KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the order and judgement dated 16/12/2022, passed by the Ld. DCDRC, Jalpaiguri in Consumer Case no. 28/2022.

Brief facts of the Appellant/OP 2’s case is that, the Respondent no.1/Complainant, being an employee of the Karala Valley Tea Garden, under Kotwali PS, within the district of Jalpaiguri and belonging to the below poverty category, had a Provident Fund Account being no. W.B.995/1903, with the Respondent no.2/OP no.1. On January 2017, the marriage of the Respondent no.1/Complainant’s daughter, had been settled and the date had been fixed in the month of March, 2017. She had then approached the Respondent no.2/OP no.1, through her employer, to advance an amount for arranging her daughter’s marriage. After some time, the Respondent no. 2/OP no.1, had intimated her that an amount of Rs.24,500/- (Rupees twenty-four thousand five hundred) only, had been sanctioned, as advance against her P.F. Account. The Respondent no. 1/Complainant, then submitted the loan application before the Respondent no.2/OP no.1, along with her S.B. Account no. 4000251010002545, lying with Respondent no.3/Bank/OP no.3, for transferring the above advance. After receiving information from the Respondent no.2/OP no.1, she visited the Respondent no.3/OP no.3 Branch, for enquiring about the advance amount. The Respondent no.1/Complainant, repeatedly visited the office of the Respondent no. 2/ OP 1 and Respondent no.3/OP no.3 Branch, prior to the marriage ceremony of her daughter, but she was merely asked to enquire from the above Respondents. Having failed to receive the advance amount in time for the marriage of her daughter, the Respondent no.1/Complainant, was compelled to obtain loan from a private person for an amount of Rs. 25,000/- (Rupees twenty-five thousand) only @ 5% interest per month. In the month of May, 2017 as per the advice of Respondent no.2/OP no.1, the Respondent no.1/Complainant, visited the branch office of the Appellant/OP no.2., as the Appellant/OP no.2 was the banker of the Respondent no.2/OP no.1. But the Appellant/OP no.2 intimated that the amount had been erroneously credited to A/c. No. 4000251010002550, due to system error instead of her A/c.

Even after the passage of long time no fruitful result could be found for which reason the Respondent no.1/Complainant, sent a representation to the Respondent no.2/OP no.1 through her employer, Sr. Manager, Karala Valley Tea Garden, PO Mohit Nagar, Dist. Jalpaiguri, for redressal but the Respondent no.2/OP no.1, failed to redress her grievance. Thereafter, on many occasions she visited offices of the Appellant/OP no.2 as well as the Respondent/OP no.1 and the Respondent no.3/OP no.3, but with no relief. Finding no alternative, she issued a Legal Notice dated 05/10/2018 to the Respondent no.2/OP no.1, with copies to the Appellant/Respondent no.2 and the Respondent no.3/OP no.3. Inspite of receiving the Notice no initiative was taken to redress her grievances. On the other hand, she was subjected to misbehavior by the staff of the above branches.

During the period of pandemic, the Respondent no.1/Complainant, being unable to pay the interest on her borrowed amount, was subjected to abuse and defamation in public place, by the private financier. After the pandemic the Respondent no.1/Complainant, issued Legal Notice dated 14/01/2022, to all the parties. The Respondent no.3/OP no.3 intimated the Appellant/OP no.2, vide their letter dated 14/02/2022, informing that they had freezed   the account no. 4000251010002550 on 02/2/2022 and that the Account did not have any sufficient balance. The Respondent no.2/OP no.1, also gave instruction to Appellant/OP no.2, vide their letters dated 18/01/2022 and 06/04/2022 for taking immediate measures for crediting the above amount of Rs.24,500/-(Rupees twenty-four thousand five hundred) only to the Bank Account of the Respondent no.1/Complainant. But the Appellant/OP no.2 did not pay any heed. Finding no alternative, the Respondent no.1/Complainant lodged this case before the Ld. DCDRC, Jalpaiguri.

The Respondent no.2/OP no.1 entered appearance by filing written version, wherein it was stated that the funds of the Employees’ Provident Fund were maintained by the Appellant/Bank/OP no.2. The loan of the Respondent no.1/Complainant had been sanctioned by issuing a cheque bearing no.099211 dated 07/02/2017, amounting to Rs. 24,500/- (Rupees twenty-four thousand five hundred) only, to the Appellant/Bank/OP no.2, for crediting in the SB Account no. 4000251010002545 in Respondent no.3/OP no.3 Branch. But the Appellant/OP no.2 Bank, had inadvertently credited the said amount in SB A/c. No. 4000251010002550, depriving the Respondent no.1/Complainant for getting her legitimate amount, which had also been admitted by the Appellant/OP no.2 Bank, in their letter dated 09/05/2017. On receipt of the said letter, the Respondent no2/OP no.1 had sent a letter dated 10/07/2017 to the Appellant/OP no.2/Bank. On receipt of the Legal Notice dated 18/01/2022, the Assistant P.F. Commissioner, EPFO, Jalpaiguri sent a letter to the Appellant/OP no.2 Bank, stating that the Respondent no.3/OP no.3 branch, had not transferred the amount of Rs.24,500/- (Rupees twenty-four thousand five hundred) only, from the account where they said, had been wrongly transferred. Thereafter, it was prayed that the Respondent no.2/OP no.1, be absolved from any negligence committed by the other banks.

The Appellant/OP no.2 Bank entered appearance by filing written version, wherein it was stated that immediately on realizing the error, the Appellant/OP no.2/Bank had instructed on 09/05/2017, to recover the amount which had been wrongly credited in the SB A/c. no. 4000251010002550. But the Respondent no.3/OP no.3 branch, did not take any steps to recover the said till 01/02/2022 and had informed the Respondent no.1/Complainant   and the Appellant/OP no.2 Bank, that they were unable to recover the said amount, as the Account did not have sufficient balance. Furthermore, it was mentioned that the instant case was not applicable against them as the Respondent no.1/Complainant was not consumer of the Appellant/OP. no.2/Bank.

Respondent no.3/OP no.3 entered appearance by filing written version, wherein it was stated neither any information nor any letter had been received from the Appellant/OP no.2/Bank on 09/05/2017 and only after receiving the letter dated 20/01/2022, the Account No. 4000251010002550 had been freezed, but as the A/c did not have any sufficient balance the matter had been intimated to all the concerned parties. Hence, no cause of action arose against the Respondent no.3/OP no.3. 

After going through the evidence on record and hearing the parties the Ld. DCDRC, Jalpaiguri in Consumer Case no. 28/2022 passed the impugned order dismissing the case on contest but without cost.

Being aggrieved by the above order the Appellant preferred this instant appeal on the ground that the Ld. DCDRC, Jalpaiguri in Consumer Case no. 28/2022 erred in law and facts while passing the impugned order.

                                                                      Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing, had mainly argued on the legal aspect of whether the dispute under the EPF Act could be governed by the provisions of the Consumer Protection Act on the ground that the EPF Authority being a public authority directly under the management of the State, was not service provider and therefore the beneficiaries were not consumers. That apart there was codified process for redressal of the grievances under the EPF Act. Moreover, the judgement relied on by the Ld. DCDRC, Jalpaiguri was irrelevant in the present case, inasmuch as the judgement was based on the vicarious liability of an institution for the actions of their employees, whereas there was no employer employee relationship in the instant case. He had relied in the judgement passed by the Hon’ble NCDRC in State Bank of Hyderabad Vs. Konbareddygari, Adi Narayanareddi & Anr. and prayed for allowing the appeal.

Ld. Advocate for the Respondent no.1, on the other hand, had countered that the Appellant had never raised this issue before the Ld. DCDRC, Jalpaiguri and was therefore estopped from raising this issue, as the maintainability point included legal as well as factual aspects. He had relied in the judgement passed in Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia and State of Karnataka Vs. Vishwa Bharati House Building Cooperative Society & Ors. reported in (2003) 2 SCC 412.

At the very outset, the argument raised on behalf of the Respondent no.1 that the maintainability point should not be addressed at the appeal stage, needs to be dealt with. The argument forwarded in this aspect in favour of the maintainability point, it transpires that no factual aspect was raised and only the legal aspect of whether the dispute under the EPF Act can be decided by a Consumer Forum. Under the circumstance, this argument on behalf of the Respondent no.1 cannot be sustained.

However, the ruling relied on behalf of the Appellant in support of the contention, passed by the Hon’ble NCDRC in State Bank of Hyderabad Vs. Konbareddygari, Adi Narayanareddi & Anr. cannot be said to support the above contention, on the ground that the judgement had been passed in a dispute between public sector employee for payment of his GPF and Gratuity and other terminal benefits, whereas there is no employer employee relationship in the case in hand. On the contrary, the Hon’ble Supreme Court had settled the law for the dispute in the instant case, where it opined in Regional Provident Fund Commissioner Vs. Shib Kumar Joshi reported in (2000) 1 SCC 98, that the member was a consumer within the meaning of section 2 (1) (d) of the Act. Therefore, the instant dispute would qualify to be governed under the provisions of the Consumer Protection Act, 2019 also. Hence the main dispute is decided against the Appellant.

As regards the factual aspects, it is more or less admitted that the Appellant was negligent in not only dispensing the service, but also obstinately refused to redress the same, causing pain and agony to the Respondent no.1/Consumer who not only had been deprived of her legitimate amount of money, but also had to take recourse to the private financier and had to suffer the vagaries attached with such act. Under the circumstance, the impugned judgement does not suffer from any illegality or irregularity. Consequently, the appeal fails.

                                                                 It is therefore

                                                                  ORDERED

That the instant appeal be and the same is dismissed on contest but without cost.

The impugned order is hereby upheld.

Copy of the order be handed over to the parties free of cost.

Copy of the order be handed over to the Ld. DCDRC, Jalpaiguri for information.

Statutory amount deposited be returned from whom received.

Jt. Registrar, Siliguri Circuit Bench of WBSCDRC to do the needful.