DATE OF FILING: 28.09.2016
DATE OF DISPOSAL: 11.01.2018
Dr. Alaka Mishra, Member (W):
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in banking service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievances before this Forum.
2. Briefly stated the case of the complainant is that the complainant and his wife P. Lakshmi had a joint S.B. Account bearing No. 518645759 in the Indian Bank, City High School Road, Berhampur. The complainant had a balance amount of Rs.18,781.50 on 31.07.2013. The complainant had issued a cheque for Rs.7,881/- bearing No. 800041 dated 02.08.2013 in favour of National Insurance Company Ltd towards health insurance premium and the cheque was presented by the Insurance Company for collection through its Banker ING Vysya Bank Ltd., Vizayanagaram, Andhra Pradesh. The ING Vysya Bank had returned the cheque to the Company on 16.08.2013 regarding the dishonor of the cheque with the reason of inoperative account. As such the insurance policy of the complainant and his wife each of Rupees Two lakhs was lapsed due to non-payment of premium in due time. There was sufficient amount in the S.B. Account of the complainant and there is no reason for dishonoring the cheque issued in favour of the National Insurance Company. The complainant had deposited cheque in the S.B. Account No.518645759 from 30.09.2011 to 31.07.2013 and while crediting the cheque in all the times, the O.P.No.1 bank used to deduct the clearance amount from the deposits of the complainant. When deposits are made and the bank deducts the clearance charge from the account, there is no question of the account as inoperative. The complainant had issued a letter to the O.P.No.1 & 2 on 30.05.2014 claiming compensation of Rs.4,00,000/- towards deficiency in service by the O.Ps. Both of them received the notice and the O.P.No.2 had sent a reply on 10.06.2014 to the notice dated 30.05.2014 and in the reply the O.P.No.2 had clearly stated that the account will became inoperative if the customer has not routed any transaction in the account for the last two years to safeguard the interest of the customer. The complainant was making transaction in the account by depositing the cheque and Bank was accepting the cheque and was clearing the same by deducting the charges as per rule clearly proves that the S.B. account of the complainant was not at all inoperative. While the O.P.No.1 returned the cheque dated 02.08.2013 had debited an amount of Rs.70.00 towards cheque return charges. If the account was inoperative the Bank should not have cleared the cheques presented in Bank and should not have deducted any service charges from the account of the complainant. Generally payments in favour of Government Departments, Public Utility services and Insurance Companies should never be returned even if the account is put in “Inoperative”. In the present case the complainant was transacting the account and the O.P.No.1 is accepting the cheques as such there is no question of the account being inoperative. The complainant had made a complaint before the Banking Ombudsman for Odisha, Reserve Bank of India, Bhubaneswar claiming damages of Rs.25,00,000/-for the negligence service of O.Ps. The Ombudsman had replied that as the claim of compensation is more than ten lakhs which is not within the pecuniary jurisdiction of the Forum and rejected the complaint on 04.12.2014 with a liberty to approach any other grievance Redressal Forum according to law. Accordingly the complainant files the case before the permanent Lok Adalat, Ganjam. The Forum has returned the case as the Bank and other financial Institution has not been notified as public utility service. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay a compensation amount of Rs.19,00,000/- towards the mental agony in the best interest of justice.
3. Upon notice the O.Ps filed version through his advocate filed written version and arguments. In the written version/arguments it is stated that the allegations in the petition are all not true and the complainant is put to strict proof of the same. The averments made in para-1 of the petition that the complainant and his wife P.Laxmi are the A/C holder’s with the O.P.No.1 Bank is not denied. The O.P.No.2 being the Zonal Manager is not a necessary party for purpose of the petition. The averments made in para-2 of the petition that the complainant had a balance amount of Rs.18,781.50 paisa as on 31.07.2013 is a matter on record. The complainant knowingly concealed the fact admitted by him as to the impugned S.B. account stands in the joint names of his wife also. In the circumstances the wife should have been also made a party and non-joinder of the necessary party, the petition is liable to be dismissed. The other allegations in Para-2 of the petition that he issued a cheque bearing No.80041dated 02.08.2013 for Rs.7,881/- in favour of the National Insurance Co. Ltd. towards Health Insurance premium is a matter to the proved by the complainant. It is false to say that the O.P.No.1 Bank dishonored the said cheque, in fact the O.P.No.1 learnt that the said cheque was presented through ING Vysya Bank, Vizayanagaram for claiming with the Branch Manager, Indian Bank at Vizayanagaram. The Banking rules mandatorily insist for safety purposes to comply by every customer the procedure called “know your customer”. It is the customer who should take efforts to satisfy the bank about his own identity as provided under banking laws. In the instant case the complainant is found to have ignored to get his identity confirmed under “KYC” scheme. Further the presentation of the cheque for clearance by the ING Vysya Bank Ltd., Vizayanagaram is said to have been made not at Berhampur Branch but at Vizayanagaram branch. It is evident from the above that the Berhampur branch is in camera regarding the alleged acts of the complainant as well as his banker that is INV Vysya Bank, at Vizayanagaram. The said bank is also a necessary party to this dispute and non-addition is fatal to the petition and the petition is not filed in proper forum and is liable to be dismissed. The averment made in Para-3 regarding the outstanding balance not specifically mentioned was vague in nature. The complainant admitted that his account was kept under inoperative account. As per banking rules the depositor must operate the account by withdrawing the amounts at least twice in a year. In the instant case since the petitioner failed to observe the rules and norms, his S.B. account was listed under inoperative account and unless it is regularized as per the rules, the mechanism fails until the same is regularized. The plea of the petitioner that the O.P.No.1 bank committed deficiency of service does not arise. In para-4 of the petition that the complainant issued a letter to O.P. Nos 1 & 2 on 30.05.2014 claiming compensation of Rs.4,00,000/- is a matter on record. There is no basis to claim of Rs.4,00,000/- as compensations towards the deficiency of service as there is no deficiency of service as alleged by the complainant. It is the burden of the complainant to follow the banking rules as the banks are expected to deal prudently and with much caution while dealing with public money. The complainant is put to strict proof of the same to the extent that he has not violated the banking norms and that he maintained his account alive. In para-5 an amount of Rs.70/- was debited arbitrarily is not correct since the service of bank remain constant even if the customer does wrong. The bank is entitled to charge for the work done. In para-10 is a suicidal plea raised by the complainant more so claiming the damages at Rs.25,00,000/- before Banking Ombudsman as against the claim made in his notice dated 31.07.2013 at Rs.4,00,000/-. The complainant is stopped from making speculative claims without any basis. The same is evident from the fact in Para-12 he claims an amount of Rs.20,00,000/- for mental agony and for the deficiency of service but in para-13 of the petition he values the dispute at Rs.19,00,000/-. The complainant is uncertain about his own stand claiming a speculatively different amount. Thus there is no basis specifically pleaded for computing such amounts. Hence the O.Ps prayed to dismiss the case with costs.
4. On the date of final hearing of the consumer dispute, the learned counsels for the complainant as well for the O.Ps are present. We have heard the matter from both sides at length and have gone through the materials and have also perused materials submitted by both parties in support of their case placed on the case record. During the course of hearing of the consumer dispute, the learned counsel for complainant submitted that the complainant issued a cheque for Rs.7,881/- bearing No.800041 dated 02.08.2013 where his account balance was Rs.18,781.50 for payment of premiums towards a health insurance policy for collection through its Banker ING Vysya Bank Ltd. Vizayanagaram but cheque was returned to him with reason of inoperative of account of the complaint. So he could not make payment of the insurance premiums as a result the said insurance policy was lapsed as contended by the learned counsel for the complainant. Complainant further stated that collection charges of Rs.70/- was deducted by the bank from his account which proves beyond doubt that the said account was operative. When the account of the complainant is operative and sufficient balance was there, the O.Ps deliberately mentioned inoperative account and dishonoured the cheque by the insurance company is a proved act of negligence act of the O.Ps so he has faced a lot of problems and his insurance policy was lapsed for which he has filed this consumer dispute with a prayer to direct the O.Ps to pay Rs.19,00,000/- compensation for mental agony and financial loss in the interest of justice.
