BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 23rd February 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : MEMBER
ORDER IN
C.C.No.101/2013
(Admitted on 06.04.2013)
K. Narayana,
S/o late K. Krishna,
Aged about 56 years,
Residing At d. No.136, Vishnu Nivasa,
Mutta Bangre Road, Mangalpady Village and Post,
Kasaragod Taluk 671324.
….. COMPLAINANT
(Advocate for the Complainant: Sri TP)
VERSUS
The Manager,
Canara Bank, Hoige Bazar Branch,
Hoige Bazar, Mangalore D.K.575001.
…...........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri. MSKP)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming, the Opposite Party to pay a sum of Rs.2,89,000/- as stated by Opposite Party or actual pension amount illegally adjusted the loan Account No.2034 from the S.B.Account No.5319 to complainant, directed to Opposite Party to pay15% interest p.a, to pay Rs. 1,00,000/ towards the compensation.
2. In support of the above complaint the complainant Mr. K. Narayana filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C14 as detailed in the annexure here below. On behalf of the opposite party Mrs. Veena H. Shenoy (RW1) Manager, Canara Bank, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. The dispute is, the complainant is a bank account holder in the opposite party. The complainant’s wife who was in service died and the family pension Amount was credited to the said complainant bank account No 5319. The complainant stood as surety for the loan taken by his brother named Puroshottam the loan Account no 2034. The loan was defaulted in payment and became NPA. The opposite party without authorization transfer the amount from the said account No 5319 to the loan account of the complainant’s brother. The said account was a pension account and as per law the pension amount cannot be attached or appropriated to any debt. Hence the opposite party committed the deficiency in service by transferring the pension amount to the loan account in which the complainant is the surety. The opposite party contended that, the complainant is the surety and whatever the amount belongs to the complainant which is in their custody has got bankers lien under the provision of law. As such the amount standing to the credit in the complainant’s S.B. Account is recovered for the loan account assured by the complainant. The complainant filed this complaint along with an application under Sec 24 A of the Consumer Protection Act 1986 for the condonation of delay if any. These are being the facts of dispute, in resolving this dispute we consider the following.
POINTS FOR ADJUDICATION.
We have considered the evidence lead by the parties and the documents on record. The admitted facts are, the complainant’s bank account No 5319 with the opposite party and the family pension amount of complainant’s deceased wife being credited to the said account. It is also admitted that the amount from the said Account no 5319 is transferred to the loan account No. 2034 of Purushottama which has become NPA. It is denied by the opposite party that the complainant Account is a pension account. Also denies that the attaching of the complainant pension account and they have promised the complainant that the pension amount will be paid once the loan is cleared. These are the admitted and denial facts which is material to the dispute. We are of the opinion that the following points may be adjudicated in resolving this dispute.
Before proceeding to the adjudication of this complaint the application filed by the complainant for condoning the delay if any to be decided. We have gone through the complaint pleadings and examined the dates carefully. There are few correspondence took place to find out and obtain the correct figures given rise to dispute. Among which the loan Account was closed on 15.11.2011 and correspondence continued till 25.02.2013 when the opposite party furnished the details of the pension credited and the statements of the complainant’s account. Hence we do not see any delay in filing this complaint. The IA disposed thus.
- Whether the complainant is a consumer under the Consumer Protection Act 1986?
- Whether the complainant proved the opposite party committed the deficiency in service by transferring the pension amount from Account no 5319 to the loan Account No 2034?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have considered the documents produced and the evidence adduced by the parties. Considered the law and heard the party submissions and answered the above points as under.
- In the affirmative.
- In the negative.
- In the negative.
- As per delivered order
REASON
POINT NO 1: The complainant produced the pass book EX C 13 which is in the name of the complainant. It is not denied by the opposite party that the complainant is the consumer. There established the relation of consumer and the service provider and hence we answered the point no 1 in the affirmative.
POINT NO 2 and 3: The specific contention of the complainant is, the opposite party transferred the amount in the pension account of the complainant to the loan account 2034 of the Puroshottam to clear the loan. The transfer is without authorization and the opposite party has no right to attach or setoff the pension amount to any loan or decree as per law. In deciding this main point questions to be answered. First, whether the account of the complainant is the pension account and the amount transferred is pension amount? Secondly, is it without authorization by the complainant?
To consider the first question we referred to the original pass book produced as EX C 13 and keenly examined the contents of the pass book and find that
- The account was opened on 24.01.1990 as S,B,A/c No 5319 but not as pension account. The complainant’s learned counsel vehemently argued that the letter “P” in bracket written in hand is denotive of pension account. Opposite party denied the complainant counsel’s submissions. Just because the pass book contains the letter P cannot be considered as pension account. So we proceeded to see the nature of the account how it is opened and operated. The learned counsel for the complainant submitted while arguing the transaction in the said account is exclusively for the pension amount and transactions. To see the nature of the account we proceeded to see the transaction entered in the pass book.
- The Account was opened in the name of the complainant by depositing ₹ 100/- in 24.01.1990.
- There is no any thing to show it is pension account but as complainant stated a letter P in bracket written
- Some cash deposit entries were seen in the pass book as
on 05.03.1990 deposited ₹ 10000/ in cash
on 14.02.1995 deposited ₹ 1,00,000/ in cash
on09.03.1995 deposited ₹ 15000/ in cash.
- The pass book entry was till 11.09.1995 and stated to be continued in new pass book from 05.12.1995.The complainant produced another pass book S.B. A/c no 3068 in the name of complainant which is not related to pension amount. By seeing the nature of operation as above the Account is not maintained as exclusively as pension account but some other amount also included in the account. However from the year 11.03.2002 to 10.09.2009 there is no other deposits to the account. But it not specifically mentioned as pension and the nature of operation during early period shows the Account operated as S.B.A/c.
2. Another point to be considered is whether the complainant account is the pension account as per law and the amount is pension amount. The pension is the amount payable on completion of service or retirement of the employee for his survival considering his past service. In the instant case the amount involved is not the pension amount as above but it is a family pension amount. There is difference between pension and the family pension. The pension will be received by the pensioner who served. whereas in this case the family pension is being received by the beneficiary or the nominated member. It is not an pension amount as such pension in the hands of the complainant herein. The spouse of the complainant died and the money is the pension amount of the spouse and received by the complainant as beneficiary. In our opinion it cannot be looked at par both the pension amount and the family pension amount. Also it is argued by the opposite party that once the pension amount deposited in the bank it loses the nature of pension amount. It is true till it is with the provident fund commissioner it is pension amount and it cannot be attached. But when it reaches the hands of the complainant it cannot be termed as pension amount and cannot be distinguished too. In these circumstances like the complainant A/c No. 5319 is opened as S.B.A/C and even in transactions there is other receipts other than pension amount and there is difference between pension and the family pension, we conclude the complainant A/c No. 5319 is not the solely pension account as cash deposits found, and the amount in the account is not the solely pension amount and it is family pension amount.
3. As far as the second question the opposite party contends as per law the bank has got the lien over the debtors amount and as such they have transferred the amount to the loan account No 2034 for which the complainant is the surety and the loan Account was NPA since long. We subscribe to the contention of the opposite party. The banker has got authority to recover the credit balance in the complainant account for the liability of the complainant pertaining to the loan for which he is the surety.
4. As per above discussion we hold the complainant not proved the opposite party has committed deficiency in service by transferring the amount from the A/c No 5319 to loan A/c No 2034. Hence the answer for the point No.2 is in the negative. and as such the point no 3 in the negative.
POINT NO 4: in the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 9 Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 23rd February 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. K. Narayana
Documents marked on behalf of the Complainant:
Ex C1: 15.12.2012: office copy of the application submitted by the complainant under RTI Act to the Treasury officer Mangalore.
Ex C2: 17.12.2012: Original letter written by the Treasury Office Mangalore to the Opposite Party.
Ex C3: 29.12.2012: officer copy of the application submitted by the complainant under RTI Act to the Treasury officer Mangalore.
Ex.C4: 19.1.2013: Original letter written by the senior manager Canara bank to the complainant.
Ex.C5: 4.2.2013: officer copy of the legal notice issued by the complainant to the Opposite Party.
Ex.C6: 07.2.2013: Original postal Acknowledgment.
Ex.C7: 6.2.2013: Original letter written by the Assistant General Manager Canara Bank to the complainant.
Ex.C8: 25.2.2012: Officer copy of the letter written by the complainant to the Opposite Party.
Ex.C9: 26.2.2013: officer copy of the application submitted by the complainant under RTI Act to the Treasury Officer Mangalore
Ex.C10: 01.3.2013: Original letter written by the treasury officer Mangalore to the Opposite Party.
Ex.C11: Computerized copy of the S.B.Account details from the 21.6.2002 to 6.2.2013 furnished by the Opposite Party.
Ex.C12: 15.11.2011: Certificate issued by the Opposite Party stating the loan account of Purushotham is closed.
Ex.C13: 24.1.1990: original pass book of S.B.Account No.5319 issued by the Opposite Party.
Ex.C14: 14.7.1993: original pass book of S.B.Account No.3086 issued by the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1: Mrs. Veena H. Shenoy
Documents marked on behalf of the Opposite Party:
Ex.R1: certificate towards closure of A/c.
Ex.R2: certified copy of A/C extract of Purashotham. K.
Ex.R3: Certified copy of A/c extract of complainant (Available extract)
Dated: 23.02.2017 MEMBER
