(Delivered on 01/09/2016)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed  by the original opposite party (for short O.P.) Nos.1&2 against the order dated 02/04/2012, passed in consumer complaint No. 164/2011, by the District Forum, Amravati, by which complaint has been partly allowed.

2.         The facts in brief giving rise to the present appeal are as under:

            The original complainant – Sudhir Ramkrishna Wankhade who is the respondent No 1 in this appeal is the son of  deceased  Ramkrishna  Mahadeorao Wankhade. Said Ramkrishna  is hereinafter referred  as deceased. The said  deceased  had kept  for fixed term called as  fixed deposit  of Rs. 1,50,000/- on 05/10/2007 with the O.P. Nos. 2- Bank for 3 years i.e till 05/10/2010. He had nominated   the O.P. No. 3 - Kusum Uttamrao Wankhade  to receive the said amount in case of his death. She is  respondent No. 2 in this appeal.  The term of  fixed deposit  was then   extended for further  3 years with the  O.P. No. 2 on 29/10/2010. However, thereafter  deceased  died  on 05/12/2010. The O.P No. 2 paid the amount of said  fixed deposit  to the O.P. No. 3 - Kusum Uttamrao Wankhade in consequence  of  the death of the deceased being his nominee by crediting  said amount to  her saving bank account . The complainant claimed  that amount from the O.P. No. 2 by  serving  the legal notice dated 07/04/2011 to the O.P. No. 2 and then filed  the consumer complaint  before the Forum against the O.P. Nos. 1,2&3 alleging deficiency in service on the part of the O.P Nos. 1&2 and seeking direction to the O.P No. 1 to 3 to pay him Rs. 2,23,000/- being the legal heir of the deceased  towards amount deposited by him and he further  claiming   Rs. 10,000/- as cost from them.

3.         The O.P.Nos.1& 2 appeared before the Forum and filed common reply and resisted the complaint. They submitted in brief that the complainant  is not their  consumer  and hence, complaint is not maintainable. They paid  the amount of fixed deposit  to the O.P. No. 3 as she being  is nominee of the deceased.  They also submitted that  the  complainant never claimed the amount of fixed deposit immediately  after the death of the deceased or he did not  file any objection immediately as against the nominee  immediately after the death of deceased. He gave notice to them  only after the amount was already  paid by them to the nominee. They have rendered no deficient service by paying  the amount of fixed deposit  to the nominee. Hence, they requested that complaint may be dismissed.

4.         The O.P. No. 3 also filed  her reply before the Forum and submitted that the  complainant  alone is not legal heir of the deceased. She got the amount of fixed deposit  before filing of the complaint. Deceased had two brothers  namely  Uttam and Dattatrya and three sisters namely Vatsala, Shakuntala and Mai. Husband of the O.P. No. 3  was assisting  the deceased in cultivation of his agricultural land and deceased had kept  income of said land  in fixed deposit  with the bank and he  had nominated  O.P. No 3 to receive  amount  incase of his death.  The complainant has filed Civil Suit  after the death of the deceased before the Civil Court which is pending,  by  preparing  false Will- Deed  of  deceased. She therefore, requested  that the complaint may be dismissed with cost of Rs. 10,000/-.

5.         The District  Forum below   after hearing  both the parties  and considering evidence brought on record  came to the conclusion under the impugned order that the amount of fixed deposit  was already paid  to the O.P. No.3 by O.P. No. 2-Bank before raising  of objection  by way notice by the complainant and therefore complainant is not entitled  to claim amount  of fixed deposit  by filing  consumer complaint  and he has to approach the Civil Court to claim the said  amount from the O.P. No. 3. However, the Forum also observed that  though for second time the amount was kept in fixed deposit  for three years with  effect from 29/10/2010, it was not necessary to transfer that amount before maturity date, to the saving bank account of the O.P. No. 3 and this constitutes the deficiency in service on the part of the O.P. Nos. 1&2 which caused  physical and mental harassment to the complainant.  Therefore, the Forum directed the O.P. Nos. 1&2 to  pay to the complainant  compensation of Rs. 25,000/- and cost of Rs. 5000/- within one month from  the date of receipt of copy of the said order and in  case of default, the said amount will be payable  with interest at the rate of 15% p.a.

6.         As observed above, the O.P. Nos. 1&2 filed this appeal  against that order. The respondent No.2/O.P. No. 3 failed to appear before this Commission despite  service of notice. Therefore, appeal is proceeded exparte against the respondent No.2.  We have perused the copies of record of complaint  filed before us by the appellants. We have also perused the written  notes of argument  filed by  learned advocate of the appellants and respondent No. 1.

7.         Appellants advocate submitted in his written  notes of argument  that the Forum erred in directing the appellants  to pay compensation  of Rs. 25,000/- and cost of Rs. 5000/- when the complainant /respondent No 1 was not  their consumer  and he had no locus standi to file the complaint as the respondent No. 2 was the nominee. The appellants  have rightly credited  the amount  of fixed deposit  to  the   saving bank account of the respondent No. 2 after the death of the deceased.

8.         On the other hand,  the learned advocate of the respondent No. 1 supported the impugned order and submitted that the respondent No. 2 was only the nominee and  trustee of the legal heirs of the deceased and she was not entitled  to receive the amount. The learned advocate of the respondent No. 1 relied on the observation made by the Hon’ble  Supreme Court in the case of Shipra Sengupta Vs. Mridul Sengupta & others , 2009 DGLS (Soft) 1063. It is observed that the nomination  indicates the  hand which  is authorized to receive the amount or manage the property and such amount or property, as the case may be, can be claimed by heirs of deceased , in accordance with law of  succession governing them.

9.         We find that,  the aforesaid  decision  of the Hon’ble Supreme Court  is very clear that  the  nominee is entitled  to receive the amount  form bank in case of the death of the depositor . However, the legal heirs  of the deceased  depositor  are entitled  to claim from the said nominee the amount as per law of succession. In the instant case as the O.P. Nos. 1&2 already paid the amount  of fixed deposit  to the O.P. No. 3/respodnent No. 2 being the nominee, no fault  can lie with the O.P. Nos. 1&2/appellants.  Moreover, the complainant /respondent No. 1 has got remedy open to claim said  amount   as heir,  from O.P. No. 3/respondent No. 2 by obtaining  succession certificate. Thus the complainant can approach  the Civil Court to seek redressal of  his grievance against the O.P. No. 3/respondent No. 2- Kusum. Hence, the   aforesaid  decision relied by the learned advocate of the complainant /respondent No. 1 is of no assistance  to the complainant /respondent No. 1.

10.       In our view the Forum erred in holding  that the amount  of fixed deposit  should not be credited  to the saving bank account of the nominee before the date of  maturity of the fixed deposit.  The deceased depositor  had died before the date of maturity of fixed deposit.   The O.P. No. 1&2/appellants  have not committed  any error or wrong by transferring the amount of that fixed deposit  to the saving bank account of  the nominee/O.P. No. 3 she was a nominee. The Forum therefore, erred in holding the  O.P. Nos. 1&2/appellants  as responsible  for transferring the  amount of fixed deposit  before the  maturity  date of the  fixed deposit . Therefore,  we hold that  the  impugned order cannot be sustained in law and needs to be set aside.

ORDER

i.          The appeals is allowed. 

ii.          The impugned order is set aside.  Complaint is dismissed.

iii.         No order as to cost in appeal.

iv.        Copy of order be  furnished  to both the parties, free of cost.