By Adv. Ravi Susha, Member.
The complainant is one of the legatees in will No.58/09/III dated 8..4..2009 of Kollam S.R.O. executed in her favour and her 2 children by Marietaa Fernandez, St, Ann’s Guardian, House No.552, KC XL VIII/819 TRA 116, Thangasseri.P.O., Kollam, Marietta Fernandez expired on 29..4..2010. In the said will she had nominated the complainant as her nominee in the account No.SB.10277889511 in the opp.party Bank. Even though the said account was a joint account with the mother of Marietta Fernandez, her mother predeceased her around 5 years back. In the said will, the said Marietta Fernandez had bequeathed the balance amounts in her accounts maintained in the opp.party Bank, ie 30145589597, 10277906402, 10277906399, 10277906355, 30719043071, 30719043333 and 30719042691. The children of the complainant were bequeathed with the balance amount in the savings account in Costal Urban Bank and Indian Overseas Bank in the accounts of Marietta Fernandez by the said will. As per the conditions in the will, the said two Banks had released the balance amount in favour of the respective legatees. But when the complainant approached the opp.party with the will and all other testimonials to prove her identity the opp.party was not inclined to released the amounts due to the complainant by raising untenable grounds. The opp.party demanded the complainant to bring the legal heir ship Certificate of deceased Marietta Fernandez. Further the opp.party insisted the complainant that the will of Mariewtta Fernandez is to be probated. The bequeath of the balance amounts in the accounts of late Marietta
Fernandez to the complainant has become absolute since nobody had challenged the validity or sanctity of the will. The complainant is entitled to get the amount released as per the will. The act of the opp.party with holding the amounts due to her amounts to deficiency in service and unfair trade practice. The complainant had caused to issue an advocate notice through her lawyer. But the opp.party had issued a reply notice stating untenable contentions. Hence the complainant filed this complaint.
Opp.party filed version contending that, the complaint is not maintainable either in law or on facts. The complainant is neither a customer of the Bank nor a ‘Consumer’ as defined under section 2 [d] of the Consumer Protection Act. The dispute involves complicated questions of law and facts relating to the representative title of the complainant to the estate of a deceased person, which cannot be decided in proceeding before the Consumer Forum, The remedy, if any of the complainant lies before the Civil Court, having the jurisdiction in the matter. Moreover, a complainant filed by the complainant before the Hon’ble Banking Ombudsman claiming the same releifs has already been dismissed by the Hon’ble Banking Ombudsman. Hence on this score also the above complaint is not maintainable before this Hon’ble Forum. In respect of the SB Account NBo.10277889511, Miss. Marietta Fernandez had nominated the complainant Smt. Vasanthakumari as per the Banking Companies [Nomination] Rules, 1985, as Nominee to whom in the event of her death, the amount of deposit in that SB Account No.10277889511 may be returned by the Bank and Opp.party has no objection in releasing the amount in respect of the SB Account No.10277889511 of Late Mr. Marietta Fernandez in favour of the complainant with respect to which there is a valid nomination. But as far as the fixed deposits are concerned Ms. Marietta Fernandez had not made any nominations as per the Banking Companies [Nomination} Rules, 1985. The opp.party bank can release the amount in the account of a deceased person only in compliance with the standing instructions of the Bank and directives of the Reserve Bank of India and in accordance with the Law governing the issue. As per the extant instructions of the Bank, the opp.party is not expected to release the amount deposited by the deceased in favour of a legatee on the basis of the will, unless it is a probated one. An unprobated will is not considered as a legal representation for the purpose of settlement of the assets of the deceased constituents.. On the other hand when the will is not a probated one, all the formalities and procedure relating to settlement of claims with out legal representation [when there is no will] have to be complied with by the opp.party Bank in order to release the amount deposited by the deceased. There is no deficiency on the part of the opp.party Bank in withholding the amounts due under the accounts of Late Marietta Fernandez and it is not an unfair trade practice as alleged by the complainant in Paragraph No.9 of the complainant. The opp.party bank could not release the amount in the accounts of Late Marietta Fernandez only due to the reluctance on the part of the complainant to get the will probated or to comply with the required legal formalities. The contra averments and allegations in the complaint are absolutely incorrect, without any basis and hence are denied. The opp.party bank had issued reply through their counsel to the Advocate Notice issued by the complainant. Hence the opp.party prays to dismiss the complaint
Points that would arise for consideration are:
1. Whether there is deficiency in service on the part of the opp.parties
2. Reliefs and costs.
For the complainant PW.1was examined and marked Exts. P1 to P9
For the opp.party DW.1 was examined and marked Exts. D1 to D8
THE POINTS:
The complainant’s case is that she is one of the legatees in will No.58/09/111 dated 8..4..2009 of Kollam SRO executed by one Mioss. Marietta Fernandez in favour of the complainant and her two children. In the said will she had nominated the complainant as her nominee in the account No.SB.10277889511 and other accounts in her name maintained in the opp.party Bank. But when the complainant approached the opp.party with the will and all other documents, the opp.party was not inclined to release the amounts to the complainant by raising untenable grounds.
The opp.party raised the contentions such as the complainant is not maintainable, the complainant is neither a customer of the bank nor a consumer and the complainant should approached Civil Court. In this case since in the will and in Ext. D4, complainant is the nominee and alleging deficiency in service on the part of the opp.party, the complaint is maintainable before the Forum.
According to the opp.party they can release the amount in the account of a deceased person only in compliance with the standing instructions of the Bank and directions of the Reserve Bank of India and in accordance with the Law governing the issue. The opp.party is not ready to release the amount deposited by the deceased in favour of the complainant on the basis of the will, unless it is probated. The opp.party is ready to give the SB Account NO.10277889511 kept in the opp.party to the complainant as the complainant has been nominated as Maietta Fernandez’s nominee. In Ext. D8 . Opp.party further contented that general Nomination in respect of various accounts without specifying the Account number is not valid and binding on the Bank. In Ext. D8 it is clearly mentioned that the complainant is appointed as a nominee for the SB Account No.10277889511 and all other Deposit in Marietta Fernandez’s name deposited in the opp.party Bank. In Ext.P1 will also Marietta Fernandezs stated that after her death, the balance amount in the opp.party bank shall devolve upon the complainant. Opp.party raised a contention that an improbabted will is not considered as a legal representation for the purpose of settlement of the assets of the deceased constituents. According to them the will of the Marietta Fernandez is to be probated.
After the death of Marietta Fernandez, the complainant had approached the opp.party with the original will, original nomination, Original FD receipts of Marietta Fernandez, testimonials for proving the identity of the complainant and original death certificate of Marietta Fernandez. Since the opp.party denied to release amount in the account of Marietta Fernandez to the complainant the complainant issued an Advocate notice to the opp.party and after that filed this complaint before the Forum and made paper publication in Kerala Kaumudi daily informing the general public that she had filed a case before this Forum for getting the amount due to her by virtue of the will and any body having objection shall inform the Forum. But nobody had come towards the forum with any objection. Before filing this complaint before the Forum, thew complainant filed a complaint before the Banking Ombudsman. In Ombudsman’s order it is only mentioned that they have closed the complaint under clause 13 [c] of the Banking Ombudsman Scheme 2006. The complainant’s counsel argued and produced a decision of Hon’ble High Court of Kerala cited in 2008 [3] KLT 27. By virtue of the decision, from the date of amendment of Indian Succession Act 1925, with effect from 14..3..1997, the need for obtaining a probate or letter of administration of a will cannot be insisted upon. The complainant’s counsel also argued that the complainant had many times informed the opp.party about the judgment that the Christian will need not be probated. From the said decision without probating the will [ExtP1], the complainant is entitled to get the amount in the accounts of Late Marietta Fernandez in the opp.party bank.
On considering the entire evidence we are of the view that there is deficiency in service on the part of the opp.party bank in non-disbursing the amount to the complainant as per Ext.P1 since nobody had challenged the validity or sanctity of the will.
In the result the complaint is allowed. The opp.party is directed to disburse the amount in SB account 10277889511 and FD Account Nos.30145589597, 10277906402, 10277906399, 10277906355,30719043071,30719043333 and 30719042691 in favour of the complainant. Opp.party is also directed to give Rs.5000/- as compensation and Rs.1000/- as cost to the proceeding to the complainant. The order is to be complied with within one month from the date of receipt of this order. Failing which the complaint is entitled to get the above said amounts with 12%interest. The order is to be complied with within one month from the date of this order.
Dated this the 18th day of May, 2012.
I N D E X
List of witnesses for the complainant.
PW.1. – Vasanthakumari
List of documents for the complainant
P1. Will
P2. – Death certificate
P3. – Receipts
P4. –Copy of passbook
P5. – Advocate notice
P6. – Reply notice
P7. – Election Identity card [copy]
P8. – Extract of Land Tax
P9. – Copy of Ration card.
List of witnesses for the opp.party
DW.1. – Gigi.T.Jacob
List of documents for the opp.party
D1. – Letter sent by opp.party to the complainant
D2. - ADVOCATE NOTICE
D3. – Acknowledgement card
D4. – Form DA-1
D5. – Revised Claim Forma
D6. – Application for seeking information
D7. – Postal receipts
D8. – Letter sent by Public Information Officer to Sri.Gigi.T. Jacob
