BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th of September 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.278/2010
(Admitted on 23.10.2010)
1) Smt.Bharathi S,
Wo. Late B.Gopala Gowda,
Aged about 30 years,
RA. Kodippadi of Puttur Taluk.
2) Master B.Rithesh Kumar (Minor),
S/o. Smt.Bharathi S,
Aged 6 years,
Rep. by his mother and natural guardian,
Complainant No.1 Smt.bharathi S,
Both are R/A. Kodippadi,
Puttur Taluk. …….. COMPLAINANTS
(Advocate for the Complainants: Sri. Udayananda A).
VERSUS
Bangady Vyavasaya Seva Sahakari Bank,
Represented by its Branch Manager,
Bangady, Belthangady Taluk. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.Suraj Lal Shetty).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the complaint are as under:
The Complainant No.1 submitted that, she had deposited a sum of Rs.2,500/- with the Opposite Party on 16.07.1998 for a period of 5 years in her name and the same is matured on 16.07.2003 with the maturity value of Rs.5,000/-. It is further stated that, the Complainant No.1 had also deposited another sum of Rs.1,000/- in the name of her minor son who is the Complainant No.2 on 03.06.2002, the same is matured on 03.06.2008 with the maturity value of Rs.2,000/-. Further the Complainant No.1 submitted that, she had opened SB Account bearing No.248 with the Opposite Party and there is a cash balance of Rs.1,828/- as on 28.02.2003. It is stated that, after the maturity of the above said two fixed deposit amounts the Complainant had approached the Branch Manager of the Opposite Party on several occasions and requested him to release the amount with interest and also requested the Opposite Party to pay the amount standing in the credit of her Savings Bank Account but the Opposite Party has deliberately not released nor paid the amount and thereafter the Complainant had issued a legal notice dated 04.05.2010 calling upon them to pay the amount but the Opposite Party received the legal notice but failed to comply the demand nor issued any reply to the same.
It is stated that, withholding the money on the part of the Opposite Party is illegal and amounts to deficiency in service and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay sum of Rs.5,000/- with interest at 10% p.a. from 16.7.2003 to 15.09.2010, Rs.2,000/- with interest at 10% p.a. from 03.06.2008 to 02.10.2010 and Rs.1,828/- to the Complainant No.1 with interest at 6% p.a. from 28.03.2003 to 27.09.2010 and also claimed Rs.50,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version and stated that the complaint is barred by limitation and denied the deficiency of service as alleged by the Complainant. It is submitted that, the Complainant No.1 is the wife of one Mr.Gopala Gowda who was working in Opposite Party bank and Complainant No.2 is the son of the above said Mr.Gopala Gowda. It is stated that during the life time Mr.Gopala Gowda had availed the staff loan for the purpose of meeting financial expenditure as per the loan account No.113 and 124. Thereafter Mr.Gopala Gowda is committed default in repayment of the loan installments. All the steps taken by the bank to recover its legitimate dues from the borrower did not yield any fruitful results. As per the account No.124 and 113 the loan balance amount due is Rs.24,030/- and Rs.4,681/- respectively. It is further stated that the above said Mr.Gopala Gowda during his tenure at Opposite Party Bank has mis-appropriated the banks fund and committed fraud. In this respect an enquiry has been conducted as per Section 65 of Karnataka Co-operative Societies Act, 1959. After the death of the Complainant’s husband i.e., Gopala Gowda it is the duty of the legal heirs who is the Complainant herein to repay the legitimate due to this Opposite Party bank, hence it is stated that the Complainant is liable to pay the loan dues of late Mr.Gopala Gowda and stated that there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is barred by limitation?
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Bharathi S (CW1) – Complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C5 were marked for the Complainants as listed in the annexure in detail. One Sri.A.B.Umesha (RW1), Manager of the Opposite Party filed counter affidavit and but not answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Party as listed in the annexure in detail.
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): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i):
The undisputed fact are that, the Complainant No.1 and Complainant No.2 i.e., one Smt.Bharathi S, W/o. Mr.B.Gopala Gowda and one minor Master B.Rithesh Kumar, S/o. Gopala Gowda deposited Rs.2,500/- on 16.07.1998 and Rs.1,000/- on 03.06.2002 under the fixed deposit receipt No.0061 and 000225 respectively with the Opposite Party bank (as per Ex C3 and C4). It is also admitted that the Complainant No.1 holding a Savings Bank Account No.248 with the Opposite Party, wherein Rs.1,828/- is lying as on 28.02.2003 with the Opposite Party bank (as per Ex C5).
The first point raised by the Opposite Party is that, the complaint is barred by limitation. It is a settled law that when a company/firm transacting non-banking financial business accepts deposits from the public, the person who has deposited money with such company/firm hires the service of that Company/firm. Further Sub Section (2) of Section 24 A of the Consumer Protection Act states that notwithstanding anything contending Sub-Section (1), the complaint may be entertained after the specified period, if the Complainant satisfies the District Forum within such period.
In the present case, the cash certificates matured on the date mentioned in the complaint. Now it is a well established proposition that when the person/company/institution who received the fixed deposit has failed to repay the deposit on the date of maturity, it is a recurring cause of action for the depositor so long as the person who received the deposit has not denied his liability to repay the deposit. The Opposite Party has no case that they have denied the Complainants’ right to recover the deposits until they filed their version before this Forum. The Complainants’ right is denied for the first time in the version. Therefore, we are of the view that, the cause of action will continue till such time the payment along with interest is made. Hence the cause of action will continue as stated above and the complaint is maintainable not barred by limitation. Point No.(i) is held in favour of the Complainants.
Point No.(ii) to (iv):
In the instant case, the Complainant No.1 filed affidavit and produced documents, wherein, specifically contended that she had deposited a sum of Rs.2,500/- with the Opposite Party on 16.07.1998 for a period of five years and the same is matured on 16.07.2003 with the maturity value of Rs.5,000/- and also she had kept Rs.1,000/- in the name of her minor son who is the Complainant No.2 herein on 03.06.2002 the same is also matured on 03.06.2008 with a maturity value of Rs.2,000/-. Further she holds a Saving Bank account No.248 with the Opposite Party bank, wherein, the balance of Rs.1,828/- is lying as on 28.02.2003 with the Opposite Party bank. After the maturity of the amount the Complainant approached the Opposite Party bank for claiming the amount lying in fixed deposit as well as in Saving Bank account but the Opposite Party failed to refund the above mentioned amount, hence she came up with this complaint.
On the other hand, the Opposite Party interalia contended that Complainant No.1’s husband late one Mr.Gopala Gowda who was working in Opposite Party bank, during his life time he had availed the staff loan for the purpose of meeting financial expenditure as per account No.113 and 124 and the balance amount due is of Rs.28,711/- under the aforesaid loan account and the same is due. It is contended that late Mr.Gopala Gowda has mis-appropriated the banks fund and committed fraud. It is further contended that it is the duty of the legal heirs who are the Complainants herein to repay the legitimate due to this Opposite Party, hence they are not liable to pay.
