JUDGEMENT

Shri A.K.Patra,President:

1. The Captioned consumer Complaint is filed by the complainant named above, inter alia alleging deficiency in service & unfair trade practice on the part of the Opp.Parties/bank for unauthorized withdrawal of savings from the deceased Saving Bank Account & for non respond of request of the complainant to close  the  Savings Bank Account of his deceased  wife/the account holder.
2. The Complainant   seeks  for  an order directing the O.P parties to pay the unauthorized  withdrawals/deduction amount  of Rs. 60,600  there made from the passbook of his deceased wife  with 18% interest  from 30.07.2021 till its actual payment and to pay Rs.50,000/- towards cost & compensation for mental harassment which includes cost of this litigation and to pay Rs.40,000/- towards exemplary costs  and further prayed for all other relief as the honorable Commission may deemed fit & proper in the interest of justice, equity and good conscience.
3. The factual matrix leading to the case of the complainant as emerged from the case record are that, the Complainant is the husband of one Kaikei Naik .The complainant’s wife Kaikei Naik had a Saving Bank Account with the Opp.Parties vide A/c No.35613165866 where the complainant was featured as the nominee. The wife of the complainant died on 30.03.2020. Due to pandemic of Covid 19 situation ,the complainant undergone serious financial difficulties for which  he, during the month of December 2020, visited to the Opp.Party No.2  and requested him to close the saving bank account of his deceased wife but  the OP 2 avoided  for a  conversation due to aggressive spread of the Covid-19 and forwarded the same to one of his staff and the staff of the Op 2  informed the complainant that, account of deceased can only be closed   by the OP 2 only and he has no power to exercise on it and further he asked the complainant to come with original Aadhar Card, Pass Book and Death Certificate of the deceased account holder along with his own Aadhar Card for verification .Accordingly  the complainant visited to the branch of OP 2 on various occasion but unfortunately his grievance was unattained. On dt.27.04.2021 the complainant with all the required documents visited the office of OP 2 and the OP 2 verified all the original documents   and then the Op 2 asked the complainant to submit Xerox Copies to be forwarded to their higher authority for obtaining of their approval for the closure of the account and the complainant accordingly submitted the same. The complainant was also asked to put some of his signature on the cross marked of the some papers, specifically not known to him and the OP 2 asked the complainant that, he will be contacted by the bank at once when it is approved but till date the complainant has not received any intimation from the bank regarding the pending approval of closure of account. On dt.16.06.2022  the complainant visited the Op 2 branch to make enquiry about the approval  and closure  of his wife’s account but the OP 2 expressed his  hostile attitude and furnished him a copy of account statement  as a nominee. On perusal of the account statement, the complainant was surprised to found  that, an amount of Rs.60,600/-  within 30.07.2021 to 22.02.2022  have been unlawfully deducted/withdrawal  by someone from the SB Account of his deceased wife  though his wife was died on 30.03.2020. The complainant asked the OP 2 about unauthorised withdrawal/deduction but the OP 2 did not listen and avoided to reply the complainant.Hence, this complaint.
4. Notice along with copy of the complaint & documents filed by the complaint there with the complaint petition is properly served to the Opp.Party 1 (one) on  12.09.23 through Registered Post vide Consignment No.RO152025544IN available there in the record & notice to the OP No.2(two) sent  through Registered Post vide Consignment No.RO152025535IN is received  on 08.09..2023 (Consignment report are there available in the record)  for their appearance and to answer the allegation of the complainant but the Opposite Party neither appeared nor  filed their written version. Sufficient opportunities have been given to the Opp.Parties to participate in the hearing of this complaint but Ops did not turn up  .Accordingly the complainant is heard ex-party .
5. Heard. Perused the material available on record .No written version is filed by the Ops .The Complaint allegation remain undisputed.
6. As per Sec.38(6) of C.P.Act,2019 every complaint shall be heard by the District Commission on the basis of affidavit & documentary evidence placed on record ; as such it casts an obligation on the District Commission to decide the complaint on the basis of evidence brought to its notice by the complainant and the service provider/seller, irrespective of whether the service provider/seller adduced evidence or not. The decision of the District Commission has to be based on evidence relied upon by the complainant. The onus thus is on the complainant making allegation
7. To substantiate his claim, the complainant has filed the true  photo copy of the  following documents:- (i) Saving Bank Pass Book vide SB A/C No. 35613165866 of   the State Bank of India Rupra Road there in  the name of Miss.Kakeya Naik ,W/O-Jagannath Naik  (ii) true Copy of  Death certificate of Kaikei Naik,W/O- Jagarnath Naik, vide Regd.No. 214/20 issued by the Registrar (Birth & Death) –cum-M.O,C.H.C,Narla ,Kalahandi  dt.04-05.2020. (iii) true Copy of account statement from 02/09/2020 to 16/06/2020 of   SB A/C vide No 35613165866 of SBI ,Rupra Road there in the name of Miss Kakeya Naik .So also the averments of the complainant petition are supported by an affidavit of the complainant is taken into consideration.
8. The complainant has filed an affidavit stating there in that, his wife KAKEYA NAIK died in the year 2020 and that, the death certificate issued by the C.H.C Narla in the name of his wife has been mentioned as KAIKEI NAIK instead of KAKEYA NAIK . The complainant further stated in his affidavit that, KAIKEI NAIK and KAKEYA Naik are same & one person that is his wife.
9. The complainant also led his  evidence by filling  an affidavit as prescribed under C.P.Act 2019 , the facts stated there  in the affidavit evidence of the complainant is corroborating with the complaint averments.  
10. Perused the material on record. We have our thoughtful consideration on the submission & contents of the complaint petition.
11. Here the doctrine of non –traverse will rightly applicable as non of the allegation made by the complainant are ever disputed or traversed by the O.P in any manner .The opposite party have neither    disputed nor produce any evidence contrary to the averment of the complainant which in terms is a clear admission of facts of the complaint and the same need not proved as per Sec 58 of Indian evidence Act. Law is well settled that  every allegation of facts in the complaint if not denied specifically or by necessary implication , or stated to be admitted in the pleading of the O.P shall be taken to be admitted accept as against a person disability . Where the O.p has not filed a pleading it shall be law full for the court to pronounced judgment on the basic of the fact contend in the plaint except as against the person under a disability (Reliance placed upon the judgment of the Hon’ble Supreme Court passed in  M.Venkataramana Hebbar Vs M. Rajagopal Hebbar & Others, Lohia Properties (P) Ltd Vs. Atmaram Kumar).
12. The complainant proved on affidavit that, his wife had a Saving Bank Account with the Opp.Parties vide A/c No.35613165866 where the complainant was featured as the nominee. The wife of the complainant died on 30.03.2020. As such this Commission is of the opinion that, the complainant is the consumer of the Ops and earned the status of the complainant under Consumer Protection Act 2019.
13.  The wife of the complainant died on 30.03.2020 is not disputed .But no legal heir certificate of the deceased account holder is filed. The complainant has proved the facts on affidavit that, his several request to the OP 2/B.M SBI, Rupra Road to close the saving bank account of his deceased wife is  not respond. It is seen from the undisputed account statement from 02/09/2020 to 16/06/2020 of   SB A/C vide No 35613165866 of SBI , Rupra Road there in the name of Miss Kakeya Naik placed in the record that ,savings  is withdrawn on different dated i.e  Rs.10,000 on 30.07.2021, Rs5,000/-Ondt.31.07.2021, Rs.10.000/   ondt.02.08.2021, Rs.10,000/- on dt.03.08.2021,  Rs.10,000/-on dt.04.08.2021, Rs.10,000/- on 05.08.2021, Rs. 3000/-on 14.09.2021,Rs 2000/-on 04.10.2021  and Rs.600/- on 22/02/2022 . All those   withdrawal i.e total amount of  Rs 60,600 are  made after the death of the account holder is certainly unfair and it proved that, the Ops have indulged in unfair trade practice causing financial loss which certainly caused mental agony to the complainant cannot be denied .
14. Based on the above said discussion and settled principle of law this Commission holds  that, the Op are deficient in service and indulged in  unfair trade practice for non responding the grievance of the complainant and for their unauthorized withdrawal of savings from the SB A/C of the deceased account holder  which certainly caused  financial loss & mental agony to the complainant as such the Op s are jointly liable to compensate the complainant by way of restoring unauthorized withdrawal of Rs  60,600 to the SB A/C vide No 35613165866 of SBI , Rupra Road there in the name of Miss Kakeya Naik      with interest @ 9% P.A from the date of filling of this complainant  & to release the same to the  legal heir  of the deceased account holder and further liable to pay compensation towards mental agony suffered by the complainant but the claim of the complainant is at higher site as such this commission thing it  proper to award monetary  compensation of  minimum of Rs 25,000/- (twenty five thousand) as towards  mental harassment which includes cost of this litigation .Hence it is ordered.

ORDER

       This Consumer Complaint is allowed in part against the op ex-party with the following direction:-.

1.  The Ops are directed to restore the unauthorized withdrawal of Rs  60,600 (sixty-thousand six-hundred ) only to the SB A/C vide No. 35613165866 of SBI , Rupra Road there in the name of Miss Kakeya Naik     with interest @ 9% P.A from the date of filling of this complainant i.e from 07.08.2023 & release the same to the legal heir  of the deceased account holder .
2. The Ops are further directed to pay compensation of Rs 25,000/-(twenty-five thousand) only towards mental harassment & agony to the complainant which includes cost of this litigation.
3. It is further directed that, this order be complied within 45 (forty-five) days from the date of received of this order failing which the ops are jointly liable to pay Rs.200/- (two hundred) only per day as delayed compensation to the complainant till compliance of this order.

Dictated and corrected by me.

Sd/-

President 

                       I   agree.

                              Sd/-

                               Member.  

Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly.