BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 50/2004 Filed on 23.01.2004

Dated : 15.05.2009

Complainants:

1. L. Jayavathy Amma, W/o late Dr. Kesavan Nair, residing in Tilak, Sasthamangalam, Thiruvananthapuram.

Addl. Complainant:

2. T. Govind, T.C 9/1578, Tilak, Sasthamangalam, Thiruvananthapuram.

(By adv. C.S. Sukumaran Nair)

Opposite party:

The Trivandrum Co-operative Urban Bank Ltd. No. 1959, Thiruvananthapuram represented by its General Manager.

(By adv. V.S. Bhasurendran Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 15.06.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been heard on 27.04.2009, the Forum on 15.05.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The facts of the complaint in a nutshell is that the demand made for the premature closure of the fixed deposit of Rs. 2 lakhs in the opposite party's bank by the complainant was refused by the opposite party on the allegation that 'payment stopped by the attachment order/Ref. No. 701/2003 (HO) as per memo dated 07.01.2004. As there is no amount due from the complainant, the refusal to release the deposit amount as per the provisions applicable to premature closure of deposit amounts to deficiency in service and unfair trade practice and hence this complaint for refund of fixed deposit along with compensation and costs.

The opposite party has filed their detailed version along with a petition to hear the question of maintainability of the complaint as a preliminary issue on the grounds that the original complainant expired on 28.11.2004 and one T. Govind has filed impleading petition claiming that he is the grandson of the complainant and a Will has been executed by her on 27.11.2004 in his favour. This creates high suspicion about the genuineness of the Will as the complainant was neither having sound disposing mind nor having mental or physical capacity to execute the alleged Will and it is created by impersonation. Since the impleading petitioner is claiming benefits under the alleged Will, the onus is on him to prove the execution of the Will which cannot be determined before this Forum in a summary proceedings. The disputes involved is related to fraud, forgery, cheating and misappropriation. The matter involved complicated question of law and fact.

Hence the question of maintainability of the complaint was heard as a preliminary issue.

The I.A filed by the petitioner to implead himself as the additional 2^nd complainant was already heard by the previous Forum and was taken for orders, but since no order was passed on the same, the said I.A is also considered along with this issue and a common order is passed.

There is no dispute with regard to the fact that the original complainant Smt. L. Jayavathy Amma expired on 28.11.2004. According to the impleading petitioner, the original complainant had executed a Will in his favour and as per the Will the impleading petitioner alone is entitled to the FDR No. 17467 and that as the petitioner is the only person who is entitled to receive the F.D amount, the petitioner filed a petition to get himself impleaded in the party array as additional complainant. According to the opposite party, the original complainant is the mother of Janardhanan Nair, who is an employee of the opposite party presently under suspension due to misappropriation of amounts.

One T. Govind has filed a petition to implead himself as the additional complainant as the original complainant is no more and as per the Will executed by her in his favour, he alone is entitled to the FD for Rs. 2,00,000/- in SB Account No. 4722. Both parties have filed their detailed argument notes. The opposite party has strongly objected the same on the ground that the original complainant had deposited an amount of Rs. 2,00,000/- with this opposite party and the nominee was none other than her son Mr. K. Janardhanan Nair who swindled lakhs of rupees while working as branch Manager of this opposite party and that the crime branch as well as the local police has registered two criminal cases as Crime No. 403/2003 and 250/03. That the investigating authorities already issued prohibitory order under Sec. 102 Cr. P.C and since the related accounts of K. Janardhanan Nair are seized by the police they cannot disburse the above amount. That in such a situation the Will No. 226/04 produced by the petitioner is false, fabricated and purposefully created for filing this impleading petition and that the nominee of the original complainant Mr. Janardhanan Nair and the legal heirs ought to have got impleaded in this complaint and it is just to save the face of Janardhanan Nair, the alleged Will No. 226/04 is created by impersonation.

From the above, it is an undisputed fact that all the legal heirs of the original complainant and the nominee of the original complainant have not filed any petition to implead themselves as the complainant. The impleading petitioner who is the grandson of the original complainant alone has filed a petition to get himself impleaded as the additional complainant on the strength of the Will executed in his favour by the original complainant. The opposite party has strongly contended that the Will has been executed on 27.11.2004 and the complainant expired on 28.11.2004 and the genuineness of the Will is in suspicion. Hence, considering the above circumstances and taking the arguments and facts into consideration, it is plain and clear that the Will is the main document to be looked into for considering the same. But the authenticity and validity of the same are challenged by the opposite party.

The learned counsel for the complainant argued that the definition of complainant as per Sec. 2(1)(b)(v) of the Consumer Protection Act is that 'in case of death of a consumer, his legal heir or representative'. The learned counsel had further argued that as per Sec. 2(11) of Consumer Protection Act a person on whom the estate of the deceased devolves would be his legal representatives and in the present case on the death of the complainant, the FDR 17467 would devolve upon the petitioner in accordance with the provisions in the Will executed by the deceased. The opposite party has strongly challenged the Will and has alleged that it has been created by impersonation. According to the opposite party, the Will is seen executed by the complainant on 27.11.2004 and she expired on 28.11.2004 and it creates high suspicion about the genuineness of the Will and the facts and circumstances would show that the complainant was neither having sound disposing mind nor having mental or physical capacity to execute the alleged Will. Opposite party's counsel had further argued that if there is a suspicious circumstance, the burden is heavily on the party also who has benefited it.

The main challenge is with regard to the Will. Having carefully read the complaint, version and documents accompanying it, we are of considered opinion that this could not be gone into under the summary proceedings under the Consumer Protection Act. Complicated questions of facts are involved particularly with respect to the Will dated 27.11.2004 alleged to have been executed by the original complainant. The Consumer Disputes Redressal Forum is not the authority to adjudicate the authenticity of a Will. This can be considered only by a court of competent jurisdiction and it is not adjudicable before a Consumer Disputes Redressal Forum. Whether the complainant's case is true or false can only be established on elaborate evidence. This question requires recording of detailed evidence and on mere affidavits the complaint cannot be properly adjudicated. We are of the considered opinion that the complainant should approach a civil court for appropriate redress if any. The case as set-up by the complainant and the objections raised by the opposite party needs elaborate enquiry as to the validity of the Will. Hence we are of the opinion that the petitioner should approach a civil court for appropriate redress if any and the civil court is suited to decide such complicated cases.

In the result, the I.A filed by the impleading petitioner is dismissed with liberty to seek his remedy if any from appropriate legal authority and the complaint is found not maintainable before the Forum.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th May 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER