This appeal is directed against the final order dated 20.06.2019 delivered by Ld. D.C.D.R.F., Uttar Dinajpur in CC No. 41 of 2018. The fact of the case in nutshell is that the Complainant/Respondent had a savings Bank Account at Raiganj Branch of Central Bank of India Bearing Account No. 1302638818. In the month of February, 2017, he came to the said Bank for opening a fixed deposit MIS and at that point of time one employee of said Bank Sri. Sourav Das well known to the Complainant came to him with an offer to help him and cooperation for investment in MIS scheme. Said Sourav Das took his signatures in the fixed deposit form and collected the passbook and other documents of the Complainant. On 17.02.2017. Sourav Das handed over him two MIS certificates amounting to Rs. 2,50,000/- each Vide Certificate Nos. 828973 and 828974 and at that time Sourav Das did not hand over him the other documents which was collected from him and represented him that the interest of the MIS would be automatically credited to his name in the savings Bank Account.

After two to three months, he came to the Bank for collection of his passbook lying in the custody of Sourav Das but he could not find Sourav Das thereon. Again on 17.05.2017 he came to the Branch and could not found Sourav Das thereon and he directly communicated to the Branch Manager. The Branch Manager asked him to produce the original fixed deposit certificates. The Complainant handed over him the original fixed deposit certificates and Bank Manager had received it by issuing a receipt. And Bank Manager assured him that he would inquire about the status of the fixed deposit certificates. Thereafter, he again visited the Branch in several occasions and collected the Bank Statement and found that Sourav Das had already taken away Rs. 50,000/- from savings account of the complainant and also found that Rs. 5 Lakh was not deposited to the Bank by Sourav Das. The Complainant/Appellant in several occasions approached the Bank to return back his 5 Lakh fixed deposit amount and Rs. 50,000/- which was withdrawn by Sourav Das from his savings account but the Bank Authority did not pay any heed. So, he registered the Consumer Complaint. The Consumer Complaint was contested by the Bank by filing W.V. and denied all the material allegations levelled against the Bank and contended inter-alia that the case was barred for misjoinder and non-joinder of necessary party and also stated that Sourav Das the Bank employee has practiced fraud as he had stolen away 100 of leaves of fixed deposit forms, demand draft etc from the vault of the Bank and misused it and Bank had no nexus with Sourav Das who was already suspended and criminal case was pending against him and Bank had no liability for the fraudulent act and mischief committed by Sourav Das against the Complainant/Respondent. The Ld. Forum has recorded the evidences of both sides and heard arguments and delivered the impugned order by which it was held that lack of supervision on the part of the Branch Manager and lackadaisical attitude of the Branch Manager has defrauded a bonafide customer and Bank authority could not be absolved from its vicarious liability and for that reason allowed the Consumer Complaint and asked the Bank to pay the compensations. Being aggrieved with the order, this appeal follows on the ground that the Branch Manager was not involved in any kind of fraudulent act and misconduct of Bank employee Sourav Das which was not fallen with his official authority and the maxim vicarious liability does not attract in the given case and the order and judgement of Ld. Forum was based on misconception fact and law and liable to be set aside.

The appeal was registered in due course and it was admitted on its own merit. The respondent Jagannath Das has contested the appeal through legal counsel. The argument of both sides was heard.

Decision with Reasons

 Admitted position is that Jagannath Das was a bonafide Consumer of Central Bank of India, Raiganj Branch as he maintains an account in the said Branch. It is also not disputed that two fixed deposit certificates were issued in favour of the Complainant/Respondent Jagannath Das by showing the signature of Branch Manager. Though, it was challenged by the Branch Manager and a criminal case is lying against signatory Sourav Das who happened to be the sub staff of Central Bank of India, Raiganj Branch. The documentary evidences clearly show that in the back pages of the fixed deposit certificates Jagannath Das has put his signature for closing the fixed deposit account in premature stage and the withdrawal slip also bears the signature of Sourav Das who has withdrawn the said money on behalf of Jagannath Das. Jagannath das the respondent raises allegation that Sourav Das being a Bank employee has assured him to offer any sort of help in dealing the savings account as well as the two fixed deposit schemes. And on the basis of such assurance respondent Jagannath Das put his trust upon the Bank employee Sourav Das who ultimately has withdrawn the fixed deposit amount from the Bank MIA fixed deposit account from the Bank in premature stage and defrauded the respondent Jagannath Das and the entire liability has shifted upon the Bank Authority whereas the Bank Authority has not gained any penny on the fraudulent act on the part of the Bank employee Sourav Das. The involvement of Sourav Das in the entire episode is well established and the Bank Authority in their W.V. clearly raises the point that the Consumer Complaint became ineffective due to nonjoinder a necessary party since Sourav Das. In this case the bunch of documents produced by the Bank Authority clearly indicates that Sourav Das has been suspended from his service and he is facing the Police Investigation for his act of criminality. And without impleading Sourav Das in this case no effective judgement could be delivered. Whereas, Ld. Forum has ignored this aspect which is completely unsustainable in the eye of law. Ld. Forum has based upon the decision over the point of vicarious liability. The principle of vicarious liability based on the principles that if any agent acting in the course of busines of the principles the principle would be liable for any act or omission on the part of the agent but this principle is not applicable when the misrepresentation or frauds committed by an agent in such matters which do not fall within his authority. Here in this case a sub staff like Sourav Das had no authority to collect fixed deposit amount from any customer or issue any fixed deposit certificate on behalf of the manager of the Branch. His act and conduct clearly deviates from his authority imposed upon him by the Bank. So, no impartial judgement could be delivered in absence of Sourav Das in such type of consumer disputes. So, it is imperative on the part of the Respondent/Complainant to implead Sourav Das in the instant Consumer dispute and the judgement and final order based upon this defective Consumer Complaint should not be sustained in the eye of law. However, the opportunity should be given to the complainant to implead Sourav das in this case and after hearing the case of Sourav Das Ld. Forum should deliver a verdict after hearing all sides by giving them opportunity to represent the case afresh before the Ld. Forum. Thus, the appeal succeeds.

                                                                       Hence, it is ordered

The appeal be and the same is allowed on contest without any cost. The final order and Judgement dated 20.06.2019 delivered by Ld. D.C.D.R.F., Uttar Dinajpur in CC No. 41 of 2018 is hereby set aside. The Ld. Forum is requested to give the opportunity to the Complainant/ Respondent to implead Sourav Das and sufficient opportunity should be given to Sourav Das to defend his case and the contesting parties of this case also should be given opportunity for a fresh hearing over the Consumer dispute and thereafter deliver a final verdict and the entire process should be completed as soon as practicable.

Let a copy of this order be handed over to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Uttar Dinajpur for doing the needful.