PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainants to impeach the Judgement/Final Order dated 20.09.2017 passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (for short, Ld. District Forum) in Consumer Complaint No. 119/2009 whereby the complaint lodged by the Appellants under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellants herein being Complainants lodged the complaint before the Ld. District Forum alleging that in the year 2005 they opened six numbers of Monthly Income Scheme (MIS) through Opposite Party No.2/Postal Agent in Serampore Head Post Office, viz. –(a) A/C No.8012966 dated 12.02.2005 of Rs.75,000/-; (b) A/C No.8012981 dated 12.02.2005 of Rs.1,50,000/-; (c) A/C No.8018581 dated 31.12.2005 of rs.75,000/-; (d) A/C No. 8012963 dated 12.02.2005 of Rs.75,000/-; (e) A/C No.8013340 dated 04.03.2005 of Rs.45,000/- and (f) A/C No. 8017239 dated 26.10.2005 of Rs.60,000/- aggregating Rs.4,80,000/-. On account of illness of their son as they had to arrange for a major operation of their son at Vellore (Tamil Nadu), the complainants closed all six MIS account before maturity and on 10.07.2007 the complainant no.1 as per instruction of the OPs made an authorisation letter stating that they are eager to close down all the MIS mentioned above and transferred the same in their savings account vide A/C No.1276869. The complainant no.1 authorised Sri Souvik Chatterjee, son of OP No.2 to collect papers regarding the six number of MIS on their behalf. On the same date i.e. on 10.07.2007, the complainants made an application to open a new savings account and on the same date being A/C No.1276869 at Serampore Head Post Office but the said new savings account has not been handed over to them till date. The complainants have alleged that the OP No.2 convinced them and obtained their signatures in the withdrawal slip of the post office and placed them for withdrawal of interest of MIS from OP No.1. The complainants have stated that they frequently visited the office of OP No.1 to know about the details of the closure of the MIS but on each and every time, the OP No.1 stated to them that it will require at least six months time to complete the entire process of closure as the amount is a hefty one. Subsequently, the complainants came to know that OP No.2 is absconding and on 03.09.2007 the complainant no.1 has made a written representation informing the OP No.1 not to allow to OP No.2 to withdraw any amount from their account but the OP No.2 reported them that all the amount has been transferred on the date of application to their savings account. Finding no other alternative, the complainants wrote a letter to OP No.1 on 17.09.2007 but OP No.1 did not pay any heed to the same. The complainants have alleged that the OP No.1 in connivance with other dealing staff and OP No.2 withdrew the entire amount which amounts to deficiency in services. Hence, the complaint on the allegation of deficiency in services on the part of postal authority in rendering services with prayer for following reliefs, viz. – (1) a direction upon OP No.1 to refund the entire amount of Rs.4,80,000/- i.e. the amount of six MIS; (2) compensation of Rs.2,00,000/- for harassment and mental agony and (3) Rs.10,000/- for litigation cost etc.
The Respondent No. 1/Opposite Party No. 1by filing a written version has stated that OP No.2 has been appointed as an agent by the Sub-Divisional Officer on the basis of Govt. of India’s National Savings Organisation for various small savings securities having no connection with the postal department. The OP No.1 has stated that on 10.07.2007 by their letter, the complainants closed all the MIS accounts and instructed the postal department to transfer the available amount to their SB Account. In the said letter, they also authorised one Souvik Bhattacharjee to collect papers as per their said instruction and as such OP No.1 transferred the available amount as per postal rule to the SB accounts of the complainants after completing necessary formalities. The OP No.1 has submitted that they are duty bound to honour the withdraw slip presented by the authorised messenger of the account holder and, therefore, as there was no deficiency in services on the part of them, the complaint should be dismissed.
The Respondent No.2/Opposite Party No.2, Postal Agent of Serampore Post Office did not appear to contest.
After assessing the materials on record including the evidence led by the parties, the Ld. District Forum by the impugned judgement/final order dismissed the complaint, which prompted the complainants to prefer the appeal.
Mr. Provas Ghosh, Ld. Advocate for the Appellants has submitted that the Ld. District Forum has failed to consider that while submitted the premature closure application, there is a printed mandatory condition that ‘pass book must accompany this form’ which was not followed and no pass book has ever issued by respondent no.1 in favour of the appellants. He has also submitted that the Ld. District Forum has failed to consider that respondent nos. 1 & 2 did not inform anything about the withdrawal of the entire money from the savings account of the appellants in spite of requests. He has further submitted that the Ld. District Forum should have considered that there was big racket wherein some employees of postal department, agents and their relatives in collusion with each other are defrauded the consumers for long time back. Therefore, the order passed by the Ld. District Forum should be set aside.
Per contra, Mr. Abhijit Bhadra, Ld. Advocate for the Respondent No.1 has contended that respondent no.2 being a postal agent of Serampore Head Post Office, after creating trust over the appellants obtained signature in withdrawal slip and taking advantage of the trust, the son of respondent no.2 namely Souvik Bhattacharjee and an another person namely Biman Chatterjee withdrew the total money of six MIS by becoming messenger and committed breach of trust with the appellants. He has also contended that the respondent no.1 has acted on the basis of standing rule of Post Office Savings Bank Manual (Vol.I) and therefore, no liability can be attributed upon respondent no.1 far less to speak of about deficiency on the part of respondent no.1.
We have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the Appellants opened six numbers of MIS amounting to Rs.4,80,000/- in the year of 2005 through Respondent No.2 i.e. the agent of respondent no.1 from Serampore Head Post Office. Due to prolonged and expensive treatment of their son, the appellants desire to close all the MIS before maturity. On 10.07.2007, the appellant no.1 made an authorisation letter to close down all the MIS in order to transfer the amount in their savings account being No.1276867 issued by respondent no.1 and authorised to Sri Souvik Bhattacharjee, son of respondent no.2 to collect all papers regarding six MIS on their behalf. In pursuance to the instruction of the respondent no.1, the appellants deposited their six MIS books through the respondent no.2. On the same date i.e. on 10.07.2017 the appellants made an application to open a new savings account being No.1276869 but the pass book was not handed over. After making application for the closure of MIS, the appellants frequently visited the office of respondent no.1 and also to respondent no.2 to know about the details of the closure of MIS but on each and every occasion, the respondents informed the appellants that it will require at least six months to complete the entire process closure as the amount is a hefty one.
It is also not in dispute that thereafter, the appellants noticed that respondent no.2 was absconding and on suspicion, the appellant no.1 visited Serampore Head Post Office and deposited a written representation on 03.09.2007 with a request to respondent no.1 not to allow respondent no.2 to withdraw any amount from their account but the senior Post Master reported that all the amount of six MIS have already been transferred to their savings account and the same have been withdrawn on 11.07.2007, 12.07.2007, 13.07.2007, 14.07.2007 and 19.07.2007 amounting to Rs.44,000/-, Rs.1,47,000/-, Rs.1,14,000/-, Rs.1,00,000/- and Rs.55,000/- respectively by the said Souvik Bhattacharjee and one Biman Chatterjee.
Now, the question arises as to whether the manner in which the amount was allowed to be withdrawn by Sri Souvik Bhattacharjee, son of respondent no.2 and one Sri Biman Chatterjee was in accordance with Post Office Savings Manual Rules or not. In this regard, it would be pertinent to have a look to the provisions of Post Office Savings Bank Manual (Vol. I) which is set out below –
“33. (1) To withdraw money, a depositor is required to present or send his pass book with an application for withdrawal (SB-7) properly filled in and signed. If the depositor does not attain the post office for payment, the counter Assistant should see that the name and signature of the agent or messenger have been entered in the space provided for the purpose in the form of application and the depositor has signed in the prescribed space provided for this purpose.
Note 1:-
- The Post Master should not act as an agent or messenger of a depositor for the purpose of withdrawal from a savings account standing open in his office. The term Post Master includes Sub-Post Master, Branch Post Master, Deputy Post Master, Assistant Post Master and SPMs In Charge of SB Branch.
- Any SAS/MPKBY/PPF agent cannot act as an agent or messenger of a depositor for the purpose of withdrawal from his/her savings bank account.
Note 2:- In the case of application for withdrawal presented by a messenger of the depositor subsequent to the date appearing thereon, withdrawal should be allowed in the usual course if the interval between the date of application and its presentation is only a day or two. Where the interval is longer or where there is reason for suspicion, careful enquiry should be made and the withdrawal allowed only if the result of the enquiry is satisfactory”.
The foregoing provision makes it abundantly clear that the respondent no.1 was under obligation to take some safeguard the account holder (consumer) from the clutches of unscrupulous persons. The provision goes to show that where there is reason for suspicion, careful enquiry should be made and the withdrawal should be allowed only if the result of the enquiry is satisfactory meaning thereby the respondent no.1 had an obligation to satisfy itself that the manner in which the prayer for withdrawal had been made was satisfactory. Evidently, all the six MIS stood in the joint names of the appellants. Surprisingly enough, only on the basis of letter given by appellant no.1to respondent no.1 authorising Sri Souvik Bhattacharjee (son of respondent no.2) on 10.07.2007, the respondent no.1 allowed the said Souvik and one Biman Chatterjee to withdraw the entire amount without verifying the reason for such premature withdrawal of six MIS and further without ascertaining from the appellant no.2 whether she had any consent in withdrawal the said amount. The letter given by appellant no.1 to the Sr. Post Master of Serampore Post Office dated 10.07.2007 does not contain any reason for such premature withdrawal. Therefore, a man of ordinary prudence normally will not allow the son of postal agent to withdraw the amount only on the basis of the letter of appellant no.1 ignoring the signature of the other joint account holder namely appellant no.2.
