Orissa

Cuttak

CC/147/2017

Smt. Reena Sahoo - Complainant(s)

Versus

The Branch Manager,Odisha Gramya Bank - Opp.Party(s)

S Das

19 Dec 2019

ORDER

                IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.147/2017                            

Smt. Reena Sahoo,

Vill/PO:Sankhatras,P.S:Cuttack Sadar,

Dist: Cuttack,Odisha,Pin-753011.                                   …Complainant.

 

Vrs.

       

1.        The Branch Manager,

Odisha Gramya Bank,Sankhatras Branch,

At/PO:Sankhatras,PS:Cuttack Sadar,

Dist:Cuttack,Odisha,Pin-753011.

 

2.        The Chairman,

Odisha Gramya Bank,

At:Gandamunda,PO:Khandagiri,

Bhubaneswar,Dist:Khurda,Odisha,

Pin-751030.                                                                    … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     06.12.2017

Date of Order:   19.12.2019

For the complainant:          Mr. Sabyasachi Das,Adv. & Associates.

For Opp.Parties 1 & 2:        Mr. T.Mishra,Adv. & Associates.

 

 

Sri Dhruba Charan Barik,President.

 

The complainant has filed this case alleging therein deficiency in service and unfair trade practice against the O.Ps and seeking appropriate relief against them in terms of her prayer in the consumer complaint.

Since facts of this case as well as of the C.C Case No.148/2017 are similar and the parties in those cases are more or less same, they rely upon the same set of annexures in both the cases.

1. Facts of the complainant’s case stated in a nutshell are that the complainant is an account holder of S.B. Account No.3625 maintained with O.P No.1.  She used to make cash deposit in her account at different times and as such the total deposit was to the tune of Rs.53,328/- only.  She has filed the photo copies of the S.B Account No.3625 as well as the deposit receipts which have been respectively marked as Annexure-1 & 2.

On 24.5.2016 the complainant presented a withdrawal slip at the cash counter of O.P.1 for withdrawal of Rs.40,000/- from her account to meet the medical expenses of her family members but such withdrawal was refused by O.P.1 on the ground that only Rs.664/- was the balance amount in her account as on the said date.Being aggrieved she lodged her complaint before O.P No.2 on 27.5.2016 who assured her to look into the matter and in fact nothing was done.Having no other alternative, she was constrained to send a pleader’s notice on 1.6.2016 to O.P.1 expressing her grievance and seeking immediate remedy to her problem.The photo copy of the said pleader’s notice has been marked as Annexure-3.Thereafter O.P.1 sent reply to her vide letter No.Misc.47/16 dt.26.7.16.Photo copy of the said reply of O.P.1 has been marked as Annexure-4.Annexure-5 series are the certified copy of the order dt.3.12.2007 passed by the Hon’ble Court in OJC No.12639/2000 and certified copy of the counter affidavit of O.P.1 filed in that OJC.

It is stated that because of deficiency in service caused to the complainant by refusing withdrawal of Rs.40,000/- to the complainant from her S.B. Account No.3625 she has undergone serious mental agony and harassment.For the reasons stated above, the complainant filed the present complaint against the O.ps with the prayer that they be directed to allow her to withdraw Rs.40,000/- from her S.B Account No.3625, to pay Rs.15,000/- towards compensation for mental agony and harassment caused to her and to pay Rs.10,000/- to her towards litigation cost together with other reliefs as deemed fit and proper in the interest of justice.

2. The O.Ps have filed written version of their case.  It is stated that there is no cause of action to file this case and the complainant has not approached this Forum in clean hands.  She is guilty of suppression of material facts.  Interalia it is stated that the complainant used to deposit money with one of the Ex-staff member Sri S.C.Mishra who was working as clerk-cum-cashier in the bank of O.P.No.1 and indulging in irregular practice of collecting money from various persons including the present complainant, though the said collection was made on behalf of O.Ps bank.  But in fact the said amount after being collected was never deposited in the bank’s book of account.  The said staff was playing foul with the customers.  It is specifically stated that the said amount had been deposited with that clerk-cum-cashier in his house and not across the cash counter of the Branch Manager of the Bank during working hours.  As such it is stated that the bank owns no responsibility for any misappropriation of money made by the said clerk.

It is also stated that criminal case has been initiated against the concerned clerk-cum-cashier S.C.Mishra and the matter is still sub-judice.It is further revealed from the version that the present complainant along with other persons who have been aggrieved by the misappropriation of fund committed by the said clerk-cum-cashier has filed OJC NO.12639/2000 before the Hon’ble High Court and that case has been disposed of vide order dt.3.12.2007 with the observation that a criminal case has been initiated against the cashier of the bank and the matter is now under trial in the court of learned Judicial Magistrate First Class, Cuttack.Further it has been held that this court cannot pass any order upon the bank to refund the money which has not been entered in the bank’s register.

It is important to leave a mention here that there are two other writ applications vide OJC No.12466/2000 and 11649/2000 filed by other persons who have been similarly aggrieved for redressal of their grievances before the Hon’ble Court.According to the O.Ps, when the order passed by the Hon’ble High Court in OJC NO.12639/2000 has not been assailed in appeal, it has reached its finality and is binding upon the parties.

In view of the above, it is stated that the present case is devoid of merit and may be dismissed with heavy cost.The O.P.1 has filed the photo copy of the order dt.3.12.2007 passed in OJC No.12639/2000 and it has been marked as Annexure-A.

One Sangeeta Mohanty, the then Branch Manager of Odisha Gramya Bank,Sankhatrash Branch, Cuttack has filed an affidavit evidence stating all the material particulars in support of the averments made in the written version of the O.Ps.

