Date of filing                       : 12.08.2011

                        Date of disposal          : 31.05.2013

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.

PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)

Sri M.Sreelatha, B.A., B.L., Lady Member

Friday, the 31^st day of May, 2013

C.C.No.132/2011

Between:

A.Usha Devi, D/o A.Suresh,

Sinecure, 1287, Cedar Shoals,

Dr.Apartment, 1001, Athens, GA 30605, USA

represented by G.P.A. L.Anand Kumar,

S/o L.Venkatanarayana,

9/33, Tadipatri Town,

Anantapur District.                                                    …  Complainant

Vs.

1.       C.H.Nagamani (C.A.No.0957399/ATP/97)

          W/o C.H.Nagamaddaiah,

          D.No.10/146, Durgamma Temple Street,

          Dharmavaram- 515671.

2.       C.Naga Narendra (C.A.No.F0601501/99),

          D.No.10/146,

          Durgamma Temple Street, Dharmavaram,

          Anantapur District.

3.       The Superintendent of Post Offices,

          Hindupur,

          Anantapur District.

4.       The Head Post Master, Head Post Office,

Dhamravaram,

Anantapur District.                                                    …. Opposite parties

This case coming on this day for final hearing before us in the presence of Sri  J.Chittaranja, Advocate for the complainant and  the opposite parties       1 & 2  called absent and  Sri T.Bharath Bhushana Reddy, Advocate for the opposite parties 3 & 4 and after perusing the material papers on record and after hearing the arguments of the complainant, the Forum delivered the following:

ORDER

Smt M.Sreelatha, Lady Member: - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the

opposite parties 1 to 4 jointly and severally liable to pay the claim of Rs.2,22,000/- being the amount of MIS and RD deposit amount with interest @24% p.a. on the deposit and accrued interest thereon from time to time the default and Rs.50,000/- towards mental agony and deficiency of service and cost and such other relief’s.

 2.      The complainant while he and his family were residing at Dharamvaram he got deposited the amount in M.I.S. Scheme through on his name and on two minor children.  The opposite parties 1& 2 in the 4^th opposite party branch at Dharamavaram. The 1^st opposite party is the mother of the 2^nd opposite party and the 2^nd opposite party deals with account on behalf of the 1^st opposite party decides his dealing as agent with the account hereunder.

Like wise the complainant also opened R.D. accounts in his name and his two minor children as hereunder:

3.       The complainant used to withdraw the interest though opposite parties       1 & 2 and 2^nd opposite party is the son of the 1^st opposite party deals with all the MIS and R.D. accounts. The complainant deposited amounts in MIS cheques through cheques and signed on the withdrawal forms for receiving the interest on the deposit and asked the opposite parities 1 & 2 to deposit the amount in the R.D. accounts. As he has been residing in U.S.A. for convenient purpose the complainant singed on the blank withdrawal forms for the every month interest.  Whenever the MIS deposit amounts matures again the opposite parties 1 & 2 redeposit the amounts in the branch of 4^th opposite party at Dharmavaram from time to time likewise in the R.Ds by getting signatures of the complainant.  Whenever he comes to India and he used to come to India three or four years of time for these purpose the opposite parties 1 & 2 obtained the signatures of the complainant on blank papers as promoted that obtaining the signature of the depositors in blank papers and forms is regular and in vogue. Recently the complainant came to Indian and came to know that the opposite parties 1 & 2 were not residing in address of them.  Then the complainant approached the 4^th opposite party for all the MIS and R.D. accounts and requested him to furnish the accrued interest and principle amount as he had been renewed from time to time through the opposite parties 1 & 2.  On surprise of the complainant the 4^th opposite party said that all the above said accounts were close by withdrawing the amounts and the complainant got astonished and got shocked.  Then the complainant asked to close the accounts and want to get back the deposit amounts of all the MIS and R.D accounts.  However the 4^th opposite party nor furnished the details of the accounts and not properly responded and it’s a clear case of negligence and deficiency of service on the part of the 4^th opposite party and its clear that opposite parties 1 ,2 & 4 jointly colluded and not furnished the details of deposit and interest accounts.  Then the complainant got issued legal notice on 06.06.2011 calling upon opposite parties to pay back the amounts mentioned above within 24% interest per annum within fortnight.   However the opposite parties neither paid the amount nor reply for the legal notice. Hence, the complaint.

