BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 06th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.121/2015
(Admitted on 26.03.2015)
1. Mr. Jeevan Roshan DSouza,
S/o Late Valerian DSouza,
Aged about 35 years,
Residing at Valkaru Mane,
Kankanady, Bajal Post,
Mangaluru 575 027.
2. Smt. Jyothi Pramila DSouza,
W/o Jeevan Roshan DSouza,
Aged 28 years,
Residing at Kalkaru Mane,
Kankanady, Bajal Post,
Mangaluru 575 027.
….. COMPLAINANTS
(Advocate for the Complainants: Sri PRR)
VERSUS
The Branch Manager,
Mangalore Catholic Co-operative Bank Ltd,
Light House Hill Road,
Mangalore 575 001.
…........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri VA)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainants claim 1st complainant is the son of late Valerian DSouza complainant No.2 is the wife of complainant No.1. Deceased opened a joint S.B. account with opposite party No. 28031 which was either or survivor. The deceased also had A schedule fixed deposit of which complainant No.1 claim in respect of deposit Sl.Nos.1 to 3 complainant No.2 and Sl.No.4 and 5 complainant No.2 are entitled as nominees. Valerian D’Souza has executed a registered Will left on 23.7.2011 all his assets that had not been disposed of during his life time in favour of the complainants incurring complainant the sisters of complainant No.1 namely, (1) Zita Molly DSouza (2) Mrs. Neetha Wilma D’ Costa, (3) Mrs. Zeena Lavita DSouza have filed O.S. No.134/2014 before II Additional Senior Civil Judge, Mangaluru seeking partition of estate of late Valerian D’Souza with opposite party as the 4th Defendant. To the legal notice got issued by complainant on 13.11.2014 reply was got issued by opposite party refusing to obey complainants. Contending that under section 45(ZA) of Banking Regulation Act 1945 complainants are entitled for the schedule ‘A’ assets of the deceases hence seeks the relief claimed in the complaint.
II. Opposite party filed written version disputing the allegations of the complainants but admitting the S.B. Account No.28031 has paid. There is a question before consideration for which of the way deceases entitlement made Valerian D’Souza. Opposite party also received the notice on 8.8.2014 from Mrs. Zeeta Molly D’Souza through her counsel and informing the filing of the suit. Section 45(ZA) is not applicable to the facts of the case. Claiming opposite party had not done any deficiency in service seeks dismissal of the complaint.
2. In support of the above complainants Smt. Jyothi Pramila D’Souza filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite party Mr. Laura D’Cunha (RW1) Senior Manager, MCC Bank also filed affidavit evidence and answered the interrogatories served him and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties and notes arguments of the parties. Our findings on the points are as under follows
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order
REASONS
IV. POINTS No. (i): Without going into the Will executed by Valerian DSouza suffice to mention that the claim of complainants that they are the nominees in respect of these deposits as claimed in the complaint is not controverted by opposite party. As such there is relationship of consumer and service provider between the parties and there is also a live dispute as opposite party refused to pay the A Schedule deposit to the complainants as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in affirmative.
POINTS No. (ii): The learned counsel for complainant argued that a nominee in view of 45 (ZA) Banking Regulation Act 1949 the opposite party has no option but to make payment in favour of the complainants. Section 45 (ZA) of Banking Regulation Act says:
45 (ZA) Nomination for payment of depositors money: (1) Where a deposit it held by a Banking Company to the credit of one or more persons, the depositor or as the case may be, all the depositors together may nominate in the prescribed manner, one person to whom in the event of the death of the sole depositor or the death of all the depositors, the amount of deposit may be returned by the Banking Company.
(2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount of deposit from the Banking Company, the nominee shall on the death of the sole depositor or, as the case may be, on the death of all the depositors become entitled to all the rights of the sole depositor or as the case may be of the depositors in relation to such deposit to the exclusion of all others persons unless the nomination is varied or cancelled in the prescribed manner.
(3).....
(4) Payment by a Banking Company in accordance with the provisions of this Section shall constitute a full discharge to the Banking Company of its liability in respect of the deposit: Provided that nothing contained in this sub-section shall affect the right or claim which any person may have against the person to whom any payment is made under this Section”.
As we can make out from the above, Section 45 (ZA) of Banking Regulation Act does not give a right to the nominees to seek release of the funds in deposit. Instead it only protects the bank on release of the funds to the nominee. Rights of the claimants are not affected even if release of funds to them are not ordered.
2. In fact in Smt. Lakshmi Priyadarshini vs. Smt. Kamalamma and Another 2014 (2) KCCR 1776 (DB) it is held referring to section 45 (ZA) and in the Hindu Succession Act 1956 and section 45 (ZA) of the said above Act that the nomination in respect of the deceased’s does not barred to claim the amount.
3. In III (2001) CPJ 6 (NC) between Uco Bank appellant M/s Bhogals & Anr Respondents referring to section 11 of Consumer Protection Act 1986 it is held:
Consumer Protection Act, 1986- Section 11 Bank, Jurisdiction, Civil Suit Complainant got overdraft loan facilities in the year, 1989 without disclosing that he was 1984 riot victim SBI in the year 1992 came out with a scheme a Grant of Interest Subsidy to 1984 riot victims in the deserving cases Complainant applied for subsidy Found not eligible according to scheme Civil litigation between the parties is already pending State Commission allowed the complaint Hence appeal Whether State Commission should have proceeded with the complaint?[No].
Ongoing through these cases it is clear when the suit filed by complainants own sister before the Addition Senior Civil Judge Mangalore is still pending which was also disbursed by complainants in the complaint. We are of the view that it is not just and proper for us to order payment against opposite party to complainants prayed in the present complaint as competent Civil Court is already dealing the matter we are of opinion that opposite party being already a party to the civil case cannot be held deficiency on the part of the opposite party. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 6th March 2017
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Smt. Jyothi Pramila D’Souza
Documents marked on behalf of the Complainant:
Ex.C1: 23.07.2011: Xerox copy of the Will executed by late Valerian DSouza
Ex.C2: 13.11.2014: Office copy of the legal notice issued by the Complainants to the opposite party
Ex.C3: 19.11.2014: Xerox copy of the reply sent by the opposite Party to the complainants Advocate
Ex.C4: 14.08.2014: Xerox copy of the plaint in O.S. No. 134/2014 On the file of 2nd Addl, Senior Civil Judge, Mangalore.
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Laura D’Cunha, Senior Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: 08.08.2014: Copy of the Notice issued by Advocate Mr. M.K. Ashok on behalf of his client Zeeta Molly DSouza
Ex.R2: 07.10.2014: Certified copy of the written statement filed by Jeevan Roshan D’ Souza in O.S 134/2014 on the file of 2nd Adll. Sr. Civil Judge Court Mangalore.
Dated: 06.3.2017 PRESIDENT
