21.10.2016
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the Appellants/O.Ps challenging the judgment and order dated 11.11.2013 passed by the Ld. District Forum, Kolkata, Unit – II in CC No. 40 of 2012 allowing the complaint with the directions as under :-
“That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against op nos. 1 to 3 and same is also allowed exparte against op no.4 with cost of Rs.10,000/-.
Op nos. 1 to 3 are hereby directed to refund Rs.4,20,000/- along with interest @ 10% over the said amount with effect from 13.03.2010 till its full payment by the op nos. 1 to 3. Further for causing harassment and practicing unfair trade practice and to harass the complainant to enjoy the benefit of the investment op nos. 1 to 3 are imposed punitive damages to the extent of Rs.1,00,000/- which shall be paid to the State Consumer Welfare Fund.
Op nos. 1 to 3 are hereby directed to comply the order jointly or severally within one month from the date of this order failing which for each day’s delay penal interest @ 1,000/- per day shall be assessed over the said amount and if same is collected it shall be deposited to the State Consumer Welfare Fund and even if, non compliance of the order is continued by the op nos. 1 to 3 in that case penal action shall be started against the op nos. 1 to 3 and for which even they may be sent to jail for implementation of this order”.
The facts of the case, in a nutshell, as it revealed from available record, are that the Respondent/Complainant, a senior citizen lady, with a view to investing her money for deriving better benefit, contacted the Appellant/O.P. No. 3. The Respondent No. 2/O.P. No. 4 who was an employee in the establishment of the Appellant/O.P. No. 3, was introduced and appointed as the personal banker by the said Appellant/O.P. No. 3 for assisting the Respondent/Complainant in operational requirement, keeping the contract of the transaction and for keeping the Respondent/Complainant updated from time to time about transaction being made in respect of her money.
The Respondent/Complainant, being convinced by the Respondent No. 2/O.P. No. 4, being the personal banker towards investment of money in a scheme launched by the Appellants/O.Ps bank for earning at a higher rate of interest of 20% annually, opened an account with the Appellant/O.P. No. 3 branch.
The Respondent/Complainant thereafter issued as many as 7 cheques of different Banks in favour of Kotak Mahindra Bank during the period from December, 2009 to March, 2010, as shown in para 4 of the complaint, involving a total amount of Rs.4,20,000/- through the said personal banker on an understanding of contemplated investment in the scheme mentioned hereinabove.
In June, 2010, when the Respondent/Complainant applied her debit card to withdraw an amount of Rs.500/- from her account, the command was allegedly refused with the slip showing “Insufficient balance”. The confused Respondent/Complainant tried to contact the Respondent No. 2/O.P. No. 4 but could not contact him as his mobile phone was found not reachable. She then contacted the Appellant/O.P. No. 3 and came to know that her account was showing a balance of only Rs.400/-. The Appellants/O.Ps, on receipt of the details of the fund from the Respondent/Complainant, refused to admit any liability on their part as, what was stated by them, the disputed transactions were made by the O.P. No. 4, the personal banker in his personal capacity.
The Respondent/Complainant, being not in possession of any document corroborating the promised investment of any amount realized through the cheques and thereby being aware as well that the money which her account was having, has been siphoned off through malpractices, allegedly, in connivance with Respondents/O.Ps through the said cheques, issued a legal notice dated 07.02.2011 in the name of the Appellant/O.P. No. 3 stressing therein immediate corrective measures towards recovery of the money.
The said legal notice was responded to by the Appellant/O.P. No. 3 through his letter dated 08.02.2011 wherein it was intimated that the Respondent No. 2/O.P. No. 4 could not be contacted as he had already left giving up his job in the establishment of Appellant/O.P. No. 3. The letter carried further information as to the fact that an FIR against Respondent No. 2/O.P. No. 4 has been lodged with the Phoolbagan P.S. because of the financial malpractices committed by him.
The recovery of money being not found forthcoming in the given circumstances, the aggrieved Respondent/Complainant filed the complaint before the Ld. District Forum which the impugned judgment and order relates to.
Heard Ld. Advocates appearing on behalf of the Appellants/O.Ps and Respondent/Complainant.
The Ld. Advocate appearing on behalf of the Appellants/O.Ps submitted that the subject account was opened by the Respondent/Complainant in the month of December, 2009 and the account was operated by her without any complaint till 25.06.2010 when the Respondent/Complainant approached the Appellant/O.P. No. 3 not being able to withdraw an amount using debit card for the problem best known to her.
It was submitted that the Respondent No. 2/O.P. No. 4 left the job of the Appellant O.P. No. 3 on 15th June, 2010, i.e., prior to filing of the complaint as above.
