BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 20th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.307/2015
(Admitted on 01.09.2015)
Mr. Sylvivan Julius Peris,
S/o Late Cyril D Peris,
Aged 71 years,
Residing at 260 East 9th Street,
Brooklynm, New York 11218,
U.S.A. represented by his sister and
General Power of Attorney Holder,
Smt. Veera D. Corera,
Aged 73 years,
D/o Late Cyril and Vida Peris,
Residing at 704, Albuquerque House,
Pandeshwara, Mangalore 575 001.
….. COMPLAINANTS
(Advocate for the Complainants: Sri PRR)
VERSUS
The Branch Manager,
State Bank of India,
Port Road,
Mangalore 575 001.
….....OPPOSITE PARTY
(Advocate for the Opposite Party: Sri BNK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainants against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The Complainant claims late Mrs. Vida Peris complainants mother had kept Rs.6,74,000/ in FD with opposite party on 5.2.2014 by mentioning complainant as nominee which matured on 5.2.2015. Complainant register Smt. Veera D Corera sister and general power of attorney holder approached opposite party on behalf of the complainant with redeem deposited amount which opposite party refused in spite of demand legal notice. Opposite party claim that power of attorney executed by complainant is dated 24.5.2007 at NewYork and his mother died in the year 2014. Hence refused to make payment hence contending there were deficiency in service seeks the reliefs claimed in the complaint.
II. Opposite party field version admits Mrs. Vida Peris was a customer and also FD maintained by her and that she died on 6.03.2014 and her nominee is Mr. Sylvivan Julius Peris residing in USA. When a customer executes a nomination in favour of person as per the Banking Regulation Act, the bank make payments to the nominee if the nomination in order. The present case GPA holder claiming payment is not a nominee. Hence the claim cannot be entertained this facts was explained to GPA holder about the procedure for paying the amount and also the GPA is executed on 24.5.07 at the New York and the FD deposit holder Vide Peris died in the year 2014 and no where there is mention in the power of attorney that the power of attorney holder is entitled to receive the money on his behalf of as a nominee of the account holder. Hence there is no deficiency in service seeks dismissal of the complaint.
2. In support of the above complainant Mrs. Veera D Corera filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 to C4 as detailed in the annexure here below. On behalf of the opposite party Miss. Manju E.S (RW1) Manager, also filed affidavit evidence and answered the interrogatories served on her.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and whether there is consumer dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
Heard Arguments on both sides. We have considered entire case filed on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Affirmative
Point No. (ii) : Affirmative
Point No. (iii) : As per the final order.
REASONS
IV. POINTS No. (i): Complainant is the son of the deceased account holder of an FD in opposite party’s bank a service provider is undisputed. Opposite party refused to make payment when complainant through his GPA Holder approached payment of the matured FD amount. Hence there is a relationship between the parties complainant the customer and the opposite party service provider and refusal on the part of the opposite party to make payment. Hence there is a dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
Points No. (ii): There are two ground on which opposite party has refused payment firstly the GPA is executed in 2007. Secondly the payment is sought by the GPA and not by the nominee in response of the deposit. In respect of the first objection, it is not the case of opposite party that on the basis of the GAP executed in 2007 payment cannot be made cannot be accepted. As we can make out there is nothing in the Power of Attorney Act or under any other statute requiring the principal to executes GPA either to renew or issue fresh GPA. Hence objection on this count of opposite party is rejected.
2. Nextly on the objection of opposite party that there is no mention in the GPA that the FD amount should be paid to the power of attorney holder and that the power of attorney was executed prior to the death of the account holder. When the power of attorney admittedly mentions complainant is entitled to act under the power of attorney including collection of money due to the complainant the amount in respect of which complainant seeks payments through this general power of attorney as per Ex.C2. There are specific clauses even in respect of accounts, suits, claims, demands, disputes at clause 5 and that clause 9 to managing/administering or sale of inherited properties as the FD amount being an inherited property and at clause 13 to file and receive bank documents to deposit withdraw money or obtain refund from any court, authority or office with reference to any or whatsoever proceedings. Thus on going through these clauses we are of the view that objection raised by opposite party is not at all sustainable in refusing to make payment to the GAP holder of the complainant is unjustified and in our view amounts to deficiency in service. Hence we answer point No.2 in the affirmative.
POINTS No. (iii): Hence the present complaint is liable to be allowed and opposite party shall be directed to pay the deposit amount of Rs.7,53,541/ to complainant with future interest at 9% from the date of maturity i.e. 5.2.2015 till the date of payment. Opposite party shall be directed to pay Rs.5,000/ as compensation and also cost of the complaint. Advocate fee fixed at Rs.5,000/. Wherefore the following
ORDER
The complaint is allowed with cost. Opposite party is directed to pay a sum of Rs.7,53,541/ (Rupees Seven lakh Fifty Three thousand Five hundred Forty One only) to complainant with interest at 9% per annum from the date of maturity i.e. 5.2.2015 till the date of payment.
2. Opposite party shall also pay compensation of Rs.5,000/ (Rupees Five thousand only) to complainant.
3. Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).
4. The above amounts shall pay within 30 day from the date of receipt of copy of this order
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 6 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 20th April 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 Complainants:
CW1 Mrs. Veera D Corera
Documents marked on behalf of the Complainants:
Ex.C1: : Xerox copy of the fixed deposit receipt
Ex.C2: 24.05.2007: Notarized copy of the general power of Attorney executed by the complainant in Favour of Mrs. Veera D Corera
Ex.C3: 07.08.2015: Office copy of the legal notice issued to the opposite party
Ex.C4: 18.08.2015: Reply notice issued on behalf of the Opposite party
Witnesses examined on behalf of the Opposite Party:
RW1 Miss. Manju E.S, Manager
Documents marked on behalf of the Opposite Party:
Nil
Dated: 20.04.2017 PRESIDENT
