Tamil Nadu

North Chennai

CC/73/2016

A.Gopal - Complainant(s)

Versus

Indian Overseas Bank Head Office - Opp.Party(s)

K.Sudha

26 Aug 2016

ORDER

                                                            Complaint presented on:  12.05.2016

                                                                Order pronounced on:  26.08.2016

 

        DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI NORTH)

      2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

   PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,    PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 26^th    DAY OF AUGUST 2016

 

C.C.NO.73/2016

 

 

Mr.A.Gopal,

87//28, Gangaiamman Koil Street,

Lakshmipuram, Thiruvanmiyur,

Chennai – 600 041.

 

                                                                                    ..... Complainant

 

..Vs..

1. The Chief Manager,

Indian Overseas Bank,

     Royapuram, Chennai – 13.

 

2. The General Manager,

Indian Overseas Bank Head Office,

Mount Road, Chennai – 2.

	.....Opposite Parties

Date of complaint                                 : 18.05.2016

Counsel for Complainant                      : K.Sudha

Counsel for opposite party                      : M/s. A.Sermaraj

 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is an employee of the Port Trust and retired from service and his pension is approximately Rs.19,500/- is credited every month into the savings account bearing No.10897 maintained with the 1^st Opposite Party. On 05.12.2015 the 1^st Opposite Party adjusted a sum of Rs.10,000/-, a sum of Rs.20,000/- on 31.01.2016 and on 31.03.2016 and on 02.05.2016 a sum of Rs.19,500/- each towards the pledge which was created with the Opposite Party. It is not in dispute that, the Complainant to meet his urgent domestic requirement did pledge 50 gram of gold ornaments on 25.03.2013 with the 1^st Opposite Party, in lieu of which he received a sum of Rs.80,000/- vide receipt No.12130034 in order to meet his urgent domestic requirements. The Opposite Party had not given any notice in writing in respect of the amounts due under the pledge dated 25.03.2013, unilaterally without his express consent and against at cannons of justice and fair play, the 1^st Opposite Party have adjusted the entire pension amount payable to him, thereby dislocating the Complainant’s day to day activities for sustenance and survival. The Complainant is advised to state that under section 11 of the Pensions Act, the pension payable to a person cannot be attached, as the same has been promulgated with a social cause to ensure that persons who live on the pension amount for survival are not deprived on the legitimate amount since such persons are dependent on the pension for their survival. Other than the pension amount which is credited to his account in the 1^st Opposite Party’s Bank, he does not have any other source of income and they endure only on the pension income derived by him.  The Complainant pleased with the Bank manager when he met in December 2015 and requested him not to attach the pensions as the Complainant has no other source of income for his sustenance and survival. The Complainant states that his wife developed serious complication on account of lack of medical allotment and eventually, the Doctors at the Cauvery Hospital at Alwarpet, conducted Angiogram on the complainant’s wife on 23.01.2016 and diagnosed multiple blocks in the heart and advised immediate surgery. The Complainant’s wife underwent operation at Apollo Hospital on 25.01.2016 and subsequently discharged. The post operation expenses are mounting and the Opposite Party is attaching the pension illegally without any authority. The Opposite Parties had created unbearable mental agony apart from the physical strain caused to the Complainant from running pillar to post for no fault on his part.

          The Complainant therefore prays that this Hon’ble Forum may be pleased to direct the Opposite Parties to pay  jointly & severally.

1. Pay a sum of Rs.73,992.70 with interest @ 9% p.a from December 2015
2. Pay a sum of Rs.4,00,000/- towards mental agony and physical stain caused to the Complainant:
3. Pay costs of the proceedings and pass such further or other order/s as this Hon’ble Forum may deem fit and necessary and thus render justice.

