IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 31st day of May, 2022.
Filed on. 30.03.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A.L, LLB (Member)
In
CC/No.85/2021
between
Complainant:- Opposite parties:-
Sri. Sreejith.V.Nair 1. The State Bank Of India
S/o Vasudevan Nair Local Head Office
Chandramangalam House Poojappura.P.O, Trivandrum
Pazhaveedu Village, Alappuzha-9 Rep by Asst. General Manager
(Adv. P.T.Joseph)
2. The Manager, SBI
Pazhaveedu Branch
Thiruvambady P.O,Alappuzha
3. Sri. Santhosh Karunakaran
Manager, SBI Treasury Branch
Ground Floor, Anacutchery
Building, Trivandrum-01
(Adv. C.Parameswaran for
Ops)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019.
1. Material averments briefly discussed are as follows:-
Complainant is a practicing lawyer and he is the present secretary of Kerala Cricket Association(KCA in short), which is affiliated to the Board of Control for Cricket in India(BCCI in short). 1st opposite party is State Bank of India having one of its local head office at Trivandrum. 2nd opposite party is the manager of Pazhaveedu Branch of State Bank of India and 3rd opposite party is the manager of Treasury branch, Trivandrum of 1st opposite party bank. He was a former Renji Trophy player and a registered player of SBI cricket team which is affiliated to the Trivandrum District Cricket Association.
2. Complainant is holding a current account bearing No. 67090133050 with the 2nd opposite party branch. The 3rd opposite party turned hostile to Trivandrum Cricket Association and Kerala Cricket Association when the Trivandrum District Cricket Association refused to nominate him for the level.’A’ coaching of the BCCI, since he is only interested to obtain the certificate of Umpiring, coaching etc. to showcase and not interested to serve the Trivandrum Cricket Association in the above capacity and inorder to provide opportunities to other former Renji players. 3rd opposite party preferred an appeal before the BCCI and it was not considered. From that point of time he started working against the Trivandrum Cricket Association and Kerala Cricket Association. 3rd opposite party is now facing enquiry/disciplinary proceedings for two charges leveled against him by the Kerala Cricket Association. The 1st one is for canvassing and aiding Kerala senior team players to send email to Kerala Cricket Association against the captain of the Senior Kerala team and leaking the said email to media. The 2nd one is for conducting press meeting and raising false statements along with one K. pramod who was terminated from the Trissur District Cricket Association and KCA for the charge of misappropriation for conducting press meeting and raising false statements against the office bearers of KCA. Now the 3rd opposite party along with the said K.Pramod formed a caucus and involved in anti-association activities and filing false cases to unsettle the KCA. The above said punitive actions against 3rd opposite party and M.K.Pramod were taken when the complainant became the secretary of KCA.
3. The payment from KCA are effected through its official banker, M/s Fedral Bank Ltd., Palarivattom branch. As per the byelaw of KCA an officer bearer or members of an association is paid with traveling allowances and dearness allowances in connection with official engagement for services provided to KCA, attend meetings of KCA etc. The payments like TA & DA etc. to the complainant from the KCA were directly credited to the bank account of the complainant through RTGS/NEFT after due approval by all the signatories of KCA to the designated bank accounts provided to KCA, bank account maintained with SBI, Pazhaveedu Branch or to bank accounts maintained with other banks. The accounts are the personal account of the complainant and it is quite natural that his personal and professional expenses including repayment of housing loan/ EMI of housing loan etc will be met out of such bank account maintained.
4. In order to wreck vengeance against KCA and the complainant, 3rd opposite party copied/took complainant’s account details maintained in the 2nd opposite party branch from the core banking computer system misusing his position and his capacity as the branch manager of Treasury branch, Trivandrum. The details of account so collected were revealed to Mr. Pramod by the 3rd opposite party. On 22/12/2019 Mr. M.K.Pramod posted an article in his face book alleging that the complainant as the secretary of KCA is withdrawing lakhs of rupees from KCA for repaying his housing loan on the basis of such account details which was made narrated and published in the said facebook posting. The account details were aired in order to confuse general public and to create a shadow of doubt on the complainant and to harm his integrity and reputation.
5. Complainant maintain accounts with other banks also. But the details of the transaction were leaked from the account limited to the amount credited to the complainant’s account maintained with SBI only. Only the details of account maintained with SBI were circulated and leads to the conclusion that account details were copied from the core banking computer system by the 3rd opposite party misusing his position and the capacity as the branch manager.
6. On 27/12/2019 complainant complained about such reckless and premeditated act of the 3rd opposite party through email to the 1st and 2nd opposite party. Inspite of repeated reminders there was no action. The said designed act of the 3rd opposite party illegally disclosing the account details of the complainant and aiding to publish the same in a distorted version in a slanderous manner as an employee of the 1st opposite party bank is against the prevailing rules and regulations of the banking institutions. It is violating all norms of banking procedure and it amounts to dereliction of duties and the deficiency of service on the part of opposite parties. 3rd opposite party is an employee of the 1st opposite party. 1st and 2nd opposite parties are vicariously liable for the acts of the 3rd opposite party.
7. Complainant received a reply email dtd. 17/1/2020 from the 1st opposite party stating that the 3rd opposite party is working in Thiruvananthapuram region and hence the complaint has been forwarded to the Regional Manager for further steps but no further action was taken. Hence another email was issued from 3/3/2020 requesting to inform the present status for which there was no reply. Again on 20/4/2020 the complainant issued another email to the chairman of SBI for which also there was no reply. Opposite parties are bound to keep the confidentiality and privacy of account of the customer. The act of the opposite party caused much hardships, mental agony, discomfort and trouble to the complainant and so he is entitled for compensation. Hence the complaint is filed for realizing an amount of Rs.5 lakhs along with interest as compensation from the opposite parties. 3rd opposite party may be directed to publish an unconditional oppology.
8. Opposite parties 1 and 2 filed a joint version mainly contenting as follows:-
The complaint is neither maintainable in law nor on facts. There is no negligence or deficiency of service on the part of the opposite parties. Complainant has put up distorted facts before this commission and thus guilty of suggestio false and suppressio vari and the complaint is to be dismissed on that count also.
9. Complainant is not a consumer of the opposite parties. The allegation that the complainant is holding a current account bearing no.67090133050 with the 2nd opposite party branch is false. These opposite parties are unnecessarily dragged into this proceedings for no reason. The allegation that details of the transactions were leaked from the 3rd opposite party are false. Complaints lodged by the complainant through email to the 1st opposite party were meticulously enquired. There is no violation of the discipline or prevailing rules and regulations of the banking institution by the 3rd opposite party. There is no dereliction of duties and deficiency in service on the part of these opposite parties. The allegation that there is inaction on the part of these parties in redressing the grievances of the complainant is untenable and unsustainable. On enquiry it is revealed that the complaint was filed to wreck vengeance against the 3rd opposite party. There is no negligence on the part of these opposite parties. So complainant is not entitled for compensation and hence the complaint may be dismissed with exemplary cost.
10. 3rd opposite party filed a version mainly contenting as follows:-
The complaint is neither maintainable in law nor on facts. There is no negligence of deficiency of service on the part of the 3rd opposite party. The allegation that the account details maintained at the 2nd opposite party were leaked through the interference of 3rd opposite party is false and fallacious. The allegation that 3rd opposite party illegally disclosed the account details of the complainant etc. are false and denied.
11. The allegation that the 3rd opposite party turned hostile to Trivandrum District Cricket Association and Kerala Cricket Association when they refused to nominate him for the level A coaching is false and baseless. The revelations made by the 3rd opposite party regarding the anti organizational activities had led to the instant complaint.
12. It is true that 3rd opposite party had divulged the anti organizational activities to the apex body. Infuriated by the same, the complainant has lodged this complaints. The allegation that this opposite party is facing enquiry proceedings is false. 3rd opposite party has every right to express his view before the authorities and the complainant cannot curtail his freedom of speech and expression. This opposite party is not filing any false cases along with Pramod. Account details were not supplied to Pramod by this opposite party as alleged. This opposite party is having 23 years of unblemished service with the other opposite parties and is discharging his duties as per the code of conduct. There is no bonafides in the allegation leveled against this opposite party. Complainant is not entitled to get compensation of Rs. 5 lakhs. The complaint is frivolous hence vexatious and said the complaint may be dismissed with exemplary cost.
13. On the above pleadings following points were raised for consideration
1.Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize amount of Rs.5 lakh along with interest as compensation as prayed for?
3. Whether the complainant is entitle d to get a direction against 3rd opposite party to publish an unconditional apology as prayed for?
4. Reliefs and cost?
14. Evidence in the case consists of the oral evidence of PW1 and 2 and Ext.A1 to A7, A8series, A9 and A10 from the side of the complainant and the oral evidence of RW1 and Ext.B1 and B2 from the side of the opposite parties. Ext.X1 series were produced by PW2.
15. Point No. 1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A7. Later Ext.A8series, A9 and A10 were also marked.
16. PW2 is the media manager of Kerala Cricket Association Sri. K Pramod was a former member of KCA. He is having a face book account as Pramod Kondoth and he is his friend. He had taken screen shot of one of the message and as per the summons he has produced the screen shot. It is marked as Ext.X1 series.
17. Rw1 is the 3rd opposite party. He filed an affidavit in tune with the version and Ext.B1 and B2 were marked.
18. Pw1, the complainant is the secretary of Kerala Cricket Assocition(KCA in short). He is having a savings (Wrongly shown as current account in the complaint) bank account with the 2nd opposite party M/s State Bank of India , Pazhaveedu Branch as account No. 67090133050. 1st opposite party is the local head office of the 2nd opposite party and the 3rd opposite party is manager SBI at Treasury Branch,Thiruvananthapuram. 3rd opposite party is a former Ranji Trophy player and was a member of Trivandrum Cricket Association representing SBI who is his employer. It is alleged by the complainant that due to some pending disputes before the ombudsman, Hon’ble High Court of Kerala and Hon’ble Supreme Court of India, 3rd opposite party is in enimical terms with himself and KCA. While so one Pramod who was an ex-member of Trissur District Cricket Association put a face book post in which it is stated that the secretary who is holding honorary post is withdrawing lakhs of rupees through different bank accounts which includes a personal account at his home town. 28 entries of the bank account with the 2nd opposite party was also published in the facebook. It is alleged that 3rd opposite party who is the manager of SBI viewed the account of complainant and details were given to Pramod by which he was able to publish the same in the facebook. It is further alleged that though complainant made a complaint before the 1st opposite party for taking necessary action against 3rd opposite party there was no action inspite of repeated reminders. Hence the complaint is field to direct the opposite parties to pay an amount of Rs. 5 lakhs as compensation and for giving a direction to the 3rd opposite party to publish an unconditional apology about the illegal act. Opposite parties 1 and 2 filed a joint version denying the allegations. It is admitted that complainant is having a SB account with the 2nd opposite party. However the allegation leveled against 3rd opposite party that he had disclosed the details of the account to Pramod was denied. On getting the complaint an enquiry was conducted and it was found that there was no violation of discipline , prevailing rules and regulations by 3rd opposite party and hence there was no action. Hence according to them there was no dereliction of duty or deficiency of service from their part and so the complaint is only to be dismissed. 3rd opposite party filed a separate version contenting that the complaint is filed suppressing material facts. The allegation that the transactions were leaked/ revealed through him was denied. There was no hostility between himself and Trivandrum District Cricket Association. The complaints leveled against him is ill founded and ill motivated. He has not leaked the details of account to Pramod. The accounts of the complainant and all the account holders are kept confidently and secretly. There was no negligence or omissions on the part of this opposite party and so the complaint is only to be dismissed. Complainant got examined as PW1 and marked Ext.A1 to A7. One witness was examined as PW2 and he produced Ext.X1series. 3rd opposite party got examined as RW1 and marked Ext.B1 and B2. During his cross examination Ext.A8 series were marked. Ext. A9 and A10 the copy of statement of loan account of complainant and his wife were marked by consent.
19. The fact that PW1 is an SB account holder of the 2nd opposite party is not in dispute. Ext.A8 is the statement of account of PW1. It is also an admitted case that PW1 is having a loan account with 2nd opposite party and himself along with his wife is having a joint loan account with the 2nd opposite party. Ext.A9 is the copy of home loan account of complainant and Ext.A10 is copy of joint home loan account of the complainant and his wife. Ext.A1 is the copy of facebook post of one Pramod Kondoth published on 22/12/2019. In Ext. A1 there are some allegations against the secretary of the Cricket Association (PW1). It is stated that certain amounts are credited in the account. Ext.A2 is a complaint dtd. 27/12/2019 given by PW1 before the 1st opposite party against 3rd opposite party. Ext.A3 is the acknowledgment of the complaint and it is stated that the matter is forwarded to the concerned authorities for enquiry. Ext.A4 is the copy of complaint dtd. 20/4/2020 sent to the Chairman, State Bank of India by PW1. Ext.A5 is the memo of charges against 3rd opposite party issued by Kerala Cricket Association and signed by PW1 as its Honorary Secretary. Ext.A6 is the copy of email by which a life ban was imposed upon 3rd opposite party and it is signed by PW1 as the Honorary Secretary of KCA. By producing Ext.A5 and A6 the attempt of the complainant is that 3rd opposite party (RW1) is in enemical terms with the Kerala Cricket Association and especially with complainant who is the Honorary Secretary and singed all papers for and on behalf of KCA. During cross examination RW1 , the 3rd opposite party admitted that he had filed complaints against KCA before the ombudsman , Hon’ble High Court of Kerala and two cases are pending before the Hon’ble Supreme Court of India. His writ petition was dismissed on a contention that it was filed with un clean hands and the writ appeal against the said judgment was dismissed with a further finding that it was filed with unclean hands and with suppressing material facts. So PW1 has succeeded in the attempt that RW1 is in enimical terms with the KCA and especially to PW1 being his Honorary Secretary.
