BENGALURU URBAN DISTRICT, NO.8, 7^TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052         

C.C.No.568/2012

DATED THIS THE 8^th APRIL 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Smt.Shiba George,

                                                D/o. Late George Vargies,

                                                No.32, Vijayalakshmi Nivas,

                                                3^rd Cross, Sayathi Murthy Road,

                                                R.S.Palya, MS Nagar Post,

                                                Bangalore – 33 

V/s

Opposite parties: -

1.   The Manager,

Indian Bank,

Nandi Durga Road,

Benson Town,

Bangalore

2.   Navin Kumar Kanujia,

Regional PF Commissioner-II

Central Public Information officer, SRO, Mysore. 

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the Ops no.1 and 2, under section 12 of the Consumer Protection Act, praying to pass an order, directing the 1^st OP to credit the two cheques dated 22-3-2010 for Rs.15,231=00 which were sent by the 2^nd OP towards the provident fund and to pay 18% interest on the said amount from 22-3-2012 to till the date of realization and to pay Rs.30,000=00 towards damages and cost of litigation.

2. The brief facts of the complaint can be stated as under.

          The complainant has worked as staff nurse in Hold Worth Memorial Hospital at Mysore from 2006 to 2009, and in the year 2009 she has resigned the job and continued job staff nurse at Bangalore. The complainant has applied for Provident Fund with the 2^nd OP which was deposited through her employer. On the request of complainant the 2^nd OP has sent two cheques as fully and final settlement of provident fund amount existing in the 1^st OP bearing cheque no. 240423 dated 22-3-2010 for Rs.10,135=00 and second cheque no.279075 dated 22-3-2010 for Rs.5,096=00 . In all total Rs.15,231=00 was sent by the 2^nd OP to the complainant. Since the complainant has furnished her SB account number for returning of provident funds amounts. Inspite of receiving the two cheques from the 2^nd OP by the 1^st OP, the 1^st OP has not credited to the complainant’s account and even the complainant has visited the 1^st OP bank for several times and approached the Bank manager about the cheque amount, but the Bank manager has given answer as they have not received any cheques from the 2^nd OP from past two years, finally the complainant has filed an application under right to information to the 2^nd OP on 8-2-2012 and enquired about the cheques of 2^nd OP, the 2^nd OP has replied with written information on 29-2-2012 that two cheques were received by the 1^st OP and the same were not credited into her SB account. Inspite of the receipt of the cheques the 1^st OP has not done his duty by not crediting the cheques to the complainant’s account which leads to deficiency of service. Thereafter the complainant has immediately approached the 1^st OP and informed about the cheques already received by the 1^st OP, but the amount was not credited to her account, but even after such request and information the 1^st OP did not do his duty which leads to deficiency of service and on account of it the complainant has suffered heavy loss and mental agony. Thereafter the complainant has issued legal notice on 8-3-2012 to the 1^st OP and commonly to the 2^nd OP and sought for damages of Rs.48,886=00 in total. After receipt of notice by the 1^st OP, the bank replied immediately that they have traced out the entries and shortly credit the cheques to the complainant’s account. Due to utter failure cause serious deficiency in service and unfair trade practice on the part of the OP. The complainant has suffered both mentally and financially. The 1^st OP has intentionally avoiding to credit the cheques in the complainant’s account which was sent by the 2^nd OP towards the provident fund amount. Hence, the present complaint is filed.

          2. After service of the notice, the Ops no.1 and 2 have appeared through their counsel and filed version separately.

          3. The averments of version of the 1^st OP can be stated as under:

          The complaint of complainant is imaginary and unconscionable and it is liable to be dismissed. The 1^st OP does not dispute that on request of the complainant, the 2^nd OP has sent two cheques as fully and final settlement of provident fund amount to the complainant’s account in the 1^st OP bearing cheque no.240423 dated 22-3-2010 for Rs.10,135=00 and another cheque no.279075 dated 22-3-2010 for Rs.5,096=00 in all total Rs.15,231=00 was sent by the 2^nd OP to the complainant since the complainant had furnished her SB account number details in her application for retuning of provident funds amount. The complainant till recently had not brought to the notice of the 1^st OP that corresponding credit of the two cheque amounts totaling to Rs.15,231=00 was not credited to her SB account. The moment specific information was given to the 1^st OP the amount was credited to the account of the complainant within four days of the receipt of information along with 4% interest for the delayed period from 30-3-2010. The amount credited to the complainant’s account on 13-3-2012 has been withdrawn and the balance as on date is Rs.318=00. The delay had happened in the absence of the specific information as on the date of the delivery of envelope and encashment of the two cheques. The delay was never deliberate nor want of diligence on the part of the 1^st OP. The 1^st OP denies that the complainant had to visit the 1^st OP’s bank several times in this regard. It is not within the knowledge of the 1^st OP that, the complainant had filed an application under right to information to the 2^nd OP on 8-2-2012 and enquired about the cheques of the 2^nd OP and then the 2^nd OP had replied with written information on 29-2-2012 that two cheques were received by the 1^st OP and same were not credited into the complainant’s SB account. From the lawyer’s notice dated 8-3-2012 only where the provident fund office reply for the RTI query was attached, 1^st OP got certain details and immediately followed up the issue and sent an acknowledgment to the customer and credited the amount to the complainant account alongwith interest for the delayed period. The credit information was also sent to the beneficiary; the 1^st OP had acted on the complaint within 4 days of receipt of the specific details and credited the interest as per the RBI directive. After verification of the original ledger of the instrument it came to OP notice that both the cheques amounts were inadvertently credited to the SB account no.412219855 on 30-3-2010 in the same branch belonging to one Mr.Ravi Deniel and upon realization of the mistake the OP, exercising the banker’s right to lien and set off credited the said amount by debiting the account of Ravi Daniel to that of the complainant. Mere failure to credit in to the account being only an inadvertent error does not constitute deficiency of service. The 1^st OP acted quickly upon receipt of the specific information and did the needful to credit the said cheques amount alongwith interest. The complainant had already received the entire cheque amount of Rs.15,231=00 alongwith interest, so she is not entitled to claim interest at 18% per annum and the complainant has not suffered any damages nor incurred any travelling expenses as claimed.  So it is prayed to dismiss the complaint, in the interest of justice and equity.   

          4. The averments of version of the 2^nd OP can be stated as under:

          It is true that, the complainant had applied for the settlement of provident fund with the OP no.2 and the same was settled in due course and a cheque No.240423 and 279075 dated 22-3-2010 for Rs.10,135=00 and Rs.5,096=00 respectively have been issued to the SB account no.709716270 at Indian Bank, Nandi Durga Road, Benson Town, Bangalore during the month of March 2010, the same has been realized on 30-3-2010. Therefore there is no deficiency of service on the part of the 2^nd OP. The 2^nd OP issued the cheque to the 1^st OP to credit the same to the complainant account. Inspite of the receipt of the cheques, the 1^st OP has not credited the cheques to the complainant’s account. So on account of deficiency of service by the 1^st OP, if complainant has suffered the 2^nd OP is not liable to pay damages as claimed by the complainant. The complaint against the 2^nd OP is liable to be dismissed. The 2^nd OP has discharged his liability in due course, there is no cause of action on the part of the 2^nd OP and he is not liable to pay any damages. The delay on the fact of 1^st OP in crediting the proceeds to the account, the 2^nd OP is not responsible. The 2^nd OP is neither liable to pay any damages nor costs as claimed by the complainant, so the complaint of complainant may kindly be dismissed against the 2^nd OP, in the interest of justice and equity.

5. So from the averments of the complaint of the complainant and objection of the Ops no.1 and 2, the following points arise for our consideration.

1.                  Whether the complainant proves that, the 1^st OP is negligent and there is deficiency of service on the part of the 1^st OP, in not crediting cheques to his account as stated in the complaint?

2.                  If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                  What order?

6. Our findings on the above points are;

          Point no.1:  In the Affirmative

Point no.2:  The complainant is entitled to claim a sum of Rs.3,000=00 as compensation alongwith Rs.2,000=00 towards cost of litigation.

          Point no.3:  For the following order

REASONS

          7. So as to prove the case, the complainant has filed her affidavit by way of evidence and produced documents alongwith the complaint. On the other hand, one R.Ramaswamy, who being the Chief Manager working in the 1^st OP has filed his affidavit by way of evidence on behalf of the 1^st OP and produced copies of documents which were marked as annexure-I to VII, but no affidavit of the 2^nd OP was filed. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between lines.

