BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 532/2002 Filed on 16.12.2002 Dated : 16.11.2009
Complainant:
H.O. Arun Titty, S/o Haridasan, Arun Nivas, Kulamada, Kizhakkanela P.O, Kollam.
(By adv. Parippally R. Raveendran) Opposite parties:
The General Manager, Thiruvananthapuram District Co-operative Bank, Thiruvananthapuram P.B. No. 5122. The General Manager, Thiruvananthapuram District Co-operative Bank, Attingal.
(Pallichal S. Aswakumar)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 119.11.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.09.2009, the Forum on 16.11.2009 delivered the following:
ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant in his early childhood resided with his grandmother late Smt. Karthiyayani, that due to her love, affection and affinity towards the complainant and considering the future prospects of the complainant she deposited an amount of Rs. 3,000/- as Guardian of the minor in F.D. No. 2/85/86 dated 17.01.1986 on condition that on attaining majority of the complainant, he is at liberty to withdraw the maturity amount, but against the banking principles the 2nd opposite party bank colluded with complainant's grandmother illegally and maliciously granted a loan of Rs. 2,500/- to her from the said deposit amount on 23.05.1989. 2nd respondent was aware that the complainant's property whether movable or immovable cannot be transferred for reasons whatsoever. After maturity of the said deposit, complainant approached the 2nd opposite party for withdrawal of the said amount. At that time 2nd opposite party appraised the complainant that a loan was granted from the said deposit and the balance Rs. 2,656/- is only due in the complainant's favour that already transferred to suspense account. Granting loan amount from the minor's fixed deposit is clearly a violation of banking principles and clear deficiency of service. Complainant sent a legal notice on 14.08.2002 to the opposite parties seeking payment amount due to the complainant. Opposite party received the notice and sent an evasive reply to the complainant. Hence this complaint to direct the opposite parties to pay the maturity amount of F.D. No. 2/85/86 with interest at the rate of 18% from the date of maturity of the said deposit along with a compensation of Rs. 25,000/- and costs Rs. 1,500/-. Opposite parties filed version contending that this Forum lacks jurisdiction to entertain the said complaint, that Smt. Karthiyayani deposited Rs. 3000/- on 17.01.1986 vide cash certificate No. 1115/2/85-86 in the name of H.O Arun Titty (minor) stating that she is the guardian of the minor, in the Attingal Branch of Trivandrum District Co-operative Bank, that the maturity value of the said cash certificate due as on 17.01.2001 was Rs. 14,712.90, that the said Karthiyayani availed a loan of Rs. 2,500/- on 23.05.1989 out of the cash certificate amount deposited on 17.01.1986 to meet educational expenses of the minor, on executing necessary documents in favour of the bank and bank adjusted Rs. 12,056/- towards the principal and interest covering the period from 23.05.1989 to 16.01.2001 and the balance amount has been kept in the suspense account of the bank. The bank is not liable to repay the deposit amount with interest as claimed by the petitioner. The amount deposited by Smt. Karthiyayani is from her own funds and she is at liberty to avail loan from the said amount. It is true that a registered notice has been received from the counsel of the complainant and reply was sent to the complainant. There is no deficiency of service on the part of the opposite parties. Hence opposite party prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the complainant is entitled to get F.D amount? Whether there is deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation and costs? If so, at what amounts?
In support of the claim, complainant has filed proof affidavit as PW1 and Exts. P1 to P4 were marked. Complainant has been cross examined by the opposite party. In rebuttal, Manager, Attingal Branch of Thiruvananthapuram District Co-operative Bank has filed affidavit as DW1 and Exts. D1 to D4 were marked. DW1 has been cross examined by the complainant. Points (i) to (iii):- It has been the case of the complainant that complainant's grandmother due to her love, affection and affinity towards the complainant and considering the future prospects of the complainant had deposited an amount of Rs. 3,000/- in the name of the complainant (minor) in F.D No. 2/85/86 dated 17.01.1986 and that in violation of statutory principles of Banking Regulation Act, the 2nd opposite party colluded with the complainant's grandmother illegally and maliciously granted a loan of Rs. 2,500/- to her from the said deposit amount on 23.05.1989. It has also been the case of the complainant that when he approached the 2nd opposite party, on maturity of the said deposit, for withdrawal of the maturity amount, 2nd opposite party withheld the same. It has been the stance of the opposite parties that C. Karthiyayani had deposited Rs. 3,000/- on 17.01.1986 vide cash certificate No. 1115/2/85-86 in the name of Arun Titty (minor), stating that she is the guardian of minor, in the Attingal Branch of Thiruvananthapuram District Co-operative Bank, that the maturity value of the above cash certificate was due on 17.01.2001 and the maturity amount was Rs. 14,712.90 and that the said Karthiyayani availed a loan of Rs. 2,500/- on 23.05.1989 out of this said cash certificate amount deposited on 17.01.1986, to meet educational expenses of the minor, on executing necessary documents in favour of the Bank and the Bank adjusted Rs. 12,056/- towards the principal and interest covering the period from 23.05.1989 to 16.01.2001 and balance amount has been kept in the suspense account of the Bank. Ext. P1 is the copy of the advocate notice dated 14.08.2002 addressed to opposite parties calling upon them to pay back the deposited amount with interest along with compensation. Exts. P2 and P2(a) are the postal receipts. Exts. P3 and P3(a) are acknowledgement cards. Ext. P4 is the reply notice to Ext. P2. Ext. D1 is the copy of the cash certificate for Rs. 3,000/- dated 17.01.1986 issued by the 2nd opposite party. As per Ext. D1, the cash certificate No. is 1115/2/85-86 issued in the name of H.O Arun Titty (minor), C. Karthiyayani (guardian), the Bank agrees to pay the minor a sum of Rs. 14,712.90 after 15 years after date on presentation of the certificate. Due date is 17.01.2001, date of birth of minor depositor is 09.06.1980. It is seen specifically mentioned in Ext. D1 that cash certificate not transferable. Ext. D2 is the copy of the handwritten application dated 23.05.1989 for a loan of Rs. 2,500/- from C. Karthiyayani to the Manager, Thiruvananthapuram District Co-operative Bank Attingal. Ext. D3 is the copy of the printed application for loan/overdraft against F.D. As per Ext. D3, H.O Arun Titty (minor) C. Karthiyayani(guardian) has applied for a loan of Rs. 2,500/- on the security of the F.D No. 1115/2/85-86. Ext. D4 is the copy of the promissory note seen executed by C. Karthiyayani Amma. It is not in dispute that Rs. 3,000/- was deposited in the name of H.O. Arun Titty ( minor ). According to opposite party, the said amount was deposited on 17.01.1986 vide cash certificate No. 115/2/85-86 and not as F.D as claimed by the complainant. Undoubtedly Ext. D1 is the cash certificate in the name of H.O Arun Titty (minor). In Ext. D1, C. Karthiyayani is mentioned as (guardian). On a perusal of Ext. D1, it is evident that Ext. D1 cash certificate is not transferable. Once deposited in minor's name it cannot be alienated by a guardian without obtaining permission of the court. As per Sec. 4 (b) of the Hindu Minority and Guardianship Act, 1956, a guardian means a “person having the care of the person of a minor or of his property or of both his person and property and includes (i) natural guardian, (ii) a guardian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a court and (iv) a person empowered to act as such by or under enactment relating to any court of wards. It is uncertain on what basis C. Karthiyayani has become the guardian of Arun Titty since the natural guardian of a minor as per Sec. 6 of the said Act is his father and after him, his mother. There is no document to show that C. Karthiyayani was appointed as the guardian of the complainant as stipulated under Sec. 4 (b) (ii) (iii) & (iv) of the aforesaid Act. It is deposed by the complainant that his father is alive. Hence Karthiyayani cannot become a natural guardian of the complainant. As per Sec. 11 of the Hindu Minority and Guardianship Act, after the commence of the Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or being the defacto guardian of the minor. It is to be noted that a minor is under a legal incapacity to enter into a contract. Because of this disability it is necessary for the protection of his interest and management of his property he should have a guardian of his person and property. Here is a case in regard to the deposit account of a minor. A deposit account of a minor can be opened by the bank and the operation can be allowed by his natural guardian, sometimes the court appoints as a guardian of a minor, some person who is not a natural guardian. In such cases the guardian appointed by the court should be allowed to operate. C. Karthiyayani is not a natural guardian of the minor nor was she appointed as a guardian as under Sec. 4 (b) (ii) (iii) & (iv) of the Hindu Minority and Guardianship Act. As such she cannot operate the account on behalf of the minor and avail a loan on the strength of Ext. D1 cash certificate. It is the say of the opposite party that C. Karthiyayani availed a loan of Rs. 2,500/- on 23.05.1989 out of the cash certificate amount deposited on 17.01.1989 to meet educational expenses of the minor petitioner. In this context, on perusal of Ext. D1 it is to be noted that minor's date of birth is 09.06.1980, the date of deposit is 17.01.1986, that means the minor was a primary school student while the loan was availed. Since the due date is 17.01.2001 the intention of the deposit in the name of minor is his welfare. It is further to be noted that though the loan was granted to Kartiyayani on the strength of the cash certificate, in addition to which, 2nd opposite party has obtained a promissory note. Bank has not initiated any proceeding against Kartiyayai using the said promissory note (Ext. D4). We need not discuss that aspect, since the action of the bank is unilateral and against the provisions of the aforesaid law. Bank has no right to give loan on the strength of the document (cash certificate deposited in the name of the minor) without obtaining sanction from the competent authority and adjust the amount from cash certificate towards the loan amount. The action of the bank is illegal and amounts to deficiency in service. In view of the matter, we are of the considered opinion that justice will be well met if complainant is allowed the cash certificate amount with interest thereon from the date of maturity. In the result, complaint is allowed. Opposite parties are directed to pay the complainant Rs. 14,712.90 vide Ext. D1 cash certificate with 9% interest there on from 18.01.2001 along with a cost of Rs. 1,000/-. The said amount will carry higher interest at the rate of 18% if not paid within two months from the date of receipt of this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16th day of November 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
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O.P. No. 532/2002 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Arun II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of advocate notice dated 14.08.2002 P2 - Postal receipt dated 14.08.2002 addressed to opposite party P2(a) - Postal receipt dated 14.08.2002 addressed to opposite party P3 - Acknowledgement card dated 16.08.2002 addressed to opposite party. P3(a) - Acknowledgement card dated 17.08.2002 addressed to opposite party. P4 - Original letter dated 12.09.2002 issued by opposite party.
III OPPOSITE PARTY'S WITNESS : DW1 - B. Ambujakshi Amma IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of cash certificate issued by opposite party dated 17.01.1986 D2 - Photocopy of letter addressed to opposite party. D3 - Photocopy of application for loan dated 23.05.1989 D4 - Photocopy of promissory note dated 23.05.1989
PRESIDENT
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