State Consumer Disputes Redressal Commission
Central Bank Of India, Rep. By Its Chief ... vs R.Udaiyasanker, S/O Ramachandran, on 28 April, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY THURSDAY, the 28th day of April, 2011 First Appeal No.13/2007 Central Bank of India, Rep. by its Chief Manager and Principal Officer, Pondicherry Branch, Pondicherry. Appellant Vs. R.Udaiyasanker, S/o Ramachandran, Tinkering Works at C-87, Annamalai Nagar, Vallalar Salai Extension, Pondicherry-13 Residing at No.22, Jayamuthumariamman Koil Street, Kuruchikuppam, Puducherry-12 .. Respondent (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.81 of 2005, dated 08.06.2007) Consumer Complaint No.81 of 2005 R.Udaiyasanker, S/o Ramachandran, Tinkering Works at C-87, Annamalai Nagar, Vallalar Salai Extension, Pondicherry-13 Residing at No.22, Jayamuthumariamman Koil Street, Kuruchikuppam, Puducherry-12 .. Complainant Vs. Central Bank of India, Rep. by its Chief Manager and Principal Officer, Pondicherry Branch, Pondicherry. Opposite Party BEFORE: HONBLE JUSTICE THIRU J.A.K.SAMPATHKUMAR PRESIDENT TMT. K.K.Ritha, MEMBER
THIRU K.ELUMALAI, MEMBER FOR THE APPELLANT:
Tvl.C.S.Narasimhan & R.Soupramanien, Advocates, Puducherry.
FOR THE RESPONDENT:
Tvl. V.Venkatesan & B.Aroul Coumar, Advocates, Puducherry O R D E R (By Thiru K.Elumalai, Member) This appeal has been filed by the appellant/opposite party against the order dated 08.06.2007 passed by the learned District Forum, Puducherry in consumer Complaint No.81/2005.
2. The brief facts giving rise to this appeal are that the respondent/complainant is an account holder of the appellant/opposite party bank and his account number is 12755.
During February, 2005, he had a sum of Rs.71,626.50 in his account. In order to withdraw some amount from his account for his expenses, he searched and could not found his Savings Bank Pass Book.
3. So, he approached the appellant bank and obtained a duplicate of the Savings Bank Pass Book. He was surprised and shocked to hear from the appellant/opposite party bank that there was only a sum of Rs.1,048.50 available in his savings bank account and not Rs.71,626.50, as referred by him. Further, it was intimated that on 23.03.2005 a sum of Rs.56,000/- was withdrawn and on 31.03.2005 another sum of Rs.15,000/- was withdrawn by way of challans and thus totally a sum of Rs.71,000/- was withdrawn by unauthorized person by misrepresentation as if he was the account holder.
4. The respondent/complainant collected the photostat copy of the above two challans which were negligently honoured by the appellant/opposite party bank. A complaint was lodged on 21.09.2005 to the opposite party bank to take necessary action against the illegal withdrawal of the amount from his savings bank account. Because of deficiency in service and negligence on the part of opposite party bank, the complainant could not develop his business or discharge his pre-marital expenditure and undergone un told hardships and suffered from mental agony which spoiled his health.
5. A lawyers notice, dt.24.10.2005 was issued on 26.10.2005 to the appellant/opposite party asking to pay back a sum of Rs.71,000/- and Rs.50,000/- towards compensation for mental agony. The opposite party had sent reply notice stating that it was full of falsity and denial of the entire allegation of the complainant. The complainant has alleged that the opposite party did not take due care and caution which amounts to deficiency in service on their part. Accordingly, the complainant has filed a complaint before Learned District Forum, for recovery of the amount from the opposite party bank together with interest, damages on account of mental agony and cost of litigation.
6. The appellant/opposite party filed version resisting the claim of the complainant. They admit that the complainant is an account holder of the bank and he had a sum of Rs.71,626.50 was lying to the credit of the complainant as on 31.01.2005. The complainant used to withdraw the amounts from the bank by way of using withdrawal slips after producing Savings Bank Pass Book for endorsement of entries each time after such withdrawals. The opposite party denies the fact that complainant has lost his savings bank pass book and deliberately contended the same, with a view to intent a cause of action to file this complaint. It is also alleged that the complainant himself withdrew a sum of Rs.56,000/- on 23.03.2005 and Rs.15,000/- on 31.03.2005 through withdrawal slips, since he has no cheque operation. He has also produced the pass book at the time of withdrawing the amount and endorsement made in the pass book. The signature was verified both on the front as well as on the reverse of the withdrawal slips and found to be the specimen signature card maintained by the bank.
