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 31^st day of March 2023

C.C.44/2016

Complainant

Mini,

W/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.

2. 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 208/2017)

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 1^st opposite party approached the complainant 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 1^st opposite party, the complainant joined the deposit scheme and was allotted account number 2813282 on 23-01-2012. Thereafter the complainant paid Rs. 1,000/- each every month till July 2015, total being Rs. 43,000/-. 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 1^stopposite party thus made 43 entries of Rs. 1,000/- each totalling Rs.43,000/-.

    3. The 1^st opposite party did not turn up to collect the deposit for the month of August 2015. It was revealed that the 1^st 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 or Rs. 30,000/- instead of Rs. 43,000/-. On enquiry the complainant came to know that her account has been closed and all the money was withdrawn. The complainant had never given any direction or consent to any of the opposite parties to close her account and withdraw money. It was also revealed that a loan for an amount of Rs.13,000/- was sanctioned and availed in the name of the complainant by forging documents. In fact the complainant had never approached the opposite parties for any loan. The complainant assumes collusion between the opposite parties in this regard. She was cheated. The complainant preferred a complaint in the police station.

     4. The complainant has not received the amount which has been remitted to her account with the opposite parties so far. The 1^st opposite party was working in the capacity as the agent of the other opposite parties 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. 43,000/- remitted by the complainant along with Rs. 20,000/- towards compensation for physical and mental agony and also the cost of the litigation.

    5. The supplemental 5^th opposite party was impleaded as per order dated  06-07-2017 in IA 208/2017.

      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 the 5^th 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 5^th 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. 73,862/-. As per the post office records, the total deposit in the account is Rs.30,000/- and not Rs.43,000/- as claimed. The records reveals that one withdrawal amounting to Rs.13,000/- was there on 26-02-2014 and the account was closed on 30-01-2015 for Rs.19,213/-. 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 her account. The allegation that the 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 5^th 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 5^th 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 5^th 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 A4 on the side of the complainant. RW1 was examined and Exts B1 to B9 were marked on the side of the opposite parties 3 and 4. No evidence was let in by the 2^nd and 5^th 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.43,000/- remitted by her in the recurring deposits account along with compensation of Rs.20,000/-.

     14. 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 and Ext A4 is the reply issued by the 3^rd opposite party along with enclosure.

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 1^st 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 843 (E) dated 25-11-2011, Ext B4 is the copy of the relevant pages of the Govt. Savings Banks Act 1873, Ext B5 is the copy of the RD Journal of account number 2813282, Ext B6 is the copy of the relevant pages of the pass book, Ext B7 is the copy of the relevant pages of the Govt. Savings Banks Act 1873, Ext B8 is the Memo dated 13-08-2020 and Ext B9 is the copy of letter No.107-02/2017-SB dated 11-08-2017.

16. The learned counsel for the complainant argued that for the fraudulent practice and cheating committed by the 1^st opposite party, the opposite parties 2 to 5 are vicariously liable since the scheme is conducted by them and the 1^st opposite party being their agent. The learned counsel for the of the 2^nd 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 1^st opposite party, for which, the police has registered a case and parallel proceedings are going on.  The argument of the opposite parties 3 and 4 is that the 1^st opposite party is appointed by the 5^th 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 5^th opposite party is that they have no role with respect to payment of commission for the collection of deposits by the 1^st 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.2813282. The 1^st 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 43 times totalling to Rs. 43,000/- as can be seen from Ext A1 card. But all remittance are not reflected in Ext B5 recurring deposit journal maintained in the post office. The total deposits as per the post office record was Rs.30,000/- and as per the records there was one withdrawal amounting to Rs.13,000/- on 26-02-2014 and the account was closed on 30-01-2015 for Rs.19,213/-. According to the complainant she has never withdrawn any amount or closed the account. The allegation is that the 1^st opposite party committed misappropriation and cheating. However during the pendency of the complaint a sum of Rs.32,213/- was paid to the complainant.

18. The recurring deposit scheme is conducted by the postal department. The Mahila Pradhan agent is appointed by the 5^th 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 1^st 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 1^st 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 1^st 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 2^ndopposite party for the malpractice committed by the 2^nd 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 1^st opposite party was terminated on finding out the fraud. The postal authorities and 5^th opposite party are the persons having control and authority over the 1^st 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 1^st opposite party has not contested the matter and it is an admitted fact that departmental proceedings has been initiated against the 2^nd 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 1^st 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 her 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 1^st 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.43,000/- by the complainant. Ext A1 further revels that the entries are made by one and same person. PW1 has asserted that she has made 43 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 (Exts A3), the postal authorities have stated that     Smt. Sofiya Lawrence 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 5^th 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 5^th 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 herself. 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 5^th opposite party. The opposite parties cannot contend that the entries made by the 1^stopposite 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 entire alleged misappropriated amount to enable to pay to the complainant under the scheme. Any act done on behalf of the postal authorities and the 5^th 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. During the pendency of the complaint in the year 2020 a sum of Rs.32,213/- was paid to the complainant. The balance amount is due to her is Rs.10,787/-The opposite parties are liable to return an amount of Rs.10,787/- along with interest @ 9% per annum to the complainant. Undoubtedly, the irresponsible attitude and conduct of the opposite parties have resulted in gross mental agony and hardship to the complainant, for which, she 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.44/2016 is allowed.

  b). The opposite parties are hereby directed to return a sum of Rs. 10,787/- (Rupees Ten Thousand Seven Hundred and Eighty Seven 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 31^thday of March, 2023.

Date of Filing: 23/01/2016.

Sd/-

PRESIDENT

Sd/-

MEMBER

Sd/-

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 3^rd opposite party along with enclosure.

Exhibits for the Opposite Party

Ext. B1 – Copy of the order dated 25-08-2015 of the District Collector suspending the 1^st 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 843 (E) dated 25-11-2011.

Ext. B4– Ext B4 is the copy of the relevant pages of the Govt. Savings Banks Act 1873,

Ext. B5– Copy of RD Journal of account number 2813282.

Ext. B6– Copy of the relevant pages of the pass book.

Ext. B7– Relevant pages of the Govt. Savings Banks Act 1873.

Ext. B8– Memo dated 13-08-2020.

Ext. B9– Copy of letter No.107-02/2017-SB dated 11-08-2017.

Witnesses for the Complainant

PW1 –  Mini.

Witnesses for the opposite parties

RW1 – Riyaz.P,  Assistant Superintendent of Posts, (Out door).

                                                                                                           Sd/-                             

                                                                                                           PRESIDENT                              

Sd/-                              

  MEMBER                           

Sd/-                         

MEMBER                           

Forwarded/ By Order

                                         Sd/-

                       Assistant Registrar