Tamil Nadu

Nagapattinam

CC/17/2012

Palanivel - Complainant(s)

Versus

The Branch Manager, City Union Bank - Opp.Party(s)

Vetrivel

01 Dec 2014

ORDER

  Date of Filing      : 29.03.2012

                                                                                         Date of Disposal : 01.12.2014

           

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

NAGAPATTINAM

 

PRESENT: THIRU.P.G.RAJAGOPAL, B.A.B.L.,         …..PRESIDENT

    THIRU.A.BASHEER AHAMED,B.Com., ….  MEMBER I

               Tmt. R.GEETHA, B.A.,                             …. MEMBER II

 

CC. No.17/2012

 

DECIDED ON THIS 1^st  DAY OF DECEMBER  2014.

 

1. S.Pazhanidurai (late)

S/o Saminathan

2. Senthilkumar

S/o Pazhanidurai

3. Vathchala

W/o Pazhanidurai

Tirupoondi Kaliyamman Koil Street,

Kilvelur Taluk & T.M. Illakka,

Nagapattinam District.

4. Rajeshwari

W/o Amirthagadeshwaraswami

Tirupoondi Main Road,

Kilvelur Taluk & T.M. Illakka,

Nagapattinam District.

5. Gnanaselvi

W/o Ramalingam

No.32-A, Mariyamman koil Street,

Neiveli Mandharakuppam,

Cudalore District.

6. Jothilakshmi      

W/o Sivasankaran

Sengamedu sivashakthi Nagar,

Vandampalayam, Tiruvarur.                             …      Complainants

                                                                                                  

                                                                /versus/

                                   

            City Union Bank,

            Represented by its

            Branch Manager,

            Tirupoondi Branch,

            Tiruvarur Taluk, Nagapattinam D.t.                         … Opposite party

   

 

            This complaint having come up for final hearing before us on 17.11.2014, on perusal of the material records and on hearing the arguments of Thiru.P.Vetrivel, Counsel for the complainants, Thiru.G.Vijayasundram  Counsel for the opposite party and having stood for consideration, till this day the Forum passed the following

ORDER.

     By the President, Thiru.P.G.Rajagopal, B.A.B.L., 

This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986. 

                        2. The gist of the complaint filed by the deceased  1^st complainant is that he, as the senior citizen of 67 years old, had deposited his savings amount of Rs.50,000/- towards fixed deposit with the opposite party on 13.10.2008 the receipt no. being 1634004, that amount was  not repaid  to the complainant by the opposite party on its maturity and when contacted the opposite party in that regard, the latter told him that the amount could not be paid to him, since the loan amount obtained by his son Mr.Senthikumar in the year 2005 under PMRY scheme remains un-discharged by his son.  The opposite party is not entitled to withhold the deposit for the loan of the complainant’s son, as the 1^st complainant  has nothing to do with the loan obtained by his son and for the loan advanced under PMRY scheme no surety or surity is to be insisted by the Bank.  The complainant had taken treatment from 25.01.2012 to 27.01.2013 at the Ansari Hospital, Nagapattinam and has spent substantial amount towards his medical expenditure and he further needs amount for his survival and if anything happens to his life only the opposite party alone is responsible for that, the refusal of the opposite party to repay the fixed deposti amount to the complainant is not only illeagal but is also deficiency of service on his part. The 1^st complainant died on 06.08.2013 and the complainants No 2 to 6 as his legal  representatives have added themselves as other complainants to prosecute this complaint further.  The  complainants therefore  pray for an order to direct the opposite party to repay the fixed deposit amount with interest till this day and pay the sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the deceased 1^st complainant owing to deficiency of service on the part of the opposite party, along with the cost of this litigation and to grant such and other reliefs as this Forum may deem fit.

                        3. The gist of the written version filed by the opposite party is that on 12.04.2005 Senthilkumar son of the complainant borrowed Rs.25,000/- from the opposite party for his Fresh Juice and Cool drinks business and the complainant  and one K.Anbazhagan,  signed the loan application form as sureties for the said loan and as the loan was not discharged  the opposite party issued the notice on 25.11.2010 and then sent another notice through his lawyer on 18.01.2011 and even thereafter the said loan was not discharged and hence the opposite party filed a suit in OS.53/2011 on the file of the District Munsif Court, Nagapattinam against the complainant, his son and the said  Anbazhagan and obtained an exparte decree against them.  The petition filed in IA No.137/2012 by the said Senthilkumar to set aside the exparte decree was allowed on 15.03.2012 on condition that the said petitioner shall pay the cost of Rs.2,000/- on or before 03.04.2012 and as the said cost was not paid within the time, the peition was dismissed and the  exparte decree against the complainant, his son and the said Anbazhagan has  become final and as the said loan borrowed by Senthil Kumar was not discharged and as the complainant had been the surety for the loan,  the opposite party rightly exercised his right of lien  over the deposit amount of the complainant with him. Other averments made in the complaint are denied and there is no deficiency of service on the part of the opposite party and therefore the complaint is liable to be dismissed.