It is also denied that the two withdrawal slips were used by some unauthorized person through misrepresentation. The opposite party further denied that their officers were negligent in making the payment on the two withdrawal slips and state that they have exercised due diligence and caution by verifying the signatures and hence there was no deficiency as contended by the complainant and the complaint may be dismissed.
7. The complainant relied on Exs.C1 to C7 in support of his claim.
The opposite party had not marked any documents in this regard. However, based on the request of the complainant, the original document i.e. specimen signature card of the complainant in the bank and two original withdrawal slips dt.23.03.2005 and 31.03.2005 sent to the handwriting expert, Chennai for comparison. The handwriting expert, Chennai required five more admitted English signatures of the complainant made in the ordinary course of business in some existing documents preferably executed during the year 2005 for such comparison At their request, Exs.A1 to A5 was forwarded for comparison. The handwriting expert Chennai sent a report stating that the signature of the complainant was partly imitated and that the alleged signatures on the two withdrawal slips are not same as found in the specimen signature and other admitted documents. The report of the expert was objected by the opposite party. The opposite party filed proof affidavit and examined two bank officials who cleared the withdrawal slips for payment as RW1 and RW2. The chief examination of the complainant as PW1 through affidavit was filed and deposed. The handwriting expert, Chennai examined as court witness.
8. After analyzing the evidence of both sides the District Forum allowed the claim of the complainant to the effect that the opposite party bank shall pay a sum of Rs.71,000/- being the amount withdrawn from the account of the complainant; Rs.50,000/- towards compensation for mental agony and sufferings and Rs.5,000/- towards cost of litigation.
9. Aggrieved by the order of District Forum, Puducherry, the appellant/opposite party has come up before us in appeal.
10. The main grounds of appeal are as follows:
i) The district forum has absolutely no jurisdiction to decide the case of this nature which could attract the jurisdiction of civil court.
ii) The District forum failed to see that the respondent/complainant who is a tinker used to operate the account and that he had no settled handwriting and that there is bound to be slight variation in the signature.
iii) the District Forum failed to see the version of two responsible bank officials to the effect that they were familiar with the respondent/complainant who has been account holder for nine years prior to this transaction and that the payment was authorized based on the withdrawal slips after physical verification of the signature of the account holder, who present the withdrawal slips in person and also produce the bank pass book for immediate endorsement.
iv) The District Forum failed to see that the respondent/complainant suppressed the original pass book which contain endorsement of payment by the bank in question with a view to feign ignorance of payment under the two withdrawal slips.
v) Since the District forum completely failed to see the identity of the account holder in withdrawing the amount under withdrawal slips, the question of verifying the signature in more details would not arise. Even the handwriting expert has stated that the signature in the withdrawal slips appeared to have been imitated in part. The signature in Q1 to Q4 is approximate to the signature of the respondent/complainant with the specimen signature are not considered by the District Forum.
vi) The District Forum failed to see that the bank official, namely, the Teller and authorizing manager who were handling cheques and withdrawal slips everyday, had exercised due diligence and caution in verifying the identity of the respondent/complainant and the signature in the withdrawal slips resemble closely to the signature in the specimen card and passed the bills. The nature of the work is such that the authorized officer cannot look the endorsement from the eyes of the expert specially when they are satisfied with the identity of the person seeking payment.
vii) The District Forum has erroneously applied several decision cited by the respondent/complainant which relates to cheque for which no identification of persons is necessary.
viii) The District forum failed to see that in absence of acceptable independent corroborative evidence in respect of the complainants contention, reliance cannot be placed on the evidence of handwriting expert who has been called up to give evidence in respect of his report which is not conclusive and positive.
On the above grounds, the appellant/opposite party wanted to set aside the order of the District Forum with costs.
11. The counsel for the appellant/opposite party argued that the respondent/ complainant himself submitted withdrawal slips along with bank pass book and taken money from the bank after due endorsement in the pass book. The loss of pass book as claimed by the respondent/complainant is not true. The bank official has carefully scrutinized the two withdrawal slips visually and made payment to complainant after verifying the specimen signature card maintained by the bank. The handwriting expert himself opined that the signature in the withdrawal slips appear to have been imitated in part. In the circumstances, the appellant counsel prays the order of the District forum to be set aside. However, the respondent/ complainant refuted the contention of the appellant/opposite party.
12. The issues for consideration in this case are:
1. Whether the respondent/complainant is a consumer or not?
2.
