1.             The present revision petition has been filed against the order dated 28.09.2020 of the State Commission in complaint no.175 of 2020 of the petitioner whereby their appeal against the order dated 26.09.2019 of the District Forum in complaint no. 107 of 2017 was dismissed.

2.             The brief admitted facts of the case are that the respondent/complainant had opened MIS account with the petitioner on 22.12.2009.  Account was allegedly prematurely closed by respondent on 23.01.2012 and the maturity amount of Rs.2,94,000/-, through an account payee cheque no.326167 in the name of the respondent / complainant was allegedly credited in SB account no.45040 which was allegedly in the name of the respondent / complainant. The said amount of Rs.2,94,000/- was subsequently withdrawn from the said account on 23.01.2012. The stand of the complainant was that on maturity of the MIS account, the money was not remitted to him and he had never opened that account No. 45040 and had never withdrawn any amount from this account.  He also alleged that this account was opened by the agent of the petitioner namely Mr. R.C. Trivedi who played fraud in this case.  He in connivance with the employees of the petitioner bank got the money transferred in a forged SB account No. 45040 and subsequently withdrew it.  It is contended that bank is liable for the losses occurred to him.

3.             The contention of the petitioner had been that it was the complainant who had opened the said account No. 45040 and he himself had withdrawn the money from the said account.  It is contended that bank has duly followed the procedure and has not committed any default or deficiency.  If somebody has played fraud, they are not responsible for the act of some other person and the agent Mr. R.C. Trivedi was not appointed by them but he was the agent appointed by the State Government.  Therefore, the liability cannot be imposed upon them. 

4.       The parties led their evidences before the District Forum.  The District Forum considered the evidences on record at length and has held as under:

9. Reasons:-

        The complaint had submitted affidavit of documents vide Ex. 21.  The complainant has submitted list of documents vide Ex. 3 in which, Account opening form of MIS Account No. 2111445 dated 22.12.2009 with mark 3/1,  Application for issuance of duplicate passbook dated 17.07.2015 with mark 3/2, Xerox copy of application dated 28.04.2012 with mark ¾, Xerox copy of reply dated 10.05.2012 submitted by respondent no.5 with mark 3/5, Xerox copy of application dated 14.05.2012 with mark.3/6, Xerox copy of letter dated 25.08.15 with mark 3/8, Xerox copy of reply dated 24.09.2015 submitted by respondent No.4 with mark 3/9, Xerox copy of deposit slip of Rs.50/- dated 23.01.12 of SB Account No. 45050 with mark 3/10, Xerox copy of closure form of MIS Account No.2111445 dated 23.01.2012 with mark 3/11, Xerox copy of withdrawal form dated 24.01.12 withdrawn from SB Account No.45050 with mark 3/12, Xerox copy of amount deposited dated 24.01.12 in SB Account No. 45050 with mark 3/13, Xerox copy of statement given in inquiry with mark 3/14, Xerox copy of statement dated 01.09.15 of SB Account No. 45040 with mark 3/15, Xerox copy of RTI application dated 04.12.15 submitted to respondent no.4 with mark 3/16, Xerox copy of RTI reply dated 15.12.15 given by respondent No.4 with mark 3/17 are submitted by the complainant No.1

10. The application submitted by the complainant to produce documentary has been admitted vide Ex.12. In this regards, the respondent has submitted Xerox copy of MIS Account opening form No.2111445, closure form, Cheque No.326168 of Rs.2,94,000/- of State Bank of India. Withdrawal form of Rs.2,94,000/- withdrawn from SB Account No.45040 produced vide list of Ex.19.

11. The complainant submitted application vide Ex.20 that the respondent has not produced the documents as mentioned in production application.  The learned advocate of the complainant has argued that the complainant has invested Rs.3,00,000/- in Monthly Income Account No. 2111445 on 22.02.2009 for the period of six years and maturity date is 22.12.2015.  The complainant has withdrawn the interest accrued in MIS Account till 23.01.2012.  Thereafter, Shri R C Trivedi had obtained the passbook with trickery and opened bogus Saving Account No. 45040 in the name of the complainant.  The MIS Account has been closed prematurely and withdrawn the amount from bogus Saving Account.  The complainant has proved the facts by giving oral evidence.  Therefore, the complaint is entitled to get his MIS amount with 18% interest and give Rs.1,00,000.

12.  Learned counsel of respondent Shri J G Patel argued that the complainant has mentioned the wrong facts.  The complainant had opened Saving Account No.45040 and he had himself withdrawn the amount by transferring the MIS Amount.  There is signature on closure and withdrawal forms and the same has been accepted in inquiry concluded by LCB.  As per the complainant requests, the amount has been paid to him and no any misappropriation has been committed.

13.  Learned Counsel Shri JG Patel of the respondent further added that, the Postal Department is not responsible for the mischief played by the agent as the agent has not been appointed by the Postal Department.  The complainant has not produced any kind of documents proving the loss caused to him by the deficiency of Postal Department.  He has urged to set aside the application.  Learned Counsel, Shri J G Patel depends on the facts mentioned in reply.  Moreover, further added that Postal Department has acted as per departmental rules and regulation and there is no any deficiency in the service of respondent.  In support of argument, the respondent has taken the base of verdict, Union of India Vs. Shankar Ram-2011 N.C.J 242 “N.C” and intimated to quash the application.

14.  Taking into consideration the argument of both the learned counsel and taking into consideration of documentary evidence and statement of parties, the facts of the complaint is liable to be accepted.  As intimated by learned counsel of respondent, the complainant has opened MIS Account No.2111445 on 22/12/2009 with Rs. 3,00,000/- (Three lac only) for the period of six years.  The interest accrued on MIS Account was being paid regularly.  Thereafter, the complainant had closed his account on 23.01.2012 and regularly received the interest till that date.  The complainant has been given account payee cheque no. 316167 of Rs.2,94,000/-, the aforesaid cheque was credited in the Saving Account No. 45040 and amount of cheque has been withdrawn on 24.01.2012 by the complainant himself.  The complainant has made the signatures on closure and withdrawal forms.  As such, the complainant has received the amount however filed the false application against the Department of Post.  The complainant intimated that agent Shri Rajeshbhai Trivedi had approached on 23.01.2012 and asked for calculation of interest.  Moreover, added that Central Government had announced for enhancement of 1% interest to Senior Citizen w.e.f. 24.01.2012 and therefore passbook is required, as such got the original passbook by contrivance.  He has got signatures on blank forms.  The complainant has neither closed his account nor withdrawal the amount.  The closure/withdrawal forms are not filled up by the complainant.  Saving Account No.45040 is not opened by the complainant. To commit misappropriation, Shri R C Trivedi had opened bogus account by connivance of employees of Postal Department.

15.  As discussed above considering the argument of both the parties.  It is liable to accept the facts of the complainant.  The complainant has produced affidavit of documents vide Ex.2, in which it has been stated that MIS Account No. 2111445 was opened on 22.12.2009 with amount Rs.3,00,000/- (Three lac only) for the period of six years and date of maturity is 22.12.2015.  Interest accrued on MIS Account is being paid regularly till 23.01.2012.  Thereafter, the agent had obtained the original passbook by false promise and contrivance of giving higher interest to senior citizen and closed the account illegally of complainant and credited the cheque in to bogus Saving Account No. 45040, subsequently withdrawn from it.  In this regards, details facts are mentioned in affidavit.  They added in affidavit that, “closure form of MIS Account No.2111445 has been produced with mark No.3/11, 17/2 and 19/1 and there is no signatures of complainant No.2 namely Smt. Shakuntlaben Vijaysinh Solanki who is joint account holder of MIS Account No.2111445.  There should be signatures of both complainants on closure forms and there is a rule of remaining present during the closure of accounts.  MIS Account No.2111445 has been closed without our presence.  The complainant added that the Saving Account No.45040 has never opened by them and no any consent was given in this regards.  Rs.50/- had been deposited with mark 3/10 and 19/4. There is no signature of depositor on deposit slip and never opened the Saving Account and there is no question of opened the account as interest is receiving regularly w.e.f. 07.04.2010 to 23.01.2012 and produced statement of MIS Account No.2111445 with Mark 3/2 and 19/3 as such withdrawal the interest amount 17 times without opening of Saving Account therefore no question arise to open Saving Account.  By opening bogus Saving Account No.45040 on 24.01.2012, the amount has been withdrawn on the same day by connivance of agent Shri Rajesh Trivedi and Postal employees and copy of statement has been enclosed with Mark 3/15 and 19/7 and looking to the statement, MIS account exists however, bogus Saving Account has been opened.  The complainant presented that bogus account No.45040 standing open in the name of complainant no.1 which is never opened by him and there is no name of Smt. Shakuntlaben who is wife of complainant no.1.  When there is joint MIS Account, joint Saving Account should be opened.  But in the instant case, there is no name of Smt. Shakuntlaben Solanki in Saving Account.  There is a rule to effect the payment in the presence of account holders.  The complainant has no knowledge of withdrawal amount Rs.2,94,000/- on 24.01.2012 hence question does not arise to remain present of complainant?

ORDER

1. Applicant’s present Consumer application is allowed.

2. Respondents No. 1 to 5 are hereby directed to effect payment of Rs.3,00,000/- (Three lac only) with contract interest w.e.f. 23.01.2012 till the date of maturity and then after, pay running interest @ 6% till date of payment.

3. Respondents are ordered to pay Rs.3,000/- (Three thousands only) to the applicant towards mental harassment and expenditure cost of application.

