on the basis of elaborate evidence of the parties. The proposition of law laid down in Bhagwan Vishnoo Mahadeshwar’s case (supra) does not cut any ice in favour of the complainant under the aforediscussed facts and circumstances.

13.              In view of the foregoing discussion, complicated questions of law and facts involved in the matter in controversy cannot be adjudicated by this forum under summary jurisdiction, therefore, the complaint is dismissed. However, the complainant would be at liberty to approach the competent forum/civil court for redressal of her grievance, if so advised, and in that case in view of the law laid down Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583, she would be entitled to get the benefit of provisions of section 14 of the Limitation Act, to exclude the period spent in prosecuting the present complaint, while computing the period of limitation prescribed for filing such civil suit. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 25.4.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal

 

                             (Veena Rani)     (Anil Sharma)

                               Member               Member