By Sri. Jose. V. Thannikode, President:

This complaint is filed against the Opposite Party under section 12 of the Consumer Protection act to get release the FD amount to the Complainant which is deposited by his mother and nominated him as nominee and to get cost and compensation.

2. Brief of the complaint: The mother of the Complainant was died on 11.12.2012 and when she was alive she had deposited Rs.80,000/- each in 1170 to 1196 Nos as fixed deposits and in 1197 number FD account Rs.60,000/- and in 1198 number FD account Rs.20,000/- (altogether 29 No's) were also deposited in the Opposite Party bank and in FD No.558 and 559 also 80,000/- each deposited. More over Rs.87,640/- also deposited in the Opposite party bank in the saving bank account 3560. The Complainant's mother Annamma nominated him being the only son and elder among the children as the nominee for FD 1170 to 1198. These facts were known to all the children of Annamma and before the death of the mother Annamma, these facts were informed to all the members of the family. And for the deposit in 558 and 559 for Rs.80,000/- each nobody is appointed as nominee. Even though the FD receipt were kept by the mother of the Complainant, after her death some one among the daughters taken custody of the FD receipt. The Complainant asked about the FD receipt to all his sisters but every body replied that they were not aware of the receipts.

3. While so the Complainant approached the Opposite parties bank to get release of the FD amount, and as per the request of the bank, the Complainant produced the death certificate of his mother, ID card, family members certificate before the bank, but the Opposite Party has rejected his request to withdraw the deposits as nominee, telling untenable reasons. Thereafter also somany time the Complainant approached the bank to withdraw the FD's but till today the Opposite party bank was not allowed to withdraw the amounts. Hence this complaint. The Complainant further says that the Opposite party bank has no right to keep the FD's with them and the non refund of the amount and blocking the FD is wrong. After knowing the facts that he is the nominee of the deceased, the non delivery of the FD and other amount in the savings bank account is only to harras and to trouble the Complainant and further says that the non allowing to withdraw the said amount is a clear case of deficiency of service from the side of Opposite party bank. Hence it is prayed to direct the Opposite party bank to allow the nominee to withdraw the FD's which is deposited by his mother in FD's 1170 to 1198 and also to direct to pay Rs.65,000/- as cost and compensation due to the deficiency of service by the Opposite Party bank and to award compensation as the forum feels fair.

4. Notice were served to Opposite parties and Opposite parties entered appearance and 1^st Opposite party filed version and stated that the above complaint is not bonfide, nor maintainable either in law or on facts. This opposite party denies all allegations, statements, averments and claim etc, contained in the complaint. This opposite party specifically denies each and every allegation against this opposite party contained in paragraph 3 ,4,5 and 6 of the complaint, petitioner/ complainant is not a Consumer as defined in Section 2 ( d) of C P Act. The above complaint is filed on a mistaken and misconceived notion and there is no iota of truth in the allegations. It is true that the complainant's mother Annamma W/o.Varghese had made deposits totaling Rs.24 Lakhs in 31 deposits. Out of them, the FDs in Account No.558 and 559 were made on 26.03.2010 wherein, the nominee shown is Verghese, the account holder's husband. Rest of the F D A/c numbers 1170 to 1198 (29 deposits) were made on 29.03.2012, wherein the petitioner's name is shown as the Nominee. Besides these the deceased Annamma also had an SB A/c 3560 which then had a balance of Rs.84,640/- or thereabouts.

5. The depositor is known to have died on 11.12.2012. Thereafter on 23.04.2013 the complainant submitted a petition before 1^st Opposite party requesting to release the Fixed deposits and amount in savings account in the name of his mother in the capacity as the nominee of the deceased. However the complainant did not enclose, submit or surrender the original Fixed Deposit receipts relating to his claim. The Bank however made enquiries as to why the originals were not surrendered and the Bank came to know that the originals of the FD receipts are with the petitioner's sister. The complainant also did not submit any family membership or legal heirship certificate also along with the application. The complainant was therefore orally requested to produce the Original FD receipts and the Legal Heir ship Certificate of the deceased Annamma and Bank was waiting for the same. Even after some time, the Complainant did not produce the original of the FD receipts etc. and so the Bank took  legal advice and as per the legal advice dt. 20.06.2013 received from the Bank's counsel, this opposite party on 22.06.2013 issued a notice to the complainant requiring him to produce the original FD receipts or to communicate the address of the person in whose custody, the said Original FD receipts are.

