Andhra Pradesh

Nellore

CC/05/2015

Vedicheral esvaraiha son of Venakta Subbaiah - Complainant(s)

Versus

M/S State Bank of India Rep by its branch Manager - Opp.Party(s)

P.Srinvasarao

20 Nov 2015

ORDER

                                                             Date of filing       :  29-12-2014

                                                            Date of disposal  :  20-11-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Friday, this the 20th  day of NOVEMBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.5/2015

Vedicherla Eswaraiah,

S/o.Venkata Subbaiah,                                                                                   

R/o.Kollamitta, Pantapalem,

Near TransFormer,

Muthukur Mandal,

S.P.S.R.Nellore District.                                                  ...         Complainant

 

                      Vs.

                                                                            

M/s.State Bank of India,

Rep. by its Branch Manager,

MUTHUKUR Branch,

SPSR Nellore District.                                                      …      Opposite parties

 

This matter coming on  17-11-2015   before us for final hearing in the presence of Sri P.Sreenivasa Rao, Advocate for the complainant and  Sri S.Srinivasa Murthy,                                       

Advocate for the opposite party and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

This consumer case is filed by the complainant against the opposite party to direct the opposite party to return his gold ornaments which are pledged with it or to pay an amount of Rs.2,50,000/- being the cost of the gold ornaments along with interest @12% p.a., from the date of the auction of the gold ornaments by the opposite party; to pay Rs.50,000/- towards damages for causing mental agony and deficiency in service and also to pay the costs of the complainant and also to grant such other relief or reliefs as the Hon’ble Forum may please to deemed it fit and proper in the circumstances of the case.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I It is the case of the complainant that he is a farmer and also a customer of the opposite party having a savings bank account in the bank.  The complainant had pledged his oral arguments on 6-2-2012 i.e., 1.Long Necklace 2.Two chains of one row each with Balaji Locket 3. Two rings with stones.  These gold ornaments weighing 70.20 grams and taken gold loan of Rs.1,12,000/- under  account No.GL.AC.No.32176966135.  The rate of interest is 7.00% p.a. till due date.

 

(b)  It is also further submitted by the complainant that in paras – 4 to 7 at page no.2 that on 16-10-2014 he had approached the opposite party to clear off total loan amount in order to release his gold ornaments. But, he was informed by the manager of the opposite party that the said gold ornaments for auctioned on 29-09-2014 of Rs.1,48,500/- and adjusted the said amount towards his gold loan and remaining amount was kept in his savings bank account.  The said news item was published in Andhra Prabha district edition at page no.6 on 17-10-2014.  He had submitted further that without issuance of any demand notice to him to clear off the loan amount which was secured on pledging his gold ornaments by the opposite party auctioned and adjusted towards his gold loan.  It is clearly amounts deficiency of service on the part of the opposite party towards the complainant.  Thereafter, he got issued legal notice to the opposite party on 05-11-2014 calling upon the bank i.e., the opposite party to return the gold ornaments on receipt of the payment of loan amount which are pledged in the bank.  The said notice was served to the opposite party on 7-11-2014 but there was no reply from the bank i.e., the opposite party.  The office copy of the said legal notice and postal receipt and acknowledgements,  which are enclosed for kind perusal of the Forum and the contents therein may be read as part and parcel of the complaint.

 

        Without issuing of the demand notice to the complainant and conducting auction of the said gold ornaments, is nothing but malafied intention of the opposite party and without proper application of the mind of the bank which is not reasonable and justifiable.  It is clear sheer negligence and deficiency in service on the part of the opposite party towards the complainant.

 

( c )  It is also submitted by the complainant that in paras-8 to 10 at page nos.2 and 3 of  the complaint that the Hon’ble Forum has got jurisdiction to entertain the complaint.  The complaint is filed within two years from the date i.e. on 5-11-2014 when the complaint got issued the said legal notice to the opposite party.  There are causes of action to file the complaint against the opposite party.  Hence, the complaint.

        

 

 

II.  DEFENCE:

  

     Even though Sri S.Srinivasa Murthy had filed vakalath for the opposite party  dated 11-03-2015 and the case was posted for filing written version of opposite party to 28-04-2014 and since then, he did not evince any interest what so ever, to file written version inspite of several adjournments were granted by the Forum till 21-10-2015.  Further, the case is posted for filing chief affidavit of both parties on 13-10-2015 and again adjourned to        21-10-2015. 

 

III.   The chief affidavit of complainant was filed as PW1 on  21-10-2015 but there was no representation from the opposite party and subsequently the documents which are marked as Exs.A1 to A4 were marked on 05-11-2015 on behalf of the complainant.  Written arguments of the case of the complainant also filed and the case was finally posted to oral hearing on   17-11-2015.  The opposite party was kept silent throughout the proceedings of the case, for the reasons best known to the opposite party. 

