DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 29^th day of September 2020

Present   : Sri.V.P.Anantha Narayanan, Member (President I/c)

                 : Smt.Vidya.A, Member                                                    Date of Filing: 16/05/2019

CC No.163/2019

1. Krishnan,

   S/o.Karuppan,

   Kallithan Veedu,

   Kodumb, Palakkad.

2. Rugmini,                                                                              -  Complainants

   W/o.Krishnan,

   Kallithan Veedu,

   Kodumbu, Palakkad.

(By Adv.Raghavan Unni.V)

Vs

The Branch Manager,

The Palakkad Dist. Co-op. Bank,                                             -  Opposite party

Manappullikkavu Branch,

Palakkad- 13.

(By.Adv.M.S.Skaria)

O R D E R

By Sri.V.P.Anantha Narayanan, Member (President I/c)

Brief facts of the complaint.

            This complaint is filed by the complainant for getting relief from the opposite party for the deficiency in service committed by it that without standing instructions of the complainant the opposite party has transferred Rs.32,000/- from the joint account of the complainants to the loan account.  Complainants further plead that they were regularly repaying the loan and no dues are pending.  Also no intimation was given by the opposite party bank about the transfer.  Only when the complainants came to withdraw the amount from their account in the opposite party bank, they came to know that the amount was already transferred from their SB account to the loan account and as a result the complainant’s were put to difficulties by the act of the opposite party bank as the amount was kept for the treatment of their son.  The complainants immediately sent a lawyer notice to the opposite party bank to re-credit the amount to their SB account, but the opposite party bank did not do so.  According to the complainants the opposite party bank did not tender any evidence but stated that as per the Kerala Co-operatives Act section 69 (a) this Forum lacks jurisdiction which according to the complainants is not correct and this Forum has got absolute jurisdiction to redress the complaint.  Complainants further plead that the opposite party bank has done this act hoping that the complainants will not question this act.  They are ignorant of the opposite party’s act.  According to the 1^st complainant, being a School Master, he was very alert and hence he filed this complaint.  The opposite party is liable to compensate the complainants who had undergone severe mental agony due to the arrogant and illegal act of the opposite party.  There is an absolute deficiency in service on the part of the opposite party.  The complainants produced documents and the 1^st complainant himself came forward and tendered evidence to substantiate his case.  According to him he repeatedly requested the opposite party to re-credit the amount to his SB account and the opposite party sent a reply notice stating false facts.  The complainants suffered mental agony and monetary loss due to the deficiency in service of the opposite party bank who failed to tender any evidence to substantiate its version.  Hence the complainants pray to this Hon’ble Forum that since they have suffered loss due to the act of the deficiency in service on the part of the opposite party bank the complaint is filed.  Complainants also prays that the Hon’ble Forum is requested to consider the complaint, to retransfer Rs.32,000/- transferred from complainant’s joint SB account to the loan account, to provide Rs.50,000/- compensation for mental agony due to opposite party’s deficiency in service and to pay the cost of proceedings of this case. 

            The complainant was admitted and notice was sent to the opposite party to enter their appearance and file version.  In the version filed by the opposite party it contends that the complaint is not maintainable lawfully and factually and is devoid of good faith.  Concealing true facts, this complaint being made should be dismissed.  Representing PDC bank in the legal proceedings the General Manager of the bank was not made a party in the list of opposite parties array.  Hence this complaint suffers from the limitation of nonjoinder of necessary parties.  In addition as per section 69 (2) of Kerala Co-operatives Act for considering this complaint this Hon’ble Forum lacks jurisdiction.  For this reason alone the above complaint is not legally maintainable.  This opposite party also contends that the averments in this complaint are not correct and made intentionally for the purpose of this complaint only.  Except the complainants averments that the complainants are joint SB account holders of Manappullikavu Branch of PDC bank and on 17-03-2018 they had taken a loan of Rs.5,95,000/, other averments in the complaint are not correct and hence denied by this opposite party.  This opposite party contends that the reply notice sent to this opposite party may be taken as part of this version.  This opposite party further contends that the statements made in the complaint are quite false and made for the purpose of this complaint, that no intimation was given by the opposite party bank to the complainants about loan arrears, without standing instructions of the complainants Rs.32,000/- was transferred to the loan account, when the complainants for the purpose of treatment of their son came to the bank to withdraw amount, transfer of the amount was known to them, due to the act of the opposite party bank complainants had suffered hardship and loss, from many persons money had to be borrowed for interest which caused them financial loss and mental agony.  This opposite party also argues that lawfully and sincerely only they acted and there was no deficiency in service on the part of this opposite party and hence as demanded by the complainants they have no right to claim any relief; on the other hand the opposite party is entitled for compensatory cost for tarnishing the image of the opposite party.  Hence this opposite party prays to this Hon’ble Forum for dismissing this complaint with compensatory cost to the opposite party. 