2. WRITTEN VERSION OF THE  OPPOSITE PARTIES IN BRIEF:

          The Complainant has a savings bank account with the 1^st Opposite Party and his account number is 10897. The Complainant on 25.03.2013 pledged his 50 grams weighing gold jewels with the 1^st Opposite Party branch and borrowed a loan for Rs.80,000/- for his family expenses. After pledging the jewels, the Complainant did not remit the interest or redeem the jewels with in a period of one year as per terms of loan agreement.  The Complainant visited the branch, the officials of the 1^st Opposite Party demanded him to repay the loan amount and redeem the jewel. The Opposite Party did not take any proceedings against the pledged jewels as per the request of the Complainant. As per the instruction of the Complainant a sum of Rs.10,000/- was debited from the Complainant’s saving bank account on 05.12.2015 and the same were given credit in his jewel loan account. The Complainant did not repay any amount in his jewel loan account. Therefore, the Opposite Party by exercising their statutory lien recovered the amount lying in the saving bank account of the Complainant. The Opposite Party being the banker has legal right to exercise their lien for recovering the due amount. As such, the Opposite Party has recovered the amount from the saving bank account of the Complainant. Even though the amount is lying in the saving bank account of the Complainant was credited from his erstwhile employer as pension, once the amount credited in the account of the Complainant it cannot be treated as pension. On the other hand, moment the amount leaves the government, it loses character of pension amount and it will become the employee’s property. Therefore, the amount lying in the saving bank account of the Complainant is the property of the Complainant and cannot be treated as pension amount. Hence, the Opposite Parties have right to recover this amount. Therefore, attachment of pension does not arise in the above case. It is therefore, the Opposite Party humbly pray that this Hon’ble forum may be pleased to dismiss the above Complaint with cost.

3. POINTS FOR CONSIDERATION:

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

        Parties?

  2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT NO :1

          It is an admitted fact that the Complainant is a Port Trust Employee and retired from service and  he was having a Saving Bank Account No.10892 with the 1^st Opposite Party and in the said account the Complainant pension amount of Rs.19,500/- was credited in his account and the Complainant pledged his jewels with the 1^st Opposite Party under Ex.A1 receipt and obtained a loan of Rs.80,000/- on 25.05.2013 and agreeing to repay the loan amount with interest. 

          5. The Complainant contended that on 05.12.2015 the 1^st Opposite Party deducted a sum of Rs.10,000/-, on 31.01.2016 a sum of Rs.20,000/- and on 31.03.2016 & 02.05.2016 a sum of Rs.19,500/- was deducted by the 1^st Opposite Party towards loan account of the Complainant from his pension amount, the bank has no right to  attach pension amount and therefore by attaching the above said amount by the Opposite Parties proves that they have committed Deficiency in Service.

          6. The Opposite Parties replied that they have lien to deduct the amount from the savings account and the Complainant not paid single pie towards jewel loan and therefore the Opposite Parties have rightly exercised their right in deducting the amount from the savings account in respect of jewel loan.

          7. Ex.B1 is the jewel loan application entered by the Complainant with the 1^st Opposite Party. Normally the bank has to proceed with the jewel, in case if the jewel loan was not repaid by the customer. As per the 3^rd condition printed in the Ex.A1 loan application, the loan with interest not repaid within 6/12 months the bank is entitled to sell the whole or part jewels in order to realize the dues. However the bank has not resorted to sell the jewels instead attached the amount. The bank contended that the Complainant requested them not to bring auction on the jewels and therefore to oblige they did not do it. The Complainant denies this statement. No proof filed by the Opposite Parties that the Complainant requested the bank not to sell the jewels in auction and therefore we reject the contention of the Opposite Parties in this regard and hold that the Opposite Parties have not adhered the conditions printed in the loan application.

          The only point that arises for the consideration in this case is that whether the bank has lien to deduct the pension amount towards the Jewel loan borrowed by the Complainant.

          8. Ex.A2 is the statement of account of the Complainant maintained by the 1^st Opposite Party. The statement proves that as alleged by the Complainant the 1^st Opposite Party deducted the amount from his pension account (SB Account). The Opposite Party relied on order of the SCDRC, Maharastra rendered in FA No.1168/2004 dated 17.08.2009 (State Bank of India Vs. Smt.Vimal Narayan Lohane) and another order of Madras High Court reported in 1999 (2) MLJ 572 (P.Dhanapal Vs.P.Nagaiah)  and per those orders the bank has lien to deduct the pension amount from the Saving Bank Account.

          9. The State Consumer Disputes Redressal Commission(SCDRC) Maharastra held  in its order that the bank has rightly exercised its right of lien to appropriate its dues from the Savings Bank Account of the respondent and the bank was legally justified in doing so and there was no deficiencies in service on the part of the bank. However the said order did not deal with the pension. Whereas in the case in hand deals pension. Therefore the order of the State Consumer Disputes Redressal Commission (SCDRC), Maharastra relied on by the Opposite Parties is not applicable to the facts of the case.

