PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as the amount of money of the Complainant was not kept by the Opposite Party in the account as instructed by the Complainant .
2) The facts of the case as stated by the Complainant are that the Complainant is holding NRI status as he is employed in Merchant Navi. The Complainant is having bank account with Opposite Party.
3) The Complainant has further stated that he had two India Millennium Deposit Accounts (IMD) with State Bank of India. The details of these IMD Accounts are as follows –
a) USD series certificates bearing Nos.A149283 – A149284 for 1000 USD each and B118777-B118778 for 5000 USD each.
b) GBP – (Great Britain Pounds) series certificates bearing Nos. E100358-E100361 for GBP 1000 each and F100152 for GBP 5000 both maturing on 29/10/05.
4) Before maturity, the Opposite Party vide its letter dtd.25/08/05 through its NRI branch at Nariman Point, Offered services, free of cost to collect the maturity proceeds of the above said bonds from SBI on maturity and dispose of the proceeds as per Complainant’s instructions. For this purpose the Complainant had to be a comprehensive saving bank holder of the Opposite Party. So the Opposite Party sent its bank account opening form with option to open multiple accounts through single form.
5) The Complainant further stated that he has instructed the Opposite Party that the proceeds of the above certificates to be placed in FCNR Account (Foreign Currency Non Resident Account).
6) Accordingly the Opposite Party collected the maturity amount of US$ 18306.27 and GBP 13301.43 but the Opposite Party did not provide the FCNR Deposit account details to the Complainant. In April, 2006, he visited the Opposite Party Bank to make enquiry about the FCNR deposits and to update the pass book in respect of the NRE account No.61580. At this time the Complainant found two entries in his account no.61580 for which he had not made any deposits.
7) The Complainant again visited Opposite Party Bank in August, 2006, and made enquiries when he found that the Opposite Party had credited the above said maturity proceeds to NRE saving account no.61580 and not in FCNR Account.
8) Though the Opposite Party had given the promise that it would collect the proceeds free of charge, it debited a sum of Rs.2,315/- against US$ IMD and sum of Rs.2,919.76 towards GBP IMD on 27/01/2006, and 08/02/06 (Total Rs.5, 234.76). The Complainant called upon the Opposite Party to rectify the error but there was no response.
9) Due to job commitment, he had to go abroad in September, 2006 and hence, he could not pursue the matter. He then came back to India in Jan., 2007 and again visited the Opposite Party and requested to rectify the error. He then wrote letter dtd.24/01/07 to Opposite Party and requested to transfer the said proceeds to FCNR deposit at the same rate prevalent on date of collection. The Opposite Party vide its letter dtd.17/02/07 informed the Complainant that FCNR deposit could not be created at the rate prevalent on date of credit IMD, instead to keep the amount in FCNR deposit from 17/02/07. It is the contention of the Complainant that this was an attempt of Opposite Party to deprive the Complainant from earning foreign currency and higher returns, both on account of rate of interest and exchange rate.
10) The Complainant further stated that, the time in pursuing the above said matter would have resulted in losing his NRI status and thus, would have lost the tax benefits. The Complainant then, vide his letter dtd.10/03/07 informed the Opposite Party that he had received final call to join the ship by 23/03/07. He further informed the Opposite Party that if he would lose the NRI status because Opposite Party failed to rectify the mistakes, so he would fly abroad on 13/03/07 to maintain the NRI Status. All expenses of travel and stay at abroad would be claimed alongwith damages.
11) The Complainant has further stated that he was forced to go to Shrilanka for 17 days to maintain NRI status and spend huge amount (ticket to & from Shrilanka Rs.16,123/-). The Complainant returned to India on 31/03/07. He could not get another contract until 02/05/07 and thus, jobless for 1½ month from 13/03/07.
12) The Complainant wrote a letter to Banking Ombudsman on 12/04/07. In response to this letter, the Opposite Party vide its letter dtd.17/05/07, agreed to rectify its mistake and convert the proceeds of IMD/s into FCNR Deposits, effective from 29/12/05. However, in the said letter the Opposite Party requested the Complainant not to insist for Rs.16,123/- (the expenses of E-ticket of Jet Air Pvt. Ltd.). The Complainant has averred that before the Opposite Party agreed to transfer the amount to FCNR as per his wish on 17/05/07, he has suffered great mental & physical agony, stress, hardship and harassment, loss of wages, travel expenses and hotel expenses. He had to fly and stay at Shrilanka in order to maintain his NRI status and bear the expenses at Shrilanka.
13) Thereafter the Complainant sent a legal notices dtd.24/07/07 and called upon the Opposite Party to make payment of Rs.2,41,123/-. The Complainant has stated that due to oversight, he did not mention the hotel expenses loss of pay, amounting to Rs.1,50,750/-. However, the Opposite Party replied to this notice and denied the above said claim by its reply dtd.29/08/07.
14) The Complainant has further submitted that the behavior and callousness of the Opposite Party amounts to deficiency in service and Opposite Party is bound to make good the loss and damages caused to the Complainant on account of travel expenses, hotel expenses, reimbursement of banking charges, compensation towards mental & physical agony, etc. The Complainant has claimed the total amount of Rs.4,90,057.76 described as follows –
a) Airfair – Mumbai – Colombo – Mumbai .. .. Rs. 16,123.00
b) Hotel accommodation for 17 days 30 US$ per day .. Rs. 22,950.00
c) Bank Charges levied. .. .. Rs. 5,234.76
d) Loss of pay for 17 days in March, 2006. .. .. Rs. 75,000.00
d) Loss of pay from 01/04/07 to 30/04/07. .. .. Rs.1,50,750.00
e) Compensation for mental & Physical torture, agony .. Rs.2,00,000.00 and harassment.
f) Cost of the complaint. .. .. Rs. 20,000.00
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Total .. Rs.4,90,057.76
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15) The Complainant has attached xerox copies of the documents such as, letter dtd.25/08/05 from Opposite Party memos of proceeds of IMDS issued by Opposite Party, letter dtd.24/01/07 of the Complainant E-ticket receipt dtd.13/03/07, receipt of Seara Travels, Letter of assignment dtd.02/09/06, employment contract, employment letter, letter dtd.12/04/07 from the Complainant. Letter dtd.17/05/07 from Opposite Party. Legal notice dtd.24/07/07, letter dtd.29/08/07.
16) The complaint was admitted and notice was served on the Opposite Party. Opposite Party appeared before this Forum through its advocate and filed its written statement and denied the allegations of deficiency in service and, of unfair trade practices. The Opposite Party has admitted the fact that it offered the Complainant the services for collecting the maturity proceeds of Indian Millennium Deposits (IMD) bonds from State Bank of India on maturity. Accordingly the Opposite Party collected the maturity amount of the above said bonds from State Bank of India. These proceeds of the IMD were deposited in NRE Saving Bank account of the Complainant. The Complainant for the 1st time vide its letter dtd.24/01/07 brought to the notice of the Opposite Party that proceed were credited to NRE Saving account instead of FCNR Account and requested to credit the proceeds to FCNR deposit etc. On this letter, the Opposite Party replied vide its letter dtd.17/02/05, that, it would not be possible to convert the proceeds lying in NRE account to FCNR account at the rate prevailing in December, 2008. It (Opposite Party) further suggested the Complainant that he may keep the proceeds in FCNR deposits with immediate effect so that he would get the present FCNR rate of interest which is higherer than rates in Dec., 2005/Jan, 2006.
