It has to be stated that on the face of Ext.A2 there is nothing to show that Bank had even the slightest doubt that complainant was not a subscriber of the Pension Scheme. Ext.A2 is a hand written letter in the letter head of the Bank. It is not a printed form. <br /> 7. Opposite party admits conduct of Akshaya Nidhi Pension Scheme. It is relevant to note that though opposite party contends that Akshaya Nidhi Pension Scheme is different from Akshaya Nidhi Scheme, opposite party has not stated the terms, conditions and benefits of these two Schemes. Even the interest rate applicable has not been disclosed. If the two schemes are entirely different as contended by opposite party then opposite party ought to have produced the practical details of these Schemes. Akshaya Nidhi Pension Scheme by it's name itself indicates that it entangles some pension as benefit of the scheme. The manner in which such pension was derived and paid to the subscriber is not brought out in evidence by opposite party. Further though opposite party contends that the Pension Scheme was stopped with effect from 31-3-2004, opposite party has not produced any evidence to support this contention apart from the vague affirmation in the affidavit. In effect, there is no reliable evidence placed before us by opposite party to prove that Akshaya Nidhi Pension Scheme is totally different from Akshaya Nidhi Scheme.<br /> 8. Another aspect that needs mention here is the contention of the complainant that at the time of joining the Pension Scheme the account started by him was AND a/c No.1102. Ext.A8 is the transaction history of AND a/c No.1102 for the period 26-5-1999 to 26-4-2004. A total amount of Rs.1,56,000/- has been deposited by way of monthly remittances of Rs.2,600/- over a period of five years. Ext.B1 is a pass book produced by opposite party contending to be the specimen pass book of Akshaya Nidhi Pension Scheme. On perusal it is seen that Ext.B1 is Akshaya Nidhi Deposit Pass Book. In the first page of Ext.B1 the words 'Akshaya Nidhi' has been scored off. No explanation is given for scoring these words. On the outer cover it is boldly printed Akshaya Nidhi Deposit Pass Book. In all the pages inside B1 it is printed as 'A.N.D. A/c No......'. This means Bank was issuing the same pass book to Akshaya Nidhi Scheme subscribers as well as Akshaya Nidhi Pension Scheme subscribers. So the account numbers issued to both these Schemes, even if they are two different Schemes as contended by opposite party, were A.N.D. Accounts. In Ext.A2, Bank has noted this account number and has stated that the pension for A.N.D. A/c No.1102 is not payable since the Pension Scheme has been stopped. It can be safely concluded that there is no specifically identifiable account number issued by Bank to a subscriber of Akshaya Nidhi Pension Scheme which makes him different from the subscriber of Akshaya Nidhi Deposit Scheme. Further in para 2 of counter affidavit although Bank affirms that Akshaya Nidhi Deposit account No.1102 is not an Akshaya Nidhi Scheme in the same para Bank contradicts this statement by affirming that complainant made remittances in AND account No.1102 towards Akshaya Nidhi Scheme. These only lead to the probability that complainant was a subscriber of Akshaya Nidhi Pension Scheme.<br /> 9. We have to reiterate that Bank has not even pleaded the essential details of the Akshaya Nidhi Pension Scheme or for that matter, the Akshaya Nidhi Deposit Scheme. With a view to gather information about the Pension Scheme complainant issued a petition to the Chief Executive Officer of the Bank prior to filing of this complaint purported to be under Sec.6 of Right of Information Act. Copy of this letter is produced and marked as Ext.A6. In Ext.A6 the information and documents sought for by the complainant can be stated as follows:<br /> (i) Whether there has been any decision by the Director Board in respect of <br /> Akshaya Nidhi Pension Scheme on 26-5-1999 or before that. If so a copy.<br /> (ii) It is said that the Pension Scheme has been stopped on 31-3-2004. The reasons for slopping the scheme. If the said decision was taken upon instructions of any other person, the copy of such instructions. The requisite fee will be paid.<br /> 10. To these enquiries the Chief Executive Officer of the Bank has replied by Ext.A7. In Ext.A7 it is stated that complainant has not joined the Akshaya Nidhi Pension Scheme conducted by the Bank from 26-5-1999. That as per Akshaya Nidhi Deposit a/c No.1102 complainant has joined Akshaya Nidhi Serial Scheme. Since complainant has deposited Rs.2,600/- per month he is entitled to get Rs.2,34,000/- on maturity date which is 26-5-2004. The deposit will not carry interest after maturity date. That Bank regrets for wrongly issuing the notice that was to be issued to persons included in Pension Scheme. That on perusal of records it is seen that there has not been any Director Board decision on 26-5-1999 or before or after this date in regard to the Pension Scheme. That since complainant is not included in the Pension Scheme the records prior to 10 years have not been perused. That the Scheme has not been stopped on 31-5-2004. That all deposits will carry interest as per the circular of Co-operative Registrar. That since no copies of documents are furnished there is no necessity to pay any fees.<br /> <br /> 11. Apparently the venture of the complainant to gather essentials of the Pension Scheme has miserably failed. In Ext.A7 also opposite party does not candidly state what is the interest rate applicable to both these Schemes and how far they are different, if different from each other.<br /> <br /> 12. In the continuous effort by the complainant to bring out the details regarding his investment, he filed I.A.No.7/08 seeking direction to opposite party to produce documents before the Forum in respect of the rules and regulations of the Pension Scheme and also to produce the register of the subscribers of the Pension Scheme maintained in the Bank for the period 26-5-1999 to 31-3-2004. In reply to this, Bank filed an affidavit on 9-4-2008 and also produced Ext.B1 document. In this affidavit it is sworn that Ext.B1 is the specimen pass book and contains the rules and regulations of Akshaya Nidhi Pension Scheme. With regard to the direction to produce the register of subscribers of the Pension Scheme it is affirmed that Bank is unable to disclose the same as it would be violation of the Bank's confidentiality norms towards it's customers. In para 3 of this affidavit Bank further affirms that complainant's name does not appear in the group of subscribers to the Pension Scheme. At the cost of repetition it has to be stated that Ext.B1 which is purported tobe specimen Pass book of Akshaya Nidhi Pension Scheme does not contain any rules and regulations. As a matter of fact, as already discussed Ext.B1 is Akshaya Nidhi Deposit Pass book. It does not contain any rules or regulations about the Pension Scheme or the Deposit Scheme. Thus opposite party has not produced the rules and regulations of the Pension Scheme despite the order of this Forum. Opposite party has refrained from producing the register of subscribers of the Pension Scheme raising the contention that it would violate their duty of secrecy towards customers.<br /> <br /> 13. We have given careful consideration of this contention raised by opposite party. In our view, the Bank has a duty of secrecy as well as a duty of disclosure. The circumstances where the Bank's obligation to maintain secrecy is not absolute and occasions when disclosure would be justified can be roughly stated as under:<br /> (i) Where the disclosure is under compulsion of law.<br /> (ii) Where there is a duty to the public to disclose.<br /> (iii) Where the interests of the Bank requires disclosure.<br /> (iv) Where the disclosure is made with the express or implied consent <br /> of the customer.<br /> In 'Tananan's Banking-Law and Practice in India by M.L.Tannan 21st edition Reprint 2006 page 287 it is stated that a banker is obliged to disclose particulars of his customer's account when he is compelled by Court to do so. A similar question came up for discussion in Consumer Protection Council Vs. National Diary Development Board 1991 (2) CPJ 617 Gujarat SCDRC. The complainant in that case was unable to make out it's case without the information sought for. It was held that the consumer had the right to the requisite information. The right of information of the consumer does not only operate at the stage of entering into contract for goods and services but it is also extended to the stage of redressal of his consumer dispute. For the foregoing reasons we find that Bank was not justified in refraining to produce the register. Apart from refraining to produce the register Bank has withheld vital information and evidence regarding rules and regulations of Akshaya Nidhi Pension Scheme. Once the parties are aware of the facts in issue it is for them to come forward with the best available evidence to help the Forum arrive at a just conclusion. When a party has a document/evidence and fails to produce it, such party cannot take shelter under the abstract doctrine of burden of proof. In the set of circumstances, we have no hesitation to draw adverse inference against opposite parties. Further as already discussed Ext.A2 and Ext.B1 substantiates the consistent case of the complainant to be probable and believable.<br /> <br /> 14. One of the other argument raised on behalf of opposite party is that the evidence tendered by the power of attorney holder of the complainant cannot be accepted since he has no direct knowledge of the facts of the case. Needless to say that Consumer Protection Act envisages on alternative system of Consumer justice by summary adjudication. In Ext.A1 complainant has constituted his brother to be his lawful attorney/agent since he intends to go abroad. 'Agent' is defined in the Kerala Consumer Protection Ruels 2005 as “a person duly authorised by a party to appear and to institute or file any complaint, appeal or revision or other petition or reply and to conduct the same on his behalf before the District Forum or the State Commission'. The Hon'ble Apex Commission has held in voluntary Organisationin Interest of Consumer Education (VOICE) Vs. The Registrar, Tamil Nadu SCDRC 2003 CTJ 682 (CP) NCDRC decided on 02-01-2003 that an authorised agent even has a right of audience before the Forum including the right to examine and cross examine a witness. In para 15 of the said judgment it is further held, “No form is prescribed for authorising an agent to appear before a Consumer forum. Authorisation can be by way of Special Power of Attorney executed on a non-judicial stamp paper or even on a plain paper duly attested. The power of attorney holder may even engage a counsel if authorised to do so”. It has been reieterated in a catena of cases that Consumer for a are to hold inquisitorial procedure and is not governed by the adversary system. For the foregoing reasons we do not find any impropriety in relying upon the evidence tendered by the power of attorney holder of complainant.<br /> <br /> 15. It has to be high lighted that Bank does not have a case that any document was provided to the complainant at the time of starting the A.N.D. a/c 1102. The whole issue arose since Bank failed to provide any document/literature to the complainant regarding the Scheme in which he has invested his money. In Ext.A7 opposite party has stated that complainant has joined in Akshaya Nidhi Serial Scheme. Further though Bank contends that both the Schemes are totally different it is proved that the same type of account number and pass books are provided to the subscribers of both these schemes. This practice gives the Bank sufficient chance to conveniently alter and shift it's liability of repayment towards a customer which according to us is highly illegal and arbitrary. From the materials and evidence placed before us we find that complainant has succeeded in establishing a case in his favour. We hold that complainant has joined the Akshaya Nidhi Pension Scheme on 26-5-1999. The denial of benefits of this Scheme to the complainant definitely amounts to deficiency in service. We find opposite parties deficient in service.<br /> <br /> 16. Point (ii):-<br /> The claim of complainant is to direct opposite party to pay Rs.1,01.400/- as arrears of pension from 27-4-2004 till 26-6-07 and also to direct opposite party to pay pension thereafter. In the alternative complainant prays for payment of Rs.78,000/- as arrears of pension from 27-6-04 to 26-9-2006 and also for Rs.2,34,000/- along with interest. With regard to the prayer for the payment of arrears of pension we consider that in the absence of cogent evidence to work out the details of the scheme it is not practical to allow this prayer. In Ext.A7 opposite party has stated that complainant is entitled to Rs.2,34,000/- as maturity value on 26-5-2004. This amount is to be definitely paid to the complainant. He has to be compensated for the deficiency also. In our view, the deficiency in service which is brought to light in this case is highly deceptive. The Bank which deals with public money has to be fair and open in it's dealings. Fair dealing requires that the service provider should not deliberately or unconsciously take advantage of the consumer. The general public looks upon a Bank as a safe place for deposit and investment. Honesty and Security should invariably be the motto in Banking service. Malafideness and lack of transparency is writ large in this case. We hold that this is a fit case to impose punitive interest of 15% per annum. According to us the payment of Rs.2,34,000/- along with interest @ 15% per annum from 26-5-2004 would meet the ends of justice.<br /> <br /> 17. In the result we allow the complaint and order opposite parties to jointly and severally pay a sum of Rs.2,34,000/- (Rupees Two lakh, thirty four thousand only) to the complainant along with interest @ 15% per annum from 26-5-2004 till payment together with costs of Rs.2,500/- (Rupees Two thousand five hundred only) within one month from the date of receipt of this order.<br /> <br /> Dated this 28th day of August, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A8<br /> Ext.A1 : Power of Attorney of the complainant. <br /> Ext.A2 : Letter dated, 12-7-04 by opposite party to complainant.<br /> Ext.A3 : Photo copy of the letter dated, 24-8-06 by complainant <br /> to 2nd opposite party.<br /> Ext.A4 : Lawyer notice dated 5-10-2006 by complainant's counsel<br /> to 1st opposite party.<br /> Ext.A5 : Reply notice dated, 19-10-2006 by opposite party's<br /> counsel to complainant's counsel.<br /> Ext.A6 : Photo copy of the request by complainant to Chief Executive<br /> Officer, Perintalmanna Service Co-op. Bank Ltd., Ptmna.<br /> Ext.A7 : Reply dated, 23-11-06 by Chief Executive Officer, Perintalmanna<br /> Service Co-op. Bank Ltd. Ptmna., to complainant.<br /> Ext.A8 : Debited Note issued by opposite party to complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1<br /> Ext.B1 : Specimen Pass Book.<br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER