Tamil Nadu

StateCommission

CC/118/2013

SESHAGIRI RAO - Complainant(s)

Versus

R. AMIRTHAMMAL - Opp.Party(s)

THIRUMARAN

12 Apr 2023

ORDER

 Date of filing:26.7.2013

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE      Hon’ble Thiru Justice R. SUBBIAH          PRESIDENT

                             Thiru R VENKATESAPERUMAL                          MEMBER

 

CC.NO. 118/2013

 DATED THIS THE 12^th  DAY OF APRIL  2023

1.       Seshagiri Rao (Deceased)

          S/o. M.A.P.Chenulu

 

2.       Mrs. Telekapalli Rajeswari (Deceased)

          W/o. Late Seshagiri Rao

         

3.       Mrs. Lavanya

          D/o. Late Seshagiri Rao

          W/o. B.V.S.S.Ramagopal

 

4.       M.V.S.Deepak

          S/o. Late Seshagiri Rao

 

          Both at:

          H-203, Hansa Courtyard

          Thiruvottiyur, Chennai – 600 019                                 ....Complainants

 

                                                  Vs 

 

1.       Mrs. R. Amirthammal

W/o. H. Narayanan

62, Ambiai Nagar, Thiruvottiyur

Chennai – 600 019

 

2.       The Post Master

Post Office, Theradi, Thiruvottiyur

Chennai – 600 019                                                     ....Opposite parties

 

Counsel for complainant                               :   M/s  A. Thirumaran

Counsel for 1^st opposite party                       :   M/s. J. Mani

Counsel for 2^nd opposite party                       :   M/s. KanimozhiMathi      

 

         This complaint coming before us for hearing finally on 22.12.2022 and on hearing the arguments of counsel appearing on bothsides and upon perusing the material records this Commission made the following order:

ORDER

Justice R. SUBBIAH,  PRESIDENT    

1.       This complaint has been filed under Sec.17 of the Consumer Protection Act, 1986, as against the opposite parties , praying for a direction to the opposite parties to refund the money of Rs.6,00,000/-, alongwith compensation of Rs.25,00,000/- and cost.

 

2.       Originally the complaint was filed by the 1^st and 2^nd complainants, who are husband and wife.  Pending complaint the 1^st and 2^nd complainants died.  Hence by way of order dt.26.2.2022 in MP.No.100/2022, the legal heirs of the 1^st and 2^nd complainants viz. the 3^rd and 4^th complainants have been impleaded.

 

3.       The brief facts, which are necessary to decide the issues involved in this case, are as follows:

          The deceased 1^st complainant was employed with the Coramandel Fertilizers, Ennore and retired on 31.12.2006 as Deputy Manager, and out of his retirement benefits, he had deposited a sum of Rs.6,00,000/- on 10.1.2007 with the 2^nd opposite party /post office, through the 1^st opposite party, who was a licenced postal agent and was known to the complainant for about 20 years.  Since the 1^st opposite party was pestering the 1^st complainant to deposit in the post office, he had deposited the entire retirement benefits with the 2^nd opposite party.  The 1^st complainant was receiving a sum of Rs.13,500/- for every quarterly through the deposit amount.  Normally he used to go to the post office and withdraw the money.  Since he is an aged person, he permitted the 1^st opposite party to withdraw the interest amount alone from his account, on his behalf.  After sometime, he had also entrusted the post office passbook and the withdrawal challan to the 1^st opposite party.  The complainant was receiving the interest amount from the 2^nd opposite party, through the 1^st opposite party till January 2012.  Since he did not receive the interest amount from the 2^nd opposite party for the period from March 2012, he approached the 2^nd opposite party and upon enquiry he found that the entire sum of money deposited with the 2^nd opposite party was withdrawn as early as on 18.1.2008, and the amount withdrawn was Rs.591000/- after deducting the preclosure amount.  Since the complainant had not withdrawn the money, he had confronted with the 1^st opposite party in this regard.  But the 1^st opposite party initially gave lame excuses, and finally had admitted her guilt and informed that she had withdrawn the amount and used the money to finance her daughter viz.Mrs.Vanisree, who is at Singapore.  The 1^st opposite party had also issued two cheques bearing No.944630 & 944631 dt.30.7.3012, drawn on State Bank of India, and also requested the complainant to deposit the said cheques for clearance on 30.10.2012.  Meanwhile, the 1^st opposite party on 17.8.2012 had executed an undertaking on a  Rs.20/- Non judicial stamp paper, by admitting  the fraud played by her upon the complainant in connivance  with the officials of the 2^nd opposite party,  and had further informed that she  would dispose of her property and settle  the complainant’s dues.  Believing the words of the 1^st opposite party, the complainant had deposited the cheque for collection on 30.10.2012, but said cheques were dishonoured for insufficient funds.  When the complainant tried to contact the 1^st opposite party, she was evading the complainant.  Hence the complaint was filed as against the 1^st opposite party u/s.138 of Negotiable Instruments Act.  The complainant had also initiated a private complaint as against the 1^st opposite party under the provisions of Sec.200 CrPC.  The complainant had also preferred complaint as against the 1^st and 2^nd opposite parties’ unknown officials under Sec.156(3) of CrPC before the Judicial Magistrate, Thiruvottiyur, Chennai, praying for registration of FIR and pursuant to the direction given by the Judicial Magistrate in the said complaint the Inspector of Police, had registered a FIR in Cr.No.587/2013 against the 1^st opposite party and the unknown officials of the 2^nd opposite party.  The 2^nd opposite party being the Postal Department, is duty bound to take care of the deposits of the customers and should act in accordance with law for the time being in force.  The withdrawal of the deposit could not be facilitated without the connivance and collusion of the officials of the 2^nd opposite party with the 1^st opposite party.  Thus both the opposite parties have committed unfair trade practice as well as deficiency in service.  Thus alleging negligence on the part of the opposite parties, the complainant filed the present complaint, praying for the reliefs as stated supra. 

4.       The version of the 1^st opposite party in brief is as follows:

          The 1^st opposite party was a licensed postal agent and authorised to collect deposits from the parties.  Since 1989 the 1^st opposite party was a licensed agent, for her excellent service and sincerity she had received many awards from the department.  She knows the complainant for more than 20 years.  The complainant had deposited a sum of Rs.6 lakhs in the post office/2^nd opposite party, through the 1^st opposite party, and received the interest @Rs.13500/- every quarterly.  It is denied that the complainant handed over the passbook to her.  Every time during the withdrawal of interest amount, the complainant handed over the self addressed withdrawal form to the 1^st opposite party in the morning and collected the money in the evening from the 1^st opposite party at the post office.  The 1^st opposite party requested the complainant to lend money to repay her debts, the complainant told that he did not have money at present, so he will close the deposit amount of Rs.6 lakhs and lend the same for interest as paid by the post office.  The complainant himself signed the withdrawal form to collect the pre-closure amount and lend the same to the 1^st opposite party.  The complainant also had received the interest amount every quarterly, from 18.3.2008 till 18.7.2012.  Therefore, the statement of the complainant that he did not receive any interest from March 2012 is totally false.  On 18.7.2012, after receiving the interest amount, the complainant told that his son and daughter had quarrelled with him as to how he could lend money to the 1^st opposite party.   Therefore, the complainant asked the 1^st opposite party to issue a cheque as a security, and at the request of the complainant only, the 1^st opposite party handed over two cheques of Rs.3 lakhs each.  The complainant asked the 1^st opposite party not to mention the date in the cheque.  But after one month from the date of receiving the cheque, the complainant alongwith her family member came to the 1^st opposite party, and threatened her to execute a bond for the liability.  The complainant’s family had also beaten the 1^st opposite party and threatened her to execute a bond as dictated by them.  The 1^st opposite party husband also made a complaint to the police station.  Thus denying entire allegations, prayed for dismissal of the complaint. 

 

5.       The version of the 2^nd opposite party in brief is as follows:

            The complaint is neither maintainable in law or on facts.  The definition given under the Consumer Protection Act is very clear, that there must be deficiency in service.  But the complaint is not about the deficiency in service and it is about the fraud played on him by the 1^st opposite party.  Therefore the complainant approached the wrong forum, which has no jurisdiction, hence it is liable to be dismissed.  The 1^st opposite party is not a licensed agent of the 2^nd opposite party.  The 1^st opposite party was appointed by the Block Development Officer, Puzhal Block, Chennai-66, as an authorised agent for the sale of Small Savings securities under National Savings Organization.  Thus the 1^st opposite party was appointed as an agent under Standardized Agency System by the State Government and not by the Postal Department as stated by the complainant.  The complaint is filed without impleading the necessary party.  The complainant had deposited a sum of Rs.6,00,000/- under SCSS A/c.No.20233453 in Thiruvottiyur Post Office.  It is the duty of the complainant to verify about the 1^st opposite party and about her license with the post office.  But the complainant on his own risk had entrusted the PO SB passbook and withdrawal challan with the 1^st opposite party.  By using the challan, the 1^st opposite party had withdrawn the money, for which the 2^nd opposite party is not liable.  From the complaint it is clear that the pass book of the complainant was entrusted with the 1^st opposite party always.  Hence the complainant alone is responsible for his own act, which is no way connected with the 2^nd opposite party.  The Rule 15 of the Post Office Savings Bank General Rules, 1981 is very clear about the responsibility of the Savings Bank.  The Post Office shall not be responsible to a defaulter for any fraudulent withdrawal by a person who obtains possession of the pass book or a cheque from the cheque book of the defaulter.  The complainant had been receiving the interest from the 2^nd opposite party through the 1^st opposite party till January 2012 is totally denied, as the amount of the complainant is prematurely closed for Rs.591000/- on 18.1.2008.  The complainant himself had stated that the 1^st opposite party had admitted her guilt that she had used the amount to finance her daughter.   Therefore, the 2^nd opposite party cannot be held responsible for the fraud committed by the 1^st opposite party.  Thus they sought for dismissal of the complaint. 

 

6.       In support of the case, alongwith proof affidavit, documents are filed, which are marked as Ex.A1 to A12 on the side of the complainant and Ex.B1 to B13 on the side of the 2^nd opposite party.  

 

7.       It is the case of the complainant, that the deceased complainants had deposited a sum of Rs.6 lakhs on 10.1.2007, with the 2^nd opposite party post office, through the first opposite party, who was a licensed postal agent and was known to the complainant for 20 years.  The 1^st complainant was receiving a sum of Rs.13,500/- for every quarterly.  Initially the deceased 1^st complainant used to go to the Post Office to withdraw the amount.  Due to his old age, since he found it difficult to go to post office to withdraw the money, he permitted the 1^st opposite party to withdraw the interest amount alone from his account, on his behalf and over a period of time the complainant had entrusted the post office pass book with the 1^st opposite party, and had handed over the withdrawal challan to the 1^st opposite party to facilitate the withdrawal of the interest amount.  The complainant was receiving interest from the 2^nd opposite party, till January 2012.  Thereafter, the complainant has not received the interest from the 2^nd opposite party.  Hence the complainant had approached the 2^nd opposite party, and upon enquiry the deceased first complainant came to know that the entire amount deposited by the complainant with the 2^nd opposite party was withdrawn as early as on 18.1.2008 and the amount so withdrawn was Rs.5,91,000/-.  Since the complainant had not withdrawn the amount, the deceased 1^st complainant had confrontation with the 1^st opposite party.  Though the 1^st opposite party had given lame excuses in the beginning, later she had admitted her guilt, stating that she had pre-closed the deposit of the complainant held with the 2^nd opposite party and withdrawn a sum of Rs.5,91,000/- after deducting the pre-closure amount.  She had also executed an undertaking/ admission on a Rs.20/- Non-Judicial Stamp Paper, admitting the fraud played by her upon the complainant in connivance with the officials of the 2^nd opposite party, and had further informed the complainant that she would dispose of her property and settle the complainant’s dues.  She had also issued two cheques each for Rs.3 lakhs in favour of the 1^st complainant.  When the said cheque was presented for collection the same were returned dishonoured.  Based on the representation sent by the complainant to the 2^nd opposite party, a complaint was filed by the 2^nd opposite party, and FIR has been registered with the CBI authorities, under FIR No.RCMA1 2012 A0054, as against the 1^st opposite party, as well a against Shri G.Ashok Kumar, Assistant Sub-Post Maser, Sub-Post Office, Thiruvottiyur, Shri T.S,Mani, the then Assistant Sub Postmaster, Smt.C.Shanthi, then Postal Assistant, Tiruvottiyur and Smr.R.Kalyani, Postal Assistant. 

          Therefore, now it is the contention of the complainant that the official of the 2^nd opposite party had aided, connived and conspired with the 1^st opposite party in forging the signature of the complainant to withdraw the amount from the deposit made by the complainant, by pre-closing the account.  Therefore, there is a gross negligence on the part of the 2^nd opposite party in allowing the 1^st opposite party, who is the Postal Agent, to withdraw the amount from the deposit made by the complainant by pre-closing the account. 

 

8.       Further the counsel for the complainant also submitted that under the Income Tax Act, as well as under the rules and regulations framed under which the 2^nd opposite party is functioning, the 2^nd opposite party is not empowered to allow cash withdrawals beyond Rs.20000/-.  Whereas in the instant case, a sum of Rs.5,91,000/- was paid by cash to the 2^nd opposite party, which would clearly prove the involvement of the postal staffs in allowing the 1^st opposite party to withdraw the amount by pre-closing the deposit which was made by the complainant. 

 

9.       But it is the submission of the counsel for 2^nd opposite party that the 1^st opposite party was not appointed as an agent by the Postal Department.  She was appointed by the Block Development Officer, Puzhal Block, Chennai-66, as an authorised agent for the sale of small savings securities, under National Savings Organisation.  The 1^st opposite party is appointed as an agent under Standard Agency System by the Statement Government, and not by the Postal department.  The agent is authorised to transact business under POD, CSV, KVP, MIS and NSS 92 schemes and she will claim commission from Regional Director, National Saving madras, through DSO,NSO, Thiruvallur.    Therefore, for the act of the 1^st opposite party, 2^nd opposite party/ Postal Department cannot be held responsible.  Further the complainant on his own risk, had   entrusted the Post Office passbook with the 1^st opposite party and he had also handed over the withdrawal challan to the 1^st opposite party, and by using this withdrawal challan the 1^st opposite party had withdrawn the money.  Now the allegation of the complainant is that the 1^st opposite party by forging the signature of the complainant, with the connivance and aid of the some of the staff of the 2^nd opposite party, had withdrawn the amount by pre-closing the deposit.  Since the said allegation of the complainant is criminal in nature, the issue cannot be decided before this consumer commission. 

          That the counsel for the 2^nd opposite party had also submitted that since some of the staff names of the 2^nd opposite party were found in the FIR, it cannot be concluded at this stage, whether they aided the 1^st opposite party to commit the offence.

          Further the counsel for the 2^nd opposite party had also invited the attention of this court to Rule 15 of The Post Office Savings Bank General Rules 1981, submitted that the Post Office Savings Bank shall not be responsible to a depositor for any fraudulent withdrawal by a person obtaining possession of the pass book or a cheque from the cheque book of the depositor.  Thus they sought for dismissal of the complaint. 

 

10.     The counsel appearing for the 1^st opposite party had also made a detailed submission by adverting to the version filed by them.  It is the specific submission of the counsel for the 1^st opposite party that she was a licensed Postal Agent and authorised to collect deposits from the parties.  Actually the 1^st opposite party requested the complainant to lend money to repay her debts.  But the complainant told that he did not have money and he will close the deposit amount of Rs.6,00,000/- and lend the same amount for interest as paid by the Post Office.  Thereafter the complainant himself signed in the withdrawal form dt.18.1.2008 to collect the preclosure amount of Rs.5,91,000/- and lend the same amount to the 1^st opposite party.  Later the son and daughter of the complainant quarrelled with them as to how the 1^st complainant had lent the money to the 1^st opposite party, they also changed the entire episode and lodged a complaint against the 1^st opposite party.  Therefore, no case has been made out by the complainant to decide the issue before the consumer commission. 

 

11.     In view of the submissions made by the counsel appearing for the respective parties, the following questions fall for consideration:

          1.       Whether the issue involved in this case can be decided by the consumer commission?

          2.       If so, whether there is deficiency of service on the part of the opposite parties?

          Since both the questions are inter-related to each other, we are dealing with the same simultaneously.

12.     POINT NO.1 & 2:

          It is the main defence of the 2^nd opposite party  that the 1^st opposite party is not the agent of the Postal Department and she was an Agent under Standard Agency System by the State Government.  Hence for the act of the 1^st opposite party, 2^nd opposite party / Postal Department cannot be held responsible.  Further it is the complainant who on his own risk had entrusted the Post Office Savings Bank pass book and withdrawal challan with the 1^st opposite party, and the 1^st opposite party by forging the signature of the complainant in the withdrawal challan, had withdrawn the deposit amount, and as such the dispute is criminal in nature.  Therefore, the consumer commission cannot decide the issue.  Further as per Rule 15 of The Post Office Savings Bank General Rules, 1981 for fraudulent withdrawal, Post Office Savings Bank cannot be held responsible. Therefore, the 2^nd opposite party cannot be held responsible for the act of the 1^st opposite party.  

But we are not inclined to accept the submission made by the counsel for the 2^nd opposite party for the following reason:

1. The 1^st complainant had deposited a sum of Rs.6 lakhs on 10.1.2007.  On 18.1.2008 the amount was allowed to be withdrawn by the 1^st opposite party by pre-closing the deposit, without any authorisation from the complainant and that too without the presence of the depositor. 
2. The complainant had given complaint to the 2^nd opposite party as against the 1^st opposite party and unknown official of the 2^nd opposite party.  But the Senior Superintendent of Police, while lodging the complaint with the CBI, specifically mentioned 4 names of the officials of the 2^nd opposite party, with a request to register the case against them. 
3. At the time of preclosing the account, the 2^nd opposite party had neither chosen to verify the signature of the complainant, nor made an attempt to verify with the complainant as to whether he instructed the 1^st opposite party to pre-close the deposit.  The 2^nd opposite party being the Postal Department, is duty bound to take care of the deposits of the customer and act in accordance with law, since the opposite party was entrusted with the duty and responsibility of verifying the authenticity of the signature of the customers at the time of cash withdrawals.  But the 2^nd opposite party, without doing so had allowed the 1^st opposite party to pre-close the deposit.  Therefore, by merely saying that the issue is criminal nature, the 2^nd opposite party cannot shed their liability for the negligence committed by them.  Therefore, there is deficiency in service on the part of the 2^nd opposite party. 

 

4. It is the specific case of the complainant that a sum of Rs.5,91,000/- was paid by cash by the 2^nd opposite party, though they are not empowered to allow cash withdrawals beyond Rs.20000/-.  This was not denied by the 2^nd opposite party.  Therefore, paying the pre-closed deposit amount of Rs.5,91,000/- in cash would clearly establish the deficiency of service, on the part of the 2^nd opposite party. 

 

 

5. Though it is the contention of the 2^nd opposite party that the 1^st opposite party was not appointed as agent by the Postal Department, and she was appointed by Block Development Officer as an authorised agent and as such she is an agent under Standard Agency System by the State Government, we are of the opinion that when there is an apparent negligence on the part of the Postal Department, they can be held liable for the loss suffered by the complainant and a liberty may be given to the Postal Department to recover the amount from the erring staff, as well as from the 1^st opposite party who is responsible for such loss. 

13.     In the result, the complaint is allowed in part, and the 2^nd opposite party is directed to refund the sum of Rs.6 lakhs,  alongwith interest @ 9% p.a., from the date of complaint, till payment, alongwith compensation of Rs.2 lakhs towards mental agony  and cost of Rs.25000/-.  Time for compliance two months, from the date of receipt of copy of the order, failing which the amount awarded as above shall carry further interest @6% p.a., from the date of default, till realisation.

          The 2^nd opposite party is at liberty to recover the amount from the erring officials and from the 1^st opposite party.

           

            R  VENKATESAPERUMAL                                            R SUBBIAH     

                       MEMBER                                                          PRESIDENT

 

Exhibits filed on the side of complainant

A1    10.01.2007 Copy of passbook issued by OP2

A2    30.07.2012 Copy of dishonoured cheques by OP1

A3    17.08.2012 Admission of guilt by OP1

A4    01.11.2012 Copy of cheque return memo

A5    26.11.2012 Copy of complaints to sent to statutory authorities

A6    27.11.2012 Legal notice to 1^st OP u/s.138(b) of NI Act

A7    29.11.2012 Acknowledgement card for 138(b) Notice

A8    01.12.2012 Copy of notices to Ops for deficiency of service

A9    03.12.2012 Acknowledgement card

A10  04.12.2012 Refused cover containing deficiency of notice by OP1

A11  04.12.2012 Reply by 1^st OP for 138 (b) Notice

A12  25.05.2013  Copy of FIR in Cr.No.587/2013

 

 

 

 

Exhibits filed on the side of  Opposite party:  ….Nil……

B1                         Post Office Savings Bank General Rules 1981-Rule 15

B2      03.11.1989   Certificate of Authority by Block Development Officer, Puzhal

B3      02.11.1992            -do-

B4      12.06.1995            -do-

B5      07.12.1998            -do

B6          .06.2004            -do-

B7      18.06.2007            -do-

B8      29.06.2010            -do-

B9      10.01.2007   Application form for opening SCSS account of complainant

B10    18.01.2008   Withdrawal form for closure of SCSS Account

B11    23.04.2010   Post Office Savings Bank order

B12    10.02.2012            -do-

B13    20.12.2012   CBI FIR No.RC MA 1 2012 A 0054

 

 

 

 

  R  VENKATESAPERUMAL                                                                R SUBBIAH     

           MEMBER                                                                                  PRESIDENT

 

 

INDEX : YES / NO

Rsh/d/rsj/ Open court