Date of filing: 14.01.2022 Date of Disposal: 27.04.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 27th DAY OF APRIL, 2023
CONSUMER COMPLAINT NO.15/2022
PRESENT:
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
Sri. R.C. Srikanth,
S/o. Late.R.V.Chandrashekaraiah,
Aged About 83 Years,
R/at: No.57, Flat No.101,
Biligiri Apartments, 2nd Cross,
Dr. Masthi Venkatesh Iyengar
Road, Gavipuram Extension,
(Rep by Sri. P.R.Muralidhar, Advocate)
1) The INDUSIND Bank Limited,
Basavanagudi Branch,
Bull Temple Road,
Rep. by its Branch Manager.
2) The INDUSI ND Bank Limited,
Registered Office: # 2401,
Gen. Thimmayya Road,
Pune-411 001.
Maharastra State,
Rep. by its Authorized Signatory.
(OP No.1 & 2 are rep. by Sri. S.M.Anees
Ahamed, Advocate)
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint Under Section 34 & 35 of the Consumer Protection Act, 2019 seeking for a direction to the opposite party to refund the amount of Rs.31,00,000/- and such other reliefs as this Commission deems fit in the circumstances of the case.
02. It is not in dispute that, one Nagendra Shastry was assigned as a Relationship Manager of opposite party No.1 -Bank and his responsibility was to build up good rapport with the customers assigned to him by the opposite party-Bank and to promote and convince the customer to avail various financial services offered by the Bank. Further it is not in dispute that, on the basis of the complaint dated: 05.08.2021 submitted by the complainant, opposite party has filed a complaint against Nagendra Shastry along with his associates which is under investigation by the police authorities.
03. Further it is not in dispute that, subsequently Nagendra Shastry upon various other complaints, opposite party-Bank had kept him under suspension pending enquiry and during the said period he has committed suicide on 01.08.2021. Opposite party-Bank has also filed a complaint before Hanumantha Nagara police station and the police authorities have filed an FIR against Nagendra Shastry and his other associates and opposite party – Bank had advised the complainant to approach police authorities in respect of the his grievance against Late Nagendra Shastry.
04. It is the further case of the complainant that, he being a Chief Engineer, KPWD (Retired) and Senior Citizen aged about 83 years, continuously had the banking transaction with the opposite party-Bank. Further the complainant after receiving redemption amount of Rs.13,00,000/- on 05.07.2019 and Rs.18,00,000/- on 19.04.2021, in total a sum of Rs.31,00,000/- from M/s. Sundaram Finance Mutual Fund credited to the complainant’s savings bank account and since complainant wanted to keep FD in the name of his daughter at opposite party – Bank, as there was COVID-19 restrictions during the said period, the said Nagendra Shastry being the Relationship Manager visited the residence of the complainant to do door step service, the complainant had handed-over duly filled fixed deposit form with two cheques drawn on opposite party-Bank amounting to Rs.18,00,000/- and Rs.13,00,000/- to the said Nagendra Shastry to be deposited in the form of FD at opposite party-Bank in the name of his daughter Smt. Sandhya Srikanth and since COVID-19 restrictions were there, the complainant was not able to visit the Bank and the phone call to the said Nagendar Shastry was switched-off and on 04.08.2021 complainant had written a letter to opposite party complaining of non-receipt of FD certificate for the above said amount.
05. Further since there was no response and all the efforts of the complainant came in vain, the complainant discovered the fraud and misappropriation of funds done by opposite party Bank. The complainant has lodged a complaint with Joint Commissioner of police on 09.08.2021 and it was intimated by the police to the complainant that, the case has been registered by Hanumantha Nagara police in crime No.159/2021, under section 406, 409, 420, 465, 468, 120(b) read with section 34 IPC against Nagendra Shastry and others. Thereby the complaint lodged by the complainant came to be dropped.
06. Further the complainant approached Ombudsmen on 24.09.2021 and the Ombudsmen did not give any relief, rather closed the complaint. Further the complainant got issued legal notice dated: 22.10.2021 to opposite party-Bank and the Bank has replied the notice on 20.11.2021 and OP-Bank had admitted the fraud committed by its employee. Further the complainant had written a complaint on 11.11.2021 to Reserve Bank Of India and Reserve Bank of India also has not followed the grievance of the complainant rather gave an intimation to the complainant on 07.01.2022 stating that, the case has already been pending with the Banking Ombudsmen. Since the employee of the opposite party-Bank has committed fraud and deceived the complainant and in-spite of request and notice been issued, the opposite party-Bank did not refund the said amount. Hence, the present complaint came to be filed.