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

 

(a)Is there any deficiency in service on the part of the opposite

    party towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V.  POINTS 1 AND 2:

 

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.  It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainant:

 

         Sri P.Srinivasa Rao, the learned counsel for the complainant has vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that without issuing any demand notice to the complainant about the loan arrears towards the bank i.e. the opposite party and the said gold ornaments which are pledged with the opposite party, were already auctioned and appropriated the amount towards his loan account and the remaining amount left out was credited towards his savings bank account.  The main contention of the complainant that the opposite party acted with malafied intention to get wrongful gain, auctioned the said gold ornaments without any intimation to the complainant, is clearly amounts to gross-negligence, unfair trade practice and deficiency in service.   The said learned counsel for the complainant has further urged that Ex.A1is the proof of pledging the gold ornaments with the bank i.e., opposite party dated          06-2-2012; Ex.A2 is the new item which was published in the Andhra Prabha district edition of Nellore, about the gold ornaments and the opposite party’s action; Ex.A3 is the legal notice dt.5-11-2014 issued by the complainant’s counsel to the opposite party and Ex.A4 is an acknowledgement dated 07-11-2014 from the opposite party.  His main thrust of his arguments that having receiving notice by the opposite party from the complainant, kept silent, without giving any reply and also even though represented by the counsel for the opposite party and without filing written version on behalf of the bank and it all amounts to gross-negligence, unfair trade practice and deficiency in service.    Finally, he has prayed that the Hon’ble Forum may please to allow the complaint as prayed for.

 

    On the other hand Sri S.Srinivasa Murthy, the learned counsel for the opposite party has filed vakalath on 11-3-2015 on behalf of the bank, but, he did not file written version/objections/counter for the reasons best known to them and kept silent.  Since March, 2015 till today,  the said learned counsel for the opposite party, is unrepresented on behalf of the opposite party.

 

                        Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. The complainant has filed his affidavit evidence to support his contentions as well as relevant documents.

    

     To resolve the consumer dispute between the parties to the complainant, we have not only considered written arguments of the complaint but also taken into consideration of the oral contentions of the counsel for the complainant.  Ex.A1 is a document which shows          that the gold ornaments of the complainant pledged with the opposite party dt.06-02-2012. It proves that the allegation against the bank by the complainant. Having represented by the counsel for the opposite party and without denying the allegations of the complainant, is clearly proves that the contents of complaint, is true.  An adverse inference can be drawn from the facts and circumstances of the case against the opposite party. Recklessness of opposite party is clearly evident in view of the facts and circumstances of the case.   We are unable to understand why the opposite party is keeping silence and un-representing throughout the proceedings of the Forum in the case.  There is no record before us about the auction proceedings of the opposite party throughout the complainant.  He who seeks equity must come to the Forum/court with clean hands.   

 

       To allege and proved the facts of the case by the complainant, is clearly establishes the fact of pledging the gold ornaments with the opposite party on the said date and why the opposite party auctioned those said gold ornaments without giving any demand notice earlier and before auction of those said articles to the complainant.  There are merits in the complaint.  We have considered the oral arguments of the counsel for the complainant.  We are of the considerable opinion that it is a fit case to allow the complaint and consequently it is ordered that directing the opposite party to pay an amount of Rs.2,50,000/- being the costs of gold ornaments. The   complainant is also entitled to get damages of Rs.25,000/- towards his mental agony  and deficiency in service of the opposite party.  He is also entitled to get costs of complaint of Rs.3,000/-.  These two points are held in favour of the complainant and against the opposite parity, accordingly.

    

POINT NO.3:   In the result, the complaint is allowed in part, ordering the opposite party to pay Rs.2,50,000/- (Rupees two lakhs fifty thousand only) being the costs of the gold ornaments which pledged at the time of obtaining the loan from the opposite party, to the complainant; to pay Rs.25,000/- (Rupees twenty five thousand only) towards damages for mental agony suffered by  the complainant and also to pay costs of Rs.3,000/- (Rupees three thousand only) towards complaint. These are all payable to the complainant by the opposite party within one month from the date of the receipt of order, accordingly.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 20^th day of November, 2015.    

    Sd/-                                                                              Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

21-10-2015

:

Vedicherla Eswaraiah, S/o.Venkata Subbaiah, Hindu, aged about    years, R/o. Kollamitta, Pantapalem, Muthukur Mandal, SPSR Nellore District.

 

WITNESSES EXAMINED FOR OPPOSITE PARTY:

-NIL -

                                                                            

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	06-02-2012	:	Gold loan receipt issued by the opposite party in favour of the complainant.
Ex.A2	17-10-2014	:	News published in ANDHRA PRABHA daily pertaining to the gold of complainant.
Ex.A3	05-11-2014	:	Legal notice got issued by the advocate for the complainant to the opposite party along with registered post receipt.
Ex.A4	07-11-2014	:	Postal Acknowledgement.

 

EXHIBITS MARKED FOR THE OPPOSITE PARTY:                           

• N I L -

 

            Id/-                                                                                       PRESIDENT(FAC)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Copies to:

 

1. Sri P.Srinivasa Rao, Advocate, Flat No.502, KAC CELESTIAL, Muthyalapalem, Nellore.
2. Sri  S.Srinivasa Muthy, Advocate, K.V.Agraharam, Trunk Road, Nellore.

          

 

Date when order copies are issued: