Exh. 21
BEFORE THE DISTRICT CONSUMER DISPUTES REDFESSAL FORUM, SANGLI
Hon’ble President – Mr.A.V. Deshpande
Hon’ble Member - Mrs. Manisha Kulkarni
CONSUMER COMPLAINT NO. 43/2015
Date of Filing : 05/02/2015
Date of Admission : 20/02/2015
Date of Judgment : 22/02/2016
Late Mahadev Virupaksha Kudchi, deceased
Through heirs
1. Smt. Parvati Mahadev Kudchi
2. Shri Umesh Mahadev Kudchi
3. Shri Nandeshwar Mahadev Kudchi
4. Anjali Mahadev Kudchi
5. Vidya Mahadev Kudchi
All R/o Ganeshnagar, 6th Lane,
Sangli, Tal. Miraj Dist. Sangli ……. COMPLAINANT
Versus
Bank of Baroda
Branch Vakhabhag, Sangli
Tal. Miraj Dist. Sangli through
The Manager …….. RESPONDENT
Advocate for complainant – Sh. P.K. Jadhav
Advocate for Respondent - Sh. P.V. Narwadkar
J U D G M E N T
Delivered by Hon’ble Mr. A.V. Deshpande, President
1. The instant complaint u/s 12 of the Consumer Protection Act, has been filed by the complainants, for the alleged deficiency in service, rendered to them by the Resp.Bank and they have claimed a refund of the amount of Rs.7,10,000/- alongwith compensation of Rs.50,000/- for the mental harassment, caused by the Resp. and the cost of litigation amounting to Rs.10,000/-.
2. In short, the case of the complainant is that, their predecessor titled Mahadev Virupaksha Kudchi had purchased a demand draft of Rs.7,10,000/- from the Resp.Bank on 18/08/06 for depositing the same in the Debt Recovery Tribunal at Pune. However, later on, it transpired that there was no necessity to deposit the said amount with the Debt Recovery Tribunal, Pune and hence, the said Mahadev Virupaksha Kudchi did not deposit the D.D. with the Debt Recovery Tribunal, Pune. The said D.D. remained with the deceased Mahadev Kudchi and later on, the said D.D. was misplaced. Mahadev Virupaksha Kudchi died on 8/-2/08. After the death of said Mahadev Kudchi, the complainants came across the xerox copy of the said D.D. purchased by deceased Mahadev. Thereupon, they made enquiries with the Resp.Bank and learnt that the said D.D. has not been encashed and the amount thereof, is lying with the Resp.Bank. The bank has issued a certificate dated 25/3/14, accordingly. The complainants are the legal heirs of the deceased Mahadev Kudchi and therefore, they are entitled to recover the amount of the said D.D. which is unencashed, so far. Even otherwise, as per rules, the said D.D. has become time barred and now, it is not possible that the said D.D. would be presented before the bank and it would be encashed. On 9/4/2014, the complainant submitted an application to the Resp.Bank for refund of the amount of said D.D. and they had submitted the death certificate, xerox copy of the demand draft, the certificate dated 25/3/14 issued by the bank and a heirship certificate issued by Tahsildar, Chikodi. The said application and the documents were received by the Resp.Bank and an acknowledgment was given. The complainant had also submitted a surety of one Sudhir Subhash Sinhasane and all the documents were complied by them. Despite the compliance with all the requisite documents, the Resp.Bank started avoiding to pay the amount. That, there is a relationship of consumer and the service provider between the complainant and the Resp. and by not paying the amount of said draft till today, the Resp. have committed a deficiency in service. On such contentions, the complainants have prayer for the reliefs as stated above.
3. In support of their contentions in the complaint, the complainants have filed the affidavit of complainant No.5 Vidya Mahadev Kudchi at Exh.2 and alongwith the list of documents Exh.4, they have filed, as many as 9 documents, which include the xerox copy of the demand in question, the demand letter submitted by the complainants to the Resp.Bank on 9/4/14, a certificate issued by the bank dated 25/3/14, a copy of the application dated 9/6/14 submitted by the complainant to the bank for payment of the said amount, the death certificate dated 8/2/08, the heirship certificate issued by the Tahsildar, Chikodi dated 23/12/10 and the notices dated 18/12/14 and the certificate regarding the service of the said notice obtained by the complainant via Indian Post.
