BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 11/02/2010

Date of Order : 30/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 66/2010

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

The complainant deposited Rs. 50,000/- in the Golden year Deposit Plan launched by the opposite parties. The amount was entrusted with the 2^nd opposite party on 22-11-2007. Subsequently on inquiry on 27-07-2009, it was told that the policy of the complainant has been lapsed due to cheque bouncing. The complainant has not issued any cheque to the opposite parties for the deposit of Rs. 50,000/-. The complainant lodged a complaint before the Judicial First Class Magistrate Court, Muvattupuzha and as per the direction of the Court a Crime No. 1475/2009 was registered by the police and the investigation is going on. On 28-07-2009, a letter was issued by the complainant to the 2^nd opposite party requesting to resume the validity of the policy, but there was no response. The complainant is entitled to get refund of Rs. 50,000/- along with Rs. 10,000/- towards compensation and costs of the proceedings. This complaint hence.

2. The version of the opposite parties :-

The complainant is not a consumer and this Forum has no jurisdiction to entertain this complaint. The complainant had applied for a reliance Golden year plan Policy on 22-09-2008 by paying premium amount of Rs. 50,000/- vide cheque bearing No. 1595 dated 21-11-2008 drawn on Idukki District Co-operative Bank, in favour of Reliance Life Insurance Company. The cheque deposited by the complainant towards premium amount was dishonoured on presentation. Consequently, the policy was withdrawn and the same was intimated to the complainant. The is no deficiency in service on the part of the opposite parties.

3. The complainant was examined as PW1 and Exts. A1 to A4 were marked on the side of the complainant. The witness for the opposite party was examined as DW1 and Exts. B1 to B4 were marked on the side of the opposite parties. Heard the counsel for the parties.

4. The points that came up for consideration are as follows :-

1. Whether the complaint is maintainable in this Forum?

2. Whether the complainant is entitled to get refund of Rs. 50,000/- from the opposite parties.

3. Compensation and costs of the proceedings?

5. Point No. i. :- The 1^st contention is being due process of law primerly and the latter having other dimensions they cannot be treated as one and the same. Nor does a connection deprive the consumer herein of her privity before this Forum.

6. Point No. ii. :- According to the complainant, she has joined in the Golden Year Deposit Scheme of the 1^st opposite party by paying Rs. 50,000/- in cash. It is contended that she has never issued any cheque towards the deposited amount as claimed by the opposite parties. It is further contended that since, the 2^nd opposite party has received the amount from the complainant and misappropriated the amount, the 1^st opposite party is vicariously liable for the acts of the 2^nd opposite party. The learned counsel relied on the decision rendered by the Hon'ble National Commission in Hariyana Gramin Bank and Another Vs. Jaswinder & Anr. IV (2010) CPJ 2120 (NC). On the contrary, the learned counsel for the opposite party submitted that if any one committed criminal offense he alone is personally liable and the liability cannot be shifted under any circumstances to any one else including his master or principal. The learned counsel relied on the decision rendered by the Hon'ble National Commission in L.I.C. of India and Another Vs. Consumer Education and Research Society and Ors. (I) CPJ 95 (NC). DW1, the witness for the opposite parties deposed that the bounced cheque has been issued by one Mr. Jeen Mathew an employee of the 1^st opposite party. He further deposed that the same person has been terminated from service for the fraud committed by him in the company. Since the cheque was issued by the employee of the 1^st opposite party, the contentions of the opposite parties does not hold water especially for the reasons in the deposition of DW1. It is crystal clear the complainant has not issued any cheque in favour of the opposite parties as averred by the opposite parties. No proof available to sustain the same. The complainant does not have even an account with the Bank where from it is claimed that the cheque has been issued. The National Commission in Hariyana Gramin Bank case held in paragraph 7 that, “Therefore, as the fraud and embezzlement was committed by the employees of the OP-Bank in the course of employment, the State Commission has very rightly held that the OP/petitioner was vicariously liable for the action of its employees”. The Hon'ble National Commission in L.I.C. of India and Another case held that the master or principal is not liable for the criminal acts of their employees. The said case is not applicable in this case, since we are dealing with the deficiency in service on the part of the opposite party alone and not on the matter related with criminal offence committed by the employee where proceedings are elsewhere already. In the above circumstances, we are only to hold that the opposite parties are liable to refund the deposited amount with interest to the complainant.

7. Even when it has been proved that the employee of the 1^st opposite party misappropriated, found culpable and terminated hence the 1^st opposite party still opts to defend the undefendable. This Forum cannot concede to such lacerations on the consumer which take time to heal. We allow the compensation as prayed for which does not call for compromise as far as in the present case is concerned. Since the complainant has not succeeded in placing the necessary records before this Forum to substantiate the claim for costs. The same is rejected.

8. Accordingly, we partly allow the complaint and direct that,

1. the opposite parties shall jointly and severally refund of Rs. 50,000/- together with interest at the rate of 9% p.a. from the date of payment till realisation.

2. the opposite parties shall pay Rs. 10,000/- to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of November 2011.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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