8. One Smt.Shiba George, who being the complainant has stated in her affidavit that, she has worked as staff nurse in Hold Worth Memorial Hospital at Mysore from 2006 to 2009, and she has resigned the job in the year 2009 and thereafter she was continued job staff nurse at Bangalore. She has applied for Provident Fund with the 2^nd OP which was deposited through her employer. On her request the 2^nd OP has sent two cheques as full and final settlement of provident fund amount existing in the 1^st OP bank bearing cheque no. 240423 dated 22-3-2010 for Rs.10,135=00 and second cheque no.279075 dated 22-3-2010 for Rs.5,096=00 . In all total of Rs.15,231=00 which were sent by the 2^nd OP to the complainant. Since, she has furnished her SB account number details in her application for returning of provident fund amount. Inspite of receiving the two cheques from the 2^nd OP by the 1^st OP, the 1^st OP has not credited to her account and she has visited the 1^st OP bank for several times about the cheque amount but the Bank manager has given answer as they have not received any cheques from the 2^nd OP from past two years, finally she has given an application under right to information to the 2^nd OP on 8-2-2012 and enquired about the cheques of OP No.2. The 2^nd OP gave a reply on 29-2-2012 that two cheques were received by the 1^st OP and the same were not credited into her SB account. Inspite of the receipt of the cheques the 1^st OP has not done his duty by not crediting the cheques to her account which amounts to deficiency of service. Thereafter, she has immediately approached the 1^st OP and informed that the cheques were already received by the 1^st OP, but he has not credited the same to her account but even after requesting her amount and informed that the 1^st OP has not done his duty which leads to deficiency of service and due to that, she has suffered heavy loss and mental agony. Finally she has issued legal notice on 8-3-2012 to the 1^st OP and sought for damages of Rs.48,886=00. After receipt of notice, the 1^st OP has given reply. The 1^st OP has intentionally avoided to credit the cheques in her account and it has caused her great inconvenience, mental agony and hardship. Once the cheques are submitted to the bank it is the duty of the bank to credit the same to the account holder and not to the others accounts. So she has come up with the present complaint, so the complaint be allowed and pass an order as prayed in the complaint.

9. Let us have a look at the relevant documents of complainant. Document no.1 of the complainant is copy of letter of the 2^nd OP dated 29-2-2012 addressed to the complainant stating that, the cheque no.240423 dated 22-3-2010 for Rs.10,135=00 and cheque no.279075 dated 22-3-2010 for Rs.5,096=00 were sent to SB account no.709716270 at Indian Bank , Nandi Durga Road, Benson Town, Bangalore and the same has been realized on 30-3-2010. Document no.2 is the letter of 1^st OP dated 9-3-2012 addressed to the complainant stating that, they have acknowledged the receipt a notice of complainant that they have traced out the entries on the details available in the letter of RPF, Commissioner-II, Mysore and amount will be credited. Document no.3 is the copy of legal notice of complainant issued to the Ops no.1 and 2 dated 8-3-2012 to pay damages of Rs.48,886=00 alongwith cost of notice. Document no.4 is the copy of postal acknowledgment card and postal receipts.

10. At this stage, let us have a cursory glance at the material evidence of the 1^st OP. One R.Ramaswamy, who being the Chief Manager working the 1^st OP has stated in his affidavit that, the complainant is an SB account holder in the 1^st OP bank bearing no.709716270. The 1^st OP does not dispute that on request of the complainant, the 2^nd OP has sent two cheques as full and final settlement of provident fund amount to her account in the 1^st OP bearing cheque no.240423 dated 22-3-2010 for Rs.10,135=00 and cheque no.279075 dated 22-3-2010 for Rs.5,096=00 in total Rs.15,231=00 were sent by the 2^nd OP to the complainant since the complainant has furnished her SB account number. The complainant till recently had not brought to the notice of the 1^st OP that corresponding credit of the two cheque amounts totaling to Rs.15,231=00 was not credited to her SB account. The moment specific information was given to the 1^st OP, the amount was credited to the account of the complainant within four days of the receipt of information along with 4% interest for the delayed payment from 30-3-2010. The amount was credited to the complainant account on 13-3-2012 and that amount has been with drawn and the balance is Rs.00=00. The delay has happened in the absence of the specific information. The delays was never deliberate nor want of diligence on the part of the 1^st OP. The credit information was also sent to the beneficiary; the 1^st OP had acted on the complaint within 4 days of receipt of the specific details and credited the interest amount for the delayed period as per SB interest rats as per the RBI directive. After verification of the original ledger of the instrument it came to notice of the 1^st OP that both the cheques amounts were inadvertently credited to the SB account of one Mr.Ravi Deniel after realization of the OP mistake; the OP exercising the banker’s right to lien and set off credited the said amount by debiting the amount of Ravi Daniel to that of the complainant. Mere failure to credit in to the account being only an inadvertent error and it does not constitute deficiency of service under CP Act, so the complainant cannot claim the amount as prayed in the complaint. The complainant has not suffered any damages nor incurred any travelling expenses and there is not proof for the same. So it is prayed to dismiss the complaint.  

11. The 1^st OP has produced statement of account of complainant which is marked as annexure-I wherein we have found crediting of two cheques for Rs.10,135=00 and Rs.5,096=00 on 22-3-2010 alongwith interest @ 4% per annum from 30-3-2010 to 13-3-2012  of Rs.1,193=00. Annexure-II is letter of 2^nd OP addressed to Ravi Daniel stating that two cheques for Rs.10,135=00 and Rs.5,096=00 were credited wrongly to his account and those amount will be recovered from his account and amount of Rs.10,135=00 and Rs.5,096=00 were debited from his account and for that Annexure-III is produced. Annexure- IV to VII consists of letters of 2^nd OP addressed to the 1^st OP about the cheques pertaining to the provident fund amount of complainant and also two cheques copies dated 29-3-2010 and those particulars of the 2^nd OP were received by the 1^st OP on 30-3-2010.

12. So taking the oral and documentary evidence of complainant and compare the same with the material evidence of 1^st OP, it is vivid and clear that, the 2^nd OP has sent two cheques for Rs.10,135=00 and Rs.5,096=00 to the 1^st OP dated 29-3-2010 and letter of 2^nd OP was received by the 1^st OP on 30-3-2010, but these two cheques were not credited to SB account of complainant as instructed by the complainant. In fact, the 2^nd OP has sent two cheques as per the instruction of complainant, but instead of crediting these two cheques to the SB account of complainant, the 1^st OP has credited the same to one Ravi Daniel and after issuance of legal notice by complainant, the 1^st OP became vigilant and debited the amount from the SB account of Ravi Daniel and credited the same to the account of complainant on 30-3-3012 by causing delay approximately about two years. The act of the 1^st OP in not crediting two cheques timely to the SB account of complainant and crediting the same after about two years by debiting the amount from other’s account certainly amounts to negligence and deficiency of service on the part of the 1^st OP.

13. The oral evidence of complainant that, the 1^st OP is negligent and there is deficiency of service on the part of the 1^st OP in not crediting her two cheques issued by the 2^nd OP being the provident fund amount is corroborated by documents no.1 to 7 produced by the complainant and also oral and documentary evidence of 1^st OP, and as such, we are of the view that, the complainant who comes to forum seeking relief has proved her case by placing believable material evidence that, the 1^st OP is negligent and there is deficiency of service on the part of the 1^st OP. But no negligence can be attributed to the 2^nd OP as the 2^nd OP has sent two cheques timely to the 1^st OP and accordingly, we answer this point in a affirmative.

14. By making careful scrutiny of the material evidence of both parties, it is made crystal clear that, the two cheques were credited to the complainant account on 13-3-2012 alongwith interest at 4% by the 1^st OP, so no question of claiming that amount by the complainant in the complaint. So looking to the nature of negligence and deficiency of service on the part of the 1^st OP, we feel it properly to award a nominal compensation of Rs.3,000=00 to the complainant. So the  OP no.1 is directed to pay Rs.3,000=00 to the complainant towards compensation within 30 days from the date of this order, failing which, the OP no.1 shall pay the said amount to the complainant alongwith 6% interest per annum on the said amount from the date of this order to till the date of realization. The OP No.1 is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation and the complaint of complainant filed against the 2^nd OP is dismissed, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint of the complainant is partly allowed. The OP no.1 is directed to pay Rs.3,000=00 to the complainant towards compensation within 30 days from the date of this order, failing which, the OP no.1 shall pay the said amount to the complainant alongwith 6% interest per annum on the said amount from the date of this order to till the date of realization.

The OP No.1 is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.

The complaint of complainant filed against the 2^nd OP is dismissed.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 8^th day of March 2014).

MEMBER                                                      PRESIDENT