Orissa

Malkangiri

CC/40/2017

Padia Kabasi,S/o.Late.Irma Kabasi. - Complainant(s)

Versus

Branch Manager,AXIS Bank Ltd,Malkangiri - Opp.Party(s)

Durga Prasad Panda

17 Dec 2018

ORDER

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Complaint Case No. CC/40/2017
( Date of Filing : 13 Nov 2017 )
 
1. Padia Kabasi,S/o.Late.Irma Kabasi.
AT.Vill.Karastaguda, Tamsapalli,Near Siva Mandir,Malkangiri
Malkangiri
Odisha
...........Complainant(s)
Versus
1. Branch Manager,AXIS Bank Ltd,Malkangiri
In Front of NAC Office, Main Road, Malkangiri
Malkangiri
Odisha
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Rajesh Choudury PRESIDING MEMBER
 HON'BLE MS. Sabita Samantray MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 17 Dec 2018
Final Order / Judgement
  1. Brief fact of the case of the complainant is that he is a saving bank account holder of the O.P.-Bank vide account no. 915010038223471 being opened on 23.11.2015 with an amount of Rs. 37,000/- and at the time of opening of said account the official staffs of the bank filled up the opening form and received the relevant documents from the complainant.  It is alleged that on account of financial crisis due to loss in agriculture, he could not deposit further amounts in his account and on 16.09.2017 while he withdrew an amount of  Rs. 10,000/- from his above mentioned account, surprisingly he found that only Rs. 2147.10 credit balance is available there, for which he contacted with the O.P. – Bank and came to know that on 03.12.2015 an amount of Rs. 30,000/- deducted from his account towards insurance and different amounts towards Service Tax, Consolidated charges have been deducted from his account from time to time.It is further alleged that he never advised the O.P.-Bank to deduct any money for insurance nor signed any form for the same and inspite of his repeated approaches, the O.P. – Bank could not disclose the details of insurance nor credited the said amount in his account.Thus, alleging deficiency in service, he filed this case with a prayer to direct the O.P-Bank to credit all the debited amount i.e. of Rs. 35,696.38 with interest @ 12% p.a. and Rs. 50,000/- and Rs. 5,000/- towards compensation and costs of litigation to him.
     
  2. On the other hand, the O.P. – Bank appeared in this case, filed their counter with no specific pleas mentioned therein, however, they filed some documents on the basis of which they have contended that the complainant being a literate and educated person have fully aware of read, write and understand the terms and conditions while opening the account and also contended that all the deductions are made through an authorized debit instrument with the knowledge of the complainant and deduction of amount of Rs. 30,000/- towards insurance can only happen with due signature of the complainant and passing tele verification process, thus denying their liabilities the O.P. – Bank prayed to dismiss the case against him.
     
  3. Complainant filed certain documents like xerox copy of bank passbook issued in his favour by the O.P., whereas the O.P. – Bank has filed only statement of account vide no. 915010038223471 for the period from 23.11.2015 to 31.10.2016.  Perused the case records and heard the submissions of parties and the documents filed by parties available in the record.
     
  4. It is an admitted fact that the complainant was having a saving bank account with the O.P.-Bank vide account no. 915010038223471 with opening balance of Rs. 37,000/-.  It is also an admitted fact that on 03.12.2015, an amount of Rs. 30,000/- has been deducted from the account of complainant, so also on different dates different amounts have been deducted from the account of the complainant towards consolidated charges and service charges.  The allegations of complainant is that while on 16.09.2017 he tried to withdraw an amount of Rs. 10,000/- to meet his financial crisis, he came to know that the credit balance in his account is only Rs. 2147.10 and on enquiry the O.P.-Bank stated that on 03.12.2015 an amount of Rs. 30,000/- was deducted towards insurance payment.  It is alleged that never he had advised the O.P. – Bank to deduct any amount for any insurance nor he has signed any form for obtaining the insurance policy.  Whereas the contentions of O.P. – Bank is that being a literate person, the complainant is fully aware of the terms and conditions while opening the alleged saving account and as per tele verification process, one insurance policy was issued by the insurance company, hence they denied their liability. 
     
  5. Now the question arose before us to decide :
    i. whether the complainant is fully literate to aware of the terms and conditions while opening the saving account?
    ii. whether the insurance policy was issued with the consent of the complainant ?
     
