BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.136/2008 Order dated this the 25th day of March 2009 COMPLAINANT/S Sri.K.Puttaraju S/o Late Kempegowda, R/o Harishchandra Circle, Halahalli Road, Mandya. (By Sri.M.J.Jain., Advocate) -Vs- OPPOSITE PARTY/S The Mandya City Co-operative Bank Ltd., V.V.Road, Mandya, Rep. by its Branch Manager/Secretary. (By Sri.T.Lokesh., Advocate) Date of complaint 19.12.2008 Date of service of notice to Opposite party 29.12.2008 Date of order 25.03.2009 Total Period 2 Months 26 Days Result The complaint is allowed, directing the Opposite party to pay Rs.1,39,000/- with interest at 9% p.a. from 28.11.2007 till realization with cost of Rs.2,000/- to the complainant. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986 against the Opposite party claiming Rs.1,39,000/- with interest and compensation of Rs.50,000/-, alleging the difference of amount in his account due to the deficiency in service by the Opposite party. 2. The case of the complainant is that he is holder of S.B. A/c No.144 in the Opposite party Bank from last 10 years and used to transact having good faith. In January 2008, the complainant noticed the difference of Rs.1,39,000/- in his account, then immediately approached the Opposite party Bank Officials and after verifying the records, the Opposite party Officials conceded the difference of Rs.1,39,000/- in his account and the Opposite party agreed to pay the difference amount, since the bank staff have committed a illegality and sought for time. The complainant waited for sometime, but the Opposite party dragged on the matter. In that connection, the complainant has given petition to the Opposite party and due to their negligence, the complainant got issued legal notice dated 22.10.2008, for which no reply was sent. Therefore, the Opposite party has sustained loss of Rs.1,39,000/- in his account and if he had invested the amount in his business he would have earned more profit. The Opposite party has committed deficiency in service and hence liable to refund Rs.1,39,000/- with interest and compensation of Rs.50,000/-. 3. The Opposite party has filed version contesting the complaint. Admitting that the complainant is the holder of S.B. A/c No.144, the other allegations are denied by the Opposite party. Admitting the legal notice dated 22.10.2008, it is pleaded that reply has been sent on 18.12.2008. The loss of income if the difference amount had been utilized for business is false. The complainant has not come with clean hands. The Opposite party has not committed any deficiency in service. Therefore, the complaint is liable to be dismissed with costs. 4. During trial, the complainant is examined and he has produced Ex.C.1 to C.7 documents. Opposite party is examined and Ex.R.1 document is produced. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether it is proved that there is difference of Rs.1,39,000/- from his pass book entry to that of ledger entry? 2. Whether the Opposite party has committed deficiency in service? 3. Whether the complainant is entitled to refund of Rs.1,39,000/- with interest and compensation? 7. Our findings and reasons are as here under:- 8. The undisputed facts are that the complainant is the customer of the Opposite party Bank since last 10 years having S.B. A/c No.144. It is an admitted fact that the complainant has submitted the letter Ex.C.2 dated 14.01.2008 and Ex.C.1 dated 27.08.2008 to the Opposite party Bank. It is the case and evidence of the complainant that in January 2008 he came to know the difference of Rs.1,39,000/- in his S.B. Account, on the basis of the pass book and documents. Then he orally requested and since the Opposite party prolonged, he gave the petition Ex.C.2 on 14.01.2008. In this petition, it is clearly stated there is difference of Rs.1,39,000/- from the entry in the pass book to that of the ledger account and even the original pass book was retained for making entry, but was not returned and on pressure, the present pass book i.e., Ex.c.5 was issued. The Opposite party has admitted that prima-facie Ex.C.5 pass book has been issued from the Bank. It is also admitted that the entries in this pass book are made by the staff of the Opposite party Bank. The Opposite party has produced Ex.R.1 the copy of the S.B. Account of the complainant from the ledger and on perusal of the pass book entries and Ex.R.1, they do not tally at all. Though the complainant has not produced the reply letter dated 19.08.2008, but it is pleaded in the letter Ex.C.1 that the complainant had furnished the available documents along with earlier petition, but without examining the documents, the reply letter has been sent revealing the dereliction of duty. 9. It is natural that a customer will not maintain all the challans for having deposited the amount either by cash or through collection of cheque and mostly to the extent of 95% customers depend upon the entries made in the pass book, because the bank officials will make entries to the pass book on the basis of the ledger book and transaction. But peculiarly in the present case, the entries made in his account extract Ex.R.1 do not tally with the