                        4.  The gist of the additional written version filed by the opposite party is that inspite of the decree for the payment of the loan amount of Rs.25,370/- passed in OS.53/2011 on the file of the District Munsif Court, Nagapattinam, against the 1^st complainant, his son SenthilKumar and one Anbazhagan, the loan amount was not discharged either by the deceased  1^st complainant or his  son the 2^nd complainant.  Therefore the opposite party is entitled to exercise lien over the fixed deposit amount of the deceased  1^st complainant till the said loan amount of his son is discharged.  Further the legal representatives of the 1^st complainant are not entitled to seek the relief  sought by him  in this complaint in view of his death as personal action dies with that person.  As the loan amount borrowed by the 2^nd complainant is yet to be discharged the complainants 2 to 6 as the legal representatives of  the deceased  1^st complainant are liable to discharge the said loan from out of the estate of the decesed Pazhanidurai, the 1^st complainant. The complaint is therefore liable to be dismissed.

                        5. The 2^nd complainant Senthilkumar has filed his proof affidavit in support of this claim and has filed 9 documents which are marked as Exhibits A1 to A9.  The opposite party has filed his proof affidavit and filed 2 documents which are marked as Exhibits B1 and B2. Both the sides have filed their written arguments also.

6. Points for consideration:-

1. Whether there is deficiency of service on the part of the opposite party?

                              2. Whether the complainants are entitled to any relief? If so to what?

                        7. Point 1: Originally, Pazhanidurai, the deceased  1^st complainant, the husband of the  3^rd complainant and the father of the  remining complainants  had filed this complaint alleging deficiency of service on the part of the opposite party as the latter refused to pay the deposit amount of Rs.50,000/- to him on its maturity on 13.10.2011, exercising lien for the loan amount borrowed by his son Senthil Kumar, the 2^nd complainant, under the PMRY scheme, to which loan he was made the  surety and as during  the pendency of the complaint, as the 1^st complainant died  his legal representatives, the 2^nd to 6^th complainants  have been impleaded and are  prosecuting this complaint.

                        8. The contention of the opposite party is that for the loan borrowed by the 2^nd complainant Senthil Kumar from the opposite party the deceased  1^st complainant and one K.Anbazhagan were the sureties and the opposite party also filed suit against them in O.S.No.53/2011 on the file of the District Munisif Court, Nagapattinam and obtained exparte decree on 15.03.2012  which has become final as the petition filed by the 2^nd complainant Senthilkumar to set aside the exparte decree was dismissed for   non-fulfillment of the condition imposed by the said court by the 2^nd complainant.  The contention of the complainants 2 to 6 as the legal representatives of the deceased 1^st complainant is that only because of the mental agony and want of funds for getting medical treatment, the 1^st complainant died on 06.08.2013 and t therefore the opposite party is liable to pay the deposit amount of Rs.50,000/- with accrued  interest till date along with the sum of Rs.1,00,000/- towards compensation for the deficiency of service on the part of the opposite party and cost of this litigation.

                        9. Exhibit A1 is the xerox copy of the deposit receipt dated 13.10.2008 the deposit being Rs.50,000/- and date of maturity  13.10.2011,  Exhibit A2, is the office copy of the notice sent by the deceased  1^st complainant through his counsel to the opposite party, Exhibit A3, is the postal acknowledgment cared of the opposite party, Exhibit A4 is the series of documents and medical bills showing that  during 2012, the 1^st complainant had been taking treatment at the Mehar Clinic, Nagapattinam and had spent substantial amount towards the medical treatment, Exhibit A5 is the recommendation  letter given by the General Manager of the District Industrial Centre, Nagapattinam, in favour of the Senthilkumar, the 2^nd complainant to grant loan under the PMRY scheme to have a fresh Juice and Cool Drinks stall, Exhibit A6 is the order dated 9.02.2012 passed by the District Munsif Court, Nagapattinam in I.A.No.748/2011 in O.S. No.53/2011 on its file to condone delay in filing the petition to set aside the exparte decree passed against him.Exhibit A7 is the another order dated 15.03.2012 passed by the District Munsif Court, Nagapattinam, in I.A. No.137/2012 in O.S, No.53/2011  on its file to set aside the exparte decree passed agaist the 2^nd complainant in favour of the opposite party on condition that the exparte degree shall be set aside on the 2^nd complainant’s  paying the sum of Rs.2,000/- towards cost  to the opposite party, the plaintiff in that suit, Exhibit A8 is the copy of the application for Financial Assistance Under the  Prime Minister’s Rozgar Yojana  scheme, submitted by the 2^nd complainant, and Exhibit A9 is the guidelines for filling up of the said application form under PMRY scheme. Exhibit B1, the Judgment dated 06.04.2011 in O.S. no.53/2011 on the file of the Distict Munsif Court, Nagapattinam is filed and the perusal of it goes to show that the said suit had been filed against the deceased  1^st complainant,  the 2^nd complainant and one Anbzhagan for the recovery of the loan amount advanced to them and an exparte decree is passed.  Exhibit B2 is the copy of the  exparte decree passed on 6.04.2011 by the Distict Munsif Court, Nagapattinam agaist the 1^st, and 2^nd complainant’s and one Anbzhagan.

                        10. The main contention of the complainants is that the opposite party is not entitled  to get surety for the PMRY loan advanced to the 2^nd complainant under the PMRy scheme as the said loan is needed to be advanced only to the unemployed  youth in order to promote their self employment.  The perusal of the Exhibits A8 and A9  goes to show that there is no provision at all to enable the financial institution advancing the loan to insist for sureties for the said loan.  Further the opposite party also has failed to provide any concrete evidence in his favour, in support of his having got the deceased  1^st complaint and one K.Anbzhagan as sureties for the PMRY loan advanced to the 2^nd complainant Senthilkumar.  The very insistence of sureties for the PMRY loan advanced to the 2^nd complainant by the opposite party, itself tantamounts to unfair trade practice in as mush as there is no provision at all to insist for sureties for the said loan. Therefore the opposite party has  caused the deceased  1^st complainant and one K.Anbazhagan to be the sureties for the PMRY loan advanced to the 2^nd complainant and it is not disputed.  Since the opposite party had impleaded the deceased 1^st complainant as a surety of the said loan advanced to his son the 2^nd complainant,  the very exercise of lien over the deposit of Rs.50,000/- made by the deceased  1^st complainant  and the refusal of the opposite party to repay the deposit amount with accrued interest is undoubtedly the deficiency of service on his part.  Exhibit A4, series  has clearly proved that the deceased  1^st complainant was having serious illness and had to take medical treatment.  The opposite party had not taken any care even to give a reply to the notice sent by the deceased 1^st complainant through his counsel under Exhibit A2 and the perusal of the notice reveals the great amount of mental agony suffered and the financial difficulty experience by the deceased  1^st complainant.  Even at the end of the 3^rd paragraph of the complaint the deceased  1^st complainant has averred thus: காலத்தில் சிகிச்சை எடுக்க இயலாத நிலையில்  உடல்நிலை மேலும் மோசமாகி நாகப்பட்டினம் அன்சாரி மருத்துவமனையில் 25.01.2012 முதல் 27.12.2012 முடிய சிகிச்சை  பெற்று திரும்புியுள்ளார்.  அதற்கான தொகையை கடன்பட்டு செலுத்தியுள்ளார். மருத்துவ ரசீதுகள் தாக்கல் செய்யப்பட்டுள்ளது.   தொடர்ந்து சிகிச்சை பெற வேண்டும் இல்லாவிட்டால் உடனடி ஆபத்து  எனவும் மருத்துவர் அறிவுறுத்தியுள்ளார். இதற்கு பணமின்றி மனுதாரார் மிகுந்த சிரமத்தில் உள்ளார்.  இதனால் உயிருக்கு ஆபத்து ஏற்பட்டால் அதற்கு எதிர்மனுதாரரே பொறுப்பு. The said averments make it, clear and has revealed the grate amount of impact caused by the deficiency of service of the opposite party on the deceased  1^st complainant.  Therefore there is undoubtedly and indisputably deficiency of service on the part of the opposite party.