The Ld. Advocate maintained that the Respondent/Complainant had never claimed any statement of account. The Appellant/O.P. No. 3, as the Ld. Advocate continued, lodged an FIR under No. 29 dated 23.02.2011 against the Respondent No. 2/O.P. No. 4 with the Phoolbagan P.S. after being aware of the mischief allegedly committed by him. The Respondent No. 2/O.P. No. 4 was arrested and a criminal case has been initiated by the said P.S. which is still under trial.
The Ld. Advocate went on to continue that the issue, since involved criminal ingredients and since the criminal case involving the matter was yet undecided, was beyond the purview of the C. P. Act, 1986. The Ld. Consumer Forum, therefore, had no jurisdiction to adjudicate on the issue.
The Ld. Advocate with his above submission, prayed for the appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate for the Respondent/Complainant, on the other hand, submitted that the Appellants/O.Ps cannot deny their involvement in the alleged malpractices as, the Respondent No. 2/O.P. No. 4 was introduced and appointed by the Appellants/O.Ps to aid and assist a senior citizen, the Respondent/Complainant.
She went on to submit further that the entire amount, issued through 7 cheques as mentioned at para 4 of the complaint, running page 27, in favour of the Appellants/O.Ps’ bank at the instance of the said Respondent No. 2/O.P. No. 4, an employee under the establishment of the Appellant/O.P. No. 3 and the personal banker appointed by the O.P. No. 3, was siphoned off as there was no investment in the contemplated scheme nor was their any amount kept in fixed deposit in the name of the Respondent/Complainant.
The cheques, as the Ld. Advocate continued, were also tampered, as, the name of the payee bank written on the cheques was found, most unusually, to have been succeeded by the Account Number of a third party, sometimes of Respondent No. 2/O.P. No. 4 and sometimes of others not apparently legible. The bank authorities, as the Ld. Advocate continued, either did not apply mind while passing the cheques or intentionally passed the cheques in connivance with Respondent No. 2/O.P. No. 4 allowing him to resort to unchecked malpractices in the alleged embezzlement.
Since, as the Ld. Advocate submitted, there was no apparent supervision of the Appellants/O.Ps on the activities of the Respondent No. 2/O.P. No. 4, their appointed agent who happened to be their employee also, the Appellants/O.Ps cannot deny the deficiency done on their part.
In view of the above, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. As regards the point raised against maintainability of the Appeal by the Ld. Advocate appearing on behalf of the Appelalnts/O.Ps in view of the pendency of the criminal proceeding involving the issue, we may place our reliance on a decision of the Hon’ble National Commission in Indrani Chatterjee – vs. – AMRI Hospital decided on 07.11.2014 in I.A. NO. 1746 of 2014 which was passed relying on the decision of the Hon’ble Supreme Court in Guru Granth Saheb Sthan Meerghat Vanaras – vs. Ved Prakash & Ors, reported in (2013) 7 SCC 622 wherein it was held, “as a matter of fact, having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise of facts, at hand ”.
We, having due regard to the above decision of the Hon’ble National Commission which is binding upon us, opine that the Ld. District Forum has not exceeded its jurisdiction while adjudicating on the instant issue.
It appears on perusal of the record that the Respondent No. 2/O.P. No. 4, being an employee under the establishment of the Appellant/O.P. No. 3 was introduced and appointed by the Appellant/O.P. No. 3 as personal banker with a view to assisting the Respondent/Complainant, a senior citizen lady, in investment of her savings in schemes delivering better benefits, keeping the track of transactions and keeping as well the Respondent/Complainant updated about the development being derived out of her investment.
We have not found any record showing denial by the Appellants/O.Ps towards appointment of the Respondent No. 2/O.P. No. 4 as personal banker for the Respondent/Complainant as alleged in the complaint. The Ld. Advocate appearing on behalf of the Appellants/O.Ps too has not ever denied such appointment in his argument. It, rather, appears at para 3 of the written version of the Appellants/O.Ps, running page 32, that the Appellants/O.Ps have referred to the settled law which does not make Principal liable for any acts of his agent. The Appellants/O.Ps prima faice, with their above version, acknowledged the Respondent No. 2/O.P. No. 4 as their agent.
Therefore, it is of no denying the fact that the Respondent No. 2/O.P. No. 4, being an agent of the Appellants/O.Ps and an employee as well under their establishment, committed unchecked unfair practice for months together towards the alleged unauthorised withdrawal. There was absolutely no supervision on the activities of the Respondent No. 2/O.P. No. 4 and there lies the deficiency on the part of the Appellants/O.Ps.
Keeping in view the facts and circumstances narrated above, we are of the view that the Ld. District Forum has justifiably passed the impugned judgment and order which should be affirmed.
Hence, ordered that the Appeal is dismissed. The impugned judgment and order is affirmed. No order as to cost.