6. In response to the said notice dt. 22.6.2013, the Opposite party Bank received
a letter dated 27.6.2013 whereunder the complainant informed the Bank that he is not in possession of the F D receipts and the said FD receipts are in the custody of his sister namely Laly Lawrence residing at Lobo Nivas, Ambalavayal Post, Mankombu, Wayand District. In order to obtain the originals of the FD receipts which is
required to be surrendered for further processing of the matter, the O.P BANK issued a notice dt. 6.7.2013 to the aforesaid Laly Lawrence (who according to the petitioner was holding the original FD receipts) calling upon her to produce the F D receipts for considering the petitioner's claim for the proceeds of deposits, wherein the Complainant is the nominee. In response to the said notice dt. 06.07.2013 the petitioner's sister issued a register notice dated. 01.8.2013 wherein Laly Lawrence claimed that it was her father who sold the 2 acres of landed property which stood bequeathed to her in her father's Regd. WILL No. 232/09 and he had sold the property himself and the sale proceeds were first deposited in his name and later it was transferred in the name of Annamma, the mother. Thus said Laly Lawrence claims that she alone is entitled to claim the amount. In that letter, the Bank was surprised to note that she questioned the very nomination made in the favour of the complainant in some of the FDs and she has alleged fraud in regard to such nominations. In view of the challenge and dispute as to the very nomination, by the deposit holder to one of the natural legal heirs, the Bank had no other alternative, but to insist on production of succession certificate.

7. All these facts and the rival claim made by one of the legal heirs opposing the nomination were informed to the petitioner then and there and to settle the matter, he was required to contact the Bank's legal adviser and that he may have to take and produce succession certificate from a competent court with respect to the amount in deposits, in view of the dispute, so that the disputes inter se is resolved. This was informed directly to the complainant by the Legal Advisor of the Opposite Party and the Bank and awaited for the reply.

8. The complainant has initially suppressed all these facts and background from the knowledge of this Honorable Forum and the attempt of the petitioner is to blame this opposite party for the delay in disbursement of amount, whereas the real crux of the problem is the dispute inters between the brother and sister.

9. The averment in the complaint that this opposite party unnecessarily protracted and that the Bank had intention of causing hardships and sufferings to the petitioner are all false and imaginary. The Bank has to proceed as per law and especially in a case of this nature where nomination itself is challenged and the original of Fixed Deposits receipts, was not surrendered which is a prime requisite for claim of proceeds thereof and which is also necessary to avoid any future claim by the holder of the FD receipts and to confirm absence of any claim by a person in custody of the Original. Thus it is transparently clear that the Bank was well within in its rights, in the circumstances of the case to require the Succession Certificate in view of inter-se dispute between rival claimants. In view of the above facts, here the real question is one of rival claims between legal heirs and dispute as to the nomination itself, the complainant cannot attribute, nor there was, any deficiency of service etc., on the part of the opposite party Bank so as to sustain or justify a complaint of this nature. If there are rival claims on an amount in deposit under different status, the Bank would not be able to proceed to blindly to release the amount to the complainant. It is submitted that this opposite party never intended nor did cause any hardship or suffering to the petitioner in the matter.

10. Since the matter in dispute involves serious questions to be adjudicated in a civil court having jurisdiction, this Honorable Forum lacks jurisdiction. It is also submitted that since the present dispute is between legal heirs of a deceased member, the Bank, which is a Co Operative Bank, section 69 and 100 of the Co-Operatives Societies Act also is bars cognizance of the matter before the Forum. This complaint is not in accordance with law, misleading and contains distorted facts. The complaint is vexatious, false and frivolous, against the interest of justice, besides being rival claimants which is not within the domain of this Honorable Forum.

11. The complainant is not entitled to claim Rs.50,000/- for the alleged deficiency in service or a sum of Rs.15,000/- towards the litigation expenses etc or any part thereof from this opposite party. All these are non-existent, exaggerated claims. This opposite party is in no way responsible to pay any amount or even a fraction thereof to the complainant. The relief No. 1 can not be granted as long as the dispute with respect to the rival claims over the disputed amounts is resolved through the competent Court or Succession certificate produced. The complainant might have either misconceived or ill-advised with respect to allegations and claim raised in the complaint. In view of the foregoing, the complaint is not maintainable and devoid of substance and may be dismissed with costs and compensatory costs of this opposite party.

12. 2^nd Opposite Party filed version stating that this Opposite Party denies all the allegation statement averment and complaint etc contained in the complaint except the death of the deceased Annamma, on 11.12.2012 and in the 31 accounts the amount deposited by the deceased Annamma. The averments in the complaint that, the complainant is nominated as nominee in the fixed deposit, the averment of this fact to the family members the deposits receipts were retained by the Annamma and on enquiry all the daughters stated that they were not aware of the FD receipts are untrue hence denied and all thease were only to confuse the Forum.

13. The father of the 2^nd Opposite party and Complainant Mr. P.P. Varghese were died and when he alive, anticipating the dispute regarding the property, he himself registered 5 acre of land in the name of Complainant and 2 Acre was registered in the name of 2^nd Opposite party and on the request of 2^nd Opposite Party the deceased Varghese sold out the said two acre property and as per the advice of the 2^nd Opposite party the said Varghese deposited the sale consideration in the account of the Varghese and Annamma in the account No.7282, 7283 of Sulthan Bathery Co-operative bank on 29.03.2010 as FD, and from the interest from the said FD's and the income from 2^nd Opposite party, the 2^nd Opposite Party has look after the aged parents and there after for getting the job for the daughter of the sisters of the Complainant the said FD's were transferred to the 1^st Opposite party bank and before the death of Mr. Varghese the FD's were transferred in to the name of the mother of the Complainant. All these facts were intimated to the Complainant by the 2^nd Opposite party who was not ready to look after the aged parents and the Complainant know the fact that the 2^nd Opposite party is entitled for all the deposits.

14. When the Shiji, the daughter of the sister of the Complainant employed in the 1^st Opposite Party bank, the Complainant using his influences, in all the application form of the said FD the Complainant's name is written in the place of nominee. And the Complainant and all the relatives clearly know that all the FD receipts is with 2^nd Opposite party and she is entitled for the same.

15. No claims were raised by the Complainant regarding the deposits till one years after the death of the mother of the Complainant. But after one year the Complainant secretly using undue influence with the 1^st Opposite party tried to withdraw the amount from the 1^st Opposite party bank. But when this attempts were failed, this complainant was filed on an experimental basis concealing the true and real facts.

16. The averments that the Poulose @ Baby is the nominee in the FD of the deceased Annamma is untrue and the 2^nd Opposite party is the only claimant of the deceased Annamma in the FD and no one else in the family is entitled for the benefit of the FD's.

17. The FD receipts were kept by the 2^nd Opposite party and at the time of depositing the FD's by the mother, the name of the nominee were not mentioned. And when the 2^nd Opposite party enquired in the Opposite party bank about the FD application form, she understood that the daughter of the sister of the Complainant is entered the name of the Complainant in the said FD fraudulently, which aught to have kept by the bank safely. Hence prayed before the Forum to dismiss the complaint which is filed on an experimental basis since he is not entitled for the same and further prayed to dismiss the complaint with compensatory cost to this Opposite party which is filed concealing the actual facts.

18. The Complainant filed proof affidavit of Complainant and stated as stated in the complaint and examined as PW1 and Exts.A1 to A4 and Ext.C1 series 31 numbers is marked. Ext.A1 is the certificate issued by the Village Officer, Ambalaval in which it is stated that the P.V. Poulose, S/o. Varghese, Paliyath mulayil and Baby Paliyath mulayil is one and the same person. Ext. A2 is the Death certificate of deceased Annamma. Ext.A3 is the Family Membership Certificate issued by the Village Officer, Ambalavayal wherein it is stated that the (1) Poulose @ Baby 54, (2) Salomi Aged 52, (3). Licy, aged 49. (4) Lali aged 47 is the family members of the deceased Annamma W/o Varghese. Ext.A4 is the FD deposit details produced, issued by the 1^st Opposite Party bank which shows that FD receipt No.1170 to 1198 amounting to 22,40,000/- and 558 & 559 is for Rs.1,60,000/- and on savings bank account 3560 is Rs.87,640/- and Ext.C1 (1) to (31) is the application of FD receipts where in Ext.C1 to 29 form the nominee 's name is written as Baby (son) and Ext.C1 (30) and C1(31) the nominees name is written as Varghese (husband) and in all the forms the specimen signature of the deceased is also affixed and all were seen similar.

19. 2^nd Opposite party's filed proof affidavit and stated as stated in the version and she is examined as OPW1 and Exts.B1 to B6 are marked. Ext.B1 is the will prepared by One P.P. Varghese in favour 2^nd Opposite party for 2 acre land for full right of the property. Ext.B2 series Fixed Deposit Receipt No.1170 to 1198 original and Fixed Deposit Receipt No.558 and FDR No.559 is the original FD receipts in all the receipts, depositors name Annamma Varghese is written. Ext.B3 is the original ID card of Annamma. Ext.B4(a) is the referral OP ticket from the Medical College Hospital, Kozhikode, the patient name is Annamma. Ext.B4(b) is the consultation appointment given by Dr. K.G. Sajeeth kumar patient name is Annamma. Ext.B4(c) is also same as Ext.B4 (b). B5 is the copy of registered letter issued by the 1^st Opposite party to 2^nd Opposite party to produce the FD receipt to the 1^st Opposite Party which is deposited by Annamma, W/o. Varghese. Ext.B6 is the copy of reply given by 2^nd Opposite party to the 1^st Opposite party for Ext.B5 notice.

20. 1^st Opposite Party filed proof affidavit and stated as stated in the version, he is examined as OPW2 and Exts.B7 to B13 is marked. Ext.B7 is the letter given by the Complainant to 1^st Opposite party to release the FD amount to him as the nominee dated 23.04.2013. Ext.B8 is legal opinion given by Adv. M.C.M Jamal to the 1^st Opposite party's bank. Ext.B9 is the reply given by the 1^st Opposite party to the Complainant to produce the original FD receipt. Ext.B10 is the letter given by the Complainant to 1^st Opposite party intimating the address of his sister who kept the FD receipt. Ext.B11 is the same as Ext.B5. Ext.B12 is the reply to Ext.B11 notice. Ext.B13 is the authorisation letter given by the 1^st Opposite party to Mr. T.T. Joy, Asst. Secretary to adduce evidence before the Forum.

21. On perusing the complaint, version, affidavit and documents and deposition the Forum raised the following issues for considerations.

1. Whether there is any deficiency of service from the side of Opposite Party?

2. Whether the Complainant is entitled for the deposited amount in the bank as F.D?

3. Relief and cost.

22. Point No.1:- Here in the case the question is to be decided is whether in the FD application form the nominees name is mentioned or not. On perusal of Ext.C1(1) to C(29) it clearly seen that Baby's (son) name is written in the column “special instructions nominee”. All the writing in Ext.C1 series 1 to 31 is same and in the same ink and no correction or difference in the letter is seen and also seems one handwriting. More over all the form is signed by the depositor, and all the entries on the form is admitted by the 1^st Opposite party who is the custodian of the said forms and he is the right person to say the genuity of the documents and in the original FD receipt no column is provided for nominees name. The 2^nd Opposite party stated in her version that in the application form the nominee's name is not mentioned. If it is so, how the 2^nd Opposite Party can claim the amount without her name and nomination in the form. More over on the allegation that on enquiry the Complainant's name is fabricated and Complainant's name wrote by fraudulent manner, but no steps were taken by the 2^nd Opposite Party to prove it and no complaints were also made any where and more over the 2^nd Opposite Party has not taken any steps to release the amount from the bank also. More over if the 2^nd Opposite party have any belief that she is the nominee, she would have approach the bank to realise the amount, but it is not done.

23. As per the records kept by the bank and statements and deposition by the bank officials that the nominee is Mr. Baby (son) the Complainant. Merely the possession of the FD receipt will not amount to any right in the Fixed deposits.

24. Since the depositor resided with 2^nd Opposite party for long time there is every possibility of possession of FD receipts will be with the 2^nd Opposite party but it will not amount to the right of a possessor. The claimant Complainant is the son of the deceased Annamma whose name is seen in column of nominee in the FD application form with the depositor's signature.

25. The 2^nd Opposite party has stated that in the nomination form the nominees name is not written, but on perusal of the records it shows that the name of the nominee/claimant Complainant ie Baby (Son) who is also known as Poulose as per the Ext.A1 document has been given by the depositor herself in NO.1170 to 1198 FD's and the nomination column in the FD opening form is seen filled in the same ink by the same handwriting. The fact that other two FD's No.558 & 559, the nominee is her husband ie Varghese (husband) and the signature of the depositor is also clear and unchallenged also. As discussed above even though the Complainant is entitled for the amount as per Ext.C1 (1) to (29) without producing the original FD receipt and connected documents the 1^st Opposite Party could not disburse the amount to the Complainant. Hence we opine that no deficiency of service is caused from the side of 1^st Opposite party. Hence the point No.1 is found accordingly.

26. Point No.2:- As discussed in the point No.1 the Complainant is entitled for the present value of the FD's Nos. 1170 to 1198 fully and also entitled for ¼ of the present value of the amount exists in FD's 558 and 559 and in the savings bank account 3560 of the deceased Annamma and the other 3 legal heirs of Annamma are entitled for the ¾ of the present value of the FD's 558 & 559 and savings bank account 3560 equally. Hence the point No.2 is found accordingly.

27. Point No.3:- As discussed above in point No.2 the Complainant is entitled for the present value of the FD's Nos. 1170 to 1198 fully and also entitled for ¼ of the present value of the amount exists in FD No's 558 and 559 and in the savings bank account 3560 of the deceased Annamma and the other 3 legal heirs of Annamma are entitled for the ¾ of the present value of the FD's 558 & 559 and savings bank account 3560 equally. Hence no order as to cost and compensation, the point No.3 decided accordingly.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to disburse the present value of FD's 1170 to 1198 which is deposited in the name of deceased Annamma to the Complainant within one month from the date of receipt of this order and also directed to disburse the present value of FD's 558 and 559 and the present value of savings bank account 3560 to all the legal heirs of Annamma equally on production of legal heir certificate of deceased Annamma and connected documents. On failure to comply the order by the 1^st Opposite party within the prescribed period the Complainant and others are entitled for an interest at the rate of 12% per annum above the bank interest.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 14^th day of September 2015.

Date of Filing:02.09.2013.

PRESIDENT :Sd/-

MEMBER : Different Opinion

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

(

APPENDIX.

Witness for the complainant:

PW1. Poulose @ Baby Complainant.

Witness for the Opposite Parties:

OPW1. Lali Lorance.

OPW2. Joy .T.T Asst. Secretary, Madakkimala Service

Co-oprative Bank

Exhibits for the complainant:

A1. Certificate. dt:31.01.2013.

A2. Death Certificate.

A3. Family Membership Certificate. dt:04.07.2013.

A4. Statement.

C1(31 in Nos.) Copy of Application Form & Specimen Signature.

Exhibits for the opposite Parties.

B1. Will. dt:01.10.2009.

B2 (31 Nos) Fixed Deposit Receipts.

B3. Election Identity Card. dt:05.01.1999.

B4(a to c) Referral O.P. Ticket and Medical Prescription.

B5. Letter. dt:06.07.2013.

B6. Letter.

B7. Letter. dt:23.04.2013.

B8. Letter. dt:20.06.2013.

B9. Copy of Letter. dt:22.06.2013.

B10. Letter. dt:27.06.2013.

B11. Letter. dt:06.07.2013.

B12. Letter.

B13. Authorisation. dt:15.07.2015.