IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 1st day of September, 2021.
Filed on 24-07-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.R Sholy, B.A.L,LLB (Member)
In
CC/No.166/2020
between
Complainant:- Opposite party:-
Smt.Ponnamma M.V The Chief Manager
W/o Late Gadadharan SBI, Mylapore Branch (00965)
Punnasseril, Pattukulangara P.O. 46/1, Luz Church Road
Thuravoor, Cherthala Mylapore, Chennai-
600004
(Adv.Smt.Preetha Anil Ravindran) (Adv.Sri.Jithesh Menon)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
Complainant’s case in brief is stated as follows:-
Complainant is a senior citizen and the mother of deceased employee G.Hiran who died on 19.04.2017 while working as programme Executive in All India Radio, Kochi. The complainant is a widow and late Hiran was the only son. She was residing along with him till his death and thereafter with his widow Deepa and daughter until she was expelled from the house in May 2019.
2. During the life time of Hiran he submitted a nomination to give 50% of the Death Cum Retirement Gratuity (DCRG) to his mother and the remaining 50% to his widow Smt.Deepa. He had foreseen the need of money for the treatment and a peaceful life for her with his family, after his death. The total DCRG amount is Rs.20,00,000/- and the complainant is well aware that she is entitled to half share amounting to Rs.10,00,000/-. As per the nomination All India Radio had taken steps to pay Rs.18,00,000/- after withholding Rs.2,00,000/- for want of LPC to both the nominees, the complainant and Deepa equally and issued necessary communications. Complainant had furnished details of her bank account before the accounts officer of All India Radio (AIR). But the amount was not remitted in the account of the complainant.
3. In March 2019 she received copy of the letter regarding the payment of Rs.1,00,000/- which is the half share of the withheld portion of DCRG. Subsequently the said amount was correctly deposited in her account. Thereafter on repeated enquiry Deepa revealed the fact that the entire amount of Rs.18,00,000/- had been credited in her account in February 2018. Though the complainant demanded her share, Deepa was not ready to pay the amount. Thereafter Deepa and her daughter behaved indifferently and treated her with cruelty. Complainant was mentally tortured and harassed by Deepa on account of demanding Rs.9,00,000/-. According to Deepa the amount transferred to her account is her own money and the complainant had no right to claim the same. At last Deepa along with her daughter expelled the complainant from her house.
4. In fact AIR is duty bound to remit Rs.9,00,000/- which is the half share of the 1st payment towards DCRG in the account of the complainant. Complainant issued a lawyer’s notice for depositing Rs.9,00,000/- with interest @ 18% per annum for the said amount and to credit the amount in her account. AIR issued reply notice on 28.05.19 informing that they had prepared requisitions/ challans separately @ Rs.9,00,000/- to each nominee as per the nomination, but the opposite party mistakenly credited the entire amount to the account of Deepa. It was also stated that they had no role in the issue and that the same should be taken up with the opposite party.
5. The opposite party had carelessly and negligently handled the transaction and disbursed the total amount of Rs.18,00,000/- to Deepa. The mistake committed by the opposite party is very grave and caused much harm to the complainant. She came to know about the same only on receiving reply notice from the AIR. From the reply notice it was clear that opposite party was informed about the mistake and the same was admitted by them vide email dated 20.05.19. Yet opposite party had not corrected the mistake by transferring the amount with interest to the account of the complainant. Complainant filed WP(C) No.19306/2019 before the Hon’ble High Court in which it was intimated that opposite party has put a hold on the FD, deposited by Deepa in SBI, Padivattom branch.
6. Complainant filed a case before the Maintenance Tribunal, Alappuzha against Deepa for a declaration of her share of Rs.9,00,000/- with interest. Though complainant received a favourable order Deepa did not comply the same and filed WP(C) No.560/2020 challenging the order. Opposite party has to transfer Rs.9,00,000/- with interest from the account of Deepa to the account of the complainant. Deputy Director of AIR also requested opposite party to take appropriate action to settle the matter urgently. But opposite party was not ready to redress the grievance of the complainant. The inaction from the part of the opposite party was also illegal and defective service.
7. Complainant issued a lawyer’s notice on 10.02.2020 to the opposite party and had conversation over telephone for an amicable settlement but it was not materialized. On 20.02.2020 the Hon’ble High Court passed a judgment in favour of the complainant and as per the judgment SBI, Padivattom branch transferred the amount to the account of the complainant. Deepa challenged the judgment by filing writ appeal and it is pending.
