Andhra Pradesh

Visakhapatnam-II

CC/897/2007

Md. Jawahar - Complainant(s)

Versus

The Visakhapatnam Co-Operative Bank Limited - Opp.Party(s)

G. Vijaya Bhaskar

06 Jan 2015

ORDER

                                              Date of Registration of the Complaint:26-12.2007

                                                                                                Date of Order:06-01-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao,  M.A., B.L.,

                                     Male Member

 

                          Tuesday, the 6^th day of January, 2015.

                                 CONSUMER CASE No.897/2007

Between:-

Sri Md. Jawahar, S/o Saheb John,

Muslim, aged about 27 years, resident of

D.No.15-719, Laxminagar, Aarilova,

Sector-IV, Visakhapatnam-530 007.

….. Complainant

And:-

The Visakhapatnam Co-operative Bank Ltd.,

Rep. by its Branch Manager, Seethammapeta Branch,

Visakhapatnam.

                                                                                         …  Opposite Party     

                     

          This case coming on 15.12.2014 for final hearing before us in the presence of Sri G. Vijaya Bhaskar, Advocate for the Complainant and Sri A.V. Sambasiva Rao and A.S. Ramasarma, Advocates for the Opposite Party and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint filed the present Complainant against the Opposite Party to return back the entire amount of Rs.26,059/- (Rupees twenty six thousand and fifty nine only) which is lying with the Opposite Party along with accrued interest @ 24% p.a. from 7.12.2006, and to pay Rs.50,000/- (Rupees Fifty thousand only) towards deficiency of service and compensation of Rs.20,000/- (Rupees twenty thousand only) for causing mental agony with costs.

 

 2.      The case of the Complainant in brief is that he is operating Savings Account with the Opposite Party’s branch since around 8 years bearing No.S.BI Account No.5025 and he is a regular customer of the Opposite Party and lastly visited the Opposite Party on 07.12.2006 to withdraw an amount of Rs.1,000/- leaving behind in the account an amount of Rs.26,059/- and subsequently, he never visited the Opposite Party bank for any transaction till 04.01.2007. 

 

3.       That on 04.01.2007 he visited the Opposite Party bank and filled a withdrawal form for Rs.25,000/- and submitted for payment of cash in counter after verifying the records, he was given a token bearing No.48 and after few minutes elapsed, he was informed by one of the staff of the Opposite Party that there are no funds in his account and returned the pass book by entering on that day i.e., 04.01.2007 as if some amount was withdrawn on 09.12.2006 for which the Complainant objected stating he never withdrew any amount after 07.12.2006 much less on 9.12.2007 then immediately the Opposite Party struck off the then made entry and gave the passbook to him and immediately he got the passbook photo copy and approached the Opposite Party bank again and asked them for money for which he gave arrogant answer and asked him to come on the next day.  The Complainant had again approached, but no proper reply was given and immediately, he lodged complaint with the IV Town Police Station but registered the case under Crime No.15/2007 and that to do negligence of the Opposite Party, he lost his money which attracts deficiency of service and there after he got issued a legal notice for which there was no proper response.   Hence, this Complaint.

 

4.       The Case of the Opposite Party denying the material averments of the Complainant admitted that on 6.11.2000 the Complainant opened a Savings Bank Account No.5025 in Seethammapeta Branch of Visakhapatnam Co-operative Bank Ltd., Visakhapatnam i.e., the Opposite Party with four specimen signatures as the brother was nominee of one N. Subrahmanyam holder of SB Account No.4841 introduced him to the bank.   The transactions from 6.11.2000 to 9.12.2006 are very much frequent and they are pre-meditrated and planned with mischievous and fraudulent intention to

 

 

draw the maximum amount of Rs.24,500/- on 9.11.2006 and the Complainant gave a letter to Branch Manager on 27.09.2005 stating that his purse was pocketed in City Bus and on his request a duplicate passbook when issued he changed the nomination also by putting his wife’s name instead of his brother, accordingly duplicate book was issued.

 

5.       That a sum of Rs.24,500/- was withdrawn by the Complainant on 9.12.2006 it was detected as done by fraud, cheating by personation.   The signature on the debit voucher appears as Md. Jaaheer while Md. Jawhar appears in all the specimen signatures.  The debit voucher dated 4.1.2007 token No.48 for Rs.25,000/- was rightly dishonoured as there was only a balance of Rs.1,559/-.  

 

6.       The Complainant lastly visited the Opposite Party bank on 7.12.2006 and with drew an amount of Rs.1,000/- is not in correct, but on 9.12.2006 the Complainant also visited the Opposite Party Bank and withdraw Rs. 24,500/-  which is reflected in his ledger account therefore he never visited the Opposite Party Bank for any transaction on 04.01.2007 is absolutely false.   The Complainant visited the bank on 4.1.2007 pretended to withdraw Rs.25,000/- along with duplicated passbook, in the light of dishonoured debit voucher.   In the said circumstances, they gave police complaint on 9.1.2007 which was registered as Crime No.52/2007 of IV town police and it is still pending for investigation and the original documents relating to the case were handed over to the police.    For these reasons deficiency of service does not arise in this case.    Therefore, question of payment asked by the Complainant does not arise with interest thereon.   For these reasons, the complaint is liable to be dismissed.