5. Per contra, the learned counsel for O.Ps submitted that complainant never approached to the Bank for such irregularities. Learned counsel for the O.Ps stated that there is non-joinder of necessary parties in the present suit. Further, it is contended that the wife of complainant namely P.Laxmi is co-account holder is also a necessary party in this case and she is not added as a co-petitioner so the case is not maintainable. The complainant approached to P.L.A. and Banking Ombudsman where the petition was rejected hence this case is not maintainable in eye of law. It is specifically contended that the cheque was dishonoured by the insurance company due to inoperative of the account of the complainant and for that the complainant has never complained before the O.P. bank hence there is no deficiency in service. It is further contended that in this case the complainant has stated that the bank has charged Rs.70/- towards cheque return charges that does not mean the account was not inoperative. It is duty of the complainant/account holder to keep in touch with the bank and make regular transactions. He also argued that due to non-submission of KYC form and up-to-date proof of identity by the account holder it was inoperative and for that his cheque bearing No.80041 dated 02.08.2013 Rs.7,881 in favour of the National Insurnace Co. Ltd towards health insurance premiums was dishonoured due to the own fault of the present complaint hence there is no deficiency in service on part of the O.Ps and the Forum may dismiss the case with cost in the interest of justice.
6. We have heard the pleadings of parties at length and have given thoughtful consideration to it. We have also carefully perused the materials filed by both the parties placed on the record. On perusal of the case record, it is found that there is no dispute and doubt that the present complainant is a bona fide consumer under O.P.No.1 bank. From the arguments, it reveals that the complainant issued a cheque as discussed above in favour of National Insurance Company Ltd towards payment of premiums for health insurance policy of the complainant. It also reveals that the O.Ps debited an amount of Rs.70/- from the account of the complainant towards cheque return charges which prove beyond doubt that the account was operative. It is also a proved fact that the said cheque issued by the complainant for payment of premium of health insurance policy of the complainant returned to the complainant without serving the purpose. Hence, the complainant faced harassment and inconvenience where complainant having sufficient funds in his account and cheque was dishonored due to the reason shown as non-operative by the O.P. Bank. In the present case the complainant was transacting the account and the O.P.No.1 is accepting the cheques as such there is no question of the account being inoperative. Moreover, it is a fact which is beyond any doubt or dispute that the O.P.No.1 has debited a sum of Rs.70/- from the account of the present complainant towards cheque return charges which establishes that the account of the complainant was operative. In our considered view returning of the cheque even after sufficient balance in account of the complainant is a case of deficiency on part of the O.P. bank for which liable to pay compensation. The complainant was put to harassment by the O.P.No.1 for which the O.Ps are liable to pay compensation and cost to the complainant.
7. As far as the issue of compensation and cost is concerned we would like to say that in this case the complainant has claimed an amount of Rs.19,00,000/- as compensation for harassment, mental and financial loss. However, he has not filed any cogent and convincing documentary evidence with regard to his loss and in absence of the same we are not convinced to award such huge amounts. But we are convinced to award a modest compensation amount for the harassment which we quantify Rs.2,000/- which will be just and proper as per the fact and circumstance of the case. Similarly, we also direct the O.Ps to pay a sum of Rs.1,000/- towards cost of litigation since the complainant was forced to file this consumer dispute with the help of an advocate and paid the court fees for the negligent act of the O.P. No.1 and also sustained loss due to deficiency in service of O.Ps. In view of the above discussions and considering the fact and circumstances of the case, we partially allowed the case of the complainant against O.Ps who are liable to pay Rs.2,000/- towards compensation along with Rs.1,000/- as cost of litigation to meet legal expenses.
8. In the result, we allowed the case of complainant partially against O.Ps who are jointly and severally liable to pay Rs.2,000/- to the complainant towards compensation along with Rs.1,000/- as cost of litigation to meet the legal expenses. The above amounts shall be paid by the O.Ps to the complainant within 45 days of the receipt of this order failing which the complainant is at liberty to recover the whole amounts under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
9. The order is pronounced on this 11th January 2018 under the signature and seal of this Forum. The office is directed to furnish copy of this order to the parties free of cost as per rules. A copy of the order be sent to the server of