The Ld. District Forum ignoring the said fact has wrongly observed that by the letter dated 10.07.2007, the complainants authorised two persons to collect the available money. It simply indicates non-application of judicial mind. The fact remains that the appellant no.1 authorised Sri Souvik Bhattacharjee to withdraw the money but it is not clear how another person named Biman Chatterjee, who is not an authorised agent was allowed to withdraw the amount. In all fairness, the respondent no.1 should have restrained Sri Souvik Bhattacharjee because the said Souvik was not appointed as postal agent by Sub Divisional Officer, Serampore.
Ld. Advocate for the Respondent has submitted that the payment was made by respondent no.1 in due course and as such the Ld. District Forum was quite justified in exonerating the respondent no.1. He has also submitted that the respondent no.1 has acted on the basis of Post Office Savings Bank Manual (Vol. I) and the appellants have failed to prove that the respondent no.1 had any nexus with respondent no.2. We are astonished to note here that the respondent no.1 had no reason to allow Sri Souvik Bhttacharjee (son of respondent no.2) or Sri Biman Chatterjee to deal with the papers of the appellants, when they are not the authorised postal agent of Serampore Post Office.
Therefore, it is palpably clear that the appellants/complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of respondent no.1/OP No.1 and OP No.1 was found deficient in rendering services by indulging Sri Souvik Bhttacharjee (son of respondent no.2) or one Sri Biman Chatterjee to withdraw the money of six MIS of the appellants basing upon the letter of appellant no.1 only on 10.07.2007. The Ld. District Forum has failed to consider the material aspects and simply held that as the appellants authorised Sri Souvik Bhttacharjee (son of respondent no.2) to deal with the papers of the appellants, no liability or no deficiency was there on the part of respondent no.1, which is contrary to the materials on record. Accordingly, the findings or observations made by the Ld. District Forum cannot be upheld. The Ld. District Forum has failed to appreciate the avowed object behind the legislation of the Act to provide for better protection of the interest of the consumers and keeping in view the said object and the pleading of the parties and evidence on record should have held the respondent no.1 was deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
For the reasons aforesaid, the appellants /complainants are entitled to compensation. To deal with the situation, it would be worthwhile to reproduce the provision of Section 14(1)(d) of the Act which runs as follows –
“14. Finding of the District Forum. – (1) if, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complaint against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely :
...........
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party”.
The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. Therefore, a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.
Needless to say, the assessment of compensation depends upon the facts and circumstances of the particular case. In the instant case, over the incident of criminal breach of trust and cheating one criminal case being Serampore Case No.163/07 dated 03.09.2007 under Sections 406 and 420/34 of Indian Penal Code has been started. Ld. Advocate for the appellants has candidly submitted that at the time of considering the application of anticipatory bail of Sri Souvik Bhattacharjee by the Hon’ble High Court under Section 438 Cr. P.C., the entire amount of six MIS had been paid by the respondent no.2 to the appellants. Therefore, the amount of compensation should be considered keeping in view of the fact that the appellants/complainants have already received the entire amount of Rs.4,80,000/- of the six MIS. The negligence or deficiency on the part of postal department has occurred due to fault on the part of Sr. Post Master of Serampore Head Post Office and as such he is liable to pay compensation. However, when a Court/Forum directs payment of compensation against any public office, the ultimate sufferer is the common man. It is the tax payers’ money which is paid for inaction of those who are entrusted under the Acts or Rules to discharge the duties in accordance with law. It is, therefore, the appellants/complainants are entitled to compensation for harassment or mental agony suffered by them from the then Senior Post Master of Serampore Head Post Office.
In a decision reported in (1994) 1 CPR 569 (Lucknow Development Authority – Vs. – M.K. Gupta) the Hon’ble Apex Court directed that the authority to fix the responsibility of the officers who are responsible for causing harassment and agony to the appellant within a period of six months from a copy of this order is produced or served on it and the Court further ordered that the amount of compensation of Rs.10,000/- awarded by the Commission for mental harassment shall be recovered for such officers proportionately from their salary.
Considering the entire facts and circumstances and after giving thoughtful consideration to the submission advanced by the parties, it appears to us that the loss suffered by the respondent in this case is not of that ilk which should be compensated by payment of Rs.2,00,000/- as prayed for. Considering the degree of loss or injury suffered by the appellants, in our view, a token compensation of Rs.20,000/- in the facts and circumstances would sub serve the object of justice.
In view of the above, the appeal is allowed on contest. However, there will be no order as to costs in this appeal.
The impugned judgement/final order is hereby set aside.
Consequently, CC/109/2009 is allowed.
The Respondent No.1/Opposite Party No.1 is directed to pay compensation of Rs. 20,000/- and Rs.5,000/- as litigation costs aggregating Rs.25,000/-to the appellants/complainants within 60 days from date, in default, the amount shall carry interest @ 8% p.a. from date till its realisation.
The Chief Post Master General, West Bengal Circle is requested to recover the amount of compensation of Rs.25,000/- from the Senior Post Master of Serampore Head Post Office (who was posted from 10.07.2007 to 19.07.2007) for causing harassment and agony to the appellants from his salary or other financial benefit within three (3) months from the date of communication of the order.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information.
The Registrar of the Commission is also directed to send a copy of the order to the Chief Post Master General, West Bengal Circle for information.
