CONSUMER DISPUTES REDRESSAL FORUM

Palakkad, Kerala

Dated this the 20^th September 2013

Present : Smt. Seena.H, President

:Smt. Preetha.G.Nair, Member

: Smt. Bhanumathi.A.K, Member Date of filing: 3/10/2012

CC / 185 / 2012

M/s. Life Insurance Corporation of India,

Ottapalam Branch, Ottapalam Post,

Palakkad – 679 101,

Represented by Sri. Augustine Thomas,

S/o. Thomas, Manager Legal,

LIC of India, Divisional Office, Trichur. - Complainant

(By Adv. T.P. George & Adv. K. Dhanajayan)

Vs

1. Union of India,

Represented by Chief Post Master General,

Northern Region,

Office of the Post Master General, Calicut.

2. The Superintendent of Post Offices,

Ottapalam Division, Post Office Ottapalam,

R.S Road, Ottapalam- 678 101.

3. The Manager,

Vaniyamkulam Service Co-op. Bank Ltd.,

Vaniyamkulam Post, Ottapalam Taluk,

Palakkad Dt.

(By Adv. A.V. Ravi)

4. K. Premadasan,

Kanjirakuzhy House, Kunathara Post,

Ottapalam, Palakkad - 679 523

5. T. Premadasan,

S/o. Late Madhavan, Kanjirakuzhy House,

Kunathara Post, Ottapalam,

Palakkad – 679 523

6. The Secretary,

The Vaniyamkulam Service Co-operative Bank Ltd.,

Vaniyamkulam Post, Ottapalam Taluk,

Palakkad Dt.

(By Adv. A.V. Ravi)

7. The Vaniyamkulam Service Co-operative Bank Ltd.,

Vaniyamkulam Post, Ottapalam Taluk,

Palakkad Dt. - Opposite parties

(By Adv. A.V. Ravi)

O R D E R

By Smt. Seena. H, President

Brief case of the complaint:-

The complainant is one of the several branches of the Life Insurance Corporation of India, which is incorporated as per the provisions of Life Insurance Corporation of India Act 1956. The 5^th opposite party has taken a life insurance policy on 10/9/2005 named Jeevan Surabhi policy bearing No. 775170228 for a sum of Rs. 1,00,000/- from the complainant. Under this scheme policy holder is entitled to get 30% of the sum assured as survival benefit after 4 years. That amount was sent by the complainant by a cheque for Rs. 30,000/- bearing No. 154715 drawn on the Federal Bank, Ottapalam branch dated 10/9/2009 in favour of T. Premadasan by registered post with acknowledgement due through the 2^nd opposite party. The complainant was under the bonafide belief that the registered post containing the cheque was delivered to the 5^th opposite party. But in January 2010 the 5^th opposite party intimated the complainant that so far he has not received the first survival benefit. Immediately the complainant contacted the 2^nd opposite party, through whom the registered post was sent. The 2^nd opposite party by letter dated 19/1/2010 replied that they have conducted necessary enquiries and it reveals that the article was delivered to another person named K. Premadasan, Kanhirakuzhi House, Koonathara Post, on 29/9/2009 instead of T. Premadasan. They have also stated in the reply letter that the wrong recipient has reported to them that he will certainly repay the amount to the correct address. But on 23/7/2011 the complainant received a letter from the 5^th opposite party that he has not so far received the survival benefit. Again on 29/9/2011 and 14/10/2011 complainant has sent reminders to the 2^nd opposite party

requesting them to intimate the initiative taken by them to recover the amount from the wrong addressee. The 2^nd opposite party have not taken any steps to recover the amount from the wrong addressee. The 4^th opposite party was the person who has received the registered post from the 2^nd opposite party on 29/9/2009. Though the 4^th opposite party was fully aware that the registered post was addressed to T. Premadasan and he is a person, who is personally known to him has received the registered post containing the cheque for Rs. 30,000/- with an intention to commit fraud and with a dishonest intention to cheat, encashed the cheque through the 3^rd opposite party on 7/10/2009. On receipt of the cheque the 4^th opposite party has opened an account with the 3^rd opposite party on 1/10/2009 in his name as “K. Premadasan” and collected the cheque issued to “T. Premadasan”. Complainant has sent a letter dated 18/8/2011 to the 4^th opposite party requesting him to return the cheque amount but so far he has not return it. He has not only committed fraud but also committed an act of impersonation which is punishable under Section 419 of IPC.

Complainant has later paid Rs. 34,801/- as the first survival benefit with subsequent interest (after deducting the income tax Rs. 551/-) to the 5^th opposite party on 3/12/2011 by another cheque dated 3/12/2011 bearing No. 826860 drawn on the South Indian Bank, Ottapalam Branch and he received the same on 12/12/2011. The complainant has sent a lawyer notice to opposite parties 2,3 and 4 on 24/1/2012 claiming Rs. 34,801/- with Rs. 551/- as IT and other compensation being the loss sustained on account of the wrong delivery of the registered post and wrong realization of the cheque amount without verifying of the account holder. The 4^th opposite party has returned the notice as intimation given. The 2^nd opposite party has sent a reply notice admitting the wrong delivery. Though notice was received by the 3^rd opposite party but no reply was sent by them. The 4^th opposite party has committed fraud, misrepresentation, cheating and impersonation on the complainant. The 2^nd and 3^rd opposite parties also committed deficiency in service. As such the complainant met heavy loss of Rs. 35,352/- (Rs. 34801+Rs. 551 as IT) due to the wrong delivery of the registered article and encashment of the cheque by a wrong person and suffered mental agony to the tune of Rs. 50,000/- for which the opposite parties are liable.

Complainant claims an amount of Rs. 85,352/- towards the said deficiency of service as compensation. The complainant is legally entitled to get damages from opposite parties 1 to 4. The beneficiary of the policy ie, the original policy holder is a necessary party in this case and thus he is arrayed as a party in this case. He has not committed any deficiency of service against the complainant. Therefore no relief is sought from him.

Version of the opposite parties :-

Opposite parties 1 & 2 has filed version. Opposite parties 3,6,7 also filed version. Opposite parties 4 & 5 set exparte.

Opposite parties 1 & 2 admits receipt of registered post containing cheque to be delivered to 5^th opposite party. Opposite parties 1 & 2 further admits that it was wrongly delivered to 4^th opposite party. According to them wrong delivery was not intentional. It occurred only because the 5^th opposite party was abroad during the period and further he is known as 'Unni” in the locality where as the wrong recipient was known as 'Premadasan'. Both of them were near relatives also. 4^th opposite party assured to repay the amount and hence such a reply was given to the complainant on 19/1/2010. But despite earnest efforts, 4^th opposite party has not credited the value of the fraudulently encashed cheque to the 2^nd opposite party. According to opposite parties 1 & 2 there is no deficiency in service on their part as there was not any willful act on their part and the wrong delivery happened due to similarity in the names of opposite parties 4 & 5.

3^rd opposite party filed version. Opposite parties 6 & 7 adopted the version filed by 3^rd opposite party. According to them the complaint itself is not maintainable before the Forum on two grounds. Firstly the complaint is bad for non-joinder of necessary parties. Complainant has not included the Secretary, Vaniyamkulam Service Co-operative Bank Ltd. and Union of India in the party array. Further complaint is not filed within the period of limitation and hence barred by limitation. According to opposite parties 3, 6 & 7 there is no deficiency in service on their part since 1^st opposite party has done wrong delivery. Bank has verified the address of the 4^th opposite party, Premadasan and it is informed that he is known as K. Premadasan as well as T. Premadasan and that is why the instrument has been realized on the basis of the information gathered from him as well as the person who have

introduced him to opposite party. So there was no willful default or negligence on their part and the complainant is not entitled to get compensation from them. Further stated that since it is a commercial transaction between the complainant and so called Premadasan complaint will not lie before the Forum.

The evidence adduced by the parties consists of their respective chief affidavit of the parties. Ext. A1 to A13 were marked on the side of complainant.

Issues for consideration are;

1. Whether there is any deficiency in service on the part of opposite parties 1 & 2 ?

2. Whether there is any deficiency in service on the part of opposite parties 3, 6 & 7 ?

3. Whether there is any deficiency in service on the part of 4^th opposite party ?

4. What is the relief and compensation complainant is entitled to ?

Issue No. 1

Heard all parties and gone through the entire evidence on record.

The specific allegation against opposite parties 1 & 2 is that they have made a wrong delivery of the article addressed to 5^th opposite party. Opposite parties 1 & 2 admits that they have made a wrong delivery. But according to them it is not a willful act. The name and address of both the parties are same and the wrong recipient was popularly known as Premadasan and the original addressee was known as 'Unni” in the locality. The above said contention are mere pleadings not supported by any evidence. Opposite parties 1 & 2 ought to have thoroughly verified before making delivery. Opposite party No.2, being a responsible staff of the postal authority ought to have acted more vigilantly. The principles of resipsa loquitor applies in this particular case and nothing more is required to attribute deficiency in service on the part of opposite parties 1 & 2. We find opposite parties 1& 2 deficient in their service.

Issue No. 2

Opposite parties 3, 6 & 7 has contented that the complaint is not maintainable before the Forum on account of limitation and non joinder of necessary parties. As per Ext. A3, the postal authorities have informed the complainant on 19/1/2010 that the wrong recipient has reported that he will certainly repay the amount to the correct addressee.