Whether the bank official acted diligently before releasing the amount from the account based on the withdrawal slips?
3) Whether the savings bank pass book is with the safe custody of the complainant and whether the amount can be taken by using withdrawal slips without production of pass book?
4. Whether the handwriting expert report (findings) is full proof one or not?
5. Whether there is any deficiency in service on the part of the appellant/ opposite party bank?
6. To what relief the parties are entitled?
13. ISSUE NO.1:
With regard to the first issue, the District forum answered in favour of the complainant declaring him as a consumer. We do not find any error in this regard. Hence, we are of the view that the findings of the District Forum with regard to this issue is in order and the same does not require any interference. Hence, we answer this issue in favour of the respondent/complainant.
14. ISSUE NO.2:
The respondent/complainant is the account holder of the appellant/opposite party bank from 1996 as per Ex.C3. A sum of Rs.71,624.50 was to the credit of the complainant as on 31.01.2005, which is admitted by the appellant/opposite party (Ex.C7). When he approached the bank to take money from his account, it was intimated that on 23.03.2005 Rs.56,000/- and on 31.03.2005 Rs.15,000/- were withdrawn through withdrawal slips Exs.C1 and C2 from his Savings Bank Account.
But, the respondent/complainant alleges that from February, 2005 to September, 2005, he had not withdrawn or deposited amount during that period. He had given written complaint Ex.C4 to the opposite party bank stating, about the forgery committed by the unauthorized person by using challan through misrepresentation and encashed as if he is the original account holder.
The complainant also denies the signature found in Exs.C1 and C2 as belonging to him.
15. However, the appellant/opposite party stated that above said amount were withdrawn by the complainant himself on two different dates from the bank and necessary entries were made in the savings bank account book.
The bank officials had verified the signatures on the withdrawal slips with reference to the specimen signatures maintained in the bank before payment. They have also emphasized that the entries found in both the withdrawal slips Exs.C1 and C2 were similar to the specimen signatures maintained by the bank. The appellant/opposite party filed proof affidavit through K.Ramagandh, Teller and P.Govindarajan, Asst. Manager of the bank and examined them as witnesses RW1 and RW2 respectively. During the course of cross-examination, RW1 had deposed that he has empowered to pass including cheques up to Rs.7,000/- and if the amount exceeds, he has to refer to RW2, the next higher officer as it is the practice of the bank and it is not necessary to compare the specimen signature of the parties by him. In the course of cross-examination, RW2 had given evidence that he had seen the signature of the complainant in the computer screen and the signatures in Q1 to Q4 are similar to that of signature in Exs.C1 and C2. He denied that third party took the money only because of his negligent and the bank is liable for the same. In the chief examination, the complainant (CW1) had given evidence that he had not gone to the bank on 23.03.2005 and on 31.03.2005 with his pass book and wrote withdrawal slips and took the money and got the entries made in the pass book. He has also denied that the signature found in the withdrawal slips (Ex.C1 and C2) both front and back, is his signature.
16. It is well established practice that when a withdrawal slip along with pass book is presented to the bank for payment, the bank is expected to carefully scrutinize in all respects by visual comparison with the specimen signatures, etc of the drawer and unless on such scrutiny it finds reason to doubt the genuineness of the signature of the drawer, it is bound to honour the instrument and make payment.
17. In this case, the opposite party bank had taken all the care to verify the signature in the withdrawal slips with specimen signature card in the bank and endorsed in the pass book and pay the amount. The evidence of RW1 and RW2 cannot be discredited as such. In these circumstances, we are of the opinion that the bank had acted very diligently and taken all reasonable care as required before releasing the amount based on the withdrawal slips. Whereas, the District Forum had not valued the evidence of RW1 and RW2 in the right prospective and allowed the claim of the complainant only on the basis of the report of the handwriting expert which is not conclusive and positive. The District Forum had erred in this aspect and the same is liable to be set aside and accordingly it is set aside.
. In the result, this issue is answered against eh respondent/complainant . 18. ISSUE NO.3:
The next question in this case is whether the savings account pass book is in the safe custody of the complainant or not. It is established procedure in the bank that the withdrawal of money from the savings account by using withdrawal slip it should be accompanied by pass book. In his chief , the complainant (CW1) deposed as follows:
I have savings bank account with Central Bank of India, Pondicherry from 1996. Whenever I need money, I used to taken the S.B. pass book, present the withdrawal slip available in the bank and drew the amount. After withdrawal, the bank endorses the payment on the pass book and returned immediately. I know that I cannot withdraw amount unless I take the pass book. I have not availed the cheque book facility from the bank. If I have cheque book, I need not take the pass book for withdrawal. I used to keep the S.B. pass book in a drawer in the workshop under lock and key. Nobody else than me can have access to the pass book. I never used to give the drawer key to anybody. In September, 2005, I came to know of the loss of pass book. I did not care to check the availability of the pass book in the drawer prior to that. Only my pass book was missing from the drawer and nothing else.
