Haryana

Karnal

CC/127/2019

Ram Kumar - Complainant(s)

Versus

Head Post Office - Opp.Party(s)

N.K. Zak

10 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                    Complaint old No.204 of 2013

                                                    Complaint new no.127/2019

                                                    Date of instt.: 30.04.2013/6.3.2019

                                                    Date of decision:10.06.2019

 

Ram Kumar son of Shri Pirthi resident of village Kurlan, Tehsil Ballah, District Karnal.

 

                                                                         ……..Complainant.

                                        Vs.

1. Head Post Office, through its Senior Superintendent of General Post Office, Kunjpura Road, Karnal.

2. Postmaster, Post Office, Salwan, Tehsil Ballah, District Karnal.

3. Shiv Kumar son of Shri Khazan Singh, Gram Dak Sewak, Branch Post Master, village Kurlan, Tehsil Ballah, District Karnal.

                                                                        …… Opposite Parties.

 

Complaint u/s 12  of the Consumer Protection Act.

 

Before:     Sh. Jaswant Singh………..President

                Sh.Vineet Kaushik ………..Member

               

 

 Present:  Shri N.K.Zak Advocate for complainant.

                  Shri Surinder Saini Advocate for OPs no.1 and 2.

                   Shri J.P.Singh Advocate OP no.3.

 

                   (Jaswant Singh President)

ORDER: 

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he had two accounts bearing no.723178 and 724080 with opposite party no.2. He deposited an amount of Rs.2,00,000/- on 12.6.2009 as FDR (Fix Deposit Receipt) for a term of two years and Rs.2,30,000/- on 18.5.2010 for a term of one year and the same matured on 11.6.2011 and 17.5.2011. He required money for his personal need, therefore,  he approached opposite party no.2 through opposite party no.3 for withdrawal of the amount of the said FDRs. When he requested the opposite party no.3 for withdrawal of the amount, the opposite party no.3 made excuse for not releasing the amount and also threatened with dire consequences, if he demanded the money from the opposite parties. Thereafter, on 21.11.2011 he approached the Incharge of Sub Post Office, village Salwan and narrated the incident to him, but to no avail. He made representations to higher authorities of the opposite parties and even to Ministry of State for Communications and Information Technology, Government of India, New Delhi, but despite that  amount of FDRs was not released to him. Opposite party no.3 was working for opposite party no.2 and as per the instructions/directions, rules and regulations of opposite party no.1. Such acts and conduct on the part of the opposite parties amounted to deficiency in service and unfair trade practice, which caused him mental pain, agony and harassment apart from financial loss.

2.             Notice of the complaint was given to the opposite parties. Opposite parties no.1 and 2 filed joint written statement controverting the claim of the complainant on various grounds. Objections have been raised that the complainant has no locus standi to file the complaint; that the complainant has not approached this forum with clean hands; that this forum has got no jurisdiction to entertain and adjudicate the complaint and that the complaint is an abuse of process of law.

                On merits, it has been submitted that the complainant opened  Savings Bank Account no.724080 on 26.5.2008 and deposited  an amount of Rs.1000/-.He had withdrawn an amount of Rs.950/- on 19.6.2008. After withdrawal of Rs.950/- , a sum of Rs.50/- remained balance in the said account. Pay in slip dated 26.5.2008 for Rs.1000/- was submitted by depositor at the time of opening of account and withdrawal form dated 19.6.2008 for Rs.950/-was duly signed by the complainant. The complainant had also opened a saving bank account no.723178 on 18.5.2005 with an amount of Rs.1000/-. Pay-in-slip regarding the same was also submitted by the complainant. As part of procedure of post offices, the pass book prepared by Post Office is given to the depositor and receipt on the reverse of SB26 is given by the depositor. The complainant handed over the Savings Bank receipts of SB-26 no.9 dated 27.5.2008 and no.32 dated 19.5.2005 after putting his signatures, which clearly shows that the complainant had received the pass book of account no.724080 for Rs.1000/- on 27.5.2008 and passbook pertaining to account no.723178 for Rs.1000/- on 19.5.2005.   Moreover, there was no scheme of FDR in the post office savings bank scheme and as such the claim of the complainant is bogus and based upon presumption, conjecture and surmises. A case bearing First Information Report no.38 dated 18.1.2012 was registered against opposite party no.3 in Police Station Assandh, on the complaint of Sada Nand son of Shri Ram Dutt of village Karlan and the same is still under investigation. The complaint of the complainant was received in the office of the opposite parties and the matter was investigated departmentally. The claim of the complainant was found bogus, therefore, the same was rejected in view of the grounds mentioned in the para no.4 of the written statement. It has been denied that the complainant deposited in FDR an amount of Rs.2,00,000/- on 12.06.2009 for a term of two years and amount of Rs.2,30,000/- on 18.5.2010 for a term of one year as alleged. The other allegations made in the complaint have also been denied.