Again complainant was made known regarding the non payment by Ext. A7 letter dated 23/7/2011 sent by the 5^th opposite party. Again a remainder dated 14/10/2011 was issued to 1^st opposite party regarding the steps taken after. Ext.A2 letter dated 18/8/2011 also issued by the complainant to the wrong recipient for realization of the money. After receipt of Ext. A7 letter dated 23/7/2011, complaint is seen filed on 3/10/2012 which is within the period of limitation. Opposite parties 3, 6 & 7 cannot take a contention that as far as the bank is concerned, limitation application since the facts leading to the complainant can be taken as a whole only. We do not find any substance in the other contentions regarding non joinder of necessary parties. Complainant has incorporated the Manager, Secretary of the Bank when the cheque was encashed in the party array. Regarding the deficiency in service on the part of opposite parties 3, 6 & 7 we find that there is no contentions on their part that the mistake was due to oversight. On the other hand the bank has stated that the 4^th opposite party has himself stated that he is known as K. Premadasan as well as T. Premadasan and that is why the instrument was realized on the basis of the information gathered from him and the person who have introduced him to the bank. We find the above said contention is a clear evidence of deficiency in service on the part of opposite parties 3, 6 & 7. Their own statement go on to show that 3^rd opposite party had a suspicion regarding the identity of the 4^th opposite party and it was enquired to both the 4^th opposite party and also the person who has introduced him. Even the opposite party realized the cheque amount. A person may be known under two names, for eg. x @ y. But a person's name to be known under two initials is unbelievable. We find opposite parties 3, 6 & 7 negligent in their service.

Issue No.3

4^th opposite party is the person who has committed fraud, but we are not in a position to fasten any liability upon him as this is not the appropriate Forum to look in to the matter.

Issue No.4

Deficiency in service on the part of opposite parties 1 & 2, opposite parties 3, 6 & 7 already established. Now regarding the question of compensation to be awarded. We

find that complainant has also contributed to the negligence committed by the opposite parties. Complainant ought to have insured the registered before sending to the addressee. Complainant cannot escape saying that it is not the usual practice followed. Complainant has already paid the survival benefit with interest to the 5^th opposite party which comes to Rs. 35,352 (rounded off to Rs. 35,000/-). We are of the view that the above said loss equally divided among the opposite parties 1 & 2 on the one hand and opposite parties 3, 6 & 7 on the other hand will meet the ends of justice. No compensation as such is allowed.

In the result Complaint partly allowed.

1. 1^st and 2^nd opposite parties jointly and severally directed to pay complainant an amount of Rs. 17,500/- along with Rs. 500/- as cost of the proceedings.

2. 3^rd ,6^th and 7^th opposite parties jointly and severally directed to pay complainant an amount of Rs. 17,500/- along with Rs. 500/- as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

Pronounced in the open court on this the 20^th September, 2013

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

Sd/-

Smt. Bhanumathi. A.K

Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 – Photocopy of Insurance Policy issued by the complainant to 5^th opposite party.

Ext.A2 – Photocopy of Letter sent by the complainant to the 4^th opposite party dated 18/8/2011.

Ext.A3 – Letter (copy) issued by the 2^nd opposite party to the complainant.

Ext.A4 – Photocopy of Reminder Letter issued by the complainant to 2^nd opposite party dated 14/10/2011.

Ext.A5 – Letter issued by the complainant to The General Manager, Ottapalam Co- Operative Urban Bank Ltd. Dated 9/12/2011.

Ext.A6 – Statement of account of 4^th opposite party issued by the 3^rd opposite party to the complainant.

Ext.A7 - Letter (copy) sent by the 5^th opposite party to the complainant dated 23/7/2011.

Ext.A8 – Registered Letter (copy) with acknowledgement due sent by the complainant to the 5^th opposite party.

Ext.A9 – Photocopy of Voucher (form No.3427) drawn in favour of 5^th opposite party by the complainant.

Ext.A10 – Letter issued by The Ottapalam Co-operative Urban Bank Ltd. to the complainant dated 17/12/2011.

Ext.A11 series – Lawyer notice (copy) issued to opposite parties 2, 3 and 4 with postal receipt, acknowledgement card and unserved cover addressed to 4^th opposite party.

Ext.A12 – Registered Reply Letter to lawyer notice send by the 2^nd opposite party.

Ext.A13 – Memo submitted by Manager, Federal Bank, Ottapalam.

Exhibits marked on the side of opposite parties

Nil

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost allowed

Rs. 1,000/-(Rupees One thousand only) allowed as cost of the proceedings.