4. The Resp.Bank has appeared and has filed its written statement at Exh.8. It is admitted by the Resp.Bank that deceased Mahadev Kudchi has purchased a demand draft for the amount of Rs.7,10,000/- for being submitted to the Debt Recovery Tribunal, Pune and he had deposited the said amount of Rs.7,10,000/- in the Resp.Bank. However, rest of the contentions are denied by the Resp. bank, for want of knowledge. It has admitted that the amount of Rs.7,10,000/- is pending with it and it is contended that if the complainant wants to cancel the said demand drat, they have to produce the original demand draft and if they are not in possession of the said original demand draft, then the complainants are required to obtain a consent from the drawee of the said demand draft, in this case, the Debt Recovery Tribunal, Pune. But despite the demand to produce the original demand draft or to produce such consent, the complainants have not complied therewith, as of today. The Resp.Bank has never avoided to pay the said amount to the complainant but it has asked the complainants to carry out certain compliances which the complainant have not complied to and therefore, the said amount cannot be refunded to the complainant. That, the Resp. has not committed any deficiency in service. The complaint has been filed by the complainant only mischievously and therefore, the complaint is liable to be dismissed. Alternatively, the Resp. have contended that, if this Forum comes to conclusion that the complainants are entitled to refund of the said amount, then the demand of the complainant for interest on the amount of the said Demand draft of Rs.7,10,000/- is wholly illegal and no interest thereon, can be claimed by the complainant. However, the Resp. bank is ready to refund the said amount, as per the rules of the Reserve Bank of India. That the complainants have not made any efforts to seek any consent from the Debt Recovery Tribunal, Pune and therefore, the complaint be dismissed, by saddling a cost of Rs. 10,000/- on the complainants. On such contentions, the Resp. prays for dismissal of the complaint, as stated above.
5. The Res. Bank has filed the affidavit of one Chief Manager of its Sangli branch Sh. Pramod Ramchandra Bharad at Exh.8A.
6. The Resp. Bank has also filed, in all 6 documents, alongwith list at Exh.10 which include the letter dated 3/2/15 issued by the Resp.Bank to Debt Recovery Tribunal, Pune, the postal receipt, the office copy of the letter dated 23/3/15 issued to Debt Recovery Tribunal, Pune, the postal acknowledgment and a book of instructions issued by the Reserve Bank of India in the matter of demand draft.
7. The complainants have filed the affidavit in lieu of examination-in-chief of the complainant No.5 Vidhya Kudchi at Exh.13 and they have also filed the affidavit in lieu of examination-in-chief of their surety Shri Sudhir Subhash Sinhasane at Exh.16. They have closed their evidence by filing a pursis at Exh.17. As against this, the Resp. Bank has filed a pursis at Exh.18, thereby adopting its affidavit (Exh.8A) filed alongwith its written statement, as to be its evidence and by the same pursis, it has closed its evidence.
8. We have heard the submissions of the learned counsels for both the sides at length.
9. The points those arise for our determination are as follows :
Points Findings
1) Whether the complainant is a consumer within
the meaning of Section 2(1)(d) of the Consumer
Protection Act ? Yes.
2) Whether the complainants have proved that the
Resp. Bank has committed a deficiency in service
as alleged in the complaint ? Yes.
3) As to what reliefs, the complainants are entitled to ? As per final order.
10. The reasons for our findings above are as follows.
-: REASONS :-
Point No.1
11. At the outset, we must mention that the Resp. have nowhere contended that the complainants are not the consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act. They have not denied the fact that the complainants are the legal representatives of the deceased. The fact that, on a given date, the deceased Mahadev Kudchi had purchased a demand draft by depositing the amount of Rs.7,10,000/- to the Resp.Bank and the said amount is still with the Resp.Bank, is clearly admitted by the Resp.Bank. The Resp. also contends that the said draft has not been presented before it, till today for encashment and therefore, the said amount is lying unencashed. If the deceased Mahadev Kudchi was alive, and he has sought for cancellation of the said demand draft and the refund of the said amount, he would have been entitled to do so, within his own right. The said right survives in favour of his legal representatives and the said cause is still accrued in favour of the complainant and therefore, the complainants become the consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act and therefore, this Forum holds that the complainants are the consumers and hence, we have answered the issue No.1 in the affirmative.
Point No.2 & 3
12. As stated above, most of the facts are admitted in this case. Therefore, the fact and the evidence led by the parties need not detain us any more. The case can be decided on the basis of the directives issued by the Reserve Bank of India, in respect of the demand draft, which directives are produced by the Resp.Bank. The said directives are alongwith the list at Exh.10 at Sr.No.6. We are concerned with the instructions contained in para No.1.2.28. For the ready reference, these instructions are reproduced here.
1.2.28 Demand Draft reported lost – refund/issue of fresh draft :
Where the Demand Draft issued is reported lost by the purchaser, for refund of money/issue of fresh draft in lieu of lost Demand Draft, following procedure should be adhered to :
The branch must obtain an application in writing from the constituent and record the reported loss of original instrument in the relative registers/ledgers/system.
The applicants must be properly identified in all cases.
Confirmation of drawee branch must be obtained to the effect that:
The draft in question still remains unpaid and.
The will exercise caution if the original instrument is presented for payment.
If a demand draft drawn on the service branch is reported lost by the purchaser, the fact of loss alongwith full particulars of DD should be advised to all local branches which are authorized to pay DDs drawn on Service Branch in the city, so that they could also exercise caution if such a Draft is lodged with them for payment. Following additional details be submitted while seeking confirmation of non-payment of DDs from the Service Branch.
Branch Alpha Code
DD prefix No. & year of printing
Information in case the DD in question is issued from DD book borrowed from other branch.
iv) If the purchaser and payee are one and the same person, a declaration must be obtained from him that the draft was not endorsed in favour of the third party.
v) However, in case of demand drafts upto Rs.5,000/- reported lost, the requirement of getting prior non-payment confirmation from the drawee branch can be waived and the duplicate (fresh) draft be issuedon the basis of adequate indemnity.
vi) Indemnity bond, as per APPENDICES II & III, as the case may be, is to be obtained on stamp paper of the value as applicable in the State concerned duly executed by the purchaser, the payee and one or two sureties, considered good for the amount involved. The requirement of sureties may be waived in special cases, where the constituents maintain well conducted accounts with the Bank. Similarly, the requirement of obtaining payee’s signatures may be waived in special cases by authorities in the level of Chief Managers and above. Credit report on sureties be prepared on Form No. 117-A and kept on record. Necessary noting be also made in the indemnity bond registered in this regard.
vii) Discretionary powers to refund amount of draft lost/issuance of duplicate draft as been vested in branch heads as per their grade/scale as per details given in booklet entitled ‘Discretionary Administrative Powers for Domestic Operations” (Bank’s publication No.154).
viii) After satisfying that all laid down procedures have been followed, the Branch Manager should authorize issuance of new draft in lieu of DD reported lost/refund of amount, as the case may be. However, if the amount of draft exceeds the discretionary powers of the Branch Manager, matter may be referred to the Regional Authority and their authority sought.
ix) As per new HODD system, no duplicate draft, in lieu of lost one, should be issued but a fresh draft should be issued after passing cancellation entries and cancelling the original (lost) draft.
x) Necessary entries of cancellation of Demand Draft (as per DD paid) and issuance of a Demand Draft (as per DD sold) be passed.
xi) The necessary noting be made in BOLD LETTERS in red ink in the HODD registered against the original entry and also on the original voucher.
xii) The issuing branch, after issuance of fresh demand draft to the purchaser, should communicate to the drawee branch the circumstances leading to issuance of a fresh draft and also to exercise care in respect of the lost one.
xiii) Where the purchaser of the lost draft chooses to obtain refund of the amount of lost Demand Draft instead of a fresh one, the same may be considered after observing all the formalities. The amount may be refunded either by a Banker’s Cheque or by crediting constituent’s account after observing all the formalities.
Necessary noting must be made in the indemnity bond register in this regard.
These instructions govern the matter of refund of the Demand draft amount.
13. It is pertinent to note that the Resp.Bank is contending that, for refund of the amount of Demand draft, the consent of the drawee, in whose name the demand draft is purchased, is required. In this case, the consent of the Debt Recovery Tribunal, Pune is necessary for refund of the said amount. It is also contended that, while there are instructions with regard to the limitation of a specified period for the payment of the demand draft, there is no such limitation in respect of the drafts made out and payable to the Govt. agencies and therefore, the demand draft issued in the name of the Debt Recovery Tribunal, Pune is still valid and hence, also it is absolutely necessary that the Debt Recovery Tribunal, Pune should signify its consent for refunding the amount of the said demand draft. The learned counsel for the Resp. has also pointed out that, despite its directives to the complainant to produce such consent from the Debt Recovery Tribunal, Pune, the complainants have not complied therewith and therefore, the Resp.Bank had itself communicated to the Debt Recovery Tribunal, Pune but there is no response from the Debt Recovery Tribunal, Pune in that matter and therefore, the Resp.Bank is unable to refund the said amount.
14. We have given conscious thought to the said submission of the Resp. and we find that, in the light of the contentions of the complainants, which are well supported by the affidavit of the complainant No.5, the said demand draft was never presented before the Debt Recovery Tribunal, Pune and it remained with the deceased and later on, the said original demand draft was lost and thereafter, the said Mahadev Kudchi also died. When the original demand draft was not presented before the Debt Recovery Tribunal, Pune, the said authority was not in a position to give any consent, whatsoever, as is contemplated by the Resp. Bank in its letters addressed to the Debt Recovery Tribunal, Pune. The instructions which we have reproduced, in detail, above also nowhere speak that, in such cases, a consent of the drawee in whose name the demand draft is produced, must be obtained. The clause VI of the said instruction speaks about the indemnity bond to be obtained from the purchaser of the Demand draft alongwith one or two sureties, whenever the demand draft purchased is, reported to be lost. It is contended on behalf of the complainants by learned counsel Adv. Sh. P.K.Jadhav that the complainants were and are ready to furnish such indemnity alongwith surety and this fact is demonstrated by the affidavit of the said Sudhir Sihasane which is filed on record.
15. On the whole, on going through the said instructions and in view of the facts proved in this case, we find that the Resp. bank has no justified reason to not to refund the amount of the demand draft amounting to Rs.7,10,000/- to the complainant. The insistence on the part of the Resp.bank on seeking a consent from the Debt Recovery Tribunal, Pune, is unjustified and it tentamounts to a deficiency in service and therefore, we hold accordingly and hence, we have answered the point No.2 in the affirmative.
16. In the result, we find that the complainants are entitled to the refund of Rs.7,10,000/- which is the amount of demand draft paid by the deceased Mahadev Kudchi and which is still lying with the Resp. Bank. The complainants are entitled to refund thereof. The complainant\s are also insisting for the interest on the said amount as per the bank’s rate. In support of their claim, the complainants have relied on a letter issued by the Chief General Manager of the Reserve Bank of India bearing No. RBI/2008-09/138. DBOD No.Leg.BC.34/09.07.005/2008-09 dated 22nd August 2008. The clause XI of the said circular speaks to the effect that the interest on the savings bank account should be credited on the regular basis whether the account is operative or not. If a fixed deposit receipt matures and proceeds are unpaid, the amount left unclaimed with the bank will attract savings bank rate of interest. The circular is addressed to all scheduled commercial banks and it is in respect of the unclaimed deposit/inoperative accounts in the banks. On the face of it, the said circular does not apply to the case in hand, which deals with an unpaid amount of the demand draft purchased by the complainant. The directives of the Reserve Bank of India which we have reproduced above, do not speak anywhere about the interest to be paid on the unpaid amount of the demand draft and therefore, the prayer of the complainant for interest on the said amount appears to be unfounded. Therefore, we are not inclined to allow the said prayer of the complainant.
17. However, the non-refund of the unpaid amount of the demand draft is bound to have caused some anxiety and mental torture to the complainant which in our estimation, can be compensated by certain amount of compensation, which we estimate at Rs.10,000/- and the said amount of compensation would be just and proper.
18. The complainants have also prayed for the cost of litigation amounting to Rs. 10,000/- which, considering the entire process of consumer complaint and the amounts required to be spent by way of fees, is quite exorbitant . However, since the complainants are the successful party in this case, they are entitled to certain cost, which we estimate to be Rs.1,000/- and complainants are held to be entitled to cost of Rs.1,000/- only. We, therefore, hold accordingly and hence, answering the point No.3 accordingly, we proceed to pass the following order :
O R D E R
1. The complaint is partially allowed.
2. The Resp. Bank do hereby pay an amount of Rs. 7,10,000/- to the complainant within the period of 45 days from the date of this order, on the complainant’s furnishing the indemnity bond alongwith surety for the said amount within the specified period of 45 days.
3. The Resp. Bank shall also pay an amount of Rs.10,000/- being the compensation for the mental harassment and the cost of litigation of Rs.1,000/-
within the period of 45 days from the date of this order.
4. In the event of failure of the respondent to comply with the orders above, the complainants shall be entitled to invoke the provisions of either Section 25 or 27 of the Consumer Protection Act.
5. The copies of the order be provided to the parties free of cost and the proceeding be consigned to the Record Room.
SANGLI
Dated : 22/02/2016
Mrs. Manisha Kulkarni Mr.A.V. Deshpande
Member President
