Per Smt T. Suneetha, Member:-

The complainant filed this complaint u/s 12 of Consumer Protection Act seeking directions to the opposite parties to pay the balance amount of Rs.1,80,390/- along with the interest @ 12%p.a. from the date of operations by postman till date(29-09-11to 08-10-11) i.e. Rs.9,195/- and compensation towards mental agony and hardship of Rs.3,00,000/-.  

2.      In brief the averments of the complaint are hereunder:

         The complainant opened S.B. account bearing No.1477155000015941 with 2^nd opposite party on 16-09-11 and obtained pass book from the 2^nd opposite party.  The complainant at the time of opening account have applied for A.T.M. Card.  The 2^nd opposite party informed the complainant that the A.T.M. Card and its pin code will be sent through registered post to the complainant. 

3.      The 2^nd opposite party issued a gold loan of Rs.2,75,000/-  to the complainant and it was credited to the complainant’s S.B.Account.  Thereafter the complainant withdrew an amount of Rs.75,000/-on 28-09-11 and Rs.25,000/- on 05-10-11 and balance of Rs.1,80,390/- was kept in his S.B.Account.  On 10-10-11 the complainant went to 2^nd opposite party to withdraw the cash vested in his account and came to know that there is only Rs.61,000/- in his account. The complainant was shocked and informed the same to the 2^nd opposite party authority.

4.     The bank authorities informed the complainant that the amount was withdrawn through the A.T.M.Card.  The complainant did not receive any A.T.M. Card from the bank and never withdrew any amount through A.T.M.Card. 

5.     The complainant lodged a complaint at Narasaraopet, 1 town police station which was registered as crime No.184/2011.  The investigation revealed that one Mr.Peruboina Venkata Krishna who was the postman of the Ellamanda Village, encashed the amount from the complainant’s account by illegally retaining A.T.M.Card and PIN No. which was sent through the registered post by the 2^nd opposite party.  The complainant is an agriculturist and doing gunny bags business, want to cultivate the land with the loan amount to eke out his livelihood.  But due to the illegal operation of A.T.M.Card by the postman of Ellamanda village, the complainant sustained huge loss and hardship in addition to mental agony. 

6.     The complainant gave complaint to the 2^nd opposite party and asked to remit his balance amount and also gave a legal notice dated 26-11-11 to the 1^st opposite party claiming remittance of the amount and compensation.  The 1^st opposite party replied denying his liability.  There is deficiency of service on the part of 1^st and 2^nd opposite parties and are liable to compensate the complainant.  Hence the complaint.        

7.      The following is the version of 1^st opposite party in brief:

         In fact if any deficiency of service occurred in the delivery of any registered letter the sender of such letter can prefer complaint and the department of posts will conduct suitable enquiry in accordance with rules and inform the disposal of such letter to the sender. The complainant is not the sender of any registered letter and he is unable to produce any authenticated information regarding posting of any registered letter addressed to him.  There is no relationship of consumer and service provider between the complainant and 1^st opposite party. The complainant never paid or promised to pay any consideration for any service rendered by this opposite party.     Therefore the complainant is not a consumer.    

8.     It is true that one registered legal notice dated 26-11-11 was received by the 1^st opposite party and were suitably replied vide Lr.No.F6/Misc dated 13-01-12 stating that, as per the provisions of the department of posts the centre of the registered letter or at his request the addressee is eligible for payment of Rs.100/- towards compensation as an act grace.  The provisions of the Consumer Protection Act will not be applicable to this case.  Therefore the complainant is not the consumer. There is no deficiency of service committed by the 1^st opposite party and the complaint may be dismissed.

9.      The following is the version of 2^nd opposite party in brief:

        It is true that the complainant is holding savings bank account with this opposite party.   It is admitted fact that the initial burden is on the 1st opposite party to explain as to whom the delivery of the A.T.M.card along with PIN number is done.  The complainant had the mobile alert option to his mobile number 9704035200.  All the withdrawals in dispute were immediately put to the notice of the complainant through messages to the complainant.  If the complainant have really lost would have, approached this opposite party on the 1^st withdrawal itself and informed about the same.  The complainant informed to the police authorities on 11-10-11 much belatedly after last withdrawal which is on 10-08-11.  The police final report dated 12-12-11the post of Ellamanda village, is mentioned as accused and the Branch Manager of this opposite party is mentioned as a witness .