4.       The complainant appointed his brother in law as his power of attorney duly attested by notary and the same is also entered in the notairal registration report page No.26 serial No.169 filed before sub-registrar Office, Anantapur dt.08.06.2011 to dealt with legal proceeding of the opposite parties for the accounts mentioned above for the recovery and to receive on his behalf.

5.       Hence the complainant prayed this forum to direct the opposite parties           1 to 4 jointly and severally liable to pay the claim of Rs.2,22,000/- being the amount of MIS and RD deposit amount with interest 24% p.a. on the deposit and accrued interest thereon from time to time from the default and Rs.50,000/- towards mental agony and deficiency of service and cost and such other relief’s.

6.       Counter filed by the 3^rd opposite party the complainant is neither just nor maintainable either in law or facts of the case. On the allegations contained in the complaint are all false and the petitioners are put to strict proof of the same. It is fact that the complainant has opened MIS Account No.1623 on 13.11.1984 for Rs.24,000/-, account No.2167 on 01.10.1999 for Rs.24,000/- and account No.2338 on 30.11.1999 for Rs.30,000/- and also opened R.D. account No.99500 on 04.10.1999 for Rs.250/- per month and 102570 on 19.02.2001 for Rs.900/- at Dharmavaram Head Office through the 1^st opposite party.  As admitted by the complainant has given singed blank withdrawal forms for receiving the interest on deposits and asked the opposite parties 1 & 2 to deposit the amounts into R.D. accounts as he has been residing at U.S.A and for convenient purpose  he signed on the blank withdrawal forms for monthly interest due to him.  The opposite parties 1 & 2 used to withdraw the interest by producing the signed withdrawal forms given by the complainant and used to redeposit in the said RD accounts and closed the accounts as under.

1. MIS Account No.1623  closed on 15.07.2003.
2. MIS Account No.2167 closed on 15.07.2003.
3. MIS Account No.2338  closed on 30.12.2002.
4. R.D account No.99500 closed on 07.10.2002.
5. R.D account No.1025570 closed on 25.06.200.

The allegation are that  the complainant got astonished to know  where about the opposite parties 1 & 2 as they were not residing at Dharmavaram and the 4^th opposite party not furnished the information regarding the closed of the said MIS and RD accounts. Hence there is no negligence on the part of the opposite parties 3 & 4 and there is no collusion by the 4^th opposite party with other opposite parties.   As accounts were already closed this opposite party has not reply for the legal notice of the complainant dt.06.06.2011.  This opposite party also submitted that for the close of the account the signatures of the complainant were available on both sides of the withdrawal forms i.e., application for closer and aquittance on the other hand for having received the amount.  Hence there is no necessity to pay back the amounts to the complainants again and the signatures on the withdrawal forms are of the complainant only.

7.       It is fact that the S.D.I. (P) Dharmavarm has issued a notice to the complainant to attend enquire personally but he did not attend the enquiry.  Later the xerox copy of G.P.A. in favour of Sri L.Ananda Kumar was received at this office for receiving the amounts on behalf of the complainant. Opposite parties 3 & 4 submit that in this case the complainant gave singed blank withdrawal forms along with the pass book to the 1^st opposite party and keeping quite for long period without verifying the pass book which shows the entries are assumed to be thus the complainant is well aware of the closer of the account and negligence is on the part of the complainant but not as on the opposite parties as alleged in the complaint.  Hence, there is no deficiency of service on the part of the opposite parties and the complaint is liable to be dismissed with costs.

8.       The 4^th opposite party filed a memo adopting the counter filed by the                      3^rd opposite party.

9.       Opposite parties 1 & 2 called absent.

10.     Basing on the above pleadings, the following points that arise for consideration are:-

    1. Whether there is deficiency of service on the part of the opposite parties 

        1 to 4?

    2. To what relief?

11.     In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A7 documents. The 3^rd opposite party has filed evidence on affidavit and no documents are marked.

12.     Heard complainant side.

13. POINT: - The following points are the admitted facts by the both parties that the complainant has deposited amounts with 4^th opposite party Branch at Dharmavaram through opposite parties 1 & 2 and it is an also admitted fact that the MIS and RD amounts mentioned in the complaint one and the same as per 3^rd opposite party concern and the same was adopted by the 4^th opposite party so it is an admitted one.  It is also an admitted fact the complainant has deposited the above amount through cheques and it is also an admitted fact the complainant has given blank withdrawal forms to the opposite parties 1 & 2 to redeposit the same after maturity in MIS and RDs For this also the opposite parties 3 & 4 is not disputed.  It is also an admitted fact that the opposite parties prematurely allowed the opposite parties 1 & 2 to receive the amounts of MIS and RDs as per the counter and evidence filed by the opposite parties.   It is also an admitted fact that the complainant got issued legal notice on 06.06.2011 demanding the opposite parties to pay the amounts with interest and there is no reply from the opposite parties.  The counsel for the complainant argued that the complainant is residing at U.S.A. hence he handed over blank withdrawal forms to opposite parties 1 & 2 for the convenience to receive interest every month and opposite parties 1 & 2 used to redeposit the amounts with the 4^th opposite party branch.  The counsel for the complainant argued that basing on the blank withdrawal forms the opposite parties 1 & 2 and the 4^th opposite party colluded each other and withdraw the amounts not even following rules framed by the postal department.  The counsel for the complainant argued that though the rules contemplated under the post office Rules 1987. The counsel for the complainant argued that the opposite parties            3 & 4 are negligently with malafide intention, the opposite parties 1 & 2 are allowed to withdraw the amounts of MIS and RDs though there is a rule 6 under postal Rules Act if the amount exceeds more than Rs.20,000/-  the amount should paid through cheque only by the post office as provided under section 269 (T) of the income tax Act. The counsel also given a kind attention to this Forum that as per Post Office (monthly income account rules 1987 and rule 9 closer of account is as follows). The deposit made at the time of opening of the account shall be paid by the posit office at which the accounts stand to depositor on or after expiry of six year from the date of opening of the account along with bonus equal to 10% on amount deposited on production of the pass book accompanied by written application.

14.     In the present case   the counsel for opposite parties 3 & 4 though he filed documents along with counter he has not shown the same documents either in counter nor in chief affidavit, the opposite parties 3 & 4 also not come forwarded to mark the documents or to advance their arguments though this Forum has given number of opportunities to opposite parties 3 & 4 neither the counsel nor any representative from the opposite parties 3& 4 were appeared before this Forum at any point of time. It seems that the opposite parties 3 & 4 have no interest to defend their case.  This Forum though the documents were taken into consideration they were not marked.  The documents filed by the opposite parties 3 & 4 it clearly shows that the amounts were withdrawn prematurely by the opposite parties 1 & 2.  As per the documents there was no application form was received by neither the 3^rd opposite party nor the                      4^th opposite party to closer of the accounts prematurely, as contemplated as per Rule 9 of Postal Rules.  The opposite parties 3 & 4 mentioned in counter and chief affidavit that they requested the complainants to appear for enquiry but they have not filed any documents for the same.

15.     It is an observation made by this Forum that the 2^nd opposite party is the person in whose name there were already cases pending before the Hon’ble High court and the same was  brought into the kind attention notice to the opposite parties 3 & 4 by the other depositors like the complainants in C.C.No.33/2007 and others  that the 2^nd opposite party is in the habit to receive the amounts of public by taking the signatures on the withdrawal forms and it is also an information to the opposite parties that no payments were made to that particular person before closing of this accounts of the complainants. When there is a notice about the dishonest intention of the 2^nd opposite party the opposite parties 3 & 4 must be an abandon caution should be taken against that person.  The case in hand there were no symptoms that the opposite parties followed the procedures laid down under the rules. 

16.     The counsel for the complainant also argued that for premature closure of account there is separate application should be enclosed. But in the present case the 4^th opposite party basing on the withdrawal forms itself the opposite parties 1 & 2 are allowed to receive the amount.  As per Rule 10 premature closer of account.  Not withstanding anything contain in sub rule (2) of rule 5, on an application made by the depositor in this regard, he may be permitted to withdraw the deposit and close the account any time after expiry of a period of one year from the date of opening of such account, subject to the condition that an amount equal to 5 percent of the deposit shall be deducted and remained paid to him.  Provided that no such deduction shall be made if the account is closed after expiry of three years from the date of opening of such account.

17.     We are of the view that the arguments advanced by the complainant that the opposite parties 3 & 4 has not followed the procedure laid down under the postal rules and the opposite parties admittedly allowed the opposite parties             1 &  2 to receive the amounts prematurely.   When there is  a specific  rule i.e., Rule 6 that when the amount exceeds Rs.20,000/- the mode of payment should be by way of cheque but in the present case the 4^th opposite party paid the amount in cash as per the document filed by the them and the mode of payment is also basing on the withdrawal form only. The opposite parties not followed the rule 10 of the post Office Rules for premature closure of the accounts.   The counsel also submitted that the Hon’ble State Commission dismissed the appeals filed by the opposite parties 3 & 4 in F.A.No.747/2008 in C.C.No.33/2007 to F.A.No.752/2008 in C.C.No.107/2007.  The Hon’ble State Commission has not interfered the orders of this Hon’ble Forum and dismissed the appeals filed by the 3^rd opposite party.  The Hon’ble State Commission also observed that act or omission on the part of the opposite parties in allowing opposite parties 1 & 2 present withdrawal form without accompanied by any separate application for premature closure by sanctioning and dispersing the amount is clear cut violation of the rule. The state Commission also observed that taking the advantage that the complainant signed withdrawal forms by playing deception he got the accounts close prematurely with dishonest intention to withdraw the amount.

18.     We also made an observation that opposite parties 1 & 2 are agents of the opposite parties 3 & 4, there is no dispute with regard to the same and the agents were appointed under the NSC scheme to discharge his duties in post office to facilitator to depositors for the monthly depositor’s amount. It is clear cut case that the opposite parties 1, 2 & 4 conjointly acted for the closure of the account. The opposite parties 3 & 4 acted vigilantly the accounts could not be closed and  withdrawn as a prudent employee and the 4^th opposite party should have issued cheques instead of cash to safe guard the amounts of the public.  Act or omission of the opposite parties gives deficiency of service on their part and it is a clear case of negligence on the part of the opposite parties 3 & 4.   Hence, the point is answered accordingly in favour of the complainant and against the opposite parties.

19.     We are of the opinion that the complainant has not suffered any mental agony as he deposited the amounts in year 1998 and R.D. accounts in the year 1999 and he handed over the pass books to the opposite parties 1 & 2 and though he used to visit India at three years or four years once he never tried to known whether the amounts deposited were renewed or not.  After lapse of 10 years he filed this complaint. Hence, he is not entitled any metal agony as claimed.

20.     In the result the complaint is allowed by directing the opposite parties           1 to 4 jointly and severally liable to pay Rs.78,000/- towards MIS account with interest @ 9% p.a. from the date of filing of the complaint till the date of realization and the complainant is also entitled to the R.D. amount accrued interest upto closure of the account  with interest @ 9% p.a. from the date of filing of the complaint till the date of realization.  The opposite parties are to pay the amount within one month from the date of this order in the circumstances without costs.

Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 31^st day of May, 2013.

                    Sd/-                                                                      Sd/-

           LADY MEMBER                                             RESIDENT (FAC)

  DISTRICT CONSUMER FORUM                            DISTRICT CONSUMER FORUM

           ANANTAPUR                                                 ANANTAPUR

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE COMPLAINANT:

NIL

ON BEHALF OF THE OPPOISITE PARTIES

-NIL-

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

Ex.A1 Original General Power of Attorney executed by A.Usha Devi in favour of

L.Anand Kumar dt.08.06.2011.

Ex.A2 Office copy of the legal got issued by the complainant dt.06.06.2011 to

the opposite parties 1 to  4.

Ex.A3 Photo copy of postal receipts bearing Nos.322 to 325 dt.06.06.2011.

Ex.A4 Photo copy of postal acknowledgement singed by the 3^rd opposite party.

Ex.A5 Photo copy of postal acknowledgement singed by the 4^th opposite party.

ExA6 Photo copy of returned postal cover of 1^st opposite party.

Ex.A7 Photo copy of returned postal cover of 2^nd opposite party.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES

NIL

                      Sd/-                                                         Sd/-

          LADY MEMBER                                            PRESIDENT (FAC)

  DISTRICT CONSUMER FORUM                            DISTRICT CONSUMER FORUM

           ANANTAPUR                                                ANANTAPUR