            Complainant filed chief affidavit.  Opposite party filed IA 287/2019 seeking permission to cross examine the complainant, and complainant submitted no objection to this IA.  Hence IA allowed.  Complainant was cross examined as PW1 and Exts.A1 to A3 were marked from the side of the complainant and Exts.B1 and B1 (a), (b series) were marked from the side of the opposite party.  Both parties were heard.   

            The following issues are taken for consideration in this case. 

1. Whether there is any deficiency in service and unfair trade practice from the part of the opposite party bank?
2. If so, the relief and cost which the complainants are entitled for?

Issues 1 & 2 in detail

            Ext.A1 is a lawyer notice sent by complainants counsel to the opposite party asking the latter to re-credit within seven days Rs.32,000/- transferred from complainants joint SB account number:-03901010001634 to the loan account in the opposite party bank branch without their standing instructions.  Ext.A2 is a pass book which proves the maintenance of SB joint account number:-03901010001634 by the complainants (1^st complainant and his wife) in PDC bank, Manappullikavu branch which shows that Rs.32,000/- was debited to their SB account on 20-04-2019 by way of repayment of 03905980000630 number loan account.  Ext.A3 is loan account pass book which shows loan account number as 03905980000530, amount of loan as Rs.5,95,000/-, period of loan as 84 months, interest rate as 13%, penal interest rate as 2%, name and address of loanee, as on 04-09-2019 outstanding loan amount was Rs.5,00,401/- etc, which proves that as on the date of filing this complaint (16-05-2019), outstanding loan amount was Rs.5,00,401/-. 

            Ext.B1 is a copy of registered reply notice sent by opposite party banks counsel which denies the allegations of the complainants leveled against the opposite party in their notice dated.24.04.2019 but admits that the complainants have joint SB account in the opposite party bank in which the opposite party was the Manager, loan was taken in the name of complainant’s wife, on 20.04.2019 towards the said loan account Rs.32,000/- was transferred.  Ext.B1 (a) is the original acknowledgment card which proves the receipt of registered reply lawyer notice sent by opposite party’s counsel to the complainants counsel.  Ext.B1 (b) is original postal receipt which proves sending of registered reply notice to the complainant’s counsel by opposite party’s counsel. 

            We have perused the affidavit and other documentary evidences submitted by both parties and understood that 2^nd complainant has taken a loan of Rs.5,95,000/- on 17-03-2018 repayable in 84 monthly instalments at 13% interest rate which is clear from Ext.A3.  We observe that on the date of filing the complaint amount outstanding in their loan account was Rs.5,00,401/-; and the complainants have a joint SB account in the Manappullykavu branch of opposite party bank.  The complainant during his cross examination as PW1 before this Forum has deposed that “BZyw _m¦n \n¶pw 6 e£w cq] tem¬ FSp¯ncp¶p.  Xncn¨Shv XpSÀ¨bmbn hogvN h¶Xn\ptijw 17þ03þ2017 \v, 5,95,000/-þ cq] hmbv] ]pXp¡n hm§nbn«p­v.  ]pXp¡n \ÂInb tem¬ Xncn¨Shn\v XpSÀ¨bmbn hogvN h¶p icnbsÃ? (q). hogvN h¶n«nà (a) hogvN h¶n«p­v F¶v _m¦n kq£n¡p¶ tcJIÄ sIm­v ImWps¶¦n Fs´¦nepw ]dbm\pt­m? (q). hogvN h¶n«nà AS¨n«p­v (a)”  Which proves that after the renewal of loan of Rs.6 lakh no default is seen committed by the complainant; also no standing instructions are seen given by the complainant to the opposite party bank to transfer Rs.32,000/- from their joint SB account to the loan account which is quite clear from the 1^st complainant’s deposition before this Forum as PW1.  1^st complainant’s deposition before this Forum as PW1 in this regard is ‘’`mcybpsam¶n¨v tPmbnâv A¡u­v Hm¸¬ sN¿pt¼mtgm, AXn\ptijtam _m¦n Hcp standing instruction sImSp¯n«nÃ.'' Which proves that to transfer Rs.32,000/- from their joint SB account to the loan account no standing instructions are given by the complainants to the opposite party.  We also see that the opposite party bank is not seen to have sent any prior notice/given any advance intimation to the complainants regarding the existence of huge arrears in the loan account.  We also view that without sending any prior notice or without giving any prior intimation to the complainants the opposite party bank has debited on 20-04-2019 complainants joint SB account number:-03901010001634 with Rs.32,000/- by way of repayment of 03905980000630 numbered loan account and transferred the same to the loan account which enough proves commission of deficiency in service and unfair trade practice on the part of the opposite party bank which is quite clear from Ext.A2. 

