DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD Dated this the 31st day of May 2011 Present : Smt. Preetha.G. Nair, Member : Smt. Bhanumathi.A.K, Member Date of filing: 08/12/2010 (C.C.No.165/2010) Sivadasan S/o.Subramanian, Athikkat Challa, Nattukal Post, Chittur Taluk Palakkad - Complainant (By Adv.K.Jyothi Basu) V/s The Manager Canara Bank Moongil Mada Branch Vannamada, Palakkad. - Opposite party (By Adv.G.Ananthakrishnan) O R D E R By Smt.PREETHA G NAIR, MEMBER The Complainant and his father have a joint saving Bank Account with the opposite party as account No.7822. The father of the complainant has taken a personal loan for purchasing a cow. The complainant had joint Life Insurance Policy with the LIC. The complainant was unable to pay the insurance amount in time since he was suffering many health problems. Then the complainant withdraw the amount in the policy and the insurance company issued a cheque for Rs.14,019/- in the name of complainant. The cheque presented in the opposite party bank through the joint account for collection on 28/9/10. At the time of presenting the cheque the bank Manager stated that take 15 days time for collection. After 15 days the complainant informed that it is not possible to pay the amount of Rs.14,019/- because the amount was credited to the loan account of his father. The complainant is not a guarantor of the loan or a co-applicant of the loan. The act of the Manager is illegal, unsustainable and amounts to deficiency in service. Hence the complainant prays for an order directing the opposite party to 1) Return the amount of Rs.14,019/- with interest of 12% per annum 2) Pay Rs.25,000/- as compensation for mental agony. Opposite party filed version stating the following contentions. The complainant and his father opened a joint saving bank account with the opposite party bank on 25/7/2005, without specifying any conditions regarding its mode of operation. In the joint account the 1st account holder is father of the complainant and the 2nd account holder is the complainant. Hence any amount deposited in the joint account is that of the 1st depositor as he is the owner of the deposited amount and not the 2nd named person. The opposite party stated that the father of the complainant had availed a loan of Rs.60,000/- from the opposite party bank. As per the agreement the sanctioned amount was credited to the father’s saving bank account No.1793101007822. As per the clause 19 of the memorandum of agreement for agricultural loan, the complainant’s father had authorized the bank to debit the amount from the Saving Bank Account and to credit the loan account from time to time with any money standing to credit of complainant’s father’s S.B.Account. Accordingly on 03/11/2010, the opposite party had debited the amount of Rs.14,000/- from the S.B.Account and had credited the loan account. Thus the debiting of the amount from the father’s account is in accordance with law and the contract with the opposite party bank and the father of the complainant. The complaint as filed is not maintainable and the complainant is not a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act. Besides, the complaint is also bad for non jointer of necessary party. The owner of the saving bank account is also a necessary party. The father of the complainant is a willful defaulter of the loan account. The evidence adduced consisted of chief affidavit, Ext.A1 to A2 and Ext.B1 to Ext.B6. Matter was heard. Issues to be considered are 1) Whether the complainant is a consumer ? 2) Whether there is any deficiency in service on the part of opposite party ? 3) If so, what is the relief and cost entitled to the complainant ? Issue No.I The opposite party stated that the complainant and his father had opened a joint saving bank account with the opposite party bank on 25/7/2005. In the joint account the 1st account holder is father of the complainant and the 2nd holder is the complainant. Customer to whom services are rendered by the banks are consumers as service under Sec 2(o) specifically includes banking. Hence we hold the view that the complainant comes under the definition of consumer as defined in the Consumer Protection Act 1986. Issue II & III Admittedly the father of the complainant alone had availed a loan of Rs.60,000/- from the opposite party bank. The dispute is between the complainant and the opposite party bank. So the father of the complainant is not a necessary party. The complainant stated that he is not a co-applicant or a guarantor of the agricultural loan and the complainant has not signed in the memorandum of agricultural loan. No contradictory evidence was produced by the opposite party. The agricultural loan was obtained by the father of the complainant. There is absolutely no evidence to show that the loan was availed for the father of the complainant and the complainant. The opposite party stated that the amount found in the saving bank account is the complainant’s father’s only. In Ext.A2 mentioned that “for the credit of Sivadasan.S” ie. in the name of the complainant. No evidence was produced by the opposite party to show that notice issued to the complainant before debiting the amount. In Ext.A1 on 23/11/2010 the opposite party stated that the amount of Rs.14,000/- debited to loan account of father of the complainant on 3/11/2010. The opposite party stated that as per the clause 19 of the memorandum of agreement the complainant’s father had authorized the bank to debit the amount from the SB Account and to credit the loan account. But the complainant has not signed the memorandum of agreement. The complainant stated that the amount of Rs.14,019/ was withdrawn for the purpose of treatment. No evidence was produced by the complainant to show he was undergoing any treatment. In the present case the complainant is not a surety to his father with respect to the loan provided to his father. As the complainant had not availed the loan the opposite party had no right to retain the amount produced by him. The opposite party bank had illegally debited the amount in the loan account of the father. The Hon’ble State Commission 2011 in C.T.J.240 (CP) (SCDRC) Leela Vs. District Co-operative Bank, Kannur held that the complainant had not availed the loan the opposite parties have no right to retain the records submitted by her. In Ext.B5 on 3/11/2010 the funds transfer from 1793101007822 of Rs.14,000/-. No other amount was debited from 1793101007822. In the above discussions we are of the view that there is deficiency in service on the part of opposite party. Hence the complaint allowed. We direct the opposite party to pay the amount of Rs.14,019/- with 12% interest from 3/11/2010 to date of receipt of order and Rs.1,000/- as cost of the proceedings to the complainant within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization. Pronounced in the open court on this the 31st day of May 2011. Sd/- Preetha G Nair Member Sd/- Bhanumathi.A.K. Member APPENDIX Exhibits marked on the side of the complainant Ext.A1 – Intimation Lr. dtd 23/11/10 sent to the complainant by the opposite party Ext.A2 – Cheque counterfoil. Exhibits marked on the side of the opposite party Ext.B1 – Copy of Loan application Form dt.28/7/05 Ext.B2 – Copy of Memorandum of Agreement for Agricultural Loan dt.28/7/07 Ext.B3 –Copy of Acknowledgement of Debt and Security Ext.B4 – Copy of Ledger Extract from 01/4/09 to 6/1/2011 Ext.B5 - Copy of Ledger Extract from 01/4/07 to 31/12/2010 Ext.B6 – Copy of letter sent by opposite party dated 23/11/2011 to the complainant. Cost Allowed Rs.1,000/- allowed as cost of the proceedings. | 