19. From the above version of the complainant, he himself admitted that the pass book is under the lock and key of his custody. It is suspicious how the pass book is accompanied along with the withdrawal slip at the time of withdrawal of the amount in question. We are of the considered opinion that the amount had been withdrawn from the bank only by the complainant by using the pass book.
In the result, this issue is answered against the respondent/complainant
20. ISSUE NO.4:
The complainant alleges that the signature in both sides of the withdrawal slip by which the bank delivered the amount does not belong to him. However, the bank has argued that the signature found in both sides of withdrawal slips are compared with the signature of the account holder in the bank found in order and only after satisfaction the amounts were released.
Since there is a dispute of signature on both sides the same was referred to the handwriting expert, Chennai to find out whether the signature in the withdrawal slips are the signature of the complainant who is the account holder of the bank. After obtaining some more admitted genuine English signature of the account hold made in the ordinary course of business in some existing documents like letter, cheques, withdrawal slips, etc. preferably during the year 2005 i.e. A1 to A5 the Forensic Science Department analyzed the signature in the documents with reference to the withdrawal slips and submitted a report in this regard. The result Ex.X1 of the examination is furnished below:
The person who wrote the enclosed signatures stamped and marked A1 to A5 did not write the red enclosed signatures similarly stamped and marked Q1 to Q4. The standard signature have been freely written and agree in the handwriting characteristics on interse comparison. The questioned signatures have been partially imitated and they differ significantly from the standard in the handwriting characteristics.
21. Thiru M.T.Yuvanesan, Scientific Assistant Gr.I and Document Expert, Forensic Sciences Department, Chennai was examined as court witness. In the chief examination, he reiterated what he observed in his report.
While in the cross-examination he has deposed that it is not possible to say whether the signature of the complainant is settled signature or that of a person who signs occasionally.. He has also admitted that the signature means in general is not a signature written for the occasion but previously in existing documents. In Ex.X1 partially imitated means it is partly imitated to appear as that of the admitted documents.
22. On perusing the aforesaid extracted opinion, it is seen on comparison of the disputed signature with that of admitted ones, that they are partly imitated to appear as that of the admitted documents. In the circumstances the opinion of the handwriting expert may not be considered as full proof one to come to the conclusion that it is not the signature of the complainant. In these circumstances, we are of the view that the report of Forensic Sciences Department may not be taken beyond doubt. In the result, this issue is answered against the respondent/complainant.
23. ISSUE NO.5:
In the appeal memorandum, the appellant/opposite party submitted that the bank official had passed for payment only after they were satisfied about the account-holder and genuineness of the signature by visual scrutiny and comparison with the specimen signature of the account holder maintained in the bank. The same was also deposed by the bank officials in their deposition as RW1 and RW2. Under Section 31 of Negotiable Instruments Act, the appellant has a liability to honour the said instrument either cheque or withdrawal slip and made payment if it is otherwise in order. The law imposes the duty on the bank only to exercise in good faith, such care and diligence as is reasonably possible under ordinary circumstance when a withdrawal slip along with savings bank pass book is presented for payment and we are clearly of the opinion that this duty has been duly performed in the present case by the officials of the appellant/opposite party bank.
24. It is worthy to note that the handwriting expert himself opined that there was partly imitated between the disputed signature and admitted documents. If in such a situation, we did not see any reason to doubt the genuineness of the party and signature in the instrument i.e. withdrawal slip and made payment against good faith it cannot be held to constitute deficiency in service on the part of the appellant/opposite party. In the result, this issue is answered against the respondent/complainant.
25. The decisions relied by the District Forum are not applicable for the facts on hand as the facts on hand and the facts referred in the said decisions are totally different.
26. ISSUE NO.6:
In the result, the appeal is allowed. The order of the District Forum in C.C.No. 81/2005, dated 08.06.2007 in allowing the complaint, is set aside. The complaint is dismissed. The parties are directed to bear their respective costs.
Dated this the 28th day of April, 2011 (J.A.K.SAMPATHKUMAR) PRESIDENT (K.K.RITHA) MEMBER (K.ELUMALAI) MEMBER