            At the same time we are of the view that as per loan account pass book (Ext.A3) as on 04-09-2019 2^nd complainant’s loan account arrears was Rs.5,00,401/- and complainants are not seen to have regularized the same.  Also complainants are not seen to have submitted any documents and treatment records to prove that their son was under treatment in MM hospital, Madras and for the treatment of their son Rs.32,000/- was required by the complainants. 

            Thus we view that there has occurred a grave deficiency in service and unfair trade practice from the part of the opposite party bank by transferring Rs.32,000/- from complainants joint SB account with the opposite party bank to 2^nd complainant’s loan account without giving them prior notice and intimation about such a transfer which must have caused to the complainants huge mental agony because the amount set apart of Rs.32,000/- for their son’s treatment could not be availed by them and used for their son’s treatment.

Under the above circumstances the complaint is partly allowed. 

            We order the opposite party bank to pay Rs.10,000/- (Rupees ten thousand only) by way of compensation for mental agony suffered by the complainant due to transfer of Rs.32,000/- from their joint SB account to the loan account and Rs.2,000/- (Rupees two thousand only) by way of cost of proceedings incurred by them.  But we cannot allow the prayer of the complainant to direct the opposite party to retransfer Rs.32,000/- debited to their joint SB account and transferred to the loan account, because 2^nd complainant’s loan account shows a huge outstanding amount of Rs.5,00,401/- as on 04-09-2019. 

This order shall be executed within one month from the date of receipt of this order, failing which complainants are also entitled to realize from the opposite party bank 9% interest p.a on the total amount due to them from the date of this order till realization.       Pronounced in the open court on this the 29^th day of September 2020.

                                                                                                                 Sd/-

         V.P.Anantha Narayanan

                                                           Member (President I/c)

                                                                                      Sd/-  

                                                                                                 Vidya.A

              Member 

Appendix

Exhibits marked from the side of complainants

Ext.A1   - Lawyer notice sent by complainants counsel to the opposite party bank

Ext.A2  - SB account Pass book which proves the maintenance of SB joint account by the

               complainants (1^st complainant and his wife) in PDC bank, Manappullikavu branch

Ext.A3  - loan account pass book which shows loan account number as 3905980000630,

               amount  of loan as Rs.5,95,000/-, period of loan as 84 months, interest rate as 13%,

               penal interest rate as 2%, name and address of loanee, as on 04-09-2019, outstanding

               loan amount as Rs.5,00,401/-

Exhibits marked from the side of opposite party

Ext.B1   - copy of registered reply notice sent by opposite party bank’s counsel to

               complainants counsel

Ext.B1 (a) - original acknowledgment card which proves that registered reply lawyer notice

                   sent by the opposite party’s counsel to the complainants counsel has been

                   received by the complainants counsel

Ext.B1 (b) - original postal receipt which proves sending of registered reply notice to the

                   complainants counsel by opposite party’s counsel

Witness examined on the side of complainants

PW1       -  Krishnan

Witness examined on the side of opposite party

Nil

Cost

                 Rs.2,000/-