(Order dictated by Smt.Sunita, Member)

:ORDER:

         I. The complainant/s are family members and their grievances, allegations and the facts pleaded are same except the details of the deposits by the complainant/s. In all the cases the O.P. Souhard society is same, represented by Chairman and Manager. Hence for convenience all the cases are disposed of by the common order.

          II. Since there are 4 cases and the complainant has a same addresses and particulars of their deposits being different, for brevity and also for clarity and to avoid confusion, names of the parties of the particular cases only will be shown in the cause title and the details of the deposits will be shown separately in the table.

          1) The relevant facts of the cases are that the complainant has filed the complaints u/s. 12 of the Consumer Protection Act 1986 against the O.Ps. alleging deficiency in banking service of non refund of the fixed deposits/deposit.

          2)  In-spite of service of notice Opponent No.2 and 3 are absent. Hence Opponent No. 2 and 3 are placed ex-parte. In complaint No.645, 673 and 647/14 there only two opponents and in these cases O.P.No.2 is placed ex-parte. In all cases Opponent No.1 appeared through counsel and filed objection and affidavit.

          3) In support of the claim in the complaint/s, complainant has filed affidavit and original F.D.Rs. are produced by the complainant.

          4) We have heard the arguments of both parties and perused the records.

          5) Now the point for our consideration is that whether the complainant has proved deficiency in service on the part of the O.Ps. and entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

7) On the perusal contents of the complaint and affidavit filed by the complainant, the complainant/s have stated that, they would get extra interest and getting carried away by the impressive version, for the future maintenance, the complainant/s have deposited the amount in the opponents Souhard Society in the form of fixed deposits scheme by name Bhagyashraya in different branches of opponents Souhard society. The fixed deposits made by the complainant are as under:

          After maturity of the said F.D. the complainant/s approached the opponents seeking withdrawal of the fixed deposits referred to above the opponents requested to complainant/s to renew the said fixed deposits. Accordingly the said fixed deposits were renewed by complainant/s for one year period again. After maturity of said F.D.Rs. the complainant/s approached the office of the opponents and requested the opponents to return the matured amount, inspite of that opponent went on postponing the same by assigning one or other reasons. Hence opponent committed deficiency in service as contemplated under the provision of the Consumer Protection Act 1986.

         8) Lastly fed up with the opponents behavior the complainant/s issued legal notice through their advocate on 25/08/2014 and calling upon the opponents for the immediate release of F.D.R’s amount with interest, but they failed to make payment as mentioned above within the stipulated period till today. Thus opponents caused deficiency of service and due to the deficiency on the part of the opponents. Hence complainant/s constrained to file this complaint/s before this forum.

          9)  In this complaint/s, the complainant/s has filed by the special Power Of Attorney holder of the complainant/s who is wife of the complainant/s.

          10) On perusal objection filed by the opponent No.1, the opponent No.1 admits that the deposits which were kept by complainant/s. The opponent No.1 contends that the power of attorney under the C.P. Act is not entitled to retain the complaint alleging deficiency and the power of attorney in favour of Smt. Ratna Vithal Kasotiye only after the receipt of the complaint/s. The opponent No.1 further contends that there has been clubbing of causes of actions of the Narvekar Galli branch and Tilakwadi branch which is impressible under the C.P. Act and in this fact the complaint/s should not have been admitted on this point alone. The opponents further contends that the complainant/s have already received Rs.50,000/- as on 31^st July 2013 and Rs.25,000/- as on 27^th September 2013 and only when he was asked to furnish the details regarding the K.Y.C.Norms, the complainant/s turn up as the SPECIMEN SIGNATURES on the account opening form and signatures on withdrawal slips did not match. The opponent No.1 contends that the complainant/s have never approached the society for seeking the maturity F.D.Rs. and it was already notified on the receipt that maturity amounts/interest payable is subject to TDS as per the Income Tax Act Rules. Hence the opponent No.1 prays to dismiss the complaint/s.

11) On going through the allegation of the complainant/s and the contends of the objection of the O.P.No.1, The opponent No.1 contends that the power of attorney under the C.P. Act is not entitled to retain the complaint alleging deficiency and the power of attorney in favour of Smt. Ratna Vithal Kasotiye and further that only after the receipt of the complaint/s. But looking to the document i.e. power of attorney made by the complainant/s it is executed before the notary, before the filling of the complaint/s. To show that the power of attorney under C.P. Act is entitled to retain the complaint/s, the complainant/s have produced citations. The opponent No.1 further contends that there has been clubbing of causes of actions of the Narvekar Galli branch and Tilakwadi branch which is impressible under the C.P. Act and in this fact the complaint/s should not have been admitted on this point alone. But  according to the F.D.R’s. receipts and address given on  the F.D.R’s shown that the branches might be different but they had office which controls the different branches is one and the different branches of opponents society are been controlled by the chairman. Hence the defence taken by the opponents that the clubbing of causes of actions of the Narvekar Galli branch and Tilawadi branch which is impressible under the C.P.Act cannot be accepted and believed.

12) In complaint No.648/2014 the O.P.No.1 in his objection has contended that the complainant has already received Rs. 50,000/- as on 31^st July 2013 and Rs.25,000/- as on 27^th September 2013. Infact the complainant in complaint No.648/2014 has filed his affidavit but have not denied the receipt of Rs.50,000/- and Rs.25,000/- as contended by the O.P.No.1, on the other hand the opponent No.1 as per his contention in objection, has not produced any documents to show that the opponent No.1 and its society has paid the above said amount to the complainant. Hence the contention of the O.P.No.1 in regards to the payment as alleged in this para above cannot believed and accepted.

13) The opponent No.1 in his objection and affidavit contended that the complainant/s have to submits necessary documents in compliance with the K.Y.C. Norms and further contends that the signature of the complainant differs from the signature on SPECIMEN SIGNATURES on the account opening form and signatures on withdrawal slips did not match. The contention of the O.P.No.1 is that, the signature made by the complainant/s at the time of deposit on the specimen are totally different one and prayed to put the complainant/s to be put the strict proof of the same. Coming to this contention of the O.P.No.1, has not produced single document to show that the complainant signature is differs compare to specimen signature. Hence the mere contention of the O.P.No.1 with no supporting documents cannot be believed and accepted. The another contention as noted supra is of deduction of Income Tax and compliance of K.Y.C. norms, are subject to rules and regulations. Hence the society shall collect the required documents from the complainant or from its members as per the rules. Therefore the complainant has proved the deficiency of service on the part of the opponents for non payment of amount of matured F.D.Rs.

14)  The complainant has produced the following citations in support of his arguments;

       1)  2008 STPL (CL) 1056 NC.

       2)  2002 STPL (CL) 520 NC

       3)  2010 STPL (CL) 1987 NC

       4)  2013 STPL (CL) 1158 NC

       5)  2014 STPL (CL) 2028 NC

       6)  1991 STPL (CL) 1297 NC

15) The main contention of the Opponent No.1 that the Power of Attorney holder cannot maintain the complaint before the Forum. The complainant/s to show that the complaints are maintainable and power of attorney holder can retain the complaint before the Forum have filed and relied on the citations reported in 2008 STPL (CL) 1056 NC between Sharda Kamble and Anr. V/s. Shantikumar Chivade (Dr.) held that

Relevant para only 9. “Unfortunately, in the present case, an over-technical view has been taken by the State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act)

 “This is erroneous, It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties.”

The Hon’ble National Commission held that the dismissal of complaint by the District Forum and Hon’ble State Commission only on sole ground that the complainant was power of Attorney is not entitled to file the complaint under the C.P. Act, which has been held as erroneous and held that the procedure under the C.P. Act should follow on principles of natural justice and the matter should be decided after hearing the both the parties and also held that technicalities are not to be encouraged. After going through the decision we notice that the Hon’ble National Commission has noted supra held that principles of natural justice has to be followed while entertaining the complaint under the C.P. Act. Hence the contention of the O.P.No.1 that the complaint/s are not maintainable as the complainant/s are filed by the Power of Attorney holder will not hold any water and the contention are set aside.

          16)  Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service on the part of the O.Ps. have been proved.

          17) Taking in to consideration of various aspects and the decision of Hon’ble Apex Court reported in (2011) SCCR 268 and of the Hon’ble Apex Commission reported in 2013 (2) CPR 574 as well as other subsequent decisions absolutely it is just and necessary to impose cost on daily basis if order remains uncomplied within the period fixed for compliance of the order, so as to have feeling and pinch.

          18) Accordingly, following order.

ORDER

          The complaint is partly allowed.

          The Opponents shown in the cause title are hereby jointly and severely directed and liable to pay to the complainant as order below;

The matured amount to the complainant/s as mentioned in column No.7 shown in above tables with future interest at the rate of 8% p.a. from the dates mentioned in column No.6 till realization of the entire amount.

          The Opponents shown in the cause title are hereby jointly and severely directed and liable to pay to the complainant/s sum of Rs.3,000/- each toward costs of the proceedings to the complainant/s.

         The Order shall be complied within 30 days from the date of the order.

         If the order is not complied within stipulated period, opponents are hereby directed to pay a Rs. 50/- per day to the complainant from the date of disobedience of order, till the order is complied.

The original order shall be kept in complaint No.645/2014 and the true copy in other clubbed cases.

         (Order dictated, corrected and then pronounced in the open Forum on this 30^th day of May 2016)

Member            Member                     President