DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 31st day of March 2023
C.C.39/2016
Complainant
Ajay Kumar,
S/o Jayaraj,
Chembayil Tharammal House,
Thirunilam Vayal,
Kallai (P O),
Kozhikode – 673 003.
(By. Adv. Sri. K. Shahzad)
Opposite Parties
1. Smt. Sofiya Lorens,
Post Office Mahila Pradhan Agent,
Recurring Deposit Scheme,
Kundungal Post Office,
Kozhikode-673 003.
- The Post Master,
Kundungal Post Office,
Kozhikode – 673 003.
(OP2- By.Adv.Sri. P.Rajeev)
3. The Senior Superintendent of Post Offices,
Calicut Division,Calicut - 673 005.
4. India Post,
Department of Posts,
Ministry of Communications & Information Technology,
Government of India, New Delihi-110001.
Suppl- 5.Deputy Director,
National Savings Organization,
Collectorate, Calicut -673 020.
(OP 5 impleaded as per order dated 06-07-2017 in IA 205/2017)
Suppl OP5 - By. Adv.Sri M.Jayadeep, Addl District Govt. pleader.
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
As a part of recurring deposit scheme, the 1st opposite party approached the complainant’s mother as the agent of the opposite parties 2,3 and 4 and promised that an amount of Rs. 80,000/- would be obtained if she deposited a sum of Rs. 1,000/- per month for a period of 5 years. Believing the assurance of the 1st opposite party, the complainant’s mother joined the deposit scheme. Thereafter the complainant also joined the recurring deposit and was allotted account number 2813510 on 11/11/2014. Thereafter his mother paid Rs. 1,000/- each every month till July 2015 for and on behalf of the complainant, total being Rs. 9,000/-. As and when payments were made, the first opposite party used to write the same upon the card to be retained by the depositor. The 1st opposite party thus made 9 entries of Rs. 1,000/- each totalling Rs. 9,000/-.
3. The 1st opposite party did not turn up to collect the deposit for the month of August 2015. It was revealed that the 1st opposite party cheated several persons by not remitting the amount collected in the post office. On enquiry in the post office, it was revealed that the account of the complainant was credited only with an amount of Rs. 2,000/- instead of Rs. 9,000/-. The complainant assumes collusion between the opposite parties in this regard. He was cheated. The complainant’s mother preferred a complaint in the police station.
4. The complainant has not received the amount which has been remitted to his account with the opposite parties so far. The 1st opposite party was working in the capacity as the agent of opposite parties 2 to 5 and they are vicariously liable for all the actions of the first opposite party. The opposite parties are jointly and severally liable for the loss and agony caused to the complainant. Hence the complaint to direct the opposite parties to return the amount of Rs. 9,000/- remitted by the complainant along with Rs. 5,000/- towards compensation for physical and mental agony and also the cost of the litigation.
5. The supplemental 5th opposite party was impleaded as per order dated 06-07-2017 in IA 205/2017.
6. The first opposite party was set ex-parte and others filed written version denying all the allegations and claims made against them.
7. The contentions in in the written version filed by opposite parties 2 to 4 jointly, in a nutshell, are as follows; The Post Office savings bank is an agency function performed by the Department of Posts for mobilizing money under the various National Small Savings Schemes. As a major share of the collection in the National Small Savings Schemes becomes available as loans to the respective State Governments, they also promote the same. Mahila Pradhan Kshetriya Bachat Yojana (MPKBY) is one of the said schemes. Under this scheme, Mahila Pradhan agents are appointed by the respective State Governments and attached to Post Offices. As per the scheme, post office is responsible for whatever is remitted by the agent to the post office and acknowledged in the relevant passbook with initials of the Postmaster and date stamp impression of the office. The first opposite party is a MPKBY agent appointed by and under the control of 5th opposite party. Several complaints against her were there and on finding that she was misappropriating the amounts entrusted by the depositors, the case was reported to the 5th opposite party to commence enquires at their level. On finding that there was substance in the allegation, she was suspended by the District Collector on 25/08/2015.
8. The maturity value for recurring deposit for Rs. 1,000/- denomination is Rs. 74,653/-. As per the post office records, two monthly instalments of Rs. 1,000 each, totalling Rs. 2,000/- were credited into the account during the period November 2014 and February 2015. The card is not connected with the post office, but is issued by NSO. The post office is not liable for any entry in this card. The complainant did not contact the post office to confirm the balance in his account. The allegation that opposite parties 2 to 4 cheated and committed grave breach of trust and misappropriated money etc are false and hence denied. With the above contentions, the opposite parties 2 to 4 pray for dismissal of the complaint.
