IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 401/09 DATED 01.01.2010<br /> ORDER<br /> <br /> Complainant S.Shankar, <br /> S/o Late T.Shivalingaiah, No.1036, 8th Main, Gokulam 3rd Stage, Mysore-570002.<br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Parties 1. The Director, All India Institute of Speech and Hearing, Manasa Gangothri, Mysore-6.<br /> 2. The Branch Manager, Bank of Baroda, Extension Counter, All India Institute of Speech and Hearing Campus, Manasa Gangothri, Mysore-6.<br /> (By Sri. A.V.Jayarama Rao, Advocate for O.P.1 and<br /> Sri.S.Umesh, Advocate for O.P.2))<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 31.10.2009<br /> Date of appearance of O.P. : 23.11.2009<br /> Date of order : 01.01.2010<br /> Duration of Proceeding : 1 MONTH 8 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking direct to first opposite party to pay the balance 60% arrears of pension with interest from 17.08.2008 till the date of payment and so also compensation for causing tension and mental torcher for inordinate delay in payment of the pension as well as the arrears and so also, to furnish calculation sheet and to impose penalty on the second opposite party for furnishing wrong information.<br /> <br /> 2. In the complaint, it is alleged that, the complainant is a retired official of the first opposite party. His monthly pension is being credited to his S.B. account at SBM Gokulam Branch, Mysore every month. As per the instructions of the Government, monthly pension has to be credited well in advance on the last working day of every month. First opposite party has not credited the monthly pension of August 2009 even by 3rd September. First opposite party did not pay by exhibiting utter negligence and carelessness with an intention to harass and humiliate the complainant, Senior Citizen as he has been fighting legitimately for the benefits. A letter dated 10.09.2009 was sent to first opposite party to arrange for remittance of the pension forthwith. On receipt of the said letter, the first opposite party credited the pension only on 14.09.2009 causing 14 days delay. The copy of the letter sent by the first opposite party of the second opposite party appears to be concocted and fabricated. On enquiries with SBM, the complainant learnt that it had received the cheque on 11.09.2009, which was sent for clearance and the amount came to be credited on 14.09.2009. Further, it is alleged that, the Government of India in the month of August 2009, issued orders for disbursement of 60% arrears of pension consequent to implementation of 6th Pay Commission recommendations. The complainant did not receive the arrears. He addressed a letter dated 23.09.2009 to the first opposite party. On 01.10.2009 complainant received letter from first opposite party stating that, the arrears would be disbursed on receipt of relevant office memorandum and approval of the competition Authority. It is false and motivated. The complainant sent another letter dated 19.10.2009 to the first opposite party, stating that as early as 27.08.2009, Government had issued necessary O.M. On 28.10.2009 part amount has been credited to the account of the complainant. Full amount has not been credited. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party has filed objections contending that, as per Rule 85 monthly pension is required to be paid on or after the last working day of the month. It is stated, monthly pension of the complainant for the month of August 2009 was drawn and sent to second opposite party well in advance. Further it is stated that, on the basis of news published in the newspaper, arrears of pension cannot be drawn. Authenticated orders of the Government are necessary. On receipt of the Government orders, approval of the competent Authorities is necessary. As no orders were received, the relevant orders were down loaded from the website and after obtaining the approval of the competent Authority, the pension of the complainant has been drawn and disbursed. Further, it is stated that, the complainant has not specified the amount due to him. Also, it is stated that, this opposite party is not a service provider and the complainant being not a Consumer, the complaint is not maintainable. Other material allegations in the complaint are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party in the version has stated that, on 28.08.2009 it received the cheque from the first opposite party, which was sent through M/s Speed and Safe Courier Pvt. Ltd. And it was learnt that, the cheque has been mis-placed by the courier and on the same day, duplicate banker cheque was issued and that has been encashed. Other allegations are denied. Hence, it is prayed to dismiss the complaint.<br /> 5. The complainant has filed his affidavit and produced certain documents. For the first opposite party, Accounts Officer has filed his affidavit and certain documents are produced. For the second opposite party, the Manager has filed his affidavit and produced certain documents. We have heard the arguments of the complainant and advocate for both the opposite parties and perused the records.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of either of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- The facts mentioned in the earlier paragraphs are not repeated. The first grievance of the complainant is that, the first opposite party did not credit his monthly pension in time and second grievance is that, first opposite party did not credit the arrears of pension.<br /> <br /> 9. So far concerned to payment of pension for the month of August 2009, the first opposite party has denied the claim of the complainant contending that in time, the pension was drawn and through bankers cheque, the amount was sent to the second opposite party. In this regard, at Sr.No.11 even the complainant has produced copy of the letter of the second opposite party to the first opposite party. From this letter, prima-facie it is made out that, the second opposite party received banker cheque from first opposite party and on the same day, it was forwarded to State Bank of Mysore through a courier service, so that the amount will be credited into the account of the complainant. The complainant has alleged in respect of this letter that, “it appears to be concocted and fabricated”. But, to substantiate the said allegations that the said letter is fabricated or concocted, there is no cogent evidence for the complainant. Even considering the contention of the second opposite party, it had received the cheque from the first opposite party towards the monthly pension and the cheque number is mentioned in the said letter. Also, the opposite parties contend that, since the cheque was sent through courier, it was misplaced, duplicate cheque was obtained etc., Taking into the consideration of these facts, the grievance of the complainant that the first opposite party did not credit the pension well in time and there is delay or negligence, has not been established.<br /> <br /> 10. As regards, the contention of the complainant that the 60% arrears of pension was not credited in time, the complainant alleges that, the Government of India issued orders in the month of August 2009 for disbursement of the arrears of pension as per the implementation of 6th pay Commission recommendations. He further alleges on 28.10.2009 only the part of amount has been credited. In this regard, at the out set first opposite party contend that, no office memorandum or orders were received and on the basis of news in the newspaper, it cannot act and draw the pension. Also, it is contend that, after coming to know of the government order, it was down loaded and thereafter, the pension has been credited etc., Considering the evidence on record, even though as claimed by the complainant, the Government has passed orders on the respective dates, there is no evidence on record to substantiate that the said Government order or office memorandum was actually received by the first opposite party. Hence, in the absence of actual receipt of Government order or OM, pension cannot be drawn and credited to the concerned. Even otherwise, most important aspect that needs to be considered is, the document at Sr.No.19 at page 50. It is office memorandum No.7/23/08 dated 27.08.2009. In this memorandum, it is mentioned amongst other things that, “however the payment of remaining 60% of arrears will be subject to the conditions stipulated regarding budgetary support for additional expenditure…….”. Hence, prima-facie from the said mention in the memorandum the payment of arrears will be subject to the budgetary support. In the absence of budget, the arrears cannot be drawn and paid to the concerned. There is no evidence on record in this case that, in fact there was sufficient budget for payment of the arrears of pension. Also, it is relevant to note that, the payment can be made not only on the basis of the Government order or office memorandum, but it requires approval as contended by the first opposite party. Considering these aspects, we are of the opinion that, the complainant has not proved deficiency in service or negligence on the part of the first opposite party in respect of arrears of pension.<br /> <br /> 11. As regards, maintainability or otherwise of the complaint of the complainant against the first opposite party, for both parties certain rulings are referred to. But, in view of the fact that, the complainant has not proved any deficiency in service as against the first opposite party, consideration of all those rulings is not necessary. <br /> <br /> 12. The complainant has further alleged that, the first opposite party has not credited entire pension. That is denied by the first opposite party. The complainant has not furnished the details of the pension that he is entitled to or the less amount credited. Hence, the claim of the complainant to furnish calculation sheet, no rule or authorities pointed out that there is an obligation on the first opposite party in this regard. Moreover, the first opposite party has written to the complainant regarding credit of the pension.<br /> <br /> 13. Now, coming to consider the complaint against second opposite party bank, even as admitted by it, a cheque was sent through courier to the bank of the complainant. But, the courier misplaced the same. For this reason, there is delay in crediting the pension of the complainant for the month of August 2009. Thus, from the said contention according to the second opposite party bank, there is deficiency in service on the part of the courier service. However, it was the duty of the second opposite party to credit the amount into the bank of the complainant well in time as per the rules and regulations. The courier service was the agent of second opposite party bank. For the act of the agent, the second opposite party bank is liable and responsible. It is for the second opposite party bank to take action against the courier service or otherwise. Hence, under the circumstances, the delay in crediting the pension of the complainant for the month of August 2009 is due to the negligence of the second opposite party bank and hence, it is liable to pay compensation to the complainant.<br /> <br /> 14. Accordingly we answer the point partly in affirmative only against second opposite party.<br /> <br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed against second opposite party bank and dismissed against first opposite party.<br /> 2. The second opposite party bank is hereby directed to pay compensation of Rs.2,000/- to the complainant towards mental agony and inconvenience caused in not crediting the pension amount in time. The amount shall be paid within 60 days from the date of this order, failing which the amount shall carry interest at 10% p.a. <br /> 3. Further, the second opposite party shall pay a sum of Rs.500/- cost of the proceedings to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 1st January 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />