KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURA
APPEAL NO.617/10
JUDGMENT DATED 22.3.2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SHRI.M.K.ABDULLA SONA -- MEMBER
Dhanalekshmi Bank,
Guruvayoor, reptd. by its
Manage. -- APPELLANT
(By Adv.Anithas Jacob)
Vs.
Appunni, Krishna Nivas, -- RESPONDENT
Karakadu, Guruvayoor
(By Adv.K.S.Gopinathan Nair)
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
The appeal is directed against the order dated 31st July 2010 of the CDRF, Thrissur in CC 1220/05. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in not releasing the amount of Rs.1 lakh which was deposited in Sri.Dhanachakra Deposit scheme on 28.10.03. It was also alleged that on verification of the pass book, the complainant had received only Rs.42,926/- from his account and the entries are not made properly in the pass book. Therefore, the complainant claimed the balance amount of Rs.57,074/- with interest , cost and compensation.
2. The opposite parties entered appearance and filed written version denying the alleged deficiency in service. They contended that the complainant has not deposited Rs. 1 lakh in Sri.Dhanachakra Deposit scheme or in any other scheme of the opposite party Dhanalakshmi Bank; that the complainant’s wife Karthiayani had deposited an amount of Rs.49,460/- with the first opposite party under Sri.Dhanachakra Deposit Scheme and the said deposit was made on 19.5.2000 and the same was renewed on 31.7.2000. The deposit holder Karthiayani died and the complainant and his son being the legal heirs requested for conversion of the account into the name of the complainant. Though, there occurred a mistake in showing the amount in the account, but the said mistake occurred due to the renewal of a non-existing deposit amount of Rs.50,336/-. The complainant is claiming the amount by taking advantage of the said mistake in the computer system. Thus, the opposite parties prayed for dismissal of the complaint. It is further contended that the complainant is only entitled to get the amount of Rs.42,926/-.
3. Before the Forum below, Exts.P1 to P4 and R1 to R3 were marked on the side of the parties to the complaint in CC.1220/05. On an appreciation of the facts, circumstances and the documentary evidence on record, the Forum below passed the impugned order allowing the complaint and directing the first opposite party Dhanalakshmi Bank, Guruvayoor to pay to the complainant Rs.57,074/- and als to pay interest at the rate of 10% per annum for Rs.1 lakh from 28.10.03 till realization with cost of Rs.500/-. Aggrieved by the said order, the present appeal is filed by the first opposite party/Dhanalakshmi Bank, Guruvayoor represented by its Manager.
4. We heard both sides.
5. The learned counsel for the appellant vehemently argued for the position that there is no material fact available on record to substantiate the case of the respondent/complainant that he deposited Rs.1 lakh in the Sri.Dhanalchakra Deposit scheme on 28.10.03 that the Forum below has gone wrong in relying on the case of the complainant that Rs.1 lakh was deposited by the respondent/complainant. He submitted that the complaint is filed with ulterior motive by taking profit out of the mistake committed by the bank in including a non-existing deposit amount of Rs.50,336/-. He also submitted that the Forum below has also gone wrong in awarding interest at the rate of 10% on Rs.1 lakh from 28.10.03. He pointed out the admission made by the complainant that a sum of Rs.42,926/- is credited in the account in the name of the complainant. It is further submitted that as per P2 pass book; the contracted and agreed rate of interest was only 5.75 to 5%. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and also for dismissal of the appeal. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the complaint in CC.1220/05. He much relied on P1 and P2 pass books and claimed the balance amount of Rs.57,074/-.
6. The definite case of the respondent/complainant in the written complaint in CC.1220/05 was that he deposited Rs.1 lakh in Sri.Dhanachakra Deposit scheme with No.700 and that the said deposit was effected on 28.10.03. The opposite parties therein namely the Dhanalakshmi Bank, Guruvayoor Branch and its Branch Manager vehemently contended that no such deposit was made by the complainant in Dhanachakra Deposit Scheme on 28.10.03. It was further contended that the complainant’s wife Karthiayani had deposited Rs.49,460/- on 19.5.2000 and the same was renewed on 31.7.2000. It is further contended that excess interest of Rs.440/- was credited in her account and the same was credited back; that on the death of deposit holder Karthiayani the said deposit was converted in the name of the complainant and the same was converted and credited on 28.10.03 including the amount covered by the mistaken renewal by the computer system. It was also specifically contended that Rs.42,926/- alone was in the account of the complainant and that the complainant is taking advantage of the mistaken entry regarding non existing deposit amount of Rs.50,336/-. On the other hand, the respondent/complainant has got a case that the opposite parties mis-appropriated the amount in his deposit and that false entries are made in the pass book.
7. The complainant has not established his case that he deposited Rs.1 lakh on 28.10.03. Ext.p2 is the pass book issued in the name of the complainant with account No.700. The entries in P2 pass book would show that Rs.1 lakh was deposited in the account by transfer from S.B.Account No.2330. The complainant has no case that he had S.B.Account with No.2330. At the same time, P1 pass book would show that the said account No.LF 2330 was issued in the name of Smt.Karthiayani. So, it can be concluded that the complainant had not effected any such deposit in Dhanachakra Deposit Scheme on 28.10.03. But sum of Rs.1 lakh is credited in P2 pass book in the name of the complainant by transfer from S.B. Account 2330. This circumstance would support the case of the opposite parties (appellant) that the amount in the deposit of Karthiayani was converted into the name of the complainant being the legal heir of Karthiayani So, the complainant has not come forward with clean hands. It is further to be noted that the complainant has not adduced any oral evidence in support of his case. The case of the complainant that he deposited Rs. 1 lakh on 28.10.03 cannot be accepted. But, the Forum below has not considered the aforesaid relevant aspect of the case.
8. The complainant has got a case that proper entries are not made in the pass book. But, Ext.P2 pass book would show that Rs.1 lakh was credited in the account of the complainant on 28.10.03 and interest at the rate of 5.75 to 5% was also credited on 24.7.04. The total amount in the account of the complainant was Rs.1,04,124/- and the same was renewed up to 22.10.04. So, the case of the complainant that proper entries are not made in the pass book cannot be accepted. The complainant has also got a case that only Rs.42,926/- is shown in the pass book. But, the said case of the complainant cannot be accepted in the light of the entries in P2 pass book issued in the name of the complainant with Account No.700. But, the complainant has not produced any receipt for deposit of Rs.1 lakh on 28.10.03.
9. The appellant/opposite party, Dhanalakshmi Bank has got a definite case that no deposit was made by the complainant in the Dhanachakra Deposit Scheme and that the complainant’s wife Karthiayani had deposited Rs.49,460/- in Dhanachakra Deposit Scheme on 19.5.2000 and the said deposit amount was renewed on 31.7.2000 and subsequently on the death of Karthiayani, the aforesaid deposit amount was converted in the name of the complainant. The opposite parties have also got a case that there occurred a mistaken entry in the account and thereby a non-existing deposit amount of Rs.50,336/- was renewed and credited in the account of the complainant and that the complainant is taking advantage of that mistaken entry for preferring the claim in CC.1220/05. But, the opposite parties have not succeeded in establishing the aforesaid mistake committed by the computer system. The facts and circumstances of the case would give an indication that there is some truth in the said case as contended by the opposite parties. It is to be noted that the opposite parties have not come forward to adduce oral evidence in support of Exts.R2 and R3 statement of accounts. It is for the opposite parties to establish that there occurred such a mistaken entry by crediting the non-existing deposit amount of Rs.50,336/- in the account of the complainant.
10. Ext.P2 pass book issued by the appellant/opposite party, Dhanalakshmi Bank in the name of the respondent/complainant would show that on 28.10.03, the agreed rate of interest was only 5.75%. There after, the rate of interest was reduced to 5.5. then 5.25 and lastly on 24.7.04, it was at 5%. But, the Forum below has not considered the rate of interest agreed by the parties and incorporated in P2 pass book. So, the Forum below cannot be justified in awarding interest at the rate of 10% per annum. It is further to be noted that the Forum below has also awarded interest on the entire amount of Rs.1 lakh said to have been deposited by the complainant. But, there is nothing on record to show that the deposit was made by the respondent on 28.10.03. More over, the complainant himself has admitted that a sum of Rs.42,926/- is in his credit in the account maintained by the opposite party/Dhanalakshmi Bank. If that be so, the Forum below has gone wrong in awarding interest on the said sum of Rs.42,926/-. Even according to the complaint he is only eligible to get back Rs.57,074/-. So, the interest can only be awarded on the said amount at the rate of 5% per annum. Thus, in all respects, the impugned order passed by the forum below is legally un-sustainable.
11. The forgoing discussions and the findings thereon would make it clear that parties to the complaint in CC.1220/05 failed to establish their respective pleadings. The complainant miserably failed in establishing his case that he deposited Rs.1 lakh in the Dhanachakra Deposit Scheme on 28.10.03. If that be so, the Forum below cannot be justified in finding that such a deposit was effected by the complainant on 28.10.03. Ext.P2 pass book issued by the opposite party/Dhanalakshmi Bank would show that Rs.1 lakh was credited in the account of the complainant by transfer from S.B Account No,2330. It is the case of the opposite party/bank that such an entry was made based on a mistaken entry by the computer system. It is the definite case of the opposite party/bank that a non-existing deposit amount of Rs.50,336/- was mistakenly credited in the account of the complainant. If that be so, the appellant/opposite party bank is bound to establish their case regarding the mistake committed by the computer system. Unfortunately, the opposite party/bank failed in establishing the said contention. Thus, in all respects this is a fit case to be remitted back to the Forum below for fresh consideration on merits. The parties are at liberty to substantiate their respective case by adducing cogent evidence. So, the impugned order dated 31.7.10 passed by CDRF, Thrissur in CC.1220/05 is liable to be quashed. Hence we do so.
In the result, the appeal is allowed to the extent that the impugned order dated 31.7.10 in CC.1220/05 is set aside and the matter is remanded to the Forum below for fresh consideration and disposal on merits. It is made clear that both parties are at liberty to adduce further evidence in support of their respective pleadings. They are directed to appear before the Forum below on 30.4.11. There will be no order as to costs.
M.V.VISWANATHAN -- JUDICIAL MEMBER
VALSALA SARANGADHARAN -- MEMBER
M.K.ABDULLA SONA -- MEMBER