4. The respondents shall comply with this order within two months.

5.             Aggrieved by the directions issued by the District Forum, the appeal was filed.  In appeal the same contentions were raised by the petitioner that they are not liable for the act of Mr. R.C. Trivedi, their agent and they had duly followed the entire procedure and are not guilty of deficiency in providing the service to their customers.  The State Commission after re-assessing and re-appreciating the evidence on record concluded as under:

7.    Petitioner:- Heard the learned counsel of the petitioner no. 1 to 5 Shri H D Shukla.  He argued that the complainant has made the signature made on page no. 32 and made the signature on blank page, it is his negligence.  But the said signature made for getting enhance interest in MIS account.  Moreover, it has been argued that on receipt of cheque or amount from the depositors, the agent of small saving scheme gives receipt in token of acceptance but the complainant has not produced any kind of such receipt before respondents.  Moreover, agent is appointed by the collector and if agent misappropriated the amount, there is no responsibility of Postal Department and appointing authority is responsible and appointing authority should proceed against the agent.  No employees of Postal Department have committed the misappropriation with collusion of agent Shri R.C. Trivedi.  If agent committed misappropriated the amount of the complainant, the postal Department is not responsible.  As such there is no deficiency in the service rendered by the Postal Department and the present complaint is required to quash and set aside.

8.    Respondent:-   The learned counsel of original plaintiff Shri J.N. Patel argued that the verdict of forum is just and fit and intimated to quash the appeal.  On support of his argument, he depends on State Commission verdict of appeal No. 249/2019, 250/2019, 338/2019, 379/2019, 416/2019, 437/2019, 438/2019, 439/2019, 440/2019, 441/2019, 442/2019, 522/2015, 658/2019, 659/2019, 660/2019, 73/2020, 74/2020, 75/2020, 76/2020.

9.    Considering the argument of learned counsel of both the parties and read the documentary evidences and judgment of Hon’ble Forum. There is no dispute that the complainant is entitled of Rs.3,00,000/- (Three lac only) on the date of maturity.  Many depositors of post office are defrauded in Godhra city by agent with collusion of postal employees.  It is a scam to withdraw the amount more than one crore.  CBI has inquired the matter and filed the charge sheet against employees of Postal Department and agent.  Charge sheet under India Penal code of rule 420, 407, 468, 471 and 120 (b) and rules 13(2), 13 (1)(d) and 13(1)(c) have been filed against twenty two officials.

10.  As per above facts, it can be said that the respondents have misappropriate the amount with collusion of agent.  The complainant has not received any amount.  Therefore, there is deficiency in the service rendered by the respondents.  In such situation, the respondents are responsible to effect the payment of Rs.3,00,00/- (Three lac only) to the complainant and disagreed with the arguments of the petitioners.  Therefore, we came to the conclusion that the verdict of Hon’ble Forum is just, fit and legal.  There is no need to intervene and passed the following order.

ORDER

1. The appeal is quashed and set aside on admission stage.

2. The judgment and order dated 26.09.2019 of District Forum be kept intact.

3. No order as to costs in appeal.

4. If the petitioner credited the amount in CMA No. -70/2020 and appeal No. 175/2020, Office is directed to pay the amount with interest if accrued on amount by account payee cheque after verifying it with office records.The cheque may be handed over to the attending learned advocate.

6.             This order is impugned before us with similar contentions as raised twice before the fora below and fora below have considered all the evidences led by the parties and found the petitioner guilty of deficiency in service.  It is a settled proposition of law that this Commission has a limited revisional jurisdiction.  It is not required to re-assess and re-appreciate the evidences and substitute its own findings on facts, especially when the findings on facts are concurrent. It can only interfere with the orders of the fora below where the petitioner has succeeded in showing that there is perversity in the order or that the fora below have wrongly exercised the jurisdiction.  An order can be said to be perverse where it is based on no evidence or where the material evidences have been neglected.  Learned counsel for the petitioner in the present case has failed to point out that any material evidence was not considered by fora below.

7.            It has been so held by the Hon’ble Supreme Court in “Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269” has held as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

8.            Again in “Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286,” the Hon’ble Supreme Court has reiterated the same principle and has held as under:

  “17.  The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity.  In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”   

9.             In T. Ramalingeswara Rao  (Dead) Through L.Rs. and Ors. Vs. N. Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon’ble Supreme Court has held as under:

“12.   When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

10.          It is the duty of the petitioner to convince this Commission that the Impugned order is a perverse order.  The petitioner has failed to point out any material evidence which was there on the record but was not considered by the fora below while passing the impugned order.  Also it is evident that the findings are based on the evidences on record and it is not a case of no evidence.  The order is passed on the cogent evidences proved on record. It is also a settled proposition of law that the employer is bound by the act of its agent.  Although the agent was the agent selected by State Government but he was appointed as agent to the petitioner so he was working for the petitioner and the petitioner cannot escape its liability.  It is also clear that there were large number of complaints against this agent Mr. R.C. Trivedi of fraud and misappropriation.

11.          We find no merit in the present revision petition.  The Revision petition is dismissed in limine with no order as to costs.