          10. In 1999 (2) MLJ 572 the Hon’ble Madras High Court  held that the moment the dues leave the Government, they lose the character of Provident Fund dues, pension of other compulsory deposits  as the case may be and they became part of the assets of the judgment debtor. The Hon’ble High Court, Madras relied on the judgment of Supreme Court in its above referred judgment reported in AIR 1976 SC 1163.  The Supreme Court held in the said judgment as follows:

  We may state without fear of contradiction, that provident fund amounts, pensions and other compulsory deposits covered by the provisions we have referred to retain their character until they reach the hands of the employee. The reality of the protection is refunded to illusory formality if we accept the interpretation sought. We take a contrary view, which means that attachment is possible and lawful only after such amounts are received by the employee.

The Supreme Court held in the above judgment that such amounts received by the employee attachment can be made.  Therefore pension received by the employee attachment is possible as stated above.

          11. Per contra the Complainant counsel referred a judgment of the Hon’ble Madras High Court held in W.P. (MD) No.17838 of 2015 and M.P.(MD). No.1 of 2015 dated 27.11.2015 held in para 7 as follows;

          7. Therefore, if there is any outstanding due payable by the petitioner, it is for the respondents bank to work out their remedy to recover the said amount, in the manner known to and permissible by law, before the appropriate forum. Without doing so, resorting to attach time pension amount by way of passing the impugned order is impermissible.

The Hon’ble High Court in the above order referring a judgment of the Supreme Court reported in (2009) 1 SCC 376. The Hon’ble Supreme Court held the above referred judgment that as per section 60(1) (g) the pension and gratuity, which had been converted into fixed deposits, could not be attached. Further Supreme Court also in the above referred judgment watered down the decision of the Supreme Court  in  Jothi Chit Fund Case (AIR 1976 SC 1163) referred by the Opposite Parties. Therefore as per the decision of the Supreme Court reported in (2009) 1 SCC 376 and the Madras High Court Judgment referred by the Complainant categorically held that the pension amount in the bank account cannot be attached and hence we hold that the Opposite Parties attached the pension amount in the Complainant SB Account maintained by the 1^st Opposite Party towards the jewels loan establishes that the Opposite Parties have committed Deficiency in Service.

12. POINT NO :2

          As the Opposite Parties committed Deficiency in Service by deducting the pension amount of the Complainant to the tune of Rs.73,992/- from his savings account is entitled to get refund from the Opposite Parties. Due to such a deduction the Complainant suffered with mental agony is also accepted and for the same it would be appropriate to order a sum of Rs.10,000/- towards compensation on this head, besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Parties 1 & 2 jointly or severally are ordered to refund a sum of Rs.73,992/- (Rupees seventy three thousand nine hundred and ninety two only) to the Complainant and also  to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.     

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 26^th  day of August 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 25.05.2013                   Receipt issued by the 1^st Opposite Party

                                                    towards  jewels pledged by the Complainant

Ex.A2 dated 05.12.2015                   Statement reflecting debit of Rs.10,000/-

                                                from the Complainant’s account

Ex.A3 dated 26.02.2016                   Legal Notice issued to the Opposite Parties

Ex.A4 dated 26.02.2016                   Postal Receipts

Ex.A5 dated NIL                     Statement of Account for the period

                                                February 2016-May 2016

Ex.A6 dated 23.01.2016                   Bill issued by Kauvery Hospital towards

                                                Anjiogram for Rs.5,54,083/-

Ex.A7 dated 20.06.2016                   Auction Letter issued by the Opposite

                                                Parties

Ex.A8 dated 28.06.2016                   Receipt issued by the Opposite Party bank

Ex.A9 dated NIL                     Loan statement issued by the Opposite Party

Ex.A10 dated 16.01.16           Statement if Account of the Complainant

                 To 29.06.16

 

LIST OF DOCUMENTS FILED BY THE  OPPOSITE PARTIES :

Ex.B1 dated 25.03.2013                   Loan Application-cum-loan documents                                               

                                                    pertaining   to the Jewel loan sanctioned to

                                                the Complainant

Ex.B2 dated NIL                     Statement of account pertaining to the Jewel

                                                loan account of the Complainant

Ex.B3 dated NIL                     Statement of account pertaining to the

                                                saving bank account of the Complainant

 

 

MEMBER – II                                                               PRESIDENT