3.             Opposite party no.3 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complainant has no locus standi; that the complainant has not approached this form with clean hands; that the complaint is not maintainable under the provisions of Consumer Protection Act; that this forum has no jurisdiction to entertain and decide the complaint and that the complaint is an abuse of process of law.

                On merits, it has been averred that the complainant opened accounts no.723178 and 724080 by depositing an amount of Rs.1000/-each. After depositing the said amounts, the opposite party no.3 issued pay-in-slips to the complainant for the amount of Rs.1000/-each account, which were duly signed by the complainant/depositor. An amount of Rs.950/- from the account no.724080 was withdrawn by the complainant. There was no scheme of FDR in the Post Office. The complainant manipulated the entries of the copy of the Post Office given to him. There was no verification and signature by the opposite party no.3 or other competent authority in the said copy of the post office, which was with the complainant. The complainant misrepresented the record in the post office and the local police involved opposite party no.3 in false and frivolous cases. The claim of the complainant was found bogus by the competent authority and the same was rejected. In fact, the complainant altered the initial amount deposited by adding one or more zeros in the pass book of post office, which was in his custody and such entry was not verified or signed by the opposite party no.3 or other competent authority. The complainant even could not produce the pay-in-slip regarding alleged amount deposited by him. Therefore, complainant is not entitled to any relief. The other allegations made in the complaint have not been admitted.

4.             In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C31 have been tendered.

5.             On the other hand, in evidence of the opposite parties, affidavit of Shiv Kumar Ex.OP3/A and documents Ex.R1 to Ex.14 have been tendered.

6.             It is pertinent to mention here that the present complaint was dismissed by this Forum, vide order dated 25.4.2017 on the ground that complicated questions of law and facts were involved in the matter in controversy, which cannot be adjudicated by this Forum under summary jurisdiction.

7.             The complainant had preferred the appeal before the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula against the order dt. 25.04.2017 passed by this Forum. The Hon’ble State Commission had set aside the order dt. 25.04.2017 passed by this Forum and remitted the complaint to this Forum to decide the case on merits.

8.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

9.             The complainant has alleged that he had deposited as FDR Rs.2,00,000/- on 12.6.2009 for a term of two years and Rs.2,30,000/- on 18.5.2010 for a term of one year, in his accounts nos.723178 and 724080 with opposite party no.2 and the said FDRs matured on 11.6.2011 and 17.5.2011 respectively,   but when he wanted to withdraw the said amount after maturity, he was threatened by opposite party no.3 and his amount was not released by opposite parties no.1 and 2 despite various representations. On the other hand, the opposite parties have denied the factum of the depositing of Rs.2,00,000/- and Rs.2,30,000/- by the complainant in FDRs on 12.6.2009 and 18.5.2010, as alleged. It has been submitted that the complainant deposited only an amount of Rs.1000/- in the account no.724080 and out of the said amount he had withdrawn Rs.950/- and he opened other account bearing no.723178 on 18.5.2005 by depositing an amount of Rs.1000/-.

 10.           Learned counsel for the complainant contended that the opposite party no.3 had made entry in the pass book of the complainant, the copy of which is Ex.C2 regarding depositing an amount of Rs.1,00,000/-.  Postmaster also issued the receipts regarding depositor’s passbooks, the copies of which are Ex.C3 and Ex.C4 in respect of both the accounts. After the said entry in the pass book the complainant did not suspect the bonafide of opposite party no3, but the opposite party no.3 did not deposit the said amounts in his account in the main post office and misappropriated the same. It has further contended that opposite party no.3 had misappropriated the amounts of other persons also of village Kurlan and made false entries in their pass books, without depositing their amounts in the main post office. First Information Report dated 18.1.2012 was registered against opposite party no.3 in Police Station Assandh on the basis of the complaint made by Sadanand son of Ram Dutt. Another First Information Report no.485 dated 12.10.2012  was also got registered against opposite party no.3 in Police Station Assandh by Ramphal son of Ram Chander. Senior Superintendent of Post Office also wrote letter to Station House Officer Police Station, Assandh regarding mis-appropriation of public money relating to the accounts of Ms. Nirmla Devi, Karma and Vridhi, by opposite party no.3 and First Information Report no.192 dated 27.5.2012 was registered against opposite party no.3 in Police Station Assandh on the basis of the said letter. Even the Senior Superintendent of Post Office Karnal wrote letter dated 23.3.2012 to Deputy Commissioner, Karnal, for recovery an amount of Rs.48,20,363.60 from opposite party no.3 under section 4 of the Public Account Act of 1850. It has been further canvassed that the facts and circumstances and the evidence are sufficient to prove that opposite party no.3 received the amount of Rs.2,00,000/-and Rs.2,30,000/-from the complainant for depositing the same as FDRs, and made entries in his pass book, but committed fraud by not depositing the same in the post office.  It has lastly been argued that opposite party no.3 was employee of the Postal Department, therefore, the post office is accountable for his mis-conduct and the complainant is entitled to recover the amount from the post office. In support of his contention, he placed reliance upon Branch Manager, Central Bank of India Versus Bagwan Vishnoo Mahadeshwar 1(2004) CPJ 193, National Insurance Co. Ltd. Vs. Risheendran Nambiar and others in Revision Petition no.2153 of 2010, decided on 14.03.2018 and Post Office & Anr. Vs. Akhilesh Grover in Revision Petition no.1278 of 2016, decided on 06.10.2017.

11.            To wriggle out the aforesaid contentions, learned counsel for the opposite parties no.1 and 2 vehemently argued that the complainant deposited only an amount of Rs.1000/- in his account no.724080 and Rs.1000/- in account no.723178  and the pass books prepared by the post office were given to him and he gave receipts, the copies of which are Ex.R1, Ex.R6, Ex.8, Ex.R11 and Ex.R12 after putting his signature, which are sufficient to show that he had received pass book of his account no.724080 and 723178 regarding deposit of Rs.1000/- on 27.5.2008 and 19.5.2008. The complainant had withdrawn an amount of Rs.950/- on 19.6.2008 from the account no.724080, the copy of withdrawal form Ex.R5 was signed by him. After withdrawal an amount of Rs.950/- , Rs. 50/- was left as balance in his account as shown in the copy of the ledger Ex.R14. It has further been argued that First Information Report lodged against opposite party no.3 by some other depositors and one First Information Report lodged by Postal Department regarding accounts of some other persons, do not establish in any manner that the complainant had deposited Rs.2,00,000/-  for a term of two years and Rs.2,30,000/- for term of one year in Fixed Deposit as alleged. It has further been canvassed that the Postal Department in the letter dated 23.3.2012 to the Deputy Commissioner, Karnal did not accept that the complainant had deposited an amount of Rs.2,00,000/- for a term of two years and Rs.2,30,000/- for term of one year in Fixed Deposit and that the amount was mis-appropriated by the opposite party no.3.  It was made clear in the said letter that the departmental enquiry was under way and no recovery could be made till date. Departmental Enquiry was conducted, but the complainant could not establish his claim, therefore, his claim was rejected.  It has lastly been argued that the complainant has failed to establish that he had deposited Rs.2,00,000/- in Fixed Deposit for term of two years on 12.6.2009 and Rs.2,30,000/- on 18.5.2010 for a term of one year.  Moreover, the allegation of the complainant that the opposite party no.3 made false entries and played fraud by mis-appropriating the amount deposited by him, cannot be decided by this Forum under summary jurisdiction because for establishing forgery and fraud elaborate evidence is required.

