BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.89/2008 Order dated this the 25th day of November 2008 COMPLAINANT/S B.Reshma, D/o Boregowda, R/o Hombale Nilaya, Ramamandira Road, 3rd Cross, Thavregere, Mandya City. (By Sri.S.Shiva Shankar., Advocate) -Vs- OPPOSITE PARTY/S 1. The President, 2. Secretary, Both are R/at The Mandya City Co-operative Bank Ltd., Mandya, V.V.Road, Mandya. (By Sri.T.Lokesh., Advocate) Date of complaint 01.09.2008 Date of service of notice to Opposite party 17.09.2008 Date of order 25.11.2008 Total Period 2 Months & 8 Days Result The complaint is allowed, directing the Opposite party to pay Rs.70,274/- with interest from the date of complaint at 8% p.a. till realization with cost of Rs.1,000/-. Sri.Siddegowda, President 1. This complaint is filed under section 12 of Consumer Protection Act to direct the Opposite party to refund Rs.71,000/- with interest from the date of complaint. 2. The case of the complainant is that she is a S.B.Account holder in Opposite party Bank from 06.06.2006 under SB Account No.9529. At the time of opening the account, on 06.06.2006 she deposited Rs.1,000/- and then Rs.31,000/- on 18.07.2006, Rs.2,000/- on 08.12.2006 and Rs.13,000/- on 14.12.2006, for these deposit, entries are made to the pass book by the Opposite party Bank. The complainant is having a challan for having deposited Rs.13,000/- on 14.12.2006. On 13.01.2008, the complainant went to draw the amount the Bank Authorities informed that there is no amount in her account and directed to produce the pass book and available challan copies. Therefore, on 04.02.2008, the complainant produced the pass book and the copy of the challan dated 14.12.2006 and in spite of it, the Opposite party Bank did not pay the amount. So, the complainant gave petition on 14.02.2008 and the Opposite party has issued endorsement dated 24.03.2008 denying the liability to pay the amount. Further, with regard to the mis-appropriation amount to the Bank, the Opposite party has filed litigation before the Deputy Registrar of Co-Operative Societies, Mandya on 08.04.2008 against its employees giving the details of mis-appropriation and also obtained attachment before judgement before the Co-operative Federation. Though the legal notice was issued, the Opposite party has not replied and not paid the amount. Therefore, the Opposite party has committed deficiency in service. 3. The Opposite party has filed version admitting that the complainant is a customer of the Opposite party Bank having S.B. Account No.9529. It is denied about the deposits on the dates mentioned in the complaint. It is contended that the challans and pass book are created, concocted in collusion with the suspended employees of the bank, to have wrongful gain. The entries of the pass book are in the hand writing of a single individual in a span of 6 months, which is impossible and improbable, because the Bank transactions are done on rotation basis. Other allegations are denied. The Opposite party bank has suspended its 4 employees and initiated proceedings against them. But, it is not in respect of the amount claimed by the complainant. The letter dated 14.02.2008 and 27.03.2008 written by the complainant clearly reveal that she has not at all deposited sum of Rs.47,000/- to her account. In fact, the complainant opened her account by depositing Rs.500/- on 06.06.2006. Then on 08.12.2006 remitted a sum of Rs.2,000/- to her account. The remaining 4 entries made by the Bank in the ledger extract are all by way of interest and there is only Rs.2,599/- in her account. The Opposite party has not committed any deficiency in service. Therefore, the complaint is liable to be dismissed. 4. During trail, the Complainant has filed affidavit and produced the documents Ex.C.1 to C.11. The Opposite party has not let in any evidence, but produced ledger extract of the account of the complainant. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the complainant has deposited Rs.47,000/- on dates mentioned in the complaint? 2) Whether the Opposite party has committed deficiency in service in not paying the amount? 3) What order? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- It is an admitted fact that the complainant is a consumer of Opposite party Bank having S.B. Account No.9529 from 06.06.2006. According to the complainant, at the time of opening the account on 06.06.2006 deposited Rs.1,000/-. But according to the Opposite party by depositing Rs.500/- the account was opened. The complainant has produced the pass book Ex.C.1. In this pass book, it is mentioned deposit of Rs.1,000/- on 06.06.2006. Further, according to the complainant on 18.07.2006 she deposited Rs.31,000/-. 0n 08.12.2006 she deposited Rs.2,000/- and on 14.12.2006 Rs.13,000/-. The Opposite party has admitted the deposit of Rs.2,000/- on 08.12.2006, other two deposits are disputed. The complainant has produced the pass book Ex.C.1 and it shows the deposit of Rs.31,000/- on 18.07.2006 and Rs.13,000/- on 14.12.2006. The contention of the Opposite party is that the pass book and entries are created in collusion with the suspended employees, but Ex.C.1 is having the photo and seal on the photo and also the pass book. So it cannot be said that the pass book is created and entries are created. In the pass book for every deposit, challan number is mentioned. The bank could have produced the cash scroll of particular day to prove that challan number mentioned in the pass book does not find a place. The complainant has produced the challans Ex.C.2 for having deposited of Rs.13,000/- on 14.02.2006. On this challans there is seal of the bank for having received the amount and cashier and scroll officer has put signature. To disprove the same, this Opposite party bank has not produced transaction sheet of particular day. The contention of the Opposite party is that in Ex.C.3, the complainant has not mentioned the amounts deposited, but she has stated that she has produced the pass book extract and challan extract and the Opposite party Bank had agreed to pay the amount and later did not pay the amount. The Opposite party has relied upon the account extract produced by it. But the account extract is not according to the Bankers Evidence Act and it is not certified properly and it does not bear date at all. It is the document maintained by the Opposite party Bank and it will not be scrutinized by the customer and it will not be shown to the customer at all and the customer rely on only the entries made in the pass book. The complainant is not responsible for the mis-appropriated of amount by destroying challans and not mentioning in ledger. When the complainant went to draw the amount on 29.01.2008 by using the loose leaf issued by the bank, it was not honoured and that loose leaf is Ex.C.11. Further, including the complainant and other customers lodged a petition on 08.04.2008 as per Ex.C.7 to the President and Co-operative Department about the mis-appropriation in the bank giving account numbers, Ex.C.8 reveals that the Opposite party Bank has filed case before the Joint Director of Co-operative Societies for recovery of Rs.34,90,000/- said to have been mis-appropriated by 4 employees and sought for attachment before judgment. Further, as per Ex.C.9, the 2nd Opposite party the Secretary of the Opposite party Bank filed a report to 1st Opposite party to the President of the Opposite party Bank, after complaints by the customers and after perusing the ledger and pass books and cash receipt, counterfoil and reported that totally there is mis-appropriation of Rs.34,90,000/. Even though, in Ex.C.9 the Secretary has reported some instances of mis-appropriation, but it cannot be said that there is no mis-appropriation of the amount from the account of the complainant. The main document available with a customer is the pass book. The Opposite party has admitted for having issued the pass book Ex.C.1, but contended that the entries are concocted. It is not the case, the complainant has suppressed the real pass book and has obtained another pass book from the bank in collusion with the employees and got made the entries. We cannot expect a customer to go to such an extent. When the Secretary of the Opposite party Bank has perusal all the accounts and came to the conclusion there is mis-appropriation of Rs.34.90,000/- from the various accounts, the Opposite party Bank could have produced the detail of mis-appropriation, but simply stated some samples in the report Ex.C.9. We cannot expect a customer to preserve all challans anticipating misdeeds in the bank. For the above reasons, in view of non-production of challans mentioned in the pass book by the Opposite party Bank and in view of the entries made in the pass book given to the complainant and challan Ex.C.2, it is clear that the complainant has deposited totally Rs.47,000/- and therefore, we answer point no.1 in the affirmative. 9. POINT NO.2:- The complainant has alleged that the Opposite party Bank did not pay the amount stating that there is no such amount in her account, when the complainant presented the loose leaf of the Opposite party Bank for withdrawal of Rs.47,000/- as per Ex.C.11 on 29.01.2008. It has to be held that the Opposite party has committed deficiency in service in spite of entries in the pass book and the challan for having deposited Rs.13,000/-. The Opposite party Bank has suppressed the material documents. Therefore, we hold that the Opposite party has committed deficiency in service. 10. In view of our findings on point no.1 & 2, the complainant is entitled to refund of Rs.47,000/- and interest of Rs.23,274/-. 11. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the Opposite party to pay Rs.70,274/- with interest from the date of complaint at 8% p.a. till realization with cost of Rs.1,000/-. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 25th day of November 2008). (PRESIDENT) (MEMBER) (MEMBER) ctj
