PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as they did not take precautions to verify the signature of the Complainants and allowed the payment against the pay slips and cheques, thereby causing loss to the Complainants.
2) The facts of the complaint as stated by the Complainant are that the Complainants are account hlder of the Opposite Party Bank No.1 at Gowalia Tank Branch having their Saving Account No.9538 and 9653 respectively. It is further submitted by the Complainants that they used to withdraw money from their account only by cheque and not by withdrawal slips. They also used to update their passbook regularly. In December, 2006, the Complainant No.1, went to Income Tax Office for payment of Income tax and for that, she carried all the pass books, slips and cheque book. The Bank passbooks, slips and cheque book alongwith her purse was stolen from the office of the Income Tax at Tardeo.
3) The Complainant has averred that immediately this fact was informed to the Opposite Party No.1 and Opposite Party No.1 was requested to issue a duplicate passbook & cheque book. After much follow up Opposite Party No.1 handed over the pass book and cheque book to the Complainants (The date of handling over is not mentioned in the averment). After receipt of duplicate cheque book & pass book, they came to know that, somebody has illegally withdrawn money from her account. The Complainants have stated that the cheques deposited in the bank were never received by them.
4) The Complainant found that an amount of Rs.3,39,800/- was illegally withdrawn by a person using withdrawal slips. Upon this they immediately lodged a complaint with Opposite Party No.1 and with Gamdevi Police Station on 30/01/07. However, there is no document in support of this averment that they immediately lodged complaint with Opposite Party No.1 and with Gamdevi Police Station. It is further alleged by the Complainant that Opposite Parties are reluctant to investigate the matter and therefore, it is the further allegation of the Complainant that the fraud of funds lying in the Complainant’s account was done in the collusion and connivance of the employee of the Opposite Parties.
5) The Complainants have further stated that they demanded the copies of withdrawal slips, which were to be sent to handwriting experts but nothing was done by Opposite Parties. The Manager was arrogant. He told the Complainant that the case would not be solved.
6) Thereafter the Complainants approached the Banking Ombudsman vide their letter dtd.26/03/2007.
7) The Complainant further stated that the Opposite Party vide its letter dtd.28/03/07 informed the Complainant that withdrawal forms were shown to the Complainants. Since police were investigating the matter all forms and slips, etc. were handed over to police authorities. The signatures of the withdrawal slips and specimen signatures are the same. The withdrawal slips were sent to the handwriting experts and it will intimate the Complainant when expert’s opinion will be received by them.
8) It is further submitted by the Complainant that the handwriting experts took his signatures on 03/01/08 in Gamdevi Police Station.
9) On 09/03/09, the Complainants received a letter from police informing them that, there is no fraud, committed and signatures on all the documents are of the same person. Hence, no fraud is committed. However, the handwriting expert’s report was not furnished to him.
10) Thereafter the Complainants vide their letter dtd.17/08/09, called upon to Opposite Parties furnish the copy of expert’s report but Opposite Party did not provide the expert’s opinion. So it is the contention of the Complainant that Opposite Party failed to take precautions while enchasing the cheques and withdrawal slips. It is the normal practice that only account holder is permitted to withdraw the amount by using withdrawal slips and when account holder has not availed the facility of cheque book.
11) In the complaint the Complainants have further stated that the provisions of Sec.13 of CPA be invoked and Opposite Party be directed to submit all the disputed withdrawal slips and cheques before the Forum and the same be sent to Government handwriting expert.
Finally the Complainants have prayed that an amount of Rs.3,39,000/- alongwith interest be paid by the Opposite Party to the Complainants and Rs.1 Lac compensation be paid to the Complainants by the Opposite Party. It is also prayed that an amount of Rs.25,000/- be given to the Complainants by the Opposite Party towards the cost of this complaint.
12) The Complainants attached the xerox copies of the following documents in support of their complaint –
a) Letter dtd.26/03/07 from the Complainants to the Bank Ombudsman.
b) Letter of the Opposite Party Bank to the Complainants dtd.28/03/07.
c) Letter dtd.Nil- from the Complainants to the Opposite Party.
e) Letter dtd.09/03/09 from the GamdeviPolice.
13) The complaint was admitted and notices were served on the Opposite Parties. The Opposite Parties did not appear before this Forum, hence, an ex-parte order was passed on 17/05/2010. Thereafter one Ld.Advocate Patra appeared before this Forum and filed application for setting side the ex-parte order against the Opposite Party. Thereafter did not remain present. The Complainant filed their say to this application of Opposite Parties to set aside the ex-parte order. The Opposite Party thereafter remained absent. Therefore, the ex-parte order was confirmed. Thereafter, the Complainants filed affidavit of evidence and written argument. We heard the Ld.Advocate for the Complainants and perused the above mentioned papers and our findings are as follows.
14) It is the allegation of the Complainants that they are the account holders of the Opposite Party No.1. But in this respect the Complainants have not produced even the copy of the passbook or the statement of accounts in respect of Saving Bank Account No.9535 and 9653.
15) It is the contention of the Complainants that in the December, 2006 the pass book and the cheque books were stolen from Tardeo Income Tax Office. In this respect, the Complainant averred that the Opposite Parties were immediately informed, but there is no such letter showing that the Opposite Parties were immediately informed about the theft of the pass book and cheque books.
16) In such a case, it is the responsibility of the account holder to take care of the pass book and cheque books issued to them and prevent any loss to them if they were stolen. But in the instant case, the Complainant does not say as to exactly when the pass books and the cheque books were stolen and when they informed the Opposite Parties and blocked the operations of transaction in that pass book. Even the Complainants miserabl failed to produce the entries by which the alleged culprit withdrew the amounts ? How many times he withdrew the amount ? How many cheques were used by him to withdraw amount ? and how many withdrawal slips were used by the culprit to withdraw the amount ? Everything is vague and ambiguous.
17) In order to prove the deficiency in service by the Opposite Parties the Complainant should prove certain things like, the signatures on the cheques or withdrawal slips were not identical to the specimen signature on record of the Opposite Party. The Complainants have not produced even the specimen signature and the disputed documents before this Forum. The Opposite Parties are not before this Forum. It appears from the papers also that the Complainants have not taken any steps to bring these documents on record. Only making averments, in the complaint that the documents were not made available by the Opposite Parties are not sufficient to prove the charges of deficiency in service by the Opposite Party. The Complainants have alleged that an amount of Rs.3,39,800/- was illegally withdrawn from their saving account. At least the Complainants should show that this amount was withdrawn from their account. Therefore, in our candid view the Complainants have not proved their case and substantiated the allegations of deficiency against the Opposite Parties. Therefore, we pass the order as follows -
O R D E R
i)Complaint No.53/2010 is hereby dismissed for want of merits.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