07. It is the further case of the opposite party that, the complainant had given cheques signed by him with Nagendra Shastry for an amount of Rs.13,00,000/- and Rs.18,00,000/- with an instruction for issuance of 08 demand drafts in favour of beneficiaries. Hence the complainant’s saving account has been debited as against the cheque issued by the complainant. Further the complaint filed before this Commission by the complainant does not fall within the definition of Consumer Dispute as there is neither any unfair trade practice committed by the opposite party-Bank nor any deficiency of service. Hence, sought for dismissal of the complaint.
08. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.17 documents. The Deputy Branch Manager of opposite party No.1 (RW.1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 to EX.R.7 documents.
09. Counsels for both the parties have filed their respective written arguments and counsel for complainant has filed a citation with memo.
10. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
11. Our findings on the aforesaid points are as follows:-
POINT NO.1 : In affirmative
POINT NO.2 : Partly in affirmative
POINT NO.3 : As per the final order for the following;
REASONS
12. POINT NO.1:- The complainant (PW.1) and opposite party (RW.1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.
13. It is not in dispute that, Nagendra Shastry was an employee at OP No.1 – Bank and after the fraud said to have been committed came to the notice of the Bank, the Bank has suspended him and during enquiry he committed suicide. The complainant has produced EX.P.2 the Bank pass-book, EX.P.6 & P.7 is the copy of the FIR, EX.P.8 is the extract of bank account statement of the complainant indicating the withdrawal amount of Rs.31,00,000/-. EX.P.9 to 11 are the letter correspondence made by the complainant with the Bank. RW.1 has also produced EX.R.4 the Bank account extract indicating the withdrawal of the amount of Rs.31,00,000/- from the account of the complainant.
14. It is the contention of the learned counsel for opposite party – Bank that, certain credits have been received in to complainant’s savings account from the accounts connected with that of accomplices of late Nagendra Shastry to the tune of Rs.1,00,594/- on various dates i.e., 30.08.2019, 02.01.2020, 06.01.2020 and 07.01.2020. Hence it could be inferred that, there were several personal transactions entered in to by the complainant with late Nagendra Shastry along with his accomplices and complainant had wilfully suppressed the said fact. Hence, since the complainant himself has violated the law, he is not entitled for any relief.
15. It is also contended that, the dispute under the complaint is not a Consumer dispute. We feel the complainant had an account with the opposite party-Bank. Further the said Nagendra Shastry was a Relationship Manager of opposite party-Bank. Further during the year 2019 to 2021 there was COVID-19 restriction. Since the complainant has opened a bank account with the opposite party, the Bank will be the guardian for the said account and more responsibility is casted on the Bank. Admittedly on enquiry it was found that, Nagendra Shastry had committed fraud and he was kept under suspension by the Bank. Therefore any act committed by an employee of the opposite party during the discharge of his duty, the Bank is liable to answer. The Bank is a service provider as contemplated under section 2(42) of the Consumer Protection Act, 2019. Further the complainant has availed the service from the Bank thereby the complainant is a consumer as contemplated under section 2(7) of the Consumer Protection Act, 2019. Therefore the dispute in between the complainant and the Bank with regard to refund of the said amount amounts to a Consumer Dispute within the meaning of section 2(8) of the Consumer Protection Act, 2019. Hence there is no merit in the contention of the learned counsel for the opposite party – Bank.
16. It is the contention of the learned counsel for the complainant that, on 04.08.2021 the complainant had written letter to the opposite party – Bank alleging non-receipt of fixed deposit receipts vide EX.P.3 and had sent legal notice vide EX.P.12 calling upon the opposite party – Bank to make necessary arrangement to pay Rs.31,00,000/- and for that, the opposite party – Bank gave a reply vide EX.P.13 disowning their liability to pay the amount. We feel since the opposite party – Bank is responsible for the act of its employee, opposite party – Bank is liable to return the amount deceived by Nagendra Shastry while discharging financial dues. Hence non-refund of the same amounts to deficiency of service.
17. In support of the contention counsel for the complainant relies the judgment rendered by Hon’ble Apex Court in Civil Appeal No.8775-8776 OF 2016, in between Pradeep Kumar & Another Vs. Post Master General & Others. We have considered the principles laid down in the said case. Accordingly we answer this point in affirmative.
18. POINT NO.2:- The complainant claimed to refund an amount of Rs.31,00,000/- in addition to DD charges of Rs.20,945/-. On perusal of the Bank statement it appears that, the Bank has deducted Rs.20,945/- towards DD charges. The complainant did not ask for any DD to be issued. Hence the Bank is liable to pay the said amount also along with amount of Rs.31,00,000/-.
19. The complainant further sought a direction to the opposite party – Bank to pay an interest at the rate of 7% per annum on the amount of Rs.31,00,000/- for a sum of Rs.2,17,000/- and further 7% per annum from the date of filing of the complaint till realization. According to RW.1 a sum of Rs.13,00,000/- was debited from the account of the complainant for issuing DD on 05.07.2019 and a sum of Rs.18,00,000/- was deducted on 20.04.2021 and issued DD in favour of the associate Nagendra Shastry. We feel the complainant is entitle for interest on the amount of Rs.13,00,000/- from 05.07.2019 and on the amount of Rs.18,00,000/- from 20.04.2021 at the rate of 7% per annum as sought till the date of complaint and 9% per annum from the date of complaint till realization.
20. Further the complainant claimed a sum of Rs.6,00,000/- towards compensation. We feel because of the act of the employee of opposite party – Bank the complainant had suffered much and it appears that, he is a senior citizen aged above 83 years. Hence the complainant is entitle for a sum of Rs.50,000/- towards compensation.
21. Further the complainant claimed a sum of Rs.50,000/- towards litigation cost. The act of employee of the opposite party – Bank made the complainant to get issued legal notice and to file this complaint. Hence the complainant is entitle for litigation cost of Rs.10,000/-. Accordingly we answer this Point partly in affirmative.
22. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1 & 2 are jointly and severally liable to pay a sum of Rs.31,00,000/- along with interest at the rate of 7% per annum on the amount of Rs.13,00,000/- from 05.07.2019 and on the amount of Rs.18,00,000/- from 20.04.2021 till the date of complaint and interest on the said amount of Rs.31,00,000/- at the rate of 9% per annum from the date of complaint till realization and to pay a sum of Rs.20,945/- towards DD charges and a sum of Rs.50,000/- towards compensation and a sum of Rs.10,000/- towards litigation cost.
The opposite parties shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.80,945/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 27th Day of April, 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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//ANNEXURE//
Witness examined for the complainant side:
Sri.R.C.Srikanth, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents marked for the complainant side:
- Notarized dopy of Aadhar Card – EX.P.1.
- Notarized copy of bank pass book – EX.P.2
- Copy of letter dt.04.08.2021 – EX.P.3.
- Copy of the police complaint dt.09.08.2021 – EX.P.4.
- Copy of endorsement issued by police dt.07.09.2021 – EX.P.5.
- Copy of FIR dt.11.08.2021 – EX.P.6.
- Copy of FIR dt.02.08.2021 – EX.P.7.
- Copy of bank statement – EX.P.8.
- Copy of letter dt.14.10.2021 – EX.P.9.
- Copy of letter dt.20.10.2021 – EX.P.10.
- Copy of letter dt.10.11.2021 – EX.P.11.
- Office copy of legal notice dt.22.10.2021 with postal receipt – EX.P.12.
- Copy of reply dt.20.11.2021 – EX.P.13.
- Copy of letter dt.24.11.2021 with postal receipt – EX.P.14.
- Computer downloaded email – Ex.P.15.
- Copy of email intimation by RBI dt.07.01.2022 – EX.P.16.
- Certificate U/s 65(B) of Indian Evidence Act – EX.P.17.
Witness examined for the opposite parties side:
Sri. Aslam Pasha, Deputy Branch Manager of opposite party No.1 – Bank (RW-1) has filed affidavit in the form of his evidence in chief.
Documents marked for the Opposite Parties side:
1. Copy of authorization letter dt.07.06.2022 – EX.R.1.
2. Certificate U/s 2(A) of Bankers book of evidence – EX.R.2.
3. Certificate U/s 65(B) of Indian evidence act – EX.R.3.
4. Statement of account for the month of July-2019 – EX.R.4.
5. Statement of account for the month of April-2021 – EX.R.5.
6. Statement of account for the month of August 2019 – EX.R.6.
7. Statement of account for the month of January-2020 – EX.R.7.
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
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