entries made in the pass book Ex.C.5. It is not the case of the Opposite party that in collusion with the staff of the Opposite party Bank, the complainant had got entered the entries in his pass book though not available in his account. No complaint is filed that the complainant had created entries in the pass book and no action is taken at all. When the Opposite party has admitted the entries are made by the staff of Opposite party Bank, it is for the Opposite party to give explanation as to how the bank officials has made entries in Ex.C.5 pass book contrary to entries in the ledger. The customer will suspect the entries in the pass book when he comes to know that there is no such fund in his account in the bank. In fact, in Ex.C.2 the complainant has pleaded that on 08.12.2007 when he enquired Smt.Mangala, the staff informed there is no balance of Rs.1,55,379/-, but there is Rs.16,379/-. Since as per the pass book as on 28.11.2007 there was balance of Rs.1,55,379/-, there is difference of Rs.1,39,000/- and he suspected that the entries of collection of cheques are not made and he has not drawn the amounts in some cheques as mentioned in the ledger extract. The Opposite party instead of verifying the records available with Opposite party, sent a letter dated 18.12.2008 asking the complainant to produce the documents though he had furnished the copy of the pass book, we cannot expect the production of any other documents other than the pass book by a customer, because customer will not maintain the challans for having deposited cash or by cheque and only believes the entries made in the pass book maintained by the bank. If we peruse Ex.C.5 pass book as on 28.11.2007 the balance was Rs.1,55,379/-, but in Ex.R.1 the account extract of the bank, the balance is shown as Rs.16,379/-. It is clear from the documents Ex.C.6 & C.3 that the Opposite party has examined the complaints of customers with the documents available in the bank and submitted report that 4 bank officials have mis-appropriated Rs.34,90,000/- by issuing new pass book without returning the old pass book and the staff has deposited the amount to an account when the customer came to draw the amount to suppress the fact of difference in the bank account and the pass book and also destroying the challans by issuing counter challans to customers and making entries in the pass book, but not making entries in the ledger. In Ex.C.6 it is clearly stated that on the basis of available material, the said report has been submitted to take action against those four officials. Further in the report annexed to the Ex.C.6, it is stated in respect of the complainant that as per the pass book as on 08.12.2007, the amount is Rs.1,55,504/-, but as per ledger it is Rs.16,504/- and there is balance of Rs.1,39,000/-. This report Ex.C.6 is prepared after the resolution of the Board of the Bank on 31.01.2008. But the complainant had given petition on 14.01.2008 itself about the difference of Rs.1,39,000/- in his S.B. A/c to that of his pass book entries. Ex.C.3 is the chart prepared by the Opposite party giving the details of customers and the difference of amount between the pass book entry and ledger entry and it includes the complainants name also. Admittedly, the Opposite party has filed case before the Joint Director of Co-operative Societies, Bangalore against his 4 officials for recovery of mis-appropriation amount of Rs.34,90,000/- and obtained attachment before judgement. Further, reply to legal notice is sent only after receipt of notice of complaints which shows the negligence of Opposite party. Under these circumstances, it is established by the complainant that there is difference of Rs.1,39,000/- in his S.B. A/c maintained in the bank to that of entries made in the pass book Ex.C.5 issued by the Opposite party Bank and these fraudulent entries are done by the staff of the Opposite party Bank in ledger with intention of mis-appropriation and there is negligence on the part of Opposite party Bank in the regular duties performed by its employees for which the Opposite party Bank is vicariously liable and hence, the Opposite party has committed deficiency in service as held by the decision reported in I (2007) CPJ 221 by our Honble National Commission in the case of Allahabad Bank Vs- Shiv Swarup Shrivastav. 10. The complainant has sought for refund of Rs.1,39,000/- being the difference amount and also interest and compensation of Rs.50,000/-. The complainant has sought for compensation on the ground that if he had invested that amount in his business he would have earned more profit and he was put to mental agony. Since, the complainant has also sought for interest, it is reasonable to award interest only. So, the complainant is entitled difference amount of Rs.1,39,000/- with interest at 9% p.a. from 28.11.2007 from the Opposite party. 11. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the Opposite party to pay Rs.1,39,000/- with interest at 9% p.a. from 28.11.2007 till realization with cost of Rs.2,000/- to the complainant. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 25th day of March 2009). (PRESIDENT) (MEMBER) (MEMBER)