Now the point for consideration is that, whether the Complainant No.1 and 2 who are the legal heirs of one late Mr.Gopala Gowda is liable to pay the legitimate dues of one Mr.Gopala Gowda who is the husband of the 1st Complainant and father of the 2nd Complainant? The answer is ‘No’. Because late Mr.Gopala Gowda availed the staff loan in his individual capacity, wherein, the Complainant No.1 and 2 are not the guarantor or co-obligants in the aforesaid loan. It is admitted fact that, Complainant No.1 and 2 are legal heirs of deceased Gopala Gowda but they are liable only to the extent of assets left behind by the deceased Gopala Gowda and not otherwise. In the absence of any such obligations / liability on the part of the Complainants, the Opposite Parties cannot fasten the liability against the Complainants herein. The Opposite Party bank sanctioned the loan in individual capacity, in case if the deceased late Gopala Gowda left any assets behind him could be attached by the Opposite Party bank. In the absence of the same, the Opposite Party cannot exercise their general lien on the legal heir’s amount lying in the Opposite Party bank. In the repetition, the duty of the legal heirs or the liability of the legal heirs only to the extent of the assets left behind by the deceased and not otherwise. In the instant case, the fixed deposit amount as well as the amount lying in the S.B. account is an individual amount of the Complainant No.1 and 2 and hence the Opposite Party bank is liable to refund the aforesaid amount to the Complainants.
The 2nd point raised by the Opposite Party bank is that, late Mr.Gopala Gowda during his office hours in his life time had mis-appropriated bank funds and committed fraud hence their legal heirs also liable for the offence committed by him. The above contention is baseless until and unless the Complainants are involved in the offence. If at all the deceased Mr.Gopala Gowda committed any offence he is answerable not the Complainant No.1 and 2. The legal heirs of the deceased no way connected to the offence committed by the late Mr.Gopala Gowda in this case.
In view of the above said reasons, we are constrained to hold that the Complainant No.1 and 2 are not personally liable for any liability or any offence committed by late Mr.Gopala Gowda. Under that circumstances, the fixed deposit amount lying under receipt No.0061 and 000225 and the amount lying in S.B. account cannot be withheld. The failure on the part of the Opposite Party to repay the amount lying in the S.B. account and also the deposited amount lying in the F.D. receipt on the date of maturity or within a reasonable time thereafter is amounts to deficiency in service. Therefore, the Opposite Party i.e., Bangady Vyavasaya Seva Sahakari Bank represented by its Branch Manager is hereby directed to pay Rs.5,000/- to the Complainant No.1 and also pay Rs.2,000/- to the Complainant No.2 along with interest at 10% p.a. from the respective date of maturity till the date of payment. Further directed to pay Rs.1,828/- to the Complainant No.1 which is lying in the S.B. account along with interest at 6% p.a. from 28.02.2003 till the date of payment. Further Rs.1,000/- awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., Bangady Vyavasaya Seva Sahakari Bank represented by its Branch Manager is hereby directed to pay Rs.5,000/- (Rupees five thousand only) to the Complainant No.1 and also pay Rs.2,000/- (Rupees two thousand only) to the Complainant No.2 along with interest at 10% p.a. from the respective date of maturity till the date of payment. Opposite Party is further directed to pay Rs.1,828/- (Rupees one thousand eight hundred and twenty eight only) to the Complainant No.1 along with interest at 6% p.a. from 28.02.2003 till the date of payment and Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
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 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of September 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Bharathi S – Complainant No.1.
Documents produced on behalf of the Complainant:
Ex C1 – 04.05.2010: Lawyer’s notice issued to the Opposite Party on behalf of the Complainant along with postal receipts.
Ex C2 – : Postal acknowledgements.
Ex C3 – 16.07.1998: Copy of the Cash Certificate bearing No.0061 for Rs.2,500/-.
Ex C4 – 03.06.2002: Copy of the Cash Certificate bearing No.000225 for Rs.1,000/-.
Ex C5 - : Copy of the Pass Book bearing S.B. Account No.248.
Witnesses examined on behalf of the Opposite Party:
RW1 – Sri.A.B.Umesha, Manager of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – 15.12.2010: Copy of the statement pertaining to the loan account of the Complainant maintained by Opposite Party bank in loan account No.113.
Ex R2 – : Copy of the statement pertaining to the loan account of the Complainant maintained by Opposite Party bank in loan account No.124.
Ex R3 - : Detailed inspection report by the concerned officer in proof of the charges leveled against the Complainant.
zDated:30.09.2011 PRESIDENT