8. Complainant is a senior citizen having nobody to take care of her, other than one daughter who is also a widow and a chronic diabetic patient. Therefore the complainant hired services of Mr.Chandrasekharan, an autorikshaw driver on daily wages for travelling for the purpose of litigations initiated further against opposite party as well as Deepa. She had to spent Rs.28,000/- on this account alone. Due to the inaction from the part of opposite party the complainant is struggling continuously for a period of 2 years. She was dragged to litigations which caused heavy damages to her including loss of relationship with her granddaughter. The erroneous transfer of money and inaction for correcting the mistake amounts to deficiency of service. Complainant had to conduct legal proceedings including three writ petitions and one writ appeal before the Hon’ble High Court at her old age for more than one year period to recover the money which was mistakenly transferred by the opposite party. She incurred more than Rs.2,00,000/- towards the expenses for conducting said cases. Opposite party is liable to compensate the complainant adequately. Complainant is claiming an amount of Rs.5,00,000/- as compensation for mental strain and sufferings and Rs.2,00,000/- towards the expenses for conducting cases and Rs.50,000/- as cost.
9. Opposite party filed a version mainly contenting as follows:-
Complainant is not entitled to any of the reliefs sought in the complaint, since there was no deficiency on the part of the opposite party. The person at whose instance, the writ appeal is filed before the Hon’ble High Court is not made a party and so the complaint is bad for non-joinder of necessary parties and the complaint is liable to be dismissed.
10. M/s All India Radio had given a payment instruction for the settlement of Gratuity of one late G.Hiran who was the son of the complainant and husband of one Smt.S.Deepa. An amount of Rs.18,00,000/- was forwarded and the entire amount was credited to the account of Mrs.Deepa who was the wife of the deceased employee, maintained in the Padivattom branch of the State Bank of India. Immediately on realizing the mistake opposite party had put a hold on the account of Smt.Deepa by which she was unable to withdraw any amount. Since Deepa was unable to release any amount, no loss was sustained to the complainant. When contacted the complainant and Smt.Deepa, they informed that they are going to settle the issue among themselves. However they did not contact the opposite party thereafter. The complainant instead of approaching the Padivattom branch of this opposite party filed a writ petition before the Hon’ble High Court as WP(C) 19306/2019. Smt. Deepa who was arrayed as 4th respondent filed another writ petition as WP(C) 215/2020. Since Deepa was in urgent need of money in connection with the marriage on her daughter, the Hon’ble High Court vide an interim order dated 14.01.2020 directed the SBI, Padivattom branch to release an amount of Rs.9,00,000/- to Smt.Deepa. Thereafter by a common judgment dated 20.02.2020, the Hon’ble High Court disposed both the writ petitions directing the Padivattom branch to release a sum of Rs.9,00,000/- to the complainant. Therefore the complainant as well as Smt. Deepa was found entitled to get an amount of Rs.9,00,000/- each. Therefore the complainant cannot plead any grievance since the amount which she was entitled was directed to be released to her. No prejudice was caused to her so as to raise a plea of hardship, mental agony etc.
11. In compliance with the common judgment of the Hon’ble High Court the entire amount was released to the complainant out of which an amount of Rs.4,00,000/- was withdrawn by her and the balance amount of Rs.5,00,000/- was deposited in the Padivattom branch as fixed deposit. The question as to whether the complainant and Smt. Deepa are entitled to get 50% of the gratuity benefit was assailed by Smt.Deepa by filing an appeal against the common judgment passed in WP(C) 19306/2019. The division bench of the Hon’ble High Court had stayed further disbursement in favour of the complainant. The question as to whether the complainant is entitled to 50% of the gratuity benefits of her son is now subjudice before the Hon’ble High Court. Because of the order of the Hon’ble High Court complainant is not able to withdraw the balance amount and this opposite party cannot be found fault for the same. There was no deficiency of service on the side of this opposite party. The subsequent events which had transpired is not within the domain of this opposite party.
12. The prayer for the direction to pay Rs.2,00,000/- towards the expenses for conducting the cases before the High Court cannot be allowed, since this opposite party had informed the complainant and Smt. Deepa to settle the issue. However, though they had promised, they did not contact this opposite party and instead approached the Hon’ble High Court. This opposite party cannot be penalized for the decision taken by the complainant to approach the Hon’ble High Court. Complainant has not suffered any loss on account of any act of this opposite party. There is no deficiency of service on the side of this opposite party and hence complaint may be dismissed.
13. On the above pleadings following points were raised for consideration :-
- Whether there is deficiency of service on the part of the opposite party as alleged by the complainant?
- Whether the complainant is entitled to get an amount of Rs.5,00,000/- from the opposite party on account of mental stress and sufferings as prayed for ?
- Whether the complainant is entitled to realize an amount of Rs.2,00,000/- towards the expenses for conducting cases as prayed for?
- Reliefs and costs?
14. Evidence in this case consists of the oral evidence of PW1& PW2 and Exts.A1 to A8 from the side of the complainant. Opposite party has not adduced any oral evidence, Ext.B1 to B4 were marked.
15. Point Nos.1 to 3
PW1 is the complainant in this case.She filed an affidavit in tune with the complaint and marked Ext.A1 to A8.
-
PW 1, the complainant is the mother of Sri. Hiran who died on 19-4-2017 while working as program executive with the All India Radio, Kochi. Hiran had filed nomination before his employer to share the Death Cum Retirement Gratuity (DCRG) equally between PW1 and his wife Smt. Deepa. The total DCRG amount was Rs. 20,00,000/- and out of the same Rs. 18,00,000/- was released on 14/2/2018 and the All India Radio produced Ext.B1 cheque for Rs.18,00,000/- along with Ext.B2 and B3 Pay in Slips before the opposite party bank. Ext.B2 pay in slip was for Rs. 9,00,000/- in the name of Smt. Deepa and the Ext.B3 pay in slip was for Rs. 9,00,000/- in favour of Smt. Ponnamma. M.V(PW1). Both the accounts were with the State Bank of India(SBI) at its Padivattom Branch, Edappally. However the entire 18 lakhs covered by Ext.B1 cheque was credited infavour of Smt. Deepa ignoring Ext.B3 Pay in Slip in favour of PW1. Out of the total DCRG of Rs. 20,00,000/- 10% (2 lakhs) was withheld by the employer for want of LPC and certain other formalities. Receipt of Rs. 18,00,000/- was not disclosed by Smt. Deepa to PW1 though they were residing together. However on 7/3/2019 Ext.A8 letter was sent informing the release of withheld portion of DCRG. From Ext. A8 it is gathered that Rs.1,00,000/- each was allotted to PW1 and Smt. Deepa. When PW1 received Ext.A8 letter she came to know that the remaining portion of Rs. 18,00,000/- was already released. When enquired about the same with Smt. Deepa, she was not ready to share the amount with PW1. Relationship between PW1 and Deepa became strained and PW1 had to shift her residence and started living along with her daughter.
On 6/5/2019 Ext.A1 legal notice was issued to the All India Radio claiming the share entitled by PW1. Ext.A2 reply notice was sent by All India Radio on 28/5/2019 informing that they had correctly deposited the amount of Rs.18,00,000/- crediting online to the beneficiaries that is Smt. Deepa and PW1, Ponnamma. According to them on enquiry with the SBI, Mylapore branch it was revealed that the entire amount was inadvertendly credited to the account of Deepa including the share of other beneficiary PW1, Ponnamma. It was also informed that All India Radio is not liable and the mistake was committed by opposite party bank. Ext.A3 letter was sent on 22/8/2019 from AIR, Kochi informing that the matter may be settled between the parties. PW1 filed an application before the Maintenance Tribunal, Alappuzha and after trial on 16/11/2019 as per Ext.A4 order the Maintenance Tribunal directed Deepa to hand over 50% of the amount to PW1. Thereafter PW1 approached the Hon’ble High Court and filed WP(C) No.19306 of 2019 for getting her share. Smt. Deepa also filed two Writ Petitions [WP(C) No.215/2020 and WP(C) No.560/2020]. By Ext.A6 common order dated 20/2/2020 the Hon’ble High Court was pleased to allow the Writ Petition filed by PW1 and directed the 5th respondent(opposite party) to release Rs.9,00,000/- along with interest to PW1. Smt. Deepa filed a Writ Appeal before the Hon’ble High Court challenging Ext.A6 Judgment and contenting that her daughter is also one of the legal heir of deceased Hiran. As per Ext.B4 order dated. 11/3/2020 the Hon’ble High Court restrained disbursal of further amount from the bank till the disposal of the Writ Appeal.
Now the complaint is filed by PW1 contenting that due to the negligent act or inadvertend mistake of the opposite party bank the entire amount of Rs.18,00,000/- was credited into the account of Smt. Deepa. The employer M/s All India Radio had correctly produced Ext.B1 cheque for Rs. 18,00,000/- on 14/ 2/2018 along with Ext.B2 and B3 Pay in Slips infavour of PW1 and Deepa for crediting Rs.9,00,000/- each into the account of Deepa and PW1. So according to PW1 She ought to have received Rs. 9,00,000/- on 14/2/2018 itself. However she had to run from pillar to post to receive the amount. She had filed a petition before the Maintenance Tribunal, Alappuzha and filed Writ Petition before Hon’ble High Court to receive the amount. Then she had to defend two more Writ Petitions filed by Deepa and finally she is defending a Writ Appeal pending before the Hon’ble High Court. According to PW1 the entire difficulty occurred due to the mistake committed by opposite party bank by wrongly crediting the entire amount into the account of Smt. Deepa. Hence it is alleged that there is deficiency of service from the part of opposite party bank. According to PW1 she is a widow and is a Senior citizen aged about 76 years. She had to depend upon PW2 an auto driver to travel to All India Radio, Hon’ble High Court, Maintenance Tribunal etc. PW1 is claiming an amount of Rs. 5,00,000/- on account of compensation for mental strain and sufferings and she is also claiming an amount of Rs.2,00,000/- on account of expenses for conducting cases besides Rs. 50,000/- as cost.
On 6/8/2021 PW1 filed chief affidavit and marked Ext.A1 to A8. There was no cross examination from the side of opposite party. On the same day PW2 an autorikshaw driver was examined in chief, in which he stated that PW1 used to hire his auto for going to various places in connection with the cases and he had received an amount of Rs. 28,000/- being the auto charges. PW2 was also not cross examined from the side of opposite party. No oral evidence was adduced by the opposite party and they produced Ext.B1 to B4 documents.
The fact that the amount was released on 14/2/2018 as per Ext.B1 cheque and Ext.B2 and B3 Pay in Slips are infavour of the beneficiaries is not in dispute. It is also an admitted fact that the entire amount of Rs.18,00,000/- was credited infavour of Smt. Deepa ignoring Ext.B3 Pay in Slip infavour of PW1, Ponnamma. In para.4 of the version opposite party had taken a contention that they contacted the complainant and Smt. Deepa and they informed that they are going to settle the issue among themselves. Though they were advised to approach the bank after settling the issue they did not contacted the opposite party later. It is to be noted that there is no matter to settle among PW1 and Deepa and the matter was already settled by late Hiran by filing a nomination before his employer. He had nominated his mother and widow to share the DCRG equally. Hence such a contention taken by the bank is not at all tenable. In para.6 of the version it is stated that in compliance of the common judgment rendered by the Hon’ble High Court (Ext.A6 dated. 20/2/2020) Rs. 9,00,000/- was credited in the account of the complainant and out of which an amount of Rs.4,00,000/- was withdrawn by the complainant and the balance amount of Rs.5,00,000/- was deposited in the Padivattom branch as fixed deposit. As stated earlier the cheque for 18,00,000/- was deposited on 14/2/2018 and Ext.A6 is dated 20/2/2020. From the version Para.6 it is gathered that after Ext.A6 judgment amount of Rs. 9,00,000/- was released to the complainant. So it is pellucid that complainant was unable to enjoy the amount from 14/2/2018 to 20/2/2020 (Ext.A6 Judgment) (Exact dated of credit is not mentioned).
It is also noticed that though a detailed version was filed opposite party did not enter the witness box to prove their case on oath. As held by the
Hon’ble Supreme Court in 1999 SAR (civil) 431 (Iswar Bhai C Patel @ Bachu Bhai Pater V. Harihar Behera & Another) Evidence Act Sec.1872- Sec.114, Illustration (g) – Non-entering into witness box and abstaining of a party from presenting himself for cross examination- Entitles the court to draw adverse presumption against such party on the basis of principles contained in Illustration (g) of Sec.114.
Here in this case it is to be noted that there was no cross examination when PW1 and PW2 tendered evidence in the witness box. At the time of hearing the learned counsel appearing for the opposite party had taken a contention that the bank is unable to disburse the remaining amount on account of Ext.B4 order of the Hon’ble High Court. As discussed earlier Deepa filed Writ Appeal on a contention that her daughter is also entitled for 1/3 share and the matter is pending before Hon’ble High Court. But here in this case we are not concerned about the share of the parties. The matter is that late Hiran filed a nomination infavour of his mother (PW1) and his widow appropriating 50% of the DCRG. Though the employer deposited the amount as per Ext.B1 cheque on 14/2/2018 along with Ext.B2 and B3 Pay in Slips favouring PW1 and Smt. Deepa by inadvertent mistake or by error the entire amount was credited infavour of Deepa. According to learned counsel appearing for the complainant due to the financial dispute the relationship between mother in law and daughter in law became strained and finally PW1 had to leave the house and now she is residing along with his daughter. From Para.6 of the version it is seen that the share of PW1 was released only after Ext.A6 judgment dated. 20/2/2020. So PW1 was unable to enjoy the share of DCRG which her deceased son was nominated infavour of her for more than 2 years. Opposite party bank cannot shirk its responsibility on a contention that it was inadvertent mistake or an error committed by the staff. As discussed earlier PW1 is a senior citizen aged about 76 years. If she had received the amount on 14/2/2018 it would have been far better and she could have continued good relationship with smt. Deepa. In said circumstance we have no hesitation to hold that there was deficiency of service from the part of opposite party bank.
PW1 is claiming an amount of Rs.5,00,000/- on account of mental strain and suffering and is also claiming an amount of Rs.2,00,000/- towards the expenses for conducting cases before the Hon’ble High Court, Maintenance Tribunal etc. As a matter of fact for conducting case before the Hon’ble High Court one need not go to the Hon’ble High Court. It is seen that the counsel appearing for the complainant who is having office at Sherthala was appearing before her before the Hon’ble High Court also. PW1 is residing at Thuravoor which is near Sherthala. Of course she had to appear before the Maintenance Tribunal at Alappuzha. According to PW2 he had received an amount of Rs.28,000/- on account of hire charges of autoriskhaw. It is true that PW2 was not cross examined. We cannot expect any trip sheet for an autoriskhaw to calculate the exact amount of hire charges. We have also noticed that in Ext.A6 Judgment the Hon’ble High Court had directed to release the amount along with accrued interest infavour of PW1. From the version Para.6 it is noticed that PW1 had already withdrawn Rs. 4,00,000/- and the remaining Rs.5,00,000/- is in deposit as fixed deposit. So PW1 was able to get interest for the entire amount on the basis judgment of the Hon’ble High Court. However we have already found that there was deficiency of service on the part of opposite party bank and so complainant is entitled for compensation. Considering all the relevant inputs we are of the view that awarding an amount of Rs.1,00,000/- will be adequate compensation for mental agony and litigation expenses.
The opposite party in this case is SBI, Mylapore branch. The money involved is public money and it cannot be wasted. In said circumstances opposite party bank will credit the amount in the account of the complainant and take steps to realize the same from the person responsible. These points are found accordingly.
5. Point No.4:-
In the result complaint is allowed in part.
1. Opposite party bank is directed to credit an amount of Rs.1,00,000/- as compensation for deficiency of service in Ext.B3 account of the complainant. After crediting the amount opposite party will take necessary steps to realize the amount from the person responsible.
2. Complainant is allowed to realize an amount of Rs.3000/- as cost.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 1st day of September, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-
Evidence of the complainant:-
PW1 - Smt.Ponnamma M.V (Witness)
PW2 - Sri.S Chandrasekharan (Witness)
Ext.A1 - Copy of lawyers notice dtd.06.05.2019
Ext.A2 - Copy of reply dtd.28.05.2019
Ext.A3 - Copy of letter dtd.22.08.19 issued to the opposite party
Ext.A4 - Copy of order of the Maintenance Tribunal, Alappuzha
dtd.16.11.19
Ext.A5 - Copy of lawyers notice dtd.10.02.2020
Ext.A6 - Copy of the Judgment of the Hon’ble High Court dtd.20.02.2020
Ext.A7 - Reply notice issued on behalf of Smt.Deepa dtd.22.05.19
Ext.A8 - Copy of the letter dtd.07.03.2019 from AIR, Kochi
Evidence of the opposite parties:-
Ext.B1 - Copy of cheque dtd.14.02.2018
Ext.B2 - Copy of deposit/Pay in slip dtd.14.02.18
Ext.B3 - Copy of deposit / pay in slip dtd 14.02.18
Ext.B4 - copy of interim order passed by the Hon’ble High Court in
W.A 506/2020 dtd.11.03.2020
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