17) Thereafter the Complainant vide its letter dtd.22/02/07 informed the Opposite Party that he would be satisfied if the Opposite Party takes 3 steps to rectify the error. In may,2007, Opposite Party gave the effect as requested by the Complainant. The Opposite Party, vide its letter dtd.17/05/07 informed the Complainant that it has prepared FCNR deposits with effect from 29/12/2005 for two years i.e. maturing on 29/012/07. Thus, there is no loss caused to the Complainant by giving necessary effects as required by the Complainant as per his letter dtd.22/02/07.
18) The Opposite Party has stated that it has suffered the loss due to its own mistake. It is denied by the Opposite Party that the Complainant visited the Opposite Party in April, 2006 and no details were provided to him about the FCNR deposits. It is denied that the Complainant was asked to enquire with Byculla branch. It is alleged by the Opposite Party that the Complainant has made false allegations against the Opposite Party.
19) It is further explained by the Opposite Party in para 13 of the written statement that it is the procedure that, when the amounts are credits to NRE SB Account, the bank charges commission/service charges and same were debited from the proceeds of IMD Bonds. The Opposite Party has admitted that the amounts were wrongly deducted. It is willing to refund the same to the Complainant. It is willing to refund the same.
20) It is vehemently denied by the Opposite Party that the Complainant would have lost his NRI Status due to Opposite Party’s failure to rectify the mistake so the Complainant went abroad on 13/03/07 to maintain his NRI status.
21) The Opposite Party has averred that, this matter is pending before the Banking Ombudsman and still the Complainant has approached this Forum.
22) Finally the Opposite Party stated that it is not liable to pay any amount to the Complainant and it is prayed that the complaint be dismissed with cost.
23) The Opposite Party has attached the xerox copies of the following documents along with the written statement. Letter dtd.25.08.05 of the Opposite Party, Account Opening Form, letter dtd.24.01.07 of the Complainant, India millennium Deposits of State Bank of India, Passbook of Complainant with Opposite Party alongwith statement of account, letter dtd.17/02/07 of Opposite Party, letter dtd.22.02.07 of the Complainant; Inter branch credit advice, letter dtd.17.05.07 of Opposite Party, statement of account No.61580 from 13.06.04 to 22.07.08. Notice dtd.24.07.07 from the Advocate of the Complainant, Reply letter dtd.29.08.07 from J.K.B. Legal.
24) Thereafter, the Complainant filed rejoinder to the written statement of the Opposite Party, affidavit of evidence and written argument wherein the facts and points raised in the complaint were reiterated by the complainant. The Opposite Party also filed the affidavit in evidence and written argument wherein it reiterated the facts and points mentioned in its written statement.
25) We heard the Ld. Advocates for both the parties and perused the papers submitted by the parties. Our findings are as follows.
The Opposite Party offered the Complainant vide letter dtd.25.08.05 that it would collect the proceeds of the matured IMD deposits from the State Bank of India on the behalf of the Complainant free of cost but after collecting the proceeds the Opposite Party charged the Complainant for Rs.5,234.76 and debited this amount to the Complainants NRE Saving Account. This act of the Opposite Party certainly amounts to deficiency in services on the part of Opposite Party. This deficiency has been admitted by the Opposite Party in its written statement and it was contended by the Opposite Party that it is ready to reimburse this amount to the complainant.
26) It is also the contention of the Complainant that he had instructed the Opposite Party to keep these proceeds in FCNR Account but the Opposite Party kept these proceeds in NRE Account. However, there is no documentary proof of show that he has instructed in writing to keep the proceeds in FCNR Account. We perused the written statement, we find that the Opposite Party has clearly averred in para 13 of the written statement that “it is true that Opponent Bank had deposited the proceeds of IMD Bonds in to NRE SB Account instead of FCNR Account but after the receipt of letter dtd.22/02/07 of the Complainant the Opposite Party rectified the error and gave necessary effects as per the instructions laid down in letter dtd.22/02/07. This averment clearly shows that the Opposite Party had committed the error, of depositing the proceeds of IMD into NRE Account instead of the FCNR Account. The proceeds were collected by the Opposite Party on 27/01/06 and 08/02/06. It is the allegation of the Complainant that in April, 06 he has brought this error to the notice of the Opposite Party. In August, 06 also he called upon the Opposite Party to rectify the error. Lastly in January, 07 he wrote a letter to the Opposite Party requesting it to credit the proceeds to FCNR Account, still Opposite Party did not comply with his request. On the contrary it communicated the Complainant that “We regret to inform you that the FCNR deposit could not be created at the rate prevalent on the date of credit of IMD.” So inspite of clear instructions of the Complainant in his letter dtd.24/01/07, the Opposite Party has not credited the proceeds to FCNR Account. Therefore, the Complainant again sent a letter dtd.22/02/07 requesting the Opposite Party to convert the proceeds from NRE account to FCNR Account. Again the Complainant vide its letter dtd.10/03/07 informed that wrong placement of his large amount, was causing mental agony and affecting his health adversely.
27) In April, 2007, vide letter dtd.12/04/07, the Complainant made a complaint with Bank Ombudsman and then only the Opposite Party vide its letter dtd.17/05/07 complied with the requirement of the Complainant and prepared the FCNIR deposits with effect from 29/12/05. These acts of the Opposite Party certainly amount to deficiency, though the Opposite Party gave effects from 29/12/05. The Complainant was trying hard since April, 2006, when this error came to his notice and requesting the Opposite Party to keep the proceeds in FCNR account. Inspite of his several requests and efforts in this behalf, the Opposite Party was not complying with his instructions. The Opposite Party was bound to comply with and put the proceeds in an account as per the wish of the Complainant but the Opposite Party has flouted the legitimate and genuine instructions till 17/05/07.
28) The Opposite Party has corrected this error belatedly as on 17/05/07. The FCNR deposits were given effect from 29/12/05, there is no loss to the Complainant but the Complainant has alleged that due to non compliance of his instructions till 17/05/07 he could not attend his duties abroad and there is a loss of pay to the tune of Rs.2,25,000/- and, in order to save his NRI status, he had to go to Shrilanka and he had incurred expenses of Rs.39,073/-. In this connection, in our candid opinion the above said deficiencies in service on the part of Opposite Party, cannot be directly connected to the pay and expenses at Shrilanka. No doubt the Opposite Party’s are deficient in its service as stated above by putting the amounts of the Complainant in a wrong account but this does not mean that these acts of Opposite Party had compelled the Complainant to remain in India and not to join his work abroad. The decision of not going on work was taken by the Complainant himself. The Complainant went to Shrilanka voluntarily. The Opposite Party certainly has not compelled the Complainant to do these acts. Therefore, the Complainant is entitled for the compensation for mental agony caused by the deficiency in service on the part of Opposite Party as stated above as keeping the proceeds of the IMD deposit of the Complainant in wrong account and not correcting this error from April, 2006 to 17/05/07. A compensation of Rs.10,000/- would be proper for this purpose. The Complainant is also entitled for the cost of this complaint. However, the prayer of the Complainant, for reimbursement of the amount towards loss of wages (pay) and expenses incurred in Shrilanka, is not tenable. Therefore, we pass the order as follows
O R D E R
i. Complaint No.95/2008 is partly allowed.
ii. The Opposite Party is directed to pay Rs.5,270.76 (Rs. Five Thousand Two Hundred Seventy and Seventy Six
Paise Only) to the Complainant with interest @ 9 % p.a. from 08/02/2006.
iii.The Opposite Party is directed to pay the compensation of Rs.10,000/- (Rs. Ten Thousand Only) to the
Complainant for mental agony caused to the Complainant due to the deficiency in service on the part of
Opposite Party.
iv.The Opposite Party is also directed to pay Rs.3,000/-(Rs. Three Thousand Only) as cost of this complaint.
v. Opposite Party is directed to comply with the above said order within 30 days from the receipt of this order.
vi.Certified copies of this order be furnished to the parties.
