Date of filing:  21.3.2013                                                                          Date of disposal: 17.9.2014

Complainant:       Smt Sujata Sengupta & Pabitra Sengupta, Upper Hill View, Asansol – 713 304.

-VERSUS-

Opposite Party: 1.      Sub Post Master, Burnpur Market Post Office, Burnpur,

Burdwan – 713 325.

2.      Soumen Routh, Postal Agent & daily rated worker, Nabaghanti, PS: Hirapur, PO: Burnpur, Burdwan – 713 325

                              3.   Sr. Superintendent of Post Offices, Asansol Division, Asansol – 713 301.

4.       Chief Post Master General, West Bengal Postal Circle, Jogajog Bhaban, Kolkata – 700 012.

5.       General Manager, Postal Accounts & Finance, West Bengal Postal Service, 20/B, Abdul Hamid Street, Kolkata – 700 069.

Present:  Hon’ble President: Sri Udayan Mukhopadhyay

                 Hon’ble Member:  Smt. Silpi Majumder

Appeared for the Complainant: Upto argument stage through Ld. Advocate Animesh Nath, since            

                                                     deceased and thereafter complainant no. 1 herself.

Appeared for the Opposite Party:  Ld. Advocate, Murari Mohan Kumar.

JUDGEMENT

This complaint is filed by the complainants under Section 12 of the C.P. Act 1986 alleging deficiency in service against the Ops as they did not refund the deposited amount along with interest.

            The brief fact of the case of the complainants is that they opened one MIS account   jointly at Burnpur Market Post Office - OP-1 on 10.11.2010 by depositing an amount of Rs. 2, 19,000/- through Sri Soumen Routh being the Postal Agent attached with the Burnpur Market Post Office. Passbook having the seal and signature of the Sub Post Master of the OP-1 was issued and supplied to them. The complainants drew monthly interest of Rs.  1,460=00 from the said MIS account starting from 10.12.2010 by presenting the passbook at the counter of the Post Office and each time the payment was registered and entry was made in the Passbook by the Post Office under its seal. Last interest was drawn on 15.6.2012 against the MIS account and thereafter no monthly interest was paid on the plea

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that the passbook and all entries in it are false and the above passbook was taken by the Post Office and kept at their custody on the plea of computerization of the same. The complainants became astonished and failed to understand how the passbook is declared as false since the same was issued by the Post Office under seal and signature of the Post Master. Not only that the payments as made were endorsed from the counter of the Post Office under seal and signature. So if the same has not being detected false that mischievous act has been done by the Post Office itself and also their associates and as the passbook is fake hence the interest already paid is to be declared as fake. The complainants deposited money for getting interest from it and as such they are not under any obligation to suffer mental harassment, agony due to unfair, mischievous and illegal acts on the part of the Post Office and the Post Office is certainly liable to make payment on the deposited money together with interest as per the terms and the conditions. It is the fact the passbook was issued by the Post Office from its counter after opening the account and the passbook contained requisite stamps and signature etc. and the complainants being the ordinary depositors have no scope to make any doubt in respect of the genuineness of the passbook and the other documents. Refusal for making payment of the deposited amount along with interest on the plea of the false passbook is an example of deficiency in service and unfair activity.  Finding no other alternative the complainants have approached before this Ld. Forum by filing this complaint praying for direction upon the Ops to refund the deposited amount of Rs. 2,19,000=00, due monthly interest from July 2012 to the date of filing of this complaint @1460/- per month for  MIS account (6 months) to the tune of Rs. 8,760/-,  interst@12% per annum on the due amount for delay payment , Rs. 25,000/- as compensation towards harassment and mental agony and Rs. 5,000/- as litigation cost. The complainants have also prayed for further interest @12% on the abovementioned total claim amount. 

            The complaint is contested by the Ops except the OP-2 by filing written version. Wherein it is contended that present complaint is an outcome of fraud and conspiracy which occurred with the help of OP-2, who is neither a daily rated worker nor the agent of the Postal Department. Even the OP-2 did not get any letter of appointment in any status to work as daily rated worker at the Burnpur Post Office under the control of the Op-1. The present complainants have made transaction with the OP-2 at their own risk. It is needless to mention that the OP-1, 3 & 4 would be liable and responsible for bonafide acts and signatures during official course in any signed document by appointing the agent of the Post Office in case of misappropriation of power. The OP-2 is not an employee of Postal Authority to act upon or to sign and put any seal in any document of the OP-1 or the Postal

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Department. The complainants are bound to prove strictly the authority of the OP-2 by producing valid document of appointment of OP-2 in this respect. As there is no connection by and between the OP-1&2 the complainants chose the OP-2 as their agent at their own risk and if any forgery or fraud is happened on behalf of the OP-2, the Postal Department cannot be held liable for such action. It is further mentioned by the Ops that the higher authority of the Postal Department has set up an investigation in respect of the aforesaid unscrupulous matters and the Ops strictly believe that at last truth will come and the fraud will be detected. As the criminal case has been initiated along with departmental proceeding has also been initiated against some employee of the postal department, this Forum has no jurisdiction to adjudicate this complaint. Moreover where fraud, forgery and misappropriation of money is related the jurisdiction of this Ld. Forum is bar. For this reason the complainants are not entitled to get any money from these Ops through this Ld. Forum. Case of fraud and forgery is to be adjudicated by the competent forum not the Consumer Forum. According to the Ops the complaint is liable to be dismissed with cost.

The complainants have filed evidence on affidavit along with several documents. The Ops have filed questionnaire and accordingly the complainants filed replies to the said questionnaire. The complainants have also relied on some judgments and the Ld. Counsel for the Ops (except OP-2) has also relied on some Rulings in support of their respective contentions.

            At the very outset it is necessary to mention that the OP-2 did not appear before this Ld. Forum in spite of publication of notice in a newspaper. For this reason the case is taken up for hearing ex parte against the OP-2. We have perused the record and several documents filed by the parties. It is seen by us that the case of the complainants is that they opened one MIS account with the OP-1 jointly on 10.11.2010 by depositing an amount of Rs. 2, 19,000=00 through the postal agent – OP-2, the daily rated worker of the OP-1. The complainants used to draw monthly interest of Rs. 1,460=00 from the MIS account by producing the passbook at the counter of the Post Office starting by 10.12.2010 and each time payment was registered and the entry was made in the passbook by the Post Office under its seal. They got interest lastly on 15.6.2012, but thereafter no monthly interest was paid to them on the plea that the passbook along with all entries is false, fabricated and fake. Against such action of the Post Office the complainant has initiated this complaint. The case of the Ops is that the complainants chose the OP-2 as their agent through whom

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they opened the alleged MIS account in the Post Office and not only that on each occasion the OP-2 was entrusted by the complainants to draw the monthly interest in respect of the MIS account. 

          According to the Ops as the Post Office did not get any amount from the complainants the statement of opening the MIS account is false and accordingly the passbook issued against such payment as alleged along with all entries are also fabricated and forged. The Ops have further stated that the entries have not been made by the Postal Department and as the complainants did not approach before the Postal Department for opening the MIS account, as well as, for getting interest, the complainants are under compulsion to prove whether actually the initial payment has been received by the Postal Authority and in this connection production of money receipt is vital. The Ops have accordingly prayed for dismissal of the complaint.

            During hearing the complainants have stated that the Post Office has vicarious liability due to illegal act of his agent because the agent is appointed by the Postal Department, Govt. of India. But in this respect the OP-1 has filed one document to prove that the appointment of the agent in the Post Office is under the jurisdiction of the Finance Department, Govt. of West Bengal. In this context the complainants have filed one letter dated 21.3.2012 issued by the office of the Deputy Director, Finance, Govt. of WB to Soumen Routh stating termination of his agency. The copy of the said letter was sent to the Post Master, Asansol Head Post Office for information and necessary action. The complainants have filed also  another letter dated 20.02.2013 issued by the same office to the Sr. Superintendent of Post Offices, Asansol Division stating that ‘in response to our above noted letter it is informed that the SAS agency of Sri
Soumen Routh CA No. E/420177, dated 23.3.2006 was valid up to 18.3.2012 and thereafter he failed to renew his certificate of authority in due time. As a result his agency has been cancelled with effect from 19.3.2012. It is noticed by us that the subject matter of the letter dt. 20.02. 2013 was misappropriation of government money at Burnpur Market Post Office in the account with Asansol Head Office by the SAS agent, namely, Sri Soumen Routh. From the abovementioned two letters it is clear to us though Mr. Soumen Routh was appointed by the Govt. of WB, but admittedly he was a SAS agent of the Burnpur Post Office. The complainants have also relied on one judgment passed by Tamilnadu SCDRC, Chennai, reported in 2012 (1) CPR 64 wherein it has been held by the Hon’ble Commission that the Post Office is responsible for acts of its authorized agents. As it is proved that Soumen

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 Routh was an authorized agent of Burnpur Market Post Office hence in our view the relied judgment is applicable in the case in hand. During argument the Ld. Counsel for the Ops has argued at the very outset that the complainants are not consumers of the Ops because the complainants have miserably failed to produce any scrap of document to show that they opened one MIS account with the OP-1 upon payment of Rs. 2,19,000=00. As the complainants cannot claim any service either proper or deficient without making any payment towards consideration money, the complainants cannot be termed as consumers in the eye of Consumer Protection Act 1986 in view of Section 2(1) (d) (ii). In this context the Ld. Counsel for the complainants has argued that the endorsement in the passbook reveals that the MIS account was opened against payment of Rs. 2,19,000=00 and the OP-1 issued passbook and not only that he got monthly  interest for a quite considerable period. Therefore according to the complainants service has been availed of against payment of consideration money and hence the complainants can easily be termed consumer of the Ops. Upon hearing of such argument we have noticed that admittedly the complainants did not file any document to show that the MIS account was opened against payment of Rs. 2, 19,000=00. No money receipt is filed by the complainants. Therefore, it is very difficult to hold that actually service was availed of against payment of consideration amount. Comparing with the arguments as made out by the Ld. Counsel for the parties in our view the argument of the Ops is much proper and legal than the complainants. Though the complainants are claiming that the passbook has been issued from the end of the Op-1, but according to the Ops the passbook is itself fake, fabricated and forged document. We have perused the passbook as filed by the complainants (both original and duplicate). We have compared the same and in our view also some forgery and fraud has been practiced upon in respect of issuance of said passbook along with payment of interest also. But as this Ld. Forum has no jurisdiction to adjudicate any complaint where forgery is related or fraud practiced upon by any parties, this case is to be adjudicated by the competent authority.

            In the case in hand we have noticed that one criminal case has been initiated by the Post Office against Soumen Routh as well as some of its employees who are involved in case of misappropriation of public money, not only that  departmental proceeding against Govt. employee/s has also been initiated by the Govt. Of India and where departmental proceeding is going on, the Consumer Forum or Commission cannot hold any deficiency in service against the Ops until the said proceeding is completed and order or report is given. The Ld. Counsel for the complainants has also relied on another judgment passed by the Hon’ble National Commission reported in 2014 (1) CPR 610 (NC) in the case of Union of

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India, through the Secretary and Ors. Vs. George Mathew and Ors.  We have perused the said judgment but in our opinion also the said judgment cannot be applicable in the case in hand because in the said case the cheque was received by the Post Master. But in the instant case no document is forthcoming on behalf of the complainants to show that the amount was received by the Ops. As no money receipt has been filed by the complainants we cannot say that both cases are identical and same.  In our opinion the facts of the both cases are quite different. In another case the complainants have relied on the judgment passed by the Hon’ble National Commission reported in 2013 (2) CPR 133 (NC) wherein Their Lordships have held that Consumer Protection Act 1986 is a social legislation to provide economic justice and protect the consumers from exploitation. We have perused the said judgment. Admittedly the C.P. Act has been enacted to save the interest of the consumers from exploitation and to provide natural justice to them. But justice cannot be one way traffic. Though it is our bounden duty to provide economic justice and protection to the consumers but at the time of adjudication of a complaint it is also  our duty that the service provider should not be penalized without any reason and for this reason in the C.P. Act Section 26 has been incorporated wherein it is stated that if is found that the complaint is frivolous and vexatious the Consumer Forum has authority to dismiss the complaint by making an order imposing cost upon the complainant not exceeding rupees ten thousand. During hearing the Ld. Counsel for the complainants has stated that if the passbook be declared as fake or forged, the same has been done in collusion with the employee of the Post Office, nor by the complainants. The Ld. Counsel for the Ops has submitted that if such mischievous act has been done by the Op-2, then liability should not be cast upon the shoulder of the Postal Department. In this respect we are of the view if any mischievous act has been done to forge the passbook it may be in connivance with the employee of the Postal Authority, but until and unless the criminal proceeding as well as the Departmental proceeding is over, we cannot say positively that forgery was done in collusion with the unscrupulous employee of the Postal Department. The Consumer Forum or Commission has no authority to adjudicate such question and the same should be adjudicated by the competent court of law. 

As the complainants have failed to prove any deficiency in service or unfair trade practice on behalf of the Ops we cannot direct the Ops to refund any amount as claimed by the complainants. Hence, the complaint fails. Going by the foregoing discussion hence, it is

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O r d e r e d

that the complaint is dismissed on contest without any cost. With the above-mentioned observation the complaint is thus disposed of accordingly. Be it mentioned that the complainants are at liberty to approach further before this ld. Forum praying for cost and compensation after disposal of the criminal case, if any, and during that period the complainants shall file the order sheet of the criminal case positively.

     (Udayan Mukhopadhyay)        

             Dictated and corrected by me.                                            President       

                                                                                                 DCDRF, Burdwan

                     (Silpi Majumder)

                              Member

                   DCDRF, Burdwan

                                                                                (Silpi Majumder)

                                                                                Member            

                                                                               DCDRF, Burdwan