State Consumer Disputes Redressal Commission
The Branch Manager,Canara ... vs M.A. Ramachandran 82, Adarsh Nivas, ... on 24 February, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.241/2009 [Against order in C.C.99/2007 on the file of the DCDRF, Nagercoil] DATED THIS THE 24th DAY OF FEBRUARY 2011 The Branch Manager, | Canara Bank, | Appellant/ 2nd O.P. College Road Branch, | Nagercoil.
Vs.
1. M.A. Ramachandran, | 1st Respondent/Complainant S/o. A. Arunachalam, | 82, Adarsh Nivas, | Lakshmipuram, Pallatheru, Vadasery, | Kanyakumari District. |
2. The Regional Provident Fund Commissioner, | 2nd Respondent/1st OP Sub Regional Office, | Tirunelveli 627
041. | The first Respondent / complainant filed a complaint before the District Forum against the opposite parties to pay Rs.5 lakhs as compensation. The District Forum allowed the complaint against the second opposite party, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.28.01.2009 in C.C.99/2007.
This appeal coming before us for hearing finally on 14.02.2011, upon hearing the arguments of the appellant and second respondent counsels and perused the documents, as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellant / 2nd O.P. : M/s.TCA Shrinivasan, Advocate.
For the First Respondent/Complainant : Served Absent.
Counsel for the R2 / 1st O.P. : M/s.S.Srinivasan.
M. THANIKACHALAM J, PRESIDENT
1. The second opposite party is the appellant.
2. Claim of the complainant:
The complainant/first respondent, who was employed by M/s.S.Nallaperumal and Sons, Nagercoil, during his service, paid contribution towards Provident Fund regularly. After his retirement, claiming the refund of the contribution, he had addressed the first opposite party and finally he realized the savings of Rs.15,627/- by way of cheque, but unable to realize the balance of Rs.8,435/-. The first opposite party despite several reminders, has not informed about the non-payment of the amount and he came to know later through ex-employer that the cheque was returned, as if, an information was given by the second opposite party, the Savings Bank Account of the complainant was closed, which is incorrect. On the basis of the information said to have been given by the second opposite party, the first opposite party, compelled the complainant to open a new account, thereby committed deficiency in service by adopting lethargic and dereliction of duty, for which, the opposite parties are liable to pay a compensation of Rs.5 lakhs. Hence, the complaint.
3. The first opposite party admitting the eligibility of the complainant, opposed the claim, contending that the cheques sent by them to the second opposite party, where the complainant had account, has not returned the cheques or informed the clearance of the cheque, for which, they cannot be held responsible, thereafter this opposite party re-authorized and issued a fresh cheque on 8.8.2007, which was realized by the complainant on 21.08.2007 and therefore, as such, they have not committed any negligent or deficiency in service, thereby prayed for the dismissal of the complaint.
4. The second opposite party admitting that the complainant was the account holder in their bank, would contend that they never received, the cheque No.403384, dated 09.06.2006, whereas, they have received only one cheque, which was realized and that they have not informed either the complainant or the first opposite party, that the complainant had closed the account and in this way since they have not committed any deficiency, they are not liable to answer the claim.
5. The District Forum on the basis of the averments, which are supported by affidavits, came to the conclusion, as if, the second opposite party alone had committed negligence act, in not tracing out the cheque, sent by the first opposite party and informing the account of the complainant was closed, thereby committed deficiency. In this view, slashing the prayer for compensation of Rs.5 lakhs to Rs.5,000/-, ordered to pay the same, only against the second opposite party, which is under challenge in this appeal.
6. The learned counsel for the appellant would contend, that the second opposite party has not received the cheque in question or they have not informed, as if, the complainant had closed the Savings Bank Account, and this being the position, when they have not committed any negligent act, the order slapping to pay a compensation of Rs.5,000/- is erroneous, liable to be set aside, which is not opposed by the first respondent/complainant, who remained absent in this appeal. On that ground alone, we are not going to say that the order of the District Forum is incorrect and we will decide on merit.
7. The complainant was working in M/s.S. Nellaperumal and Sons, Nagercoil and at that time, admittedly he contributed towards the Provident Fund.
After retirement, he was eligible for a sum of Rs.15,627/- and Rs.8,435/-, representing the contribution or other retiral benefits, as the case may be. The complainant was having savings bank account, in the appellant/second opposite party, bearing Savings Bank Account No.30872, which number was given for crediting the amount, payable to the complainant. As seen from Ex.A1, a cheque dated 09.06.2006, bearing No.403384 for a sum of Rs.8,435/- appears to have been sent to the Manager, Canara Bank namely the second opposite party. Similarly, another cheque for Rs.15,627/- was sent, as seen from Ex.A2.
Ex.A2 is dated 4.7.2006 and Ex.A1 is dated 09.06.2006. While the later cheque was encashed, the prior cheque was not encashed, and therefore, the complainant complained the same to the authorities. As seen from Ex.A4, M/s.Nellaperumal and Sons, Nagercoil also informed that the cheque for Rs.8,435/- has not been realized.
Despite the letter from the ex-employer of the complainant, there was no response till 08.06.2007, therefore, we feel, the first opposite party alone should have committed some negligent act, which can be seen from Ex.A6 also. Only after Ex.A6, Ex.A7 information was given to the ex-employer of the complainant by the Employees Provident Fund Organisation, a cheque for Rs.8,435/- was returned by the bank authority, with remarks as SB A/c closed, thereby advising the complainant for opening a new account for sending the amount.
8. The bank has informed on 28.06.2007, that the account was not closed and the complainants account is still in operation. Therefore, it is not known, where from the Employees Provident Fund Organization, had got information about the closure of the savings bank account, maintained by the complainant in the second opposite party bank. If really, the cheque sent by the first opposite party, was returned as account closed by the Bank, then that should be available with the first opposite party, which is not produced.
If the second opposite party had informed, there should be correspondence, and that should be referred atleast in Ex.A7, which is also absent. It is the specific case of the second opposite party, that they have not informed the alleged closure of the account and it is their further case that the cheque in question was not received by them. Therefore, unless it is proved, that the second opposite party had informed the first opposite party, as if, the account was closed or the cheque was returned negligently, in this case the second opposite party cannot be held responsible at all.
9. The District Forum, without any proof, whether the cheque has been sent and acknowledged or not, taking the communication of the first opposite party alone, has come to the conclusion, as if, the second opposite party failed to trace the cheque sent by the first opposite party, forgetting the fact, it is the case of the first opposite party, that the cheque has been returned as SB Account Closed. There is no iota of evidence to conclude that the second opposite party informed the first opposite party, as if, the complainant had closed the account and the cheque reached the hands of the second opposite party also. If the first opposite party had produced the invalid cheque, said to have been returned by the second opposite party, then only it can be concluded that the second opposite party had committed negligent act, returning the cheque as SB Account closed, in view of the fact, admittedly the account has not been closed.
10. The District Forum without reading Ex.A7 and when the material available with the first opposite party, if any, has not produced, has erroneously came to the conclusion, that the second opposite party gave false and misleading information to the first opposite party and therefore, they should be held responsible for the delay. In view of the above discussion, we conclude, neither the complainant, nor the first opposite party proved the negligent act of the second opposite party, and therefore, there is no deficiency on their part, warranting compensation.
Admittedly, an amount of Rs.8,435/- was also subsequently realized by the complainant, probably in the same account, thereby showing, that the account was not at all closed. For the mistake committed by the first opposite party, the District Forum slapped an order against the second opposite party, which requires to be set aside. The complainant aggrieved by the dismissal of the complaint against the first opposite party, has not preferred any appeal and therefore, for the deficiency if any committed by the first opposite party, we are unable to grant any relief, since that finding reached finality. Hence, the appeal is accepted.
11. In the result, the appeal is allowed, the order of the District Forum in OP No.99/2007, dt.28.01.2009 against the second opposite party is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/ second opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Bank