  6. In regard to the issue no. 1, we have gone through the complaint petition and counter versions available in the record and found that no parties have filed any documents to prove their submissions.  The submission of complainant is that he is an illiterate person having no knowledge of filling up account opening form so also he has no knowledge about the insurance scheme, if any, available with the said opening form.  Whereas the contentions of O.P. – Bank is that complainant is a literate person having knowledge of terms and conditions of opening of bank account.  In this regard, several opportunities were given to the O.P.-Bank to submit the account opening form and other relevant documents being signed and submitted by the complainant with the O.P. – Bank to ascertain the facts of their submissions and to know whether the complainant has himself filled up the account opening form and himself filled up any insurance proposal form, but inspite of several adjournments and opportunities, the O.P.-Bank did not produce any documentary evidences to that effect. As such we lost opportunities to come to believe the versions of the O.P. – Bank.  Further only oral denial plea of O.P. – Bank cannot be substantiated the versions of the complainant regarding the fact that the complainant is a literate person.  Further always the burden of proof cannot be conferred upon the complainant only, if he does not have any documentary evidence to prove his submissions and it is well known to one and all that the terms and conditions mentioned in an account opening form are too small to read, which one cannot read easily and properly and it is not possible on the part of a bank to explain each and every point of conditions to the customers.  Hence it is can be concluded that though the complainant put his signature in english language but the relevant documents and account opening form of the complainant and the papers related to insurance policy, if any, must have filled up by the concerned official staffs of the O.P. – Bank and the version of O.P. - Bank does not establish that the complainant is a literate person, as such the issue went against the O.P. – Bank.
     
  7. Regarding the issue no. 2 we have carefully heard from the parties.  The allegations of complainant is that never he had advised the O.P. – Bank to deduct any amount towards any insurance policy, whereas the contentions of O.P. – Bank is that all deductions are made only through an authorized debit instrument with the knowledge of customer or through call made to his registered mobile and the deduction of Rs. 30,000/- for insurance can only happen with due signature of the customer and passing tele verification process.  In this regard, we directed the O.P.- Bank to produce the relevant debit instruments through which the aforesaid amount of Rs. 30,000/- was deducted towards insurance policy.  Inspite of repeated opportunities given to the O.P. – Bank keeping in view of natural justice to produce the relevant documents, the O.P. – Bank did not produce the same nor produced any documents related to tele verification made to the complainant, as such it is held that the deducted amount of Rs. 30,000/- was paid towards insurance, if any, without any consent of the complainant. Further the O.P.-Bank did not adduce any cogent evidence to prove that the complainant has himself obtained the alleged insurance policy through any agent of insurance company.  Though the insurance policy is a beneficial instrument for afterlife period of a person, but in the case in hand, no insurance policy, if any issued, was received by the complainant till date, though the amount for the same is deducted on 03.12.2015, three years have already been passed.  Further the O.P. – Bank has stated that the amount was deducted towards insurance policy through debit instrument, but inspite of our repeated adjournments, they could not produce any cogent evidence to that effect and became silent, as such the allegations of complainant became unrebuted and remained unchallenged.In this connection, we have fortified with a Judgement of Hon’ble National Commission, in the case between Urban Improvement Trust, Bikaner, Rajasthan Vrs Babu Lal and Another that “Unrebutted averments shall be deemed to be admitted.” We feel that the O.P. – Bank has cunningly obtained the deducted amount of Rs. 30,000/- from the account of complainant in the name of insurance policy, which is not in the knowledge of the complainant.Accordingly, this answer also goes in favour of the complainant.
     
  8. Further the O.P.- Bank clarified that the amount towards service taxes and consolidated  charges are deducted as per guidelines of R.B.I. and as per the rules and  provisions under a statutory laws, hence no order against those facts.
     
  9. Further it is ascertained from the submissions of the complainant that due to non disclosure of the details of the insurance policy till date, if any issued, by the O.P. – Bank inspite of repeated approaches, he suffered mental agony and financial loss which cannot be counted in any terms.  Further the deducted amount of Rs. 30,000/- is not a small amount for a poor farmer i.e. the complainant who keeps a large hope on such amount which might have brought him out from his financial crisis and may come in use during his need, hence considering the facts and circumstances, we think the complainant is also entitled for compensation and costs of litigation.   Hence this order.
                                                                                                ORDER
            The complaint petition is allowed in part.  O.P. –Bank is herewith directed to handover the alleged insurance policy, if any issued in favour of the complainant within 30 days from the date of receipt of this order, failing which the O.P. – Bank is liable to refund the amount of Rs. 30,000/- taken in the name of insurance, with interest @ 10% p.a. from the date of deduction i.e. from 03.12.2015 till the date of payment.  Further the O.P. – Bank is herewith directed to pay an amount of Rs. 5,000/- towards compensation for causing mental agony for not providing the details of the insurance policy to the complainant, if any issued, and also to pay Rs. 2,000/- towards costs of litigation to meet the ends of justice. 
            Pronounced in the open Forum on this the 17th day of December, 2018.
            Issue free copies to the parties concerned.
 
 
[HON'BLE MR. Rajesh Choudury]
PRESIDING MEMBER
 
[HON'BLE MS. Sabita Samantray]
MEMBER

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