 

7.       To prove the case on behalf of the Complainant, he himself filed sworn affidavit and got marked Exs.A1 to A6.   On the other hand, on behalf of the Opposite Party Branch Manager of the Opposite Party bank filed his evidence affidavit and got marked Exs.B1 to B5.

 

8.       Ex.A1 is the photo copy of the Passbook duly issued by the Opposite Party in favour of the Complainant dated 27.09.2005.   Ex.A2 is the Photo copy of withdrawal Form for an amount of Rs.25,000/- submitted by the Complainant on 04.01.2007.   Ex.A3 is the Photo copy of FIR No.15/2007 lodged by the Complainant with the SHO of IV Town Law and order police, Visakhapatnam dated 09.01.2007.    Ex.A4 is office copy of the registered letter issued by the Complainant’s counsel to the Opposite Party dated 17.05.2007.    Ex.A5 is the Acknowledgement from the Opposite Party dated 19.05.2007.    Ex.A6 is Reply Notice from the Opposite Party dated 24.05.2007.   

 

9.       Ex.B1 is the attested copy of Application of the Complainant for opening SB A/c No.5025 dated 06.11.2000.   Ex.B2 is the attested letter copy of Application for issue of new Duplicate Passbook dated 18.09.2005.   ExB3 is the attested copy of Statement of Account issued by the Opposite Party in favour of the Complainant dated 06.11.2000 to 09.12.2006.   Ex.B4 is the attested copy of Cheque No.5025 for Rs.24,500/- issued by the Opposite Party in favour of the Complainant dated 09.12.2006.    Ex.B5 is the attested copy of Cheque No.5025 for Rs.25,000/- issued by the Opposite Party in favour of the Complainant dated 04.01.2007.

 

10.     Both parties are filed their written arguments.

 

11.     Heard arguments from both sides.

 

12.     Now the points that arise for determination is:-

Whether there is any deficiency in service on the part of the Opposite Party and the Complainant is entitled for the reliefs of advance amount with interest, compensation and costs.

 

13.     As seen from record, it is not in-dispute that the Complainant opened a Savings Bank Account No.5025 in Seethammapeta Branch of Visakhapatnam of the Opposite Party on 6.11.2000 and at the time his brother Md. Pappu was the nominee and at the request of the Complainant as his passbook was pick pocketed in city bus, a duplicate passbook was issued and at the time he changed the nomination by putting his wife’s name Asha Begum instead of his brother and that on the complaint’s of either side IV Town Police which was registered crimes, and that to resolve the transaction in controversy, the Investigating Officer send the admitted and disputed  signatures of the Complainant and the Government hand writing expert to it is on record.

 

14.     According to the Complainant he visited the Opposite Party bank on 04.01.2007 to withdraw an amount of Rs.25,000/- from out of his SBI Account and submitted the withdrawal form at the counter vide Ex.A2 and on that he was given token No.48 and after some times, he was informed that there are no funds in his account and returned passbook stating that amount was withdrawn on 9.12.2006 even he informed that he never withdrew any amount the staff of the Opposite Party struck off the then entry and gave the passbook and all the acts of the Opposite Party are nothing but deficiency of service.   According to the Opposite Party originally, the Complainant opened account his brother Md. Pappu as nominee on 06.11.2007 and subsequently, after lost his savings bank pass book while applying duplicate the passbook he changed the nomination by putting wife’s claim i.e., Asha Begum and that on 09.12.2006 a sum of Rs.24,500/- was withdrawn by the Complainant and when it was debited as it was done by fraud cheating by persuasion the debit voucher dated 4.1.2007 token No.48 for Rs.25,000/- was rightly dishonored and the withdrawn amount of Rs.24,500/- is reflected their ledger account.   Therefore, the Complainant never visited the Opposite Party bank for every transaction on 4.1.2007 is false.    

 

15.     The record shows that on 22.01.2009 as per GR. 181 a memo filed by the Complainant, he has applied for copies of refund of RFSL in Crime No.15/07 of IV Town P.S. under Right to Information Act and he received them and requested to accept the same on file after issuing notice to other side.   On 31.01.2011 vide SR.247 a memo was filed by the Advocate Commissioner, wherein he stated about the attested copy of report of RFSL, Hyderabad and the signatures put on 23.02.2010 seems to be the signatures the then the S.H.O. ……… thus it is evident the report of the RFSL (Regional Forensic Science Laboratory is available on record, it relates to examination of documents in Crime No.15/07.   At Para-1 it is stated the questioned signatures marked as Q-1 and Q-2 have been carefully compared with the standards signatures marked as S-1 to S-18.   The questioned and standards signatures do not agree in the writing characteristics such as movement, writing quality, speed, skill, standard, spacing and relative proportion of letters.

 

16.     It is further noted in Para-2 that the questioned writing marked as Q-1 and Q-2 have been carefully compared with the standards writing marked S19 to S24 and S22 and S30.   They gave final opinion that the person who wrote the red enclosed signatures marked as S1 to S18 did not write the red enclosed signatures marked as Q1 and A2, it is not possible to fix the author ship on the red enclosed writing marked as Q1 and Q2 on the basis of the existing standards.   By drawing our attention the learned counsel for the Complainant submitted as S1 to S30 in expert report were this specimen signatures of the Complainant, since they are not tallied with signatures marked as X1 and X2, it is to be held that the Complainant is not the signatory while drawing the amount on 09.12.2006 and it was done impersonation, therefore, the Complainant is entitled for the said amount.

 

17.     It is a duty of the Bank Officers whenever any customer approaches for withdrawal of his amount they have to first of all verify whether the signature find place in the withdrawal Forum is tallied with the original signatures of the account holder which are available in their office.  Responsibility also caste upon the bank officials while payment, whether the account holder placed his identify and they have also to verify the identity proof submitted with the original by the account holder and after satisfaction only they have to pay the withdrawal amount to the concerned customer.   It appears as seen from record, inspite of admitted signatures of the Complainant are available, with the bank officials the Opposite Party without proper verification en-cashed the amount on 9.12.2006which ought not to be done by them.    On a careful perusal of RFSL Report, it is evident that they opined that disputed signatures are not tallied with that off the admitted signatures of the Complainant.   This report clinches that the Complainant herein has not at all approached to the Opposite Party on 9.12.2006 for withdrawals of money as argued by the Complainant.   However, the bank officials without proper verification allowed the debit voucher original of Ex.B5 and gave the amount, which itself shows that there is a clear deficiency in service on the part of the Opposite Parties.   For all these reasons the Complainant is entitled for an amount of Rs.24,000/- + Rs.1559/- = Rs.26,059/- together with interest thereon from 9.12.2006.

 

 18.    Now the question that comes up for consideration, at this stages of our discussion what is the rate of interest for which the Complainant is entitled.   The rate of interest claimed by the Complainant is 24% p.a.  This rate of interest claimed by the Complainant appears to be excessive, of course, it is a fact that the transaction covered by Ex.A1 is in commercial in nature, but that does not and cannot mean to say that the Complainant is a licenced to claim interest @ 24% p.a. on Ex.A1.    But at the same time, it is imperative on our part to award a reasonable interest.   Having regard to all these facts and circumstances, we sincerely feel having considered the case on hand awarding of interest @ 12% p.a. would better serve the ends of justice.    Consequently, we proposed to fix at rate in question @ 12% p.a. on Ex.A1 in question.   Accordingly interest is ordered.

 

19.     Whether the Complainant is entitled for compensation of Rs.20,000/- is to be considered.   It appears as seen from the evidence of PW-1 that the Complainant was compelled to approach the Opposite Party and therefore experienced a lot of physical strain besides mental agony and financial loss. It is un-dispute fact that the Opposite Parties did not refund the amount subscribed by the Complainant.   Naturally that made have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   But that does not and cannot mean to say that the Complainant claim for compensation is acceptable.    Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 5,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.5,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered. 

 

20.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainant ought not have to approach this Forum had his claim for refund of the sum of Rs.26,059/- or reliefs sought for have been honored by the Opposite Party within a reasonable time and in view of the matter, the Complainant’s claim for claims for cost deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs. 2,500/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

21.     In the result, Complaint is allowed, in part directing the Opposite Party to refund an amount of Rs.24,059/- + Rs.1,559/- =26,059/- (Rupees Twenty six thousand and fifty nine only) with interest @ 12% p.a. from 9.12.2006 till the date of realization, and to pay a compensation of Rs.5,000/- (Rupees five thousand only) and costs of Rs.2,500/- (Rupees two thousand and five hundred only) to the Complainant.  Time for compliance, one month.

 

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 6^th day of January, 2014.

Sd/-                                     Sd/-                                            Sd/-

Male Member                   Lady Member                                          President

 

                            

APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A1	27.09.2005	Passbook duly issued by the OP to the Complainant	Photo copy
Ex.A2	04.01.2007	Withdrawal Form submitted by the Complainant.	Photo copy
Ex.A3	09.01.2007	FIR Crime No.15/07 lodged by the Complainant with the SHO of IV Town Law and order police, VSP	Photo copy
Ex.A4	17.05.2007	Registered letter issued by the Complainant’s counsel to OP	Office copy
Ex.A5	19.05.2007	Acknowledgement from the OP	Original
Ex.A6	24.05.2007	Reply notice from the OP	Office copy

 

 

 

 

 

 

 

For the Opposite Parties:-                                           

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.B1	06.11.2000	Application for opening SB A/c. No.5025	Attested copy
Ex.B2	18.09.2005	Application for issue of new Duplicate passbook	Attested copy
Ex.B3	06.11.2000 to 9.12.06	Statement of Account	Attested photo copy
Ex.B4	09.12.2006	Debit Voucher	Attested copy
Ex.B5	04.01.2007	Debit Voucher	Attested copy

                                     

     Sd/-                                Sd/-                                                 Sd/-

Male Member                     Lady Member                                    President