10.    It is clear that the opposite party had no role in this matter it is not negligent and no deficiency of service on the part of this opposite party and the relief claimed for the complainant is unsustainable and unnecessarily impleaded this opposite party for no fault.  Therefore the Hon’ble Forum may be pleased to dismiss the complaint with costs and award special damages.

11.    Both parties have filed their respective affidavits.  Ex.A-1 to A-5 were marked on behalf of the complainant and Ex.B-1 to B-3 were marked on behalf of 2^nd opposite party. No documents were marked on behalf of 1^st opposite party.

12.    Now the points that arose for consideration in this          complaint are:      

1.  Whether the complainant is a consumer with in the meaning

     of Consumer Protection Act and complaint is maintainable

     before this Forum? 

2.  Whether the opposite parties committed deficiency of

     service?

3.  To what relief the complainant is entitled to?

13.    POINT NO.1 :-

Sec.2.1 (d)(ii) of the Consumer Protection Act, 1986.

“Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose” 

The 2^nd opposite party sent the ATM card of the complainant by way of registered post through 1^st opposite party to complainant.  Thereby the complainant became the beneficiary of the 1^st opposite party.  Thus the complainant is a consumer of the 1^st opposite party, the complaint raised by the complainant is maintainable in the Consumer Forum under Consumer Protection Act, 1986.

14.    POINT NO. 2:- The complainant’s allegation is that the postman of the 1^st opposite party retained the complainant’s ATM Card sent by way of registered post by the 2^nd opposite party  fraudulently and drew an amount of Rs.1,80,390/-. The 1^st opposite party contended that as per the provisions of the Department of Posts the sender of registered letter or at his request the addressee is eligible for Rs.100/- towards compensation for the loss of a registered letter solely as an act of grace. 

15.    The complainant filed a complaint in Narasaraopet P.S regarding the amount missing from his account on 11-10-11.  The relevant portion of the police final report is given below for better appreciation. 

Between :-

State Sub inspector of  Police, Narasaraopet I town Ps…. complainant

Vs

Peruboina Venkata Krishna S/o.Krishnarjunarao…Accused  

“Final report dated 12-12-11 in Cr.No.184/2011 U/s.420 IPC & Sec.66-D IT Act of Narasaraopet 1 Town PS)

        This is a case of cheating and encashment of cash through ATM occurred in between 5.10.11 to 10.10.11 at ATM centers of various places, in which some unknown persons took the ATM card of the complainant and used it and en-cashed Rs.1,80,329/- and the account is with Karur Vysya Bank, Narasaraopet. 

        I(LW6) registered the report of the complainant as Cr.No.184/2011 U/s.420IPC, 66-D of IT Act and sent FIR to the court and officers and investigated into the case. 

        During the investigation I obtained recorded video clippings of Axis Bank’s ATM and ICICI bank’s ATM of Arundelpet, Narasaraopet through LW.3.Br.Manager of ICICI Narasaraopet for identifying the accused.  As per the video clippings, the accused was identified noted above by the L.W2, L.W.3 and the complainant also and some others.  There is a provision in the banks that any customer who applied for ATM cards on their application the authorities of the head quarters of the concerned banks supplied the ATM Cards and its secrete code to the customer directly through the postal department in sealed covers. 

        The post man to Yellamanda village get the ATM card and its secrete code cover from the Head Post Office, Narasaraopet for serving the same to the complainant but he utilized the same himself and draw the complainant’s cash in ATMs of the ICICI and Axis banks at Narasaraopet and committed this offence. 

        Then I examined the Superintendent of Post, Head Post Office, Narasaraopet and Inspector for the post of Narasaraopet Subdivision and obtained the details of the accused. As a postman, the accused got ATM card and its secrete code of the complainant for serving but he misused and draw the cash Rs.1,80,330/- from the account of the complainant and absented for his duties.  The Inspector for Post of Narasaraopet Subdivision is enquired into the matter and his detailed report is submitted to his head of the department and he also opined that the accused committed this offence. 

        During my enquiry the accused died in a road accident occurred in the limits of Sattenapalli rural P.S. and it was registered as a case in Cr.No.123/11 u/s 304-A IPC (Hit and Run) of Sattenapalli P.S. and obtained the copy of FIR from the P.S.

        It is clear that the accused, who died in a road accident is responsible for this offence but he is not alive.  The case was referred as Abated as the accused died in a road accident.

        As per the above report the accused, late Mr.Peruboina Venkatakrishna, postman, Yellamanda village employee of the 1^st opposite party by retaining the registered post containing the ATM Card and secrete code sent by the 2^nd opposite party, fraudulently had withdrawn Rs.1,80,330/- from the complainant’s account bearing No.147715-5000015941. The 1^st opposite party being an employer, is responsible for the acts of its employee under vicarious liability.  There is a clear default and gross negligence on the part of 1^st opposite party.  The 1^st opposite party should have ensured the delivery of registered letter containing the complainant’s ATM Card and the secrete code, to the complainant. The 1^st opposite party failed to do so.  This is nothing but deficiency of service on the part of 1^st opposite party.  

17.    The counsel for the complainant filed citation in support of his case as below :

National Consumer Disputes Redressal Commission decided in  : 2009(1) CPR 41 (NC), Superintendent of Post and Telegraph Vs M.L.Gupta and Another, Revision petition No.3777 of 2008 decided on 05-11-2008,

“There has been a default and gross negligence on the part of the postal authorities in not ensuring the delivery of the postal articles to the right addressee, which has caused pecuniary loss to the complainant.  Authority could not take shelter U/s.6 of Indian Post Office Act”. 

Sec.6 of Indian Post Office Act, 1898 reads as follows :  

“ Exemption from liability for loss, misdelivery, delay or damage:-  The government shall not incur any liability by reason of the loss, misdelivery or delay of, or damage to, any postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided; and no officer of the Post Office shall incur any liability by reason of any such loss, misdelivery, delay or damage, unless he has caused the same fraudulently or by his willful act or default”

The alleged Postman fraudulently withdrew the amounts from the complainant’s account (as per Ex.B-2 the Final Report dated 12-12-11 in Crime No.184/11 U/s.420 IPC in Sec.66-D IT Act of Narasaraopet, 1 town P.S). Hence, the 1^st opposite party cannot take shelter under the said provisions of the Act and is liable to compensate the complainant for deficiency of service committed.   

18.    The 2^nd opposite party discharged its responsibility by sending SMS to the complainant’s mobile as and when transactions took place in his account. It is for the complainant to look into alerts whether literate or illiterate while utilizing latest technology. Therefore the 2^nd opposite party can not be said to have committed deficiency of service.

19.    POINT NO.3:- The relief sought by the complainant is of Rs.1,80,390/- in the complaint.  But in FIR (Ex.B-1) which was signed by the complainant, the relief sought was Rs.1,80,300/- .  However the police final report (Ex.B-2) revealed that the accused, the postman withdrew an amount of Rs.1,80,330/-. Therefore Forum relying upon the police final report opines that directing 1^st opposite party to pay an amount of Rs.1,80,330/- to the complainant towards the pecuniary loss suffered by him would meet the end of justice. The complainant is also entitled for compensation from the 1^st opposite party. 

20.    In the result, the complaint is allowed, in part, in terms as indicated below : 

1. The 1^st opposite party is directed to pay the amount of Rs.1,80,330/-(Rupees one lakh eighty thousand three hundred and thirty only) drawn by the postman, along with interest @9% p.a. from the date of 29-09-11 till realization, to the complainant.
2. The 1^st opposite party is further directed to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony, to the complainant.
3. The 1^st opposite party is further directed to pay a sum of Rs.2,000/-(Rupees two thousand only) towards costs of the complaint, to the complainant.
4. The claim against 2^nd opposite party is dismissed. 

The above order shall be complied within a period of six weeks from the date of receipt of the Order, failing which the amounts ordered in the item Nos.1&2 shall carry the interest @9% p.a. till realization.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 5^th of July, 2012.

MEMBER                                  MEMBER                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:  

PRESIDENT