12.            The copy of the pass book of the complainant Ex.C2 regarding account no.724080 shows that five entries were made in the pass book. First entry dated 26/27.5.2008 was of Rs.1,00,000/-, next entry dated 27.05.2009 was of Rs.1,06,400/-, third entry dated 27.05.2009 was of Rs.1,10,000/-, fourth entry dated 28.5.2010 was of Rs.1,17,040/-and the last entry dated 28.05.2010 was of Rs.2,30,000/-. The copies of the receipts Ex.R1, Ex.R4, Ex.R6, Ex.R8, Ex.R11 and Ex.R12 were purportedly signed by the complainant. Withdrawal form the copy of which is Ex.R2, was also purportedly signed by the complainant at two places. During the course of arguments learned counsel for the complainant submitted that these documents were not signed by the complainant.  The opposite party no.3 has not admitted his signatures on Ex.C3 and Ex.C4. He has also not admitted the correctness of the entries made in the pass book of the complainant.

13.            In the instant matter, admittedly, there was no irregularity at the time of opening of the account of the complainant. As per version of the complainant, he deposited Rs.2,00,000/- in Fixed Deposit for term of two years on 12.6.2009 and Rs.2,30,000/- on 18.5.2010 for a term of one year. The said amount was handed over to the OP no.3. When the complainant went to the OPs for withdrawal of the amount of the said FDR, he was got shocked by knowing that OP no.3 did not deposit the said amount in the account of the complainant.

14.            The version of the OPs no.1 & 2 is that complainant opened  Savings Bank Account no.724080 on 26.5.2008 and deposited  an amount of Rs.1000/-.He had withdrawn an amount of Rs.950/- on 19.6.2008. After withdrawal of Rs.950/- , a sum of Rs.50/- remained balance in the said account. Pay in slip dated 26.5.2008 for Rs.1000/- was submitted by depositor at the time of opening of account and withdrawal form dated 19.6.2008 for Rs.950/-was duly signed by the complainant. The complainant had also opened a saving bank account no.723178 on 18.5.2005 with an amount of Rs.1000/-. Pay-in-slip regarding the same was also submitted by the complainant. There was no scheme of FDR in the Post Office Saving bank scheme and as such claim of the complainant is bogus and based upon presumption, conjecture and surmises. It has been denied that the complainant deposited the alleged amount in FDR.

15.            The version of the OP no.3 is that the complainant himself manipulated the entries in the copy of the post office given to him. There was no verification and signature by the OP no.3 or other competent authority in the said copy of the post office, which was with the complainant. The complainant misrepresented the record in the post office and local police involved the OP no.3 in the false and frivolous cases. Infact, the complainant altered the initial amount deposited by adding one or more zeros in the passbook of the post office which was in his custody.

16.            The following questions arises for consideration:-

1.Whether the complainant had handed over the amount as alleged by him in the complaint to the OP no.3 or not?

2. Whether the entries in the passbook of the complainant was made by the OP no.3 or not?

3. Whether the department i.e. OPs no.1 and 2 are liable for the wrong acts of its employees i.e. OP no.3?

17.            The complainant and other eleven depositors have filed the complaints on the similar allegations against the OPs. It is not disputed that OP no.3 was not an employee of OPs no.1 and 2. He was working as Gramin Dak Sewak Branch Post Master in the Department of Post Kurlan Branch post office having accounts office with Salwan Sub Post Office in Karnal District. The villagers made complaints against Shiv Kumar (OP no.3) for mis-appropriating their money for not depositing in their accounts. The enquiry was conducted and it was found that there is mis-appropriation of Public money of Rs.48,20,362.60 (rupees forty eight lakhs twenty thousand three hundred sixty three only) by Shiv Kumar (OP no.3), which were tendered to him by the saving bank depositors for depositing in their respective accounts standing opened in the Kurlan Branch Post Office. OP no.3 i.e. Shiv Kumar while working as Gram Dak Sewak Branch Post Master Kurlan accepted money from depositors and made entries of deposit in passbook and put his signature against all entries with impression of date, seal of post office but did not deposit in the account of depositors.  It is also admitted that OP no.3 was posted in the said branch at the time of alleged incident. OP no.1 has written a letter (Ex.C9 dated 23.03.2012) to Deputy Commissioner, Karnal for initiating recovery proceedings against the OP no.3 under section 4 of the Public Account Act of 1850. It has been proved from the Ex.C9 that complainant and other depositors have handed over their amount to the OP no.3.  On the alleged incidents three FIRs were lodged against the OP no.3. The First FIR no.38 dated 18.01.2012 (Ex.C8) was got lodged by one Sadanand, second FIR no.192 dated 27.05.2015 was got lodged by the department of OP no.3 against the OP no.3 and third FIR no.485 of 2012 (Ex.C5) was got lodged by one Rampal.

18.            During the course of investigation of the abovesaid FIRs, investigating agency arrested the OP no.3, produced before the learned Illaqa Magistrate and moved an application for obtaining the specimen signature/handwriting of the OP no.3 for comparison but OP no.3 refused to give his signature and handwriting. This fact was not denied by OP no.3 (Shiv Kumar) by which inference can be drawn against him makes it ample clear that OP no.3 had made entries in the passbook without depositing the amount in the account of depositors.

19.            All the above mentioned criminal cases were contested by Shiv Kumar i.e. OP no.3 and finally, the Court of Shri Sohan Lal Malik, Ld. JMIC Assandh, Karnal has held guilty to OP no.3 u/s 409, 420, 467, 468, 471/120B IPC and sentenced accordingly. This fact is not denied by the OP no.3 but counsel for the OP no.3 argued that OP no.3 has challenged the conviction order passed by the Court of Shri Sohan Lal Malik, ld. JMIC Assandh and appeals are pending before the ld. Additional District & Sessions Judge, Karnal for adjudication. From the above circumstances, it is proved that the complainant had handed over the alleged amount to the OP no.3 and OP no.3 did not deposit the same in complainant’s account.

20.            The last question of the consideration is that whether the concerned department is liable for the wrong acts of its employees. In Branch Manager, Central Bank of India’s case (supra) wherein deposits were regularly paid to the Agent, under Mini Deposit Scheme. Entries were made in the pass book evidencing payment. Agent Committed fraud and did not deposit the amount in bank. Under those circumstances, it was held by Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai that the bank was accountable for the misconduct of the Agent. In Risheendran Nambiar’s case (supra) the insurer shall be responsible for all the acts and omissions of its agents including violation of code of conduct specified under clause (h) of sub section (3) and liable to a penalty which  may extend to one crore rupees.  In Akhilesh Grover’s case (supra) not delivering the speed post article to its addressee clearly constituted a willful act of deficiency in service of their part. The abovesaid judgments are fully applicable to the facts of the present case. Thus, we are of the considered view that Post Office Department is liable for the wrong acts of the OP no.3. Thus, act of the OPS are amounts to deficiency in service.

21.            As stated above that OP no.3 was the employee of OP no.1, hence the OP no.1 is vicariously liable for wrongs/faults of the OP no.3.

22.            It is open to the OPs no.1 and 2 to recover the awarded amount from the concerned defaulting employee i.e. OP no.3.

23.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.2,00,000+ Rs.2,30,000=4,30,000/- (Rs. four lakhs thirty thousand only) with interest @ as prescribed in the FDRs from its deposition till its realization. We further direct the OPs to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expense. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:10.06.2019               

                                                       

                                                                   President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

                        (Vineet Kaushik)         

                         Member