State Consumer Disputes Redressal Commission
Sushil Malik vs Bank Of Baroda on 27 September, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1326 of 2009.
Date of Institution: 17.09.2009.
Date of Decision: 27.09.2012.
Sushil Malik son of late Smt. Ram Rakhi and Amolak Ram, R/o B-XX-III, 425,
Kucha No.6, Field Ganj, Ludhiana.
.....Appellant.
Versus
1. Bank of Baroda, Samrala Chowk, Ludhiana through its Branch
Manager.
2. Bank of Baroda, SCO No.62-63, Bank Square, Sector 17-B,
Chandigarh through DGM.
...Respondents.
First Appeal against the order dated
24.08.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:- Sh. Munish Goel, Advocate, counsel for the appellant.
Sh. H.S. Bhatia, Advocate, for Sh. Ashok Kumar, Advocate, counsel for the respondents.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order shall dispose of two appeals i.e. F.A. No.1326 of 2009 (Sushil Malik Vs Bank of Baroda & Anr.) and R.P. No.39 of 2010 (Bank of Baroda Vs Sushil Malik) filed against the orders dated 24.08.2009 and 26.04.2010 respectively passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum") in the complaint as well as in review application. The facts are taken from F.A. No.1326 of 2009 and the parties would be referred by their status in this appeal.
2. Facts in brief are that the Sh. Sushil Malik, appellant/complainant (hereinafter called as "the appellant") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, alleging that his mother Smt. Ram Rakhi was having saving account no.2797 with the respondent bank and vide six different First Appeal No.1326 of 2009 2 applications, she requested the respondent bank to convert the saving account into FDRs for three years period and on this request, the respondent bank issued six FDRs in the name of Smt. Ram Rakhi, mother of the appellant. The detail of the six FRDs is as under:-
Sr. No. FDR No. Amount(Rs) Value Date Due Date Maturity Amount(Rs) A) 946674 45000 8.6.2004 8.6.2007 51302 B) 946693 45000 21.6.2004 21.6.2007 54202 C) 946720 45000 5.7.2004 5.7.2007 54603 D) 946915 45000 29.9.2004 29.9.2007 53013 E) 946919 45000 6.10.2004 6.10.2007 53013 F) 946932 45000 13.10.2004 13.10.2007 53013
3. The respondent bank issued the above FDRs against Serial No. A to B at the rate of 6.25% and Serial. No.C at the rate of 6.50% and Serial No.D to F at the rate of 5.50%. The respondent bank gave the Customer Reference No.2797 and Account No.FD-37175/1, 37187/1, 27202/1, 37306/1, 37308/1 and 37319/1 against the said FDRs against Serial Nos. A to F. The name of the appellant was mentioned as nominee in the FDRs. Earlier, the mother of the appellant also nominated the appellant in the saving account no.2797 while submitting Form DA-1 on 31.05.2004 which was accepted by the respondent bank.
4. Smt. Ram Rakhi, mother of the appellant died on 01.06.2005 and appellant informed the respondent bank about her death and requested for release of the payment, but the respondent bank told him that the payment of the FDRs can be made only on maturity. On maturity of the FDRs, the appellant again approached the respondent bank vide applications dated 29.11.2007 and 28.07.2008. The appellant before filing the present complaint moved an application under RTI Act for supply of the copies of the applications of his mother and the respondent bank vide order dated 22.10.2008 supplied the copies of six applications which are C-1 to C-6. The First Appeal No.1326 of 2009 3 respondent bank has not made any payment on the ground that nominee cannot be made at the time of FDRs and no form was filled for nominating the appellant as nominee. Actually, no form was filled at the time of making such FDRs nor it was got signed by the respondent bank.
5. It was prayed that the respondents be directed to pay compensation to the tune of Rs.50,000/- and also be directed to release the amount of the FDRs amounting to Rs.3,19,149/- along with interest at the rate prevailing time to time and to release the amount of Rs.20,345/15 as per passbook entry dated 03.01.2007 along with interest and pay Rs.7500/- as costs of litigation.
6. In the written reply filed on behalf of the respondents, preliminary objections were taken that the appellant has not come to the Forum with clean hands and concealed the true facts for getting wrongful gain and to grab the money of the legal heirs of deceased Smt. Ram Rakhi. Deceased Smt. Ram Rakhi never made any nomination regarding the FDRs in dispute in favour of the appellant, nor executed the requisite forms for making him nominee as per bank guidelines. The complaint is vague. The respondent bank received a legal notice dated 21.08.2008 from one of the legal heirs of the deceased, namely Sh. Suresh Malik and from this notice, the respondent bank came to know that the deceased Smt. Ram Rakhi had left behind three sons and three daughters namely Sushil Malik (appellant), Suresh Malik, Surinder Malik, Smt. Swaran Lata, Smt. Santosh Handa and Smt. Suman Sehgal, who are her class-I legal heirs and are entitled to 1/6th shares in the proceeds of the FDRs. The respondent bank cannot make the payment of the proceeds of the FDRs unless and until the appellant gets Succession Certificate regarding the proceeds of the FDRs from the competent court. The present complaint is bad for mis-joinder and non-joinder of necessary parties. Other legal heirs are not made party. The appellant is not a consumer.
First Appeal No.1326 of 2009 4
7. On merits, it was reiterated that the Smt. Ram Rakhi deceased never appointed the appellant as her nominee regarding the proceeds of the FDRs, as she had not executed the requisite documents. The respondent bank had been supplying form DA-1 to the deceased from time to time, but she never executed the same nor returned the same. The issuance of the FDRs and the death of Smt. Ram Rakhi was admitted. Other similar pleas as raised in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that as per the law, payment to nominee would amount to a valid discharge of the liability of the insurance company, but the appellant shall hold entire amount of six FDRs as proceeds as trustee for legal heirs of deceased Smt. Ram Rakhi. The respondent bank cannot deny release of account to the appellant on the ground that he is not nominee. The complaint was allowed and it was held that the appellant be taken and deemed as nominee of Smt. Ram Rakhi for the six FDRs Ex.C-4 to Ex.C-9. The respondent bank shall release the entire amount of the six FDRs on maturity along with applicable rate of interest and the appellant shall hold the entire amount so released as trustee for the legal heirs of deceased Smt. Ram Rakhi. The legal heirs shall have right in the amount as per their respective shares and awarded Rs.2,000/- as litigation expenses.
10. Not satisfied with the impugned order dated 24.08.2009, the appellant has come up in the present appeal with a prayer to modify the impugned order by awarding compensation and enhancing litigation costs.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
First Appeal No.1326 of 2009 5
12. Admittedly, Smt. Ram Rakhi, mother of the appellant was having saving account no.2797 with the respondent bank and she made six different applications Ex.C-12 to Ex.C-17 for converting her saving account no.2797 into FDRs of Rs.45,000/- each for three years. In these applications, the appellant was recommended as nominee of deceased Smt. Ram Rakhi. The respondent bank converted the saving account into six FDRs of Rs.45,000/- each which are Ex.C-4 to Ex.C-9. The respondent bank converted the saving account of Smt. Ram Rakhi deceased to FDRs, but did not bother to get the forms filled or other formalities completed to make the appellant as nominee in their record. But the fact remains that the intention of Smt. Ram Rakhi at the time of converting her account was that the appellant shall be her nominee in the said six FDRs.
13. The settled law is that the nominee is trustee of the amount whichever he receives of the legal heirs of the deceased. In the present case, there are six legal heirs of deceased Smt. Ram Rakhi, including the appellant, as mentioned above. The District Forum has passed a very detailed and speaking order which in consonance with the law laid down by the Hon'ble Supreme Court. The District Forum has rightly held that the appellant shall hold the entire amount so released by the respondent bank as trustee for the legal heirs of deceased Smt. Ram Rakhi and the legal heirs have the right in the amount as per their respective shares. The respondent bank should have released the amount to the appellant, but dilly-dallied on the pretext that he is not nominee, which amounts to blowing hot and cold in the same breath. On the same application of deceased Smt. Ram Rakhi, the amount lying in the saving account was converted into six FDRs, but the other part was ignored wherein it was clearly mentioned that the appellant shall be nominee. The respondent bank has unnecessary dragged the appellant into litigation and has prolonged the release of the amount. The appellant was compelled to file the complaint and then the present appeal and for that, he is required to be compensated.
First Appeal No.1326 of 2009 6
14. Accordingly, the impugned order under appeal dated 24.08.2009 passed by the District Forum is modified to the extent that the respondent bank shall pay litigation costs to the tune of Rs.10,000/- (Rupees Ten Thousand) instead of Rs.2,000/- as ordered by the District Forum. With this modification, the appeal filed by the appellant is disposed of. The respondents shall comply the order within 30 days of receipt of copy of the order.
Revision Petition No.39 of 2010:-
15. The Petitioner-Bank of Baroda has filed this revision petition against the order dated 26.04.2010 vide which the District Forum declined to review the order dated 06.04.2010 passed in execution.
16. The revisionist feels aggrieved by the order of the District Forum dated 06.04.2010 that the appellant should open a fresh account, but he should not be allowed to deposit the amount of the FDRs etc. in his own account.
17. The District Forum has passed a correct order. The amount of FDRs is the property of the legal heirs of deceased Smt. Ram Rakhi and the appellant-Sushil Malik is also one of the legal heirs of deceased Smt. Ram Rakhi and he is to keep the share of the other legal heirs in the bank only as trustee and the other legal heirs of deceased can always claim their share from the appellant. The only safeguard which we can further provide to the other legal heirs of deceased Smt. Ram Rakhi is that the appellant is directed not to utilize the amount of the share of the other legal heirs for his own purposes and shall keep that amount intact in his account till it is received by the other legal heirs of the deceased. However, the appellant can utilize the amount falling to his own share as per his wishes. Except this clarification, there is no ground to interfere with the order dated 06.04.2010 passed by the District Forum in execution and the District Forum has rightly refused to review the order as it has no power to do so. With this clarification, the First Appeal No.1326 of 2009 7 Revision Petition No.39 of 2010 (Bank of Baroda Vs Sushil Malik) is dismissed. No order as to costs.
18. The arguments in the appeal as well as revision petition were heard on 25.09.2012 and the orders were reserved. Now the orders be communicated to the parties.
19. The appeal and revision petition could not be decided within the stipulated timeframe due to heavy pendency of court cases.
20. Copy of this order be placed in Revision Petition No.39 of 2010 (Bank of Baroda Vs Sushil Malik).
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member September 27, 2012.
(Gurmeet S)