9. According to the 5th opposite party, MPKBY agent is appointed as per the direction of the Central Government for recurring deposit scheme conducted by the postal department. They have taken action against the first opposite party and she was suspended from service with effect from 25/08/2015. Her suspension was published in the newspaper and complaint was lodged in the police station. The 5th opposite party has taken all necessary action. The receipt and payment of deposits, providing loan, premature closing etc are done by the postal authorities and the 5th opposite party has no liability regarding the deposits and withdrawal. It is, therefore, prayed to dismiss the complaint with costs.
10. The points that arise for determination in this complaint are;
(1). Whether there was any deficiency of service
on the part of the opposite parties, as alleged?
(2). Reliefs and costs.
11. Evidence consists of the oral evidence of PW1 and Exts A1 to A5 on the side of the complainant. RW1 was examined and Exts B1 to B11 were marked on the side of the opposite parties 3 and 4. No evidence was let in by the 2nd and 5th opposite parties.
12. We heard both sides. Brief argument notes were also filed.
13.Point No. 1: The complainant has approached this Commission alleging that the opposite parties have incurred deficiency in service in not releasing the proceeds under the recurring deposit account. The prayer is to direct the opposite parties to return the amount of Rs.9,000/- remitted by him in the recurring deposits account along with compensation of Rs.5,000/-.
14. The father of the complainant was examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the card (Form number ASLAAS-5), Ext A2 is the copy of the application under the Right to Information Act, Ext A3 is the reply to Ext A2, Ext A4 is the reply issued by the 3rd opposite party along with enclosure and Ext A5 is the copy of the certificate for Persons with Disabilities.
15. RW1 is the Assistant Superintendent of posts (outdoor) and he filed proof affidavit and deposed supporting and reiterating the contentions in the written version of the Postal Department. Ext B1 is the copy of the order dated 25-08-2015 of the District Collector suspending the 1st opposite party, Ext B2 is the copy of the letter dated 26-08-2015 of the Deputy Director, National Savings Organisation Kozhikode, Ext B3 is the copy of the Gazette notification number GSR 491(E) dated 11-07-2014, Ext B4 is the order dated 14-03-2014 regarding revision in interest rates of small savings scheme, Ext B5 is the copy of chapter VI of the Govt. Savings Banks Act 1873, Ext B6 is the copy of the RD Journal of account number 2813510, Ext B7 is the copy of the relevant pages of the pass book, Ext B8 is the copy of the relevant pages of the Govt. Savings Banks Act 1873, Ext B9 is the letter dated 16-12-2020 issued to the complainant by the senior Superintendent of Post Offices Calicut Division, Ext B10 is the relevant page of the Post Office SB Manual and Ext B11 is the copy of the relevant rule regarding MPKBY & SAS Agency system.
16. The learned counsel for the complainant argued that for the fraudulent practice and cheating committed by the 1st opposite party, the opposite parties 2 to 5 are vicariously liable since the scheme is conducted by them and the 1st opposite party being their agent. The learned counsel for the 2nd opposite party pointed out that the case of the complainant and the contesting opposite parties is one and the same that they have been duped by the 1st opposite party, for which, the police has registered a case and parallel proceedings are going on. The arguments of the opposite parties 3 and 4 are that the 1st opposite party is appointed by the 5th opposite party and the opposite parties 3 and 4 are responsible only for the amount deposited in the Post office and entered in the pass book duly authenticated with the initial of the Post master and date stamp impression of the post office. The argument of the 5th opposite party is that they have no role with respect to payment of commission for the collection of deposits by the 1st opposite party from the complainant and the entry and authorisation of the remittance is done by the postal authorities who are responsible for receiving the deposit and paying the money to the depositor etc.
17. Admittedly, the complainant is a subscriber of the recurring deposit scheme of the Postal Department with account No.2813510. The 1st opposite party admittedly is the agent for the recurring deposit scheme, who is engaged and entrusted with the responsibility of collecting payments from the subscribers to the recurring deposit scheme, including the complainant. The monthly amount to be deposited is Rs.1,000/-. The complainant has made payment 9 times totalling to Rs. 9,000/- as can be seen from Ext A1 card. But Ext B6 recurring deposit journal maintained in the post office reflects only 2 payments of Rs.1,000/- each totalling to Rs.2,000/-. The allegation is that the 1st opposite party committed misappropriation and cheating and did not remit the amount collected from the complainant in the post office.
18. The recurring deposit scheme is conducted by the postal department. The Mahila Pradhan agent is appointed by the 5th opposite party for the recurring deposit scheme conducted by the postal department. The agent is under the supervision and control of the postal authorities and is working in liaison with the post office. The postal authorities are bound to verify whether the amount collected from the account holders is promptly deposited in the respective accounts. The 1st opposite party herein is the agent. That being so, the principal is opposite parties 2 to 5 and they shall be responsible towards third parties for all the acts committed by their agent. The 1st opposite party is engaged for the purpose of collecting the deposits and remitting the same in the post office. The other opposite parties have vicarious liability for the actions of the 1st opposite party. Their contention that they are not responsible for the illegal activity committed by the agent cannot be countenanced.
19. It has come out in evidence that the opposite parties 3 and 4 have initiated departmental proceedings against the 2ndopposite party for the malpractice committed by the 2nd opposite party in connection with the recurring deposits scheme. The second opposite party is none other than the post master. It may be noted that the service of 1st opposite party was terminated on finding out the fraud. The postal authorities and the 5th opposite party are the persons having control and authority over the 1st opposite party.
20. The opposite parties have taken a contention that the police is investigating the matter and there is parallel proceedings going on. In this context, it may be noted that the 1st opposite party has not contested the matter and it is an admitted fact that department proceedings has been initiated against the 2nd opposite party. Initiation of criminal proceedings will not be a bar for the complainant for approaching this commission with the present complaint wherein the allegation is that the opposite parties have incurred deficiency in service in not releasing the proceeds under the recurring deposit account. The 1st opposite party remained ex-parte and she did not produce any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant and deficiency of service on the part of the agent is crystal clear and she is liable to be proceeded under the penal provisions and it cannot be considered as a parallel proceedings to the present complaint. Criminal case stands on a different footing and not as a parallel proceedings. The criminal investigation is to find out whether any criminal fraudulent act has been committed or not. The complainant is before this Commission asserting his rights as a consumer as provided under the Consumer Protection Act, 1986. There is no relevance for the criminal investigation to conclude which altogether stands in a different appreciation of evidence. So the criminal case is not a bar and the complaint alleging deficiency of service is perfectly maintainable before this Commission.
21. Ext A1 card contains entries made by the 1st opposite party when payments were made by the complainant. The entries in Ext A1 are not challenged. Ext A1 proves the payment of a total sum of Rs.9,000/- by the complainant. Ext A1 further revels that the entries are made by one and same person. PW1 has asserted that the complainant has made 9 payments of Rs.1,000/- each. The evidence of PW1 on this aspect stands practically unchallenged in the cross examination. Moreover, as already stated, the payments as deposed by PW1 are duly reflected in Ext A1. The only challenge made by the postal authorities is that they are responsible for the entries in the passbook only and that the entries in Ext A1 are not binding up on them. In this context, it may be noted that the very nomenclature of the deposit is ‘Post Office Recurring Deposit’. In the reply furnished under the Right to Information Act (Ext A3), the postal authorities have stated that Smt. Sofiya Lorens is the post office agent for the recurring deposit accounts (OP1 herein). Thus the first opposite party is portrayed as post office agent for the recurring deposit accounts. The agents on behalf of the postal authorities for implementation of the recurring deposit scheme is appointed by the 5th opposite party. It is not the headache of the complainant to find out whether Mahila Pradhan agent is acting under the postal authorities or the 5th opposite party. The entries in Ext A1 are made by the agent and the complainant has no role in the matter. The opposite parties have no case that the entries in Ext A1 were not made by the agent or that the entries are fake and made by the complainant himself. Admittedly, the agent is not under the control and the supervision of the complainant, but on the other hand, under the supervision of the postal authorities and 5th opposite party. The opposite parties cannot contend that the entries made by the 1stopposite party cannot be taken in to account.
22. The post office is liable for the acts of its agents. The above position is supported by the decision of the Hon’ble National Consumer Disputes Redressal Commission in Bharatiya Dak Vibhag and Anr.V. Krishna Kumar Agrawal reported in 2018(2)CPR 439 (NC). It has been held in the aforesaid decision at para 10 as follows; “The agents are authorised functionaries under Small Savings Scheme and they are authorised to take money from individual persons and to transact business in the Post Offices. Thus, if any misappropriation has been done with the connivance of some officials of the post office, Post office has to be liable for the loss to the complainant”.
23. Under the scheme of savings, the amount is held in trust with the postal authorities and they are under obligation to render service to the RD account holders. Their own staff is alleged to have been involved in the fraudulent acts and it has come out in evidence that departmental proceedings have been initiated against the said staff. Therefore, the postal authorities cannot find escape route to shirk the responsibility cast upon them under the scheme to hold the money in trust and release the maturity proceeds to the account holders. The RD account holder should not suffer for the omissions and commissions of the opposite parties or for the act of their agent. Mere suspension of the agent or initiating disciplinary action against the Post Master or lodging of complaint in the police station and thereafter keeping mum and not taking steps to redress the grievance of depositors will not absolve the postal authorities from the burden to release the proceeds to the depositors. There is absolutely no evidence as to what steps were initiated by them to recover the alleged misappropriated amount to enable to pay to the complainant under the scheme. Any act done on behalf of the postal authorities and the 5th opposite party by the agent is binding on them under the principle of vicarious liability. So the contention of opposite parties 2 to 5 that they are not responsible for the acts of omissions and commissions by the agent working for Mahila Pradhan Kshethriya Bachath Yojana is not sustainable. The opposite parties committed deficiency in service in not releasing the amount under the recurring deposit account to the complainant. The opposite parties are liable to return an amount of Rs.9,000/- remitted by the complainant along with interest @ 9% per annum. Undoubtedly, the irresponsible attitude and conduct of the opposite parties have resulted in gross mental agony and hardship to the complainant, for which, he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs.5,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 3,000/- as cost of the proceedings.
24. Point No.2: In the light of the finding on the above point, the complaint is disposed of as follows;
a) CC.39/2016 is allowed.
b) The opposite parties are hereby directed to return a sum of Rs. 9,000/- (Rupees Nine thousand only) to the complainant with interest @ 9% per annum from the date of the complaint ie, 23-01-2016 till actual payment.
c) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees Five Thousand only) to the complainant as compensation for the mental agony and hardship suffered.
d) The opposite parties are directed to pay a sum of Rs. 3,000/- (Rupees Three Thousand only) as cost of the proceedings to the complainant.
e) The order shall be complied with within 30 days of the receipt of copy of this order.
Pronounced in open Commission on this, the 31thday of March, 2023.
Date of Filing: 23/01/2016.
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PRESIDENT
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MEMBER
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MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the card (Form number ASLAAS-5).
Ext. A2 – Copy of the application under the Right to Information Act.
Ext. A3 – Ext A3 is the reply to Ext A2.
Ext. A4 – Ext A4 is the reply issued by the 3rd opposite party along with enclosure.
Ext. A5 – Copy of the certificate for Persons with Disabilities.
Exhibits for the Opposite Party
Ext. B1 – Copy of the order dated 25-08-2015 of the District Collector suspending the 1st opposite party.
Ext.B2- Copy of the letter dated 26-08-2015 of the Deputy Director, National Savings Organisation Kozhikode.
Ext.B3- Copy of the Gazette notification number GSR 491(E) dated 11-07-2014.
Ext. B4– Order dated 14-03-2014 regarding revision in interest rates of small savings scheme.
Ext. B5– Copy of chapter VI of the Govt. Savings Banks Act 1873.
Ext. B6– Copy of the RD Journal of account number 2813510.
Ext. B7– Copy of the relevant pages of the pass book.
Ext. B8– Copy of the relevant pages of the Govt. Savings Banks Act 1873.
Ext. B9– Letter dated 16-12-2020 issued to the complainant by the senior Superintendent of Post Offices Calicut Division.
Ext. B10 – Relevant page of the Post Office SB Manual.
Ext. B11– Copy of the relevant rule regarding MPKBY & SAS Agency system.
Witnesses for the Complainant
PW1 – C.Jayaraj.
Witnesses for the opposite parties
RW1 – Riyas.P, Assistant Superintendent of Posts, (Out door).
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PRESIDENT
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Forwarded/ By Order
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Assistant Registrar
