BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 29^TH of July 2011

PRESENT

        SRI.RAVISHANKAR           :   PRESIDENT         

                                                                        SMT.LAVANYA M. RAI       :   MEMBER

                                                                       SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.102/2010

(Admitted on 20.03.2010)

Mrs. Theresa DSouza,

Wo A.P.J. Castelino,

Aged 70 years,

Residing at Rosewin, No.51,

Mahatma Nagar,

Kavoor Post,

Marakada Village,

Mangalore Taluk 575 015.                 …….. COMPLAINANT

(Advocate for Complainant: Sri.K.S.Sharma.)

          VERSUS

1. Andhra Bank,

   A Govt. of India Undertaking,

   Ajantha Complex,

   Milagres Cross Road,

   Hampankatta,

   Mangalore 575 001.

   Represented by Senior Branch Manager.

2.  Mrs. Grace Fernandes,

     W/o Leslie Fernandes,

     Aged about 52 years,

    Suspended Clerk of Andhra Bank,

    Ajantha Complex,

    Milagres Cross Road,

    Hampankatta,

    Mangalore-575 001.

    Residing at Mahatma Nagar,

    Kavoor Post, Marakada Village,

    Mangalore Taluk-575 015.               ……. OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: Sri K.P. Vasudev Rao)

(Advocate for the Opposite Party No.2: Sri M.P.Shenoy)

ORDER DELIVERED BY PRESIDENT SRI.RAVISHANKAR:

1.       The Complainant filed this complaint under Section 12 of the Consumer Protection Act against the Opposite Parties alleging deficiency of service hence prays for payment of Fixed Deposit amount of Rs.2,83,108/- with interest at 12% p.a. along with compensation of Rs.50,000/- towards deficiency of service. 

The brief facts of the complaint is that, the Complainant is a senior citizen and retired teacher and she got savings bank account in extension counter of Opposite Party No.1 at Bejai Mangalore and she got another account in Opposite Party No.1 bank itself.  Opposite Party No.2 is the neighbour of the Complainant.  The Opposite Party No.2 taking an advantage of loneliness and vulnerability of the Complainant had approached her under the pretext of helping the Complainant in operating her bank account with Opposite Party No.1.  Opposite Party No.2 used to make entries in the pass book as per the banking norms in her own handwriting and Opposite Party No.2 used to deposit and withdraw the amount to and from the S.B. account of the Complainant.   Such being the case, Opposite Party No.2 by knowing that the Complainant had a pension benefits in her S.B. account and induced the Complainant to invest some amount in Fixed Deposit and she offered to help the Complainant in that regard.  Accordingly, Opposite Party No.2 had collected 4 cheques of Rs.50,000/- each from the Complainant and Opposite Party No.2 advised the Complainant not to mention the name of the payee on the ground that she would write the name of the Opposite Party No.1 later if the cheques were required to be used for transfer of money from the S.B. Account of the Complainant to the fixed deposit.  Opposite Party No.2 also collected signatures of the Complainant on four debit slips along with cheques, representing that the cheques will be used only if the debit slips were not found to be usable for transfer of money to the tune of Rs.2,00,000/- from S.B. account.  Believing the words of the Opposite Party No.2, Complainant issued four cheques bearing No.474390, 474991, 474392, 474393 for Rs.50,000/- each without mentioning the name of the payee.  After receipt of the said cheques Opposite Party No.2 asked the Complainant to come to the bank collect the original deposit receipts with respect of four fixed deposits.  Accordingly, Complainant went to Opposite Party No.1 after a period of one month from the date of issuance of the cheques.  Opposite Party No.2 handed over the four original deposit receipts duly signed by Branch Manager of Opposite Party No.1 bank dated 19.09.2006 as a proof of deposit of Rs.2,00,000/- in four different deposits.  Opposite Party No.2 also updated the pass book of the Complainant pertaining to her S.B. account No.6549 regarding the encashment of four cheques drawn on ‘self’ for investment on fixed deposits.  The Complainant was fully satisfied after receipt of the four fixed deposit certificates and pass book entry regarding the investment.  On maturity of four fixed deposits Opposite Party No.2 again induced the Complainant for renewal of deposits for further period of 15 months.  The Complainant being prevailed upon by the Opposite Party No.2 had consented for renewal of the fixed deposits and accordingly Opposite Party No.2 got renewed the fixed deposits till 19.03.2009 by making necessary entries and as on the date of renewal the opening amount a sum of Rs.55,325/- was mentioned in the deposit certificates and further renewed from 19.12.2007 to 19.03.2009. Thereafter in the first week of December 2008 the Complainant went to Opposite Party No.1 bank for pre-mature withdrawal of the fixed deposits as she required the money for her domestic purpose.  On verifying the some documents Opposite Party No.1 arranged for withdrawal but at the utter surprise Opposite Party No.1 told that there was no such fixed deposits found in the Opposite Party bank in her name and Opposite Party No.1 had not enquired with Opposite Party No.2 with respect to the deposit of Rs.2,00,000/- from the Complainant.  The Complainant on 14.01.2009 had given a written representation to Opposite Party No.1 for which Opposite Party No.1 replied on 17.01.2009 stating that there was no deposit certificates in the bank in the name of the Complainant.  The Complainant shown the pass book to Opposite Party No.1 to ensure that there is an entry in the pass book regarding the fixed deposit for which Opposite Party No.1 being suspicious about the genuineness of the entry in the pass book had taken a computerized print of the pass book with respect to the S.B. account of the Complainant from 2001 onwards.  On careful observation of the computerized pass book by Opposite Party No.1 it was found that those four cheques were withdrawn in the name of one Abdul Salam and Complainant herself.  The said Abdul Salam is a stranger to the Complainant.  Thereafter Complainant lodged a police complaint against Opposite Party No.2 under Section 465, 468, 471, 472, 408, 420 and 506 of Indian Panel Code.  The Complainant in good faith had deposited a sum of Rs.2,00,000/- in four fixed deposits amounting to Rs.50,000/- each with Opposite Party No.1 through Opposite Party No.2 and Complainant orally requested Opposite Party No.1 to make arrangements to pay the said fixed deposit amount but the Opposite Party No.1 refused to yield the request of the Complainant and given a reason that the bank is not responsible for any fraudulent acts of its officials against the customers.  Opposite Party No.1 should not supposed to refuse the request of the Complainant.  The Complainant made fixed deposits in Opposite Party No.1 and Opposite Party No.2 is the employee of the Opposite Party No.1 bank.  When the Opposite Party No.2 has misused the amount given by the Complainant, Opposite Party No.1 is vicariously liable to pay the loss suffered by the Complainant.  Further Opposite Party No.1 is trying to avoid their liability by giving a reason that the blank deposit certificates are forged by Opposite Party No.2 but Opposite Party No.1 cannot avoid the liability of payment to the Complainant.  Hence Opposite Party No.1 and 2 have committed unfair trade practice and deficiency of service to the Complainant by causing great financial loss, hence prays for the maturity value of the fixed deposits to the tune of Rs.2,83,108/- with 12% interest along with compensation for deficiency of service as prayed above.  

2.       After service of notice Opposite Parties appeared through their counsel and filed versions.

          Opposite Party No.1 in his version has contended that Opposite Party No.2 is an employee of Opposite Party No1 but they have no knowledge that said Opposite Party No.2 is good friend of Complainant and she used to operate her account and made entries in the pass books.  Whatever private understanding that took place between Opposite Party No.2 and the Complainant is outside the Banking norms of Opposite Party No.1 and that does not bind on the Opposite Party No.1 bank and it was not possible under Banking Rules that to deposit and withdraw the amount without coming to the bank and Complainant has not made any averment and alleged that the transaction have taken place within the premises of the bank.  The Complainant is also well aware of the said fact.  The grievances made against Opposite Party No.2 only and not against Opposite Party No.1.  Therefore, the alleged dispute is only against Opposite Party No.2 and there is no cause of action or deficiency of service or negligence on the part of the Opposite Party No.1.  The Opposite Party No.1 not aware that the Complainant had invested or advised to invest at the instance of Opposite Party No.2 in fixed deposit.  The Branch Manager of the Opposite Party No.1 bank had not at all signed the four fixed deposits and Complainant had created a story that she had been to the Opposite Party No.1 bank to receive the fixed deposits and story of renewal of four cheques are also false.  The Complainant in this transactions had already approached the Banking Ombudsman at Bangalore against Opposite Party No.1 and the same is dismissed as baseless.  The conduct of Opposite Party No.2 by committing forgery, fraud etc. do not bind on Opposite Party No.1 bank and the said three cheques were drawn in favour of Abdul Salam and one cheque by Complainant.  The original cheques were in the custody of the bank.  Therefore no fixed deposits were made by Complainant in Opposite Party bank and there is no deficiency of service on their part while rendering service to the Complainant.

          Opposite Party No.1 further contended without prejudice that the S.B. account extract from 02.01.2001 to 16.12.2008 discloses that on following dates the Complainant had issued cheques to Opposite Party No.2:-

Again on 26.08.2006 the cheque for Rs.50,000/- bearing No.474393, 474391 and 474392 were issued in the name of Abdul Salam for Rs.50,000/- each and cheque bearing No.474390 dated 06.09.2006 is a self cheque for Rs.50,000/- in total the said Rs.2,00,000/- were withdrawn by Complainant and Abdul Salam and there is no reflection of withdrawal the said amount towards fixed deposits.  The alleged fixed deposits bearing No.2006/22/682 dated 19.09.2006, No.2006/22/685 dated 19.09.2006 and No.2006/22/684 dated 19.09.2006 are all forged.  They do not bear the signatures of the Branch Manager.  Even the code of the Branch Manager is not mentioned in the said fixed deposits and they are not issued by Opposite Party No.1 bank.  There are no corresponding entries either in the books of account of Opposite Party No.1 bank or pass book of the Complainant.  On 19.09.2006 there was no balance available in S.B. account of the Complainant as because she had already withdrawn the amount on 26.08.2006 and 06.09.2006 as per the account extract.   Opposite Party No.1 is doubting that the Complainant and Opposite Party No.2 have connived together to make unlawful gain from Opposite Party No.1 bank as because the Complainant and Opposite Party No.2 are well acquainted each other.  The Complainant had not at all lodged any police complaint against Opposite Party No.1 because she know that there is no allegations against Opposite Party No.1 and there is no wrong committed by Opposite Party No.1 bank.  Inspite of that she has filed this false complaint, hence there is no deficiency of service and prays for dismissal of the complaint.

          Further Opposite Party No.1 filed additional version and contended that as per the records maintained by Opposite Party No.1 since from last so many years they are issuing computerized printing of the fixed deposits and they are never hand written except for the signature of the Branch Manager.  The fixed deposits produced by the Complainant are hand written.  Therefore, it can be construed that the said fixed deposit receipts are fake and not genuine one and as per the Rules of the Bank if any fixed deposits blank forms are missing or not traceable in serial order they are treated as destroyed and the person who checks it and authorizes the same puts his code in the report of the inventory.  As such the documents produced by the Complainant clearly stipulate that alleged fixed deposit receipts bearing No.235897, 235898, 235899 and 235900 are deemed to be destroyed.  The officer who entered the same has got the code No.0018698 and the officer authenticated the same has got the code No.0001897.  Thus the said fixed deposit receipts were not issued by Opposite Party No.1 and cheques issued by the Complainant were withdrawn by one Abdul Salam and Complainant herself to the tune of Rs.2,00,000/-.  Therefore, there is no deficiency of service and prays for dismissal of the complaint. 

          Opposite Party No.2 in her version has contended that the said alleged transaction stated in the complaint have not occurred during the course of discharging her duties as a banker.  The allegations made in the complaint are self explanatory and Opposite Party No.2 has got nothing to do.  Opposite Party No.2 being a neighbour having relationship with Complainant since from 15 years and she is taking care of food, clothing and other necessary of the Complainant.  The Complainant used to take financial assistance from Opposite Party No.2 and used to avail all services from Opposite Party No.2 with regard to pay the electricity bills, telephone bills and her medical expenses were look after by Opposite Party No.2.  The Complainant also used to take money from her bank account through Opposite Party No.2.  All the payments made by Opposite Party No.2 used to be entered in the pass book.  The Opposite Party No.2 had written all the amount due and the Complainant had suppressed the said fact before this Forum and she is not liable to pay any amount to the Complainant.  The Opposite Party No.2 has evasively denied all the averments made in the complaint and taken a contention that there is no cause of action.  As the said transaction is personal transaction and personal obligation and there is no consumer dispute arose in the complaint and hence prays for dismissal of the complaint. 

3.       In view of the above pleadings, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mrs.Theresa D’Souza (CW1) filed affidavit and answered the interrogatories served on her. The Complainant produced 5 (five) documents.   One Sri.Krishnappa Naik M (RW1), Branch Manager of the Opposite Party No.1 and one Mr.Grace Fernandes (RW2) - Opposite Party No.2 filed counter affidavit and answered the interrogatories served on them.  Ex R1 to R5 were marked for the Opposite Parties.  The Complainant produced notes of arguments along with citations.  Opposite Party No.1 also produced notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i) & (ii): Negative.

                       Point No.(iii): As per final order.       

REASONS

5.  Points No. (i) to (iii):   

          The case of the Complainant is that, she had paid Rs.2,00,000/- to Opposite Party No.2 who is an employee of Opposite Party No.1 through four cheques for Rs.50,000/- each to make fixed deposit for certain period.   Accordingly Opposite Party No.2 made fixed deposit of the said amount and issued receipts.  Subsequently it was renewed.  After renewal, in order to withdraw the said fixed deposit amount she went to Opposite Party No.1 bank and enquired for pre-mature withdrawal of the fixed deposits but she found no such fixed deposits were made by Opposite Party No.2 to Opposite Party No.1 bank.  Hence alleges deficiency of service and prays for payment of the said deposit amount along with compensation against Opposite Party No.1 and 2.

          On contrary Opposite Party No.1 has taken a contention that the Complainant had not come forward to Opposite Party No.1 bank for making fixed deposit at any point of time.  The entire transaction took place between Complainant and Opposite Party No.2 only and they are not responsible for the transaction took between the Complainant and Opposite Party No.2.  Even though Opposite Party No.2 is their employee the transaction was not took in the bank, hence they are not liable to pay any amount as claimed in the complaint and they are also not liable to pay any compensation for deficiency of service as there is no deficiency of service on their part and prays for dismissal of the complaint.

          The Complainant had produced Xerox copies of the four fixed deposit receipts before this Forum to substantiate her claim.  On going through the copies of the fixed deposit receipts we observed that the said receipts are stands in the name of Andhra Bank and it is hand written one.  The date of issuance of the receipt is 19.09.2006 and matures on 19.12.2007.  According to Opposite Party No.1 the said deposit receipts were not issued by them and they stated that no hand written receipts will be issued to any customers whereas the said deposit receipts were issued in handwriting.  This goes to show that Opposite Party No.2 had issued the said deposit receipts to the Complainant without knowledge of Opposite Party No.1.  It is observed that in the signature column it is mandatory on the part of the Manager and Officer to mention the code whereas in these fixed deposit receipts there is no mention of code number.  When there is no mention of the code numbers in the fixed deposit receipts we believe that the said fixed deposit receipts are not issued by Opposite Party No.1 bank.  Admittedly the Complainant in her letter dated 14.01.2009 issued to Opposite Party which is marked as Ex R3 we noted that Opposite Party No.2 had issued deposit receipts in her home and she has categorically stated in Ex R3 that Opposite Party No.2 induced her to put the amount into fixed deposit.  As per the induction of Opposite Party No.2, Complainant issued a blank cheques believing that Opposite Party No.2 is going to make fixed deposit of the amount of Rs.2,00,000/-.  The said issuance of cheques to Opposite Party No.2 also took place at the residence of the Complainant.  Therefore, we consider the transaction of issuing cheques towards fixed deposits for amount of Rs.2,00,000/- by Complainant is without the knowledge of Opposite Party No.1.  We are of the opinion that the Complainant being a retired teacher had shown gross negligence in dealing with huge money.  If at all Complainant wants to make a fixed deposit she should go to Opposite Party No.1 bank to make the fixed deposit of the amount but she has not done so and she is not supposed to issue a blank cheque without mentioning “yourself” in the payable column.  If at all, she do not know that what has to be written in the cheque she would have taken the advice of the Manager for the purpose of making fixed deposits but she has not done so.  Therefore, we consider it is only a negligence on the part of the Complainant herself and it is observed that the said four cheques were withdrawn by one Mr.Abdul Salam and Complainant herself on different dates.  When the said cheques were tendered for realization the Opposite Party No.1 has no option apart from clearance without any doubt or instruction from Complainant.  The learned advocate for Complainant vehemently argued that Opposite Party No.2 is an employee of Opposite Party No.1 and Opposite Party No.2 had misused and misrepresented by using the Opposite Party No.1’s fixed deposit receipts and issued to the Complainant and therefore the act done by Opposite Party No.2 comes during the course of employment.  Hence argues that Opposite Party No.1 is vicariously liable for payment of the loss caused to the Complainant.  But we disagree the said liability as because the Opposite Party No.1 had never taken the amount from the Complainant for fixed deposit.  If at all, any piece of documents produced by the Complainant to show that the fixed deposit made by the Complainant is within the knowledge of Opposite Party No.1 then definitely Opposite Party No.1 could have held vicariously liable for faults done by Opposite Party No.2 whereas Complainant had not established that the transaction done with Opposite Party No.2 is within the knowledge of Opposite Party No.1.  In Ex R3 Complainant admits her negligence and states that Opposite Party No.2 is dealing with bank transactions of the Complainant.   When such being the case, we found Opposite Party No.2 is only responsible for the loss caused to the Complainant and it is observed that Complainant approached Ombudsman of the Bank against Opposite Party No.1 for relief and the said complaint also dismissed stating baseless.  The said fact is not denied by the Complainant also.  The learned advocate for Opposite Party No.1 vehemently argued that Opposite Party No.2 had forged the deposit receipts and alleged that Opposite Party No.2 had stolen empty deposit receipts and they were traced out and they consider the said receipts are destroyed to that effect the Manager and Officer have given endorsement by making that the said fixed deposit receipts were considered as destroyed.  When they found that Opposite Party No.2 had misused the fixed deposit receipts by issuing the same to the Complainant they have suspended the Opposite Party No.2 to that extent.  Apart from that they cannot act beyond their limits.  It is only a fraud played by Opposite Party No.2 in order to extract the money from the Complainant by making use of the innocence of the Complainant.  The Complainant also lodged a criminal complaint against Opposite Party No.2.  The learned advocate for Complainant had submitted a number of citations with respect to vicarious liability and submitted that Opposite Party No.1 is vicariously liable for the act done by Opposite Party No.2 but according to us the said decisions are not applicable to this case in hand as because the act of Opposite Party No.2 is a fraud played against Complainant individually in order to extract the money from the Complainant.  The Complainant also made transaction with Opposite Party No.2 without the knowledge of the Opposite Party No.1.  Therefore, the decisions quoted by the Complainant are not applicable to this complaint and Complainant failed to establish that Opposite Party No.1 is vicariously liable for the act done by Opposite Party No.2.  On the other hand, the learned advocate for Opposite Party No.2 also cited Supreme Court decision reported in AIR 1978 and submits that Opposite Party No.1 is not held liable for the acts done by Opposite Party No.2 when it is not within the course of employment and he has categorically explained the transactions which took between the Complainant and Opposite Party No.2 beyond the course of employment.  Therefore, if at all Complainant alleges a fraud the option is left to the Complainant is to file a criminal proceedings which has already filed against Opposite Party No.2 and we found no consumer dispute arose against Opposite Party No.1 and 2.  As such the complaint is liable to be dismissed.  For the above said reasons we answer point No.(i) and (ii) in the negative. 

8.       In the result, we pass the following:                          

ORDER

          The complaint is hereby dismissed.   No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 17 dictated to the stenographer typed by her, revised and pronounced in the open court on this the 29^th day of July 2011.)

        PRESIDENT                      MEMBER                            MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mrs.Theresa D’Souza - Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1–19.9.2006-True copies of the original deposit receipts

                for Rs.50,000/- each (4 in No.s) given by  police,

                originals are held by them in connection with the

                criminal case against O.P.No.2.

Doc. No.2 – 17.1.2009: Letter written by the O.P. No.1 to Complainant.

Doc. No.3 – 22.1.2009: True copy of the Police Complaint lodged by the Complainant.

Doc. No.4 – 22.1.2009: True copy of the F.I.R. with Mahazer.

Doc. No.5 – True copies of the Pass Book (2 in Nos.) Originals are with North Police, Mangalore.

Witnesses examined on behalf of the Opposite Parties:

RW1 –Mr.Krishnappa Naik M., Branch Manager of Opposite Party No.1.

RW2- Mr.Grace Fernandes of Opposite Party No.2.

Documents produced on behalf of the Opposite Parties: 

Ex R1 – 09.02.2004: Power of Attorney of Mr.Krishnappa Naik M. (Notarized copy)

Ex R2 – 09.04.2010: Account statement copy from 02.01.2001 to 20.12.2008.

Ex R3 – 14.01.2009: Letter written by Mrs.Theresa D’Souza to Opposite Party No.1.

Ex R4 – 19.9.2006: Copy of the Deposit Receipts – 4 in No’s.

Ex R5 – Copy of the cheques issued, which were claimed as terms deposits by Mrs. Theresa D’Souza – 12 in No.’s.

Dated:29.07.2011                            PRESIDENT