BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 60/2012 Filed on 18.02.2012
ORDER DATED: 28.04.2017
Complainant:
Suma. G, T.C 15/1513, Kunnumpurathu Veedu, M.P. Appan Road, Thiruvananthapuram-695 036.
(By Adv. V.K. Hari Kumar)
Opposite parties:
- Indian Overseas Bank, represented by its Chairman and Managing Director, Central Office, P.B. No. 3768, 763, Anna Salai, Chennai-600 002.
- The Branch Manager, Indian Overseas Bank, Power House Road Branch, Thiruvananthapuram.
(By Adv. B. Madhukumar)
This case having been heard on 27.02.2017, the Forum on 28.04.2017 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
Complainant’s case is that complainant is a family pensioner of her husband. She has been maintaining a SB Account with 2nd opposite party, who is directly under the control and supervision of 1st opposite party vide Account No. 9550. As on 16.06.2011 her account had a balance of Rs. 50,023. On 17.06.2011 a stranger had withdrawn an amount of Rs. 28,000/- vide cheque No. 18523 as “Jayapalan bricks”. Again on the same day the cheque was cancelled and an amount of Rs. 28,000/- remitted back in her account. Again on the same day through the same cheque Rs. 28,000/- was withdrawn. On 05.07.2011 an amount of Rs. 586/- was deposited from her pension. On 14.07.2011, when the complainant’s son Rahul went to the bank with the pass book to check the balance and register the same in the passbook he came to know that, someone has withdrawn the amount by forging documents. When Rahul enquired about, 2nd opposite party had no sufficient explanation. The complainant never issued the cheque bearing No. 18423. She never provided with cheque bearing such serial numbers. 2nd opposite party branch in collusion with a stranger has fabricated and forged document and withdrawn the amount. When Rahul pointed out the same on 14.07.2011 2nd opposite party credited the amount with the complainant’s account. 2nd opposite party is under the direct control and supervision of 1st opposite party and opposite parties 1 & 2 are duty bound to protect and safeguard the interests of the complainant, take care of her account with due diligence and as a trustee of her account both the opposite parties are legally bound to operate her account without any fault or defect. 2nd opposite party showed deficiency of service, unfair trade practices, dereliction of duties thereby complainant suffered mental and physical pain and financial losses. Only with the purpose of safety and security of assets people approach the banking institutions and the complainant is of no exception to that. With the above said incident the complainant suffered a lot of mental pain which cannot be compensated in monetary terms. Hence complainant approached this Forum for compensation.
Notice sent to opposite parties. Opposite parties appeared and filed version. From the version opposite parties’ contention is that admittedly the complainant is having a savings bank account with No. 9550 in the 2nd opposite party bank. It is also true that on 16.06.2011 there was a balance of Rs. 50,023/- in the said account. On 17.06.2011 a cheque bearing No. 018423 for an amount of Rs. 28,000/- favouring Jayapalan Bricks was presented for payment over the counter and the same was honoured by mistakenly debiting to the SB Account No. 9550 instead of the SB Account No. 9559 belonged to one Mrs. Suma Sankar which had sufficient balance to honour the cheque. Subsequently, on intimation of the wrong debit by the complainant’s son on 14.07.2011, the bank had verified the relevant transaction and detected the wrong debit and rectified immediately by crediting Rs. 28,000/- to the SB Account No. 9550 and the same was explained in detail to him. Moreover the interest due for the sum of Rs. 28,000/- for the period from 17.06.2011 to 14.07.2011 was also credited to the complainant’s account. The wrong credit had occurred on support and connivance of 2nd opposite party and as a result of collusion between the 2nd opposite party and a stranger by making forged documents are absolutely false and are made only for the sake of this complaint as it is happened due to a clerical mistake. From the statement of the complainant to the effect that the amount was reversed to the complainant’s account on 14.07.2011, it can be inferred that there is no malafide intention on the part of the opposite parties. The wrong debit was rectified soon after the clerical mistake was notified and after verifying the relevant transaction by the 2nd opposite party. The interest for the mentioned period was debited to the account without making any monetary loss or physical or mental pain to the complainant. Therefore there is no deficiency in service or unfair trade practice or dereliction of duties on the part of the opposite parties as contended by the complainant.
Issues:
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the reliefs sought for?
- What is the order as to cost?
Issues (i) to (iii):- Complainant filed chief examination affidavit and examined as PW1 and Exts. P1 to P5 marked. PW1 cross examined by the opposite parties. Opposite parties filed chief examination affidavit and examined as DW1. Exts. D1 to D6 marked. Perused the evidence and documents. It is seen that the cheque bearing No. 018423 issued in favour of Jayapalan Bricks is that of one Mrs. Suma Sanker who is the wife of one of the Managers of the opposite party bank. From Ext. P1 pass book it can be seen that the cheque No. 18423 issued by Mrs. Suma Sanker in favour of Jayapalan Bricks, was presented and encashed on 17.06.2011 from the account of the complainant and subsequently it was cancelled. Again on the same date through the said cheque Rs. 28,000/- was withdrawn from the account of the complainant. In the column of the said cheque, the amount written as 14,000/- was struck down and rewritten as 28,000/- which normally a prudent man cannot overlook the same and pass for payment without verifying its accuracy. The account number show at the top of the cheque is seen corrected as 9550 instead of 9559. The opposite parties in their version have admitted that on 17.06.2011 a cheque bearing No. 018423 for an amount of Rs. 28,000/- favouring Jayapalan Bricks was honoured by mistakenly debiting to the SB A/c No. 9550 instead of the SB A/c No. 9559 belonged to one Mrs. Suma Sankar. Mrs. Suma Sankar is residing in IOB Bank quarters and her husband is the Bank Manager of opposite parties. During the cross examination, DW1 deposed as follows: Rangarajn-ല് നിന്നാണ് ഞാന് charge എടുത്തത് . Pattoor-ല് bank quarters-ല് ആണ് താമസം. Suma Sanker താമസിക്കുന്നതും bank quarters-ല് ആണ് as per bank records. അപ്പോള് സുമാ ശങ്കറിന്റെ ഭര്ത്താവ് bank employee ആയിരിക്കില്ലേ (Q) എനിക്ക് ആളിനെ അറിയില്ല bank employee ആണ് (A) സുമാ ശങ്കറിന്റെ ചെക്ക് ഉപയോഗിച്ചല്ലേ പരാതിക്കാരിയുടെ അക്കൌണ്ടില് നിന്നും 28,000/- അനധികൃതമായി debit ചെയ്തത് (Q) അതെ (A). It is pertinent to note that on a single day three transactions took place with a cheque by sanctioning then cancelling and again sanctioning. In her cross examination DW1 deposed as follows: Ext. D3 പ്രകാരം 17.06.2011-ല് അല്ലെ Rs. 28,000/- debit ചെയ്തത് (Q) അതെ (A). അന്നേ ദിവസം തന്നെ ആ Rs. 28,000/- cancel ചെയ്ത് account-ല് refund ചെയ്തിട്ടുണ്ട് (A). വീണ്ടും അതേ ചെക്ക് വച്ച് തന്നല്ലേ Rs. 28,000/- മാറിയത് (Q) അതെ (A) മൂന്നു പ്രാവശ്യം ചെക്ക് മുമ്പില് വന്നപ്പോള് അക്കൌണ്ട് മാറി എന്ന് മനസിലാക്കിയില്ലേ (Q) അതിനെ കുറിച്ച് എനിക്കറിയില്ല (A) പരാതിക്കാരി പറഞ്ഞില്ലെങ്കില് ഈ തുക നഷ്ടപ്പെടുമായിരുന്നു എന്ന് പറയുന്നു (Q) ശരിയാണ് (A) From the above it is very much clear that the incident of unauthorized withdrawal happened with the understanding and support from and connivance of the officials of the 2nd opposite party branch. Had the withdrawal was not detected and complaint made in time, the entire amount of Rs. 28,000/- would have loss to the complainant forever. The allegation of mistake raised by the opposite parties is wholly wrong for the reason that there is no manual operation and the entire transaction are done through online facility. On feeding the account number of a particular customer all details including the statement of accounts of that particular customer alone will be displayed in the monitor. Hence the allegation of mistake is a cover up. The argument put forward by the opposite party is that in the complaint it is pleaded “2nd opposite party branch in collusion with a stranger has fabricated and forged documents and withdrawn the amount”. So it is clear that the allegation of the complainant is the 2nd opposite party has colluded with a stranger and by using the forged and fabricated documents withdraws money by intentionally debiting the amount in the complainant’s account. Nowhere in the complaint negligence of opposite party is pleaded. Hence if the act is intentional it does not constitute negligence. As stated above the allegation of the complainant constitute intentional act so it is not negligence. So the question to be considered is whether the complainant has proved the intentional act of the opposite party? While cross examination, the opposite party put a specific question to PW1, the de-factor complainant “കൃത്രിമ രേഖയുണ്ടാക്കി പിന്വലിച്ചതിന് police-ല് പരാതിപ്പെട്ടിരുന്നോ (Q) Police-ല് പറഞ്ഞിട്ടില്ല (A)”. Further there is no need for the opposite party to make wrong debit intentionally in the account of the complainant since the account in which the cheque was drawn had sufficiency balance to honour the same and it was maintained in the said account for further period which is evident from account statement of A/c No. 9559. Hence there was no intention for the 2nd opposite party to debit the cheque in the account of the complainant. If the complainant’s case is that of the collusion of the 2nd opposite party with a stranger, then she shouldhave made that stranger as a party to the complaint since she is having knowledge of the person in whose favour the cheque was issued as the knowledge is admitted by PW1 in the deposition and evident in the complaint. Hence the allegation of intentional wrong debit is absolutely false and is made for the sake of the complaint. On 17.06.2011 a cheque bearing No. 018423 for an amount of Rs. 28,000/- favouring M/s Japayalan Bricks was presented for collection over the counter and the same was honoured inadvertently by debiting the same in the account of complainant bearing A/c No. 9550 instead of debiting it in the account of Suma Sankar bearing A/c No. 9559. This was happened solely due to the mistake happened while entering the transaction in the system and it is clerical mistake and nothing as alleged by the complainant. At this juncture this Forum may also consider the coincidence of the names as well as account numbers to which the transaction is related. The Forum may take into account the fact that is quite common for the human being that even though enough care has been taken sometimes error may occur. The same thing is recognized by Indian statutes also. For instance Sec. 72 of the Indian Contract Act, 1872 provides that a person to whom money has been paid or anything delivered, by mistake must repay or return it.
We are of the opinion that opposite parties are duty bound to protect and safeguard the interest of the complainant as well as all the customers of the bank to take care of the account with due diligence and as a trustee of her account both the opposite parties are legally bound to operate her account without any fault or defect. Rather than providing proper service, 2nd opposite party showed deficiency of service, dereliction of duty and thereby complainant suffered mental agony. We are not taking any face value to the plea of mistake by opposite parties because opposite parties have understood the mistake only when the son of the complainant pointed out the same. These kinds of practice have to be cut in the grass root level. We are of the opinion that deficiency of service on the part of 2nd opposite party is proved beyond doubt and opposite parties are jointly and severally liable to pay Rs. 50,000/- as compensation for the mental agony suffered by the complainant and Rs. 5,000/- as cost of this proceedings.
In the result, complaint is allowed and opposite parties are jointly and severally liable to pay Rs. 50,000/- as compensation for the mental agony suffered by the complainant and Rs. 5,000/- as cost of this proceedings within one month from the date of receipt of this order failing which the compensation amount carries interest at the rate of 12% per annum from the date of default till realization.
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 28th day of April 2017.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 60/2012
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Suma
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of bank pass book
P2 - Copy of advocate notice dated 29.08.2011
P3 - Copy of postal receipts
P4 - Copy of acknowledgement cards
P5 - Copy of reply notice dated 17.10.2011
III OPPOSITE PARTY’S WITNESS:
DW1 - M.G. Komalakumari Amma
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of letter dated 28.07.2011 sent by complainant o 1st O.P
D2 - Copy of reply letter dated 17.08.2011 sent by 2nd O.P to complainant
D3 - Copy of statement from 01.01.2011 to 18.08.2011
D4 - Copy of statement from 01.01.2011 to 31.03.2012
D5 - Account opening form
D6 - Cheque dated 15.06.2011
Sd/-
PRESIDENT
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