                        11. The learned counsel of the opposite party contended that the complainants 2 to 6 are not entitled to claim the compensation of Rs.1,00,000/- claimed by the deceased  1^st complainant for his mental agony and inconvenience caused to

him for the reason that it is purely a personal remady and the personal action dies with the person. The said contention is not acceptable by this Forum for the reason that there is deficiency of service on the part of the opposite party in impleading the deceased  1^st complainant as surety for the PMRY loan advanced to  the son of the 1^st complainant and further the very death of the 1^st  complainant is caused on 6.8.2013 during the pendency of this complaint only because of the mental agony and hardship caused to him as alleged by the other complainants , which is quite probable and believable as the averments in the complaint as  stated above has also revealed that the deceased  1^st complainant was badly  in need of finance to meet out his medical expenditure and had the opposite party repaid the deposit amount with accrued interest, he would have got  his longevity extended by undergoing the best medical treatment in the suitable Hospital. 

                        12. The another contention put forth by the learned counsel for the opposite party is that the complainants 2 to 6 as the legal representatives of the deceased 1^st complainant are liable to discharge the decree debt under Exhibit B2 from out of the estate of the deceased 1^st complainant.  The said contention is also not acceptable for the reason that the very exparte degree obtained by the opposite party against the deceased 1^st complainant and one K.Anbzhagan is irregular in view of the fact, that the loan advanced to the        borrower Senthilkumar is under the PMRY scheme for which the bank is not entitled to insist for security or surety.

                       

13. Point 2: In the result, the complaint is partly allowed.  The opposite party is directed to pay the deposit amount of Rs.50,000/-(Rupees fifty thousand only)  made by the deceased 1^st complainant under the deposit receipt no.1634004 dated 13.10.2008 with interest at the rate of 10.75% per annum till 13.10.2011 and then to the said maturity value with interest at the rate of 12% per annum from 14.10.2011 till the date of this order within 30 days from the date of this order, failing which the said maturity amount shall carry an interest at the rate of 18% per annum from the date of this order till the date of its realization.  Further the opposite party is directed  to pay the sum of Rs.50,000/-(Rupees fifty thousand only)  to the complainants 2 to 6 towards compensation for the deficiency of service of the opposite party as well as the death of the deceased 1^st complainant within 30 days from the date of this order, failing which the amount shall  carry an interest at the rate of 12% per annum from the date of this order, till the date of its realization.  The opposite party is further directed to pay the sum of Rs.5,000/-(Rupees five thousand only) the towards cost of this litigation.

                        14. The 2^nd and 3^rd complainant, the son and wife respectively of the deceased  1^st complainant are entitled to each 25% of the share of the entire amount paid by the opposite party ad the remaining 50% of shall be paid to the remaining  4^th  to 6^th complainants, the daughters of the deceased 1^st complainant, in equal shares among themselves.

This order is dictated by me to the Steno-Typist, transcribed, typed by him, corrected and pronounced by me on this  1^st  day of  December 2014.

 

 

    MEMBER I                                    MEMBER II                                      PRESIDENT

 

 

List of documents filed by the complainant

 

Ex.A1/Dt.13.10.2008: The Xerox copy of the receipt no.1634004, for the Fixed Deposit

    Amount of the complainant given by the opposite party.   

Ex.A2/Dt.   Nil             :  The Xerox copy of the notice sent by the complainant’s

      Advocate to the opposite party.

Ex.A3/Dt.20.12.2011: The postal acknowledgment card received by the opposite party.

Ex.A4/Dt.25.01.2012: The xerox copy of the Investigation Charges of the complainant

                                       Given by the Mehar Computer Lab, Nagapattinam.

Ex.A5/Dt.Mar. 2005  : The xerox copy of the Referal letter for the PMRY loan to the

    complainant given by the Professional Commerce Department.

Ex.A6/Dt.09.02.2012: The xerox copy of the Order passed by the District Munisif Court,

    Nagapattinam in the suit filed by the complainant.

Ex.A7/Dt.15.03.2012: The xerox copy of the another Order passed by the District

   Munisif Court,  Nagapattinam in the suit filed by the complainant.

Ex.A8/Dt.Nil              : TheXerox  copy of the application for Financial Assistance Under 

   PMRY scheme, submitted by the 2^nd complainant.

Ex.A9/Dt.Nil              : The xerox copy of the guideline for filling up of the said application

   form under PMRY scheme.

 

List of documents filed by the Opposite party.

 

Ex.B1/Dt.06.04.2011: The Xerox copy of the Judgement passed by the Ditrict Munisif

    Court, Nagapattinam, in O.S.50/2011 on its file.

 

Ex.B2/Dt.06.04.2014: The xerox copy of the ex exparte decree passed by the Distict

    Munsif Court, Nagapattinam in O.S.50/2011 on its file.

 

 

 

    MEMBER I                                    MEMBER II                                      PRESIDENT

 

 

DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

NAGAPATTINAM.

 

CC.No.17/ 2012

Order Dt.:01.12.2014.