IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 487/09 DATED 05.03.2010<br /> ORDER<br /> <br /> Complainant Chikkamallaiah, <br /> D.No.483, 19th Cross, 16th Main, D Block, J.P.Nagara 1st Stage, Mysore-570008.<br /> <br /> (By Sri. S.V.Nagendra, Advocate)<br /> <br /> Vs. <br /> Opposite Party Manager,<br /> Syndicate Bank, <br /> J.P.Nagara Branch, J.P.Nagara, Mysore-570008.<br /> <br /> (By Sri. B.T.Sreekantegowda, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 29.12.2009<br /> Date of appearance of O.P. : 13.01.2010<br /> Date of order : 05.03.2010<br /> Duration of Proceeding : 1 MONTH 20 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, seeking a direction to the opposite party to return the pension amount already deducted with interest and compensation for mental agony and loss amounting to Rs.2,00,000/.<br /> <br /> 2. In the complaint it is alleged that, the complainant is a retired Railway employee. He is drawing the pension through the opposite party bank. The complainant has his S.B. account No.220/22280, with opposite party. Complainant has got F.D. account also with the opposite party. By the letter dated 12.10.2009, the opposite party informed the complainant that as per the incorrect entries/information made in the P.P.O. by the Railway Authorities, a sum of Rs.1,55,615/- has been paid in excess towards pension. Hence, opposite party decided to recover the said amount deducting monthly Rs.4,000/-. It is further alleged that, the complainant issued notice on 16.10.2009 to the opposite party calling upon to furnish the earlier P.P.O, modified P.P.O if any, audit report, clarification sheet and other relevant documents. Opposite party failed to furnish the documents. On 20.11.2009, the complainant again reminded the opposite party. The opposite party did not comply with the notice. It is stated that the complainant has got loan account with the opposite party. The complainant requested the opposite party to transfer a sum of Rs.17,000/- from his S.B. account to loan account. The opposite party failed to do so. Said act of the opposite party amounts to deficiency in service. Hence, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version has admitted certain facts. However, it is contended that, the opposite party that a sum of Rs.1,91,185/- was paid in excess to the complainant, than the eligible pension, from 01.06.2004 to October 2009. A sum of Rs.30,958/- was adjusted on 15.09.2009, out of the arrears of the pension and a sum of Rs.8,227/- on 11.11.2009 from the balance amount in the S.B. Account. After adjusting this amount, the complainant was due of Rs.1,52,000/- to the Central Government account of Railways. As undertaking given by the complainant, opposite party has power to deduct or recovery of excess payment made to the complainant. The excess payment or pension against eligible pension, the entire excess is to be made by the pensioner in one lumpsum. In order to avoid inconvenience to the complainant, the opposite party is recovering at the rate of Rs.4,000/- p.m. The opposite party made excess payment, because of incorrect information given by the Railway Authorities in the P.P.O dated 02.06.2004. There is no deficiency in service. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. The Senior Manager of the opposite party has filed his affidavit and has produced certain documents. We have heard the arguments of both learned advocates for complainant and opposite party and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The complainant is the retired railway employee. Through the opposite party bank, he is drawing his pension. Considering the contentions of the parties, the basic question would be, whether the opposite party bank has power or authority to fix the pension or revise the same, suemoto. From the material on record, we are of the opinion that, the opposite party bank is only an agent to pay the pension and it has no power or authority either to fix the pension or revise the same. Of course, there is no doubt that, on the basis of the orders issued by the Government of India or the Railway Authorities, from time to time the opposite party bank can very well calculate the amount payable to the pensioner –complainant.<br /> <br /> 8. In the case on hand, in the version, in paragraph 8, the opposite party has stated that, it has made excess payment of pension amount, because of the incorrect information given by the Railway Authority in the P.P.O. dated 02.06.2004. Again, at the beginning of paragraph 11 of the version, it is stated by the opposite party that, because of the incorrect information given by the employer of the complainant, in P.P.O. dated 02.06.2004 the opposite party has paid the amount in accordance with the P.P.O. Thus, the opposite party has paid the pension to the complainant as per the order issued by the Railway Authorities. Hence, when the pension of the complainant has been paid as per the order of the Railway Authorities, until and unless the Railway Authorities issue appropriate order, the opposite party itself cannot revise or modify the pension payable to the complainant. It is different aspect, if there is any calculation mistake committed by the opposite party bank. But, in the case on hand, it is not that while calculating the pension, the opposite party made mistake and on account of it, excess amount has been paid to the complainant. At the cost of repetition, as noted here before, in the version opposite party has specifically stated that, pension has been paid to the complainant as per the pension payment order issued by the Railway Authority. Hence, unless and until the Railway Authorities issue appropriate order if there is any mistake in the P.P.O., the opposite party bank itself cannot rectify the pension payment order of the concerned Authority. It is mentioned in the version as noted above in paragraph 8 and 11 that, the pension payment order is incorrect. Firstly, the opposite party bank cannot contend that, the pension payment order is incorrect and even otherwise at the most, the opposite party could have brought that fact to the notice of the concerned authority and after the concerned authority had rectified the mistake, if any then that could have been acted upon in recovering the excess payment made to the complainant.<br /> <br /> 9. For the complainant, the learned advocate relied on the ruling reported in III (2001) CPJ 234. The Hon’ble M.P. State Commission has observed that, the bank should have prepared details of pension paid to the complainant and got it rectified from the Railway Authorities and the bank on it’s own started deducting the amount arbitrarily in deficient manner and liable to stop deduction and make payment of full pension. Hence, as noted in the earlier paragraphs, the opposite party bank being only pension paying agent, has to act upon the pension payment order of the appropriate authority and on it’s own opposite party, cannot fix or revise the pension suemoto. However, if there is a mistake, that should be brought to the notice of the concerned authority and after getting the revised pension payment order, further step could be taken.<br /> <br /> 10. In the case hand, the opposite party on it’s own holding that the pension payment order issued by the Railway Authorities, is incorrect started deduction alleging that, there is excess payment of pension to the complainant. Considering the law laid down by the Hon’ble M.P. State Commission noted above, the opposite party ought to have informed the Railway Authorities, that if there is any mistake and after getting it rectified could have started recovery if any excess pension payment was made. In the absence of the same, the deductions commenced by the opposite party from the payment of pension of the complainant, as observed by the Hon’ble State Commission shall have to be termed as ‘arbitrary’. <br /> 11. However, it is relevant to note that, after filing the complaint, the opposite party bank has produced a xerox copy of the letter issued by the Senior Assistant Financial Advisor of the Railways and pension that the complainant is entitled to and ultimately, it is mentioned that the pension has been paid in excess to the complainant. Under the circumstances, to comply the procedure, the opposite party bank shall have to prepare the statement in detail regarding the pension that the complainant is entitled to and the excess payment and then get it approved from the pension payment authority and then if any excess payment is made, same can be recovered in accordance with law or rules. To comply this, granting two months time to the opposite party will meet the ends of justice. However, it is noted that, if that is not got done by the opposite party and it is not established that the pension paid to the complainant is in excess, then he is entitled to, than opposite party shall have to refund the deductions already made and also, it is not entitled to make further deductions.<br /> <br /> 12. Learned advocate for the opposite party has produced copy of the undertaking given by the complainant authorizing to opposite party deduct or recover the excess payment made if any. That is not the point and the complainant has not disputed the authority of the opposite party to deduct the excess payment, but as noted here before, the alleged excess payment itself is challenged by the complainant. Hence, as noted here before, in case excess payment is proved or established, then only the opposite party can recover the same.<br /> <br /> 13. The learned advocate for the opposite party further referred to the order of the RBI. The RBI has ordered that, whenever any excess or over payment is detected, entire amount there off should be credited to the Government account in lumpsum. As noted earlier, in the case on hand, opposite party itself cannot revise the pension fixed by the concerned authority. Even according to the opposite party, pension paid to the complainant is as per the pension payment order issued by the Railway Authority. Admittedly, Railway Authority has not informed the opposite party that the pension already fixed is incorrect or that the pension already paid is excess and hence, the excess payment should be recovered etc., At the cost of repetition, if at all the opposite party had detected that the pension payment order is incorrect and pension fixed is excessive, then the opposite party bank ought to have informed the same to the concerned authority and got it modified or revised. Considering these aspects, the order of the RBI will not help the opposite party.<br /> <br /> 14. It is relevant to note that, when the opposite party sent letter to the complainant that, excess pension has been paid, the complainant had sent a notice on 16.10.2009 to the opposite party calling upon to furnish the modified pension payment order if any as well as audit report and so also calculation sheet and other relevant documents in support of the alleged excess payment. The opposite party did not comply with the request of the complainant. Again, on 20.10.2009, the complainant issued a reminder, which has also been received by the opposite party, but the opposite party neither complied with the request nor replied the notice. Incidentally, it is relevant to note that, the complainant having loan account with the opposite party requested the opposite party to transfer a sum of Rs.17,000/- from his S.B. account to the loan account, for which a cheque dated 06.11.2009 was issued. But, the opposite party did not credit the said entire amount to the loan account of the complainant. If the opposite party in pursuance of the notice or reminder, had furnished the calculation regarding excess payment of the pension and if it was convinced by the complainant, the complainant could not have filed the present complaint. In the version, the opposite party tried to contend that, it convinced the complainant and as such reply was not given. If really, has contended the complainant was convinced, than he could not have filed the present complaint. Hence, said explanation offered by the opposite party cannot be believed.<br /> 15. The complainant has sought a direction to the opposite party to return the pension amount deducted with interest and so also, compensation of Rs.2,00,000/- for mental agony, loss and sufferings. As noted earlier, so far concerned to return of the amount deducted, the opposite party shall have to report the matter to the concerned Railway Authorities and if at all the competent authority found that the pension payment order already issued is incorrect and there is any excess payment, then that has to be recovered in accordance with law. For this, two months time is given to the opposite party. As regards, compensation towards mental agony, loss and sufferings, as noted above, without there being any order from the competent pension fixing authority, the opposite party on it’s own holding that the pension payment order issued is incorrect, started to deduct the amount alleging that there is excess payment, without complying normal procedure and further if the opposite party did not reply the notice of the complainant in spite of the reminder, where from negligence and deficiency in service on the part of the opposite party has been established. However, considering the facts and peculiar circumstances of the case, we feel it just to award token compensation. <br /> <br /> 16. Accordingly, we answer the point partly in affirmative.<br /> <br /> 17. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is given liberty to get the pension payment order rectified or modified if there is any mistake from the competent Authority within two months from the date of this order, and if it is found that the pension already paid is in excess than the complainant is entitled to then the excess payment may be recovered in accordance with law.<br /> 3. If the competent Authority found that the pension payment order already issued is correct, then the opposite party bank is hereby directed to recredit the entire amount deducted into the S.B.Account of the complainant. <br /> 4. The opposite party is hereby directed to pay a token compensation of Rs.1,000/- to the complainant towards mental agony and inconvenience caused, within two months from the date of this order. <br /> 5. So also, the opposite party to pay a sum of Rs.1,000/- to the complainant towards cost of the proceedings.<br /> 6. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 5th March 2010)<br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />