IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA, Dated this the 23rd day of July, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) N. Premkumar (Member) C.C. No. 164/09 (Filed on 07.12.2009)Between: Mr. M.N. Sivan Pillai, aged 71, Sreerangam, Kaipuzha, Panangadu P.O., Kulanada, Pathanamthitta represented by Power of Attorney Holder, D/o Mrs. Sudha- Radhakrishnan, Aradhana, Kaipuzha, Panangadu P.O., Kulanada, Pathanamthitta. (By Adv. Nishad. L.S.) .... Complainant. And: 1. Kulanada Service Co-op. Bank- Ltd. 2133, Kulanada P.O., Pathanamthitta. 2. The Secretary, --do-- --do— 3. The President, --do-- --do-- (By Adv. Sheeja.K.) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case is that he had deposited Rs.10,00,000/- (Rs.5 lakh each) as fixed deposits on 28.07.2006 with the first opposite party vide Account Nos. 242/06 and 243/06 for a period of 3 years at the rate of 10% interest per annum. On 28.08.2009, the date of maturity, the complainant approached the second opposite party for the return of the fixed deposit amounts with its interest. But the said amounts were not returned. Thereafter the complainant approached the opposite party several time, but the opposite party refused to return the amount. It is understood that the first opposite party’s office bearers had mis-appropriated the amount collected from the depositors. On 22.10.2009, an Advocate Notice was sent to the second opposite party who accepted the notice, but not replied. The complainant aged 71 years is bed ridden for the last several months. Due to the non-payment of the fixed deposit amounts, the complainant was not able to meet the treatment expenses and he was compelled to borrow from others for his treatment. The above said acts of the opposite parties is a deficiency in service, which caused financial loss and mental agony to the complainant. Hence this complaint for the realisation of the fixed deposit amounts with 10% interest from the date of deposit along with compensation of Rs.50,000/- and cost of Rs.10,000/-. 3. In this case, first and second opposite parties entered appearance and second opposite party filed version for and on behalf of first and second opposite parties. The main contentions of the first and second opposite parties is as follows: The former Secretary and the Director Board Members manipulated the accounts and mis-appropriated the funds of the Society and the Assistant Registrar of Co-operative Society, Thiruvalla submitted an enquiry report making it clear that the former Secretary is liable for the mis-appropriation. So the only remedy available to the complainant is to go for an Arbitrator and hence this complaint is not maintainable before this Forum. Moreover, the records show that the complainant had withdrawn certain amount from his fixed deposit account. The Power of Attorney Holder was also a Member of the Director Board of the first opposite party. Some criminal cases are pending in connection with the above said mis-appropriation and hence all the records were in the custody of Hon’ble Judicial First Class Magistrate’s Court, Adoor. The former Director Board and the Secretary along with the connivance of some depositors have engaged themselves in the illegal practice of withdrawing from the funds of the bank without surrendering the receipts and claiming the same amount again fraudulently. The second opposite party is only the Secretary-in-Charge and she is not liable to pay any money. With the above contentions, first and second opposite parties pray for the dismissal of the complaint. 4. The third opposite party is exparte. 5. On the basis of the above pleadings, the following points were raised for consideration: (1)` Whether the above complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Reliefs and Costs? 6. The evidence of this case consists of the oral deposition of PW1 based on his proof affidavit and Exts.A1 to A6. For the opposite parties, there is no oral or documentary evidence. But the counsel fort the opposite parties cross-examined PW1. After closure of evidence, both sides were heard. 7. Point No.1: The first opposite party is a Co-operative Society having banking business. The complainant is a depositor of the first opposite party and as such he is a consumer of the first opposite party. The allegation of the complainant against the opposite parties is deficiency of service. In the circumstances, this complaint is maintainable before this Forum. 8. Point Nos.2 & 3: The complainant’s allegation against the opposite parties is that the amount deposited by the complainant with the first opposite party as fixed deposit is not returned at its maturity. As per the terms and conditions of the fixed deposit scheme, the opposite parties are liable to return the fixed deposit amount with its interest on its maturity. According to the complainant, the non-return of the fixed deposit amount is a clear deficiency in service and the complainant had sustained financial loss and mental agony due to the above said deficiency in service committed by the opposite parties. 9. In order to prove the complainant’s case, the complainant’s Power of Attorney Holder had filed a proof affidavit narrating the complainant’s case in lieu of chief examination along with 6 documents. On the basis of the proof affidavit, the complainant’s Power of Attorney Holder was examined as PW1 and the documents were marked as Exts.A1 to A6. Ext.A1 is the Power of Attorney executed by the complainant in favour of PW1. Ext.A2 is the fixed deposit receipt No.379 dated 28.07.2006 issued by the first opposite party for Rs.5 lakhs for a period of 37 months at the rate of 10% per annum. Ext.A3 is another fixed deposit receipt No.381 dated 28.07.2006 issued by the first opposite party for Rs.5 lakhs for a period of 37 months at the rate of 10% per annum. Ext.A4 is the photocopy of the Advocate Notice dated 22.10.2009 issued for the complainant in the name of the second opposite party demanding the fixed deposit amount with its interest. Ext.A5 is the postal receipt of Ext.A4. Ext.A6 is the acknowledgment card of Ext.A4. 10. On the other hand, the contention of the opposite parties is that the former Secretary and the Director Board Members have mis-appropriated the funds of the Society and many legal proceedings are going on in connection with the said mis-appropriation. The second opposite party is only the Secretary-in-Charge and she is not responsible to the complainant and hence the complainant is not entitled to get any of the reliefs prayed for in the complaint. Though the opposite parties have raised such contentions, they have not adduced any oral or documentary evidence in their favour. But they have cross-examined PW1. 11. On the basis of the contentions of the parties, we have perused the materials on record and found that there is no dispute between the parties with the regard to the transaction. The only contention raised by the opposite parties is that due to the mis-appropriation of the earlier office bearers of the first opposite party, the opposite parties are not liable to the complainant. But this contention is not sustainable as the first opposite party is a legal entity and it will continue as per law and who is holding a particular post is not relevant in the circumstances of this case. The only point to be considered is whether the complainant had deposited any amount with the first opposite party and whether the said amount was returned to the depositor? 12. From the available evidence, it is seen that the complainant had deposited Rs.10 lakhs vide Exts.A2 and A3. There is no evidence showing that the fixed deposit amount and its interest as per Exts.A2 and A3 were returned to the complainant. So it is very clear that the opposite parties have not returned the amount entitled to the complainant so far, which is clear deficiency in service. Hence this complaint is allowable with cost. However, in the absence of any evidence showing the quantum of mental agony sustained to the complainant and the agreed rate of interest of the fixed deposit is entitled to the complainant, we are not inclined to allow any separate compensation. 13. In the result, this complaint is allowed, thereby the opposite parties are directed to pay the fixed deposit amount entitled to the complainant as per Exts.A2 and A3 receipts along with its agreed rate of interest from the date of deposit till this date along with cost of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of receipt of this order, failing which the complainant is entitled to realise the whole amount ordered herein above with 12% interest per annum from today till the whole realisation. Pronounced in the Open Forum on this the 23rd day of July, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : Sudha Radhakrishnan. Exhibits marked on the side of the complainant: A1 : Power of Attorney dated 20.10.2009 executed by the complainant in favour of Sudha Radhakrishnan. A2 : Fixed deposit receipt No.379 dated 28.07.2006 for Rs.5 lakhs issued by the first opposite party to the complainant. A3 : Fixed deposit receipt No.381 dated 28.07.2006 for Rs.5 lakhs issued by the first opposite party to the complainant. A4 : Photocopy of the Advocate Notice dated 22.10.2009 issued for the complainant in the name of the second opposite party. A5 : Postal receipt of Ext.A4. A6 : Acknowledgment card of Ext.A4. Witness examined on the side of the opposite parties : Nil. Exhibits marked on the side of the opposite parties : Nil. (By Order) Senior Superintendent. Copy to: (1) Mrs. Sudha Radhakrishnan, Aradhana, Kaipuzha, Panangadu P.O., Kulanada, Pathanamthitta. (2) The Secretary, Kulanada Service Co-op. Bank Ltd. 2133, Kulanada P.O., Pathanamthitta. (3) The President, --do-- --do— (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
