FIRST ADDITIONAL BENCH

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

Misc. Application No.1151 of 2018

In/and

First Appeal No.236 of 2018

                                                          Date of Institution : 25.04.2018

                                                          Order reserved on: 23.08.2018

                                                          Date of Decision   : 04.09.2018

1. Union of India through its Secretary, Department of Post of Offices, Civil Secretariat, New Delhi. 
2. Superintendent of Post Offices, Ferozepur Division, Ferozepur Cantt. 
3. The Sub-Post Master, Sub Post Office, Makhu, Tehsil Zira, District Ferozepur.   

……Appellants/Opposite Parties(OPs)

Versus

1. Puran Singh (aged about 54 years) son of Arjan Singh. 
2. Kulwant Kaur (aged about 50 years) wife of Puran Singh.

Both resident of Village Rasoolpur, Post Office Makhu, Tehsil Zira, District Ferozepur.   

………….Respondents/complainants.

Appeal against order dated 01.03.2018 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

           Smt. Kiran Sibal, Member 

Present:-

For the appellants        :        Sh. Alankrit Bhardwaj, Advocate

For respondents           :        Sh. O.P. Gabba, Advocate

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J.S. KLAR, PRESIDING JUDICIAL MEMBER:-

          Challenge in this appeal by appellants is to order dated 01.03.2018 of District Consumer Disputes Redressal Forum Ferozepur, directing appellants of this appeal to refund the amount of Rs.2,00,000/- to respondents of this appeal, withdrawn from the account of respondents of this appeal, with interest @ 9% per annum from 04.04.2014 till final realization, besides compensation of Rs.10,000/- as compensation for mental harassment and Rs.3,000/- as cost of litigation.  Appellants of this appeal are opposite parties in the complaint and respondents of this appeal are complainants therein and they be referred, as such, hereinafter for the sake of convenience. 

2.                The complainants have filed the complaint under Section 12 of Consumer Protection Act 1986 (in short 'Act') against OPs on the premise, that complainant No.1 had deposited the amount received by him as retiral benefits in the name of both of the complainants in Post Office at Makhu, as complainant No.2 is his wife.  Their account number in Post Office at Makhu was 791543, wherein the balance amount was Rs.4,01,440/- on 04.04.2014.  Since they needed the money, as such, Puran Singh-complainant No.1 visited Sub Post Office at Makhu on 04.04.2014 requesting Sub Post Master Makhu-Sh. Nirmal Singh to pay the amount of Rs.2,00,000/- by way of withdrawal form from the above referred account.  Sub Office Master concerned got his signatures on two blank forms of withdrawal, on the premise that withdrawal was to be done on each form to the tune of Rs.1,00,000/- only.  Complainant No.1-Puran  Singh received the amount of Rs.2,00,000/- from Post Office and got an entry in the pass-book, wherein balance of Rs.2,01,440/- was shown as due to them.  After some days from the withdrawal of Rs.2,00,000/-, it came to the notice of complainants that above Sub Post Master, Makhu had committed many embezzlements  of the public money.  Complainant No.1-Puran Singh verified his above said account and found that withdrawal done on 04.04.2014 was shown to be of Rs.4,00,000/-, whereas he applied for withdrawal of Rs.2,00,000/- only.  Complainants made complaint to the authorities of Post Office to look into the matter in this regard.  OP No.3 sent letter to complainant No.1-Puran Singh bearing No.F-IV/01/2014-15 dated 01.08.2017, intimating that although there was one entry of withdrawal of Rs.2,00,000/- in the pass book of the complainants, yet there were two entries of withdrawal of Rs.2,00,000/- each in record of Post Office concerned and complainant himself facilitated the withdrawal of money by Nirmal Singh, Sub Post Master of the concerned Post Office.  There is an admission on the part of the department that the amount has been embezzled by the then Sub Post Master-Nirmal Singh of Makhu.  The complainants then made complaint in this regard to the authorities, which assured to look into the matter and assured that they would return the amount of Rs.2,00,000/- to them, which was wrongly shown to have been withdrawn from their account.  On one side, OPs conducted an enquiry and on the other side kept the passbook of all those affected persons with it inclusive of complainants' by giving photocopies of the entries thereof to the account holders only.  The complainants alleged unfair trade practice on the part of OPs and filed complaint praying for refund of Rs.2,00,000/- along with interest till actual payment along with compensation of Rs.50,000/- for mental harassment and Rs.10,000/- as cost of litigation. 

3.                Upon notice, OPs appeared and filed written reply, raising preliminary objections that complaint of the complainants is false, frivolous and vexatious.  They have not come to the Forum with clean hands and have suppressed the material facts in the complaint.  They have themselves withdrawn the amount of Rs.4,00,000/- from the Post Office concerned.  Complainant No.1 confirmed his signatures on receipt of portion of warrants of payment on two SB-7 withdrawal vouchers dated 04.04.2014 for Rs.2,00,000/- each and amount of Rs.4,00,000/- stood withdrawn, as per the office record of Sub Post Office Makhu.  They were supposed to check the receipt of portion of warrants of payment properly and then to sign the same.  On merits, OPs further averred that Sub Post Master, Makhu Nirmal Singh had expired on 14.04.2014 and hence, the request of making any payment to complainants by OPs of the prayed for money did not arise at all.  Nirmal Singh, then Sub Post Master Makhu committed fraud with public and genuine claims have been sanctioned by the competent authority, but in the present case, the embezzlement as alleged by complainants was facilitated by them due to their own negligence and OP-department cannot be held liable for the same.  Complainant No.1 admitted his signatures on receipt of portion of warrants of payment on two SB-7 withdrawal vouchers dated 04.04.2014 for Rs.2,00,000/- each and amount of Rs.4,00,000/- stood withdrawn, as per the office record of Post Office Makhu.  All other allegations made in the complaint have been denied by OPs and they prayed for dismissal of the complaint with costs.

4.                The complainants tendered in evidence his affidavit of Puran Singh-complainant No.1 as Ex.C-1 along with documents Ex.C-2 and Ex.C-4 and closed the evidence.  As against it, OPs tendered in evidence affidavit of Sh. Parkash Singh, Superintendent of Post Office, Ferozepur as Ex.OP-1 along with documents Ex.OP-1 to Ex.OP-8 and closed the evidence.  On conclusions of evidence and arguments, District Forum Ferozepur accepted the complainant of complainant as referred to above.  Aggrieved by above order of the District Forum Ferozepur dated 01.03.2018, OPs now appellants have filed this appeal against the same. 

5.                We have heard learned counsel for the parties and have also examined the record of the case.  Complainant No.1-Puran Singh tendered in evidence his affidavit as Ex.C-1 and testified his case on oath, as pleaded in the complaint.  He furnished evidence in this affidavit to the effect that complainants held saving account No.791543 with Post Office Makhu, wherein the balance amount was Rs.4,01,440/- was standing as due to them on 04.04.2014.  He visited Sub Post Office Makhu on 04.04.2014 and requested Sub Post Office Master-Nirmal Singh to pay him the amount of Rs.2,00,000/- by way of withdrawal from his above said account.  The then Sub Post Master-Nirmal Singh asked him to sign two blank forms, as Rs.1,00,000/- could be withdrawn only on one form.  The amount of Rs.2,00,000/- was paid to him and entry was made in his passbook in that regard by showing the balance amount of Rs.2,01,440/-.  He further stated that subsequently, when he verified his above account, it came to his notice that withdrawal which was done by him on 04.04.2014 had actually shown the withdrawal of Rs.4,00,000/- instead of Rs.2,00,000/-.  He alleged embezzlement of his amount of Rs.2,00,000/- in the Sub Post Master Office, whereas, no such entry to that effect was made in his passbook with him.  Ex.C-2 is the photostat copy of the passbook in the name of complainants with regard to saving account No.791543.  Ex.C-3 is the letter dated 01.08.2017 from Sub Post Office Ferozepur to Puran Singh-complainant No.1, stating that his claim is not admissible as there was one entry of withdrawal of Rs,2,00,000/- in the passbook on 04.04.2014, but in SO/HO record, it has been shown that there were two entries of withdrawalRs.2,00,000/- on 04.04.2014 and he was himself responsible to facilitate the fraud by giving two bank withdrawal forms i.e. SB-7 duly signed by him to the then Sub Post Master-Nirmal Singh.  Both forms were filled by him and these facts were admitted by complainant in written statement recorded by concerned ASPOs in enquiry proceedings.   Ex.C-4 is the photostat copy of the General Instructions on the passbook.  As against it, OPs relied upon affidavit of Sh. Parkash Singh, Superintendent of Post Office Ferozepur Division, Ferozepur Ex.OP-1 on the record and this witness testified that complainants had themselves withdrawn the amount of Rs.4,00,000/- from concerned post office at Makhu, Ferozepur, complainant No.1-Puran Singh confirmed his signatures on receipt of portion of warrants of payment on two SB-7 the withdrawal vouchers dated 04.04.2014 for Rs.2,00,000/- each and amount of Rs.4,00,000/-, thus, stood withdrawn from said account on 04.04.2014, as per the officials of concerned Post Office.  It is further stated in the affidavit of Parkash Singh, Superintendent of concerned Post office that complainant was supposed to check the receipt portion of withdrawal voucher before acknowledging the amount of withdrawal.  If complainant had been deceived by late Nirmal Singh, then Sub-Post Master, he is himself liable for the same.  Complainants have been informed, vide letter No.F-IV/01/2014-15 dated 01.08.2017 intimating that there was withdrawal of Rs.4,00,000/- on 04.04.2018 in saving bank account No.791543 in the name of Puran Singh-complainant No.1 and he himself confirmed his signatures on two SB-7 withdrawal vouchers dated 04.04.2014 for Rs.2,00,000/- each and amount of Rs.4,00,000/- stood withdrawn therefrom.  Ex.OP-2 is the ST and SB Transaction at Makhu on 04.04.2014 showing two amounts of withdrawal of Rs.2,00,000/- each at serial No.6&7.  Ex.OP-4 is copy of the ledger showing withdrawal of the amounts of of Rs.2,00,000/- each from the account of complainant No.1-Puran Singh.  Ex.OP-6 is the photostat copy of statement allegedly made by Puran Singh, wherein he stated that on 04.04.2014, he took the passbook at Sub Post Office Makhu and Nirmal Singh, then Sub Post Master asked him to give Rs.4,00,000/-.  Then, Nirmal Singh, then Sub Post Master stated that he had the currency of Rs.2,00,000/- only and complainant could get the remaining amount after three days.  Nirmal Singh, then Sub Post Master got two withdrawal forms signed from him by stating that each can be used for withdrawal of Rs.1,00,000/- only and got the blank forms signed from him, whereas he is little educated upto 3^rd to 4^th grade only.  He admitted his signatures in Hindi on the original Forms.  Ex.OP-7 and Ex.OP-8 are the withdrawal forms dated 04.04.2014, which are duly signed by Puran Singh-complainant No.1, whereas, the withdrawal forms have been filled in English by Sub-Post Master Nirmal Singh.  There was no denial of this fact that Nirmal Singh was the Sub-Post Master of concerned Post Office Makhu at the time of above withdrawals.  Complainant admitted his signatures on the vouchers dated 04.04.2014, but stated that it was represented to him by Nirmal Singh, then Sub-Post Master that the amount of Rs.1,00,000/- could be withdrawn on each of the withdrawal forms only.  The Post Office maintains saving amount of the account holders for safety of their money and only person with lower incomes usually approached them for deposits of their amounts.  Generally, the employees of the post offices or banks fill in the withdrawal forms at the asking of the customers and customers signed them in good faith.  Similar is the case in hand, wherein complainant-Puran Singh signed the withdrawal forms in good faith and due to this reason, there was entry of withdrawal of Rs.2,00,000/- on his passbook.  Passbook is presented at the time of withdrawal and entries are incorporated in it by the concerned official of the Sub Post Office.  Then Sub-Post Master-Nirmal Singh since deceased misused his position as a public servant and embezzled the amount of Rs.2,00,000/- of complainants.  OPs are vicariously liable for this wrongful act of then Sub-Post Master-Nirmal Singh in embezzling the amount of Rs.2,00,000/- of complainants.  OPs cannot be absolved from their liability, as if any employee deprive the customer of his money in the course of discharge of his official duty, then his parent department is vicariously liable for it.  The District Forum has correctly held OPs deficient in service and indulging in unfair trade practice in depriving the complainants of the amount of Rs.2,00,000/- which stood withdrawn by the then Sub-Post Master-Nirmal Singh, while acting in that capacity. 