20. At the time of argument the learned counsel appearing for the complainant pointed out that 3rd opposite party is arrayed as his personal capacity and office address is given since his personal address is not known. In the complaint 3rd opposite party is arrayed as Mr. Santhosh Karunakaran, Manager , SBI Treasury Branch, Thiruvananthapuram. So it appears that 3rd opposite party was cited as his official capacity. The contention of the learned counsel appearing for the complainant that the house address of 3rd opposite party was not known and so his official address was shown appears to be incorrect. Ext.A7 is a copy of lawyers notice issued by Kerala Cricket Association through its Honorary Secretary(PW1). The address of 3rd opposite party in Ext.A7 notice is shown as Mr. Santhosh Karunakaran, CRA 209, Souparnika, T.R.Sukumaran Nair Road, Chempakassery, Trivandrum. Ext.A7 was sent on 27/7/2020 and the complaint is seen filed on 30/3/2021. Ext.A7 notice was sent by the same advocate who filed the complaint before this commission. So the contention that the house address of opposite party No.3 was not known to PW1 appears to be wrong.
21. In cross examination PW1 stated that the allegation against 3rd opposite party is that while he was working as branch manager of the Treasury Branch of State Bank of India viewed the details of DA drawn by him and send the same to Sri. Pramod who was the ex-District Secretary of Trissur Cricket Association and he put the same in his face book post with a contention that secretary is withdrawing lakhs of rupees. So the question to be looked into is whether RW1 , 3rd opposite party had viewed the account of complainant and gave it to Pramod. The evidence on record shows that the KCA is having accounts with M/s Federal Bank Ltd and M/s Axis Bank. The amount will be credited from the said accounts to the account of PW1 with 2nd opposite party bank. The cross examination of RW1 reveals that clerical staffs and above having ID and password can login to all accounts and view the same. In other words there is no evidence to pin point that account was viewed by RW1 and later it was supplied to Pramod. We do agree that through the cross examination of RW1 the learned counsel appearing for the complainant was able to prove that disputes are pending between RW1 and KCA and it has reached up to the Hon’ ble Supreme Court. Naturally PW1 being the Honorary Secretary of KCA will not be in the good books of 3rd opposite party. But it is not an indication that RW1 had viewed the accounts and supplied the same to Pramod without satisfactory evidence. In fact there is no material on record to prove that RW1 had viewed the accounts and supplied the same to Pramod. Even during cross examination PW1 admitted that officially he is in enemical terms with the 3rd opposite party. KCA through its secretary has filed a civil suit against 3rd opposite party before the Sub Court, Thiruvananthapuram claiming amount for defamatory statements in a press meet. PW2 was examined to show that there was a face book post of Pramod Kondoth and that he had taken screenshot of the same. It was produced by PW2 and marked as Ext.X1 series. The fact that there was a face book post of Pramod Kondoth in which the account details of PW1 is revealed is not in dispute. But the moot question to be decided is whether it was RW1 who had viewed and leaked the details to Pramod. On scanning the entire evidence in this case we have no hesitation to hold that there is some enemity between PW1 and RW1 due to pendency of various litigations up to the Hon’ble Supreme Court but there is no convincing evidence to show that RW1 was the person who viewed the details and supplied the same to Pramod. It is to be remembered that all staff of the SBI above the rank of clerks who is having ID and pass word can log in to the account details. So there should be satisfactory evidence to pin point the guilt upon the 3rd opposite party which is not available in this case. Deficiency is defined u/s 2.11 of the Consumer Protection Act, 2019 as follows:-
“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to the maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-
(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer.”
22. Here in this case the allegation leveled against opposite parties 1 and 2 is that inspite of complaint and reminders there was no action against 3rd opposite party. In the version filed by opposite parties 1 and 2 they had contended that on getting the complaint enquiry was conducted by them and found that there was no violation of the discipline or prevailing rules and regulations of the banking institution by the 3rd opposite party. The learned counsel appearing for the complainant filed an IA to give a direction to the opposite parties 1 and 2 to produce the enquiry report. The present Manager of 2nd opposite party filed an affidavit in which it is stated that enquiry was done through verification of digital records. Since they could not found out any dereliction of duty from the part of 3rd opposite party there was no action. Relying upon a ruling of Hon’ble Supreme Court in Iqbal Basith and Others vs. N.Subhalakshmi and Others ( 2021 (2) SCC 718), the learned counsel appearing for the complainant pointed out that since opposite parties 1 and 2 did not enter the witness box an adverse inference has to be drawn. We have no quarrel on this settled position of law by the Hon’ble Supreme Court. But it is to be remembered that it is for the party to decide to enter the witness box. If they feel that there is no convincing evidence against them definitely they can abstain from entering the witness box. In other words in all cases in which opposite party is not enter in the witness box there is no rule that the presumption has to be applied and an adverse inference has to be drawn.
23. Here the only deficiency in service alleged against the opposite parties 1 and 2 is that there was no proper enquiry by them when Ext.A2 complaint was filed against 3rd opposite party. However in the version they contended that proper enquiry was done and an affidavit was filed by the present manager of 2nd opposite party stating that they verified digital records and found that there was no dereliction of duty from the part of 3rd opposite party. Since they could not find out any dereliction of duty from the part of 3rd opposite party they might have dropped the enquiry. So from the evidence on record it can be seen that complainant could not prove deficiency of service from the part of opposite parties as alleged in the complaint though he was able to establish that 3rd opposite party is having animosity towards him on account of pendency of cases before ombudsman, Hon’ble High Court of Kerala and Hon’ble Supreme Court of India. However to arrive at a conclusion that there is deficiency of service from the part of opposite parties there should be convincing evidence which is not available in this case.
24. The first relief sought in the complaint is for giving a direction to the opposite parties to pay an amount of Rs.5 lakhs along with interest to the complainant towards compensation for hardships, mental agony, discomfort and trouble. While discussing the matter in detail we have already found that complainant could not prove that there was deficiency of service from the part of opposite parties and so he is not entitled for compensation. The 2nd relief sought is directing the 3rd opposite party to publish an unconditional apology about his designed act of illegally disclosing the account details of the complainant. Giving such a direction to the opposite party in the complaint is rather unheard of . Secondly as we discussed earlier complainant could not prove his case as alleged. Hence there is no question of granting such a relief.
25. Before parting with the case a few words to add. We do agree that complainant has succeeded in establishing that there was some animosity between 3rd opposite party with the KCA and its Honorary Secretary who is PW1 at present. However there is no convincing evidence to prove the allegations except the interested testimony of complainant. There is no iota of evidence to show that RW1, the 3rd opposite party had viewed the account details and gave to Sri. Pramod to publish in face book post. From the nature of evidence temdered in this case we have no hesitation to hold that this complaint was filed only to harass the opposite parties. The Superior Courts have deprecated the practice of using the Courts/Commissions as a platform to wreck personal vengeance. One who approaches the Court /Commission should have convincing evidence and no complaint can be given on the basis of whims and Francis. Hence we have no hesitation to hold that opposite parties are entitled for cost, since complainant could not prove his case with satisfactory evidence. The points are found against the complainant .
26. Point No.4:-
In the result complaint is dismissed. Complainant is directed to pay an amount of Rs.3000/- each as cost to each opposite parties (Total Rs. 9000/-).
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 31st day of May, 2022.
Sd/- Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Adv. Sreejith .V. Nair (Complainant)
PW2 - Krishna Prasad
Ext.A1 - Copy of Whatsaap message
Ext.A2 - Copy of complaint dtd. 27/12/2019
Ext.A3 - Copy of complaint dtd.17/1/2020
Ext.A4 - Copy of complaint dtd. 20/4/2020
Ext.A5 - Copy of Mail (Memo of charges) dtd. 16/2/2022
Ext.A6 - Copy of Mail dtd. 16/2/2022
Ext.A7 - copy of Advocate Notice dtd. 27/7/2020
Ext.A8 series - Statement of Accounts
Ext.A9 - Certificate and Account statements
Ext.A10 - Certificate and Account statements
Ext.X2 series - Copy of Pramod Kondoth Whatsaap messages
Evidence of the opposite parties:-
RW1 - Santhosh Karunakaran(Branch Manager OP)
Ext.B1 - Copy of Letter from KCA to SBI
Ext.B2 - Copy of Judgment dtd. 18/5/2021
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