3. We have heard the learned counsel for both the sides and gone through their respective pleadings and annexures.  We have also gone through the affidavit evidence filed on behalf of the O.Ps in support of their stand.
4. In the instant case admitted facts are that one Sarat Chandra Mishra was working as clerk-cum-cashier in the O.P1’s bank from 27.10.1993 to 10.07.2000 and that he misappropriated fund collected from the complainant during his incumbency as the clerk-cum-cashier.  Although counterfoils of such cash deposit duly filled in by the said cashier have been supplied to the complainant with necessary entries made in her S.B. Account Pass Book No.3625 yet no corresponding entries have been made in the bank’s book of accounts.  Annexure-1 is the photo copy of the S.B. Account pass book of the complainant and Annexure-2 series are photo copies of such counterfoils in respect of such deposits filed in this case.

The real controversy between the parties crops up on 24.5.16 when the complainant presented a withdrawal slip across the cash counter of the bank of O.P.1 for withdrawal of Rs.40,000/- from her account to meet the medical expenses of her family member but it was refused on the ground of insufficient fund at the credit of the complainant.Only Rs.664/- was the balance amount lying at her credit by then.

The short question that falls for determination in this case is whether misappropriation of fund amounting to Rs.53,328/- by the said cashier from O.P1’s bank can make the O.Ps vicariously liable to satisfy the relief claimed by the complainant.It is an admitted fact that such clerk-cum-cashier was subordinate to the O.Ps during his incumbency in the said bank.No satisfactory evidence has been brought on record to prove that Aannexure-1 & 2 are false documents and that the said clerk-cum-cashier collected the amount beyond office hours at his residence.Failure of the said clerk-cum-cashier if any to make corresponding entries in the bank’s book of account in respect of the cash received from the complainant on various dates, relates to internal affairs of the bank in administrative side and the complainant has nothing to do with regard to internal maintenance of records and register etc of the said bank.It squarely falls within the domain of the O.Ps who are immediate superiors of the said clerk to take suitable action against him. Therefore as submitted by the learned counsel for the complainant that the O.Ps cannot escape their vicarious liability of any misappropriation or fraud committed by their subordinate in office holds good.Further it is an admitted fact as revealed from the affidavit evidence filed on behalf of the O.Ps that a criminal case has already been filed against the said clerk-cum-cashier for misappropriation of fund and he has in the mean time been suitably punished.

It is further submitted by the learned counsel for the O.Ps that the clerk-cum-cashier is a necessary party to this case who has not been arrayed as such and for that reason; the consumer complaint is bound to fail.Contrary to it, the learned counsel for the complainant has categorically stated that there is no such pleading in the written version by the O.Ps and the consumer complaint cannot be dismissed solely on the ground for non-joinder of necessary parties, if it is otherwise found to have been proved to the satisfaction of the court.That apart law is well settled that the customer of a bank shall not be made to suffer for misappropriation of fund or fraud committed by its subordinate employee.There is nothing to disagree with the submissions of the learned counsel for the complainant.

With regard to suppression of material evidence, it is stated that learned counsel for the O.P. that the complainant has not approached the Forum in clean hand and there is no averment with regard to filing of OJC NO.12639/2000 before the Hon’ble Court in the complaint petition.But it is specifically revealed that the complainant has filed the certified copy of the judgment of the Hon’ble High Court passed in OJC NO.12639/2000 which has been marked as Annexure-5. In that view of the matter it cannot be held that there was suppression of material fact in any manner before this Forum.The learned counsel for the complainant has fairly submitted that the order of the Hon’ble High Court passed vide Annexure-5 has been wrongly interpreted to suit the purpose of the O.Ps.It is submitted that some other persons who have been similarly aggrieved by the said clerk-cum-cashier have filed two separate OJCs bearing No.12466/2000 and 11649/2000 seeking appropriate relief from the Hon’ble Court.A conjoint reading of the orders of the Hon’ble Court passed in the aforesaid OJCs after analogous hearing reveals that no where the Hon’ble court has given direction restraining the complainant from withdrawing the amount from her account.It is rather observed that if the banker is not complying with the customers demand mainly their request to withdraw the amount, they are at liberty to file a civil suit and it is not for the court to direct the banker to allow the petitioners to withdraw their money.It is open for the petitioners to make a complaint to the concerned higher authorities against the particular bank manager who is not permitting to petitioners to withdraw their amount.

The learned counsel for the complainant has also relied upon a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi passed in 2007(I) CPC (Allahabad Bank Vrs. Shiv Swaroop Sribastav) wherein it has been held that the bank cannot escape its liability and is liable to compensate the customers for negligence of the employees on the principle of vicarious liability.This observation has been made with reference to misappropriation of some funds of the bank by the employees of said bank.

In view of the above, it is held that O.Ps 1 & 2 are vicariously liable for the misappropriation of the fund made by their subordinate who was then working as clerk-cum-cashier of that bank.They are vicariously liable having rendered deficient service to the complainant and adopted unfair trade practice to her.Hence ordered;

                                                                                ORDER

The case be and the same is allowed on contest against the O.ps.The O.Ps 1 & 2 are vicariously liable to satisfy the reliefs claimed by the complainant.Hence they are directed to allow the complainant to withdraw Rs.40,000/- from her S.B. Account No.3625 and to pay Rs.10,000/- and Rs.5000/- respectively to her towards compensation for causing mental agony and harassment and towards litigation cost in the interest of justice.

                Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 19^th  day of December,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                      President.

                                                             

                                 

                                                                                                               (Smt. Sarmistha Nath)

                           Member(W)