6.                Reliance of appellants on law laid down by Hon’ble National Commission in “P.N. Khanna Vs. Bank of India and another” reported in 2015(2)CPJ 54, “Bright Transport Co. Vs. Sangli Sahakari Bank Ltd.” reported in 2012(2) CPJ 151 and “Synco Industries Vs. State Bank of Bikaner and Jaipur” reported in 2002 AIR(SC) 568, would not be applicable in this case.  This is not a case of forgery, but it is a case of swallowing the money of the complainants by the employee of the concerned post office himself, in the discharge of his official duties.  OPs cannot be absolved of their vicarious liability and hence, the case can be determined by this Forum under Consumer Protection Act on account of its facts.  The contention of counsel for appellant to refer this case to Civil Court stands repelled, as the Consumer Forum is competent to decide this matter in summary proceedings.  

7.                We find no illegality or material infirmity in the order of District Forum under challenge in this case.  There is no reason to relegate this case to Civil Court for adjudication, as argued by counsel for appellant, as there is sufficient evidence on record to enable this Commission to decide the controversy in this case.  The application for additional evidence, as put in by the appellants in this appeal for adducing the additional evidence by way of tendering divisional level enquiry report, circle level inquiry report and list of payments made to the account holders, was in the knowledge of OPs now appellants when they led the evidence before District Forum.  There is no reason to allow this application for additional evidence, as this evidence was already within the knowledge of the appellants when they led the evidence and they could have led this evidence at the time of tendering evidence before District Forum.  The application for additional evidence is, thus, dismissed. 

8.                In view of our above referred discussion, we find that the order passed by District Forum is, thus, without any flaw and infirmity and the same is hereby affirmed in this appeal.  Consequently, appeal is found without any merits and the same is hereby dismissed and order of the District forum is affirmed and upheld in this appeal.

9.                Appellant/OP had deposited an amount of Rs.25,000/- and Rs.1,00,000/- with this Commission at the time of filing this appeal.  Both these amount with interest, which accrued thereupon, if any, be remitted by the Registry to respondents/complainants in equal shares by way of a crossed cheque/demand draft after expiry of period of 45 days from the date of receipt of copy of the order, subject to stay order, if any.

10.                Arguments in this appeal were heard on 23.08.2018 and the order was reserve­d. The certified copies of order be communicated to the parties, as per rules.

11.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.    

                                                                   (J. S. KLAR)                                                                   

                                               PRESIDING JUDICIAL MEMBER

                                                               (KIRAN SIBAL)

                                                                    MEMBER

September 04, 2018

DB